BANOKA S.À.R.L., ATYS S.A., RENATO PICCIOTTO, JACQUES CHAMPY, JEAN BISSONNET v. ELLIOTT MANAGEMENT CORP., ELLIOTT INVESTMENT MANAGEMENT L.P., ELLIOTT ASSOCIATES L.P., ELLIOTT INTERNATIONAL L.P., ALVAREZ & MARSAL, INC., ALVAREZ & MARSAL TRANSACTION ADVISORY GROUP, LLC, ALVAREZ & MARSAL HOLDINGS, LLC
Docket No. 24-1352
United States Court of Appeals for the Second Circuit
Decided: July 31, 2025
Argued: March 27, 2025
August Term, 2024
*The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.
B e f o r e:
LYNCH, MENASHI, and LEE, Circuit Judges.
We identify no abuse of discretion in the district court‘s ruling. Although the choice to seek discovery in a forum other than that selected in a forum-selection clause might not necessarily suggest an attempt to evade the kind of foreign proof-gathering restrictions addressed by the third Intel factor, a clear contractual preference for a different forum is nevertheless a factor that the district court may consider when assessing whether to grant discovery under
AUSTIN D. KIM, Meister Seelig & Fein PLLC, New York, NY (Alexander D. Pencu, Christopher J. Major, Meister Seelig & Fein PLLC, New York, NY, on the brief) for Petitioners-Appellants.
JAMES E. TYSSE, Akin Gump Strauss Hauer & Feld LLP, Washington, DC (Lide E. Paterno, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, Anne M. Evans, Sean Nolan, Akin Gump Strauss Hauer & Feld LLP, New York, NY, on the brief) for Respondents-Appellees.
GERARD E. LYNCH, Circuit Judge:
Petitioners-appellants Banoka S.à.r.l., ATYS S.A., Renato Picciotto, Jacques Champy, and Jean Bissonnet (collectively “Banoka“) appeal from an April 16, 2024 order of the United States District Court for the Southern District of New York (Gregory H. Woods, J.) denying their petition to compel discovery from respondents-appellees Elliott Management Corp. (“EMC“) and Elliot Investment Management, L.P., (“EIM“) as well as Elliott Associates, L.P., and Elliott International, L.P. (together, “the Elliott Funds,” and collectively with EMC and EIM, “Appellees“).1 Section 1782 permits a district court “upon the application of any interested person,” to order a person within its jurisdiction to provide evidence “for use in a proceeding in a foreign or international tribunal.”
Banoka argues on appeal that the district court improperly applied two of the four discretionary Intel factors when deciding their
Appellees respond that (1) we lack jurisdiction over this appeal, because the district court permitted Banoka to resubmit its proposed subpoenas regarding the Elliott Funds, Banoka has done so, and the
After oral argument, the parties confirmed in a joint letter to this Court that Banoka has committed to dismiss its petition as to the Elliott Funds and accordingly will not pursue its revised subpoenas before the district court. Because that action resolves the only issue that remained open before the district court, it renders the order from which Banoka appeals final for our purposes. See Scottsdale Ins. Co. v. McGrath, 88 F.4th 369, 377 n.7 (2d Cir. 2023). Accordingly, we have jurisdiction to decide this appeal. Chevron Corp. v. Berlinger, 629 F.3d 297, 306 (2d Cir. 2011).
Upon review, we identify no abuse of discretion in Judge Woods‘s handling of Banoka‘s petition. Even if we were to assume that Banoka‘s choice to seek discovery in a forum other than the one identified in its forum-selection clause does not necessarily demonstrate “an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country” within the meaning of the third Intel factor, Intel Corp., 542 U.S. at 264-65, the forum-selection clause at least suggests a contractual preference for resolving discovery disputes in the selected forum, under that forum‘s rules. It is within the district court‘s discretion to consider such a contractual preference, along with other factors, when evaluating a
We therefore AFFIRM the district court‘s order denying Banoka‘s
BACKGROUND
I. Factual Background
The Banoka appellants are European corporations and individuals who were substantial owners of Clichy Victor Hugo (“CVH“), a French company that managed and operated a Holiday Inn-branded hotel in Paris. Between September 2019 and February 2020, they tried to sell their shares in CVH - and, accordingly, their ownership interest in the hotel - and entered negotiations with a real estate development group called Westmont International Development Inc. (“Westmont“).
