MEMORANDUM DECISION
Before the Court is a motion to dismiss filed by Shield Securities Limited (“Shield”) in the above-captioned adversary proceeding brought by Lehman Brothers Special Financing Inc. (“LBSF”). Shield takes the position that this Court has neither in personam jurisdiction nor in rem jurisdiction to resolve this adversary proceeding as it relates to Shield. LBSF responds that Shield’s actions outside the United States had significant and foreseeable effects on LBSF in the United States and that such actions provide the requisite “minimum contacts” necessary to support in personam -jurisdiction. LBSF further argues that the Court may exercise jurisdiction over Shield, an investment holding vehicle affiliated with the Rothschild corporate family, because Shield is properly viewed as a “mere department” of one or more Rothschild entities over which this Court has jurisdiction. In the alternative, LBSF takes the position that this Court has in rem jurisdiction to resolve this adversary proceeding as it relates to Shield because this adversary proceeding concerns a dispute over property of the LBSF estate. For the reasons set forth below, the Court grants Shield’s motion to dismiss for lack of personal jurisdiction. The Court further holds that it has in rem jurisdiction over the property that is the subject of this adversary proceeding as it relates to Shield.
BACKGROUND
LBSF, a wholly-owned subsidiary of Lehman Brothers Inc. and an indirect subsidiary of Lehman Brothers Holdings Inc. (“LBHI”), initiated this adversary proceeding on September 14, 2010 against certain investment vehicles, trustees, and noteholders who had participated in certain transactions involving credit default swap agreements. In each of these transactions, LBSF (as the credit default swap counterparty) and the noteholder held competing interests in collateral securing an issuer’s obligations to LBSF under a credit default swap and a noteholder under a credit-linked synthetic portfolio note. The transaction documents for these transactions include provisions that govern the priority of payment from the liquidation of such collateral. Those so-called priority of payment provisions entitle the relevant noteholder or noteholders, under certain circumstances, to receive distributions from the liquidation of the collateral prior to LBSF. In each transaction subject to this adversary proceeding, LBSF alleges that the noteholders received such distributions. Among other reasons, LBSF brings this action to obtain a declaratory judgment that the so-called priority of payment provisions are unenforceable ipso facto clauses and to avoid distributions made to noteholders pursuant to those provisions.
As between LBSF and movant Shield, this adversary proceeding concerns the so-called Ruby Transaction, which culminated in an approximately $41 million distribution to Shield after the bankruptcy filings of LBHI and LBSF. LBSF now seeks to recover that distribution.
A. The Ruby Transaction
Lehman Brothers International (Europe) (“LBIE”) was the primary European
1. The Transaction
On January 18, 2007, the Ruby Transaction was executed.
Both the Swap and the Ruby Note provide for payments based on the performance of a portfolio of reference securities. Under the Ruby Note, Ruby Finance made payments to the noteholder if the portfolio performed as expected. Under the terms of the Swap, Ruby Finance made payments to LBSF if the reference securities did not perform as expected and LBSF made payments to Ruby Finance equaling those that Ruby Finance made to the noteholder.
2. The Collateral
Ruby Finance used the proceeds of the sale of the Ruby Note
S. The Governing Documents
The Ruby Transaction was governed by seven related documents (collectively, the “Transaction Documents”): (1) a base prospectus (the “Base Prospectus”) governing the terms of the Dante Program;
All of the relevant Transaction Documents include forum selection and choice of law clauses, which mandate that any dispute arising under the Ruby Transaction be heard in an English court and governed by English law.
The Transaction Documents also govern how and when the Ruby Transaction can be terminated. Under the Transaction Documents, the bankruptcy or insolvency
The payment priority waterfall at issue in the Transaction Documents is triggered upon a termination of the Swap.
B. The Sale to Shield
On June 30, 2008, NMR sold a portfolio of investments, including the Ruby Note, to Shield,
Apart from its investment in the Ruby Note, Shield has little, if any, connection to the United States. Shield is organized and headquartered in Guernsey.
