FILED: NEW YORK COUNTY CLERK 11/18/ :52 PM INDEX NO /2016 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/18/2016

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1 FILED: NEW YORK COUNTY CLERK 11/18/ :52 PM INDEX NO /2016 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/18/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CARESTREAM HEALTH (NEAR EAST) LTD., Index No.: /2016 vs. Plaintiff, Motion Seq. No. 001 LINDUSTRY (OFFSHORE) S.A.L., Defendant. PLAINTIFF CARESTREAM HEALTH (NEAR EAST) LTD. S MEMORANDUM OF LAW IN SUPPORT OF AN ORDER TO SHOW CAUSE FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION THOMPSON HINE LLP Russell Rogers (pro hac forthcoming) Rebecca Brazzano 335 Madison Ave. 12th Floor New York, NY (212) Telephone (212) Facsimile Russell.Rogers@ThompsonHine.com Rebecca.Brazzano@ThompsonHine.com Counsel for Carestream Health (Near East) Ltd. 1 of 23

2 TABLE OF CONTENTS PAGE I. INTRODUCTION... 1 II. FACTUAL BACKGROUND... 2 A. The Business Relationship Between Carestream and Lindustry B. The Dispute Between Carestream NE and Lindustry and Lindustry s Lebanese Lawsuit C. Procedural History of the Lebanese Lawsuit... 6 III. ARGUMENT... 8 A. Carestream NE will suffer irreparable harm absent a preliminary injunction B. Carestream NE is likely to prevail on the merits C. The balance of hardships favors Carestream NE IV. CONCLUSION i 2 of 23

3 TABLE OF AUTHORITIES Page(s) Cases 1234 Broadway LLC v. West Side SRO Law Project, 86 A.D.3d 18, 23-24, 924 N.Y.S.2d 35, (1st Dep t 2011)...13 A. S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 165 N.Y.S.2d 475 (1957)...14 Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986)...15 Alexander & Alexander Servs. v. These Certain Underwriters at Lloyd's, 136 F.3d 82 (2d Cir. 1998)...13 Babcock v. Wilcox Co. v. Control Components, Inc., 161 Misc. 2d 636, 614 N.Y.S.2d 678 (Sup. Ct. N.Y. Cnty. 1993)...10, 17 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)...11 Eades v. Kennedy, PC Law Offices, 799 F.3d 161 (2d Cir. 2015)...15 Egan v. New York Care Plus Ins. Co., 266 A.D.2d 600, 697 N.Y.S.2d 776 (3d Dep t 1999)...13 GE Oil & Gas, Inc. v. Turbine Generation Servs., LLC, 51 Misc. 3d 1226(A), 2016 N.Y. Misc. LEXIS 1935 (Sup. Ct. N.Y. Cnty. May 27, 2016)...9 Greenfield v. Philles Records, 98 N.Y.2d 562, 750 N.Y.S.2d 565 (2002)...14 Idosuez Int l Fin., B.V. v. Nat l Reserve Bank, 304 A.D.2d 429, 758 N.Y.S.2d 308 (1st Dep t 2003)...9, 10 International Fashion Prods. v. Calvin Klein, Inc., No. 95 Civ (JFK), 1995 U.S. Dist. LEXIS 2598 (S.D.N.Y. Mar. 6, 1995)...11 IRB-Brasil Resseguros, S.A. v. Inepar Invs., S.A., 20 N.Y.3d 310, 958 N.Y.S.2d 689 (2012)...9 K. Bell & Assoc., Inc. v. Lloyd's Underwriters, 97 F.3d 632 (2d Cir. 1996)...13 ii 3 of 23

4 Keiler v. Harlequin Enters., Ltd., 751 F.3d 64 (2d Cir. 2014)...13 Law Debenture Trust Co. v. Maverick Tube Corp., 595 F.3d 458 (2d Cir. 2010)...13 Leng v. Pinnacle Performance Ltd., 474 F. App x 810 (2d Cir. 2012)...10 Madden Int l, Ltd. v. Lew Footwear Holdings Pty Ltd., 50 Misc. 3d 1201(A), 2016 N.Y. Misc. LEXIS 160 (Sup. Ct. N.Y. Cnty. Jan. 15, 2016)...10, 11, 12, 17 McPhee v. GE Int'l, Inc., 426 F. App x 33 (2d Cir. 2011)...13 Metropolitan Life Ins. Co. v. Noble Lowndes Int'l, 84 N.Y.2d 430, 618 N.Y.S.2d 882 (1994)...14 Micro Balanced Prods. Corp. v. Hlavin Indus. Ltd., 238 A.D.2d 284, 667 N.Y.S.2d 1 (1st Dep t 1997)...13 Moy v. Umeki, 10 A.D.3d 604, 781 N.Y.S.2d 684 (2d Dep t 2004)...13 My Play City, Inc. v. Conduit Ltd., 589 F. App x 559 (2d Cir. 2014)...14 Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 800 N.Y.S.2d 48 (2005)...10 Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., No. 02 Civ (DFE), 2003 U.S. Dist. LEXIS (S.D.N.Y. June 4, 2003), aff d in rel. part, 369 F.3d 645 (2d Cir. 2004)...10 Personal Sportswear v. Silverstein, 91 A.D.2d 507, 456 N.Y.S.2d 372 (1st Dep t 1982)...10 Red Apple Child Dev. Ctr. v. Cmty. Sch. Dists. Two, 303 A.D.2d 156, 756 N.Y.S.2d 527 (1st Dep't 2003)...14 Reuters Ltd. v. United Press Int l, Inc., 903 F.2d 904 (2d Cir. 1990)...10 Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 N.Y.3d 624, 825 N.Y.S.2d 692 (2006)...13, 14 iii 4 of 23

