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DOCKET NO.: FS2-FST-CV20-6047029-S : SUPERIOR COURT
:
DEUTSCHE BANK AG, : JUDICIAL DISTRICT OF
: STAMFORD/NORWALK
Plaintiff, : AT STAMFORD
v. :
: December 18, 2020
CAROLINE VIK and ALEXANDER VIK, :
:
Defendants. :
:
DEUTSCHE BANK AG’S OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS PURSUANT
TO THE DOCTRINE OF FORUM NON CONVENIENS (DOC. 115.00)
Plaintiff Deutsche Bank AG (“Deutsche Bank”) respectfully submits this memorandum
of law in opposition to Defendants’ motion to dismiss Deutsche Bank’s Complaint pursuant to
the doctrine of forum non conveniens (Doc. 115.00; Doc. 116.00 (the “Defs. FNC Br.”)).
PRELIMINARY STATEMENT
This action arises from a Connecticut-based conspiracy among Connecticut residents to
falsify a Connecticut contract and use that contract as the basis for a frivolous and vexatious
lawsuit in a court sitting in Connecticut. Nonetheless, Defendant Alexander Vik and his
daughter, Caroline Vik, ask this Court to find a “sheer mismatch between [this] case and the
State of Connecticut” and to dismiss Deutsche Bank’s Complaint on the basis of forum non
conveniens in favor of litigation in Norway. (Defs. FNC Br. at 1.)
In 2019, Defendants conspired to meddle in the sale of the Norwegian software company,
Confirmit AS (“Confirmit”), while knowing that the proceeds of the sale would satisfy a portion
of the more than $300 million judgment debt that Mr. Vik’s alter-ego Turks and Caicos shell
corporation, Sebastian Holdings, Inc. (“SHI”), owes Deutsche Bank. Specifically, Mr. Vik,
while in Connecticut, submitted a bad faith bid on the company in order to inject confusion into
the sales process. In furtherance of the same goal, Mr. Vik caused Caroline Vik to sign a
falsified, backdated, Connecticut-based contract purporting to grant her a right of first refusal for
the shares of Confirmit (the “ROFR”). Then, as part of the same conspiracy, Mr. Vik
participated in and directed Caroline Vik’s lawsuit (the “Federal Action”) in the United States
District Court for the District of Connecticut (the “Connecticut District Court”), seeking to
enforce the fraudulent ROFR and enjoin the Confirmit sale pursuant to Connecticut law.
As set forth below, Defendants cannot seriously contend that litigation in Connecticut,
their home state, would inconvenience them. Nor can they point to Deutsche Bank’s later filed,
protective action in Norway as a basis for insisting that this Connecticut-based dispute be
resolved abroad. Mr. Vik’s persistent fraudulent conduct leaves Deutsche Bank with no choice
but to seek to satisfy its seven-year-old judgment in all available fora, including Connecticut,
where both Defendants reside and where Deutsche Bank has the best chance at recovery.
Fairness dictates that this action proceed, particularly given that Defendants’ overarching goal,
which their motion is intended to serve, is to avoid consideration of the merits by any court; they
do not honestly seek convenient ways to reach them. This shines through in Defendants’
baseless arguments, which wholly fail to discharge their burden to present specific evidence that
the Connecticut forum is inconvenient and that the “strong presumption in favor of [Deutsche
Bank’s] chosen forum” should be disregarded. (Defs. FNC Br at 8.) The Court should reject
them and deny Defendants’ motion to dismiss.
BACKGROUND
In 1988, billionaire Mr. Vik and his wife moved to Greenwich, Connecticut. (December
18, 2020 Affidavit of Sheila C. Ramesh (“Ramesh FNC Aff.”) Ex. 1 (Trial Transcript from
Deutsche Bank AG v. Sebastian Holdings, Inc., FST-CV13-5014167-S (Conn. Super. Ct. 2013)
(“CT Trial Tr.”) Day 3) 26:25-27:4.) From their Connecticut home, they operated multiple
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businesses, raised their four children through adulthood, and continue to base their lives. (Id.;
see also Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 56:7-16.) Mr. Vik’s wife owns the house
at 10 Ashton Drive in Greenwich, where his adult daughter, Caroline Vik currently lives.
(Ramesh FNC Aff. Ex 2 (CT Trial Tr., Day 1) 89:17-19.) Mr. Vik has frequently and publically
acknowledged 10 Ashton Drive as his home. In a 2014 interview, he claimed that he and his
family live in Greenwich, Connecticut, and in sworn testimony before this Court in 2019, he and
his wife reaffirmed that statement. (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10; id.
Ex. 1 (CT Trial Tr., Day 3) 2:4-7.) Moreover, Mr. Vik has a Connecticut driver’s license that
lists 10 Ashton Drive as his address (Ramesh FNC Aff. Ex. 3 (Alexander Vik’s DMV Records)),
maintains memberships at local social and sports clubs (Ramesh FNC Aff. Ex. 4 (Apr. 28, 2015
Hearing Transcript in the matter Deutsche Bank AG v. Vik, No. 161257/13 (N.Y. Sup. Ct.)
(“April 2015 Hearing Tr.”)) at 55:11-21), and regularly attends a local church (Ramesh FNC Aff.
Ex. 5 (June 19, 2019 Hearing Transcript from Deutsche Bank AG v. Sebastian Holdings, Inc.,
FST-CV13-5014167-S (Conn. Super. Ct. 2013) (“June 19, 2019 Hearing Tr.”)) 2:1-5). Mr. Vik
has long-standing, deep connections in Connecticut.
In 2006, Mr. Vik, through his alter-ego SHI, opened a foreign exchange (“FX”) prime
brokerage account with Deutsche Bank to conduct FX trading. He and at least six others,
including administrative assistants and third-party managers who made trades and investments
on behalf of Mr. Vik and/or SHI, regularly did business from an office annex to the Vik family
home at 10 Ashton Drive. See Sebastian Holdings, Inc. v. Kugler, 2012 WL 1190837, at *1 (D.
Conn. Mar. 30, 2012); (see also Ramesh FNC Aff. Ex. 6 (Jan. 22, 2013 Vik Dep. Tr.) 42:24-
44:25, 47:15-16, 50:5-51:1, 58:8-59:16; id. Ex. 7 (Jan. 30, 2012 Said Dep. Tr.) 75:18-77:11; id.
Ex. 8 (Feb. 5, 2014 Affidavit of Kelsey Wells) ¶ 5; id. Ex. 9 (Mar. 14, 2013 Van Eerten Dep. Tr.)
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7:16-17, 8:7-8, 25:9-29:6; id. Ex. 10 (Feb. 27, 2013 Johansson Dep. Tr.) 49:23-54:2; id. Ex. 11
(Sept. 29, 2008 Affidavit of Michael Kugler) ¶¶ 16, 17.)
From this same office annex, Mr. Vik has regularly conducted business, including, upon
information and belief, dealings from which Deutsche Bank’s claims here arise. (Doc. 100.00
(“Compl.”) ¶¶ 29, 101-108; see also Ramesh FNC Aff. Ex. 12 (Johansson 1st Witness
Statement) ¶¶ 9, 15.) In the fall of 2008, SHI engaged in highly profitable, but risky, FX trading
out of 10 Ashton Drive until the volatility of the financial crisis struck. (Compl. ¶ 34; see also
Ramesh FNC Aff. Ex. 7 (Jan. 30, 2012 Said Dep. Tr.) 75:18-77:11.) SHI accumulated hundreds
of millions of dollars in losses in October 2008 and, immediately thereafter, Mr. Vik caused SHI
to fraudulently transfer all its assets to himself, family members, and entities that he controls.
(Compl. ¶¶ 35-37.) Among the assets Mr. Vik caused SHI to fraudulently transfer in 2008 were
shares in the Norwegian software company Confirmit. (Id. ¶ 7.)
In 2009, Deutsche Bank commenced an action in London against SHI to recover
hundreds of millions of dollars in unpaid margin calls. (Id. ¶ 39.) In 2013, the Commercial
Court, Queen’s Bench Division of the High Court of Justice of England and Wales awarded
Deutsche Bank more than $235 million in damages, plus costs, from SHI (the “English
Judgment”). (Id. ¶¶ 40-41.) SHI claimed that it lacked sufficient funds with which to satisfy the
judgment, leaving Deutsche Bank to pursue various enforcement actions around the world ever
since. (Id. ¶ 43.)
The Alter-Ego Action
Among those enforcement actions is a 2014 suit that Deutsche Bank commenced in this
Court seeking a declaration that, as SHI’s alter ego, Mr. Vik is personally liable for its debts.
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Deutsche Bank AG v. Sebastian Holdings, Inc., FST-CV13-5014167-S (Conn. Super. Ct. 2013)
(the “Alter-Ego Action”).
Mr. Vik moved to dismiss the Alter-Ego Action based on forum non conveniens, and
argued that New York was a more appropriate forum to litigate Deutsche Bank’s claims.
(Ramesh FNC Aff. Ex. 13 (Feb. 5, 2014, Alter-Ego Action, Motion to Dismiss, Doc. 112.00).)
