WTA Tour, Inc. et al v. Super Slam Limited et al, No. 1:2018cv05601 - Document 37 (S.D.N.Y. 2018)

Court Description: OPINION AND ORDER: For the foregoing reasons, the Court hereby reconfirms its Order of October 1, 2018, as follows: (1) The petition to compel Respondents Super Slam Limited and Ion Tiriac to submit their claims to arbitration in New York is granted . (2) Respondents Super Slam Limited and Ion Tiriac are hereby enjoined from prosecuting, directing, or participating in the proceedings entitled Super Slam Limited and Ion Tiriac v. Women's Tennis Association and Steve Simon, Action No. 4422/20 17, now pending in the District Court of Nicosia in Cyprus, until the completion of the arbitration proceedings ordered herein. (3) Petitioners' motion for an anti-suit injunction is otherwise denied, with leave to Petitioners to renew the motio n with respect to the Spanish lawsuit following the completion of the limited discovery here approved. (4) Petitioners' motion for discovery from Respondents Super Slam Limited and Ion Tiriac, limited to the subject of Respondents' ownershi p or control of Madrid Trophy Promotion, is granted. 13 (5) Respondents' motion to dismiss is denied. The Clerk of the Court is directed to close documents number 4 and 20 on the docket of this case. (Signed by Judge Jed S. Rakoff on 10/17/2018) (jwh)

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WTA Tour, Inc. et al v. Super Slam Limited et al Doc. 37 USOCSDNY DOCUMENT ELBCTB.ONICALLY FILED DOC #: _ _-P-4......,-""'"'-"- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK r--------------------------WTA TOUR, INC., and STEVE SIMON, DATE FILED:......1...1.~J.J..&-~18-cv-5601 (JSR) Petitioners, OPINION AND ORDER -againstSUPER SLAM LIMITED and ION TIRIAC, I[ Respondents. __________________________ _ JED S. RAKOFF, U.S.D.J. Petitioner WTA Tour, profit membership international Incorporated ("WTA") corporation women's tennis that is a New York non- organizes tournaments. Its a circuit members of include female tennis players and the companies that own and operate the affiliated tournaments. CEO. Co-Petitioner Respondent Super Slam Limited Cypriot company Respondent and Ion T1r1ac, WTA a member. Steve Simon is the WTA' s ("Super Slam" or "SSL") Super Slam is owned by is a co- retired professional tennis player and businessman. Three lawsuits have been filed against the WTA (two of which also name Simon) that these respondents. in Cyprus, Romania, and Spain. Petitioners argue suits have Petitioners been brought further by, argue or that on behalf of, the suits are precluded by Super Slam's Membership Agreement with the WTA, which 1 Dockets.Justia.com includes an arbitration clause. Petitioners there fore ask that this Court (1) compel Respondents to arbitrate their claims against WTA and Simon, foreign and lawsuits. (2) enjoin Respondents Petitioners further from prosecuting the request limited discovery relating to the Spanish lawsuit that might support the motion for an anti-suit injunction. Respondents, in turn, move to dismiss the petition on the ground that the arbitration clause does not apply. After heard receiving oral full argument consideration, briefing from the parties, on the Court, September 1 7, on October 1, 2018. 2018, the Court Upon careful issued a "bottom- line" Order granting the petition to compel arbitration, denying the motion to dismiss the petition, granting Petitioners' for limited discovery re 1 at ing to the Spanish 1 awsui t, request granting the motion for an anti-suit injunction as to the Cyprus lawsuit, and denying the motion for an anti-suit injunction as to the Romanian and Spanish lawsuits, with leave to renew the motion as to the Spanish lawsuit upon completion of the ordered discovery. This Opinion sets forth the reasons for these rulings. I. Factual Background A. Super Sla~'s WTA Membership Agreement The underlying facts are largely undisputed. Petitioner WTA is a New York non-profit membership corporation that organizes a circuit of women's tennis tournaments in 30 countries. Pet. ECF No. 1. This circuit is known as the "WTA Tour." Pet. 2 ~ ~ 14, 14. Its members include professional tennis players and the owners of affiliated tournaments. Pet. ~ 2. Petitioner Steve Simon is WTA's CEO. Pet. ~ 11. Respondent Ion Tiriac is a retired Romanian tennis star and ~ current Monaco resident. Pet. 13. Petitioners allege that Tiriac is the owner of Respondent Super Slam Limited, a Cypriot company. Pet. ~~ 12-13. Although Respondents' Rule 7.1 Disclosure Statement (which is not formally part of this motion practice) alleges that Super Slam is wholly owned by Tiriac Holdings Limited, also a Cypriot company, which is in turn owned by the Puma Foundation, a Panamanian company, see ECF No. 16, Respondents concede in their papers that are part of this motion practice that Ion Tiriac is at least "one of Mem. Opp. Pet. the beneficial 2, ECF No. the Court's bottom-line fact the sole owner, owners" 21. But at Tiriac Holdings. Resp. (while not essential to any of rulings here) or of least it appears is estopped that from he is in claiming otherwise, because of the following history: On July 2, 2008, the WTA entered into a Membership Agreement with Evington Finance Corporation. Leader Deel. Exh. A, ECF No. 61. On June 23, that the 2010, membership Ion Tiriac sent a request to the WTA asking rights of Evington Finance Corporation be transferred to a Cypriot company "subject to the confirmation that [Tir1ac is] the owner" of both companies. Leader Deel. Exh. A. As part of that request, Tiriac "certif [ied] and covenant[ed]" to the 3 WTA that he was the "sole owner" of both Ev1ngton Finance and the Cypriot company. that "[w]e Leader Deel. shall Exh. A. continue to T1riac further represented comply with the terms of the aforementioned agreement." Leader Deel. Exh. A. The initially unnamed Cypriot company was later identified as Super Slam Limited. Specifically, on December 13, 2011, Super Slam sent a letter to the WTA "to confirm that Super Slam Limited is a company owned 100% by Mr. Ion Tiriac" and that it was "Mr. Tiriac's wish" that the membership be Dec 1. Exh. B, certificates at 3, ECF No. transferred to 6-2. 