Preview
FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 651341/2020
BRUCE KIM
Plaintiff,
ANSWER TO AMENDED
COUNTERCLAIM
-against-
XP SECURITIES, LLC, n/k/a XP
INVESTMENTS US, LLC, XP
INVESTIMENTOS S.A., and PEDRO
HENRIQUE CRISTOFORO DA SILVEIRA,
Defendants.
Plaintiff Bruce Kim by and through his attorneys, Law Office of Alexander Sakin, LLC,
hereby answers Defendant XP Securities, LLC, n/k/a XP Investments US, LLC’s (“XPI”)
Amended Counterclaim (the “Counterclaim”), as follows, with each numbered paragraph below
corresponding to and answering a paragraph of the Counterclaim bearing the same number:
1. Admits that XP Inc. (“XP”) is “one of the largest brokerages in Brazil,” and
denies the rest of the allegations.
2. Denies, except admits that Plaintiff was hired to head XPI’s Asia foreign
exchange desk.
3. Denies.
4. Denies.
5. Denies.
6. Denies.
7. Admits.
8. Admits that XPI is a Delaware LLC and denies knowledge and information
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sufficient to form a belief as to the truth of the rest of the allegations.
9. Denies knowledge and information sufficient to form a belief as to the truth of the
allegations, but admits that XP is one of the largest Brazilian investment companies.
10. Admits that XP has a mission to “disintermediate the legacy models of traditional
financial institutions,” but denies knowledge and information sufficient to form a belief as to the
truth of the rest of the allegations.
11. Denies knowledge and information sufficient to form a belief as to the truth of the
allegations, but admits that the language quoted in this paragraph is contained in the document
entitled “People and Management Code of Ethics and Conduct” (“Code of Conduct”) sent to
Plaintiff on June 28, 2019.
12. Admits that the language quoted in this paragraph is contained in the Code of
Conduct sent to Plaintiff on June 28, 2019, but denies that any “zero tolerance policy” of the
kind described in the paragraph existed at XPI.
13. Admits that the language quoted in this paragraph is contained in the Code of
Conduct sent to Plaintiff on June 28, 2019.
14. Denies knowledge and information sufficient to form a belief as to the truth of the
allegations.
15. Admits.
16. Admits.
17. Admits.
18. Denies knowledge and information sufficient to form a belief as to the truth of the
allegations, and denies that the Code of Conduct was provided to Plaintiff on “multiple”
occasions.
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19. Admits.
20. Denies.
21. Denies.
22. Denies that Plaintiff engaged in “misconduct” and denies knowledge and
information sufficient to form a belief as to the truth of the rest of the allegations.
23. Admits that Plaintiff inadvertently sent the email described.
24. Admits, but denies allegations regarding the nature of Plaintiff’s conduct.
25. Admits, but denies knowledge and information sufficient to form a belief as to the
truth of the allegation that a copy of the Code of Conduct was “reattached.”
26. Admits, but denies knowledge and information sufficient to form a belief as to
whether the Employment Agreement dated June 29, 2017 (the “Agreement”) was “amended.”
27. Denies knowledge and information sufficient to form a belief as to the allegations
regarding the “veteran foreign exchange broker,” and denies the rest.
28. Denies knowledge and information sufficient to form a belief as to the allegations
regarding any “investigation,” and denies all allegations regarding the nature of Plaintiff’s
behavior.
29. Denies.
30. Denies.
31. Denies knowledge and information sufficient to form a belief as to the allegations
regarding Wilson’s statements, and denies all allegations regarding the nature of Plaintiff’s
behavior.
32. Denies.
33. Admits.
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34. Admits that the email with the language quoted in the paragraph was sent on
January 27, 2020, but denies the rest of the allegations.
35. Admits that Plaintiff sent an email reading “everyone is a bit confused on how
this is being managed,” but denies the rest of the allegations.
36. Admits that Plaintiff received an email containing the text quoted in this
paragraph, but denies the rest of the allegations.
37. Admits that Plaintiff was terminated on February 27, 2020, but denies that the
termination had any legitimate basis in the Agreement.
38. Denies.
39. Admits that XPI included the cited language in its letter dated February 27, 2020,
but denies all allegations regarding the nature of Plaintiff’s behavior.
40. Admits that XPI made the cited accusations in its letter dated February 27, 2020,
but denies all allegations regarding the nature of Plaintiff’s behavior.
41. Denies.
42. Denies.
43. Denies.
44. Denies.
45. Denies to the extent the allegations of this paragraph support the allegations in
paragraph 44, but admits that the Agreement contains substantially the language cited.
46. The allegations in paragraph 46 call for a legal conclusion as to which no
response is required. To the extent a response is required, denies.
47. Denies.
48. Denies.
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49. Denies.
50. In response to paragraph 50, repeats and incorporates each and every response to
the foregoing allegations.
