Preview
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. O. PETER SHERWOOD PART IAS MOTION 49EFM
Justice
---------------------------------------------------------------------------------X
INDEX NO. 653885/2016
PRIMUS PACIFIC PARTNERS 1, LP,
MOTION DATE 12/23/2019
Plaintiff,
MOTION SEQ. NO. 003
-v-
GOLDMAN SACHS GROUP, INC., et al., DECISION + ORDER ON
MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 195, 196, 197, 198,
199, 200, 201, 202, 203, 205, 206, 207
were read on this motion to/for RELIEF FROM JUDGMENT/AMEND .
Upon the foregoing papers, it is ordered that this motion for relief from Judgment and to
amend the complaint (Motion Sequence Number 003) is decided in accordance with the
accompanying decision and order.
5/19/2020 $
DATE O. PETER SHERWOOD, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
1 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49
-------------------------------------------X
PRIMUS PACIFIC PARTNERS 1, LP,
DECISION AND ORDER
Plaintiff, Index No.: 653885/2016
-against-
Motion Seq. No.: 003
GOLDMAN SACHS GROUP, INC., GOLDMAN
SACHS (SINGAPORE) PTE, and TIM LEISSNER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - -- -X
O. PETER SHERWOOD, J.:
Plaintiff Primus Pacific Partners 1, LP (“Primus”) moves pursuant to CPLR § 5015 for
relief from this court’s November 9, 2017 Decision and Order on grounds that new evidence has
been discovered enough to merit vacating that Order. In the alternative, plaintiff moves pursuant
to CPLR § 3025 (b) for leave to file an amended complaint. The motion is DENIED.
I. BACKGROUND
Primus is a private equity firm organized under the laws of the Cayman Islands. Goldman
Sachs Group, Inc (“GS Group” or “GSG”) is a global investment banking firm incorporated in
Delaware and headquartered in New York with offices around the world. Goldman Sachs
(Singapore) PTE (“GSS”) is a wholly owned subsidiary of GS Group organized under the laws
of Singapore. Tim Leissner was co-President and Managing Director of GSS from December
2009 through September 2011. In December 2009, Hong Leong Bank (“HLB”) made an
unsolicited bid to acquire EON Capital (“EON”), a publicly listed Malaysian company in which
Primus was the largest shareholder. In January 2010, GSS was retained as a financial advisor to
EON to evaluate and negotiate the offer. Leissner was a member of the GSS team advising EON.
Based on the advice of GSS, the Board accepted the second offer in 2010. In June 2010, Primus
brought a petition in the High Court of Malaysia seeking to set aside the sale of EON’s assets to
HLB, alleging that the submission of the offer to shareholders for approval was rushed at the
behest of certain shareholders seeking to divest their shares. The High Court dismissed the
Petition. In July 2016, Primus commenced this action, prompted by press reports in March 2016
that Leissner and GSS were being investigated for misconduct in connection with their dealings
with the then-Malaysian Prime Minister Najib Razak and the Malaysian state investment fund, 1
1
2 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
Malaysia Development Bhd. (“1MDB”). Primus alleges that GSS, while retained by EON, was
an adviser to 1MDB and had a close relationship with the Malaysian Prime Minister who had
close family and business ties to HLB. Primus claims that by concealing its relationship and
dealings with the Prime Minister, GSS fraudulently induced EON to retain it.
This court dismissed the complaint on the ground of forum non conveniens because (i)
the events giving rise to the misconduct alleged in the complaint occurred in Malaysia, (ii)
Primus presented no evidence that any activities relating to the EON sale occurred in New York,
(iii) the majority of witnesses reside outside of New York, (iv) Malaysia had a greater interest in
the transactions at issue, (v) the law of Malaysia would likely apply, and (vi) on balance, the
litigation had no substantial nexus with New York. Primus now seeks relief from this judgment
pursuant to newly unsealed documents from an Eastern District of New York criminal case
pertaining to 1MDB. The Appellate Division affirmed (NYSCEF Doc. No. 193).
The newly disclosed records include: (i) criminal information to which Leissner pleaded
guilty on August 28, 2018; (ii) a criminal indictment of Roger Ng, a Managing Director of GSG,
dated October 3, 2018; (iii) the transcript from Leissner’s allocution hearing dated August 28,
2018; and (iv) the sworn complaint and affidavit of an FBI agent describing the facts supporting
charges against Leissner (Pl. Br. at 10 [NYSCEF Doc. No. 203]). Primus argues that Leissner
pleaded guilty to critical information identifying him as an agent and employee of “U.S.
