Wamai v. Industrial Bank of Korea

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

WINFRED WAIRIMU WAMAI, et al., :

:

Plaintiffs, : 21cv325 (DLC)

:

-v- : OPINION AND ORDER

:

INDUSTRIAL BANK OF KOREA, :

:

Defendant. :

:

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APPEARANCES:

For plaintiffs:

Michael J. Miller

Kyung Jae Han

Jeffrey Travers

The Miller Firm, LLC

108 Railroad Avenue

Orange, VA 22960

Gavriel Mairone

Adora Sauer

MM Law, LLC

980 North Michigan Avenue, Suite 1400

Chicago, IL 60611

Steven W. Pelak

Gwen S. Green

Michael O’Leary

Holland & Hart, LLP

901 K Street N.W., 8th Floor

Washington, DC 20001

Allen L. Rothenberg

Harry Rothenberg

The Rothenberg Law Firm, LLP

1420 Walnut Street

Philadelphia, PA 19102

Steven R. Perles

Edward B. MacAllister

Perles Law Firm, PC

816 Connecticut Avenue N.W., 12th Floor

Washington, DC 20006

For defendant Industrial Bank of Korea:

Carl H. Loewenson, Jr.

J. Alexander Lawrence

Morrison & Foerster LLP

250 West 55th Street

New York, NY 10019

DENISE COTE, District Judge:

Three hundred and twenty-three judgment creditors of Iran

have brought this lawsuit against defendant Industrial Bank of

Korea (“IBK”), a bank that is based in the Republic of Korea

(“Korea”) and operates in the United States. They contend that

IBK illegally transacted with Iran to circumvent both U.S.

sanctions on Iran and the execution of their judgments on

Iranian assets. The complaint seeks a turnover of funds related

to those illegal transactions pursuant to the New York

fraudulent conveyance statute and related provisions of New York

and federal law. IBK has moved to dismiss. It argues that the

doctrine of forum non conveniens warrants dismissal in favor of

litigation in the courts of Korea. For the following reasons,

the motion to dismiss is conditionally granted.

Background

The following facts are derived from the complaint and

other documents properly considered on a motion to dismiss.1

This Opinion also incorporates by reference this Court’s prior

Opinion in Owens v. Turkiye Halk Bankasi A.S., No. 20cv2648

(DLC), 2021 WL 638975 (S.D.N.Y. Feb. 16, 2021), which addressed

a case that involved similar facts and identical legal theories.

I. The Plaintiffs’ Litigation Against Iran and the Iranian

Sanctions Regime

The backdrop to this litigation is a series of lawsuits

against the government of Iran and the United States sanctions

regime that restricts Iran’s access to the American financial

system. This relevant background is described in detail in this

Court’s Opinion in Owens, and this Opinion discusses it only

briefly.

The 323 plaintiffs in this action are victims, or the

representatives of the estates of victims, of terrorist attacks

committed against United States embassies in Kenya and Tanzania

by groups linked to the government of Iran.2 An overwhelming

1 Since the sole issue presented by IBK’s motion to dismiss is

forum non conveniens, a court may consider both the complaint

and other documents submitted by the parties in conjunction with

the motion to dismiss. See Martinez v. Bloomberg LP, 740 F.3d

211, 216 (2d Cir. 2014).

2 All plaintiffs in this case were also plaintiffs in Owens.

majority of the plaintiffs do not live in New York: of the 323

plaintiffs, 269 reside overseas, and of the 54 plaintiffs who

reside in the United States, only three live in New York. As a

result of litigation against Iran in United States courts, in

which Iran defaulted, the plaintiffs are judgment creditors of

Iran and are collectively owed over $5 billion by Iran. But the

plaintiffs have been unable to collect any portion of these

judgments.

