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CLOSED, ECF

U.S. District Court United States District Court for the Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:07-cv-04634-GEL

Winstar Holdings, LLC et al v. The Blackstone Group, LP et al Assigned to: Judge Gerard E. Lynch Case in other court: State Court- Supreme, 601582-07 Cause: 28:1442 Notice of Removal Plaintiff Winstar Holdings, LLC

Date Filed: 06/01/2007 Date Terminated: 12/10/2007 Jury Demand: None Nature of Suit: 190 Contract: Other Jurisdiction: Federal Question

represented by Jed Lewin Cohen Tauber Spievack & Wagner, L.L.P. 420 Lexington Avenue Suite 2400 New York, NY 10170 (212) 586-5800 Fax: (212) 586-5096 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Joseph M. Vann Cohen Tauber Spievack & Wagner, L.L.P. 420 Lexington Avenue Suite 2400 New York, NY 10170 (212)-586-5800 Fax: (212)-586-5800 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff IDT Corp. represented by Jed Lewin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Joseph M. Vann (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED Melissa Ann Roover Grayson & Kubli, P.C 1420 Spring Hill Road Mclean, VA 22102 (703)-749-0000 Fax: (703)-442-8672 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant The Blackstone Group, LP represented by Yosef J Riemer Kirkland & Ellis LLP (NYC) 153 East 53rd Street New York, NY 10022 (212)-446-4802 Fax: (212)-446-4900 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED David Scott Flugman Kirkland & Ellis LLP (NYC) 153 East 53rd Street New York, NY 10022 (212) 446-6408 Fax: (212) 446-6460 Email: [email protected] ATTORNEY TO BE NOTICED Victoria Reznik Kirkland & Ellis LLP (NYC) 153 East 53rd Street New York, NY 10022 212-446-4695 Fax: 212-446-4900 Email: [email protected] ATTORNEY TO BE NOTICED Defendant Impala Partners, LLC represented by Andrew C. Gold Herrick, Feinstein 2 Park Ave. New York, NY 10016 (212)-592-1459 Fax: (212)-592-1500

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Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED John P. Oleske Nixon, Peabody, LLP 437 Madison Avenue New York, NY 10022 (212) 940-3191 Fax: 212-940-3111 Email: [email protected] ATTORNEY TO BE NOTICED Defendant Citicorp. represented by Stephen L. Saxl Greenberg Traurig, LLP(200 Park Ave.) 200 Park Avenue New York, NY 10166 212-801-2100 Fax: 212-688-2449 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED William Andrew Wargo Greenberg Traurig, LLP (NYC) 200 Park Avenue New York, NY 10166 (212)-801-3115 Fax: (212)-801-6400 Email: [email protected] ATTORNEY TO BE NOTICED Date Filed 06/01/2007 # 1 Docket Text NOTICE OF REMOVAL from Supreme Court, County of New York. Case Number: 601582-07. (Filing Fee $ 350.00, Receipt Number 617001).Document filed by Impala Partners, LLC.(tro) Additional attachment(s) added on 6/6/2007 (Becerra, Maribel). (Entered: 06/04/2007) Magistrate Judge Andrew J. Peck is so designated. (tro) (Entered: 06/04/2007) Case Designated ECF. (tro) (Entered: 06/04/2007) 2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Impala Partners, LLC.(tro) Additional attachment(s) added on 6/6/2007 (Becerra, Maribel). (Entered:

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06/04/2007) 06/11/2007 06/12/2007 3 4 ANSWER to Complaint. Document filed by Impala Partners, LLC. (Oleske, John) (Entered: 06/11/2007) STIPULATION AND ORDER: The time for defts The Blackstone Group, LP ; Impala Partners, LLC ; Citicorp. to move, answer, or respond to plts' complaint is extended to 6/25/2007. (Signed by Judge Gerard E. Lynch on 6/12/2007) (jar) (Entered: 06/13/2007) RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying The Blackstone Group Inc. as Corporate Parent. Document filed by The Blackstone Group, LP.(Riemer, Yosef) (Entered: 06/21/2007) JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants. Document filed by The Blackstone Group, LP.(Riemer, Yosef) (Entered: 06/21/2007) DECLARATION of David S. Flugman in Support re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by The Blackstone Group, LP. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Riemer, Yosef) (Entered: 06/21/2007) JOINT MEMORANDUM OF LAW in Support re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by The Blackstone Group, LP. (Riemer, Yosef) (Entered: 06/21/2007) NOTICE OF APPEARANCE by Victoria Reznik on behalf of The Blackstone Group, LP (Reznik, Victoria) (Entered: 06/21/2007) NOTICE OF APPEARANCE by David Scott Flugman on behalf of The Blackstone Group, LP (Flugman, David) (Entered: 06/21/2007) RULE 7.1 CORPORATE DISCLOSURE STATEMENT. NO Corporate Parent. Document filed by Citicorp..(Saxl, Stephen) (Entered: 06/21/2007) NOTICE OF APPEARANCE by William Andrew Wargo on behalf of Citicorp. (Wargo, William) (Entered: 06/22/2007) NOTICE OF APPEARANCE by Stephen L. Saxl on behalf of Citicorp. (Saxl, Stephen) (Entered: 06/22/2007) CERTIFICATE OF SERVICE of Joint Notice of Motion, Delcaration of David S. Flugman and Memorandum of Law in Support of the Joint Motion by all Defendants to Transfer Venue with Exhibits A through F. served on plaintiffs on June 22, 2007. Document filed by The Blackstone Group, LP. (Flugman, David) (Entered: 06/25/2007) NOTICE OF APPEARANCE by Andrew C. Gold on behalf of Impala Partners, LLC (Gold, Andrew) (Entered: 06/25/2007)