5 Statutes New York General Obligations Law Rules New York Civil Practice Law and Rules 327(b)...9, (b) (a) (b) et seq iv 5 of 23

6 Plaintiff Carestream Health (Near East) Ltd. ( Carestream NE ) respectfully files this Memorandum of Law in Support of its Order to Show Cause for a Temporary Restraining Order and Preliminary Injunction (the Motion ) pursuant to Section 6300 et seq. of the New York Civil Practice Law and Rules ("CPLR"), temporary restraining order and preliminarily enjoining Lindustry (Offshore) S.A.L. ( Lindustry ), its subsidiaries and affiliates, agents, and any persons working on their behalf or in concert with them, from initiating or continuing to prosecute any lawsuit against Carestream NE in any court outside the State of New York, including the lawsuit initiated by Lindustry and currently pending in the courts of Lebanon, styled Lindustry (Offshore) S.A.L. v. Kodak (Near East), Inc. and Carestream Health (Near East) Ltd. (the Lebanese Lawsuit ). This memorandum is supported by the accompanying affirmations, affidavits and statements of Messrs. Scott H. Rosa, William Christiaan Viljoen, Laith Bazzoui, Emile Kanaan, and Mmes. Laura Hastings-Brownstein, Raina Gamal and Rebecca Brazzano 1 pursuant to CPLR 2106(a), 2106(b), 2101(b) and New York Code, Rules and Regulation 202.7(f). I. INTRODUCTION In 2005, Carestream NE s predecessor-in-interest, Kodak (Near East) Inc. ( Kodak ) entered into a non-exclusive Distributor Agreement (the Agreement ) with Lindustry. Kodak and Lindustry expressly agreed that their relationship would be governed by the laws of the 1 The Affirmations of Willem Christiaan Viljoen dated October 31, 2016 ( Viljoen Aff. ), Laith Bazzoui dated August 28, 2016 ( Bazzoui Aff. ), Emile Kanaan dated November 17, 2016 ( Kanaan Aff. ), the Affidavit Scott H. Rosa dated November 14, 2016 ( Rosa Aff. ), each in Support of Carestream NE s Order to Show Cause for a Temporary Restraining Order and Preliminary Injunction (the Motion ) are each annexed with their accompanying exhibits to the Emergency Affirmation of Rebecca Brazzano dated November 18, 2016 ( Brazzano Aff. ) as Exhibits 1 (Viljoen Aff.), 2 (Bazzoui Aff.), 3 (Kanaan Aff.), and 4 (Rosa Aff.). The Affidavit of Laura Hasting-Brownstein dated November 14, 2016 ( Brownstein Aff. ), the Statement of Rania Gamal pursuant to CPLR 2106 and Translator pursuant to CPLR 2101(b) dated November 14, 2016 (the Gamal Stmt., together with the Brownstein Aff., the Translator Affs. ) are annexed to the Am. Compl. as Exhibits B and C, and are incorporated herein by reference in their entireties. 6 of 23

7 State of New York, and that the New York courts would have exclusive jurisdiction over any disputes between the parties. (Agreement 19). 2 Effective December 31, 2006, Kodak properly terminated the Agreement by written notice to Lindustry, and thereafter, in May 2007, Carestream NE purchased certain of the assets and liabilities of Kodak, including those related to this Agreement. 3 Lindustry, claiming the termination was improper, violated the Agreement by filing a specious lawsuit against Carestream NE in Lebanon under Lebanese law and is now pursuing the Lebanese Lawsuit in a way that is calculated to evade New York law and a New York forum. Carestream requests, therefore, that the Court enforce the terms of the Agreement and enter a temporary restraining order and preliminary injunction precluding Lindustry and its affiliates from prosecuting the Lebanese Lawsuit, or a lawsuit in any forum other than New York, until this Court can resolve the dispute between the parties. This Motion is urgent as the Lebanese Court has set another hearing date of November 28, 2016 to further its enforcement of the freeze of Carestream NE s assets in Lebanon, despite the fact that there is no final judgment. II. FACTUAL BACKGROUND A. The Business Relationship Between Carestream and Lindustry. Carestream NE is a wholly owned subsidiary of Carestream Health, Inc. ( Carestream Health ), a Delaware corporation with headquarters in Rochester, New York. Carestream Health and its subsidiaries are worldwide providers of medical and dental imaging systems and associated products. (Am. Compl. 14). 4 Until 2007, the business today known as Carestream Health was a division of Eastman Kodak Company ( EKC ) known as Kodak Health Group. 2 See, Brazzano Aff., Ex. 2, Bazzoui Aff., attaching a true and correct copy of the Agreement at Ex. 1; see also, Am. Compl., Ex. A. 3 See, Brazzano Aff., Ex. 2, Bazzoui Aff., attaching a true and correct copy of the termination letter at Ex A copy of the Am. Compl. dated November 18, 2016 is Ex. 5 to the Brazzano Aff. 2 7 of 23