At the time, Westmont was engaged in a joint venture called WNE Investor S.à.r.l. (“WNE Investor“) with Elliott Associates and Elliott International, which are “private investment funds, onshore and offshore respectively.” App‘x 831. The Elliott Funds were the majority owners of the joint venture. “Through WNE Investor, the Elliott Funds provide[d] capital which [wa]s used by Westmont to acquire and operate hotels” around the world. Id.
The Elliott Funds were advised in their investments by their affiliated investment advisors, EIM and EMC, based in the United States, and Elliott U.K., based in London. According to the Elliott Funds, the investment decisions relevant to the hotel transaction were entrusted to Elliott U.K. Due diligence work for Westmont was conducted by Alvarez & Marsal, Inc.; Alvarez & Marsal Transaction Advisory
Negotiations over the Paris hotel took place exclusively between representatives of Westmont, who were based in England, and the French-based Banoka, in its capacity as a substantial owner of CVH. Beginning in late June 2019, Banoka sought offers for the Paris hotel. In the fall of 2019, Westmont sought to enter an exclusivity agreement with Banoka, under which Banoka would terminate discussions with other bidders while Westmont and Banoka attempted to reach a deal. Banoka agreed, on the condition that Westmont agree to offer at least € 55 million cash at closing. Westmont accepted that condition, and the parties entered into an exclusivity period that was set to expire on December 31, 2019. During that time, while Westmont conducted due diligence and the parties attempted to negotiate and finalize a share purchase agreement, Banoka ceased discussions with other bidders.
As part of the exclusivity agreement, Banoka also agreed, in a broadly worded forum-selection clause, that “the courts of England and Wales [would] have exclusive jurisdiction in relation to any dispute arising out of or in relation to [the exclusivity agreement].” App‘x 49 (emphasis added).
In December 2019, Westmont began to raise “red flags” from its due diligence, which Banoka now claims were pretextual.3 Appellants’ Br. 19-20 (emphasis omitted), quoting App‘x 35. Westmont sought to reduce its offer by €2 million in light of those concerns. Nevertheless, it assured Banoka that it intended to continue pursuing the deal. Banoka agreed to reduce the price by €1 million and continued negotiations.
According to Banoka, delays due to Westmont‘s due diligence4 continued, but, relying on Westmont‘s assurances that the deal would go forward, Banoka agreed to extend the exclusivity period twice more through February 12, 2020. The exclusivity period lapsed, though Westmont continued to represent that it intended to complete the transaction by the end of the month. By late February, however, the COVID-19 pandemic was surging, and Westmont sought to renegotiate the deal again. Banoka rejected that effort, and the deal fell through.
II. Procedural History
Believing that Westmont had delayed the deal in bad faith, Banoka began to explore potential litigation against it in England.5
To support that potential litigation, on December 4, 2020, Banoka commenced a
Having failed to obtain discovery against Westmont in Texas, Banoka filed a second
Following briefing and a hearing, Magistrate Judge Parker denied the petition. Banoka S.à.r.l. v. Alvarez & Marsal, Inc., No. 22 Misc. 00182, 2023 WL 1433681, at *6-7 (S.D.N.Y. Feb. 1, 2023). She held that Banoka had failed to show that the requested discovery would be “for use” in a foreign proceeding because the alleged future proceeding was “merely speculative.” Id. at *6, quoting Mangouras v. Squire Patton Boggs, 980 F.3d 88, 100 (2d Cir. 2020). Banoka had conceded that it did not have sufficient information to bring suit against Westmont without the discovery sought in its
Banoka objected to the magistrate judge‘s decision, arguing that it had provided sufficient information to demonstrate that its suit was in “reasonable contemplation” even though it currently lacked sufficient information to bring it. In a March 22, 2024, opinion and order, Judge Woods agreed with Banoka, holding that “because [it] ha[d] taken concrete steps such as retaining English counsel, developing a detailed legal theory, and sending pre-suit demand letters, [its] proposed proceeding against Westmont satisfies Section 1782‘s requirement that the requested discovery be for use in a foreign proceeding.” Banoka, S.à.r.l. v. Alvarez & Marsal Inc., No. 22 Misc. 182, 2024 WL 1242994, at *1 (S.D.N.Y. Mar. 22, 2024). By providing those materials, Banoka had demonstrated its “‘practical ability to inject the requested information into a foreign proceeding‘” - all that Judge Woods understood to be required under Second Circuit precedent. Id. at *7-8, quoting IJK Palm LLC v. Anholt Servs. USA, Inc., 33 F.4th 669, 680 (2d Cir. 2022). Accordingly, Judge Woods rejected the portion of Magistrate Judge