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ENDORSED LETTER addressed to Judge Gerard E. Lynch from Stephen L. Saxl dated 6/22/2007 re: ENDORSED LETTER addressed to Judge Gerard E. Lynch from Stephen L. Saxl dated 6/22/2007 re: defendant request an extension of time to move against, answer or otherwise respond to Plaintiff's complaint, from the current deadline on Monday, June 25, 2007, either: (i) until twenty (20) days following an Order determing the Joint Motion by All Defendants to Transfer Venue to the United States District Court for the District of Delaware. ENDORSEMENT: SO ORDERED. (Signed by Judge Gerard E. Lynch on 6/25/2007) (jmi) (Entered: 06/27/2007) NOTICE OF APPEARANCE by Melissa Ann Roover on behalf of IDT Corp. (Roover, Melissa) (Entered: 06/27/2007) NOTICE OF APPEARANCE by Jed Lewin on behalf of Winstar Holdings, LLC, IDT Corp. (Lewin, Jed) (Entered: 06/27/2007) RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying IDT Corp. as Corporate Parent. Document filed by Winstar Holdings, LLC, IDT Corp..(Lewin, Jed) (Entered: 06/27/2007) NOTICE OF CHANGE OF ADDRESS by Jed Lewin on behalf of all plaintiffs. New Address: Cohen Tauber Spievack & Wagner LLP, 420 Lexington Ave, Suite 2400, New York, NY, USA 10170, (212)586-5800. (Lewin, Jed) (Entered: 06/28/2007) NOTICE of Motion to Remand. Document filed by Winstar Holdings, LLC, IDT Corp.. (Lewin, Jed) (Entered: 07/01/2007) MOTION to Remand. Document filed by Winstar Holdings, LLC, IDT Corp..(Lewin, Jed) (Entered: 07/01/2007) DECLARATION of Joseph M. Vann in Support re: 22 MOTION to Remand.. Document filed by Winstar Holdings, LLC, IDT Corp.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Lewin, Jed) (Entered: 07/01/2007) MEMORANDUM OF LAW in Support re: 22 MOTION to Remand.. Document filed by Winstar Holdings, LLC, IDT Corp.. (Lewin, Jed) (Entered: 07/01/2007) NOTICE OF APPEARANCE by Joseph M. Vann on behalf of Winstar Holdings, LLC, IDT Corp. (Vann, Joseph) (Entered: 07/03/2007) ORDER re: 6 MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants filed by The Blackstone Group, LP. Judicial efficiency counsels briefing of all these preliminary issues at once. Plts' motion is granted only to the extent that their time to respond is extended to coincide with the deadline for filing their projected motion to remand. The parties are directed to meet and confer on a coordinated briefing schedule for both motions, to be submitted to the Court for approval no later than 7/6/2007. (Signed by Judge Gerard E. Lynch on 7/2/2007) (jar) (Entered: 07/05/2007)

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AMENDED RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying The Blackstone Group, L.P. as Corporate Parent. Document filed by The Blackstone Group, LP.(Flugman, David) (Entered: 07/06/2007) STIPULATION AND ORDER, Set Deadlines/Hearing as to 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants. Deadline for plaintiff's Opposition to motion to transfer venue due 7/19/07; Deadline for Defendants' opposition to Motion to remand due 7/31/07; Deadline for Defendants' Reply in Further Support of Motion to Transfer Venue due August 2, 2007; Deadline for Plaintiffs' Reply in further Support of Motion to Remand due August 13, 2007. (Signed by Judge Gerard E. Lynch on 7/6/07) (djc) (Entered: 07/09/2007) RESPONSE in Opposition re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by Winstar Holdings, LLC, IDT Corp.. (Lewin, Jed) (Entered: 07/19/2007) DECLARATION of Melissa A. Roover in Opposition re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by Winstar Holdings, LLC, IDT Corp.. (Attachments: # 1 Exhibit A)(Lewin, Jed) (Entered: 07/19/2007) JOINT MEMORANDUM OF LAW in Opposition re: 22 MOTION to Remand.. Document filed by Impala Partners, LLC. (Gold, Andrew) (Entered: 07/31/2007) DECLARATION of Andrew C. Gold in Opposition re: 22 MOTION to Remand.. Document filed by Impala Partners, LLC. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9 (Part 1 of 2)# 10 Exhibit 9 (Part 2 of 2))(Gold, Andrew) (Entered: 07/31/2007) REPLY MEMORANDUM OF LAW in Support re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by The Blackstone Group, LP. (Reznik, Victoria) (Entered: 08/02/2007) DECLARATION of Vickie Reznik in Support re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by The Blackstone Group, LP. (Attachments: # 1 Exhibit G to Declaration in Further Support of Joint Motion by all Defendants to Transfer Venue.# 2 Exhibit H to Declaration# 3 Exhibit I to Declaration)(Reznik, Victoria) (Entered: 08/02/2007) AFFIDAVIT of Stefan Feuerabendt in Support re: 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware filed on behalf of all defendants.. Document filed by The Blackstone Group, LP. (Reznik, Victoria) (Entered: 08/02/2007)

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REPLY MEMORANDUM OF LAW in Support re: 22 MOTION to Remand.. Document filed by Winstar Holdings, LLC, IDT Corp.. (Lewin, Jed) (Entered: 08/13/2007) OPINION AND ORDER: For reasons further set forth in said Order, Plaintiff's 22 MOTION to Remand is DENIED and Defendants' 6 JOINT MOTION to Transfer Case to the United States District Court for the District of Delaware is GRANTED. (Signed by Judge Gerard E. Lynch on 12/10/07) (db) (Entered: 12/10/2007) CASE TRANSFERRED OUT from the U.S.D.C. Southern District of New York to the United States District Court - District of Delaware. Sent original file along with documents numbered 1-37, certified copy of docket entries and transfer order. Mailed via Federal Express AIRBILL # 8582 4869 9320 on 12/17/07. (db) (Entered: 12/10/2007)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X : : : : : : : Case No. 07 CV 4634 (GEL)(AJP) : : ECF Case : : : : X

WINSTAR HOLDINGS, LLC AND IDT CORP., Plaintiffs, v. THE BLACKSTONE GROUP LP; IMPALA PARTNERS, LLC; AND CITICORP, Defendants.