C. Termination of the Swap Agreement and the Distribution
On September 15, 2008, LBHI commenced a case under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). LBSF did the same on October 3, 2008 (the “LBSF Petition Date”).
In October 2008, RBI, acting on behalf of Shield, executed and delivered two letters to the Trustee. First, it sent a letter providing an indemnity (the “Indemnity”) to the Trustee for any liability the Trustee might incur in connection with the Trustee’s compliance with any requests from Shield in relation to the Ruby Transaction.
Before the Trustee followed Shield’s direction to liquidate the Collateral and make a distribution to Shield, LBSF and Shield communicated. First, on April 20, 2009, Andrew Weber at LBIE sent an email message, on behalf of LBSF, to Leigh Enevoldson at Shield acknowledging the early termination and the application of Noteholder Priority, stating that LBSF would object neither to a liquidation of the Collateral nor to a distribution of the proceeds thereof; Mr. Weber’s email also reserved LBSF’s rights.
On the same day, the Trustee set the final wheels of the distribution (the “Distribution”) in motion and designated May 8, 2009 as the Early Redemption Date for the Ruby Note.
D. Procedural History
This adversary proceeding was commenced on September 14, 2010 [ECF No. 1]. LBSF filed an amended complaint (the “First Amended Complaint”) on October 1, 2010 [ECF No. 8]. Shield was served with the First Amended Complaint in accordance with Rule 7004 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) on March 7, 2011 [ECF No. 184], Shield does not dispute the propriety of service of process. On July 28, 2012, LBSF filed a second amended complaint [ECF No. 303], and on September 15, 2014, LBSF filed a third amended complaint [ECF No. 831].
Beginning on October 20, 2010, litigation in this action was stayed by a series of orders [Case No. 08-13555, ECF Nos. 12199, 17763, 24198, 29506, 33970, 34697, 38806, 42081]. On January 31, 2014, this Court entered a bridge order (the “Bridge
Shield submitted such a letter request on August 1, 2014, seeking to file a motion to dismiss for lack of personal jurisdiction [ECF No. 803]. LBSF filed a letter opposing Shield’s request [ECF No. 811]. On October 6, 2014, this Court granted Shield’s request and permitted limited jurisdictional discovery [ECF No. 837]. Shield filed its motion to dismiss on October 15, 2014 [ECF Nos. 845, 851] and declarations in support thereof [ECF Nos. 846, 847, 848, 849, 850]. Shield and LBSF agreed to briefing and discovery schedules on November 3, 2014 [ECF No. 876]. After completing jurisdictional discovery, LBSF filed its opposition to Shield’s motion to dismiss on March 6, 2015 [ECF No. 1057] and a declaration in support thereof [ECF No. 1058]. On March.27, 2015, Shield filed its reply [ECF No. 1065] and supplemental declarations ' in support thereof [ECF Nos. 1066,1067].
The parties scheduled oral argument for May 8, 2015. On May 7, 2015, LBSF filed a motion seeking leave to file a sur-reply, to which it attached its proposed sur-reply [ECF No. 1097]. In the early hours of the morning of May 8, Shield filed an opposition to LBSF’s motion for leave to file a sur-reply [ECF No. 1099]. The same day, the Court heard oral argument from both parties on whether to consider LBSF’s late-filed sur-reply and on whether to grant Shield’s motion to dismiss. After oral argument, the parties exchanged further letters to the Court [ECF Nos. 1107, 1114, 1122], which the Court has also reviewed and considered.