The Court denied Mr. Vik’s motion in part because he also contested jurisdiction in New York,
failed to demonstrate that litigation in New York would provide greater ease of access to sources
of proof or compulsory process for attendance of unwilling witnesses, and failed to provide
adequate documentation demonstrating that relevant private interest factors weighed in favor of
dismissal. (Ramesh FNC Aff. Ex. 14 (Jun. 4, 2014, Alter-Ego Action, Memorandum of Decision
re: Defendant’s Motion to Dismiss Based on Forum Non Conviens [sic], Doc. 138.86 (“2014
FNC Decision”)).).
The Alter-Ego Action proceeded to trial before this Court, which began on November 19,
2019, and took place at the Connecticut Superior Court in Stamford, Connecticut. On the first
day, Mr. Vik testified that his current address is “10 Ashton Drive, Greenwich Connecticut.”
(Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10.) Shortly thereafter, Mr. Vik’s wife,
Carrie Vik, testified that 10 Ashton Drive is her current address (Ramesh FNC Aff. Ex 1 (CT
Trial Tr., Day 3) 2:4-7), and that she and Mr. Vik had “raised [their] life” in their Greenwich
home. (Ramesh FNC Aff. Ex 1 (CT Trial Tr., Day 3) 26:25-27:4.) The Viks attended the entire
trial, which ended in December 2019.
Fraudulent Transfers and Forced Sale of Confirmit Shares
In 2015, while defending the Alter-Ego Action and multiple other enforcement actions,
which sought to, inter alia, unwind fraudulent transfers from SHI to Mr. Vik, Mr. Vik purported
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again to transfer SHI’s ownership of the Confirmit shares. (Compl. ¶¶ 7-8.) This time, from his
personal account to the account of his father, Erik Martin Vik (“Vik Sr.”). (Id. ¶¶ 7-8.)
On December 21, 2016, a Norwegian Court invalidated both the 2008 and 2015 transfers
of the Confirmit shares into and out of Mr. Vik’s personal account. (Id. ¶¶ 57-58.) The shares
reverted to SHI and became subject to enforcement in partial satisfaction of the English
Judgment. (Id. ¶¶ 57-58.)
In 2017, Deutsche Bank filed a petition seeking a forced sale of the Confirmit shares.
(Id. ¶ 59.) While living in Connecticut, Mr. Vik attempted to participate in the Confirmit sale
process by submitting an “all-cash” indicative bid of $325 million for the Confirmit shares to
ABG Sundal Collier ASA (“ABG”), the corporation named as sales assistant responsible for
conducting the court-ordered sale. (Id. ¶ 99.) The bid was 400% higher than the average of
other indicative bids. (Id. ¶ 109.)
Concerned about the potential for improper interference with the sale, ABG told Mr. Vik
that he could only continue to participate in the bidding process under certain uncontroversial
conditions. (Id. ¶ 106.) While still in Connecticut, Mr. Vik wrote a letter refusing to comply
with ABG’s conditions. (Id. ¶¶ 106-07.) In the same letter, Mr. Vik asked ABG how it would
“deal[] with the rights of first refusal that exist on the Confirmit shares.” (Id. ¶ 107.)
The Fraudulent Right of First Refusal
On November 1, 2019, only days after Mr. Vik’s letter and at Mr. Vik’s direction,
Caroline Vik, a Connecticut resident, provided ABG with a copy of the ROFR, which she
claimed to have entered into with SHI two years prior. (Id. ¶¶ 94, 123.) The ROFR claims to
grant Caroline Vik the irrevocable right of first refusal to purchase 100% of Confirmit’s shares
within 30 days of any competing bid. (Id. ¶ 90.) Caroline Vik has claimed that the ROFR was
contracted for and intended to be performed in Connecticut. (Id. ¶ 31.) It appears from the face
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of the ROFR that Hans Eirik Olav, a personal friend of Mr. Vik, signed it on behalf of SHI (id. ¶
92), though Mr. Olav has submitted that his signature may have been forged. (Ramesh FNC Aff.
Ex. 15 (Feb. 24, 2020, email from Hans Eirik Olav to Richard Zaroff re: Ongoing Legal Process,
Attachment to Olav Pleading) (referring to the ROFR and voicing concern as to the possibility
that “we are faced with a document that has been fabricated. I suggest that we appoint an
independent third party with the necessary expertise to ascertain whether or not we are dealing
with a forged document.”).)
The Federal Action Seeking to Enforce the Fraudulent Right of First Refusal
On November 19, 2019, again at Mr. Vik’s direction, Caroline Vik commenced the
Federal Action in the Connecticut District Court seeking to enforce the fraudulent ROFR and
enjoin the Confirmit sale. (Compl. ¶ 89, 122.) In support of that action, Mr. Vik submitted a
declaration in which he claimed to have been in Connecticut for a “substantial portion” of his
efforts to involve himself in the sale. (Id. ¶ 29.) Caroline Vik also submitted an affidavit in
support of her application, in which she swore that Connecticut is her home, she has a
Connecticut drivers’ license, she is registered to vote in Connecticut, and she pays taxes in
Connecticut. (Ramesh FNC Aff. Ex. 16 (Caroline Vik D. Conn. Aff.) ¶ 10.)
After the Connecticut District Court found that Caroline Vik’s application “failed to
make a showing of likelihood of success on the merits of her claim” and denied it, she
voluntarily dismissed the Federal Action. (Compl. ¶ 130.) The Confirmit sale ultimately closed
on February 14, 2020, at a price substantially lower than ABG and initial bids had predicted. (Id.
¶¶ 146-47.)
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The Instant Action
In June 2020, Deutsche Bank commenced the instant action, seeking damages reflecting
Confirmit’s depressed sale price and asserting claims against Mr. Vik and Caroline Vik for
tortious interference with business expectancy and violations of the Connecticut Unfair Trade
Practices Act. (Id. ¶¶ 151-63, 164-73.)
ARGUMENT
Forum non conveniens doctrine is a “drastic remedy,” which the trial court “must
approach with caution and restraint.” Durkin v. Intevac, Inc., 58 Conn. 454, 464 (2001); see also
Betensky v. Opcon Assocs, Inc., 46 Conn. Supp. 110, 119 (Conn. Super. Ct. 1999) (“Although
the application of the [forum non conveniens] doctrine is, as mentioned, discretionary in theory,
that application is not, at least in Connecticut, quite so discretionary in fact.”). Ordinarily, a
court should defer to a plaintiff’s choice of forum and deny a motion to dismiss on the basis of
forum non conveniens unless the defendant carries the heavy burden of establishing “exceptional
circumstances” that “demonstrate both inconvenience and hardship.” Sabino v. Ruffolo, 19
Conn. App. 402, 406 (1989); see also Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852,
860 (2006) (Connecticut has a strong “policy preference to bring about a trial on the merits of a
dispute whenever possible and to secure for the litigant his or her day in court.”); Egri v. Foisie,
83 Conn. App. 243, 249-50 (2004).
When assessing a forum non conveniens-based motion to dismiss, courts consider (1)
whether an “adequate alternative forum exists that possesses jurisdiction over the whole case;”
(2) “all relevant private interest factors,” with a presumption against disturbing plaintiff’s initial
choice of forum; (3) “if the balance of private interest factors is equal . . . whether any public
interest factors tip the balance in favor of trying the case in the foreign forum”; and (4) if so,
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whether the plaintiff “can reinstate their [action] in the alternative forum without undue
inconvenience or prejudice.” Durkin, 258 Conn. at 466 (citations and internal quotation marks
omitted). In weighing these issues, the Court should “place its thumb firmly on the [plaintiff’s]
side of the scale, as a representation of the [plaintiff’s] chosen forum, before attempting to
balance the private and public interest factors relevant to a forum non conveniens motion.”
Picketts v. International Playtex, Inc., 215 Conn. 490, 502 (1990).
I. DEFENDANTS OFFER NO JUSTIFICATION FOR DISREGARDING
DEUTSCHE BANK’S CHOICE OF FORUM
Defendants fail to establish any “exceptional circumstances” demonstrating the level of
“inconvenience and hardship” against which the limited doctrine of forum non conveniens
protects. Sabino, 19 Conn. App. at 406; see also Iragorri v. United Technologies Corp., 274
F.3d 65, 75 (2d Cir. 2001) (“[C]ourts should [] arm themselves with an appropriate degree of
skepticism in assessing whether the defendant has demonstrated genuine inconvenience and a
clear preferability of the foreign forum” and “the greater the degree to which the plaintiff has
chosen a forum where the defendant’s witnesses and evidence are to be found, the harder it
should be for the defendant to demonstrate inconvenience.”). As an initial matter, common
sense dictates that there is no forum that offers more convenience to the Viks than Connecticut,
their home state and the state in which the primary events giving rise to Deutsche Bank’s
Complaint occurred. See Durkin, 258 Conn. at 465 (“Connecticut continues to have a
responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum
especially in the somewhat unusual [situation in which] it is the forum resident who seeks
dismissal.”) (emphasis added) (internal quotations and alternations omitted). Furthermore, no
factor that courts consider on motions to dismiss for forum non conveniens justifies disturbing
Deutsche Bank’s choice of forum. See id. at 464-65.