CORPORATE DISCLOSURE STATEMENT FOR DEFENDANT THE BLACKSTONE GROUP L.P. Pursuant to Fed. R. Civ. P. 7.1, The Blackstone Group L.P. discloses as follows: 1. As of March 12, 2007, the entity formerly known as "The Blackstone Group L.P."

was renamed "Blackstone Advisory Services L.P." The parent company of Blackstone Advisory Services L.P. (f/k/a The Blackstone Group L.P.), is currently The Blackstone Group Inc. Currently, no public company holds a 10 percent or greater interest in Blackstone Advisory Services L.P 2. At the time of this filing, an Initial Public Offering ("IPO") for The Blackstone

Group L.P. is scheduled to take place on June 22, 2007. After the IPO becomes effective, the ultimate parent of Blackstone Advisory Services L.P. will be The Blackstone Group L.P. The Blackstone Group L.P. will be a publicly traded entity, holding a 10 percent or greater interest in Blackstone Advisory Services L.P.

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Date: June 21, 2007

Respectfully submitted, s/ David Flugman Yosef J. Riemer (YR 5974) Vickie Reznik (VR 1897) David S. Flugman (DF 9884) KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 (212) 446-4800 (212) 446-4900 Fax Attorneys for Defendant The Blackstone Group LP

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WINSTAR HOLDINGS LLC and IDT CORP., Plaintiffs, - against THE BLACKSTONE GROUP L.P.; IMPALA PARTNERS, LLC; and CITICORP, Defendants. PLEASE TAKE NOTICE that, upon the accompanying Declaration of David S. Flugman and memorandum of law, the undersigned will move before the Honorable Gerald E. Lynch, Judge of the United States District Court for the Southern District of New York, at the United States District Courthouse, located at 500 Pearl Street, New York, NY 10007, at a time and place to be scheduled by this Court, for an order to transfer venue to the United States District Court for the District of Delaware in order that it be referred to the United States Bankruptcy Court for the District of Delaware, pursuant to 28 U.S.C. § 1406(a), or in the alternative, 28 U.S.C. § 1404(a).

Case No.:

07 CV 4634 (GEL)(AJP) ECF Case

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Dated: June 21, 2007

s/ Yosef. J. Riemer s Yosef J. Riemer Vickie Reznik David S. Flugman KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Attorneys for Defendant The Blackstone Group L.P.

s/ Stephen M. Rathkopf Stephen M. Rathkopf Andrew C. Gold John Oleske HERRICK, FEINSTEIN LLP 2 Park Avenue New York, New York 10016 Telephone: (212) 592-1400 Facsimile: (212) 592-1500 Attorneys for Defendant Impala Partners, LLC

s/ Stephen L. Saxl Stephen L. Saxl William Wargo GREENBERG TRAURIG, LLP 200 Park Avenue New York, New York 10166 Telephone: (212) 801-9200 Facsimile: (212) 801-6400 Attorneys for Defendant Citigroup, Inc., as successor by merger to Citicorp

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WINSTAR HOLDINGS LLC and IDT CORP., Plaintiffs, - against THE BLACKSTONE GROUP L.P.; IMPALA PARTNERS, LLC; and CITICORP, Defendants.

Case No.:

07 CV 4634 (GEL)(AJP) ECF Case

DECLARATION OF DAVID S. FLUGMAN David S. Flugman, pursuant to 28 U.S.C. § 1746, declares under penalty of perjury that the following is true and correct: 1. I am an associate of the law firm Kirkland & Ellis LLP, attorneys for Defendant

The Blackstone Group LP ("Blackstone"). I am fully familiar with all of the matters set forth in this declaration either from personal knowledge or from my review of the file in this matter. I submit this declaration in further support of Defendant's Joint Motion to Transfer Venue to the United States District Court for the District of Delaware. 2. Attached hereto as Exhibit A is a true and correct copy of the Asset Purchase

Agreement among IDT Winstar Acquisition, Inc., Winstar Communications, Inc. and certain of its subsidiaries dated December 18, 2001. 3. Attached hereto as Exhibit B is a true and correct copy of the Order authorizing

the sale of Winstar's business assets and approving the Asset Purchase Agreement entered by the Bankruptcy Court for the District of Delaware on December 19, 2001. 4. Attached hereto as Exhibit C is a true and correct copy of excerpts from the case

docket of In re Winstar Communications, Inc., Case No. 01-1430 (KJC), currently pending in the United States Bankruptcy Court for the District of Delaware. 5. Attached hereto as Exhibit D is a true and correct copy of the Blackstone

Retention Agreement and the Indemnification Agreement attached thereto as Attachment A

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dated July 26, 2001 between Blackstone, Winstar Communications Inc., Winstar Wireless, Inc., and their affiliates ("Winstar" or the "Debtors") that were debtors in possession in the pending bankruptcy case in the Delaware Bankruptcy Court. 6. Attached hereto as Exhibit E is a true and correct copy of a letter from counsel for

Blackstone dated July 4, 2007 addressed to Christine Shubert, the Debtors' Trustee, and notifying her pursuant to the Retention Agreement of Blackstone's intention to seek indemnification from the Debtors for all expenses connected to the instant litigation. 7. Attached hereto as Exhibit F is a true and correct copy of the Impala Retention

Agreement and the Indemnification Agreement attached thereto as Attachment A dated July 2, 2001 and amended August 29, 2001 between Impala Partners and LLC, Winstar Communications Inc.,. I declare under penalty of perjury that the foregoing is true and correct.

s/ David S. Flugman Dated: New York, New York June 21, 2007 David S. Flugman KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Attorneys for Defendant The Blackstone Group L.P.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WINSTAR HOLDINGS, LLC and IDT CORP., Plaintiffs, - against THE BLACKSTONE GROUP L.P.; IMPALA PARTNERS, LLC; and CITICORP, Defendants.