51. The allegations in paragraph 51 call for a legal conclusion as to which no
response is required. To the extent a response is required, admits that Plaintiff entered into the
Agreement with XPI.
52. Denies.
53. Denies that XPI’s termination of Kim was properly for “Cause.”
54. Denies.
55. Denies.
56. Denies.
57. Denies.
58. Denies.
59. In response to the paragraph starting with “WHEREFORE,” denies that XPI is
entitled to a judgment against Plaintiff or any of the relief against Plaintiff set forth in sub-
paragraphs (A) through (G), inclusive.
AFFIRMATIVE AND OTHER DEFENSES
Without admitting any allegations asserted in the Counterclaim, Plaintiff asserts the
following affirmative and other defenses. Nothing stated in any of the following defenses
constitutes a concession that Plaintiff bears any burden of proof on any issue on which he would
not otherwise bear such burden.
1. XPI fails to state a claim upon which relief may be granted.
2. XPI’s claim is barred because it has not sustained any injury or damages caused
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by any action of Plaintiff.
3. To the extent Plaintiff breached any of its obligations under any agreement with
XPI, which breach is denied, XPI ratified and/or acquiesced to such breach.
4. XPI’s claim is barred by its failure to perform under the Agreement.
5. XPI’s claim is barred by the applicable statutes of limitations, the doctrine of
laches and/or the doctrine of equitable estoppel.
6. XPI’s claim is subject to offset and/or setoff for sums of money due and owing to
Plaintiff.
7. XPI’s claim is barred in whole or in part by the Doctrine of Unclean Hands.
8. XPI’s claim is barred in whole or in part because to grant this claim would result
in unjust enrichment.
9. Plaintiff reserves the right to assert additional affirmative defenses at such time
and to such extent as warranted by discovery and the factual developments in this case.
WHEREFORE, Plaintiff denies that XPI is entitled to judgment in any amount
whatsoever, and respectfully submits that the entire Counterclaim should be dismissed in its
entirety on the merits and with prejudice, and that Plaintiff be awarded costs incurred in
defending this Counterclaim, including reasonable attorneys’ fees, as well as such other legal
and equitable relief as the Court deems just and proper.
Dated: New York, New York
February 17, 2022
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LAW OFFICE OF
ALEXANDER SAKIN LLC
/s/ Alexander Sakin
Alexander Sakin, Esq.
5 West 37th St., Suite 638
New York, NY 10018
(917) 509-7573
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Preview
FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 651341/2020 BRUCE KIM Plaintiff, ANSWER TO AMENDED COUNTERCLAIM -against- XP SECURITIES, LLC, n/k/a XP INVESTMENTS US, LLC, XP INVESTIMENTOS S.A., and PEDRO HENRIQUE CRISTOFORO DA SILVEIRA, Defendants. Plaintiff Bruce Kim by and through his attorneys, Law Office of Alexander Sakin, LLC, hereby answers Defendant XP Securities, LLC, n/k/a XP Investments US, LLC’s (“XPI”) Amended Counterclaim (the “Counterclaim”), as follows, with each numbered paragraph below corresponding to and answering a paragraph of the Counterclaim bearing the same number: 1. Admits that XP Inc. (“XP”) is “one of the largest brokerages in Brazil,” and denies the rest of the allegations. 2. Denies, except admits that Plaintiff was hired to head XPI’s Asia foreign exchange desk. 3. Denies. 4. Denies. 5. Denies. 6. Denies. 7. Admits. 8. Admits that XPI is a Delaware LLC and denies knowledge and information 1 of 7 FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 sufficient to form a belief as to the truth of the rest of the allegations. 9. Denies knowledge and information sufficient to form a belief as to the truth of the allegations, but admits that XP is one of the largest Brazilian investment companies. 10. Admits that XP has a mission to “disintermediate the legacy models of traditional financial institutions,” but denies knowledge and information sufficient to form a belief as to the truth of the rest of the allegations. 11. Denies knowledge and information sufficient to form a belief as to the truth of the allegations, but admits that the language quoted in this paragraph is contained in the document entitled “People and Management Code of Ethics and Conduct” (“Code of Conduct”) sent to Plaintiff on June 28, 2019. 12. Admits that the language quoted in this paragraph is contained in the Code of Conduct sent to Plaintiff on June 28, 2019, but denies that any “zero tolerance policy” of the kind described in the paragraph existed at XPI. 13. Admits that the language quoted in this paragraph is contained in the Code of Conduct sent to Plaintiff on June 28, 2019. 14. Denies knowledge and information sufficient to form a belief as to the truth of the allegations. 15. Admits. 16. Admits. 17. Admits. 18. Denies knowledge and information sufficient to form a belief as to the truth of the allegations, and denies that the Code of Conduct was provided to Plaintiff on “multiple” occasions. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 19. Admits. 20. Denies. 21. Denies. 22. Denies that Plaintiff engaged in “misconduct” and denies knowledge and information sufficient to form a belief as to the truth of the rest of the allegations. 