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A. Defendants Fail to Demonstrate that Connecticut Is an Unfair or Inappropriate
Forum
Defendants summarily ask the Court to dismiss Deutsche Bank’s Complaint because they
claim that “Norway is the more convenient forum for the parties and the relevant witnesses” and
“the more appropriate forum for the subject of the litigation.” (Defs. FNC Br. at 2 (emphasis
added).) Even if Defendants offered evidence to support their claim, which they have not, the
“overriding inquiry in a forum non conveniens motion is not whether some other forum might be
a good one, or even a better one than the [plaintiff’s] chosen forum. The question to be answered
is whether [the plaintiff’s] chosen forum is itself inappropriate or unfair because of the various
private and public interest considerations involved.” Temlock v. Temlock, 95 Conn. App. 505,
514 (2006) (emphasis added). Defendants do not and cannot argue that Connecticut is an
inappropriate or unfair option. Presumably, any such argument would rely on Defendants’ false
narrative that they have only modest, casual ties to the state, and fail in the face of indisputable
evidence that both Defendants currently reside in Greenwich, Connecticut, as they have for
approximately thirty years. (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10; id. Ex 1 (CT
Trial Tr., Day 3) 2:4-7; 26:25-27:4.)
Just last year, Caroline Vik cited her residency in Connecticut as a basis for filing an
action in the Connecticut District Court seeking to enforce the terms of her fraudulent right of
first refusal and enjoin the Confirmit shares. (Ramesh FNC Aff. Ex. 16 (Caroline Vik D. Conn.
Aff.) ¶ 10.) In a sworn affidavit to the Connecticut District Court, she stated:
I was in business school at the time I signed the ROFR Agreement
and my permanent legal residence was then, and remains now, 10
Ashton Drive, Greenwich, Connecticut. I have lived temporarily
in other locations at various points in my life, such as when I was in
graduate school, but 10 Ashton Drive is my home. I hold a
Connecticut driver’s license with 10 Ashton Drive as my residence,
am registered to vote in Connecticut based on my residence at 10
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Ashton Drive, pay Connecticut state income taxes, and direct all my
personal, official business from 10 Ashton Drive – including
receiving my bank statements, credit card bills, insurance policies,
and other important communications there.
(Id.) (emphasis added). That statement stands in stark contrast to Defendants’ motion to dismiss
here, which seeks to recast Caroline Vik’s presence in Connecticut as merely “part-time.” (See
Defs. FNC Br. at 1; see also id. at 21 (claiming she has “virtually no assets in Connecticut”
because she does not own the mansion in Greenwich that she lives in);1 id. at 15 (suggesting that
it is somehow arguable that Caroline Vik is “located outside of Connecticut” as a general
matter).2)
The same applies to Mr. Vik. Contrary to Defendants’ misrepresentations (Defs. FNC
Br. at 1, 3, 21 (falsely describing Mr. Vik as a “Norwegian national who lives in Monaco” and
“has not lived in Connecticut in two decades” and has only “de minimus” assets in Connecticut)),
and as set forth more fully in Deutsche Bank’s opposition to his motion to dismiss for lack of
personal jurisdiction, Mr. Vik also lives in Connecticut. Evidence amassed over years of
litigation corroborate Mr. Vik and his wife’s own testimony that they moved to Greenwich in
1988 and that the two of them raised a family there and continue to reside there today. (Ramesh
FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10; id. Ex. 1 (CT Trial Tr., Day 3) 2:4-7; 26:25-27:4.)
For example, and among other evidence, Mr. Vik has a Connecticut driver’s license that lists 10
Ashton Drive as his address (Ramesh FNC Aff. Ex. 3 (Alexander Vik’s DMV Records)),
maintains memberships at local social and sports clubs (Ramesh FNC Aff. Ex. 4 (April 2015
1
That home, which is the Viks’ longtime family estate and where Caroline Vik and her
three siblings were raised, is owned by her mother, Carrie Vik.
2
Unlike Alexander Vik, Caroline Vik has not challenged the Court’s exercise of personal
jurisdiction over her in this action.
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Hearing Tr.) 55:11-21), and regularly attends a local church (Ramesh FNC Aff. Ex. 5 (June 19,
2019 Hearing Tr.) 2:1-5). Indeed, far from inconveniencing Mr. Vik, litigation in Connecticut
would be quite familiar to him. He has been defending Deutsche Bank’s claims in the
Connecticut Alter-Ego Action for over seven years, and just last year he participated in a trial at
the Superior Court in Stamford, where he testified that his address is “10 Ashton Drive,
Greenwich Connecticut.” 3 (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10.) The Court
should not credit any suggestion that litigation in Connecticut would cause Mr. Vik any
inconvenience, let alone exceptional hardship.4
B. Defendants Do Not Establish That Norway is an Adequate Alternative Forum
On a motion to dismiss for forum non conveniens, courts determine whether there exists
an alternative forum that “possesses jurisdiction over the whole case.” (Defs. FNC Br. at 9
(citing Durkin, 258 Conn. at 466).) Defendants suggest that Norway is an alternative forum for
this dispute. (Defs. FNC Br. at 9-10.) As Defendants themselves note, however, whether the
“adequate alternative forum ‘requirement will be satisfied’” can turn on whether “the defendant
is amenable to process in the other jurisdiction.” (Defs. FNC Br. at 10 (quoting Piper Aircraft
Company v. Reyno, 454 U.S. 235, 254 n.22 (1981); Picketts, 215 Conn. at 504 n.13).) Mathis v.
3
Shortly thereafter, Mr. Vik’s wife, Carrie Vik, similarly testified that 10 Ashton Drive is
her current address, (Ramesh FNC Aff. Ex 1 (CT Trial Tr., Day 3) 2:4-7), and that she
and Mr. Vik had “raised [their] life” in their Greenwich home. (Ramesh FNC Aff. Ex 1
(CT Trial Tr., Day 3) 26:25-27:4.) Alexander and Carrie Vik attended the entire trial,
which ended in December 2019.
4
Even if Mr. Vik truly has abandoned Connecticut for a life exclusively in Europe (which
he has not), his new physical distance from the state would be his own “self-created
hardship” and could not support dismissal. Reynolds v. Reynolds, 2018 WL 7117899, at
*5 (Conn. Super. Ct. Dec. 12, 2018) (“[I]f the defendant remains in Costa Rica, as she
has stated she intends to do, and if she cannot get her witnesses to testify, [the impact to
ease of access to sources of proof] is really the result of a self-created hardship, which
simply does not weigh in her favor . . . .”).
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Marriott International, Inc., 2014 WL 5138023, at *5 (Conn. Super. Ct. Sept. 12, 2014). Indeed,
“where the doctrine of forum non conveniens has been invoked to dismiss actions in Connecticut
jurisdiction in the alternate forum has either been consented to or established.” (Ramesh FNC
Aff. Ex. 14 (2014 FNC Decision) at 5.)
The Court should not afford any weight to Defendants’ suggestion, relegated to a
footnote in their motion, that they are amenable to process in Norway “[t]o the extent necessary.”
(Defs. FNC Br. at 10 n.6.) Such a noncommittal statement falls far short of “consenting” to a
foreign forum’s jurisdiction “over the whole case.” Durkin, 258 Conn. at 466. Furthermore, a
key feature of Mr. Vik’s decade-long, global litigation strategy has been to leverage the
geographic ambiguity of the business activity he carries out through offshore shell companies to
challenge jurisdiction in any court where litigation against him is filed. (See, e.g., Ramesh Aff.
Ex. 14 (2014 FNC Decision) at 4-5 (denying motion to dismiss for forum non conveniens where
Mr. Vik argued in Connecticut that New York was a more appropriate forum but simultaneously
argued in New York that New York had no jurisdiction, and stating “[i]t is difficult to understand
how the defendants can satisfy this first component [of the forum non conveniens analysis] at the
same time the defendants challenge the jurisdiction of the alternative forum they suggest is the
more appropriate forum.”).) Defendants’ litigation history all but guarantees that they will
challenge the Norway court’s jurisdiction, which forecloses their motion. See id. at 5 (“While
this court is not critical of the defendant’s reservation of that right [to challenge jurisdiction] in
New York, it undermines and effectively eliminates this court’s ability to find that New York is
an adequate alternative forum.”); Sault v. Domestic Corp., 2009 WL 5698133, at *7 (Conn.
Super. Ct. Dec. 17, 2009) (denying forum non conveniens motion where defendant offered no
evidence supporting existence of jurisdiction in proposed alternative forum).
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C. No Private Interest Factor Justifies Disrupting Deutsche Bank’s Choice of
Forum
The Durkin private interest factors cannot save Defendants’ failing motion as each factor
militates against dismissal here. Durkin, 258 Conn. at 467 (listing the relevant factors as “(1)
relative ease of access to sources of proof; (2) availability of compulsory process for the
attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3)
possibility of viewing accident scene if such viewing is appropriate to action; (4) enforceability
of judgment; (5) relative advantages and obstacles to a fair trial; and (6) all other practical
problems that make trial of case easy, expeditious, and inexpensive.”). Furthermore,
Defendants’ reliance on Durkin beyond setting forth the relevant factors is misplaced. (Defs.