As described in Owens, the United States has imposed an

extensive web of sanctions on Iran, which, among other things,

largely prohibits Iran and its instrumentalities from accessing

the American financial system. This sanctions regime is central

to this case for two reasons. First, it has limited the

plaintiffs’ ability to execute on Iranian assets to satisfy

their judgments. This is because there are few Iranian assets

in the United States and Iran has obscured its ownership of

assets in the United States in order to circumvent American

sanctions and its creditors. Second, the sanctions regime

prohibits banks operating in the United States from, in most

circumstances, doing business with Iran and its

instrumentalities.

II. IBK and its Alleged Sanctions Violations

IBK is a financial institution headquartered in and

organized under the laws of Korea. The Korean government owns a

majority of IBK’s stock, and IBK’s management is ultimately

accountable to the President of Korea and Korean regulatory

agencies. IBK’s operations are overwhelmingly focused on Korea,

but it has a small physical presence in New York, which is its

only physical location in the United States. It maintains a

single branch in New York (as compared to 635 branches in Korea)

and of its 13,930 worldwide employees, only 29 are based in New

York. IBK’s New York operations primarily involve the provision

of financial services to Korean and Korean-American businesses.

Korean law permits Korean entities to do business with Iran

and Iranian entities in certain circumstances. To facilitate

transactions between Korea and Iran, the Central Bank of Iran

opened accounts (the “CBI Accounts”) at IBK in 2010. The Korean

government imposed certain restrictions on the use of these

accounts to ensure that the accounts were not used to violate

Korean law or the U.S. sanctions regime. These restrictions

included a review process for transactions involving the CBI

Accounts, in which the Korean government and IBK were required

to examine certain business documentation associated with

proposed transactions involving the CBI Accounts to ensure that

the transactions reflected authentic trade relationships that

comported with Korean law.

The plaintiffs allege that in 2011, the IBK accounts were

used to facilitate over a billion dollars in transactions that

violated U.S. sanctions. The ringleader of these illegal

transactions was an American businessman named Kenneth Zong, who

set up a series of shell companies in Korea, Iran, and

elsewhere. These shell companies undertook what purported to be

a series of legal transactions between Korean and Iranian

companies via the CBI Accounts. In fact, these transactions

were a sham, and the money flowing through the CBI Accounts was

in fact money belonging to the Iranian government. Zong and his

coconspirators presented falsified documents to IBK and the

Korean government in order to circumvent regulatory requirements

and mask the nature of the transactions. Through the use of

shell companies and the CBI Accounts, Zong and his

coconspirators were able to convert Iranian government funds

into U.S. dollars for use in transactions involving U.S.

institutions that would otherwise violate U.S. law. As a result

of these transactions, over $1 billion in Iranian funds passed

through IBK’s correspondent bank accounts at New York banks, in

violation of U.S. sanctions law.

To circumvent the restrictions imposed on the CBI Accounts

by the Korean government, Zong and his coconspirators bribed

several senior officials at IBK. As a result of these bribes,

IBK officials failed to properly scrutinize the underlying

documents associated with Zong’s transactions, in violation of

the aforementioned Korean regulations. Some of the transactions

passed through IBK’s branch in New York, which failed to

identify potential sanctions violations due to substandard

compliance protocols. If IBK had complied with its obligation

to review the underlying transaction documents associated with

use of the CBI Accounts, it would have identified the

transactions as a sham. IBK profited from the scheme through

fees associated with the transactions.

In 2013, Zong was indicted in Korea for his role in the

scheme. He is currently serving a prison sentence in Korea.

Both Zong and one of his family members who participated in his

scheme are also facing federal criminal charges in the United

States. Federal and state prosecutors and financial regulators

in New York also investigated IBK’s role in the scheme. IBK

eventually entered into a deferred prosecution agreement in this

Court, in which it agreed to pay a penalty of $51 million for

its facilitation of Zong’s scheme to evade U.S. sanctions on

Iran. IBK also entered into a deferred prosecution agreement

with the New York Attorney General and agreed to a consent

decree with the New York Department of Financial Services that

involved a penalty of $35 million and the imposition of certain

oversight requirements on the bank.

III. Procedural History

The plaintiffs commenced this action on January 14, 2021.