STANDARD OF REVIEW
Rule 12(b)(2) of the Federal Rules of Civil Procedure, incorporated into Rule 7012(b) of the Bankruptcy Rules, provides that a case may be dismissed for lack of personal jurisdiction. See Fed. R. Bankr.P. 7012(b). To survive a Rule 12(b)(2) motion, the plaintiff bears the burden to make a prima, facie showing that jurisdiction exists. See O’Neill v. Asat Trust Reg. (In re Terrorist Attacks on September 11, 2001),
DISCUSSION
Before addressing the merits of Shield’s motion to dismiss, the Court must address whether to grant LBSF’s motion for leave to file its sur-reply. “[Cjourts have broad discretion to consider arguments in a sur-reply, particularly when new arguments are put forth in a reply brief.” Grocery Haulers, Inc. v. C & S Wholesale Grocers, Inc., No. 11 Civ. 3130,
LBSF sets forth two arguments to convince Court to consider the arguments raised in its sur-reply. First, LBSF contends that Shield’s submission of the Declaration of Philip Yeates [ECF No. 1066] in connection with Shield’s reply included information beyond that which Shield provided prior to the close of jurisdictional discovery. Second, LBSF alleges that Shield did not produce certain requested information and materials during jurisdictional discovery that LBSF seeks to use in support of its arguments in favor of asserting jurisdiction and that LBSF includes in its sur-reply. Shield counters that LBSF’s motion for leave to file its sur-reply is untimely because LBSF’s six-week delay between receiving Shield’s reply and making its motion to file a sur-reply was too long.
While the Court appreciates LBSF counsel’s candor in explaining the delay,
Accordingly, LBSF’s motion for leave to file a sur-reply is denied. On the basis of Shield’s motion to dismiss, LBSF’s response, Shield’s reply, oral argument, and the parties’ letters to the Court, the Court will consider the parties’ in personam and in rem arguments in turn.
A. In Personam Jurisdiction
Rule 7004(d) of the Bankruptcy Rules permits nationwide service of process. , See Fed. R. Bankr.P. 7004(d). A bankruptcy court may exercise personal jurisdiction over a defendant served under Rule 7004(d) “[i]f the exercise of jurisdiction is consistent with the Constitution and the laws of the United States.” Fed. R. Bankr.P. 7004(f). Because valid service of process under Rule 7004(d) “is sufficient to establish personal jurisdiction, state long-arm statutes are inapplicable, and the only remaining inquiry for a bankruptcy court is whether exercising personal jurisdiction over the defendant would be consistent with the Due Process Clause of the Fifth Amendment.” Bickerton v. Bozel S.A. (In re Bozel S.A.),
1. Specific In Personam Jurisdiction
A court must consider two related inquiries to determine whether a defendant is subject to specific personal jurisdiction: whether the defendant has sufficient “minimum contacts” with the forúm state and whether the exercise of jurisdiction over that defendant would be reasonable. See Metro. Life,
Shield argues that it does not have minimum contacts with the United States and that, therefore, the exercise of jurisdiction over it would not comport with “traditional
LBSF submits that Shield’s limited contact with the United States is merely a product of its status as an investment holding vehicle.
a. The Doctrine of Specific In Personam Personal Jurisdiction
To establish specific in person-am jurisdiction, the defendant’s “suit-related conduct” must create the necessary connection to the forum state. Walden v. Fiore, — U.S. -,
Even if a court finds that the defendant has the requisite minimum contacts, it can refuse to exercise jurisdiction if the exercise of jurisdiction would not be reasonable. MTBE,
b. No Specific In Personam Jurisdiction over Shield
Shield relies on Walden v. Fiore, — U.S. -,
Walden concerned a Bivens action brought in Nevada against a DEA agent who detained two Nevada residents on their way through the Atlanta airport from San Juan. The Supreme Court refused to permit the exercise of jurisdiction over the DEA agent based on his “random, fortuitous, or attenuated contacts” with persons affiliated with the forum state. Walden, 134. S.Ct. at 1123 (quoting Burger King,
In Calder, the defendants’ contact with California, the forum state, was the act of publishing an allegedly libelous article about a California resident in a magazine with circulation in California. The Supreme Court found that the various contacts the defendants had with California, including the magazine’s circulation in that state and the defendants’ intentional and tortious conduct directed at the forum, supported a finding that the defendants “must ‘reasonably anticipate being haled into court [in California]’ to answer for the truth of the statements made in their article.” Calder,
LBSF contends that the foreseeability of the injury being felt in the forum state was critical to the holding in Calder. However, both Walden and Calder make clear that the minimum contacts analysis requires more. See Walden,
Here, LBSF alleges no facts to suggest that Shield’s connection to the forum state was more substantial than that of the DEA agent in Walden. LBSF’s allegations of Shield’s connection to the United States are limited to Shield’s knowledge that LBSF was domiciled in the United States and Shield’s ability to foresee that the harm caused by the Distribution would be felt in the United States. LBSF concedes that, at the time of the Distribution, Shield was organized and headquartered outside qf the United States; had no offices, employees, or property in the United States; was not registered to, and did not, conduct business in the United States; and did not advertise or otherwise solicit business in the United States.