Case No.:

07 CV 4634 (GEL)(AJP) ECF Case

MEMORANDUM OF LAW IN SUPPORT OF THE JOINT MOTION BY ALL DEFENDANTS TO TRANSFER VENUE TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Yosef J. Riemer Vickie Reznik David S. Flugman KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Attorneys for Defendant The Blackstone Group L.P. Stephen M. Rathkopf Andrew C. Gold John Oleske HERRICK, FEINSTEIN LLP 2 Park Avenue New York, New York 10016 Telephone: (212) 592-1400 Facsimile: (212) 592-1500 Attorneys for Defendant Impala Partners, LLC Stephen L. Saxl William Wargo GREENBERG TRAURIG, LLP 200 Park Avenue New York, New York 10166 Telephone: (212) 801-9200 Facsimile: (212) 801-6400 Attorneys for Defendant Citigroup, Inc. as successor by merger to Citicorp

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TABLE OF CONTENTS Page(s) Preliminary Statement...................................................................................................................1 Background Facts and Procedural Posture.................................................................................4 Argument ........................................................................................................................................7 I. THIS CASE SHOULD BE TRANSFERRED PURSUANT TO SECTION 1406(A) TO DELAWARE DISTRICT COURT FOR REFERRAL TO DELAWARE BANKRUPTCY COURT BECAUSE THE CLAIMS ARE SUBJECT TO BOTH THE MANDATORY FORUM SELECTION CLAUSE IN THE ASSET PURCHASE AGREEMENT AND THE BANKRUPTCY COURT ORDER RETAINING EXCLUSIVE JURISDICTION......................................................7 A. B. Jurisdiction in this District is Inappropriate Given the Retention of Jurisdiction by the Delaware Bankruptcy Court......................................................7 Because the Forum Selection Clause in the Asset Purchase Agreement Designates the Delaware Bankruptcy Court as the Exclusive Forum for Plaintiffs' Claims, Venue in the Southern District of New York is Inappropriate. ...........................................................................................................8 Jurisdiction in the Delaware Bankruptcy Court is Proper Because This Case Falls Within the Broad Scope of 28 U.S.C. § 1334. .....................................10

C. II.

IN THE ALTERNATIVE, EVEN IF VENUE EXISTS IN THIS DISTRICT, THE CASE SHOULD BE TRANSFERRED TO DELAWARE DISTRICT COURT FOR REFERRAL TO DELAWARE BANKRUPTCY COURT IN THE INTERESTS OF JUSTICE PURSUANT TO SECTION 1404(A)...................................12

Conclusion ....................................................................................................................................13

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TABLE OF AUTHORITIES

Cases Bense v. Interstate Battery System of America, 683 F.2d 718 (2d Cir. 1982)................................................................................................ 8 Credit Suisse Secs. (USA) LLC v. Hilliard, 469 F. Supp. 2d 103 (S.D.N.Y. 2007)................................................................................. 9 Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F. Supp. 71 (S.D.N.Y. 1978)........................................................................................ 7 G & R Moojestic Treats Inc. v. MaggieMoo's Int'l, LLC, No. 03 Civ. 10027 (RWS), 2004 WL 1110423 (S.D.N.Y. May 19, 2004) ...................... 12 Huntingdon Engineering & Envt'l Inc. v. Platinum Software Corp., 882 F. Supp. 54 (W.D.N.Y. 1995) .................................................................................... 12 In re Cuyahoga Equipment Corp., 980 F.2d 110 (2d Cir. 1992).............................................................................................. 11 In re Houbigant, Inc., 914 F. Supp. 964 (S.D.N.Y. 1995).................................................................................... 13 In re S & K Air Power of Florida, 166 B.R. 193 (Bankr. S.D. Fla. 1994) ................................................................................ 3 In re Winstar Communications, Inc. et al, Case No. 01-1430 (KJC)..................................................................................................... 4 Int'l Secs. Exchange, LLC v. Chicago Board Options Exchange Inc., No. 06 Civ. 13445 (RMB)(THK), 2007 WL 1541087 (S.D.N.Y. May 24, 2007) ..... 10, 13 Korean Press Agency, Inc. v. Yonhap News Agency, 421 F. Supp. 2d 775 (S.D.N.Y. 2006)................................................................................. 9 Luan Investment S.E. v. Franklin 145 Corp. (In re Petrie Retail), 304 F.3d 223 (2d Cir. 2002).............................................................................................. 10 M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)...................................................................................................... 8, 9, 10 Ruby v. Pan Am World Airways, Inc., 252 F. Supp. 873 (S.D.N.Y. 1965)...................................................................................... 8 Starad, Inc. v. Lawson Software, Inc., 04 Civ. 5554 (GEL), 2004 WL 2093512 (S.D.N.Y. Sept. 16, 2004) ............................... 10 Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988).............................................................................................................. 8 Strategic Marketing & Commc'ns, Inc. v. Kmart Corp., 41 F. Supp. 2d 268 (S.D.N.Y. 1998)......................................................................... 8, 9, 12 -ii-

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Weiss v. Columbia Pictures Television, Inc., 801 F. Supp. 1276 (S.D.N.Y. 1992).......................................................................... 3, 8, 10 Statutes 28 U.S.C. § 1334................................................................................................................. 7, 10, 11 28 U.S.C. § 1404(a) ........................................................................................................ 1, 3, 12, 13 28 U.S.C. § 1406(a) ............................................................................................................... passim 28 U.S.C. § 1409(a) ...................................................................................................................... 11 28 U.S.C. § 1452(a) .................................................................................................................... 3, 7 Other Authorities Black's Law Dictionary 856 (7th ed. 1999).................................................................................... 8