Their Complaint alleges four causes of action. The first cause

of action seeks rescission and turnover of fraudulent

conveyances under N.Y. Debt. & Cred. Law § 273-a.3 Second, they

bring a claim for rescission and turnover of fraudulent

conveyances made with intent to evade a judgment, pursuant to

N.Y. Debt. & Cred. Law § 276. The third cause of action seeks

turnover under N.Y. C.P.L.R. § 5225. Finally, the complaint

seeks turnover pursuant to the Terrorism Risk Insurance Act, §

201(A), 28 U.S.C. § 1610(f)(1)(A).

On February 16, this Court issued its Opinion conditionally

dismissing Owens on forum non conveniens grounds. In the wake

of the Owens decision, IBK moved on March 2 to stay this case

3 In 2020, New York revised its fraudulent conveyance statute,

and the revisions took effect on April 4, 2020. Uniform

Voidable Transactions Act, 2019 Sess. Law News of N.Y. Ch. 580

(A. 5622)(McKinney's). The revisions do “not apply to . . .

transfer[s] made” before April 4, 2020. Id. at § 7. Since all

of IBK’s actionable conduct alleged in the Complaint occurred

before April 4, 2020, references to the New York fraudulent

conveyance statute in this Opinion are to the version that was

in effect prior to April 4, 2020.

pending the resolution of any appeal of Owens. In the

alternative, IBK sought a bifurcated briefing schedule for its

intended motion to dismiss, under which it would first move to

dismiss on the forum non conveniens issue addressed in Owens and

then, if that motion to dismiss were to be denied, it would be

given the opportunity to move to dismiss on other grounds. The

Court found that the proposed bifurcation of the motion to

dismiss briefing would facilitate “just, speedy, and inexpensive

determination of [this] action,” Fed. R. Civ. P. 1, and adopted

IBK’s proposal to limit motion to dismiss briefing to the forum

non conveniens issue. IBK moved to dismiss on the grounds of

forum non conveniens on April 13. The motion to dismiss became

fully submitted on June 3.

Discussion

“The doctrine of forum non conveniens allows a district

court to refuse to entertain jurisdiction of a case” in favor of

a foreign country’s courts “when doing so would best serve the

convenience of the parties and the ends of justice.” Gross v.

Brit. Broad. Corp., 386 F.3d 224, 229 (2d Cir. 2004) (quoting

Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527

(1947)). A district court maintains “broad discretion” in

determining whether to dismiss a case on the basis of forum non

conveniens. Bigio v. Coca-Cola Co., 448 F.3d 176, 180 (2d Cir.

2006). The Second Circuit has, however, set out “a three-step

process to guide the exercise of that discretion.” Norex

Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d

Cir. 2005). “At step one, a court determines the degree of

deference properly accorded the plaintiff's choice of forum.”

Id. At the second phase of the analysis, the district court

“considers whether the alternative forum proposed by the

defendants is adequate to adjudicate the parties' dispute.” Id.

“Finally, at step three, a court balances the private and public

interests implicated in the choice of forum.” Id. Each element

is addressed in turn.

I. Deference to the Plaintiffs’ Choice of Forum

“Any review of a forum non conveniens motion starts with a

strong presumption in favor of the plaintiff's choice of forum.”

Norex, 416 F.3d at 154 (quoting Piper Aircraft Co. v. Reyno, 454

U.S. 235, 255 (1981). But that strong presumption does not

amount to absolute deference to the plaintiff’s choice.

Instead, “the degree of deference given to a plaintiff's forum

choice varies with the circumstances,” Iragorri v. United Techs.

Corp., 274 F.3d 65, 71 (2d Cir. 2001), and “moves on a sliding

scale depending on the degree of convenience reflected by the

choice in a given case,” Norex, 416 F.3d at 154.

Generally, when “the plaintiff[] or the lawsuit[]” has a

substantial “bona fide connection to the United States” and

“considerations of convenience favor the conduct of the lawsuit

in the United States,” it will be “difficult . . . for the

defendant to gain dismissal for forum non conveniens.”