1 Super Slam. Leader The 1 et ter was accompanied by indicating that Super Slam's stock was held by two shareholders in trust for Tiriac. Leader Deel. Exh. B, at 4-6. That same day, a representative of WTA confirmed the transfer. Leader Deel. Exh. E, at 3, ECF No. 6-5. No transfer fee was required because the WTA understood this to be "a transfer in name only" and that "Ion remain[ed] the sole owner of the membership." Leader Deel. Exh. E, On at 3. January 13, 2012, the WTA entered into a Membership Agreement to transfer Evington's membership rights to Super Slam. Pet. Exh. 1, at 2, ECF No. 1-1. As part of the transfer, Slam agreed to assume all of Evington's rights, Super responsibilities, and obligations under the Membership Agreement. Pet. Exh. 1, at 2. : Citations to documents without internal pagination refer to the ECF page number headings. 4 In pa rt i cu 1 ar, Super Slam wou 1 d now have "the right to organize and stage a top level WTA Tournament in Madrid." Pet. Exh. 1 Super Slam would also be required to arbitrate any ~ 2. disputes "ar1s[ing] out of or relat[ing) to" the Agreement, as well as "any issues ~ 16. relating to [Super Slam's] WTA membership." Pet. Disputes would be governed by New York state law, arbitration would be conducted according to the Exh. and the Commercial Arbitration Rules of the American Arbitration Association. Exh. 1 ~ 1 Pet. 16. As a result of the WTA Membership Agreement, Super Slam now owns the Mutua Madrid Open, a WTA tournament in Madrid, Spain. The Open is a "combined event," meaning that there is both a women's and a men's tournament, the men's Association of Tennis Professionals. side being organized by the Pet. ~ 18. The Open is also one of only four "Premiere Mandatory events," meaning all players who qualify for it must participate. The Open is, in Respondents' words, Pet. ~ 18; Pet. Exh. 1 ~ 3. "one of the most prestigious annual tennis events," subordinate only to the Grand Slam events and the finals. Resp. Mem. Opp. Pet. 4-5. Super Slam, as a condition of its Membership Agreement, is required to pay equal prize money in both the men's and women's tournaments. Pet. Exh. 1 ~ 8(a). According to Respondents, Super Slam has assigned the right to manage the Madrid Open to Limpet Sports Management RV, a Dutch company, which has in turn contracted 5 with Madrid Trophy Promotion ( "MTP") , a Spanish company, to organize and promote the tournament. Resp. Mem. Opp. Pet. 5. B. llie Nastase is Disciplined by the WTA In April 2017, star Ilie Nastase, another former Romanian tennis (and not a party to this action), was serving as the "non- playing captain" of the Romanian team during the Federation Cup (or "Fed Cup") Inte~national event. Pet. ~ 20. The Fed Cup is organized by the Tennis Federation; it is not a WTA event. Pet. ~ 20. Nastase was ejected from the court for "unsportsmanlike conduct" after swearing at game officials and British players, and the ITF provisionally suspended him. Pet. ~ 20. According to Petitioners, Nastase had also made a series of inappropriate comments days leading up to the event. ~ Pet. 20. insults were directed at WTA members, in the Because several of his the WTA placed Nastase on its "No Credential List," meaning he could attend WTA events but could not participate or enter restricted areas. Pet. Th~ next month, May 2017, ~~ 20-21. the WTA learned that Nastase was going to present the trophy to the winner of the Mutua Madrid Open. Pet. ~ 22. Petitioner Simon sent an email cautioning the tournament director against allowing Nastase to participate, since he was on the No Credential List, and warning that sanctions would follow if the tournament went through with it. Pet. ~ 22. Nonetheless, Nastase was allowed to present the winner of the Open with a trophy during the on-court ceremony. Pet. 6 ~ 23. According to Respondents, the "Ion Tiriac Trophy" is named for and belongs to Tiriac, and is "one of the most expensive trophies ever made for sport." Resp. Mem. Opp. Pet. 7-8. Respondents also admit that Tiriac decides which guests attend the award ceremony and that it was his decision to have Nastase present the trophy. Resp. Mem. Opp. Pet. 8. Follow:ng the close of the tournament, petitioner Steve Simon released this statement on the WTA website and Twitter account: It was an exciting final match and I heartily congratulate Simona and Kristina for their outstanding display of tennis. The only shadow cast on the day was Mr. Nastase's invitation to participate in today's award ceremony. He had no place on court today. He is currently under a provisional suspension by the ITF for his prior offensive actions and we revoked his credential privileges at WTA events while the investigation is being completed. It was both irresponsible and unacceptable of the Madrid Open to bestow him an official role. The Madrid tournament is a Premier-level event and held to the highest standards of professional tennis and leadership which were not reflected today. Pet. 'Il 24. C. Foreign Lawsuits Are Filed Against the WTA Subsequently, Tiriac brought two lawsuits against the WTA and Simon alleging that the above-quoted statement was defamatory. The first was filed in Cyprus on October 27, 2017, by Tiriac and Super Slam. Resp. Mem. Opp. Pet. 9-10; Pet. Exh. 7, at 2, ECF No. 1-7. The second was brought by Tiriac and Nastase in Romania in January 2018. Resp. Mem. Opp. Pet. 9; Pet. Exh. 3, ECF No. 1-3. Petitioners were served in the Romanian action in February 2018, Cyprus action in April 2018. Pet. 'Il'Il 26, 29. 7 and in the Additionally, Madrid Trophy Promotion sued the WTA in Spain on September 24, 2017, alleging that the WTA had engaged in anticompetitive practices by forcing tournament owners to award equal prize money to male and female winners. Resp. Mem. Opp. 11. Petitioners lawsuit. Pet. <JI claim that 34. At Tiriac directed MTP least as of August 13, to 2018, Pet. file 10this Petitioners claimed not to have been served in the Spanish action. Tr. Aug. 13, 2018, at 5. D. The Instant Petition to Compel Arbitration Petitioners now seek to enforce the arbitration clause of the Membership Agreement. They ask this Court to compel Super Slam and Tiriac to submit to injunction against all arbitration. They also seek three foreign lawsuits. an Pet. anti-suit at 13. As a fallback alternative to arbitration, Petitioners ask this Court to compel Respondents to litigate their claims in New York, as Petitioners argue is required by the forum selection clause of the WTA By-Laws. Pet. Exh. 2 § 10.12(a), Respondents object that (c), ECF No. 1-2. 