Nor did Shield “purposefully avail” itself of the “benefits and protections of the [United States’] laws.” Burger King,
LBSF argues emphatically that Shield knew that the Distribution would later be challenged by LBSF and thus could foresee being haled into court in the United States. LBSF points to the Indemnity and LBSF’s reservation of rights letter to show that Shield knew it would be subject to suit here. Shield responds- that it had no idea that the Distribution would be the subject of future dispute because Andrew Weber’s email stated that “LBSF [did] not object” to the Distribution. In spite of the parties’ repeated emphasis on these facts, Shield’s May 2009 belief as to the likeli
LBSF also argues that minimum contacts are met here because this case involves actions that allegedly violated the automatic stay. LBSF alleges that “the funds paid to Shield were still encumbered by LBSF’s senior security interest, which constituted property of the estate, over which Shield exercised possession and control in violation of [the automatic stay].”
Moreover, LBSF’s automatic stay arguments assume its desired conclusion of this adversary proceeding: that Noteholder Priority is an ipso facto clause and invok
Finally, LBSF argues that the Court need not even engage in the minimum contacts inquiry because Shield is subject to the Court’s jurisdiction under the New York long-arm statute, N.Y. C.P.L.R. § 302, and because the long-arm statute “does not reach as far as the Constitution permits, due process will be satisfied if the New York long-arm statute is satisfied.” Picard v. Chais (In re BLMIS),
The parties veer off-course with these arguments. Shield’s citations to Ehrenfeld and Marvel are highly instructive as to the reach of the New York long-arm statute, but they are instructive only as to the reach of the New York long-arm statute, not as to the requirements of constitutional due process. New York courts are “guided ... by U.S. Supreme Court opinions delineating proper bases for personal jurisdiction under the Federal Due Process Clause,” Ehrenfeld,
Moreover, even if the long-arm statute applied, the Court’s jurisdiction over Shield would depend both on whether Shield’s contacts with the United States satisfied the constitutional standard and on whether those contacts satisfied the New York long-arm statute. See, e.g., J.L.B. Equities, Inc. v. Ocwen Financial Corp.,
Having engaged in the required minimum contacts analysis, it is clear that Shield’s contacts with the United States are too limited to support the assertion of in personam jurisdiction over Shield, and none of LBSF’s arguments to the contrary convinces this Court otherwise. As this Court finds that Shield does not have the requisite minimum contacts with the United States, the Court need not reach the analysis of whether the exercise of in per-sonam jurisdiction would be reasonable. See Amaranth,
LBSF argues that even if the Court cannot find in personam jurisdiction over Shield qua Shield, Shield’s relationship with the Rothschild corporate family is sufficient to establish the Court’s jurisdiction under the theory that Shield is a “mere department” of Rothschild.
a. The “Mere Department” Doctrine
A court may exercise jurisdiction over a defendant not otherwise subject to the court’s jurisdiction where the defendant is a “mere department” of an entity over which the court has personal jurisdiction. See GEM Advisors, Inc. v. Corporacion Sidenor, S.A.,
(1) Whether there exists common ownership and the presence of an interlocking directorate and executive staff,
(2) The degree of financial dependency of the subsidiary on the parent,
(3) The degree to which the parent interferes in the selection and assignment of the subsidiary’s executive personnel and fails to observe corporate formalities, and
(4) The degree of the parent’s control of the subsidiary’s marketing and operational policies.