Iragorri, 274 F.3d at 72. In order to assess whether

“considerations of convenience” favor litigating in an American

forum, courts are instructed to look to

the convenience of the plaintiff's residence in

relation to the chosen forum, the availability of

witnesses or evidence to the forum district, the

defendant's amenability to suit in the forum district,

the availability of appropriate legal assistance, and

other reasons relating to convenience or expense.

Id. By contrast, when “it appears that the plaintiff’s choice

of a U.S. forum” was motivated by “attempts to win a tactical

advantage,” it becomes “easier . . . for the defendant to

succeed on a forum non conveniens motion.” Id.

Several principles apply specifically to the scenario

presented in this case, where a group of foreign plaintiffs and

American plaintiffs bring suit together. Generally, “when a

foreign plaintiff chooses a foreign forum, it is much less

reasonable to presume that the choice was made for convenience.”

Iragorri, 274 F.3d at 71 (quoting Reyno, 454 U.S. at 256).

There is therefore “little reason to assume” that a U.S. forum

“is convenient for a foreign plaintiff.” Id. A foreign

plaintiff’s choice of a U.S. forum is nevertheless “entitled to

some weight,” even if it is entitled to less weight than an

American plaintiff’s choice of an American forum. Bigio, 448

F.3d at 179. Further, as this Court noted in Owens, “the

plaintiffs’ choice of forum in cases” like this one “where the

U.S. resident plaintiffs are significantly outnumbered by

foreign plaintiffs” is entitled to less deference than an

individual American plaintiff’s choice of an American forum.

2021 WL 638975, at *4.

In this case, as in Owens, these considerations indicate

that the plaintiffs’ choice of forum is entitled to minimal

deference. The vast majority of the plaintiffs here are not

resident in the United States, and of the handful of plaintiffs

who are U.S. residents, only a small fraction live in New York.

The plaintiffs’ residence is therefore not convenient to the

chosen forum.

Moreover, this case primarily involves allegations that

Korea-based employees of a Korean bank conspired to violate U.S.

law and fraudulently convey Iranian funds. Much of the

potential proof, then, is in Korea. The plaintiffs argue that

some portion of the relevant evidence may be available in the

U.S. because of the state and federal investigations into IBK’s

conduct, but that evidence would be in the hands of state and

federal prosecutors and not readily available to the parties in

this litigation. Further, while the plaintiffs point to

potential witnesses in the United States –- such as former

employees of IBK’s New York branch and state and federal

regulators who investigated issues involving IBK -- that may

have some knowledge of issues related to IBK’s business

practices, the plaintiffs provide no reason to believe that

those witnesses have knowledge of “the precise issues that are

likely to be actually tried.” Iragorri, 274 F.3d at 74. If

this case proceeds in New York, then, discovery and trial would

likely involve an arduous process of securing the appearance of

witnesses without the benefit of this Court’s subpoena power and

transporting witnesses and evidence to the United States.

Iragorri instructs that the unavailability of witnesses and

evidence in the plaintiffs’ chosen forum weighs against

deference.

Additionally, it is unclear whether IBK is amenable to

jurisdiction in New York in this case. In its motion to dismiss

based on forum non conveniens, IBK indicated its intent to move

to dismiss for lack of personal jurisdiction and lack of subject

matter jurisdiction due to its immunity under the Foreign

Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605 et seq. The

plaintiffs dispute these potential jurisdictional arguments,

arguing that IBK waived them by agreeing to a deferred

prosecution agreement and that this Court would have

jurisdiction under New York state law even without the effect of

the deferred prosecution agreement. Given these disputes, this

Court would be required to address complex threshold issues of

state and federal law before proceeding to the merits of this

litigation.4 This jurisdictional dispute in and of itself weighs

against deferring to the plaintiffs’ choice of forum.5

4 Given that a denial of sovereign immunity is immediately

appealable under the collateral-order doctrine, Funk v.