2 several parties to the foreign litigation - Tiriac, Nastase, and MTP - are not signatories to the Membership Agreement between WTA and Super Slam, nor, they argue, have Petitioners alleged any plausible theory by which a non- signatory could be bound by the arbitration agreement. Resp. Mem. The By-Laws are incorporated Agreement. Pet. Exh. 1 ~ 9. 2 by 8 reference into the Membership Opp. Pet. 12-17. While Respondents do not contest that Super Slam is bound by the Membership Agreement, they take the position that none of the claims at issue in the foreign lawsuits fall within the scope of the arbitration clause. Resp. Mem. Opp. Pet. 17-19. At the initial conference on August 13, 2018, Petitioners' counsel affirmed that no discovery was requested so far as either the Cypriot or Romanian actions were concerned. Tr. Aug. 13, 2018, at 10. Petitioners requested, however, limited discovery regarding the Spanish action, specifically relating to MTP's relationship to Super Slam envisioned and "10 Tiriac. or 12 Tr. Aug. items" of 13, 2018, document depositions, of Tiriac; of Gerard Tsobanian, Madrid Open; and of Christos Liasi, Tr. Aug. 13, 2018, at 11. at 10-11. discovery and II. three the director of the a signatory for Super Slam. Respondents asked that the motions be resolved before any discovery were ordered, Court agreed. Tr. Aug. Counsel instant and this 13, 2018, at 14-15. 3 The Petition to Compel Arbitration Petitioners seek to compel respondents Super Slam and Ion Tiriac to arbitrate their disputes with WTA and Simon. Respondents do not challenge that the Membership Agreement between Super Slam At the August 13, 2018 appearance, counsel for the parties informed the Court that the first hearing in the Romanian case was scheduled for September 21, 2018. Tr. Aug. 13, 2018, at 12. The parties have not advised the Court what, if any, developments occurred during that hearing. 3 9 and WTA is valid, including its arbitration clause. instead, the ( 1) that signatories, Membership Agreement including Tiriac, and (2) does that They argue, not the bind scope non- of the Membership Agreement does not encompass the claims raised by the foreign lawsuits. A. Legal Standard "[F]ederal policy strongly favors arbitration as an alternative dispute resolution process," and that policy is "even stronger in the context of international business transactions." David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd. 923 F.2d 245, 248 between (2d Cir. 1991) . 4 To that end, written agreements commercial irrevocable, and subject-matter parties to enforceable." jurisdiction arbitrate 9 U.S.C. pursuant deciding whether to compel arbitration, allegations is ass~med. Systems, 58 F. 3d 16, Inc., (London), to ~he "shall § 2. 9 U.S.C. be This valid, Court § 203. has 5 In truth of petitioners' Collins & Aikman Products Co. v. Building 19 (2d Cir. 1995). Additionally, "any doubts concerning the scope of arbitrable issues should be resolved 4 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations. Although Respondents have not asserted an absence of personal jurisdiction, the Court notes that an agreement to arbitrate disputes in New York constitutes consent to personal JUr1sd1ct1on in New York. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Lecopulos, 553 F.2d 842, 844 (2d Cir. 1977). Since the Court concludes that both Respondents are bound by the arbitration clause, as detailed herein, it follows that both are subJect to the jur1sdict1on of this Court. 10 in favor of arbitration." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., A court 460 U.S. faced 1, 24-25 with a (1983). petition to compel arbitration must decide two questions: Whether the parties agreed to arbitrate, and whether the claims fall agreement. Threlkeld, is that the issue within scope of the a rbi t ration 923 F.2d at 249. "[T]he general presumption of arbitrability courts." Alliance Berstein Inv. Schaffran, the 445 F.3d 121, 125 should be resolved Research and Management, by the Inc. v. (2d Cir. 2006). This presumption may be overcome by clear and unmistakable evidence that the parties intended to arbitrate issues of arbitrability. Republic of Ecuador v. Chevron Corp., 638 F.3d "[t]he more basic issue 384, of 393 (2d whether Cir. 2011) .6 However, the parties agreed to arbitrate in the first place is one only a court can answer, since in the absence of any arbitration agreement at all, arbitrability' given over to could an hardly have been clearly arbitrator." VRG Linhas MatlinPatterson Global 322, 325 n.2 Opportunities Partners 'questions of and unmistakably Aereas II L.P., S.A. 717 v. F.3d (2d Cir. 2013). Thus, "a court must begin by deciding Although Respondents contend that New York law governs this question, Resp. Mem. Opp. Pet. 12, in fact the question of whether the parties have agreed to arbitrate is one of federal substantive law. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). In any event, "New York follows the same rule" as the federal courts on this issue. Shaw Group Inc. v. Triplefine Intern. Corp., 322 F.3d llS, 121 (2d Cir. 2003). 