Viking Global Equities, LP v Porsche Automobil Holding SE

Viking Global Equities, LP v Porsche Automobil Holding SE 2012 NY Slip Op 09166 Decided on December 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2012
Friedman, J.P., Acosta, Renwick, Richter, Román, JJ. 8895 &
650435/11 -5519 650678/11

[*1]Viking Global Equities, LP, et al., Plaintiffs-Respondents,

v

Porsche Automobil Holding SE, formerly known as Dr. Ing. H.C. F. Porsche AG, Defendant-Appellant. Glenhill Capital LP, et al., Plaintiffs-Respondents, Porsche Automobil Holding SE, formerly known as Dr. Ing. H.C. F. Porsche AG, Defendant-Appellant. The Federation of German Industries, German Issuers, The Association of German Banks, The Swiss Bankers Association, The European Banking Federation, Economiesuisse, Mouvement Des Entreprises De France, and German and American Law Professors, Amici Curiae.




Sullivan & Cromwell LLP, New York (Robert J. Giuffra, Jr. of
counsel), for appellant.
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Marc
L. Greenwald of counsel), and Dowd Bennett LLP, St. Louis,
MO (James F. Bennett of the bar of the State of Missouri,
admitted pro hac vice, of counsel), for Viking Global Equities, LP,
Viking Global Equities II LP, and VGE III Portfolio LTD.,
respondents.
Kleinberg, Kaplan, Wolff & Cohen, P.C., New York (David
Parker of counsel), and Bartlit Beck Herman Plaenchar & Scott
LLP, Chicago, IL (James B. Heaton, III of the bar of the State of
Illinois, admitted pro hac vice, of counsel), for Glenhill Capital
LP; Glenhill Capital Overseas Masters Fund LP; Glenhill
Concentrated Fund LP; Glenview Capital Partners, L.P.; Glenview
Institutional Partners, L.P.; Glenview Capital Master Fund, Ltd.;
GCM Little Arbor Partners, [*2]L.P.; GCM Little Arbor
Institutional Partners, L.P.; GCM Little Arbor Master Fund, Ltd.;
GCM Opportunity Fund, L.P.; Glenview Capital Opportunity
Fund, L.P.; Glenview Offshore Opportunity Master Fund, Ltd.;
Greenlight Capital, L.P.; Greenlight Capital Qualified, L.P.;
Greenlight Capital Offshore Partners; Greenlight Reinsurance,
Ltd.; Royal Capital Value Fund, LP; Royal Capital Value Fund
(QP), LP; RoyalCap Value Fund,
Ltd.; RoyalCap Value Fund II, Ltd.; Tiger Global, L.P.; Tiger
Global II, L.P.; and Tiger Global, Ltd., respondents.
Mayer Brown LLP, New York (Andrew J. Pincus of counsel),
The Federation of German Industries, German Issuers, The
Association of German Banks, The Swiss Bankers Association
and The European Banking Federation, Economiesuisse,
Mouvement Des Entreprises De France, for amici curiae.
Snell & Wilmer L.L.P., Costa Mesa, CA (Mary-Christine
Sungaila of the bar of the State of California, admitted pro hac
vice, of counsel), for German and American Law Professors,
amici curiae.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 8, 2012, which to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint on the ground of forum non conveniens, and denied its motions for summary judgment and to dismiss causes of action for failure to state a claim, unanimously reversed, on the law and the facts, with costs, the motion to dismiss on the ground of forum non conveniens granted. The Clerk is directed to enter judgment dismissing the complaint.

In these consolidated actions for fraud and unjust enrichment, plaintiff hedge funds allege that they sustained losses as a result of misrepresentations made by defendant relating to its intention to acquire shares in nonparty Volkswagen AG. Plaintiffs allege that they were fraudulently induced into making short sales in VW stock in reliance on defendant's public and private assurances that it had no present intention to acquire a 75% stake in VW, and that when defendant unveiled its takeover plan, it triggered a "short squeeze" that spiked prices and forced plaintiffs to cover their positions at losses of more than a billion dollars.

With respect to the motion to dismiss the action on the ground of forum non conveniens, the only alleged connections between the action and New York are the phone calls between plaintiffs in New York and a representative of defendant in Germany, and the emails sent to plaintiffs in New York but generally disseminated to parties elsewhere, which allegedly contained misrepresentations of defendant's intent to acquire a 75% stake in VW. We find that these connections failed to create a substantial nexus with New York, given that the events of the underlying transaction otherwise occurred entirely in a foreign jurisdiction (see Finance & Trading Ltd. v Rhodia S.A., 28 AD3d 346 [1st Dept 2006], lv denied 7 NY3d 706 [2006]). In light of this inadequate connection between the events of the transaction and New York, as well as the facts that defendant and most plaintiffs are not New York residents, the VW stock is traded only on foreign exchanges, many of the witnesses and documents are located in Germany, which has stated its interest in the underlying events and provides an adequate alternative forum, Porsche met its heavy burden to establish that New York was an inconvenient forum (see Kuwaiti Eng'g Group v Consortium of Intl. Consultants, LLC, 50 AD3d 599, 599-600 [1st Dept [*3]2008]).

In light of the foregoing, we need not address Porsche's alternative arguments.

M-5519 -Viking Global Equities, LP, et al. v
Porsche Automobil Holding SE, etc. Motion to file amici curiae brief granted.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 27, 2012

CLERK