Belneftekhim, 861 F.3d 354, 363 (2d Cir. 2017), the Second

Circuit could also be burdened with addressing threshold

jurisdictional issues presented by this litigation.

5 In arguing for deference to their choice of forum, the

plaintiffs note that Congress has abrogated foreign sovereign

immunity in certain cases that seek money damages for a foreign

sovereign’s role in international terrorism. 28 U.S.C. § 1605A;

1610. It is unlikely that this exception would apply to IBK’s

immunity because the exception applies to “foreign state[s] . .

. designated as a state sponsor of terrorism,” 28 U.S.C. §

1605A(a)(2), IBK’s sovereign immunity is derivative of Korea’s,

and Korea is not designated as a state sponsor of terrorism.

Vera v. Banco Bilbao Vizcaya Argentaria, S.A., 946 F.3d 120, 135

(2d Cir. 2019) (“The FSIA’s terrorism exception does not apply

to instrumentalities of a non-designated state.”) (citation

omitted).

Moreover, this issue is a red herring. Even if credited, the

plaintiffs’ argument only allows for subject matter jurisdiction

when this Court otherwise would not have it. See 28 U.S.C. §

1604. But subject matter jurisdiction is not the issue

presented by a forum non conveniens motion; the central premise

of the forum non conveniens doctrine is that a “district court

[may] refuse to exercise jurisdiction of a case even where

jurisdiction is authorized.” Gross, 386 F.3d at 229 (emphasis

supplied).

Finally, the plaintiffs note that they have retained

qualified U.S. counsel not capable of representing them if this

litigation continues in Korea. While they express concern that

they would be unable to retain Korean counsel if this case were

to proceed in Korea, they provide no basis for that assertion.

In sum, the factors set forth by the Second Circuit in Iragorri

suggest that some, albeit minimal, deference should be awarded

to the plaintiffs’ choice of a New York forum.

II. Adequacy of Korea as an Alternative Forum

The second step of the forum non conveniens analysis

requires consideration of whether the defendant’s proposed

alternative forum is available and adequate. “The defendant

bears the burden of establishing that a presently available and

adequate alternative forum exists.” Abdullahi v. Pfizer, Inc.,

562 F.3d 163, 189 (2d Cir. 2009).

IBK proposes Korea as an adequate alternative forum. “An

alternate forum is adequate if the defendants are amenable to

service of process there, and if it permits litigation of the

subject matter of the dispute.” Figueiredo Ferraz E Engenharia

de Projeto Ltda. v. Republic of Peru, 665 F.3d 384, 390 (2d Cir.

2011) (citation omitted). For an alternative forum to be

adequate, it need not offer either “the identical cause of

action” that the plaintiffs intend to pursue in the U.S. forum,

or “identical remedies.” Norex, 416 F.3d at 158 (citation

omitted). But where the proposed alternative forum “does not

permit the reasonably prompt adjudication of a dispute,” the

proposed alternative “forum is not presently available,” or

“provides a remedy so clearly unsatisfactory or inadequate that

it is tantamount to no remedy at all,” a court may conclude that

the proposed alternative forum is inadequate. Abdullahi, 562

F.3d at 189.

Korea is an adequate alternative forum for litigation of

this matter. IBK is amenable to service of process there:

indeed, IBK’s Chief Compliance Officer has averred that it will

accept service of process in Korea and will not contest personal

jurisdiction in Korea. Further, as will be discussed later in

this Opinion, the Court will condition dismissal of this action

on a stipulation to accept service in Korea. “An agreement by

the defendant to submit to the jurisdiction of the foreign forum

can generally satisfy the [amenability to process] requirement.”

Aguinda v. Texaco, Inc., 303 F.3d 470, 477 (2d Cir. 2002)

(citation omitted).