Financial Institution #1,” which Primus argues is GSG, between 1998 and 2016 (Pl. Br. at 11; Pl.
Aff. Ex. C [NYSCEF Doc. No. 199]). Primus argues that this admission establishes Leissner was
acting as an agent for New York-based GSG at all relevant times during his work to gain favor
with Prime Minister Razak, which Primus argues is “part and parcel” with the EON Capital
engagement.
Primus adds that the EDNY filings reveal that: (i) GSG’s scheme to curry favor with
Malaysian officials began in 2009, the same year that Leissner and Ng took on the EON Capital
engagement; (ii) between September 2009 and March 2011, Leissner and Ng supported several
attempts to make a close friend of Razak a client of GSG because they believed that individual
would work to deliver Malaysian business deals; (iii) Ng and Leissner worked to employ
Razak’s children at GSB; and (iv) Leissner made payments to 1MDB officials and Razak’s
family to obtain business from 1MDB and direct business to GSG (Pl. Br. at 12–13). Primus
further argues that the EDNY documents reveal that Leissner and Ng coordinated a meeting in
2
3 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
New York to gain favor with the Prime Minister Razak. Primus argues the FBI affidavit reveals
that transactions GSG engaged within Malaysia “were reviewed and approved by regional and
firmwide committees at GSG,” implying the likely involvement in, and awareness of, the EON
Capital Engagement of other New York-based GSG employees” (id., at 15).
II. ARGUMENTS
Primus argues that the newly discovered evidence provides grounds for vacating the
November 2017 judgment as the evidence would not have been discoverable with due diligence
and would probably have produced a different result (see Coastal Sheet Metal Corp. v RJR
Mechanical, Inc., 85 AD3d 420, 421 [1st Dept 2011]; OneWest Bank FSB v Galloway, 148
AD3d 818, 819 [2d Dept 2017]; see also City of New York v OTR Media Grp., Inc., 175 AD3d
1163 [1st Dept 2019] [a court may vacate its own judgment for sufficient reason and in the
interests of substantial justice]). Plaintiff argues that the facts set forth in the unsealed criminal
court record clearly existed at the time of the court’s 2017 decision but were unavailable to
Primus in the absence of discovery which Primus sought but was denied (Pl. Br. at 16). Plaintiff
argues that the unsealed records confirm New York has a substantial nexus to Primus’s claims
and is an appropriate forum for this action based on the role of employees of New York-based
GSG in the matter, including relevant events that took place in New York, key witnesses who are
located in New York, and New York’s interest in regulating the conduct at issue (id.). Plaintiff
argues that if this motion is denied, Primus will be deprived of justice as New York is the only
forum in which this lawsuit can be prosecuted against these defendants (id. at 16–17; Smith v
Pataki, 150 AD3d 460 [1st Dept 2017]; Goldman v Cotter, 10 AD3d 289, 293 [1st Dept 2004];
Appalachians Ins. Co. v Gen. Elec. Co., 8 AD3d 109, 109 [1st Dept 2004]).
Plaintiff further argues that the newly discovered evidence shows that New York has a
substantial nexus to this action (Pl. Br. at 17). First, in dismissing Primus’s complaint, this court
held that plaintiff “presents no evidence that any of the activities surrounding the EON sale
occurred in New York” and that “most, if not all, of the events . . . occurred in Malaysia” but the
FBI Affidavit reveals that Leissner set up a meeting to “discuss 1MDB” in New York on
November 22, 2009 between the Malaysian Prime Minister and a “high-ranking executive of
GSG” who was later reported to be then-GSG CEO Lloyd Blankfein. Plaintiff argues that this
meeting laid the groundwork for a relationship with the Prime Minister to funnel business to
GSG and that the records show that the EON Capital Engagement would have been reviewed by
3
4 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
numerous firm-wide committees and high-level executives at GSG in New York because it
involved a “high-risk” jurisdiction. Plaintiff argues that these records confirm that employees of
New York-based GSG were directly involved in the fraudulent conduct at issue. Coupled with
the fact that this conduct was part of a larger scheme to benefit GSG, this establishes that New
York has a substantial nexus to this action (see Reid v Ernst & Young Global, Ltd., No.
604028/2005, 2006 WL 3455259, at *3 [Sup Ct New York County 2006]; see also Hong Leong
Fin. Ltd. (Singapore) v Morgan Stanley, No. 653894/2014, 2014 WL 4650238, at *5 [Sup Ct
New York County 2014]; Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., No.