FNC Br. at 11.) This action does not involve a tragic accident in a foreign country. (See id.) It
involves Connecticut residents who conspired in Connecticut to use a purported Connecticut
contract and the Connecticut District Court to interfere with the sale of a Norwegian company.
1. Relative Ease of Access to Sources of Proof
A review of Deutsche Bank’s Complaint defeats Defendants’ conclusory argument that
the “overwhelming majority of evidence necessary to litigate [Deutsche Bank’s] claims is
located in Norway.” (Defs. FNC Br. at 11.) See Everbank Commercial Financial Inc. v. Row
Equipment, Inc., 2017 WL 3880504, at *7 (Conn. Super. Ct. July 20, 2017) (“Merely asserting
that evidence is in another forum is insufficient.”). On the contrary, relevant documents and
witnesses are located in Connecticut. Defendants, the primary witnesses to their own
wrongdoing, both live in Connecticut. (See supra Part I.A.) Their interference with the
Confirmit sale from their Greenwich home base, which includes falsifying the purportedly
Connecticut-based ROFR5 and filing the Connecticut Federal Action, leaves little doubt as to the
5
With respect to the ROFR’s Connecticut ties, Caroline Vik swore under oath: “I signed
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existence of additional witnesses and documentary evidence in this state. The Court should
reject Defendants’ request that it ignore the Complaint’s well-pleaded allegations to find that all
sources of proof relevant to Deutsche Bank’s claims are in Norway. See Iragorri, 274 F.3d 65,
75 (2d Cir. 2001) (“[T]he greater the degree to which the plaintiff has chosen a forum where the
defendant’s witnesses and evidence are to be found, the harder it should be for the defendant to
demonstrate inconvenience.”)
Even without the undeniable Connecticut-based evidence relevant to Deutsche Bank’s
claims, Defendants’ motion should be dismissed for its failure to identify any Norwegian sources
of proof with the requisite specificity. See Sault, 2009 WL 5698133, at *6 (citing Picketts, 215
Conn. at 509) (on motions to dismiss for forum non conveniens, the burden is on defendants to
identify specific evidence located in the proposed alternative forum). For instance, Defendants
offer no authority to support their argument that Confirmit’s incorporation in Norway somehow
bars litigations anywhere else in the world concerning its sale. See, e.g., Everbank Commercial
Financial, 2017 WL 3880504, at *7-8 (denying forum non conveniens motion to dismiss where
relevant company was incorporated in Georgia and co-defendant president of company was a
Georgia resident). (Defs. FNC Br. at 11.) And, in any event, the majority of evidence relating to
Confirmit is likely not in Norway, but a short drive away from Stamford in New York City,
where Confirmit’s “main office” in the United States is located. See Ramesh FNC Aff. Ex. 17
(Vik v. ABG Sundal Collier ASA, 3:19-cv-01800, Complaint, Doc. 1 (“Federal Action Compl.”))
the ROFR Agreement expecting that my performance would take place in Connecticut.
Specifically, I expected that I would receive all required notices concerning offers and
other relevant information at 10 Ashton Drive. . . . I likewise expected that I would
undertake any due diligence in Connecticut and that my final decision to exercise my
Right of First Refusal would take place in Connecticut.” (Ramesh FNC Aff. (Caroline
Vik D. Conn. Aff. Ex. 16) ¶ 11.)
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¶ 10 (alleging that Confirmit’s main office in the United States is in New York City and that
more than half of its revenue is generated in the United States). Unspecified and hypothetical
evidence relating to Confirmit, which may be in Norway but probably is in the United States,
cannot support Defendants’ attack on Deutsche Bank’s choice of forum.
Defendants similarly fail to offer any details regarding the “physical materials” that they
claim exist in Norway and have some unspecified evidentiary value. (Defs. FNC Br. at 12.) See,
e.g., Head USA, Inc. v. American Sports Winter & Outdoor Americas, 2013 WL 1493032, at *5
(Conn. Super. Ct. Mar. 22, 2013) (“[T]his court cannot rely on the implied inconvenience of
Utah and London being far from Connecticut.”); Everett v. Everett, 2010 WL 5573731, at *12
(Conn. Super. Ct. Dec. 16, 2020) (“The defendant’s argument that physical evidence is located in
California is similarly insufficient based on the lack of specificity provided.”). Those materials
relate to pre-litigation Norwegian proceedings and involve underlying objectives and governing
law that are separate and apart from those at issue here. Regardless, however, they are just
documents. They can be easily copied and used in any court proceeding in the world, and the
Court should not give them undue weight in determining the instant motion.6 See Everett, 2010
WL 5573731, at *12 (“[D]efendant has not explained why such [documentary] evidence,
whether currently in California or elsewhere, could not easily be produced in Connecticut.”).
Nor should the Court credit Defendants’ speculation that potential witnesses are in Norway
(among many other places).7 Id. (“A party seeking to transfer a case for the convenience of
6
The Durkin court’s consideration of the Hague Convention does not change the analysis,
and certainly does not support Defendants’ baseless speculation that “if the case were
tried in Connecticut, Norway might not execute letters of request from the United States.
(Defs. FNC Br. at 13 (emphasis added).)
7
Defendants assert that relevant yet unspecified evidence may exist in the Cayman Islands,
Turks and Caicos, Monaco, and Germany. (Defs FNC Br. at 15-16.)
-16-
witnesses must identify the key witnesses to be called and must make a general statement of
what their testimony will cover.”) (alterations omitted). Defendants wholly fail to meet their
burden of identifying the relevance of any testimony such hypothetical witnesses might offer.
2. The Availability of Compulsory Process for the Attendance of Unwilling
Witnesses and Related Costs
Defendants get no help from the second private Durkin factor either, which
requires them to present evidence regarding the availability of compulsory processes to
compel unwilling witnesses, as well as the costs of obtaining attendance of willing
witnesses. As an initial matter, Defendants have not argued that any hypothetical witness
would need to be compelled to testify in this action. See Jacobs v. Felix Bloch Erben
Verlag Fur Behne Film Und Funk KG, 160 F.Supp.2d 722, 743 (S.D.N.Y. 2001) (“[T]he
unavailability of compulsory process is a less compelling factor where a defendant has
not claimed that its potential witnesses would be unwilling to testify.”). All the
“pertinent non-parties” Defendants list might be glad to travel to Connecticut (current
travel restrictions permitting) and participate in this litigation. (See Defs. FNC Br. at 15-
16.)
But even if not, any witness “can just as easily testify via video-conferencing.”
(See Defs. FNC Br. at 19.) See Mathis, 2014 WL 5138023, at *6 (“[W]ith the advent of
modern technology, this court is hard-pressed to find that testimony will be unavailable
because the witness is not in the forum state.”). Defendants are undoubtedly aware of the
significant convenience and cost savings that video-conferencing offers litigants. (See
Defs. FNC Br at 19-20 (anticipating Deutsche Bank’s proposal to use video-conferencing
to overcome the overstated geographic challenges posited in Defendants’ motion)). They
are likely also aware that Durkin does not, as they claim, stand for the proposition that
-17-
Connecticut courts should steadfastly reject advancements in modern technology. (Id.)
The nearly twenty-year-old Durkin case could not have envisioned, and therefore could
not have “expressly rejected” (Defs. FNC Br. at 19) the sophisticated video-conferencing
technologies available today. Nor could it have imagined the vital role video-
conferencing now plays, particularly given the challenges presented by the COVID-19
pandemic. (Defs. FNC Br. at 27.) Indeed, the ongoing pandemic may necessitate that all
testimony in this action, including that of locally-based witnesses, be conducted remotely.
Durkin does not prohibit the Connecticut legal system from such progress and adaptation
and neither should this Court.8 See Mathis, 2014 WL 5138023, at *6 (technology has
“greatly transformed the meaning of compulsory process in a forum non conveniens
calculus.”) (internal quotation marks and citations omitted).
3. The Enforceability of Judgment
During the English trial of Deutsche Bank’s claims against SHI, Vik testified
before the English Judge, Mr. Justice Cooke: “I’m here. If I have done something wrong,
I can pay whatever judgment my Lord decides.” (Ramesh FNC Aff. Ex. 18 (June 19,
2013, Deutsche Bank AG v. Sebastian Holdings, Inc., Claim No. 2009 Folio 83) at 59:7-
15.) Mr. Vik further testified, “I can’t avoid anything. If I did something wrong, I am
responsible.” (Id. at 59:20-25.) Like so much of Vik’s testimony in the various actions
8
Durkin is distinguishable for many reasons, including that here, the Norwegian
government has not conducted an investigation pursuant to which it identified 144
Norwegian witnesses and 0 non-Norwegian witnesses. (Defs. FNC Br. at 14.) Rather,
here, the key witnesses (Defendants) are Connecticut residents, which renders Durkin and
other cases on which Defendants rely inapposite. (Defs. FNC Br. at 14-15 (citing Aldi v.
