Free Declaration - District Court of Delaware - Delaware

':.

Case 1:04-cv-01482-GMS

Document 92-6

Filed 06/27/2005

Page 1 of 4

and returned home. As a result , key witnesses , including Khaidarov; GOK
Plaintiffs owners such as Traum , Eisenberg, and Of en; and Isaac Savion , an
American officer of Davis , wil not travel
to Russia. See

A. 4894 4941- 4945

4953- 4954 13366- 13370 13430 14615- 14619.

B. DEFENDANTS' SUBSTANTIAL TIES TO THE U.
Even without discovery, Plaintiffs submitted substantial evidence that the
Conspirators had substantial business and other ties to the U.

, putting aside the

predicate acts of bribery, extortion, money laundering, and mail and wire fraud
committed here.

As a threshold matter , the Conspirators own American

defendants Blonde Management and Pan- American , which paid the bribes to
Russian officials from bank accounts in the U. , and American defendants New
Start , Venitom , Unidale , and Investland , which received the stolen GOK shares , all

under Kislin
In

s direction in New York.

See

A. 4899- 4900 , 4904.

addition: Defendant Chernoi maintained extensive real estate holdings in

the U. S. Deripaska s companies , Sibirsky Aluminum and Russian Aluminum

sold aluminum obtained by the Illegal Scheme through American Defendant
Sibirsky Aluminum Products USA Corp. and the U. S. offices of Defendant RUAL

Trade Limited. Makhudov s company, MDM Bank , maintained correspondent
relations with U. S. banks , utilized the American banking system to receive funds

SSL- DOCS270132694vl

':,

Case 1:04-cv-01482-GMS

Document 92-6

Filed 06/27/2005

Page 2 of 4

jurisdictional deadline for filing such petitions was March 31 2003 , one business
day after the district court' s decision was docketed on March 28
15289- 15291 15319- 15324.
Judge Zaitsev also opined that a petition to collaterally 2003. See

attack a decision
filed only in the same

based on newly discovered evidence of corrption
court that rendered the decision
, and only after

could be

the relevant judge was convicted of

the corrption at

issue.

See

A. 14662 ,

14923 , 14937. Putting aside the conviction

requirement , the time period to file such a petition had expired long before the
lower court' s March 2003 decision. Plaintiffs have herewith submitted a

supplemental appellate declaration of Judge Zaitsev , which consolidates his
opinions on Russian law and brings to this Court' s attention five Russian cassation

cases published after the lower court' s decision , which confirm that no cause of
action may currently be sustained in Russia. See

A. 15720.

2. THE GOK

SHAREHOLDER LITIGATION

WAS

CORRUPTED

Plaintiffs submitted the declaration of Anatoly Kleymenov , an experienced
Russian comn1ercial attorney, supported by extensive fact declarations.

Kleymenov concluded that the decisions resulting in the theft of the Holdex , Omni
and Foston shares were the product of such gross violations of Russian substantive

and procedural law that they could only be explained by corrption
bias by the court. See

fraud and

A. 9461- 9487.

SSL- DOCS270132694vl

,:,

Case 1:04-cv-01482-GMS

Document 92-6

Filed 06/27/2005

Page 3 of 4

unless the underlying decisions were

overtrned.

Id.

at 702- 04. However , it held

Plaintiffs could do so through collateral attack , ignoring the jurisdictional time bar
and disputing the requirement of a criminal conviction. Id.

at 701 ,

704. The court

rejected Plaintiffs ' argument that Russia was inadequate because Plaintiffs ' key witnesses could not testify in Russia due to Defendants ' threats on their lives and
false arrests. Id.

at 711. The court also rejected Plaintiffs ' argument that Russian

courts were inadequate because Defendants had corrpted prior proceedings based
on its sua sponte

deternnnation that four isolated decisions in the NKAZ and GOK
court completely

litigations were not corrpted; the

ignored Plaintiffs ' expert report

regarding the corrption of the Shareholder litigation and the admission by
Defendants ' expert that the GOK
bankrptcy was corrpted. Id.

at 709. The court

dismissed Plaintiffs ' expert reports on general corruption in Russia as
conclusory, " even though they relied on the same kinds of materials that this
Court accepted and credited in Bridgeway Corp. v.

Citibank 201 F. 3d 134 , 14l-

(2d Cir. 2000).

Base Metal 253 F. Supp. 2d at 706.

The court determined that Plaintiffs ' choice of forum was entitled to " little
deference
by " equal
" even though

eight of ten

Plaintif

were either American or protected

access "

international treaties , disregarding this Court' s precedent and

instead followed a contrary, unreported recommendation opinion of a magistrate in
another case. Id.

at 695 n. 9.

The court found

Plaintiffs had no " bona fide " reasons

SSL- DOCS270132694vl

':,

Case 1:04-cv-01482-GMS

Document 92-6

Filed 06/27/2005

Page 4 of 4

Complaint"

(id.

at 711) is simply wrong; Traum s declaration detailed his
every aspect of the

knowledge and involvement in virtally

case. Under clear

precedent , Russia is an inadequate forum, when Defendants , by criminal means
preclude the attendance of Plaintiffs ' witnesses.

3. Russia Is An Inadequate Forum Based On Defendants ' Corruption Of Proceedings Involving Plaintiffs and the Overall Risk of Corruption When Powerful Russian Interests Are Implicated
As set forth in the Aluminum Plaintiffs ' brief at Point I.D , a foreign forum is

inadequate when the defendants have corrpted court proceedings involving the
same parties in the forum if such forum is generally susceptible to corrption.
(a) Defendants Corrupted Proceedings Against Plaintiffs In the

Russian Courts, Which Are Generally Susceptible to Corruption in Matters Involving Powerful Russian Interests Such as Defendants
As to the Shareholder claims , Kleymenov offered a compelling expert report

that only corrption

can explain

why the Russian courts transferred the property of

the GOK shareholder Plaintiffs in proceedings in which they were not even made
parties. See

A. 9461-

9487.

The court literally ignored this corruption , never
Kleymenov

addressing the issue or even referring to

report.

In regard to the GOK creditor claims , Telyukina offered a compelling expert

report explaining in detail how the GOK bankrptcy was corrpted - all the more

remarkable because her report did not have the benefit of any fact discovery.

SSL- DOCS2 70132694vl