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Defendants The Blackstone Group L.P.1 ("Blackstone"), Impala Partners, LLC ("Impala") and Citigroup, Inc., as successor by merger to Citicorp ("Citicorp") hereby submit this memorandum of law in support of their joint motion to transfer venue pursuant to 28 U.S.C. § 1406(a), or in the alternative 28 U.S.C. § 1404(a), to the United States District Court for the District of Delaware for referral to the United States Bankruptcy Court for the District of Delaware.2 PRELIMINARY STATEMENT This action arises out of the purchase by Plaintiffs IDT Corp. ("IDT") and Winstar Holdings, LLC of certain assets that had belonged to Winstar Communications Inc. ("Old Winstar" or "Debtor"). Old Winstar was at the time of the transaction (and remains today) a Debtor in a bankruptcy proceeding in the United States Bankruptcy Court for the District of Delaware ("Bankruptcy Court" or "Delaware Bankruptcy Court"). Plaintiffs purchased the assets pursuant to an Asset Purchase Agreement which contained a mandatory forum selection clause in which Plaintiffs agreed to "irrevocably submit to the exclusive jurisdiction of the Bankruptcy Court . . . any dispute arising out of or relating to this Agreement or any other agreement or instrument contemplated hereby or entered into in connection herewith or any of the transactions contemplated hereby or thereby." (Declaration of David S. Flugman in Support of Defendants' Joint Motion to Transfer Venue to the United States District Court for the District

1

As of March 12, 2007, the entity formerly known as "The Blackstone Group L.P." has been renamed "Blackstone Advisory Services L.P." Because pursuant to both § 1404 and § 1406 this Court is empowered to transfer a civil action "to any other district or division" where it could have been brought, Defendants request that the Court transfer this case to the District Court in Delaware so that it may refer the case to the Delaware Bankruptcy Court.

2

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of Delaware, Ex. A (Asset Purchase Agreement) § 9.10.)3 The Asset Purchase Agreement was approved by the Bankruptcy Court in a separate order (the "Order") which specifically provided that the Bankruptcy Court "retains and shall have exclusive jurisdiction to . . . resolve any disputes arising under or related to the Asset Purchase Agreement." (Ex. B (Order) ¶ 15.) Old Winstar's bankruptcy proceeding is still pending in the Delaware Bankruptcy Court. (See Ex. C (Bankruptcy Court Docket).) Nonetheless, Plaintiffs commenced this action in the Supreme Court for the County of New York (the "State Court Action") in which they make allegations arising under and related to the Asset Purchase Agreement which thus fall squarely within the mandatory forum selection provision and the Bankruptcy Court Order retaining exclusive jurisdiction. For example, the Complaint asserts that "[a]s a result" of what Plaintiffs contend were fraudulent or negligent representations about Old Winstar's business, Plaintiffs "entered into an Asset Purchase Agreement . . ." (Compl. ¶ 43.) Given the retention of exclusive jurisdiction by the Delaware Bankruptcy Court and the mandatory forum selection clause in the Asset Purchase Agreement, this case can only be litigated in that court. Thus, venue is proper in the Delaware Bankruptcy Court. By seeking to litigate in New York instead of Delaware, Plaintiffs are violating the clear language of a Bankruptcy Court Order. The Bankruptcy Court has broad jurisdiction over disputes like this and Plaintiffs are bound by that Order. Moreover, Plaintiffs are violating their contractual duty by ignoring the forum selection clause in the Asset Purchase Agreement. It is well settled that a contractual forum selection clause should be given effect except in the rare case where plaintiffs can "demonstrate exceptional facts explaining why [they] should be relieved from [their] contractual duty" to litigate in the designated forum. Weiss v. Columbia Pictures Television,

3

All exhibits referenced herein are attached to the Declaration of David S. Flugman, and hereafter will only be cited as "Ex." for simplicity.

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Inc., 801 F. Supp. 1276, 1278 (S.D.N.Y. 1992). Plaintiffs have not ­ and cannot ­ meet their high burden of showing such "exceptional facts." Where, as here, a plaintiff files suit in a district where venue is improper, Section 1406 of the Judicial Code empowers the Court to "dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."4 28 U.S.C. § 1406(a). Because venue is improper in this District, this Court should exercise its authority pursuant to that section to transfer this case to the United States District Court for the District of Delaware ("Delaware District Court") for referral to Delaware Bankruptcy Court. (See Part I, infra.) This Court's power to transfer a case is not limited to situations where venue is improper in the Southern District of New York. If venue is proper in this District, this Court can still transfer a case "in the interest of justice . . . to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Thus, if this Court were to find that venue was proper in this District, this Court should "in the interest of justice" give effect to the Bankruptcy Court's retention of exclusive jurisdiction and the mandatory forum selection clause in the Asset Purchase Agreement, as well as the important public policy of consolidating litigation that could have a potential effect on a bankrupt estate in one forum, by entering an order transferring this case to the Delaware District Court for referral to Delaware Bankruptcy Court pursuant to 28 U.S.C. § 1404(a).5 (See Part II, infra.)

4

While Plaintiff's suit was originally filed in New York State Supreme Court, removal to this district was a necessary preliminary step to the Defendants' request to transfer venue to the Delaware Bankruptcy Court. See In re S & K Air Power of Florida, 166 B.R. 193, 194 (Bankr. S.D. Fla. 1994) (state court actions must be removed to the district court for the district in which the case is pending before moving for a transfer of venue to the district for the bankruptcy court where the case should have been filed). The case was removed on June 4, 2007 by Defendant Impala pursuant to 28 U.S.C. § 1452(a) Plaintiffs' agreement to the forum selection provision in the Asset Purchase Agreement further demonstrates that Delaware is not an inconvenient forum for Plaintiffs -- both of whom are Delaware Corporations. (Compl. ¶¶ 2-3.)