Morrone, 2016 WL 7975761, at *7 (Conn. Super. Ct. Dec. 16. 2016) (zero total
Connecticut witnesses identified); Doe v. Spence, 2012 WL 6634606, at *2 (Conn. Super.
Ct. Nov. 26, 2012) (same).
-18-
against him and his shell corporations, those statements were disingenuous. Despite his
sworn testimony, after the English Court found SHI liable to Deutsche Bank, Mr. Vik
caused SHI to violate the English Court’s order that SHI pay the English Judgment.
(Compl. ¶ 152.) Indeed, there can be no doubt that, in the event of a judgment against
Defendants in thi
Preview
DOCKET NO.: FS2-FST-CV20-6047029-S : SUPERIOR COURT : DEUTSCHE BANK AG, : JUDICIAL DISTRICT OF : STAMFORD/NORWALK Plaintiff, : AT STAMFORD v. : : December 18, 2020 CAROLINE VIK and ALEXANDER VIK, : : Defendants. : : DEUTSCHE BANK AG’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS (DOC. 115.00) Plaintiff Deutsche Bank AG (“Deutsche Bank”) respectfully submits this memorandum of law in opposition to Defendants’ motion to dismiss Deutsche Bank’s Complaint pursuant to the doctrine of forum non conveniens (Doc. 115.00; Doc. 116.00 (the “Defs. FNC Br.”)). PRELIMINARY STATEMENT This action arises from a Connecticut-based conspiracy among Connecticut residents to falsify a Connecticut contract and use that contract as the basis for a frivolous and vexatious lawsuit in a court sitting in Connecticut. Nonetheless, Defendant Alexander Vik and his daughter, Caroline Vik, ask this Court to find a “sheer mismatch between [this] case and the State of Connecticut” and to dismiss Deutsche Bank’s Complaint on the basis of forum non conveniens in favor of litigation in Norway. (Defs. FNC Br. at 1.) In 2019, Defendants conspired to meddle in the sale of the Norwegian software company, Confirmit AS (“Confirmit”), while knowing that the proceeds of the sale would satisfy a portion of the more than $300 million judgment debt that Mr. Vik’s alter-ego Turks and Caicos shell corporation, Sebastian Holdings, Inc. (“SHI”), owes Deutsche Bank. Specifically, Mr. Vik, while in Connecticut, submitted a bad faith bid on the company in order to inject confusion into the sales process. In furtherance of the same goal, Mr. Vik caused Caroline Vik to sign a falsified, backdated, Connecticut-based contract purporting to grant her a right of first refusal for the shares of Confirmit (the “ROFR”). Then, as part of the same conspiracy, Mr. Vik participated in and directed Caroline Vik’s lawsuit (the “Federal Action”) in the United States District Court for the District of Connecticut (the “Connecticut District Court”), seeking to enforce the fraudulent ROFR and enjoin the Confirmit sale pursuant to Connecticut law. As set forth below, Defendants cannot seriously contend that litigation in Connecticut, their home state, would inconvenience them. Nor can they point to Deutsche Bank’s later filed, protective action in Norway as a basis for insisting that this Connecticut-based dispute be resolved abroad. Mr. Vik’s persistent fraudulent conduct leaves Deutsche Bank with no choice but to seek to satisfy its seven-year-old judgment in all available fora, including Connecticut, where both Defendants reside and where Deutsche Bank has the best chance at recovery. Fairness dictates that this action proceed, particularly given that Defendants’ overarching goal, which their motion is intended to serve, is to avoid consideration of the merits by any court; they do not honestly seek convenient ways to reach them. This shines through in Defendants’ baseless arguments, which wholly fail to discharge their burden to present specific evidence that the Connecticut forum is inconvenient and that the “strong presumption in favor of [Deutsche Bank’s] chosen forum” should be disregarded. (Defs. FNC Br at 8.) The Court should reject them and deny Defendants’ motion to dismiss. BACKGROUND In 1988, billionaire Mr. Vik and his wife moved to Greenwich, Connecticut. (December 18, 2020 Affidavit of Sheila C. Ramesh (“Ramesh FNC Aff.”) Ex. 1 (Trial Transcript from Deutsche Bank AG v. Sebastian Holdings, Inc., FST-CV13-5014167-S (Conn. Super. Ct. 2013) (“CT Trial Tr.”) Day 3) 26:25-27:4.) From their Connecticut home, they operated multiple -2- businesses, raised their four children through adulthood, and continue to base their lives. (Id.; see also Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 56:7-16.) Mr. Vik’s wife owns the house at 10 Ashton Drive in Greenwich, where his adult daughter, Caroline Vik currently lives. (Ramesh FNC Aff. Ex 2 (CT Trial Tr., Day 1) 89:17-19.) Mr. Vik has frequently and publically acknowledged 10 Ashton Drive as his home. In a 2014 interview, he claimed that he and his family live in Greenwich, Connecticut, and in sworn testimony before this Court in 2019, he and his wife reaffirmed that statement. (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10; id. Ex. 1 (CT Trial Tr., Day 3) 2:4-7.) Moreover, Mr. Vik has a Connecticut driver’s license that lists 10 Ashton Drive as his address (Ramesh FNC Aff. Ex. 3 (Alexander Vik’s DMV Records)), maintains memberships at local social and sports clubs (Ramesh FNC Aff. Ex. 4 (Apr. 28, 2015 Hearing Transcript in the matter Deutsche Bank AG v. Vik, No. 161257/13 (N.Y. Sup. Ct.) (“April 2015 Hearing Tr.”)) at 55:11-21), and regularly attends a local church (Ramesh FNC Aff. Ex. 5 (June 19, 2019 Hearing Transcript from Deutsche Bank AG v. Sebastian Holdings, Inc., FST-CV13-5014167-S (Conn. Super. Ct. 2013) (“June 19, 2019 Hearing Tr.”)) 2:1-5). Mr. Vik has long-standing, deep connections in Connecticut. In 2006, Mr. Vik, through his alter-ego SHI, opened a foreign exchange (“FX”) prime brokerage account with Deutsche Bank to conduct FX trading. He and at least six others, including administrative assistants and third-party managers who made trades and investments on behalf of Mr. Vik and/or SHI, regularly did business from an office annex to the Vik family home at 10 Ashton Drive. See Sebastian Holdings, Inc. v. Kugler, 2012 WL 1190837, at *1 (D. Conn. Mar. 30, 2012); (see also Ramesh FNC Aff. Ex. 6 (Jan. 22, 2013 Vik Dep. Tr.) 42:24- 44:25, 47:15-16, 50:5-51:1, 58:8-59:16; id. Ex. 7 (Jan. 30, 2012 Said Dep. Tr.) 75:18-77:11; id. Ex. 8 (Feb. 5, 2014 Affidavit of Kelsey Wells) ¶ 5; id. Ex. 9 (Mar. 14, 2013 Van Eerten Dep. Tr.) -3- 7:16-17, 8:7-8, 25:9-29:6; id. Ex. 10 (Feb. 27, 2013 Johansson Dep. Tr.) 49:23-54:2; id. Ex. 11 (Sept. 29, 2008 Affidavit of Michael Kugler) ¶¶ 16, 17.) From this same office annex, Mr. Vik has regularly conducted business, including, upon information and belief, dealings from which Deutsche Bank’s claims here arise. (Doc. 100.00 (“Compl.”) ¶¶ 29, 101-108; see also Ramesh FNC Aff. Ex. 12 (Johansson 1st Witness Statement) ¶¶ 9, 15.) In the fall of 2008, SHI engaged in highly profitable, but risky, FX trading out of 10 Ashton Drive until the volatility of the financial crisis struck. (Compl. ¶ 34; see also Ramesh FNC Aff. Ex. 7 (Jan. 30, 2012 Said Dep. Tr.) 75:18-77:11.) SHI accumulated hundreds of millions of dollars in losses in October 2008 and, immediately thereafter, Mr. Vik caused SHI to fraudulently transfer all its assets to himself, family members, and entities that he controls. (Compl. ¶¶ 35-37.) Among the assets Mr. Vik caused SHI to fraudulently transfer in 2008 were shares in the Norwegian software company Confirmit. (Id. ¶ 7.) In 2009, Deutsche Bank commenced an action in London against SHI to recover hundreds of millions of dollars in unpaid margin calls. (Id. ¶ 39.) In 2013, the Commercial Court, Queen’s Bench Division of the High Court of Justice of England and Wales awarded Deutsche Bank more than $235 million in damages, plus costs, from SHI (the “English Judgment”). (Id. ¶¶ 40-41.) SHI claimed that it lacked sufficient funds with which to satisfy the judgment, leaving Deutsche Bank to pursue various enforcement actions around the world ever since. (Id. ¶ 43.) The Alter-Ego Action Among those enforcement actions is a 2014 suit that Deutsche Bank commenced in this Court seeking a declaration that, as SHI’s alter ego, Mr. Vik is personally liable for its debts. -4- Deutsche Bank AG v. Sebastian Holdings, Inc., FST-CV13-5014167-S (Conn. Super. Ct. 2013) (the “Alter-Ego Action”). Mr. Vik moved to dismiss the Alter-Ego Action based on forum non conveniens, and argued that New York was a more appropriate forum to litigate Deutsche Bank’s claims. (Ramesh FNC Aff. Ex. 13 (Feb. 5, 2014, Alter-Ego Action, Motion to Dismiss, Doc. 112.00).) The Court denied Mr. Vik’s motion in part because he also contested jurisdiction in New York, failed to demonstrate that litigation in New York would provide greater ease of access to sources of proof or compulsory process for attendance of unwilling witnesses, and failed to provide adequate documentation demonstrating that relevant private interest factors weighed in favor of dismissal. (Ramesh FNC Aff. Ex. 14 (Jun. 4, 2014, Alter-Ego Action, Memorandum of Decision re: Defendant’s Motion to Dismiss Based on Forum Non Conviens [sic], Doc. 138.86 (“2014 FNC Decision”)).). The Alter-Ego Action proceeded to trial before this Court, which began on November 19, 2019, and took place at the Connecticut