Preview
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY
COUNTY OF NEW YORK
X
PRIMUS
PRIMUS PACIFIC PARTNERS
PARTNERS I, LP,
1,
Plaintifl
Plaintiff, Index
Index No. 653885/2016
65388512016
- against - Hon. O.0. Peter
Peter Sherwood
Sherwood
GOLDMAN SACHS GROUP, INC., (Mot. Seq. No. 003)
GOLDMAN SACHS (SINGAPORE) (SINGAPORE) PTE,
AND TIM LEISSNER,
LEISSNER,
Defendants.
X
PLAINTIFF PRIMUS PACIFIC PARTNERS
PRIMUS PACIFIC PARTNERS 1, 1, LP'S MEMORANDUM OF
LP'S MEMORANDUM OF LAW IN
suppoRT
SUPPORT oF
OF rrs
ITS MorIoN
MOTION FoR
FOR RELIEF FROM FROM JUDGMENT,
JUDGMENT, OR,
ALTERNATIVELY.
ALTERNATIVELY, FOR LEAVE TO FILE F'ILE ANAN AMENDED
AMENDED COMPLAINT
KASOWITZ
KASOWITZ BENSON TORRES LLP LLP
Marc E. Kasowitz
Sheron
Sheron Korpus
Sarmad M. Khojasteh
1633
1633 Broadway
New York, New York 10019 10019
(212) 506-1700
s06-1700
Attorneys
At I aintiff
forr PPlaintiff
t o rney s fo
1 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
TABLE OF CONTENTS
CONTENTS
Page
PRELIMINARY STATEMENT STATEMENT ..... 1I
STATEMENT
STATEMENT OF FACTS
FACTS .....22
A. The Parties
Parties .....22
B.
B. The EON Capital Engagement
Engagement...... .....22
C.
C. Unbeknownst to Primus, Goldman Sachs Sachs Is Engaged In A Fraudulent
Fraudulent
Scheme Involving
Involving The Then-Prime Minister Of Malaysia And 1MDB 1MDB
Fund 4
D.
D Goldman Sachs Breaches
Breaches Its Fiduciary Duties In Connection
Connection With The
EON Capital Engagement
Engagement............ 5
E.
E Goldman Sachs Conducts New York-Based Internal Investigation Of The
EON Capital Engagement
Engagement............ 7
F.
F. Primus Learns Of The Fraud Perpetrated
Perpetrated By Goldman Sachs 7
G.
G. Primus's Complaint
Complaint Is Is Dismissed
Dismissed Without Prejudice
Prejudice.. 8
H. Evidence
Evidence Discovered Subsequent
Discovered Subsequent Judgment..
To The Judgment ...... 10
10
ARGUMENT
ARGUMENT t6
16
I.
I. ENTITLED
PRIMUS IS ENTITLED TO RELIEF FROM FROM JUDGMENT 16
T6
A.
A. Newly-Discovered
Newly-Discovered Evidence Is Grounds For Vacating The Judgment Judgment................ 16
16
B.
B The Newly-Discovered
Newly-Discovered Evidence
Evidence Shows
Shows That New York Has A
Substantial Nexus Action......
Nexus To This Action 17
.17
il.
II. ALTERNATIVELY,
ALTERNATIVELY, PRIMUS SHOULDSHOULD BE GRANTED LEAVE LEAVE TO AMEND
AMEND 21
.........21
CONCLUSION...
CONCLUSION 22
i
I
2 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
TABLE
TABLE AUTHORITIES
OF AUTHORITIES
Page(s)
Page(s)