8 (Id. 3 n.1). In 2007, EKC sold the Kodak Health Group to Onex Healthcare Holdings, Inc., a subsidiary of Onex Corporation ( Onex ). (Id.; Asset Purchase Agreement ( APA ) 5. Healthcare Holdings, Inc. subsequently changed its name to Carestream Health, Inc. Onex (Am. Compl. 3). As a result of the sale, Carestream Health succeeded to certain of the rights and liabilities of EKC and its subsidiaries, including the rights and liabilities associated with the Agreement. (See, Rosa Aff., Exhibit 1, APA at 20-22, 2.1, 2.1(c) & 2.3(a)). Lindustry is an offshore company organized under the laws of Lebanon. (Kanaan Aff. 10). Under Lebanese law, an offshore company is a Lebanese company that performs its business operations outside of Lebanon. (Law Decree No. 46/83). 6 In this case, the business Lindustry and Kodak intended to transact was the sale of Kodak x-ray film and film printers in Iraq. (Agreement 2(1)). Specifically, the agreement provides that Lindustry agrees to act as a non-exclusive distributor for the Products within [Iraq] on the terms and conditions contained or referred to in this Agreement. (Agreement 1.1 (emphasis added); see also, id. (1) (defining the Territory ) to be Iraq). The Agreement further provides that it does not confer on [Lindustry] any right to be the exclusive distributor of the Products in [Iraq]. (Id. 1.3 (emphasis added)). The Agreement had a one-year initial term, and, in the ordinary course, the Agreement would automatically renew for successive one-year terms. (Id. 13.1). However, either party could terminate the Agreement by written notice to the other on three months written notice expiring at the end of the minimum term or at any time thereafter. (Id. (emphasis added)). The minimum term ended on December 31, (Id.) 5 See, Brazzano Aff., Ex. 4, Rosa Aff., attaching a true and correct copy of the APA at Ex See, Am. Compl., Ex. B, attaching true and correct copies of Law Decree No. 46/83 and the English translation of Law Decree No. 46/83 (attesting to its accuracy) to the Gamal Stmt. at Exhibits 15 and 16 (respectively); the required certification attesting to the accuracy of the translations is set out at 4 therein. 3 8 of 23

9 In the Agreement, Lindustry agreed to honour the warranty service terms applicable to the Products and to provide at its own cost... a maintenance and repair service for Kodak Equipment... during and also after any applicable warranty period. (Id. 2.3, 2.4). Additionally, Lindustry agreed to inform Kodak of any conflicting obligation of [Lindustry]... in the distribution of Products, which in Kodak s opinion are in competition with the Products. (Id. 2.17). The Agreement also provided for immediate termination if one of the parties failed to remedy any serious or continuing breach of any of the terms of th[e] Agreement within thirty (30) days of written notice of such breach. (Id (emphasis added)). In the event of termination by Kodak, the Agreement provides that: Such termination shall be without prejudice to any rights or obligations which shall have accrued to either party prior to such termination provided that Kodak shall not be liable in any manner whatsoever on account of termination of this Agreement.... [Lindustry] hereby irrevocably confirms that on termination or discontinuation of any class or group of the Products Kodak shall under no circumstances be liable for any termination damages, compensation or indemnities on grounds of market development or goodwill, loss on [sic] anticipated profits, and for reasons of any expenditure of whatsoever kind incurred by [Lindustry] by way of equipment or otherwise for the performance of this Agreement or [Lindustry s] loss of distribution rights. (Id (emphasis added)). The parties specified that the Agreement would be governed by the laws of the State of New York without giving effect to its rules on conflict of law. (Id. 19). And the parties agreed that the New York courts shall have exclusive jurisdiction in the event of any disputes between the parties hereunder. (Id. (emphasis added)). 4 9 of 23