Superior Court in Stamford, Connecticut. On the first day, Mr. Vik testified that his current address is “10 Ashton Drive, Greenwich Connecticut.” (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10.) Shortly thereafter, Mr. Vik’s wife, Carrie Vik, testified that 10 Ashton Drive is her current address (Ramesh FNC Aff. Ex 1 (CT Trial Tr., Day 3) 2:4-7), and that she and Mr. Vik had “raised [their] life” in their Greenwich home. (Ramesh FNC Aff. Ex 1 (CT Trial Tr., Day 3) 26:25-27:4.) The Viks attended the entire trial, which ended in December 2019. Fraudulent Transfers and Forced Sale of Confirmit Shares In 2015, while defending the Alter-Ego Action and multiple other enforcement actions, which sought to, inter alia, unwind fraudulent transfers from SHI to Mr. Vik, Mr. Vik purported -5- again to transfer SHI’s ownership of the Confirmit shares. (Compl. ¶¶ 7-8.) This time, from his personal account to the account of his father, Erik Martin Vik (“Vik Sr.”). (Id. ¶¶ 7-8.) On December 21, 2016, a Norwegian Court invalidated both the 2008 and 2015 transfers of the Confirmit shares into and out of Mr. Vik’s personal account. (Id. ¶¶ 57-58.) The shares reverted to SHI and became subject to enforcement in partial satisfaction of the English Judgment. (Id. ¶¶ 57-58.) In 2017, Deutsche Bank filed a petition seeking a forced sale of the Confirmit shares. (Id. ¶ 59.) While living in Connecticut, Mr. Vik attempted to participate in the Confirmit sale process by submitting an “all-cash” indicative bid of $325 million for the Confirmit shares to ABG Sundal Collier ASA (“ABG”), the corporation named as sales assistant responsible for conducting the court-ordered sale. (Id. ¶ 99.) The bid was 400% higher than the average of other indicative bids. (Id. ¶ 109.) Concerned about the potential for improper interference with the sale, ABG told Mr. Vik that he could only continue to participate in the bidding process under certain uncontroversial conditions. (Id. ¶ 106.) While still in Connecticut, Mr. Vik wrote a letter refusing to comply with ABG’s conditions. (Id. ¶¶ 106-07.) In the same letter, Mr. Vik asked ABG how it would “deal[] with the rights of first refusal that exist on the Confirmit shares.” (Id. ¶ 107.) The Fraudulent Right of First Refusal On November 1, 2019, only days after Mr. Vik’s letter and at Mr. Vik’s direction, Caroline Vik, a Connecticut resident, provided ABG with a copy of the ROFR, which she claimed to have entered into with SHI two years prior. (Id. ¶¶ 94, 123.) The ROFR claims to grant Caroline Vik the irrevocable right of first refusal to purchase 100% of Confirmit’s shares within 30 days of any competing bid. (Id. ¶ 90.) Caroline Vik has claimed that the ROFR was contracted for and intended to be performed in Connecticut. (Id. ¶ 31.) It appears from the face -6- of the ROFR that Hans Eirik Olav, a personal friend of Mr. Vik, signed it on behalf of SHI (id. ¶ 92), though Mr. Olav has submitted that his signature may have been forged. (Ramesh FNC Aff. Ex. 15 (Feb. 24, 2020, email from Hans Eirik Olav to Richard Zaroff re: Ongoing Legal Process, Attachment to Olav Pleading) (referring to the ROFR and voicing concern as to the possibility that “we are faced with a document that has been fabricated. I suggest that we appoint an independent third party with the necessary expertise to ascertain whether or not we are dealing with a forged document.”).) The Federal Action Seeking to Enforce the Fraudulent Right of First Refusal On November 19, 2019, again at Mr. Vik’s direction, Caroline Vik commenced the Federal Action in the Connecticut District Court seeking to enforce the fraudulent ROFR and enjoin the Confirmit sale. (Compl. ¶ 89, 122.) In support of that action, Mr. Vik submitted a declaration in which he claimed to have been in Connecticut for a “substantial portion” of his efforts to involve himself in the sale. (Id. ¶ 29.) Caroline Vik also submitted an affidavit in support of her application, in which she swore that Connecticut is her home, she has a Connecticut drivers’ license, she is registered to vote in Connecticut, and she pays taxes in Connecticut. (Ramesh FNC Aff. Ex. 16 (Caroline Vik D. Conn. Aff.) ¶ 10.) After the Connecticut District Court found that Caroline Vik’s application “failed to make a showing of likelihood of success on the merits of her claim” and denied it, she voluntarily dismissed the Federal Action. (Compl. ¶ 130.) The Confirmit sale ultimately closed on February 14, 2020, at a price substantially lower than ABG and initial bids had predicted. (Id. ¶¶ 146-47.) -7- The Instant Action In June 2020, Deutsche Bank commenced the instant action, seeking damages reflecting Confirmit’s depressed sale price and asserting claims against Mr. Vik and Caroline Vik for tortious interference with business expectancy and violations of the Connecticut Unfair Trade Practices Act. (Id. ¶¶ 151-63, 164-73.) ARGUMENT Forum non conveniens doctrine is a “drastic remedy,” which the trial court “must approach with caution and restraint.” Durkin v. Intevac, Inc., 58 Conn. 454, 464 (2001); see also Betensky v. Opcon Assocs, Inc., 46 Conn. Supp. 110, 119 (Conn. Super. Ct. 1999) (“Although the application of the [forum non conveniens] doctrine is, as mentioned, discretionary in theory, that application is not, at least in Connecticut, quite so discretionary in fact.”). Ordinarily, a court should defer to a plaintiff’s choice of forum and deny a motion to dismiss on the basis of forum non conveniens unless the defendant carries the heavy burden of establishing “exceptional circumstances” that “demonstrate both inconvenience and hardship.” Sabino v. Ruffolo, 19 Conn. App. 402, 406 (1989); see also Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852, 860 (2006) (Connecticut has a strong “policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.”); Egri v. Foisie, 83 Conn. App. 243, 249-50 (2004). When assessing a forum non conveniens-based motion to dismiss, courts consider (1) whether an “adequate alternative forum exists that possesses jurisdiction over the whole case;” (2) “all relevant private interest factors,” with a presumption against disturbing plaintiff’s initial choice of forum; (3) “if the balance of private interest factors is equal . . . whether any public interest factors tip the balance in favor of trying the case in the foreign forum”; and (4) if so, -8- whether the plaintiff “can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.” Durkin, 258 Conn. at 466 (citations and internal quotation marks omitted). In weighing these issues, the Court should “place its thumb firmly on the [plaintiff’s] side of the scale, as a representation of the [plaintiff’s] chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion.” Picketts v. International Playtex, Inc., 215 Conn. 490, 502 (1990). I. DEFENDANTS OFFER NO JUSTIFICATION FOR DISREGARDING DEUTSCHE BANK’S CHOICE OF FORUM Defendants fail to establish any “exceptional circumstances” demonstrating the level of “inconvenience and hardship” against which the limited doctrine of forum non conveniens protects. Sabino, 19 Conn. App. at 406; see also Iragorri v. United Technologies Corp., 274 F.3d 65, 75 (2d Cir. 2001) (“[C]ourts should [] arm themselves with an appropriate degree of skepticism in assessing whether the defendant has demonstrated genuine inconvenience and a clear preferability of the foreign forum” and “the greater the degree to which the plaintiff has chosen a forum where the defendant’s witnesses and evidence are to be found, the harder it should be for the defendant to demonstrate inconvenience.”). As an initial matter, common sense dictates that there is no forum that offers more convenience to the Viks than Connecticut, their home state and the state in which the primary events giving rise to Deutsche Bank’s Complaint occurred. See Durkin, 258 Conn. at 465 (“Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum especially in the somewhat unusual [situation in which] it is the forum resident who seeks dismissal.”) (emphasis added) (internal quotations and alternations omitted). Furthermore, no factor that courts consider on motions to dismiss for forum non conveniens justifies disturbing Deutsche Bank’s choice of forum. See id. at 464-65. -9- A. Defendants Fail to Demonstrate that Connecticut Is an Unfair or Inappropriate Forum Defendants summarily ask the Court to dismiss Deutsche Bank’s Complaint because they claim that “Norway is the more convenient forum for the parties and the relevant witnesses” and “the more appropriate forum for the subject of the litigation.” (Defs. FNC Br. at 2 (emphasis added).) Even if Defendants offered evidence to support their claim, which they have not, the “overriding inquiry in a forum non conveniens motion is not whether some other forum might be a good one, or even a better one than the [plaintiff’s] chosen forum. The question to be answered is whether [the plaintiff’s] chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved.” Temlock v. Temlock, 95 Conn. App. 505, 514 (2006) (emphasis added). Defendants do not and cannot argue that Connecticut is an inappropriate or unfair option. Presumably, any