Briefing and argument regarding the discretionary Intel factors followed. On April 11, 2024, in an extensive oral opinion, Judge Woods granted Banoka‘s
Specifically, Judge Woods concluded that the forum-selection clause in Banoka‘s agreement with Westmont, together with the Elliott entities’ allegation “that an English court would be unlikely to allow [Banoka] to seek pre-suit discovery,” weighed against granting the petition with respect to all the respondents under the third factor. Id. at 56-57. Judge Woods also determined that the fourth factor weighed against granting discovery with respect to the EIM, EMC, and the A&M Entities, because the discovery sought was overbroad and unduly burdensome in light of (1) EIM, EMC, and the A&M Entities’ lack of direct involvement in the transaction at issue and (2) the location of the relevant witnesses and records, which were largely or entirely located abroad.
As to the Elliott Funds, however, which would have provided the funding for the CVH hotel transaction, Judge Woods concluded that the factors weighed differently, because the Elliott Funds had been substantial majority investors in the joint venture with Westmont that aimed to purchase the hotel, and they had been advised by the U.K.-based Elliott entity that “communicated with Westmount regularly through the negotiations.” Id. at 61 (internal quotation marks omitted and alterations adopted). As a result, Judge Woods granted limited discovery with respect to the Funds and stated that he would “consider revised subpoena requests . . . consistent with the Court‘s ruling,” id. at 68 - i.e., much curtailed, including only “documentary materials with respect to which [the Funds] are parties, or signatories, or direct participants,” id. at 62-64.
Judge Woods explicitly stated that any revised subpoena requests should not include documents whose primary custodians were abroad because “allowing [Banoka] to effectively seek discovery materials located in England from Elliott U.K. as a result of any shared IT platforms or control arrangement with Elliott Associates, L.P. and Elliott International, L.P. would heighten the Court‘s concerns about forum shopping and attempts to evade foreign proof-gathering restrictions.” Id. at 64. He directed Banoka and the Elliott Funds to “meet and confer regarding the scope of any renewed application to the Court” and to “submit a status letter to the Court no later than May 1, 2024.” Id. at 68.
On May 1, 2024, the parties submitted a joint status letter explaining that they had not been able to reach an agreement regarding the scope of Banoka‘s revised subpoenas. Banoka explained that “[t]he key dispute between the parties is whether the Elliott Funds are required to produce documents they own but were created by their investment advisor affiliates.” App‘x 1120. It argued that the district court‘s decision reached those documents because “the Elliott Funds’ disclosure obligations include documents and information created by the Elliott Funds’ investment advisors who acted as the Elliott Funds’ agents.”
The Elliott Funds responded that they had no documentary materials “with respect to which [they were] parties, or signatories, or direct participants” or over which they were “primary custodian[s]” because they did not have “directors, officers, or employees and therefore d[id] not have any individuals who would have generated e-mail or other documents on behalf of the Elliott Funds regarding the contemplated transaction.” Id. at 1122-23 (internal quotation marks omitted). Had the transaction moved forward, the Funds explained, they would have generated documents by funding the venture; however, they were not decision-makers regarding whether to complete the transaction, which never closed. As a result, the Funds maintained that they had no responsive documents, and they accused Banoka of trying to end-run the district court‘s denial of its petition with respect to the other entities by seeking documents from those other entities through them. They urged the court to deny the revised subpoenas accordingly.