6 11 whether the parties before it clearly and unmistakably committed to arbitrate questions regarding the scope of agreement." Id. at 326. B. their arbitration 7 The Parties Bound by the Arbitration Agreement Respondents have Membership Agreement never in challenged general, nor the of the validity of arbitration the clause specifically. Respondent Super Slam, a signatory.of the Membership Agreement, is Respondents however, plainly have that not Tiriac, bound by argued the arbitration otherwise. Nastase, and MTP clause, Respondents cannot be and contend, bound by the Agreement's arbitration clause because they are not signatories. Resp. Mem. Opp. As an 13-14. Pet. initial matter, seek to compel non-parties and argue that the Court parties to arbitrate. do so, however, Respondents the Court Petitioners cannot issue an order compelling non- It does not matter whether the Court could because - grant that Ilie Nastase and MTP to arbitration, contra Respondents - Petitioners have 13 (requesting only never asked the Court to do so. that insist See Pet. relief against 7 at Respondents); Pet' r's Reply The Second Circuit has held that, when a non-signatory to an arbitration agreement seeks to compel a signatory to arbitrate, the issue of whether the signatory is bound to arbitrate with the non-signatory may be committed to arbitration by the terms of the agreement. See, e.g., Republic of Ecuador, 638 F.3d at 394; Contee Corp. v. Remote Solution Co., Ltd., 398 F.3d 205, 209 (2d Cir. 2005). The same is not true when, as here, a signatory seeks to compel a non-signatory to arbitrate. Then the court must first assure itself that the non-signatory has agreed to arbitrate at all before referring to the arbitrator questions of scope. 12 Mem. Supp. Pet. 5, ECF No. 28 (repeating that "Petitioners are not seeking to compel MTP or Nastase to arbitrate"). The only remaining question, then, is whether Tiriac may be bound by the arbitration agreement, despite not signing it. Because arbitration is a creature of contract, typically only the parties to an arbitration agreement can be compelled to arbitrate. ThomsonCSF, S.A. 1995) v. Arbitration Ass'n, Am. This does not, however, 64 F.3d 773, 776 (2d Cir. exempt non-signatories entirely. The Second Circuit has recognized five theories, "aris[ing] out of common law principles of contract and agency law," by which a signatory to an arbitration agreement may compel a non-signatory to arbitrate: incorporation by reference; veil-piercing/alter-ego; and estoppel. assumption; agency; Id. Petitioners argue that Tiriac is bound to the present arbitration agreement by estoppel. 8 "A party is estopped from denying its obligation to arbitrate when it receives a 'direct benefit' from a contract containing an arbitration clause." Am. S.P.A., 170 F.3d 349, when it "flow[s] 353 Bureau of Shipping v. (2d Cir. Tencara Shipyard 1999). A benefit is "direct" directly from the agreement," while an indirect benefit is one that derives from the contractual relation between the parties rather than from the contract itself. 8 MAG Portfolio The general thrust of Petitioners' allegations could also be read to suggest an agency or alter-ego theory for compelling Tiriac to arbitrate, but Petitioners have never raised either ground, and in fact specifically disclaimed the agency theory in their reply papers. Pet' r's Reply Mem. Supp. Pet. 7. 13 Consultant, GMBH v. Merlin Biomed Group LLC, 268 F.3d 58, 61 (2d Cir. 2001). Put another way, "benefits are direct when specifically contemplated by the relevant parties; and benefits are indirect when the parties to the agreement with the arbitration clause would not have originally be n e f i t . " contemplated the non-signatory's Li f e Tech no log i es Co r p . v . AB Sci ex Pt e . eventual Ltd . , 803 F . Supp. 2d 270, 276 (S.D.N.Y. 2011). Respondents dispute whether Petitioners fairly presented an estoppel theory in their initial papers. Although Petitioners' initial papers could have been clearer in this respect, the Court finds that argued the that argument Tiriac was could adequately not "avoid presented. the Petitioners obligations in the Membership Agreement when he takes the direct benefits of the same agreement - including the reputational, operational, and financial benefits from Membership (emphasis owning Agreement." added). the Madrid Pet'r's This Mem. language sounds in estoppel. Moreover, Tournament of Supp. pursuant Pet. "direct 14, ECF benefits" to No. the 5 plainly immediately following this sentence were citations to two cases about compelling a non-signatory to arbitration via estoppel, followed by explanatory parentheticals highlighting the discussion of the estoppel theory. Pet'r's Mem. Supp. Pet. 14-15. While Petitioners would have been well served to include the word "estoppel" outside of parentheses in their opening memorandum, their failure to do so does not prevent 14 this Court from considering the argument, especially since Respondents were able to respond to it. See Resp. Reply Mem. Supp. Mot. Dismiss 35, ECF No. 31. Petitioners have proffered substantial evidence that Tiriac directly benefitted from the Membership Agreement.9 It was Tiriac himself who requested that from Evington represented Finance that he the membership rights be transferred Corporation owned identified as Super Slam, to a a company Cyprus which company, Tiriac eventually which Tiriac also represented that he owned. Leader Deel. Exh. A. In that same document, Tiriac promised that "[w]e shall continue to comply with the terms of the aforementioned agreement that granted the sanction or membership rights." Leader Deel. Exh. A. Super Slam has itself represented to the WTA that it is "100% owned by Mr. Exh. B, at 3. Ion Tiriac." Leader Deel. WTA understood the transfer to be "a transfer in name only" because "I on [Ti r iac] remains the so le owner of the membership," and it waived the transfer fee that would ordinarily apply on that basis. Leader Deel. Exh. E, at 3. Further still, T1riac has described himself to the press as the "owner" of the 9 Petitioners have attempted to supplement their proof that T1riac benefits from the Membership Agreement with dozens of exhibits attached to their reply papers, mostly printouts of online news articles describing Tiriac as the owner of the Madrid Open and reporting his annual income from the event. Although the Court has discretion to consider such exhibits, see Bayway Refining Co. v. Oxygenated Marketing and Trading A.G., 215 F.3d 219, 226 (2d Cir. 2000), the Court finds that such consideration is not necessary to resolve the issues here in dispi..:te. 15 Madrid tournament, claiming to make Leader Deel. tens Exh. of mill 1 ons C, of ECF No. Euros 6-3, in profit tournament each year, Leader