Korea also permits litigation of the subject matter of this

dispute. The parties do not dispute that Korean law includes

analogues of the fraudulent conveyance and turnover claims

alleged in the plaintiffs’ complaint. The plaintiffs primarily

argue, based on expert declarations submitted with their brief

in opposition to the defendants’ motion to dismiss,6 that they

would be unable to pursue their claims in Korea because, under

Korean law, a precondition to doing so is a Korean court’s

recognition of their U.S. default judgments against Iran as

valid. Their experts contend that a Korean court is unlikely to

do so for various reasons. IBK’s experts dispute this

contention and suggest that a Korean court would be likely to

recognize the plaintiffs’ U.S. judgments.

IBK’s analysis of whether Korean courts would recognize the

plaintiffs’ U.S. judgments is more convincing than that

presented by the plaintiffs and their experts.7 For instance,

the plaintiffs argue that Korean courts would be unlikely to

recognize the plaintiffs’ judgments because Korean courts must

conclude that a foreign court had “international jurisdiction”

6 These expert declarations, and those submitted by IBK, are

properly considered on a motion to dismiss for forum non

conveniens. Owens, 2021 WL 638975, at *4 n. 3.

7 IBK’s experts have also pointed out that the conduct alleged by

the plaintiffs can potentially subject IBK to liability under

several different Korean legal frameworks that may not require

recognition of the plaintiffs’ judgments in Korea. These

frameworks include Korean tort law and the Korean law of a

creditor’s right of revocation. In any event, it is unnecessary

to assess whether the availability of a remedy under these

theories is dependent on the recognition of the plaintiffs’

judgments in Korea, because IBK has demonstrated that Korean

courts are likely to recognize the plaintiffs’ U.S. judgments as

valid.

to enter a judgment before recognizing that foreign judgment.

But IBK’s experts have convincingly demonstrated, through

citations to applicable precedent of the Supreme Court of Korea,

that a Korean court is likely to conclude that the U.S. court

that entered the plaintiffs’ default judgments had

“international jurisdiction” under Korean law. The plaintiffs’

experts have also suggested that a Korean court may decline to

recognize the plaintiffs’ U.S. judgments against Iran because,

under Korean law, Iran was entitled to sovereign immunity. But

IBK’s experts have demonstrated that Korean courts, like

American courts, are likely to recognize an exception to

sovereign immunity for acts of terrorism committed against

international law.

IBK’s experts have also pointed out that the plaintiffs’

experts made significant errors in their interpretation of

applicable provisions of Korean law. For instance, while the

plaintiffs’ experts argue that the plaintiffs’ judgments are

unlikely to be fully recognized by a Korean court because they

include a substantial award of punitive damages, the purported

provision of Korean law upon which the plaintiffs’ experts rely

in forming that conclusion is actually a proposed bill that was

not adopted by the Korean legislature.8 In sum, the analysis set

forth by the parties’ respective experts indicates that the

plaintiffs would likely be able to enforce their U.S. judgments

in Korea. Korea is therefore an adequate alternative forum.

Additionally, the plaintiffs argue that Korea is not an

alternative forum because their claims against IBK may be time

barred under Korean law. IBK, however, has represented to the

Court that it will waive all statute of limitations defenses it

could assert in Korea, and the Court will condition dismissal on

such a waiver. The potential for a statute of limitations

defense is thus no basis for concluding that Korea is an

inadequate forum.

III. Private and Public Interests

At the final stage of the forum non conveniens analysis,

the Court must consider whether the applicable private and

public interest factors support dismissal. Private interest

factors are those that involve the “convenience of the

litigants” and include

the relative ease of access to sources of proof;

availability of compulsory process for attendance of

unwilling, and the cost of obtaining attendance of

willing, witnesses . . . and all other practical

8 Moreover, even if the plaintiffs’ potential recovery in Korea

is less than the full value of their U.S. judgments because

Korean law does not recognize punitive damages, “the fact that a

plaintiff might recover less in an alternate forum does not

render that forum inadequate.” Figueiredo, 665 F.3d at 391.

problems that make trial of a case easy, expeditious

and inexpensive.

Iragorri, 274 F.3d at 73-74 (quoting Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 508 (1947)).