10 B. The Dispute Between Carestream NE and Lindustry and Lindustry s Lebanese Lawsuit. Unfortunately, such a dispute arose. By letter dated August 27, 2006 and directed to the individual specified in the Agreement, Kodak terminated the Agreement effective December 31, (Bazzoui Aff., Ex. 2). On July 5, 2007, Lindustry initiated a lawsuit against Kodak and Carestream NE in a Lebanese First Instance Court. (Kanaan Aff. 7). 7 In the Lebanese Lawsuit, Lindustry alleged that it had been the exclusive distributor for Kodak and Carestream NE in Iraq. (Kanaan Aff. 13). Relying on Lebanese law, specifically Law Decree No. 34/67, and claiming to be an exclusive distributor, Lindustry demanded compensation in the amount of $1,600,000 for damages and lost profits from termination of the Agreement and $383,647 for unpaid commissions. (Id. 14). Carestream NE and Kodak answered Lindustry s suit, denying that they were subject to jurisdiction in Lebanon and denying that they were liable to Lindustry. (Id ). 8 Carestream NE maintained that, consistent with the Agreement, the dispute had to be heard and decided in New York under New York law. (Kanaan Aff. 20). Furthermore, Carestream NE maintained that it was not subject to personal jurisdiction in Lebanon because the relationship with Lindustry involved sales in Iraq, and, by virtue of its status as an offshore company, Lindustry was required to have performed its work outside Lebanon. (Id. 21). Carestream NE alternatively denied that it was liable to Lindustry. Carestream NE pointed to the proper termination of the Agreement and to Lindustry s failure, despite written 7 See, Am. Compl., Exs. B and C attaching true and correct copies of Lindustry s Petition and the English translation of the Petition to the Translator Affs. at Exhibits 1 and 2 (respectively); the required certification attesting to the accuracy of the translations are set out at 1(a) and 4 therein. 8 See, Am. Compl., Exs. B and C attaching true and correct copies of Carestream NE s Answer (Initial Plea) in the Lebanese Lawsuit and the English translation of the Answer (Initial Plea) to the Translator Affs. at Exhibits 3 and 4 (respectively); the required certification attesting to the accuracy of the translations are set out at 1(b) and 4 therein (respectively) of 23

11 notice, to cure material breaches of its obligation to maintain Products sold to Kimadia, Iraq s State Company for the Provision of Medicines and Medical Appliances. (Id. 22 and Letter of November 25, 2007 and Letter of May 1, 2008, Exhibits 1 and 2 thereto). Carestream NE also noted Lindustry s breach of its obligation to inform Carestream NE s predecessor, Kodak, that it was representing a competitor of Kodak, Agfa-Gevaert Corporation. (Kanaan Aff. 22). Finally, Carestream NE argued that Lindustry was not entitled to any damages for the termination by reason of the language in the Agreement. (Id.). The non-exclusive distributorship Agreement grants jurisdiction to the courts in New York and governance to the law of New York. Lindustry s filing of the Lebanese Lawsuit, despite the controlling terms of the Agreement, was done in a bad faith attempt to take advantage of certain Lebanese law provisions which provide for remedies that are not available under New York Law. (Id. 23). C. Procedural History of the Lebanese Lawsuit. As stated earlier, the Lebanese Lawsuit was filed on July 5, (Id. 7). On May 27, 2009, the Court of First Instance of Baabda in Lebanon entered judgment in favor of Carestream NE on the grounds that the court lacked jurisdiction over the dispute. (Id. 24). 9 Lindustry appealed the decision to the Court of Appeal in Jabal Lebanon, Fourth Chamber, and, on February 21, 2012, the Court of Appeals affirmed the judgment of the Court of First Instance. (Kanaan Aff. 25) See, Am. Compl., Ex. B attaching true and correct copies of the May 27, 2009 Order in the Lebanese Lawsuit and the English translation of the May 29, 2009 Order to the Gamal Stmt. at Exhibits 5 and 6; the required certification attesting to the accuracy of the translation is set out at 1(c) and 4 therein. 10 See, Am. Compl., Ex. B attaching true and correct copies of the February 21, 2012 Order in the Lebanese Lawsuit and the English translation of the February 21, 2012 Order to the Gamal Stmt. as Exhibits 7 and 8; the required certification attesting to the accuracy of the translation is set out in the 1(d) and of 23