Deel. Exh. D, ECF No. Respondents off er virtually as well as no from the 6-4. rebuttal beyond m1srepresent1ng Petitioners' argument as "merely contend[ing] that Tiriac is Dismiss the S owner of 100% (internal SSL." quotation Resp. marks Reply Mem. omitted). Supp. Mot. Respondents are correct that Tiriac's mere ownership of Super Slam would not bind Tiriac to Super Slam's arbitration agreements. But it is obvious that Tiriac directly benefits from the Membership Agreement, given that he requested the transfer of ownership from Evington to Super Slam; he, Super Slam, and WTA all understood Tiriac to be the real party in interest and the true owner of the Madrid Open; and Tiriac represented Respondents' himself to the press as owning the Open. Indeed, own presentation of the facts notes that the winner of the Madrid Open receives the "Ion Tiriac trophy," which is "one of the personal most expensive property tournament in a of trophies Tiriac," ceremony ever made "awarded where for to sport" the guests and winner of his of "the the choice participate." Resp. Mem. Opp. Pet. 7-8. Respondents also describe the Madrid Open as "one events." Resp. Mem. Opp. of Pet. the most prestigious annual tennis 4. Thus, even apart from any financial benefit, it is quite clear that Tiriac receives a direct reputational benefit from the fact l6 that his wholly-owned company runs a prestigious tennis tournament featuring Tiriac a lavish directly trophy named benefits from in his Super honor. Slam's In other words, ownership of the tournament, which is itself entirely the result of the Membership Agreement. See Tencara, 170 F.3d at 351-53 (holding that shipowners were bound by arbitration clause in contract between shipyard and American Bureau of Shipping, which inspected the boat; inspection directly benef itted shipowners because it entitled them to lower insurance rates and to sail Paul Davis Restoration, under the Inc., (holding that part owner of agreement with franchisor, contract allowed her to French flag); 771 F.3d 380, 384 Everett v. (7th Cir. 2014) franchisee was bound to arbitration despite not being a signatory, "trad[e] upon the name, as the goodwill, reputation and other direct contractual benefits of the franchise agreement"). Finally, there can be no doubt that the parties "specifically contemplated" Agreement. that Life Tiriac would Technologies enjoy Corp., 803 the F. benefits Supp. 2d of at the 276. Petitioners' exhibits amply show that Tiriac, Super Slam, and WTA all expected Tiriac to be the real owner of the Madrid Open. Thus, Tiriac is bound by the arbitration clause, as is Super Slam. C. The Claims Encompassed by the Arbitration Agreement Respondents argue that the foreign lawsuits - which, again, raise claims of defamation in Cyprus and Romania, 17 and a claim of anti-competitive practices in Spain out of the Membership Agreement. Petitioners contend that this do not relate to or arise Resp. is a Mem. question Opp. for Pet. 18-19. the arbitrator but, in the alternative, that the disputes are arbitrable. Pet' r's Mem. Supp. Pet. 11-12. Petitioners are correct that, under Second Circuit precedent, the arbitration clause commits questions about the scope of the clause to arbitration. As relevant here, the arbitration clause provides that "[i]f a dispute arises out of or relates to this Agreement or any issues relating to [Super Slam' s] controversy or claim WTA membership must arbitration in New York, be any unresolved submitted to and settled by New York before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association." Pet. Exh. 1 ~ 16. Those rules, in turn, provide that the arbitrator "shall have the power to rule on his or her own jurisdiction, including any obJeCtions with respect to the existence, scope, or validity of the arbitration agreement." American Arbitration Association, 7 (a). Petitioners correctly observe, As Commercial the Arbitration Rule Second Circuit has squarely held that adopting the AAA's Commercial Arbitration Rules constitutes clear and unmistakable evidence of the parties' intent to arbitrate Solution, VRG Co., Linhas issues Ltd., Aereas of arbitrability. 398 F.3d 205, S.A., 717 F.3d 18 208 at Contee (2d Cir. 326 Corp. v. 2005); (similar Remote see also holding for agreement adopting Arbitration); For of Shaw Group Inc. 322 F.3d 115, result here. rules 122 (2d Cir. ICC v. International Court of Triplefine International Corp., 2003) (same). That dictates the same 10 the foregoing reasons, Petitioners' mot ion to compel respondents Super Slam and Ion T1riac to arbitrate in New York is granted. Any remaining questions about the scope of arbitrability must be resolved by the arbitrator. III. The Motion for Anti-Suit Injunctions In addition to compelling Super Slam and Tiriac to arbitrate, Petitioners prosecuting Cyprus, ask or Romania, that this participating and Spain. Court in the enjoin foreign Respondents Respondents lawsuits argue that from filed in Petitioners have not made the showing necessary to warrant this extraordinary remedy. A. Legal_Standard To demonstrate entitlement to an anti-suit injunction, the moving party must first meet a "threshold" requirement of showing ic Petitioners also argue that the language in the arbitration clause "any issues" and "any unresolved controversy or claim" - is broad enough to require arbitration of arbitrability. See, e.g., Shaw Group, 322 F.3d at 121 ( 1 anguage of "al 1 disputes" was broad enough to commit issues of arb1trab1lity to arbitration); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir. 1996) (similar, for "[a]ny and all controversies"). Because the incorporation of the AAA's Commercial Arbitration Rules is suff1c1ent to require arbitration of this issue, the Court need not reach this alternative argument. 