such argument would rely on Defendants’ false narrative that they have only modest, casual ties to the state, and fail in the face of indisputable evidence that both Defendants currently reside in Greenwich, Connecticut, as they have for approximately thirty years. (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10; id. Ex 1 (CT Trial Tr., Day 3) 2:4-7; 26:25-27:4.) Just last year, Caroline Vik cited her residency in Connecticut as a basis for filing an action in the Connecticut District Court seeking to enforce the terms of her fraudulent right of first refusal and enjoin the Confirmit shares. (Ramesh FNC Aff. Ex. 16 (Caroline Vik D. Conn. Aff.) ¶ 10.) In a sworn affidavit to the Connecticut District Court, she stated: I was in business school at the time I signed the ROFR Agreement and my permanent legal residence was then, and remains now, 10 Ashton Drive, Greenwich, Connecticut. I have lived temporarily in other locations at various points in my life, such as when I was in graduate school, but 10 Ashton Drive is my home. I hold a Connecticut driver’s license with 10 Ashton Drive as my residence, am registered to vote in Connecticut based on my residence at 10 -10- Ashton Drive, pay Connecticut state income taxes, and direct all my personal, official business from 10 Ashton Drive – including receiving my bank statements, credit card bills, insurance policies, and other important communications there. (Id.) (emphasis added). That statement stands in stark contrast to Defendants’ motion to dismiss here, which seeks to recast Caroline Vik’s presence in Connecticut as merely “part-time.” (See Defs. FNC Br. at 1; see also id. at 21 (claiming she has “virtually no assets in Connecticut” because she does not own the mansion in Greenwich that she lives in);1 id. at 15 (suggesting that it is somehow arguable that Caroline Vik is “located outside of Connecticut” as a general matter).2) The same applies to Mr. Vik. Contrary to Defendants’ misrepresentations (Defs. FNC Br. at 1, 3, 21 (falsely describing Mr. Vik as a “Norwegian national who lives in Monaco” and “has not lived in Connecticut in two decades” and has only “de minimus” assets in Connecticut)), and as set forth more fully in Deutsche Bank’s opposition to his motion to dismiss for lack of personal jurisdiction, Mr. Vik also lives in Connecticut. Evidence amassed over years of litigation corroborate Mr. Vik and his wife’s own testimony that they moved to Greenwich in 1988 and that the two of them raised a family there and continue to reside there today. (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10; id. Ex. 1 (CT Trial Tr., Day 3) 2:4-7; 26:25-27:4.) For example, and among other evidence, Mr. Vik has a Connecticut driver’s license that lists 10 Ashton Drive as his address (Ramesh FNC Aff. Ex. 3 (Alexander Vik’s DMV Records)), maintains memberships at local social and sports clubs (Ramesh FNC Aff. Ex. 4 (April 2015 1 That home, which is the Viks’ longtime family estate and where Caroline Vik and her three siblings were raised, is owned by her mother, Carrie Vik. 2 Unlike Alexander Vik, Caroline Vik has not challenged the Court’s exercise of personal jurisdiction over her in this action. -11- Hearing Tr.) 55:11-21), and regularly attends a local church (Ramesh FNC Aff. Ex. 5 (June 19, 2019 Hearing Tr.) 2:1-5). Indeed, far from inconveniencing Mr. Vik, litigation in Connecticut would be quite familiar to him. He has been defending Deutsche Bank’s claims in the Connecticut Alter-Ego Action for over seven years, and just last year he participated in a trial at the Superior Court in Stamford, where he testified that his address is “10 Ashton Drive, Greenwich Connecticut.” 3 (Ramesh FNC Aff. Ex. 2 (CT Trial Tr., Day 1) 54:7-10.) The Court should not credit any suggestion that litigation in Connecticut would cause Mr. Vik any inconvenience, let alone exceptional hardship.4 B. Defendants Do Not Establish That Norway is an Adequate Alternative Forum On a motion to dismiss for forum non conveniens, courts determine whether there exists an alternative forum that “possesses jurisdiction over the whole case.” (Defs. FNC Br. at 9 (citing Durkin, 258 Conn. at 466).) Defendants suggest that Norway is an alternative forum for this dispute. (Defs. FNC Br. at 9-10.) As Defendants themselves note, however, whether the “adequate alternative forum ‘requirement will be satisfied’” can turn on whether “the defendant is amenable to process in the other jurisdiction.” (Defs. FNC Br. at 10 (quoting Piper Aircraft Company v. Reyno, 454 U.S. 235, 254 n.22 (1981); Picketts, 215 Conn. at 504 n.13).) Mathis v. 3 Shortly thereafter, Mr. Vik’s wife, Carrie Vik, similarly testified that 10 Ashton Drive is her current address, (Ramesh FNC Aff. Ex 1 (CT Trial Tr., Day 3) 2:4-7), and that she and Mr. Vik had “raised [their] life” in their Greenwich home. (Ramesh FNC Aff. Ex 1 (CT Trial Tr., Day 3) 26:25-27:4.) Alexander and Carrie Vik attended the entire trial, which ended in December 2019. 4 Even if Mr. Vik truly has abandoned Connecticut for a life exclusively in Europe (which he has not), his new physical distance from the state would be his own “self-created hardship” and could not support dismissal. Reynolds v. Reynolds, 2018 WL 7117899, at *5 (Conn. Super. Ct. Dec. 12, 2018) (“[I]f the defendant remains in Costa Rica, as she has stated she intends to do, and if she cannot get her witnesses to testify, [the impact to ease of access to sources of proof] is really the result of a self-created hardship, which simply does not weigh in her favor . . . .”). -12- Marriott International, Inc., 2014 WL 5138023, at *5 (Conn. Super. Ct. Sept. 12, 2014). Indeed, “where the doctrine of forum non conveniens has been invoked to dismiss actions in Connecticut jurisdiction in the alternate forum has either been consented to or established.” (Ramesh FNC Aff. Ex. 14 (2014 FNC Decision) at 5.) The Court should not afford any weight to Defendants’ suggestion, relegated to a footnote in their motion, that they are amenable to process in Norway “[t]o the extent necessary.” (Defs. FNC Br. at 10 n.6.) Such a noncommittal statement falls far short of “consenting” to a foreign forum’s jurisdiction “over the whole case.” Durkin, 258 Conn. at 466. Furthermore, a key feature of Mr. Vik’s decade-long, global litigation strategy has been to leverage the geographic ambiguity of the business activity he carries out through offshore shell companies to challenge jurisdiction in any court where litigation against him is filed. (See, e.g., Ramesh Aff. Ex. 14 (2014 FNC Decision) at 4-5 (denying motion to dismiss for forum non conveniens where Mr. Vik argued in Connecticut that New York was a more appropriate forum but simultaneously argued in New York that New York had no jurisdiction, and stating “[i]t is difficult to understand how the defendants can satisfy this first component [of the forum non conveniens analysis] at the same time the defendants challenge the jurisdiction of the alternative forum they suggest is the more appropriate forum.”).) Defendants’ litigation history all but guarantees that they will challenge the Norway court’s jurisdiction, which forecloses their motion. See id. at 5 (“While this court is not critical of the defendant’s reservation of that right [to challenge jurisdiction] in New York, it undermines and effectively eliminates this court’s ability to find that New York is an adequate alternative forum.”); Sault v. Domestic Corp., 2009 WL 5698133, at *7 (Conn. Super. Ct. Dec. 17, 2009) (denying forum non conveniens motion where defendant offered no evidence supporting existence of jurisdiction in proposed alternative forum). -13- C. No Private Interest Factor Justifies Disrupting Deutsche Bank’s Choice of Forum The Durkin private interest factors cannot save Defendants’ failing motion as each factor militates against dismissal here. Durkin, 258 Conn. at 467 (listing the relevant factors as “(1) relative ease of access to sources of proof; (2) availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) possibility of viewing accident scene if such viewing is appropriate to action; (4) enforceability of judgment; (5) relative advantages and obstacles to a fair trial; and (6) all other practical problems that make trial of case easy, expeditious, and inexpensive.”). Furthermore, Defendants’ reliance on Durkin beyond setting forth the relevant factors is misplaced. (Defs. FNC Br. at 11.) This action does not involve a tragic accident in a foreign country. (See id.) It involves Connecticut residents who conspired in Connecticut to use a purported Connecticut contract and the Connecticut District Court to interfere with the sale of a Norwegian company. 