FILED: NEW YORK COUNTY CLERK 01/07/2016 03:23 PM INDEX NO. 650369/2014 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/07/2016 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT LEONID L. LEBEDEV, -against- Plaintiff, LEN BLAVATNIK and VIKTOR VEKSELBERG, Defendants. Index No. 650369/2014 Hon. Saliann Scarpulla IAS Part 39 PRE-ARGUMENT STATEMENT Pursuant to the Rules of the Supreme Court, Appellate Division, First Department, 22 NYCRR 600.17, Defendant-Appellant Len Blavatnik, by his attorneys Quinn Emanuel Urquhart & Sullivan, LLP, and Defendant-Appellant Viktor Vekselberg, by his attorneys White & Case LLP (collectively, Appellants ) hereby submit this pre-argument statement: 1. The title of the action is set forth above. 2. The full names of the original parties are set forth above. There has been no change in the parties. 3. The names, address, email addresses and telephone number of counsel for Appellant Blavatnik are listed below:
Richard I. Werder, Jr. rickwerder@quinnemanuel.com David Elsberg davidelsberg@quinnemanuel.com Stephen A. Broome stephenbroome@quinnemanuel.com Ron Hagiz ronhagiz@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 (212) 849-7000 4. The names, address, email addresses and telephone number of counsel for Appellant Vekselberg are listed below: Paul B. Carberry pcarberry@whitecase.com Owen C. Pell opell@whitecase.com Isaac Glassman iglassman@whitecase.com WHITE & CASE LLP 1155 Avenue of the Americas (212) 819-8200 5. The names, address, email addresses, and telephone number of counsel for Plaintiff-Respondent Leonid L. Lebedev ( Respondent ) are listed below: Michael C. Miller mmiller@steptoe.com Evan Glassman eglassman@steptoe.com 1114 Avenue of the Americas (212) 506-3900 Leah M. Quadrino lquadrino@steptoe.com 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 2
(202) 429-3000 Thomas E. L. Dewey tdewey@dpklaw.com Keara Bergin kbergin@dpklaw.com Tamara Bock tbock@dpklaw.com DEWEY PEGNO & KRAMARSKY LLP 777 Third Avenue New York, New York 10017 (212) 943-9000 Andrew W. Hayes ahayes@andrewhayes.net One Stamford Plaza, 9 th Floor Stamford, CT 06901 (917) 770-0180 6. This appeal is taken from the Decision and Order of the Supreme Court, New York County, Part 39 (Scarpulla, J.), dated December 2, 2015, and entered on December 2, 2015 (the Order ). A copy of the Order is annexed hereto as Exhibit A. 7. Nature and object of the causes of action: This is an action against Appellants for alleged breach of contract (First Cause of Action), alleged breach of joint venture agreement (Second Cause of Action), alleged breach of fiduciary duty (Third Cause of Action), and alleged fraud (Fourth Cause of Action), seeking recovery of amounts Respondent claims are due to him under a putative Investment Agreement that the parties allegedly entered in 2001. 8. Result reached in the court below: By the Order, the IAS Court: (a) granted Appellants motion to dismiss Respondent s Fourth Cause of Action for fraud, and that portion of Respondent s Third Cause of Action for breach of fiduciary duty to the extent it is based on allegations of fraud, on the ground that the claims are barred by the applicable statutes of limitations; (b) denied Appellants motion to dismiss Respondent s remaining causes of action 3
on statute of limitations grounds; and (c) denied Appellants motion to dismiss Respondent s First, Second and Third Causes of action on the basis that they are barred by the statute of frauds. 9. Grounds for seeking reversal: The IAS Court erred as a matter of law by, among other things, denying Appellants motion to dismiss Respondent s causes of action for breach of contract (First Cause of Action), breach of joint venture agreement (Second Cause of Action), and breach of fiduciary duty (Third Cause of Action) to the extent based on allegations other than fraud, on the ground that each of the claims is barred by the applicable statute of limitations. Specifically, the IAS Court erred in holding that Respondent s claim that he suffered additional damages in 2013 as a result of Appellants alleged 2001 and 2003 breaches of a putative 2001 oral joint venture agreement and attendant fiduciary duties constituted a separate and distinct breach that renewed the statute of limitations on his breach of contract cause of action, breach of joint venture cause of action, and certain alleged bases for his breach of fiduciary duty cause of action. The IAS Court s decision is inconsistent with well-established precedent from the Court of Appeals holding that a breach of contract cause of action accrues at the time of the breach, even if no damage occurs until later. See, e.g., Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 404 (1993) (citations omitted). Here, the Amended Complaint alleges that Defendants 2001 and 2003 breaches of the putative 2001 oral joint venture agreement and attendant fiduciary duties caused Respondent damages in 2001 and 2003, thereby triggering the statute of limitations on each of Respondent s claims (which have now long since expired), and the case law is clear that the alleged additional damage Respondent claims he suffered in 2013 resulting from the same 2001 and 2003 breaches does not renew the statute of limitations on Respondent s stale claims. 4
10. The only related action or proceeding now pending is an arbitration between Rochester Resources Limited ( Rochester ) an entity controlled by Appellants and Coral Petroleum Limited ( Coral ) an entity controlled by Respondent. The arbitration is currently proceeding in London and under the UNCITRAL Arbitration Rules 1976 (Arbitration No. UN152903). In the arbitration, Rochester seeks declaratory relief to the effect that Appellants through Rochester and Respondent through Coral entered into an Acquisition Agreement dated June 20, 2003, pursuant to which Appellants paid Respondent $600 million to release the very claims that Respondent asserts in this New York action. 11. There are presently no other appeals pending in this action. 5
DATED: New York, New York January 7, 2016 QUINN EMANUEL URQUHART & SULLIVAN, LLP By: Richard I. Werder, Jr. Richard I. Werder, Jr. David Elsberg Stephen A. Broome Ron Hagiz 51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 Telephone: (212) 849-7000 Fax: (212) 849-7100 rickwerder@quinnemanuel.com davidelsberg@quinnemanuel.com stephenbroome@quinnemanuel.com ronhagiz@quinnemanuel.com Attorneys for Defendant Len Blavatnik WHITE & CASE LLP By : Paul B. Carberry Paul B. Carberry Owen C. Pell Isaac S. Glassman 1155 Avenue of the Americas Telephone: (212) 819-8200 Fax: (212) 354-8113 pcarberry@whitecase.com opell@whitecase.com iglassman@whitecase.com Attorneys for Defendant Viktor Vekselberg 6
TO: Michael C. Miller mmiller@steptoe.com Evan Glassman eglassman@steptoe.com 1114 Avenue of the Americas (212) 506-3900 Leah M. Quadrino lquadrino@steptoe.com 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-3000 Thomas E. L. Dewey tdewey@dpklaw.com Keara Bergin kbergin@dpklaw.com Tamara Bock tbock@dpklaw.com DEWEY PEGNO & KRAMARSKY LLP 777 Third Avenue New York, New York 10017 (212) 943-9000 Andrew W. Hayes ahayes@andrewhayes.net One Stamford Plaza, 9 th Floor Stamford, CT 06901 (917) 770-0180 Attorneys for Plaintiff Leonid L. Lebedev 7