19 that (1) the resolution parties of dispositive of are the case the action the same before to in the be both enjoined. If the threshold factors are met, (1) (3) factors, 64 jurisdiction; issuing court would be court's Petrochemical (2d Cir. 2007). the court must next weigh litigation would: frustrate a policy in the enjoining forum; the (2) Ibeto "including whether the parallel threaten and enjoining Industries Ltd. v. M/T Beffen, 475 F.3d 56, five actions in rem (2) or be vexatious; quasi in rem (4) prejudice other equitable considerations; or (5) result in delay, inconvenience, expense, inconsistency, or a race to judgment." Keep on Kicking Music, Ltd. v. Hibbert, 268 F. Supp. 3d 585, 590 (S.D.N.Y. 2017). These are referred to as "China Trade factors." See China Trade and Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987). Finally, the moving party must ultimately meet the ordinary requirements for preliminary a injunction, showing: irreparable harm in the absence of the injunction; likelihood of success on the merits, and (3) that a either a or both serious questions going to the merits and a balance of hardships favor; (2) ( 1) preliminary injunction in the movant's is in the public interest. North American Soccer League, LLC v. United States Soccer Federation, Inc., international sparingly" 883 F. 3d 32, 37 (2d Cir. comity demand that anti-suit and "granted only with 20 care 2018). Principles of injunctions be "used and great restraint." Paramedics Electromedicina Comercial, Info. Tech., B. Inc., 369 F. 3d 645, 652 Ltda v. GE Medical Systems (2d Cir. 2004). Threshold Factors 1. Identity of Parties In the Cypriot litigation, the parties are identical to this case: Tiriac and Super Slam on one side, Simon and the WTA on the other. The Romanian action, however, is brought not only by Tiriac, but also by Nastase; the defendants are still Simon and the WTA. Respondents contend that this lack of identity between the parties is fatal. Petitioners argue that they only seek an injunction against Tiriac regarding the Romanian action, so the "identity of parties" factor is satisfied with respect to the injunction sought. Pet'r's Reply Mem. Supp. Pet. 19-20. Although the matter is not entirely free from doubt, the Court is persuaded that Respondents have the better argument. To qualify for an anti-suit injunction, the parties need not be exactly similar. identical; it is enough if they are substantially Paramedics Electromedicina, 369 F.3d at 652. Parties are substantially similar if the real parties in interest are the same in both cases, as when the additional parties are affiliates of the existing parties or are otherwise relief sought. Opportunity (S.D.N.Y. Id.; Equity 2006) Internat' 1 Partners Ltd., irrelevant Equity 441 to the actual Investments, F. Supp. 2d Inc. 552, v. 562 (parties are substantially similar where "their 21 interests are represented by one another"); Eastman Kodak Co. Asia Optical Co., Inc., 118 F. Supp. 3d 581, 587 (S.D.N.Y. v. 2015) (additional plaintiff in Chinese action did not defeat anti-suit in]unction where it was unclear what role that plaintiff played in Chinese proceedings and where that plaintiff did not request relief in the Chinese complaint). Here, however, Nastase is a separate plaintiff in the Romanian action, claiming defamation and harm to his reputation. His interests are neither represented nor vindicated by Tiriac. Petitioners suggest that this Court can simply enjoin Tiriac from proceeding in the Romanian litigation, leaving Nastase' s claims alone. In other words, Petitioners argues that the "action" for China Trade purposes is Tiriac's Romanian claims against WTA and Simon, not the Romanian lawsuit as a whole. The caselaw does not clearly resolve whether Petitioners are correct. On the one hand, in articulating the Circuit has consistently demanded that the standard, part~es the Second to the foreign suit be the same. See, e.g., Paramedics Electromedicina, 369 F.3d at 652 (stating that the parties to the "parallel litigation" must be the same). possibility of While carving this up does a not foreign explicitly action foreclose piece-by-piece the in assessing the suitability of an anti-suit injunction, the language of the rule suggests that the foreign action should be considered as a whole. 22 On the other hand, since Nastase and Tiriac have separate defamation claims that can proceed independently (and indeed could have been brought Ti r iac wi 11 not as separate prejudice lawsuits) , Nastase from an injunction proceeding in against Romania. Moreover, assuming arguendo that an anti-suit injunction would be warranted if Tiriac had brought a separate Romanian action, no obvious interest is served by permitting him to insulate himself from that remedy by joining his case to the claims of another plaintiff. This Court has found only a few decisions from courts in this Circuit addressing this precise issue. Unhelpfully, opposite direct ions. Luzuriaga, Compare 217 F. Supp. ICBC 3d 733, Standard 742 (S.D.N.Y. they point in Securities, 2016) Inc. v. (holding that additional defendant in foreign action precluded issuance of antisuit injunction), and Computer Associates Intern., Inc., 950 F. Supp. 48, 54 (E.D.N.Y. 1996) Inc. v. Altai, (holding that presence of additional plaintiff and defendant in French action precluded issuance of anti-suit States action), injunction even with Bank Leumi USA v. 2015 WL 12591663, at *4 (S.D.N.Y. against party Ehrlich, No. Sept. 23, 2015) to United 12-cv-4423, (holding that presence of additional defendant in foreign action did not preclude issuance of anti-suit injunction, where relief requested only applied to party who was present in both suits); cf. Sonera Holding B.V. v. Cukurova Holding A.S., 2013 WL 2050914, 23 at *2 (S.D.N.Y. 2013) (holding that second threshold factor was satisfied where resolution of the action "would be dispositive of that portion of the action" sought to be enjoined) While cautious course. the foregoing approach For cond~cted one authorities appears thing, (emphasis added). if to this the are Court China not to Trade be dispositive, the a appropriate ana 1 ys is could be piecemeal, there would be no need for the doctrine that "substantial similarity" between the parties suffices. The cases applying that doctrine could instead have been resolved on the ground that the party to be enjoined was present in both actions and that that party's claims were separable from those of the other parties in the foreign lawsuit. Moreover, the Court is mindful