5

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BACKGROUND FACTS AND PROCEDURAL POSTURE In April 2001, Old Winstar and certain of its subsidiaries and affiliates each filed a petition for relief under chapter 11 of Title 11 of the United States Code, as amended, in the Delaware Bankruptcy Court.6 Pursuant to a letter agreement ("Blackstone Agreement") executed some time thereafter, the Debtors retained Blackstone to act as their exclusive M&A advisor to provide financial advisory services, including with respect to the sale of Old Winstar's assets. (See Ex. D (Blackstone Agreement).) Pursuant to the Blackstone Agreement, the Debtors agreed to indemnify Blackstone for "all expenses (including reasonable fees, expenses and disbursements of counsel) as they are incurred in connection with investigation, preparing, pursuing, defending, or assisting in the defense of any action, claim, suit, investigation or proceeding related to, arising out of or in connection with" Blackstone's retention by the Debtors. (Id. at Attachment A.)7 On August 2, 2001, the Delaware Bankruptcy Court approved the retention of Impala nunc pro tunc to July 2, 2001 pursuant to a letter agreement originally dated July 2, 2001 and amended on August 29, 2001 (the "Impala Agreement"). Pursuant to the Impala Agreement, Impala was engaged to provide advisory services to the Debtors and to function as the Debtors' Chief Restructuring Officer.8 The Impala Agreement requires the Debtors to indemnify and hold harmless Impala and each of its partners, agents, employees, and control persons from third party

6 7

In re Winstar Communications, Inc. et al, Case No. 01-1430 (KJC). The indemnification provision also requires Blackstone to promptly notify the Debtors in writing of the receipt of "any complaint or the commencement of any action or proceeding with respect to which indemnification is being sought." (Ex. D (Attachment A) at 2.) Pursuant to this provision, Blackstone notified the Bankrupt Estate Trustee on June 4, 2007 of the receipt of the Complaint and Summons in the instant action and of Blackstone's intention to seek indemnification from the Debtors. (See Ex. E (6/4/07 Indemnification Notification Letter.) By naming Impala as a Defendant, Plaintiffs seek damages against one of Debtors' Corporate Officers, which provides further support for transfer of the State Court Action to Delaware Bankruptcy Court. See infra, § II.

8

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claims arising out of the services rendered to the Debtors. (See Ex. F (Impala Agreement) at Attachment A.) Additionally, the Debtors agreed to pay Impala's legal fees in connection with any such claims. (Id.) During the Fall of 2001, Old Winstar, with the assistance of Blackstone, circulated an offering book and allowed prospective buyers of its business assets to conduct due diligence. (Compl. at ¶¶ 22-23.) Thereafter, on December 18, 2001, IDT entered into an Asset Purchase Agreement by which it contracted to buy Old Winstar's business assets for $42.5 million. (Id. at ¶¶ 1, 43.) Notably, the Asset Purchase Agreement contains a mandatory forum selection clause by which the Plaintiffs agreed to "irrevocably submit to the exclusive jurisdiction of the [United States] Bankruptcy Court [for the District of Delaware] (or any court exercising appellate jurisdiction over the Bankruptcy Court) over any dispute arising out of or relating to this Agreement or any other agreement or instrument contemplated hereby or entered into in connection herewith or any of the transactions contemplated hereby or thereby." (Ex. A (Asset Purchase Agreement) § 9.10 (emphasis added).) In addition, Plaintiffs irrevocably agreed "that all claims in respect of such dispute or proceedings may be heard and determined in such courts" and "irrevocably waive[d], to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith." (Id.) Moreover, the Plaintiffs further emphasized their intent to submit exclusively to jurisdiction in Delaware Bankruptcy Court by their conduct in executing the Asset Purchase Agreement. The typed text of the Agreement originally contained language in Section 9.15 allowing the Plaintiffs to "apply to the Bankruptcy Court or any other court of competent jurisdiction for specific performance. . . " (Ex. A (Asset Purchase Agreement) § 9.15.) The typed words "or any other court of competent jurisdiction" were then crossed out by hand and the strike-out was confirmed by initials in the margins as shown on page 27 of the Agreement. -5-

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(Id.) By crossing out those words, Section 9.15 was made consistent with the mandatory forum selection clause in Section 9.10 so that no matter what remedy the Plaintiffs might seek, disputes arising under or relating to the Asset Purchase Agreement could only be brought in the Bankruptcy Court. (Id. at § 9.10, § 9.15.) The following day, the Bankruptcy Court issued the Order approving the Asset Purchase Agreement. (Ex. B (Order) at ¶ 3.) Included therein was a finding that the Asset Purchase Agreement and related agreements "were negotiated, proposed and agreed to by the Debtors and [IDT Winstar Acquisition, Inc.] as parties thereto without collusion, in good faith, and from arm's-length bargaining positions." (Id. at ¶ G (emphasis added).) Additionally, the Order specifically designates the Delaware Bankruptcy Court as the forum for all disputes by explicitly stating that the Bankruptcy Court "retains and shall have exclusive jurisdiction to...resolve any disputes arising under or related to the Asset Purchase Agreement." (Ex. B (Order) at ¶ 15.) 9 On May 10, 2007, in direct contravention of the Bankruptcy Court's Order and the forum selection clause, Plaintiffs filed the instant suit in the New York Supreme Court for the County of New York alleging that the Defendants fraudulently or negligently made misrepresentations about the value of the assets of Old Winstar and that Plaintiffs relied on those alleged misrepresentations in entering into the court-approved Asset Purchase Agreement. 10 On June 4, 2007, Defendant Impala Partners, with the consent of all Defendants, removed the case to this

9

Paragraph 15 of the Order reads: "This court retains and shall have exclusive jurisdiction to endorse and implement the terms and provisions of the Asset Purchase Agreement, all amendments thereto, any waivers and consents thereunder, and each of the agreements executed in connection therewith (including the Management Agreement) in all respects, including, but not limited to, retaining jurisdiction to (a) compel delivery of the Purchased Assets to the Buyer, (b) compel delivery of the purchase price or performance of other obligations owed to the Debtors, (c) resolve any disputes arising under or related to the Asset Purchase Agreement, and (d) interpret, implement, and enforce the provisions of the Asset Purchase Agreement and this Sale Order." Blackstone and Citicorp were served with the Complaint on May 22, 2007. Impala was served on May 23, 2007.