Cases
420 E.
420 E. Assoc. v. Estate of Lennon,
Lennon,
225 A.D.2d
A.D.2d326 326 (lst
(1st Dep't 1996)
1996). 21
.2t
Appalachian Ins. Co. v. Gen. Elec. Co.,
Appalachian
8 A.D.3d 109 (lst(1st Dep't 2004)
2004)....... 17
...17
Basis Yield
Yield Alpha Fund (Master) v. Goldman
Alpha Goldman Sachs Group,
Group, Inc.,
No. 652996/2011,
6529961201t,2012 2012 WL 5187653 (Sup. Ct. N.Y. Cty. Oct. 18, 2012)
18,2012) 18
18
City of New York
Yorkv.v. OTR Media Grp., Inc.,
175
175 A.D.3d 1163 (1st Dep't 2019)
I163 (1st .t6
16
Coastal
Coastal Sheet Metal Corp. v. RJR Mechanical,
Mechanical, Inc.,
85 A.D.3d 420 (lstDep't 20ll)
(1st Dep't 2011) 16
.16
Goldman
Goldmanv. v. Cotter,
10
10 A.D.3d 289 (1st(1st Dep't 2004)
2004) t7
17
Leong Fin. Ltd. (Singapore)
Hong Leong (Singapore) v. Morgan
Morgan Stanley,
No. 653894/2014, 2014 WL 4650238
65389412014,2014WL 4650238 (Sup. Ct. N.Y. Cnty. Sept. Sept. 12,
12, 2014),
aff'd, 131 A.D.3d 418
a.ff'd,131 418 (1st
(1st Dep't 2015)
2015)........ 18
18
Kelly v. Overseas
Overseas Inv 'rs Inc.,
Inv'rs
18
18 N.Y.2d 622 (1966) 21
......21
Kimso
Kimso Apartments, LLC v. Gandhi,
Apartments, Gandhi,
24 N.Y.3d 403403 (2014) 21
.21
Licci v. Lebanese Canadian
Canadian Bank, SAL,
672 F.3d tss (2d Cir. 2012)
F .3d 155 20t2). 20
.20
MBIA Ins. Corp. v. Greystone & Co., Inc.,
74 A.D.3d 499499 (1st
(1st Dep't 2010) 21
......21
One West Bank
OneWest Bank FSB
FSB v. Galloway,
148
148 A.D.3d 818 (2d Dep't 2017)
818 (2d 2017).... t6
16
Reid v. Ernst & Young
Young Global, Ltd.,
No. 604028/2005,
60402812005,2006 2006 WL 3455259 (Sup. Ct. N.Y. Cnty. Nov. 15, 15, 2006) 18,
18,2020
Smith v. Pataki,
150
150 A.D.3d
A.D.3d (1st Dep't 2017)
460 (1st 2017) .. 17
ii11
3 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
Authorities
Other Authorities
CPLR 3025(b)
302s(b)..... 21
....21
CPLR 5015
5015.......... 16
...16
CPLR §$ 5013
5013 21
...21
iii
111
4 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
Plaintiff
Plaintiff Primus Pacific Partners 1I LP ("Primus") respectfully submits submits this
this memorandum
memorandum
of law in support of its motion pursuant to to CPLR
CPLR 5015
5015 for
for relief from
from judgment, or,or, alternatively,
alternatively,
pursuant to CPLR 3025(b) for leave to file an amended amended complaint.r
complaint.'
PRELIMINARY
PRELIMINARY STATEMENT
STATEMENT
Defendants previously persuaded
persuaded this Court that this case
case concerned
concerned nothing more than
allegations
allegations of fraud against bankers in Singapore arising out of conduct that took place
exclusively
exclusively in Malaysia in connection
connection with
with the sale ofof aa Malaysian
Malaysian bank.
bank. Newly-discovered
Newly-discovered
evidence confirms, however,
however, that this lawsuit has aa substantial
substantial nexus to New York as the claims
arise from the fraudulent conduct of a New York-basedYork-based investment bank and its agents and
employees that not only took place in New York, but was reviewed and and approved
approved by New York-
based high-level
high-level executives of the bank.
In November 2017,2017, this Court dismissed Primus's Complaint
Complaint on the ground of forum forum non
conveniens without
without prejudice, and without allowing discovery,
discovery, because it concluded based solely
on the Complaint and on self-serving affidavits submitted submitted by Defendants, that this action action lacked
a substantial
substantial nexus with
nexus New York.