On May 13, 2024, less than two weeks after that joint status letter was filed - and before the district court had acted on the revised subpoenas put forward in that letter - Banoka filed a notice of appeal challenging the district court‘s April 16 Order.7
DISCUSSION
I. We have jurisdiction over this appeal.
Before we reach the merits, we must first address whether we have jurisdiction to hear this appeal. Appellees argued in their brief that we lack jurisdiction because Judge Woods‘s order “did not conclude all proceedings relating to [the
We have held that we lack jurisdiction over a
[w]hen an appeal is pending but the presence of unresolved claims has put our jurisdiction into question, we have . . . accepted jurisdiction when a plaintiff has clarified in a submission to our Court or at oral argument that it is dismissing those unresolved claims with prejudice or otherwise has definitively abandoned those claims.
Scottsdale Ins. Co., 88 F.4th at 377 n.7 (emphasis omitted), citing Alix v. McKinsey & Co., 23 F.4th 196, 203 (2d Cir. 2022).
II. The district court did not abuse its discretion when it denied Banoka‘s § 1782 petition.
A district court analyzes a
First, the court must determine whether the application satisfies
§ 1782 ‘s three statutory requirements: that (1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign [or international] tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.
Id. (citation omitted). Because the interpretation of those statutory requirements raises purely legal issues, we review the district court‘s analysis at this step de novo. Id. at 147.
Second, where those statutory requirements are met, “[t]he permissive language of
The district court‘s discretion under
- whether “the person from whom discovery is sought is a participant in the foreign proceeding,” in which case “the need for
§ 1782(a) aid generally is not as apparent“; - “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance“;
- “whether the
§ 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States“; and - whether the request is “unduly intrusive or burdensome.”
Id., quoting Intel Corp., 542 U.S. at 264-65.
The Intel factors are “non-exclusive,” and we have cautioned that they “are not to be applied mechanically.” Kiobel, 895 F.3d at 244-45; see also In re Application of Venequip, S.A. v. Caterpillar Inc., 83 F.4th 1048, 1058 (7th Cir. 2023) (Intel‘s “nonexclusive list of potentially relevant factors gives the district court great flexibility and discretion“) (internal quotation marks omitted). District courts are instructed to “take into account any other pertinent issues arising from the facts of the particular dispute” in addition to the Intel factors. Kiobel, 895 F.3d at 245. Nevertheless, district courts are “‘not free to read extra-statutory barriers to discovery into [S]ection 1782’ under the guise of exercising their discretion.” Fed. Republic of Nigeria, 27 F.4th at 148, quoting Application of Gianoli Aldunate, 3 F.3d 54, 59 (2d Cir. 1993).
In other words, while a district court may freely consider and weigh factors that it finds relevant - even those which do not fall neatly within one of the four Intel factors - it abuses its discretion when it imposes strict requirements related to those factors that go beyond the limitations found directly within the statute. See id. at 151. For example, we have not “authorize[d] denial of discovery pursuant to
A. The district court did not abuse its discretion by considering the forum-selection clause as a factor weighing against granting discovery.
Banoka argues that “[t]he district court wrongly relied on the existence of an English forum selection clause between Banoka and Westmont to ‘tilt’ the third Intel factor against” granting its
As an initial matter, several courts within this Circuit have held the opposite, determining that forum-selection clauses can be relevant and weigh against granting
Before today, we had yet to address this issue in a precedential opinion - though we recently upheld the district court‘s ruling in Klein in a summary order, observing that the district court “acted well within its discretion” when it “reasoned that . . . the petitioner‘s decision to enter into a forum-selection clause is a factor that can weigh against the granting of an application brought under [S]ection 1782.” Klein v. Altara RK Invs. Ltd., No. 24 Civ. 228, 2025 WL 560105, at *3 (2d Cir. Feb. 20, 2025) (internal quotation marks omitted). Today, we reaffirm that observation: a district court does not abuse its discretion by considering a forum-selection clause as one factor weighing against discovery under
Contrary to Banoka‘s arguments, that holding abides even where the party opposing discovery identifies no specific “proof-gathering restrictions” in the contractually chosen forum that would render the clause specifically relevant to the third Intel factor.9 The Intel factors are, after all, “non-exclusive.” Kiobel, 895 F.3d at 244.