23. Admits that Plaintiff inadvertently sent the email described. 24. Admits, but denies allegations regarding the nature of Plaintiff’s conduct. 25. Admits, but denies knowledge and information sufficient to form a belief as to the truth of the allegation that a copy of the Code of Conduct was “reattached.” 26. Admits, but denies knowledge and information sufficient to form a belief as to whether the Employment Agreement dated June 29, 2017 (the “Agreement”) was “amended.” 27. Denies knowledge and information sufficient to form a belief as to the allegations regarding the “veteran foreign exchange broker,” and denies the rest. 28. Denies knowledge and information sufficient to form a belief as to the allegations regarding any “investigation,” and denies all allegations regarding the nature of Plaintiff’s behavior. 29. Denies. 30. Denies. 31. Denies knowledge and information sufficient to form a belief as to the allegations regarding Wilson’s statements, and denies all allegations regarding the nature of Plaintiff’s behavior. 32. Denies. 33. Admits. 3 3 of 7 FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 34. Admits that the email with the language quoted in the paragraph was sent on January 27, 2020, but denies the rest of the allegations. 35. Admits that Plaintiff sent an email reading “everyone is a bit confused on how this is being managed,” but denies the rest of the allegations. 36. Admits that Plaintiff received an email containing the text quoted in this paragraph, but denies the rest of the allegations. 37. Admits that Plaintiff was terminated on February 27, 2020, but denies that the termination had any legitimate basis in the Agreement. 38. Denies. 39. Admits that XPI included the cited language in its letter dated February 27, 2020, but denies all allegations regarding the nature of Plaintiff’s behavior. 40. Admits that XPI made the cited accusations in its letter dated February 27, 2020, but denies all allegations regarding the nature of Plaintiff’s behavior. 41. Denies. 42. Denies. 43. Denies. 44. Denies. 45. Denies to the extent the allegations of this paragraph support the allegations in paragraph 44, but admits that the Agreement contains substantially the language cited. 46. The allegations in paragraph 46 call for a legal conclusion as to which no response is required. To the extent a response is required, denies. 47. Denies. 48. Denies. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 49. Denies. 50. In response to paragraph 50, repeats and incorporates each and every response to the foregoing allegations. 51. The allegations in paragraph 51 call for a legal conclusion as to which no response is required. To the extent a response is required, admits that Plaintiff entered into the Agreement with XPI. 52. Denies. 53. Denies that XPI’s termination of Kim was properly for “Cause.” 54. Denies. 55. Denies. 56. Denies. 57. Denies. 58. Denies. 59. In response to the paragraph starting with “WHEREFORE,” denies that XPI is entitled to a judgment against Plaintiff or any of the relief against Plaintiff set forth in sub- paragraphs (A) through (G), inclusive. AFFIRMATIVE AND OTHER DEFENSES Without admitting any allegations asserted in the Counterclaim, Plaintiff asserts the following affirmative and other defenses. Nothing stated in any of the following defenses constitutes a concession that Plaintiff bears any burden of proof on any issue on which he would not otherwise bear such burden. 1. XPI fails to state a claim upon which relief may be granted. 2. XPI’s claim is barred because it has not sustained any injury or damages caused 5 5 of 7 FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 by any action of Plaintiff. 3. To the extent Plaintiff breached any of its obligations under any agreement with XPI, which breach is denied, XPI ratified and/or acquiesced to such breach. 4. XPI’s claim is barred by its failure to perform under the Agreement. 5. XPI’s claim is barred by the applicable statutes of limitations, the doctrine of laches and/or the doctrine of equitable estoppel. 6. XPI’s claim is subject to offset and/or setoff for sums of money due and owing to Plaintiff. 7. XPI’s claim is barred in whole or in part by the Doctrine of Unclean Hands. 8. XPI’s claim is barred in whole or in part because to grant this claim would result in unjust enrichment. 9. Plaintiff reserves the right to assert additional affirmative defenses at such time and to such extent as warranted by discovery and the factual developments in this case. WHEREFORE, Plaintiff denies that XPI is entitled to judgment in any amount whatsoever, and respectfully submits that the entire Counterclaim should be dismissed in its entirety on the merits and with prejudice, and that Plaintiff be awarded costs incurred in defending this Counterclaim, including reasonable attorneys’ fees, as well as such other legal and equitable relief as the Court deems just and proper. Dated: New York, New York February 17, 2022 6 6 of 7 FILED: NEW YORK COUNTY CLERK 02/17/2022 10:14 PM INDEX NO. 651341/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/17/2022 LAW OFFICE OF ALEXANDER SAKIN LLC /s/ Alexander Sakin Alexander Sakin, Esq. 5 West 37th St., Suite 638 New York, NY 10018 (917) 509-7573 7 7 of 7