12 Lindustry appealed to the Court of Civil Cassation, Lebanon s supreme court, seeking annulment of the earlier decisions. (Kanaan Aff. 26). On January 22, 2015, in a split decision, the Court of Civil Cassation entered a decision annulling the earlier decisions. (Kanaan Aff. 27). 11 This Court functions as the final review of all lower Court decisions. (Kanaan Aff. 28). There is a single Court of Civil Cassation in Lebanon, but there are reportedly nine chambers within the Court of Civil Cassation. (Id. 28). The Lebanese Court of Civil Cassation is reportedly restricted to legal interpretation of the applicable law, and not permitted to revise the findings of fact in the case under review. (Id.). Upon appeal to the Court of Civil Cassation, Fourth Chamber the two earlier Lebanese court decisions were inexplicably annulled in early (Id. 27). The Court of Civil Cassation also requested that Lindustry prove the work it did in Lebanon and invited the parties to submit supplemental argument regarding jurisdiction under clause 1 of Article 78 of Lebanon s Civil Code of Procedure. (Id. 28). Carestream NE subsequently moved to have the decision reconsidered by a different chamber of the Court of Civil Cassation. (Id. 29). There is no final judgment against Carestream NE in the Lebanese Lawsuit. (Id.). Though there is no final judgment, Lindustry has frozen assets of Carestream in Lebanon. (Id. 30). As a matter of fact, by surprise to Carestream, Lindustry filed an untimely petition in the Executory Bureau of the Baabda District seeking to freeze Carestream NE s accounts receivable. (Id.). On May 23, 2016, by surprise to Carestream, the Executory Bureau of the Baabda District entered an order directed to four of Carestream NE s customers directing those non- 11 See, Am. Compl., Exs. B and C attaching true and correct copies of the January 22, 2015 Order in the Lebanese Lawsuit and the English translation of the January 22, 2015 Order to the Translator Affs. at Exhibits 9 and 10 (respectively); the required certification attesting to the accuracy of the translations are set out at 1(e) and 4 and 1(c) and 4 (respectively) of 23

13 parties to withhold payment of existing accounts receivable and to retain any future payments that may become due to Carestream (the Freeze Order ). 12 The Freeze Order is a single-page, handwritten Order. The actions of Lindustry, based upon the Freeze Order that was issued by the Lebanese Court, is causing severe, irreparable and permanent damage to Carestream NE. (Viljoen Aff. 9). Specifically, Lindustry has, under the guise of the Freeze Order and without notice to Carestream NE, contacted Carestream NE customers and advised such customers that any accounts receivables due and owing to Carestream NE are subject to the Freeze Order and must be turned over to Lindustry. (Id.) Not surprisingly, this conduct has had a chilling effect on Carestream NE s relationships with its customers, and they are reluctant to engage in any future business with Carestream NE. (Id.) As a direct and proximate result of Lindustry s actions under the Freeze Order, the sale and flow of Carestream NE products to customers in the Lebanese market has been halted and restrained. (Id. 10). As such, Carestream NE is unable to provide critical medical technology and diagnostic equipment to the hospitals and clinicians in Lebanon who serve thousands of patients in Lebanon. Putting aside the monetary damages flowing from Lindustry s actions under the Freeze Order (which are incalculable), the negative medical consequences to the Lebanese patients who would otherwise have access to Carestream NE s highly advanced technology and digital imaging equipment is real and immeasurable. (Id.). III. ARGUMENT Lindustry entered into a contract with a New York company that specifically provided that New York law would govern the relationship and that any dispute would be heard in a New 12 See, Brazzano Aff. Ex. 3 attaching the Kanaan Aff. with true and accurate copies of the May 23, 2016 Freeze Order in the Lebanese Lawsuit and the English translation of the Freeze Order as Exhibits 3 and 4; the required certification attesting to the accuracy of the translation is set out at 31 therein of 23

14 York court. Lindustry breached the unambiguous terms of the contract in a transparent effort to recover lost profits which it claims are available under Lebanese law, but which are clearly unavailable under New York law. Lindustry has acted in bad faith, and Carestream NE is being denied the benefit of the Agreement s New York choice of law and choice of forum clauses. The Court should, therefore, enter a temporary restraining order and preliminary injunction precluding Lindustry from continuing to violate the terms of the Agreement. New York courts have long recognized the propriety and importance of such anti-suit injunctions. GE Oil & Gas, Inc. v. Turbine Generation Servs., LLC, 51 Misc. 3d 1226(A), 2016 N.Y. Misc. LEXIS 1935, at *8 (Sup. Ct. N.Y. Cnty. May 27, 2016). Anti-suit injunctions are appropriately entered in order to enforce contractual choice of law and choice of forum clauses. See Idosuez Int l Fin., B.V. v. Nat l Reserve Bank, 304 A.D.2d 429, , 758 N.Y.S.2d 308, 310 (1st Dep t 2003). The Court has the authority to enter such an injunction in this case. New York General Obligations Law ( GOL ) provides for the enforcement of the Agreement s choice of law clause, and GOL provides that any person may maintain an action in New York courts against a foreign corporation if the action arises from an agreement that contains a New York choice of law clause, a New York choice of forum clause and concerns amounts exceeding $1 million in the aggregate. N.Y. GOL and Because the Agreement contains both the requisite clauses and the amount in controversy exceeds one million dollars, Lindustry is subject to jurisdiction in this Court. See generally, IRB-Brasil Resseguros, S.A. v. Inepar Invs., S.A., 20 N.Y.3d 310, , 958 N.Y.S.2d 689, (2012). Pursuant to CPLR 327(b), the Court shall not stay or dismiss this action on the ground of inconvenient forum of 23

