Petition for Writ of Certiorari — Universal Trading & Investment Co. v. Kiritchenko

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(\) Supreme Court, U.S.

FILED

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: 991150 MAR 18 2610

OFFICE OF THE CLERK

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Supreme Court of the Anited States

—__—_——__—-¢

UNIVERSAL TRADING & INVESTMENT CO., INC.,

Petitioner,

PETRO MIKOLAYEVICH KIRITCHENKO,

PAVLO IVANOVICH LAZARENKO, et al.,

Respondents.

— .

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

ins in —e

PETITION FOR A WRIT OF CERTIORARI

JEFFREY A. NEEDELMAN

Attorney at Law

P.O. Box 471146

San Francisco, CA 94147-1146

(415) 441-4401

jneedelmanesq@sbcglobal.net

Counsel of Record for Petitioner

MARCH 2010

COCKLE LAW BRIEF PRINTING CO +800) 22

{CALL COLLF‘¢ 402) 542-2551

QUESTIONS PRESENTED FOR REVIEW

Petitioner Universal Trading and Investment

Co., Inc. brought an action under the Racketeer

Influenced and Corrupt Organizations Act in United

States District Court against Ukraine’s former Prime

Minister Pavlo Ivanovich Lazarenko, and his co-

conspirator, Petro Mikolayevich Kiritchenko, for col-

lection of stolen Ukraine assets located in the United

States. The District Court entered summary judg-

ment against Petitioner, holding that it lacked

standing to bring the action because an assignment

to it of Ukraine’s claims against Lazarenko and

Kiritchenko was invalid under Ukraine law. Affirm-

ing, the Court of Appeals invalidated an Ordinance

made by the recently elected Ukraine President —

who was Ukraine Prime Minister at the time — signed

by Ukraine’s First Deputy Prime Minister — now the

new Prime Minister. That Ordinance was proposed by

the then Ukraine’s Minister of Justice — now again

Ukraine’s Minister of Justice. The District Court also

was unaware that, in a case brought by Lazarenko in

Ukraine, Ukraine Supreme Court upheld the assign-

ment.

1. In the action brought by Petitioner, a

Massachusetts corporation, against Ukraine’s former

Prime Minister and his apparatchik for assets stolen

from Ukraine and located in the United States, must

the federal courts give collateral estoppel effect,

under the principle of comity among nations, to the

decision of Ukraine Supreme Court, discovered

QUESTIONS PRESENTED

FOR REVIEW — Continued

shortly after the District Court granted summary

judgment against Petitioner, where the failure to

recognize the decision prejudices the rights of the

Massachusetts corporation and rewards the foreign

fugitives from justice?

2. In finding that Ukraine’s assignment to Peti-

tioner of Ukraine’s claims in the United States

against its former Prime Minister and his appa-

ratchik was not an act of state that precluded a

federal court from inquiring into its validity, did the

District Court wrongly conclude that the act of state

doctrine does not apply ordinarily to acts of a foreign

government with consequences outside the foreign

country’s territory?

3. When interpreting the constitution of a

foreign State, should a federal court recognize that an

organ of the foreign State may have implicit powers

under provisions of its constitution to take actions in

the foreign nation’s interest that do not contradict

express limitations of the State’s authority, such as

the actions taken here by Ukraine Prosecutor

General’s Office in hiring Petitioner, a non-Ukraine

corporation, to collect and freeze converted Ukraine

assets abroad and in assigning Ukraine’s claims for

the assets located in the United States against its

former Prime Minister and his apparatchik as com-

pensation for Petitioner’s worldwide work for re-

covery of assets?

ill

PARTIES TO THE PROCEEDINGS

The parties to the proceedings are: (1) UNIVERSAL

TRADING & INVESTMENT CoO., INC., Petitioner;

(2) PETRO MIKOLAYEVICH KIRITCHENKO, aka

PETRO KIRITCHENKO, aka PETR KIRITCHENKO,

aka PETER KIRITCHENKO, aka PETRO

KYRYCHENKO, aka PETRO KIRICHENKO, aka

PETR KIRICHENKO, aka PETER KIRICHENKO;