with New York. (ECF 156.)Primus
(ECF 156.) Primus appealed
appealed and,
and, while
while the
the appeal
appeal was
pending,
pending, new facts emerged as federal criminal court records involving Defendant Tim Leissner
("Leissner") andand other
other Goldman
Goldman Sachs'
Sachs' employees
ernployees were
were unsealed
unsealed byby the
the United
United States
States District
District
Court for the Eastern
Eastern District of
District New York. The
of New The criminal
criminal records
records establish
establish that
that Leissner
Leissner and
Goldman Sachs'
Sachs' conduct
conduct regarding
regarding EON
EON Capital
Capital was
was part
part of
of aa broader, global conspiracy by
Goldman Sachs to curry favor with Malaysian officials for the benefit of Goldman Goldman Sachs
Sachs Group
("GSG") thatthat directly
directly involved
involved employees
employees of of New York-based
York-based GSG including high level
1I Primus's Proposed
Proposed Amended
Amended Complaint ("PAC") isis attached
Complaint ("PAC") attached as Exhibit A
as Exhibit A to
to theAffirmation of
the Affirmation of Sarmad
Sarmad M.
Khojasteh filed concurrently
Khojasteh filed herewith.All
concurrentlyherewith. Allother
otherexhibits
exhibitsare
arehereinafter
hereinafter referred
referred to to"Ex.
as as"Ex. ."
5 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
executives based in New York. York. These
Thesecriminal
criminalallegations
allegations— - which Defendant
to which Defendant Leissner has
already pled guilty — - establishthat,
establish that,contrary
contrarytotoDefendants'
Defendants' affidavits,
affidavits, Primus's
Primus's claims do in fact
have a substantial nexus to New York that should have precluded dismissal on grounds of forum forum
conveniens. Primus
non conveniens. Pimus attempted to raise these new facts facts with the First Department on appeal.
However, the First Department
Department declined to enlarge the record to consider them thern and
and affirmed this
Court's dismissal
dismissal ofof Primus's
Primus's Complaint
Complaint based
based onon the
the existing record. Accordingly,
existing record. Accordingly, Primus
Primus now
moves this Court for relief from the judgment and, alternatively, for leave to amend the
Complaint. As As set
set forth
forth below,
below, itit isis in
in the
the interests
interests of
of substantial
substantial justice for
for this
this Court
Court toto re-open
the judgment
the judgment and to reverse
reverse its dismissal
dismissal of Primus's Complaint
Complaint in in light
light of
of this
this new
new evidence.
evidence.
Alternatively, this Court should
should allow Primus to amend amend the Complaint
Complaint because the Proposed
Proposed
Amended
Amended Complaint
Complaint is neither
neither "patently
"patently frivolous"
frivolous" nor "substantially
"substantially devoid ofof merit."
merit."
STATEMENT
STATEMENT OF FACTS
A.
A. The Parties
Plaintiff
Plaintiff Primus is an exempted limited partnership
partnership organized
orgarized under the laws of the
Cayman Islands.
Islands. (PAC
(PAC'lT¶ 16.)
16.)InInDecember
December 2009,
2009,Primus
Primus was
was the
the single
single largest
largest shareholder
shareholder of
EON Capital, aa publicly company. (Id.
publicly listed Malaysian company. Ifirf 41-42.)
(1d.1fr41-42.)
Defendant
Defendant GSG is a financial holding company headquartered
headquartered in New York, New York
that provides global banking, securities, and investment
investment management services in the United
States and internationally. (PAC (PAC ¶fl 17.)
17.)Defendant
Defendant GSSGSS isisaawholly-owned
wholly-owned subsidiary
subsidiary of GSG
that maintains its principal
principal place of business
business Singapore. (Id.
in Singapore. ¶ 18.)
(Id.11 18.) Defendant
Defendant Leissner
Leissner is a
former Managing Director
Director of GSG, and former Co-President of GSS. GSS. (Id. ¶n19.)
19.)
B.
B. The EON Capital Engagement
Engagement
In December 2009, the Board Board of Directors of EON Capital
Capital (the "Board") received an
unsolicited bid by Hong
unsolicited bid Hong Leong Bank ("HLB")
Leong Bank ("HLB") to to acquire
acquire the company. (PAC Tiff
the company. 45-47.) During
1fl45-47.) During
2
6 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
aa December
December 31, 2009 meeting,
31,2009 meeting, the Board discussed both HLB's bid and the potential
Board discussed
engagement
engagement of financial
financial advisors to advise the Board
Board on that bid. (Id.1148.)
bid. (Id. ¶ 48.) AtAt the
the meeting,
meeting,
Leissner, on behalf of Goldman Sachs, Sachs, made a presentation (the "December 31 Presentation"),
Presentation"), in
which he recognized
recognized that the Board "needs to be guided appropriately to carry out its fiduciary
duties with respect
respect to all domestic and international shareholders" and and represented that Goldman
Sachs was capable
capable of providing such guidance to the Board free of bias, conflicts, or divided
loyalties.
loyalties. (Id.