Id.; see also GEM,
b. No Derivative Jurisdiction over Shield
Even before engaging in an analysis of the Beech factors, the Court concludes that LBSF’s derivative jurisdiction theory fails because LBSF has not established that this Court has jurisdiction over any of the relevant Rothschild entities - NMR, RBI, or Paris Orleans SCA. The only facts alleged to support jurisdiction over the Rothschild entities are the presence of some offices in the United States and generalized allegations that “Rothschild ... derive[s] substantial revenue from international commerce.”
Moreover, LBSF’s argument does not specify the Rothschild entity of which Shield should be deemed a mere department. The mere invocation of “Rothschild” does not suffice to support LBSF’s alleged derivative basis for jurisdiction. Indeed, Rothschild’s use of a common trade name or references to itself as a collective entity “cannot create a single entity structure given the sophistication and complexity of today’s corporate world.” Aerotel, Ltd. v. Sprint Corp.,
Even if this Court could assert jurisdiction over Rothschild (or any entity thereof), Shield’s relationship to Rothschild does not satisfy any of the Beech factors but the first. The first Beech factor — common ownership — is easily met. Shield’s parent, Shield Holdings, its indirect parent, Rothschild Continuation Holdings, and its affiliates RBI and NMR are all commonly owned by Paris Orleans SCA.
The second Beech factor — financial dependency — is not met. This factor is satisfied only if the subsidiary “cannot run its business without the financial backing of its parent.” In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000,
The third Beech factor — failure to observe corporate formalities — is clearly not met. In support of this factor, LBSF points to the facts that Shield has no employees and that its location “across the road” from Rothschild’s corporate finance business meant that mail would “tend to find its way back” to Shield.
LBSF also fails to make a prima facie case for the fourth Beech factor — control over marketing and operational policies. The only evidence presented by LBSF is that Shield’s directors are all employees of RBI. Since Shield itself has no employees, all of its policies, LBSF argues, must be determined by Rothschild employees. These conelusory arguments cannot support a finding that this factor has been satisfied.
3. No In Personam Jurisdiction over Shield
For all of the foregoing reasons, the Court finds that there is no basis for the exercise of personal jurisdiction over Shield and grants Shield’s motion to dismiss as to in personam jurisdiction.
B. In Rem Jurisdiction
Echoing its automatic stay arguments, LBSF also argues that this Court has in rem jurisdiction to resolve this dispute because “LBSF’s senior security interest in the [Collateral], and its priority right to payment” are property of the LBSF estate.
