UTICo fails to secure judgment debt through Credit Suisse in US court
MOSCOW, April 12 – RAPSI. A US federal court denied Universal Trading & Investment Co., Inc.’s (UTICo) motion to amend its complaint against Credit Suisse in its latest effort to secure a judgment against United Energy Systems of Ukraine (UESU), according to a copy of the decision obtained by RAPSI.
UTICo, a Massachusetts firm that describes itself as “active in international business and consulting,” is owed a judgment debt by UESU amounting to upwards of $18 million.
UTICo sued a series of defendants associated with international bank Credit Suisse under the theory that the latter exercised indirect control over UESU’s assets.
In December 2012, UTICo’s claim against Credit Suisse seeking enforcement of an earlier judgment against UESU was dismissed for lack of personal jurisdiction and for failure to state an actionable claim.
The plaintiffs moved in January to amend their complaint.
The court held that UTICo failed to satisfy the strict standard required under US federal law when a party seeks to amend a complaint.
As a whole, motions for an amended complaint are denied under US law unless the moving party can demonstrate the existence of “an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Plaintiffs asserted a plethora of claims in these regards but, but was unable to convince the court.
The plaintiffs attempted to introduce several facts as new evidence, including the fact that it had recently discovered that defendants have retained control of a trust worth upwards of $143 million, consisting largely of UESU proceeds. The court held that this failed to constitute new evidence because the plaintiffs had in fact learned of this fact several years prior.
The plaintiffs had also argued that since their initial filing, new case law had changed the law on correspondent accounts. The court held that the relevant case was decided prior to the court’s order, however, and was even included in the court’s discussion. Thus it does not qualify as new law.
This is only one of UTICo’s attempts to secure the earlier judgment.
In better news for the company, the same court allowed the company last week to amend its complaint in a related claim against former Ukrainian prime minister Yulia Tymoshenko, who formerly headed UESU.
UTICo is the judgment creditor of a $18,344,480 default judgment against United Energy Systems of Ukraine (UESU), which Tymoshenko headed in the 1990s, prior to running the country. UTICo ultimately went after Tymoshenko for the money, claiming that she “converted, withheld and fraudulently transferred” over $2 billion from UESU for purposes of shielding the company’s asset.
UTICo submitted its lawsuit against Tymoshenko to the US District Court for the Southern District of New York in November 2011. In December 2012, the claim was dismissed for lack of jurisdiction.
UTICo was granted the right to amend its claim last Wednesday, but only in connection with alleged violations of the RICO Act. The court held Wednesday that "because both the parties and the Court previously focused on whether there was personal jurisdiction based on [UTICo's] assertion that 'this court has subject matter jurisdiction over the parties because of the diversity of citizenship,' neither party provided detailed analysis of, nor did the Court address, whether there was personal jurisdiction based on [UTICo's] federal cause of action. [UTICo] should not be precluded from presenting such an argument now."
Thus the court authorized UTICo to amend its complaint against Tymoshenko, but only as far as the RICO Act claim goes, leaving some options open in the company’s effort to secure its UESU judgment.
In October 2011, Tymoshenko was sentenced to seven years in prison for abuse of power based on a 2009 gas contract that she signed with Russia. She is serving her sentence in a Kharkov women's prison. She has been receiving treatment at a Kharkov hospital since May 2012. She was diagnosed with a spinal disc herniation.
In late March, a second case bringing further charges against Tymoshenko was filed with Kharkov's Kievsky District Court. The case deals with her activity at UESU.
She is accused of misappropriating funds.