In evaluating whether granting a petition would uphold the “twin aims” of
In so holding, we find ourselves in good company. The Seventh Circuit has similarly upheld a district court‘s decision denying a
The same is true of the district court‘s analysis in this case. Like the district court in Venequip, Judge Woods carefully evaluated whether the clause was relevant to Banoka‘s specific
he found that “the parties ha[d] not identified any English ‘prohibitions’ on the use or acquisition of the requested materials,” he observed that based on the affidavit, rules,
selection clause can be a relevant factor in analyzing a
Thus, like the Seventh Circuit, we hold that the district court‘s fact-sensitive and “highly contextual” analysis regarding the forum-selection clause was not an abuse of its discretion. Venequip, 83 F.4th at 1057-58.
B. The district court did not abuse its discretion in concluding that Banoka‘s discovery requests were unduly burdensome.
Nor did the district court abuse its discretion with regard to the fourth Intel factor. That factor is assessed under “the familiar standards of
Banoka argues that the “[m]inimal document discovery from a finite period of time and limited depositions” it requested were “not disproportional with the needs of the case,” which “concerns a € 55 million transaction.” Appellants’ Br. 54. It contends that the shared leadership of - and IT platforms used by - EIM, EMC, and Elliott U.K. demonstrate that any distinction between the entities was artificial, meaning that it should have been allowed to seek all Elliott documents relevant to the planned hotel transaction through the U.S.-based entities. To support its claim that “Elliott maintained a fully integrated business operation,” it points for the first time on appeal to an email from an Elliott representative stating that all investment decisions were required to “go through a special committee” - though it cites no record evidence identifying the members or function of that committee. Id. at 58, quoting App‘x 110. Finally, it urges that the district court‘s stated concerns about extraterritorial discovery should not have prevented it from receiving the discovery it requested.
None of those arguments demonstrates that the district court abused its discretion here. First, the district court found that (1) Banoka‘s document requests were “unduly broad, comprising 14 expansive categories, most of which seek all documents and communications related to various issues without limitation,” and (2) its deposition requests would be unduly burdensome in light of the fact that the Appellees’ employees - as opposed to the employees of their U.K.-based counterpart, Elliott U.K. - “were not directly involved in the failed transaction.” Special App‘x 58 (internal quotation marks omitted). Despite Banoka‘s protestations, there is no doubt that its requests were expansive: they encompassed virtually any documents possessed by the Appellees that might be related to the sale of the hotel. See, e.g., App‘x 198-99 (requesting “[a]ll documents and communications . . . [with] Westmont concerning [Banoka]” as well as all available documents and communication about “pricing calculations,” the exclusivity period, due diligence for the planned transaction, the effects of the COVID-19 pandemic on the planned transaction, and more). We see no reason to disturb the district court‘s finding about the scope of Banoka‘s demands.
Second, the evidence to which Banoka points does not demonstrate clear error in Judge Woods‘s determinations that Elliott U.K. was operationally distinct from EMC and EIM and that it - not the U.S.-based entities - was involved in negotiating the planned transaction. There is record evidence to support those conclusions: the Elliott entities submitted a declaration from the Global Head of Real Estate at Elliott U.K. stating under penalty of perjury that “Elliott UK communicated with Westmont regularly throughout the five-month
Finally, though Banoka stresses that the Elliott Funds had the practical ability to access the Elliott U.K. documents it seeks through shared servers, the district court acted within its discretion when it considered the foreign location of the documents and the foreign status of their “primary custodian” under the fourth Intel factor. Special App‘x 63-64. The district court reasoned that to do otherwise would “effectively collapse[] corporate separations and incentivize[] companies to maintain segregated computer systems.” Id. at 64. That consideration was appropriate. Indeed, we have reversed a district court for failing to consider precisely such concerns. See Kiobel, 895 F.3d at 247. In Kiobel, we held that the district court had abused its discretion in granting
Accordingly, we see no abuse of discretion in the district court‘s assessment that the fourth Intel factor largely weighed against granting Banoka‘s
*****
Because the district court carefully weighed each of the relevant factors “[c]ollectively,” treating none of them as “dispositive,” Special App‘x 56-57, 62, we detect no abuse of discretion in its assessment of those factors as a whole. And because we approve the district court‘s reasoning, we need not reach the Elliott Funds’ argument that Banoka‘s English lawsuit was not within “reasonable contemplation” as required to meet
CONCLUSION
Accordingly, we AFFIRM the order of the district court.
Notes
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.