Qd. ¶n49.)
49.)
The December 31 Presentation identified four individualsindividuals as the "Senior Oversight" for
Goldman Sachs' proposed
proposed advisory
advisory relationship with the Board (the "EON Capital
Engagement"): Leissner,
Leissner, David
David Ryan,
Ryan, Douglas
Douglas Feagin, and Richard-Campbell-Breeden.
Richard-Campbell-Breeden. (PAC
¶ti50.)
50.) The
The presentation
presentation also
also identified
identified Roger
Roger Ng,
Ng, au Managing
Managing Director
Director of GSG and Head Head of
Goldman Sachs
Sachs Malaysia, as
Malaysia, as part of the "Team Leadership."
part of Leadership." (Id.)
(Id.) Though
Though Defendants have
disclaimed
disclaimed any connection
connection between those individuals and GSG, the record shows shows that, at all
relevant times, these individuals
individuals either were employed
employed by New York-based
York-based Goldman Sachs
entities or were physically located
located in
in New York.Indeed,
New York. Indeed,ininAugust
August2018
2018— - after this Court had
already dismissed Primus's
Primus's Complaint
Complaint— - Leissner pled guilty
Leissner pled guilty to a criminal
criminal information
information that
alleged that he acted "within the scope of his employment as an agent of [GSG]" [GSG]" at all relevant
times between 19981998 and 2016
2016 and
and that his actions were undertaken "with the intent, at least in
part, to benefit
benefit [GSG]."
[GSG]." (Ex.
(Ex. C,
C, ¶''l]17.)
17.)Likewise,
Likewise, aaseparate
separateindictment
indictment against
against Ng
Ng that post-
the judgment in this case similarly identifies him as an agent and employee of GSG during
dates the
the relevant time period.
relevant time period. (Ex.
(Ex. D, ¶u 2.)
In the parties' January
January 2010
2010 engagement
engagement letter
letter for
for the
the EON
EON Capital
Capital Engagement,
Engagement,
Goldman Sachs again represented
represented to the Board that it did not have any conflicts of interest that
3J
7 of 27
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019
would prevent it from taking on the engagement
engagement
Preview
FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY COUNTY OF NEW YORK X PRIMUS PRIMUS PACIFIC PARTNERS PARTNERS I, LP, 1, Plaintifl Plaintiff, Index Index No. 653885/2016 65388512016 - against - Hon. O.0. Peter Peter Sherwood Sherwood GOLDMAN SACHS GROUP, INC., (Mot. Seq. No. 003) GOLDMAN SACHS (SINGAPORE) (SINGAPORE) PTE, AND TIM LEISSNER, LEISSNER, Defendants. X PLAINTIFF PRIMUS PACIFIC PARTNERS PRIMUS PACIFIC PARTNERS 1, 1, LP'S MEMORANDUM OF LP'S MEMORANDUM OF LAW IN suppoRT SUPPORT oF OF rrs ITS MorIoN MOTION FoR FOR RELIEF FROM FROM JUDGMENT, JUDGMENT, OR, ALTERNATIVELY. ALTERNATIVELY, FOR LEAVE TO FILE F'ILE ANAN AMENDED AMENDED COMPLAINT KASOWITZ KASOWITZ BENSON TORRES LLP LLP Marc E. Kasowitz Sheron Sheron Korpus Sarmad M. Khojasteh 1633 1633 Broadway New York, New York 10019 10019 (212) 506-1700 s06-1700 Attorneys At I aintiff forr PPlaintiff t o rney s fo 1 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 TABLE OF CONTENTS CONTENTS Page PRELIMINARY STATEMENT STATEMENT ..... 1I STATEMENT STATEMENT OF FACTS FACTS .....22 A. The Parties Parties .....22 B. B. The EON Capital Engagement Engagement...... .....22 C. C. Unbeknownst to Primus, Goldman Sachs Sachs Is Engaged In A Fraudulent Fraudulent Scheme Involving Involving The Then-Prime Minister Of Malaysia And 1MDB 1MDB Fund 4 D. D Goldman Sachs Breaches Breaches Its Fiduciary Duties In Connection Connection With The EON Capital Engagement Engagement............ 5 E. E Goldman Sachs Conducts New York-Based Internal Investigation Of The EON Capital Engagement Engagement............ 7 F. F. Primus Learns Of The Fraud Perpetrated Perpetrated By Goldman Sachs 7 G. G. Primus's Complaint Complaint Is Is Dismissed Dismissed Without Prejudice Prejudice.. 