652996/2011, 2012 WL 5187653, at *5 [Sup Ct New York County 2012]).
Second, plaintiff argues that the new evidence shows that there are numerous witnesses
integral to Primus’s claims in New York, contrary to the court’s decision. The new information
obtained from the criminal proceedings reflect that numerous key witnesses and information are
available in New York that would not be available in Malaysia or Singapore, in particular
Leissner and Ng who have both been extradited to New York. Plaintiff argues it would seek
discovery from “high-level executives at” GSG’s headquarters in New York who participated on
the firm-wide committees that would have reviewed the EON Capital Engagement. Plaintiff
argues that the presence of such crucial witnesses in New York supports the conclusion that New
York has a substantial nexus with this action (see Reid, 2006 WL 3455259, at *3). Finally,
plaintiff argues that New York has an interest in regulating the conduct reflected by the newly
discovered information. The fraudulent conduct was undertaken by employees of New York-
based GSG and was approved by high level executives in New York. Such conduct implicates
New York’s interest in regulating the conduct of New York-based banks operating in New York
(see Licci v Lebanese Canadian Bank, Sal, 672 F3d 155, 158 [2d Cir 2012]).
Plaintiff argues that, should this court not grant relief from the November 2017 decision,
it should instead grant Primus leave to amend its complaint (Pl. Br. at 21–22).
In opposition, defendants argue that Primus’s “new evidence” does not justify revisiting
this court’s forum non conveniens dismissal as plaintiff fails to show the evidence would have
produced a different result (Def. Br. at 9 [NYSCEF Doc. No. 205]; see Evergreen Bank N.A. v
Dashnaw, 262 AD2d 737, 738 [3d Dept 1999]; see also Nichols v Curtis, 104 AD3d 526, 529
[1st Dept 2013]; Zaretsky v Berlin, 2011 WL 3983180, at *2 [Sup Ct Nassau County 2011];
Hunter v Hunter, 43 NYS3d 881, 883 [Sup Ct Essex County 2016]). Defendants argue that the
4
5 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
EDNY Filings do not establish a substantial nexus to New York because they are irrelevant to
the EON Bank Transaction, failing to even mention the transaction once, and Primus assumes,
without evidence, that Leissner and Ng’s efforts to ingratiate themselves with the Malaysian
Prime Minister began before the EON Bank transaction (Def. Br. at 10–11). Defendants argue
that plaintiff fails to make any allegation that Leissner manipulated the EON Capital transaction
for the benefit of the Prime Minister or his family (id. at 11). Defendants further argue that
plaintiff’s attempt to find a New York nexus in this matter is based on a mischaracterization of
the EDNY filings as (i) the filings do not implicate GS Group directly but, instead, plaintiff bases
its allegations on the assumption that U.S. Financial Institution #1 is GS Group when, in fact, the
filings define “U.S. Financial Institution #1” to include GS Group’s affiliates; (ii) there is
nothing in the EDNY filings that shows the EON Capital engagement would be reviewed in New
York as the location of the firmwide committees is never identified by plaintiff or the EDNY
filings; and (iii) Judge Brodie’s statement during Leissner’s plea hearing that “most of the
conduct took place in [SDNY]” is made in the context of the 1MDB matter, having no relation to
the EON engagement (Def. Br. at 11–13). Defendants argue that, even if the EDNY filings were
found to be relevant here, it would not matter as the action remains fundamentally about alleged
misconduct in Asia and Primus still does not allege that it or EON had any dealings with GS
Group or its employees in New York (id. at 14; see Rakuten Bank, Ltd. v Royal Bank of Canada,
136 AD3d 481, 481 [1st Dept 2016]).
Defendants also argue that the EDNY filings “underscore” that New York is not an
appropriate forum for this litigation as Malaysia has a greater interest than New York in a matter
regarding Malaysian banks and nothing in the EDNY filings alters that conclusion (Def. Br. at
16–17; see Bluewaters Commc’ns Holdings, LLC v Ecclestone, 2014 WL 220779, at *14 [Sup Ct
New York County 2014]; Fin. & Trading Ltd. v Rhodia S.A., 28 AD3d 346, 347 [1st Dept 2006];
see also Mashreqbank PSC v Ahmed Hamad Al Gosaibi & Bros. Co., 23 NY3d 129, 137 [2014]).