15 CPLR 327(b). In sum, this Court has personal jurisdiction over Lindustry and subject matter jurisdiction over this dispute. Well settled law pursuant to CPLR 6301 confirms that a temporary restraining order should be issued, and a preliminary injunction is warranted, under the facts presented here. To obtain a preliminary injunction, Carestream NE must demonstrate: (1) a danger of irreparable injury in the absence of an injunction; (2) a probability of success on the merits; and (3) a balance of equities in its favor. See Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 49 (2005). Of these elements, a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction... Madden Int l, Ltd. v. Lew Footwear Holdings Pty Ltd., 50 Misc. 3d 1201(A), 2016 N.Y. Misc. LEXIS 160, at *15 (Sup. Ct. N.Y. Cnty. Jan. 15, 2016) (quoting Reuters Ltd. v. United Press Int l, Inc., 903 F.2d 904, 907 (2d Cir. 1990)), aff d, Index No /15, 2016 N.Y. App. Div. LEXIS 6333 (1st Dep t Oct. 4, 2016). Each of the elements is satisfied in this case, and a preliminary injunction is appropriate. A. Carestream NE will suffer irreparable harm absent a preliminary injunction. New York courts routinely hold that denial of the benefit of choice of law and choice of forum clauses constitutes sufficient injury to support entry of an injunction. E.g., Idosuez Int l Fin., B.V., 304 A.D.2d at , 758 N.Y.S.2d at 310; Personal Sportswear v. Silverstein, 91 A.D.2d 507, 507, 456 N.Y.S.2d 372, 373 (1st Dep t 1982); Babcock v. Wilcox Co. v. Control Components, Inc., 161 Misc. 2d 636, 646, 614 N.Y.S.2d 678, 684 (Sup. Ct. N.Y. Cnty. 1993). See also, Leng v. Pinnacle Performance Ltd., 474 F. App x 810, 813 (2d Cir. 2012) (finding irreparable injury where party may be precluded from litigating in its forum of choice); Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., No. 02 Civ (DFE), 2003 U.S. Dist. LEXIS 26928, at *36-37 (S.D.N.Y. June 4, 2003) (finding of 23

16 irreparable injury where party is forced to litigate in contravention of agreed-to forum selection provisions), aff d in rel. part, 369 F.3d 645, 652 (2d Cir. 2004); International Fashion Prods. v. Calvin Klein, Inc., No. 95 Civ (JFK), 1995 U.S. Dist. LEXIS 2598, at *4 (S.D.N.Y. Mar. 6, 1995) ( [T]he agreement at issue clearly states that New York is the chosen forum for all disputes. The Court therefore finds that [the movant] would suffer irreparable harm by being forced to defend the writ in the Netherlands. ). The United States Supreme Court has explained that agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting because it eliminates uncertainties about where disputes will be resolved and what law will be applied. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, (1972) (emphasis added). Indeed, Judge Scarpulla has observed that the injury to a party being forced to litigate in a forum other than the forum identified in a contractual choice forum clause is obvious. Madden Int l, 2016 N.Y. Misc. LEXIS 160, at *16. Madden Int l is similar to this case. In Madden Int l, the plaintiff-manufacturer entered into a distribution agreement with the defendant, a foreign entity, regarding sale of the plaintiffmanufacturer s products in Australia and New Zealand. The agreement included a clause identifying New York law as the governing law and another clause providing that disputes could be resolved only in the state or federal courts located in New York, Queens and Nassau Counties. A few years later, the defendant took steps to terminate the agreement, and, when the plaintiffmanufacturer threatened legal action, the defendant filed suit in Australia. Asserting the jurisdictional defense, the plaintiff-manufacturer litigated the case in Australia for more than a year before filing suit in New York. In the New York suit, the plaintiff-manufacturer moved for entry of a preliminary injunction enjoining prosecution of the proceeding in Australia. The court of 23