8 H. Evidence Evidence Discovered Subsequent Discovered Subsequent Judgment.. To The Judgment ...... 10 10 ARGUMENT ARGUMENT t6 16 I. I. ENTITLED PRIMUS IS ENTITLED TO RELIEF FROM FROM JUDGMENT 16 T6 A. A. Newly-Discovered Newly-Discovered Evidence Is Grounds For Vacating The Judgment Judgment................ 16 16 B. B The Newly-Discovered Newly-Discovered Evidence Evidence Shows Shows That New York Has A Substantial Nexus Action...... Nexus To This Action 17 .17 il. II. ALTERNATIVELY, ALTERNATIVELY, PRIMUS SHOULDSHOULD BE GRANTED LEAVE LEAVE TO AMEND AMEND 21 .........21 CONCLUSION... CONCLUSION 22 i I 2 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 TABLE TABLE AUTHORITIES OF AUTHORITIES Page(s) Page(s) Cases 420 E. 420 E. Assoc. v. Estate of Lennon, Lennon, 225 A.D.2d A.D.2d326 326 (lst (1st Dep't 1996) 1996). 21 .2t Appalachian Ins. Co. v. Gen. Elec. Co., Appalachian 8 A.D.3d 109 (lst(1st Dep't 2004) 2004)....... 17 ...17 Basis Yield Yield Alpha Fund (Master) v. Goldman Alpha Goldman Sachs Group, Group, Inc., No. 652996/2011, 6529961201t,2012 2012 WL 5187653 (Sup. Ct. N.Y. Cty. Oct. 18, 2012) 18,2012) 18 18 City of New York Yorkv.v. OTR Media Grp., Inc., 175 175 A.D.3d 1163 (1st Dep't 2019) I163 (1st .t6 16 Coastal Coastal Sheet Metal Corp. v. RJR Mechanical, Mechanical, Inc., 85 A.D.3d 420 (lstDep't 20ll) (1st Dep't 2011) 16 .16 Goldman Goldmanv. v. Cotter, 10 10 A.D.3d 289 (1st(1st Dep't 2004) 2004) t7 17 Leong Fin. Ltd. (Singapore) Hong Leong (Singapore) v. Morgan Morgan Stanley, No. 653894/2014, 2014 WL 4650238 65389412014,2014WL 4650238 (Sup. Ct. N.Y. Cnty. Sept. Sept. 12, 12, 2014), aff'd, 131 A.D.3d 418 a.ff'd,131 418 (1st (1st Dep't 2015) 2015)........ 18 18 Kelly v. Overseas Overseas Inv 'rs Inc., Inv'rs 18 18 N.Y.2d 622 (1966) 21 ......21 Kimso Kimso Apartments, LLC v. Gandhi, Apartments, Gandhi, 24 N.Y.3d 403403 (2014) 21 .21 Licci v. Lebanese Canadian Canadian Bank, SAL, 672 F.3d tss (2d Cir. 2012) F .3d 155 20t2). 20 .20 MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499499 (1st (1st Dep't 2010) 21 ......21 One West Bank OneWest Bank FSB FSB v. Galloway, 148 148 A.D.3d 818 (2d Dep't 2017) 818 (2d 2017).... t6 16 Reid v. Ernst & Young Young Global, Ltd., No. 604028/2005, 60402812005,2006 2006 WL 3455259 (Sup. Ct. N.Y. Cnty. Nov. 15, 15, 2006) 18, 18,2020 Smith v. Pataki, 150 150 A.D.3d A.D.3d (1st Dep't 2017) 460 (1st 2017) .. 17 ii11 3 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 Authorities Other Authorities CPLR 3025(b) 302s(b)..... 21 ....21 CPLR 5015 5015.......... 16 ...16 CPLR §$ 5013 5013 21 ...21 iii 111 4 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 Plaintiff Plaintiff Primus Pacific Partners 1I LP ("Primus") respectfully submits submits this this memorandum memorandum of law in support of its motion pursuant to to CPLR CPLR 5015 5015 for for relief from from judgment, or,or, alternatively, alternatively, pursuant to CPLR 3025(b) for leave to file an amended amended complaint.r complaint.' PRELIMINARY PRELIMINARY STATEMENT STATEMENT Defendants previously persuaded persuaded this Court that this case case concerned concerned nothing more than allegations allegations of fraud against bankers in Singapore arising out of conduct that took place exclusively exclusively in Malaysia in connection connection with with the sale ofof aa Malaysian Malaysian bank. bank. Newly-discovered Newly-discovered evidence confirms, however, however, that this lawsuit has aa substantial substantial nexus to New York as the claims arise from the fraudulent conduct of a New York-basedYork-based investment bank and its agents and employees that not only took place in New York, but was reviewed and and approved approved by New York- based high-level high-level