The relevant public interest factors include

the administrative difficulties flowing from court

congestion; the local interest in having localized

controversies decided at home; the interest in having

the trial of a diversity case in a forum that is at

home with the law that must govern the action; the

avoidance of unnecessary problems in conflict of laws,

or in the application of foreign law; and the

unfairness of burdening citizens in an unrelated forum

with jury duty.

Gross, 386 F.3d at 233 (quoting Reyno, 454 U.S. at 241 n.6).

These private interest factors weigh in favor of litigating

in Korea. As described above, the majority of both the

documentary evidence and percipient witnesses in this case is

thousands of miles away in Korea. Litigating in New York under

such circumstances would be far from “easy, expeditious and

inexpensive.” Iragorri, 274 F.3d at 73-74.

The public interest factors also weigh against permitting

this case to proceed in New York. For one, New York has no

local interest in deciding this case because this case has

almost no connection to New York. The underlying facts giving

rise to the plaintiffs’ litigation against Iran stem from

overseas terrorist attacks, and their U.S. judgments were

entered in the District of Columbia. As alleged in the

plaintiffs’ complaint, most of IBK’s conduct exposing it to

liability occurred in Korea and other foreign countries.

Indeed, the primary connection between the facts of this case

and New York seems to be the allegation that IBK passed Iranian

funds through correspondent bank accounts in New York. But the

coincidental involvement of bank accounts in New York, a global

financial hub, is not enough to make this a New York

controversy. As the New York Court of Appeals has noted, New

York’s “interest in the integrity of its banks . . . is not

significantly threatened every time one foreign national,

effecting what is alleged to be a fraudulent transaction, moves

dollars through a bank in New York,” and the tangential

involvement of the New York banking system “is not a trump to be

played whenever a party . . . seeks to use [New York] courts for

a lawsuit with little or no apparent contact with New York.”

Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 12 N.E.3d

456, 460 (N.Y. 2014) (citation omitted).

Given the minimal connection between New York and the

issues in this case, New York has almost no interest in seeing

it decided here, and it makes little sense to burden a New York

court and jury with it. Korea, by contrast, has a strong

interest in hearing this case, because it involves alleged

misconduct by a government-sponsored Korean bank that in large

part occurred in Korea.

Additionally, there is a possibility that even if this

action were to proceed in New York, this Court would be required

to apply Korean law to the plaintiffs’ claims. New York’s

choice of law rules would be used to determine the applicable

substantive law in this case. Kinsey v. New York Times Company,

991 F.3d 171, 176 (2d Cir. 2021). IBK argues that an

application of New York choice of law rules dictates the

application of Korean substantive law in this case, while the

plaintiffs contend that New York substantive law will apply.

This dispute in and of itself weighs in favor of dismissal,

since “the public interest factors point towards dismissal where

the court would be required to untangle problems in conflict of

laws, and in law foreign to itself.” Reyno, 454 U.S. at 251

(citation omitted).

IV. Conditional Dismissal

This action is appropriately dismissed on the grounds of

forum non conveniens. The plaintiffs’ choice of forum is

entitled to minimal deference, IBK has shown that Korea is an

adequate alternative forum where this litigation may proceed,

and relevant private and public interest factors support

dismissal. As in Owens, however, this Court will require

conditional dismissal in order to protect the rights of the

plaintiffs and to ensure that their claims may be heard on the

merits in Korea. 2021 WL 638975, at *6 (quoting Blanco v. Banco

Indus. de Venezuela, S.A., 997 F.2d 974, 984 (2d Cir. 1993)).

The parties shall submit an agreement to litigate in Korea,

which shall include a commitment by IBK to accept service in

Korea and waive any jurisdictional or statute of limitations

defense.

Conclusion

IBK’s April 13 motion to dismiss on the grounds of forum

non conveniens is conditionally granted. The parties shall

file an agreement to litigate in Korea, containing the

aforementioned terms, by July 28, 2021. Upon filing of that

agreement, judgment will be entered for IBK and this case will

be closed.

Dated: New York, New York

July 14, 2021

fit COTE

United States District Judge

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