17 granted the motion and entered the injunction. Id. at *22. With respect to irreparable injury, the court reasoned as follows: [Plaintiff-manufacturer] presumably negotiated a New York choice of law clause and New York forum selection clause in the Agreement so that it could fully understand and plan for its potential liability in a business dispute with [the defendant]. To force [plaintiff-manufacturer] to litigate under Australian law, and subject it to potential damages unavailable under New York law, would eviscerate this essential contractual right. If I permit [the defendant] to disregard the New York forum and choice of law provisions under which [it] agreed to be bound, I am opening up [plaintiff-manufacturer] to potentially unforeseen liability under a foreign statute to which it did not agree to be bound. Id. at *16 (emphasis in original). This case is nearly identical to Madden Int l, and the outcome should be the same. Lindustry disregarded the Agreement s requirement that any dispute be decided in a New York court and filed a proceeding in Lebanon in a transparent attempt to get the benefit of Lebanese Law Decree No. 34/67, which Lindustry contends, contrary to the express terms of the Agreement, authorizes it to recover lost profits due to the termination of the Agreement. Carestream NE is being burdened with expense and exposure that it never agreed to accept, and Lindustry is seeking to gain the benefit of a forum and law it specifically agreed was unavailable to it. Compounding this injury is the fact that the Lebanese court, without any prior notice to Carestream NE, entered an order freezing Carestream NE s accounts receivable depriving Carestream NE of its property without due process of law, damaging Carestream NE s customer relationships and preventing Lebanese citizens from getting the benefit of important medical technology. (Viljoen Aff. 9-10). Under the circumstances, an injunction is appropriate. As the First Department opined, [w]here, as here, the parties designation of a forum for the resolution of disputes is apparent from the face of their agreement, they will be directed to of 23

18 litigate before the specified tribunal. Micro Balanced Prods. Corp. v. Hlavin Indus. Ltd., 238 A.D.2d 284, 285, 667 N.Y.S.2d 1, 2 (1st Dep t 1997). B. Carestream NE is likely to prevail on the merits. With respect to likelihood of success on the merits, the threshold inquiry is whether Carestream NE has tendered sufficient evidence to demonstrate it is likely to prevail in the underlying proceeding. See 1234 Broadway LLC v. West Side SRO Law Project, 86 A.D.3d 18, 23-24, 924 N.Y.S.2d 35, (1st Dep t 2011). All that is required is a likelihood of success; the proponent of a preliminary injunction need not offer conclusive proof beyond any factual dispute establishing ultimate success in the underlying proceeding. See Moy v. Umeki, 10 A.D.3d 604, 605, 781 N.Y.S.2d 684, 686 (2d Dep t 2004) ("[T]he mere fact that there indeed may be questions of fact for trial does not preclude a court from exercising its discretion in granting an injunction.") (quoting Egan v. New York Care Plus Ins. Co., 266 A.D.2d 600, 601, 697 N.Y.S.2d 776 (3d Dep t 1999)). In this case, the outcome of the substantive dispute between the parties will be controlled by the plain language of the Agreement. The Agreement includes a New York choice of law provision, which the Court should enforce. (Ex. A. to the Am. Compl., Bazzoui Aff., Ex. 1, Agreement 19). See McPhee v. GE Int'l, Inc., 426 F. App x 33, 34 (2d Cir. 2011); Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 N.Y.3d 624, 629, 825 N.Y.S.2d 692, (2006). Under New York law, interpretation of the Agreement is a matter of law for the Court. See Alexander & Alexander Servs. v. These Certain Underwriters at Lloyd's, 136 F.3d 82, 86 (2d Cir. 1998); K. Bell & Assoc., Inc. v. Lloyd's Underwriters, 97 F.3d 632, 637 (2d Cir. 1996). If the terms of the Agreement are unambiguous, they must be enforced according to their plain meaning. See Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, (2d Cir. 2014); Law Debenture Trust Co. v. Maverick Tube Corp., 595 F.3d 458, (2d Cir. 2010). The Court of 23

19 may not substitute its notion of fairness for the agreement of the parties as expressed in the Agreement. See Welsbach Elec. Corp., 7 N.Y.3d at 629, 825 N.Y.S.2d at ; Greenfield v. Philles Records, 98 N.Y.2d 562, , 750 N.Y.S.2d 565, 570 (2002) Of particular relevance in this case, New York courts routinely enforce termination provisions in contracts according to their plain meaning. E.g., A. S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 382, 165 N.Y.S.2d 475, 486 (1957); Red Apple Child Dev. Ctr. v. Cmty. Sch. Dists. Two, 303 A.D.2d 156, 157, 756 N.Y.S.2d 527, 529 (1st Dep't 2003). Similarly, New York courts enforce contractual provisions limiting liability in the event of termination or breach. E.g., My Play City, Inc. v. Conduit Ltd., 589 F. App x 559, (2d Cir. 2014); Metropolitan Life Ins. Co. v. Noble Lowndes Int'l, 84 N.Y.2d 430, , 618 N.Y.S.2d 882, 885 (1994). The plain language of the Agreement establishes that Carestream NE is likely to prevail on the merits. Lindustry s substantive claim is that Carestream NE breached the Agreement by wrongfully terminating the Agreement and by failing to pay commissions earned under the Agreement, but the Agreement proves both assertions lack merit. The Agreement provides that either party may terminate the Agreement on three months notice at any time after the minimum term, which expired on December 31, (Agreement 13.1). Kodak terminated the Agreement effective December 31, 2006 by letter dated August (See Bazzoui Aff. Exhibit 2). Furthermore, the Agreement provides that, if either party fails to cure a serious breach of the Agreement within 30 days of written notice, the other party may terminate the agreement immediately. (Agreement 13.3 and ). Lindustry breached its maintenance obligations under the Agreement, of which breach Lindustry received written notice in November of 2007 and January of (Kanaan Aff. 22 and Exhibits 1 and 2 thereto). Lindustry failed to cure the breach, which resulted in Kimadia withholding payment. (Id.) of 23