executives of the bank. In November 2017,2017, this Court dismissed Primus's Complaint Complaint on the ground of forum forum non conveniens without without prejudice, and without allowing discovery, discovery, because it concluded based solely on the Complaint and on self-serving affidavits submitted submitted by Defendants, that this action action lacked a substantial substantial nexus with nexus New York. with New York. (ECF 156.)Primus (ECF 156.) Primus appealed appealed and, and, while while the the appeal appeal was pending, pending, new facts emerged as federal criminal court records involving Defendant Tim Leissner ("Leissner") andand other other Goldman Goldman Sachs' Sachs' employees ernployees were were unsealed unsealed byby the the United United States States District District Court for the Eastern Eastern District of District New York. The of New The criminal criminal records records establish establish that that Leissner Leissner and Goldman Sachs' Sachs' conduct conduct regarding regarding EON EON Capital Capital was was part part of of aa broader, global conspiracy by Goldman Sachs to curry favor with Malaysian officials for the benefit of Goldman Goldman Sachs Sachs Group ("GSG") thatthat directly directly involved involved employees employees of of New York-based York-based GSG including high level 1I Primus's Proposed Proposed Amended Amended Complaint ("PAC") isis attached Complaint ("PAC") attached as Exhibit A as Exhibit A to to theAffirmation of the Affirmation of Sarmad Sarmad M. Khojasteh filed concurrently Khojasteh filed herewith.All concurrentlyherewith. Allother otherexhibits exhibitsare arehereinafter hereinafter referred referred to to"Ex. as as"Ex. ." 5 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 executives based in New York. York. These Thesecriminal criminalallegations allegations— - which Defendant to which Defendant Leissner has already pled guilty — - establishthat, establish that,contrary contrarytotoDefendants' Defendants' affidavits, affidavits, Primus's Primus's claims do in fact have a substantial nexus to New York that should have precluded dismissal on grounds of forum forum conveniens. Primus non conveniens. Pimus attempted to raise these new facts facts with the First Department on appeal. However, the First Department Department declined to enlarge the record to consider them thern and and affirmed this Court's dismissal dismissal ofof Primus's Primus's Complaint Complaint based based onon the the existing record. Accordingly, existing record. Accordingly, Primus Primus now moves this Court for relief from the judgment and, alternatively, for leave to amend the Complaint. As As set set forth forth below, below, itit isis in in the the interests interests of of substantial substantial justice for for this this Court Court toto re-open the judgment the judgment and to reverse reverse its dismissal dismissal of Primus's Complaint Complaint in in light light of of this this new new evidence. evidence. Alternatively, this Court should should allow Primus to amend amend the Complaint Complaint because the Proposed Proposed Amended Amended Complaint Complaint is neither neither "patently "patently frivolous" frivolous" nor "substantially "substantially devoid ofof merit." merit." STATEMENT STATEMENT OF FACTS A. A. The Parties Plaintiff Plaintiff Primus is an exempted limited partnership partnership organized orgarized under the laws of the Cayman Islands. Islands. (PAC (PAC'lT¶ 16.) 16.)InInDecember December 2009, 2009,Primus Primus was was the the single single largest largest shareholder shareholder of EON Capital, aa publicly company. (Id. publicly listed Malaysian company. Ifirf 41-42.) (1d.1fr41-42.) Defendant Defendant GSG is a financial holding company headquartered headquartered in New York, New York that provides global banking, securities, and investment investment management services in the United States and internationally. (PAC (PAC ¶fl 17.) 