1. Relative Ease of Access to Sources of Proof A review of Deutsche Bank’s Complaint defeats Defendants’ conclusory argument that the “overwhelming majority of evidence necessary to litigate [Deutsche Bank’s] claims is located in Norway.” (Defs. FNC Br. at 11.) See Everbank Commercial Financial Inc. v. Row Equipment, Inc., 2017 WL 3880504, at *7 (Conn. Super. Ct. July 20, 2017) (“Merely asserting that evidence is in another forum is insufficient.”). On the contrary, relevant documents and witnesses are located in Connecticut. Defendants, the primary witnesses to their own wrongdoing, both live in Connecticut. (See supra Part I.A.) Their interference with the Confirmit sale from their Greenwich home base, which includes falsifying the purportedly Connecticut-based ROFR5 and filing the Connecticut Federal Action, leaves little doubt as to the 5 With respect to the ROFR’s Connecticut ties, Caroline Vik swore under oath: “I signed -14- existence of additional witnesses and documentary evidence in this state. The Court should reject Defendants’ request that it ignore the Complaint’s well-pleaded allegations to find that all sources of proof relevant to Deutsche Bank’s claims are in Norway. See Iragorri, 274 F.3d 65, 75 (2d Cir. 2001) (“[T]he greater the degree to which the plaintiff has chosen a forum where the defendant’s witnesses and evidence are to be found, the harder it should be for the defendant to demonstrate inconvenience.”) Even without the undeniable Connecticut-based evidence relevant to Deutsche Bank’s claims, Defendants’ motion should be dismissed for its failure to identify any Norwegian sources of proof with the requisite specificity. See Sault, 2009 WL 5698133, at *6 (citing Picketts, 215 Conn. at 509) (on motions to dismiss for forum non conveniens, the burden is on defendants to identify specific evidence located in the proposed alternative forum). For instance, Defendants offer no authority to support their argument that Confirmit’s incorporation in Norway somehow bars litigations anywhere else in the world concerning its sale. See, e.g., Everbank Commercial Financial, 2017 WL 3880504, at *7-8 (denying forum non conveniens motion to dismiss where relevant company was incorporated in Georgia and co-defendant president of company was a Georgia resident). (Defs. FNC Br. at 11.) And, in any event, the majority of evidence relating to Confirmit is likely not in Norway, but a short drive away from Stamford in New York City, where Confirmit’s “main office” in the United States is located. See Ramesh FNC Aff. Ex. 17 (Vik v. ABG Sundal Collier ASA, 3:19-cv-01800, Complaint, Doc. 1 (“Federal Action Compl.”)) the ROFR Agreement expecting that my performance would take place in Connecticut. Specifically, I expected that I would receive all required notices concerning offers and other relevant information at 10 Ashton Drive. . . . I likewise expected that I would undertake any due diligence in Connecticut and that my final decision to exercise my Right of First Refusal would take place in Connecticut.” (Ramesh FNC Aff. (Caroline Vik D. Conn. Aff. Ex. 16) ¶ 11.) -15- ¶ 10 (alleging that Confirmit’s main office in the United States is in New York City and that more than half of its revenue is generated in the United States). Unspecified and hypothetical evidence relating to Confirmit, which may be in Norway but probably is in the United States, cannot support Defendants’ attack on Deutsche Bank’s choice of forum. Defendants similarly fail to offer any details regarding the “physical materials” that they claim exist in Norway and have some unspecified evidentiary value. (Defs. FNC Br. at 12.) See, e.g., Head USA, Inc. v. American Sports Winter & Outdoor Americas, 2013 WL 1493032, at *5 (Conn. Super. Ct. Mar. 22, 2013) (“[T]his court cannot rely on the implied inconvenience of Utah and London being far from Connecticut.”); Everett v. Everett, 2010 WL 5573731, at *12 (Conn. Super. Ct. Dec. 16, 2020) (“The defendant’s argument that physical evidence is located in California is similarly insufficient based on the lack of specificity provided.”). Those materials relate to pre-litigation Norwegian proceedings and involve underlying objectives and governing law that are separate and apart from those at issue here. Regardless, however, they are just documents. They can be easily copied and used in any court proceeding in the world, and the Court should not give them undue weight in determining the instant motion.6 See Everett, 2010 WL 5573731, at *12 (“[D]efendant has not explained why such [documentary] evidence, whether currently in California or elsewhere, could not easily be produced in Connecticut.”). Nor should the Court credit Defendants’ speculation that potential witnesses are in Norway (among many other places).7 Id. (“A party seeking to transfer a case for the convenience of 6 The Durkin court’s consideration of the Hague Convention does not change the analysis, and certainly does not support Defendants’ baseless speculation that “if the case were tried in Connecticut, Norway might not execute letters of request from the United States. (Defs. FNC Br. at 13 (emphasis added).) 7 Defendants assert that relevant yet unspecified evidence may exist in the Cayman Islands, Turks and Caicos, Monaco, and Germany. (Defs FNC Br. at 15-16.) -16- witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover.”) (alterations omitted). Defendants wholly fail to meet their burden of identifying the relevance of any testimony such hypothetical witnesses might offer. 2. The Availability of Compulsory Process for the Attendance of Unwilling Witnesses and Related Costs Defendants get no help from the second private Durkin factor either, which requires them to present evidence regarding the availability of compulsory processes to compel unwilling witnesses, as well as the costs of obtaining attendance of willing witnesses. As an initial matter, Defendants have not argued that any hypothetical witness would need to be compelled to testify in this action. See Jacobs v. Felix Bloch Erben Verlag Fur Behne Film Und Funk KG, 160 F.Supp.2d 722, 743 (S.D.N.Y. 2001) (“[T]he unavailability of compulsory process is a less compelling factor where a defendant has not claimed that its potential witnesses would be unwilling to testify.”). All the “pertinent non-parties” Defendants list might be glad to travel to Connecticut (current travel restrictions permitting) and participate in this litigation. (See Defs. FNC Br. at 15- 16.) But even if not, any witness “can just as easily testify via video-conferencing.” (See Defs. FNC Br. at 19.) See Mathis, 2014 WL 5138023, at *6 (“[W]ith the advent of modern technology, this court is hard-pressed to find that testimony will be unavailable because the witness is not in the forum state.”). Defendants are undoubtedly aware of the significant convenience and cost savings that video-conferencing offers litigants. (See Defs. FNC Br at 19-20 (anticipating Deutsche Bank’s proposal to use video-conferencing to overcome the overstated geographic challenges posited in Defendants’ motion)). They are likely also aware that Durkin does not, as they claim, stand for the proposition that -17- Connecticut courts should steadfastly reject advancements in modern technology. (Id.) The nearly twenty-year-old Durkin case could not have envisioned, and therefore could not have “expressly rejected” (Defs. FNC Br. at 19) the sophisticated video-conferencing technologies available today. Nor could it have imagined the vital role video- conferencing now plays, particularly given the challenges presented by the COVID-19 pandemic. (Defs. FNC Br. at 27.) Indeed, the ongoing pandemic may necessitate that all testimony in this action, including that of locally-based witnesses, be conducted remotely. Durkin does not prohibit the Connecticut legal system from such progress and adaptation and neither should this Court.8 See Mathis, 2014 WL 5138023, at *6 (technology has “greatly transformed the meaning of compulsory process in a forum non conveniens calculus.”) (internal quotation marks and citations omitted). 3. The Enforceability of Judgment During the English trial of Deutsche Bank’s claims against SHI, Vik testified before the English Judge, Mr. Justice Cooke: “I’m here. If I have done something wrong, I can pay whatever judgment my Lord decides.” (Ramesh FNC Aff. Ex. 18 (June 19, 2013, Deutsche Bank AG v. Sebastian Holdings, Inc., Claim No. 2009 Folio 83) at 59:7- 15.) Mr. Vik further testified, “I can’t avoid anything. If I did something wrong, I am responsible.” (Id. at 59:20-25.) Like so much of Vik’s testimony in the various actions 8 Durkin is distinguishable for many reasons, including that here, the Norwegian government has not conducted an investigation pursuant to which it identified 144 Norwegian witnesses and 0 non-Norwegian witnesses. (Defs. FNC Br. at 14.) Rather, here, the key witnesses (Defendants) are Connecticut residents, which renders Durkin and other cases on which Defendants rely inapposite. (Defs. FNC Br. at 14-15 (citing Aldi v. Morrone, 2016 WL 7975761, at *7 (Conn. Super. Ct. Dec. 16. 2016) (zero total Connecticut witnesses identified); Doe v. Spence, 2012 WL 6634606, at *2 (Conn. Super. Ct. Nov. 26, 2012) (same). -18- against him and his shell corporations, those statements were disingenuous. Despite his sworn testimony, after the English Court found SHI liable to Deutsche Bank, Mr. Vik caused SHI to violate the English Court’s order that SHI pay the English Judgment. (Compl. ¶ 152.) Indeed, there can be no doubt that, in the event of a judgment against Defendants in thi