that anti-suit injunctions are to be "used sparingly" and "granted only with care and great restraint." Paramedics Electromedicina, 369 F. 3d at 652. Those principles suggest that, absent extraordinary circumstances, such inJunctions should ordinarily be limited to situations where foreign litigation entirely duplicates domestic litigation. However, not lie while this means that an anti-suit injunction will in the case of the Romanian action, a separate issue is presented by the Spanish action, which is by MTP against the WTA. Petitioners argue that the "same parties" factor is satisfied here because, they allege, Tiriac totally controls MTP. 24 It is suggesting true that that Petitioners Tiriac exercises have adduced substantial some control evidence over MTP. Moreover, the basis for the Spanish lawsuit - which heavily relies on the WTA Membership Agreement - suggests that either Super Slam or Tiriac, that or both, lawsuit. 11 may in fact Nonetheless, have a the full significant interest in nature of the relationship between Tiriac and MTP remains unclear, and Petitioners have not demonstrated that T1riac either caused the Spanish lawsuit to be filed or controls its prosecution. Accordingly, on the current record, the Court denies the anti-suit injunction with respect to the Spanish litigation, but without prejudice to the motion being renewed following the discovery granted below. 2. D1spositiveness of the Foreign Suits A ruling that certain claims are arbitrable is dispositive of any foreign Electromedicina, Membership suits 369 Agreement concerning F.3d 653. at commits all between the parties to arbitration. of the [foreign lawsuits]" to the litigation concerns issues that . claims. those As discussed disputes about Paramedics above, the arbitrability That determination "disposes extent that "the [foreign] are reserved to arbitration." Specifically, the Spanish lawsuit alleges that WTA abuses its dominant market position to force anti-competitive contracts onto members. Lee Deel. Exh. A, at 11-12, ECF No. 22-1. The complaint references specific terms of the Membership Agreement, including the compensation owed to WTA; the Agreement's non-compete clause; and WTA's alleged failure to 11 comply with the Agreement. Lee Deel. Exh. A, at 13-16. 25 Id . There fore , the i n s tan t suit is di s po s i t i v e of the c yp r i o t action. It is not, however, dispositive of the Romanian or Spanish actions, since those suits involve additional parties who might be entitled to independent relief. Thus, Petitioners have met their threshold burden for an antisuit inJunction with respect to the Cypriot action, but not with respect to the Romanian or Spanish actions. C. Additional China Trade Factors As listed above, the next five factors to consider are whether the foreign litigation enjoining forum; would (1) frustrate policy in the (2) be vexatious; (3) threaten the issuing court's in rem or quasi in rem jurisdiction; considerations; a or (5) result (4) prejudice other equitable in delay, inconvenience, expense, inconsistency, or a race to judgment. Here, litigating the foreign lawsuits would undoubtedly result in added expense and might incentivize a race to judgment. However, since added expense will almost always accompany parallel litigation, Trade, In Court's the Court does not weigh this China 837 F.2d at 36. Respondents' favor, in a jurisdiction conflict" the re from jurisdiction "[c]oncurrent result factor heavily. is two di re ct foreign the in no courts lawsuits, does and "par al le 1 proceedings tolerable." China Trade, 837 F.2d a.t 26 36. threat not are to this because necessarily ordinarily There is no indication that the foreign courts have sought to stay proceedings in this Court or otherwise limit this Court's authority. See id. at 37. Neither party has made a persuasive showing that equitable considerations favor their side. Respondents suggest Petitioners were tardy in filing this petition, Resp. Pet. of 24, but Petitioners vexatious behavior countries, Pet' r's neither of these by accuse filing Mem. Supp. arguments is Respondents multiple Pet. 23. lawsuits On sufficiently the that Mem. Opp. engaging in across several current record, developed to prove useful in the China Trade analysis. Rather, the most important factor is that the foreign lawsuits threaten to arbitration circumvent clauses, the which federal public "applies with pol icy of enforcing particular international disputes." Paramedics Electromedicina, force in 369 F.3d at 654; see also Ibeto Petrochemical, 475 F.3d at 65 (upholding antisu1t injunction in part because "the policy favoring arb1trat1on is a strong one in the federal courts"). When, as here, the parties agreed to arbitrate require them to do brought in New York, just that. it is eminently reasonable to Whether the foreign lawsuits were in order to evade the arbitration clause is immaterial; intentionally or not, the effect of those lawsuits is to frustrate the parties' contractual expectations. Finally, parties are comity does not weigh against a New York corporation 27 and the its injunction. CEO, a The Cypriot corporation, claims are and a Romanian national and resident of Monaco. subject to a provision requiring arbitration York according to New York law. The in New Cyprus does not have a stronger interest in hearing this dispute than a New York arbitral forum, nor is it better suited to resolving the threshold issues of arbi trabi l i "':::.y. D. Ordinary Factors for Granting an Injunction Additionally, however, Petitioners standard for a preliminary injunction, on the merits, showing that irreparable the injunction harm is must the ordinary i.e. likelihood of success absent in meet the the injunction, public interest. and a North American Soccer League, 883 F.3d at 37. As to relevant the first inquiry is prong, the Petitioners likelihood of are correct that the success on the merits of their argument that the claims must be submitted to arbitration not, as respondents claim, on the merits of the substantive foreign law claims. Pet' r's Reply Mem. Supp. Pet. 25 (citing Int'l Fashion Prod., B.V. v. at *2 Calvin Klein, [S.D.N.Y. March 