1. The Doctrine of In Rem Jurisdiction
The court in which a bankruptcy proceeding is pending has “exclusive jurisdiction of all the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate.” 28 U.S.C. § 1334(e) (emphasis supplied); see also Sinatra v. Gucci (In re Gucci),
Despite the bankruptcy court’s broad reach to assert jurisdiction over foreign property, the bankruptcy court’s in rem jurisdiction cannot be enforced extra-territorially without in personam jurisdiction over the defendant. See Found. for Research v. Globo Communicacoes e Participares S.A. (In re Globo Comunicacoes e Partipacoes S.A.),
2. In Rem Jurisdiction Exists
This Court has in rem jurisdiction to resolve this adversary proceeding as it relates to Shield because, as of the LBSF Petition Date, LBSF had an undisputed security interest in the Collateral and a property interest in the Transaction Documents. Although neither party relies on Judge Peck’s opinion in Lehman Bros. Special Financing Inc. v. BNY Corporate Trustee Services Ltd. (“BNY’), Judge Peck’s findings with respect to LBSF’s property interests in that adversary proceeding are directly on point here. In BNY, Judge Peck found that, as of the LBSF Petition Date, LBSF had “a valuable property interest” in the transaction documents at issue in that proceeding and that such transaction documents were property of the estate under section 541(a) of the Bankruptcy Code. BNY,
The circumstances in BNY are virtually identical to those here, including the timing of the termination, the reason for termination, the identity of the trustee, and the provisions of the transaction documents. The transaction documents at issue in BNY, just like those at issue here, were part of LBIE’s Dante Program. In
Consistent with BNY, the Court finds that the Transaction Documents and LBSF’s security interest in the Collateral were property of the estate as of the LBSF Petition Date and are subject to this Court’s in rem jurisdiction. Shield’s arguments against the exercise of in rem jurisdiction are inapposite — -the property at issue is indeed property of the estate, that property need not be physically situated in the United States, and Shield need not have minimum contacts with the United States for this Court to exercise in rem jurisdiction over the property at issue. Accordingly, because LBSF had a property interest in the Transaction Documents and the Collateral as of the commencement of the LBSF case, this Court can and shall exercise its in rem jurisdiction over that property in LBSF’s dispute with Shield.
CONCLUSION
For all of the foregoing reasons, Shield’s motion to dismiss for lack of personal jurisdiction is granted. Notwithstanding the Court’s lack of personal jurisdiction over Shield, the Court has in rem jurisdiction and concomitant adjudicatory authority over the property at issue in this dispute and shall exercise such jurisdiction. The parties are directed to settle an order consistent with this decision.
Notes
. Documents Concerning U.K. Admin, of Lehman Bros. Int'l (Europe), Feb. 11, 2009, Case No. 08-13555, ECF No. 2819, Ex. A (Order Appointing Joint Administrators).
. Declaration of Peter Jaffe in Support of Shield Securities Limited's Motion to Dismiss for Lack of Personal Jurisdiction, Oct. 15, 2014, ECF No. 848 (hereinafter, the "Jaffe Decl.”), Ex. A (Base Prospectus).
. Id.
. Declaration of Leigh Enevoldson in Support of Shield Securities Limited's Motion to Dismiss, Oct. 15, 2014, ECF No. 846 (hereinafter, the "Enevoldson Decl.”) ¶ 2.
. Jaffe Decl. Ex. C (Series Prospectus); Ene-voldson Decl. ¶ 5.
. Jaffe Decl. Ex. C (Series Prospectus), at 1.
. Enevoldson Decl. ¶¶ 8-9.
. Jaffe Decl. Ex. D (Principal Trust Deed).
. Id. at 6 § 5.2; Jaffe Decl. Ex. B (Supplemental Trust Deed), at 9-10 § 8.1.
. Jaffe Decl. Ex. O (LBHI Guarantee); Jaffe Decl. Ex. B (Supplemental Trust Deed), at 24.
. Declaration of William F. Dahill in Opposition to Shield Securities Limited’s Motion to Dismiss, Mar. 6, 2015, ECF No. 1058 (hereinafter, the “Dahill Decl.”), Ex. L (Portfolio Management Agreement); Jaffe Decl. Ex. G (Asset Purchase Agreement).
. Jaffe Decl. Ex. C (Series Prospectus), at 21 § 39(v); Enevoldson Decl. ¶ 10.
. Enevoldson Decl. ¶ 10.
. Jaffe Decl. Ex. C (Series Prospectus), at 97.
. Jaffe Decl. Ex. B (Supplemental Trust Deed), at 3.
. Id. at 2, 4.
. Jaffe Decl. Ex. D (Principal Trust Deed), at 6 § 5.1; Jaffe Decl. Ex. B (Supplemental Trust Deed), at §§ 5.1, 5.3.