17.)Defendant Defendant GSSGSS isisaawholly-owned wholly-owned subsidiary subsidiary of GSG that maintains its principal principal place of business business Singapore. (Id. in Singapore. ¶ 18.) (Id.11 18.) Defendant Defendant Leissner Leissner is a former Managing Director Director of GSG, and former Co-President of GSS. GSS. (Id. ¶n19.) 19.) B. B. The EON Capital Engagement Engagement In December 2009, the Board Board of Directors of EON Capital Capital (the "Board") received an unsolicited bid by Hong unsolicited bid Hong Leong Bank ("HLB") Leong Bank ("HLB") to to acquire acquire the company. (PAC Tiff the company. 45-47.) During 1fl45-47.) During 2 6 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 aa December December 31, 2009 meeting, 31,2009 meeting, the Board discussed both HLB's bid and the potential Board discussed engagement engagement of financial financial advisors to advise the Board Board on that bid. (Id.1148.) bid. (Id. ¶ 48.) AtAt the the meeting, meeting, Leissner, on behalf of Goldman Sachs, Sachs, made a presentation (the "December 31 Presentation"), Presentation"), in which he recognized recognized that the Board "needs to be guided appropriately to carry out its fiduciary duties with respect respect to all domestic and international shareholders" and and represented that Goldman Sachs was capable capable of providing such guidance to the Board free of bias, conflicts, or divided loyalties. loyalties. (Id. Qd. ¶n49.) 49.) The December 31 Presentation identified four individualsindividuals as the "Senior Oversight" for Goldman Sachs' proposed proposed advisory advisory relationship with the Board (the "EON Capital Engagement"): Leissner, Leissner, David David Ryan, Ryan, Douglas Douglas Feagin, and Richard-Campbell-Breeden. Richard-Campbell-Breeden. (PAC ¶ti50.) 50.) The The presentation presentation also also identified identified Roger Roger Ng, Ng, au Managing Managing Director Director of GSG and Head Head of Goldman Sachs Sachs Malaysia, as Malaysia, as part of the "Team Leadership." part of Leadership." (Id.) (Id.) Though Though Defendants have disclaimed disclaimed any connection connection between those individuals and GSG, the record shows shows that, at all relevant times, these individuals individuals either were employed employed by New York-based York-based Goldman Sachs entities or were physically located located in in New York.Indeed, New York. Indeed,ininAugust August2018 2018— - after this Court had already dismissed Primus's Primus's Complaint Complaint— - Leissner pled guilty Leissner pled guilty to a criminal criminal information information that alleged that he acted "within the scope of his employment as an agent of [GSG]" [GSG]" at all relevant times between 19981998 and 2016 2016 and and that his actions were undertaken "with the intent, at least in part, to benefit benefit [GSG]." [GSG]." (Ex. (Ex. C, C, ¶''l]17.) 17.)Likewise, Likewise, aaseparate separateindictment indictment against against Ng Ng that post- the judgment in this case similarly identifies him as an agent and employee of GSG during dates the the relevant time period. relevant time period. (Ex. (Ex. D, ¶u 2.) In the parties' January January 2010 2010 engagement engagement letter letter for for the the EON EON Capital Capital Engagement, Engagement, Goldman Sachs again represented represented to the Board that it did not have any conflicts of interest that 3J 7 of 27 FILED: NEW YORK COUNTY CLERK 11/01/2019 04:05 PM INDEX NO. 653885/2016 NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 11/01/2019 would prevent it from taking on the engagement engagement