7, Inc., No. 95-cv-982, 1995]); Resp. Mem. Opp. 1995 WL 92321, Pet. 24-25. For the reasons stated above, the Court has already concluded that the claims must be submitted to arbitration. Petitioners claim that the "specter of inconsistent rulings" constitutes irreparable harm. Keep on Kicking Music, 268 F. Supp. 3d at 591. The Court is not convinced by 28 this argument; every instance of concurrent litigation will raise at least the possibility of inconsistent rulings, yet China Trade is quite clear that anti-suit Nonetheless, forced to injunctions are to be unusual, not the norm. Petitioners will suffer irreparable harm if they are litigate rather than arbitrate this dispute. Even if they ultimately prevail in the foreign proceedings, they will have lost the very benefit of the arbitration clause, which was to avoid litigation. Finally, a preliminary injunction serves the public interest, as enforcing the arbitration clause supports the strong federal policy in favor of arbitration. See Paramedics Electromedicina, 369 F.3d at 654. Based on the foregoing, Petitioners' motion for an anti-suit injunction is granted as to the Cypriot action. Respondents are enjoined from prosecuting the Cypriot action until the arbitration is completed. that courts necessary). action, al so See Ibeto should avoid permanent The motion based on the denied with Petitioners Petrochemical, to is F.3d at anti-suit with to that discovery ordered herein. the respect Spanish application to action, upon 65 (holding injunctions unless lack of identity of parties. respect renew denied 475 the Romanian The motion is with completion leave of to the 12 :2 To the extent that Petitioners seek to enJoin Respondents from filing any new lawsuits in any forum apart from the three specified foreign 29 IV. Petitioners' Request for Limited Discovery At the limited August discovery Tiriac, 13, 2018 conference, Petitioners into the relationship between requested Super Slam, and MTP. The original petition includes little more than allegations that Tiriac controls MTP and caused it to file the Spanish lawsuit. However, those allegations are made somewhat more robust by exhibits attached to Petitioners' reply papers. It appears to the Court that all of the reply exhibits should have been available to Petitioners from the start, and Petitioners offer no explanation for their failure to include them with the original petition. Respondents object, exhibits being considered. n.1. However, somewhat Resp. half-heartedly, Reply Mem. Supp. Mot. to the Dismiss 1 since Respondents filed a sur-reply to Petitioners' reply, and since they do not claim surprise or request additional time to rebut the new exhibits, Respondents have not been prejudiced. Moreover, some of the exhibits seem genuinely material to the issue of whether Petitioners are entitled to any discovery. The Court therefore exercises its discretion to consider the reply exh1bi ts discussed herein. See Bayway Refining Co., 215 F. 3d at 226; Revise Clothing, Inc. v. Joe's Jeans Subsidiary, Inc., 687 F. Supp. 2d 381, 387 (S.D.N.Y. 2010). lawsuits, see Pet. at 13, that motion is denied. The Court does not perceive the need for a free-standing general injunction against further litigation at this time. 30 As relevant here, the reply exhibits include a news article describing Tiriac as the owner of MTP, Leader Reply Exh. H, at 5, ECF No. MTP, 30-8; another article describing him as the "manager" of Leader Reply Exh. L, at 12, ECF No. 30-12; correspondence from Gerard Tsobanian, Director General of MTP, describing himself as reporting to Tiriac, Leader Reply Exh. M, at 22-23, ECF No. 3013; and an article describing Tsobanian as Tiriac's "representative in Spain," Leader Reply Exh. N, at 5, ECF No. 3014. Petitioner Simon declares that in his conversations with Tiriac and Tsobanian, it has always been clear that Tiriac was in charge. Simon Reply Deel. ':ll 7. Finally, Simon also declares that Tiriac told him that he (Tiriac) had filed suit against the WTA in Madrid. Simon Reply Deel. ':ll 31. Given all this, Petitioners' suspicions about Tiriac's ownership or control of MTP are plausible. The Court therefore grants Petitioners' request for limited discovery on the subject of Tiriac's ownership or control of MTP. V. Respondents' Motion to Dismiss Finally, Respondents move to dismiss the petition for failure to state a claim upon which relief can be granted. Resp. Mem. Opp. Pet. 11-12. Because the Court has found that the petition not only states a claim for relief, but in fact demonstrates entitlement to relief, Respondents' motion to dismiss is denied. 31 VI. Conclusion and Orders For the foregoing reasons, the Court hereby reconfirms its Order of October 1, 2018, as follows: (1) The petition to compel Respondents Super Slam Limited and Ion Tir1ac to submit their claims to arbitration in New York is granted. (2) Respondents Super Slam Limited and Ion Tiriac are hereby enjoined from prosecuting, directing, or participating in the proceedings entitled Super Slam Limited and Ion Tiriac v. Women's Tennis Association pending in the and Steve District Court Simon, of Action Nicosia in No. now 4422/2017, Cyprus, until the completion of the arbitration proceedings ordered herein. (3) Petitioners' otherwise denied, motion for an anti-suit injunction is with leave to Petitioners to renew the motion with respect to the Spanish lawsuit following the completion of the limited discovery here approved. (4) Petitioners' motion for discovery from Respondents Super Slam Limited and Ion Tiriac, limited to the subject of Respondents' ownership or control of Madrid Trophy Promotion, is granted. 13 (5) Respondents' motion to dismiss is denied. The Clerk of the Court is directed to close documents number 4 and 20 on the docket of this case. By consc:-it order dated October 9, 20:8, the Court set a schedule for completion of this d:scovery. ECF ~o. 33. By order dated October :2, 2018, the Court denied Respondents' request for cross-discovery. ECF No. 36. ;3 32 SO ORDERED. Dated: New York, NY October !{_, 2018 JED S. RAKOFF, U.S.D.J. 33

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