. Jaffe Decl. Ex. D (Principal Trust Deed), at 6 § 5.2.
. Id. at 7 § 5.5.
. Id. at 9-11 § 6.
. Jaffe Decl. Ex. A (Base Prospectus).
. Jaffe Decl. Ex. D (Principal Trust Deed).
. Jaffe Decl. Ex. E (Deed of Accession).
. Jaffe Decl. Ex. B (Supplemental Trust Deed).
. Jaffe Decl. Ex. C (Series Prospectus).
. Jaffe Decl. Ex. H (ISDA Master Agreement). See also Jaffe Decl. Ex. B (Supplemental Trust Deed), at 21 § 39(v).
. Jaffe Decl. Ex. F (Swap Confirmation). See also Jaffe Decl. Ex. B (Supplemental Trust Deed), at 21 § 39(v).
. Jaffe Decl. Ex. A (Base Prospectus), at 51-52 ¶ 16; Jaffe Decl. Ex. B (Supplemental Trust Deed), at 15 ¶¶ 15.1- 15.2; Jaffe Decl. Ex. C (Series Prospectus), at 3.
. Jaffe Decl. Ex. C (Series Prospectus), at 30 § 49.
. See Jaffe Decl. Ex. H (ISDA Master Agreement), at § 5(a)(vii).
. Id. at § 6(a).
. Jaffe Decl. Ex. D (Principal Trust Deed), at 81, Condition 6(d)(ii).
. Id. at 7-11 §§ 5.5, 5.6, 6.2:
. Jaffe Decl. Ex. B (Supplemental Trust Deed), at 7 § 5.5.
. Id.
. Jaffe Decl. Ex. D (Principal Trust Deed), at 11 § 6.2(iii); Jaffe Decl. Ex. B (Supplemental Trust Deed), at § 5.5.
. Jaffe Decl. Ex. C (Series Prospectus), at 28 § 43; Jaffe Decl. Ex. D (Principal Trust Deed), at 81, Condition 6(d)(ii).
. Enevoldson Decl. ¶ 11; Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.), at 8:7-10.
. Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.)> at 8:7-25; Jaffe Decl. Ex. K (Certificate of Registration).
. Jaffe Decl. Ex. G (Asset Purchase Agreement).
. Dahill Decl. Ex. O, at Response to Interrogatory No. 3.
. Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.), at 13:14-22.
. Dahill Decl. Ex. B (Termination Letter).
. Dahill Decl. Ex. M (Project Union), at SL_0001160.
. Id.
. Declaration of Philip Yeates in Further Support of Shield Securities Limited's Motion to Dismiss, Mar. 27, 2015, ECF No. 1066 (hereinafter, the "Yeates Decl.”) ¶ 5.
. Declaration of David Gordon Oxburgh in Support of Shield Securities Limited's Motion to Dismiss, Oct. 15, 2014, ECF No. 847 (hereinafter, the "Oxburgh Decl.”) ¶¶ 2-3; Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.), at 8:7-10.
. Oxburgh Decl. ¶¶ 4-6.
. Id. at ¶ 8.
. Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.), at 8:7-10.
. Id. at 9:22-23.
. Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.), at 8:18-25.
. Id. at 76:22-77:4.
. Between October 14 and 29, 2009, three members of the Rothschild corporate family, including RBI and NMR, filed proofs of claim against LBHI. See Declaration of William F. Dahill Supplementing the Record for LBSF's Opposition to Shield Securities Limited’s Motion to Dismiss for Lack of Personal Jurisdiction, May 6, 2015, ECF No. 1096 (hereinafter, the "Dahill Supp. Decl.”), Exs. C, D, E.
. Jaffe Decl. Ex. H (ISDA Master Agreement), at § 5(a)(vii).
. Id. at § 6(a).
. Dahill Decl. Ex. A (Trustee Indemnification Letter).