10

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Court pursuant to the bankruptcy removal provision, 28 U.S.C. § 1452(a), which permits removal of cases subject to bankruptcy jurisdiction pursuant to 28 U.S.C. § 1334.11 ARGUMENT I. THIS CASE SHOULD BE TRANSFERRED PURSUANT TO SECTION 1406(A) TO DELAWARE DISTRICT COURT FOR REFERRAL TO DELAWARE BANKRUPTCY COURT BECAUSE THE CLAIMS ARE SUBJECT TO BOTH THE MANDATORY FORUM SELECTION CLAUSE IN THE ASSET PURCHASE AGREEMENT AND THE BANKRUPTCY COURT ORDER RETAINING EXCLUSIVE JURISDICTION. Because of the retention of exclusive jurisdiction by the Delaware Bankruptcy Court in the ongoing bankruptcy proceedings in that court and the mandatory forum selection clause in the Asset Purchase Agreement covering Plaintiffs' claims, venue is improper in this District. See Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F. Supp. 71, 73 (S.D.N.Y. 1978) (in the face of a mandatory forum selection clause, venue is improper in alternative forum for § 1406 purposes). Accordingly, this court should transfer the case to the Delaware Bankruptcy Court pursuant to 28 U.S.C. § 1406(a). See, e.g., Lexington Investment Co. v. Southwest Stainless, Inc., 697 F. Supp. 139, 144 (S.D.N.Y. 1988) (transferring case pursuant to § 1406(a) to forum specified in mandatory forum selection clause). A. Jurisdiction in this District is Inappropriate Given the Retention of Jurisdiction by the Delaware Bankruptcy Court.

Venue in either the New York State Supreme Court or in this Court is inappropriate because the Delaware Bankruptcy Court explicitly retained exclusive jurisdiction over "any disputes arising under or related to the Asset Purchase Agreement." (See Ex. B (Order) ¶ 15.) As explained above, Plaintiffs' claims arise out of and relate to the sale of Old Winstar's assets
11

This case falls within the scope of § 1334(b) as Plaintiffs' allegations arise under the bankruptcy statute and are related to the ongoing bankruptcy case pending in the Delaware Bankruptcy Court. See 28 U.S.C. § 1334(b) (vesting jurisdiction in the district courts over cases "arising in or related to cases under title 11 [bankruptcy]").

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via the Asset Purchase Agreement, approved by the Order issued by the Delaware Bankruptcy Court. (See Compl. at ¶¶ 43-44.) Therefore, this litigation falls within the ambit of the jurisdiction retained by the Delaware Bankruptcy Court and venue is thus inappropriate in the New York State Supreme Court or in this Court. See Ruby v. Pan Am World Airways, Inc., 252 F. Supp. 873, 880 (S.D.N.Y. 1965) (dismissing claims involving an interpretation of pilots association agreement because of exclusive jurisdiction over interpretation vested in alternative forum); Black's Law Dictionary 856 (7th ed. 1999) (defining "exclusive jurisdiction" as "[a] court's power to adjudicate an action or class of actions to the exclusion of all other courts"). Because venue is inappropriate in this District, the case should be transferred pursuant to 28 U.S.C. § 1406(a). B. Because the Forum Selection Clause in the Asset Purchase Agreement Designates the Delaware Bankruptcy Court as the Exclusive Forum for Plaintiffs' Claims, Venue in the Southern District of New York is Inappropriate.

It is well-settled in this Circuit that forum selection clauses are given substantial deference, and will only be disturbed in rare instances. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972) (a forum selection clause is enforceable unless it is shown that "enforcement would be unreasonable and unjust, or that the clause [is] invalid for such reasons as fraud or overreaching"); see also Bense v. Interstate Battery System of America, 683 F.2d 718, 720-22 (2d Cir. 1982) (upholding a forum selection clause which applied to "causes of action arising directly or indirectly from the agreement"); Strategic Marketing & Commc'ns, Inc. v. Kmart Corp., 41 F. Supp. 2d 268, 270 (S.D.N.Y. 1998) ("Since Bremen, this Circuit has developed a strong policy of honoring forum selection clauses."). Forum selection clauses are treated as "prima facie valid" and in order to set one aside, it is the plaintiff's burden to "demonstrate exceptional facts explaining why he should be relieved from his contractual duty." Weiss, 801 F. Supp. at 1278; see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) -8-

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("a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases") (Kennedy, J., concurring). In order to meet this burden, a plaintiff would have to show that suit in the alternative forum is "so gravely difficult and inconvenient that plaintiff will for all practical purposes be deprived of its day in court." Bremen, 407 U.S. at 18. Where, as here, a motion to transfer involves a forum selection clause, and the language of the clause is mandatory rather than permissive, "deference to the plaintiff's choice of forum is inappropriate." Kmart Corp., 41 F. Supp. 2d at 273. The language of the forum selection clause in the Asset Purchase Agreement could not be clearer that not only did Plaintiffs agree to "exclusive jurisdiction" in the Delaware Bankruptcy Court over "any dispute arising out of or relating to this Agreement," but they also "irrevocably waive . . . any objection which they [may] have to the laying of venue" in that Court or "any defense of inconvenient forum in connection therewith."12 (Ex. A (Asset Purchase Agreement) § 9.10.) Furthermore, the intent of the Plaintiffs to submit exclusively to jurisdiction in Delaware is revealed by the striking of the language "or any other court of competent jurisdiction" from the section of the Asset Purchase Agreement pertaining to remedies, making it wholly consistent with the forum selection clause. (Id. at § 9.15.)