20 Under the plain language of the Agreement, Kodak had an immediate right to terminate. Finally, even if the Agreement had been wrongfully terminated, Carestream NE can under no circumstances be liable for any termination damages, compensation or indemnities on grounds of market development or goodwill, [or] loss o[f] anticipated profits.... (Agreement 13.6). Thus, Lindustry cannot recover the damages it seeks in this case, even if it proves the Agreement was wrongfully terminated. In sum, Carestream NE is likely to prevail on the merits of Lindustry s claim for wrongful termination of the Agreement. Carestream NE is also likely to prevail on Lindustry s claim for failure to pay commissions. Lindustry seeks to recover $383,647 in unpaid commissions. (Kanaan Aff. 14). The Agreement provides that commissions will be paid only after payment has been received from the third party and in the amount of the difference between the Kodak established price to [Lindustry] and the price charged to the customer. (Agreement 9.3). By its plain terms, the commission is payable only after Carestream NE has actually received payment in an amount exceeding its established price. Under the plain language of the Agreement, Carestream NE is likely to prevail on Lindustry s claim for unpaid commissions. In addition to being likely to prevail on the substantive claims, Carestream NE is likely to prevail on its argument that it is not subject to in personam jurisdiction in Lebanon. personal jurisdiction of foreign courts is evaluated using the minimum contacts test. The See generally, Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir. 1986) (applying minimum contacts test to determine personal jurisdiction of a court in West Germany). [M]inimum contacts necessary to support such jurisdiction exist where the defendant purposefully availed itself of the privilege of doing business in the forum and could foresee being haled into court there. Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 169 (2d Cir. 2015) (citation omitted). Under this of 23

21 standard, Lebanon s courts lack jurisdiction over Carestream NE. According to the records of the New York Department of State, Kodak (Near East) Inc. is a company that was incorporated in New York and maintains its principal place of business in Rochester, New York. (Sec. of State Entity Information, Brazzano Aff., Ex. 6). Carestream NE is a Jersey corporation. (Am. Compl. 14). Lindustry is an offshore Lebanese company, and, under Lebanese law, offshore companies are prohibited from conducting their business activities in Lebanon. (Kanaan Aff ). The parties entered into the Agreement to promote sales in Iraq. (Agreement (1) & 1.1). The Agreement includes a New York choice of law provision and identifies New York courts as the exclusive forum for resolution of any dispute. (Id. 19). Based on the terms of the Agreement, Kodak was performing from New York, and Lindustry was performing in Iraq. By express agreement, Kodak and Carestream NE did not avail themselves of the protection or proscriptions of Lebanese law, and they could not be haled into court in Lebanon. Under the circumstances, Carestream NE lacks sufficient minimum contacts with Lebanon to subject itself to jurisdiction before the Lebanese courts. In sum, Carestream NE is likely to prevail on the argument that the Lebanese judicial system lacks the authority to decide this dispute, and Carestream NE also is likely to prevail on the substantive claims. Accordingly, the second requirement for entry of a preliminary injunction is satisfied. C. The balance of hardships favors Carestream NE. The parties entered into a contract. That contract allocates the risk of loss between the parties in the event of breach or termination. The parties expressly agreed in the contract that their relationship would be governed by New York law, and that any dispute between the parties would be decided only in a New York court. (Id.). A dispute arose. Lindustry, in an attempt to evade the terms of the Agreement and the application of New York law, filed a suit in of 23

22 Lebanon, in flagrant violation of the Agreement s forum selection clause, based on Lebanese law. Lindustry s purposeful filing in Lebanon to take advantage of certain Lebanese law provisions which provide for remedies that are not available under New York Law should not be tolerated by this Court. Against its will, Carestream NE was dragged into court in Lebanon, a court that lacks personal jurisdiction over Carestream NE. Lindustry s breach of the Agreement s forum selection clause is causing both parties to incur expense in a litigation that cannot result in a judgment that is enforceable outside of Lebanon. Carestream NE is asking this Court to end the oppression and waste of resources and to compel Lindustry to fulfill its agreement to litigate the dispute in the forum and under the law to which Lindustry agreed. In short, Carestream NE is asking the Court to end a wrong being perpetrated by Lindustry, and compel Lindustry to honor the contract to which it agreed. The balance of the hardships favors Carestream NE. See Babcock, 161 Misc. 2d at 646, 614 N.Y.S.2d at 684; Madden Int l, 2016 N.Y. Misc. LEXIS 160 at * of 23

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