Defendants further argue that, the EDNY filings notwithstanding, the remaining forum non
conveniens factors still weigh in favor of dismissal, including: (i) the applicability of Malaysian,
or possibly Singaporean, law in this matter, (ii) the potential availability of Malaysia or
Singapore as an alternative forum, and (iii) the availability of most witnesses outside of New
York (Def. Br. at 17–19; Decision and Order, at 12–13, 15–16 [NYSCEF Doc. No. 156]). To the
5
6 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
third point, defendants note that Leissner and Ng are the only witnesses involved in the EON
Capital engagement who plaintiff claims are in the United States (Def. Br. at 18; Pl. Br. at 19).
Finally, defendants argue that plaintiff’s proposed amended complaint is improper and
futile (Def. Br. at 19). They argue that plaintiff cites no authority allowing it to seek amendment
as a vehicle to challenge the basis of a judgment. The outcome of plaintiff’s motion to amend
should turn on whether it has met the standard applicable to motions for relief from judgment
(see Washington v State, 188 Misc2d 155, 157 [New York Ct Cl 2001] [finding a motion styled
as a motion to amend fell “under the aegis of CPLR 5015 (a)” governing motions for relief from
judgment]). Defendants argue that even if plaintiff’s request to amend were proper, the proposed
amendment cannot survive a motion to dismiss because “none of the defects [that led to
dismissal] are cured by the proposed amended complaint” (Scott v Bell Atl. Corp., 282 AD2d
180, 186 [1st Dept 2001]; Meimeteas v Carter Ledyard & Milburn LLP, 105 AD3d 643, 643 [1st
Dept 2013]).
III. DISCUSSION
CPLR § 5015 (a)(2) provides, a “court which rendered a judgment or order may relieve a
party from it upon such terms as may be just, on motion of any interested person with such
notice as the court may direct, upon the ground of newly discovered evidence which, if
introduced at the trial, would probably have produced a different result and which could not have
been discovered in time to move for a new trial . . .”.
Here, plaintiff has failed to show that the proffered newly discovered evidence would
have produced a different result. Nothing in the EDNY filings mentions or relates to the EON
Capital Engagement which is at the heart of this matter; instead, the EDNY case concerns
1MDB. While plaintiff argues that it has alleged that the EON Capital Engagement was part of
the 1MDB scheme due to its “temporal and substantive connection” to the parties, it has failed to
show how the EDNY filings would have substantively changed the circumstances leading to this
court’s decision. Instead it argues that its allegations should be sufficient at this stage without the
benefit of discovery. However, nothing in the EDNY filings has changed the principal reasons
this court dismissed the complaint—the events giving rise to this matter primarily occurred in
Asia, the majority of witnesses reside outside of New York, Malaysia has a greater interest in
this matter, and Malaysian law would likely apply.
6
7 of 8
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:51 PM INDEX NO. 653885/2016
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/19/2020
Although plaintiff argues that firmwide committees would have reviewed GSG’s conduct
in Malaysia, numerous witnesses integral to the claims are in New York, and New York has an
interest in regulating the conduct reflected by the newly discovered information undertaken by
employees of New York-based GSG, none of these arguments bear fruit. As defendants note, the
“committees” revealed by the EDNY filings were not reviewing the EON Capital Engagement,
but instead the 1MDB transactions, and nothing suggests that these committees “directly
involved employees of New York-based GSG including high level executives based in New
York.” Further, plaintiff fails to name any witnesses that may now be available in New York
aside from Roger Ng and Tim Leissner. Finally, as stated in this court’s prior decision, while
New York’s interest in the integrity of its banks is compelling, New York’s interest is “in
protecting the banking system as a whole, rather than individual investors” (NWG Invs. Inc. v
Fronteer Gold, Inc., 40 Misc3d 1230[A], at *6 [2013]) and in “regulating the conduct of New
York-based banks operating in New York” (Licci v Lebanese Canadian Bank, SAL, 672 F3d 155,
158 [2d Cir 2012]). No “systematic compelling interest” is triggered by the alleged fraud arising
from a transaction between two foreign banks occurring outside of New York (see Mashreqbank
PSC, 23 NY3d at 137). Consequently, the motion for relief from judgment must be DENIED.
Similarly, plaintiff’s motion to amend its complaint is DENIED, as the proposed
amended complaint realleges the same causes of action as the original complaint and the
proposed factual amendments are based solely on the newly discovered EDNY filings which, as
discussed above, do not substantively change the posture of this matter or the court’s previous
decision.
This constitutes the decision and order of the court.
DATED: May 19, 2020 E N T E R,
O. PETER SHERWOOD J.S.C.
7
8 of 8