12

The forum selection clause clearly covers the claims brought by Plaintiffs in this litigation because they arise out of the Asset Purchase Agreement. See Credit Suisse Secs. (USA) LLC v. Hilliard, 469 F. Supp. 2d 103, 107 (S.D.N.Y. 2007) ("When `arising out of,' `relating to,' or similar words appear in a forum selection clause, such language is regularly construed to encompass . . . tort claims associated with the underlying contract."); see also Starad, Inc. v. Lawson Software, Inc., No. 04 Civ. 5554 (GEL), 2004 WL 2093512, at *1 (S.D.N.Y. Sept. 16, 2004) (finding clause applying to "any proceeding relating to this Lease Agreement" as "clearly broad enough to encompass not merely claims for breach of the agreements, or even claims arising from the agreements, but any claims that so much as relate to the agreement"). Further, it is clear that the Plaintiffs could not maintain their claims absent the existence of the Asset Purchase Agreement. See Korean Press Agency, Inc. v. Yonhap News Agency, 421 F. Supp. 2d 775, 781 (S.D.N.Y. 2006) (interpreting broad forum selection clause as "squarely within the rule that a contractually-based forum selection clause will also encompass tort claims if the tort claims ultimately depended on the existence of a contractual relationship between the parties") (internal quotations omitted).

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In light of the prima facie valid forum selection clause described above, Plaintiffs cannot meet the "heavy burden" necessary to avoid its enforcement. See Starad, Inc. v. Lawson Software, Inc., 04 Civ. 5554 (GEL), 2004 WL 2093512, at *1 (S.D.N.Y. Sept. 16, 2004); see also Weiss, 801 F. Supp. at 1278. Not only was the Asset Purchase Agreement and its mandatory forum selection clause negotiated among sophisticated parties, but the Bankruptcy Court explicitly found that the Asset Purchase Agreement was negotiated and executed in good faith and at arm's length. (Ex. B (Order) at ¶ G); see also Bremen, 407 U.S. at 12 (enforcing forum selection clause "made in an arm's length negotiation by experienced and sophisticated businessmen"). Accordingly, this Court should uphold the contractual designation of forum for this litigation by transferring this case to the Delaware District Court for referral to the Delaware Bankruptcy Court. C. Jurisdiction in the Delaware Bankruptcy Court is Proper Because This Case Falls Within the Broad Scope of 28 U.S.C. § 1334.

While venue is improper in the Southern District of New York or the New York State Supreme Court, it is proper in the Delaware Bankruptcy Court, and thus this Court has the power to transfer this case to Delaware pursuant to § 1406. For a case to be transferable, the transferee court must be one in which the case could have been brought originally. See Int'l Secs. Exchange, LLC v. Chicago Board Options Exchange Inc., No. 06 Civ. 13445 (RMB)(THK), 2007 WL 1541087 (S.D.N.Y. May 24, 2007). Under the jurisdictional provisions in 28 U.S.C. § 1334(b), district courts have original jurisdiction over "all civil proceedings arising under title 11, or arising in or related to cases under title 11." Because broad bankruptcy jurisdiction is "essential to the efficient administration of bankruptcy proceedings," this Circuit has construed the core jurisdiction of the bankruptcy courts "as broadly as possible" so as to be "close to or congruent with constitutional limits." See Luan Investment S.E. v. Franklin 145 Corp. (In re Petrie Retail), 304 F.3d 223, 229 (2d Cir. 2002) (internal quotations and citations omitted). -10-

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Furthermore, this Circuit has broadly interpreted "related-to" jurisdiction under § 1334(b) to cover any action whose "outcome might have any `conceivable effect' on the bankrupt estate." See, e.g., In re Cuyahoga Equipment Corp., 980 F.2d 110, 114 (2d Cir. 1992). Venue in actions arising under or related to bankruptcy cases is proper in the district in which the bankruptcy case is pending. 28 U.S.C. § 1409(a) ("[A] proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."). Here, there can be no dispute that venue is proper in Delaware Bankruptcy Court because the assets at issue in this litigation are at the heart of the bankrupt estates, and because adjudication of Plaintiffs' claims will have a direct effect on the bankrupt estates. See id. As Plaintiffs' claims pertain to the purchase of the vast majority of Old Winstar's business assets, this suit strikes at the core of the bankruptcy estates and the still ongoing bankruptcy proceedings, and is thus firmly within the jurisdiction of the Bankruptcy Court. (See Compl. at ¶¶ 13, 43; see also Ex. C (Bankruptcy Docket).) Further, pursuant to the Blackstone Agreement between the Debtors and Blackstone, Blackstone is entitled to be indemnified for any and all costs of defending the instant litigation. (See Ex. A (Attachment A).) The Impala Agreement similarly requires the Debtors to indemnify Impala for these costs. (See Ex. F (Impala Agreement) Payment of these costs will affect the amount of money that will be available for distribution to the Debtors' creditors in connection with the pending bankruptcy cases in the Delaware Bankruptcy Court. Accordingly, this case this case falls within the broad jurisdictional provisions of 28 U.S.C. § 1334, and thus venue is proper in the Delaware Bankruptcy Court.

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II.

IN THE ALTERNATIVE, EVEN IF VENUE EXISTS IN THIS DISTRICT, THE CASE SHOULD BE TRANSFERRED TO DELAWARE DISTRICT COURT FOR REFERRAL TO DELAWARE BANKRUPTCY COURT IN THE INTERESTS OF JUSTICE PURSUANT TO SECTION 1404(A). If this court determines that venue is proper in this District, it should nonetheless transfer

the case to the Delaware District Court for referral to the Delaware Bankruptcy Court pursuant to 28 U.S.C. § 1404(a), which permits such transfers in the interests of justice.13 As a threshold matter, a transfer pursuant to that provision would give effect to the chosen forum selection clause and the Bankruptcy Court Order. See, e.g., Kmart Corp., 41 F. Supp. 2d at 274 (transferring case pursuant to § 1404 in the face of mandatory forum selection clause); Huntingdon Engineering & Envt'l Inc. v. Platinum Software Corp., 882 F. Supp. 54, 58 (W