. Dahill Deck.Ex. E (Jan. 16, 2015 Yeates Dep.), at 23:24.
. Dahill Decl. Ex. B (Termination Letter).
. Jaffe Decl. Ex. I (Designation of Early Termination Date).
. Declaration of Shannon M. Leitner in Further Support of Shield Securities Limited’s Motion to Dismiss for Lack of Personal Jurisdiction, Mar. 27, 2015, ECF No. 1067 (hereinafter, the "Leitner Decl.”), Ex. A.
. Dahill Dec. Ex. N (Letter).
. LBSF’s Memorandum of Law in Opposition to Shield Securities Limited’s Motion to Dismiss for Lack of Personal Jurisdiction, Mar. 6, 2015, ECF No. 1057 (hereinafter, the "LBSF Opp.”) ¶ 20.
. Jaffe Decl. Ex. J (Default Notice), at LBHI_SPV_0023859.
. Dahill Decl. Ex. A (Trustee Indemnification Letter), at ¶ 3.2.
. Dahill Decl. Ex. C (Indemnity).
. Id.
. Id. at § 6(a)(iii).
. Dahill Decl. Ex. O, at Response to Interrogatory Nos. 1 and 2.
. See Tr. of Oral Argument at 5:24-6:3, ECF No. 1100 (hereinafter, the "H’rgTr.”).
. H’rgTr. 57:11-13
. LBSF does not argue that the Court has general jurisdiction over Shield, see H'rg Tr. 37:2-15, so the Court will not address the question.
.H’rgTr. 36:1-7.
. See Oxburgh Deck ¶¶ 4-8. See Amaranth,
. See Jaffe Decl. Ex. H (ISDA Master Agreement), at § 5(a)(vii) (Event of Default occurs upon instituting "a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights.”).
. Enevoldson Deck ¶ 8.
. LBSF also urges reliance on Amoco Chemical Co. v. Tex. Tin. Corp.,
. LBSF Opp. V 5.
. Memorandum of. Law in Further Support of Shield Securities Limited's Motion to Dismiss for Lack of Personal Jurisdiction, Mar. 27, 2015, ECF No. 1065 (hereinafter, the "Shield Reply”), at 9.
. See H'rg Tr. at 22:2-22.
. For ease of discussion and for purposes of faithfully describing LBSF's argument, the Rothschild corporate family will be referred to in this section simply as "Rothschild.”
. LBSF Opp. at ¶¶ 12-13, 41.
.Although not considered by the Court, see supra at pp. 618-19, the arguments in LBSF’s unauthorized sur-reply are also unconvincing as to the Court's personal jurisdiction over any Rothschild entity. LBSF argues that because NMR and RBI filed proofs of claim in the LBHI bankruptcy case, Rothschild should be deemed to have submitted to the personal jurisdiction of this Court for the purposes of this adversary proceeding. See Glinka v. Abraham & Rose Co. Ltd..,
. See H’rgTr. 37:2-15.
. Mr. Yeates, the co-head of Debt Fund Management at NMR, asserts that "Shield did not get a discount on the interest rate that RBI
. Dahill Decl. Ex. E (Jan. 16, 2015 Yeates Dep.), at 76:22-77:4.
. LBSF Opp. ¶¶ 51-56.
. The Supreme Court of the United Kingdom came to a similar conclusion in the so-called Perpetual Litigation. Although that court held that Noteholder Priority did not violate the "anti-deprivation principle” under English law, it nonetheless recognized that, as of the LBSF Petition Date, LBSF had an interest in the collateral securing the swap agreement at issue in that proceeding. See Belmont Park Invs. PTY Ltd. v. BNY Corp. Tr. Servs. Ltd., [2011] UKSC 38[53],
. Jane Decl. Ex. D (Principal Trust Deed), at 6 § 5.1; Jaffe Decl. Ex. B (Supplemental Trust Deed), at §§ 5.1, 5.3.