(3) IZABELLA G. KIRITCHENKO, aka IZABELLA

KIRICHENKO; (4) LUDMILA KIRITCHENKO, aka

LYUDMILA KIRITCHENKO; (5) PAVLO IVANOVICH

LAZARENKO, aka PAVLO LAZARENKO, aka

PAVEL LAZARENKO, aka PAUL LAZARENKO,; (6)

TAMARA PETROVNA LAZARENKO, aka TAMARA

LAZARENKO,; (7) ALEX LIVERANT; (8) MICHAEL

MENKO; (9) JOHNNY E. JOHNSON; (10)

BRANCROSS U.S. HOLDINGS, INC., a California

Corporation; (11) XANADU PROPERTY HOLDINGS,

LLC, a California limited liability company; (12)

DUGSBERY, INC., aka DUGSBERRY, INC., a Cali-

fornia Corporation; (13) BRANCROSS, LTD., a Cay-

man Islands corporation; (14) BRANCROSS, LTD., an

Isle of Man corporation; (15) ZENETA FOUNDA-

TION, a Liechtenstein corporation trust; (16) EURO-

PEAN FEDERAL CREDIT BANK, aka EUROFED

BANK LIMITED, a banking corporation of Antigua

and Barbuda, aka EUROFED CO., a Grenada corpo-

ration; (17) SELECTIVE ASSETS, LTD., a British

Virgin Islands corporation; (18) ORBY INTERNA-

TIONAL, LTD., a British Virgin Islands corporation;

(19) TORQ DEVELOPMENT CORPORATION, a

PARTIES TO THE PROCEEDINGS - Continued

California corporation; (20) LADY LAKE LTD., an

Antigua and Barbuda corporation; (21) NEMURO

INDUSTRIAL GROUP LTD., an Antigua and

Barbuda corporation; (22) FAIRMONT GROUP, LTD.,

an Antigua and Barbuda corporation; (23) FIRSTAR

SECURITIES LTD., an Antigua and Barbuda cor-

poration; (24) GUARDIAN INVESTMENT GROUP,

LTD., an Antigua and Barbuda corporation; (25) ABS

TRADING, INC., a California corporation, aka ABS

TRADING COMPANY, INC., a California corpora-

tion, aka ABS ENTERPRISES, INC., a California

corporation, Respondents.

Of the parties listed, who either participated or

joined in the appellate proceedings, the following

parties listed as Respondents in the caption did not

participate in the appellate proceedings: JOHNNY E.

JOHNSON; BRANCROSS, LTD., a Cayman Islands

corporation; BRANCROSS, LTD., an Isle of Man cor-

poration; ZENETA FOUNDATION, a Liechtenstein

corporation trust; NEMURO INDUSTRIAL GROUP,

LTD., an Antigua and Barbuda corporation; FAIR-

MONT GROUP, LTD., an Antigua and Barbuda cor-

poration; FIRSTAR SECURITIES, LTD., an Antigua

and Barbuda corporation; GUARDIAN INVEST-

MENT GROUP, LID., an Antigua and Barbuda

corporation; SELECTIVE A SETS, LTD., a British

Virgin Islands corporation; and ORBY INTERNA-

TIONAL, LTD., a British Virgin Islands corporation.

CORPORATE DISCLOSURE STATEMENT

Petitioner is a Massachusetts corporation. There

is no parent or publicly held company owning ten

percent or more of the corporation's stock.

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUIT. ..........--c:scsssccsccsesees. 1

OPINIONS AND ORDERS BELOW..................... 1

a cpuseaneoneuoanneeeess 2

CONSTITUTIONAL AND STATUTORY PROVI-

I oo sn seve ccnsuooneenescebooseres 3

STATEMENT OF THE CASE...................ccceeeeee0s 8

I. Factual BAOCKMTOURG ...............0cccccsccceseeeese: 8

Ij. Proceedings In District Court Before

Tg | Sa 11

IiIl. District Court Grants Summary Judg-

IV. District Court’s Findings On Summary

Judgment Regarding Kiritchenko’s Ukraine

iain tL ssh uhigtennubedanandareueducecotes 13

V. District Court’s Findings On Summary

Judgment Regarding Lazarenko’s Ukraine

era Galen demiaachaseviersixecdeesis 13

VI. District Court’s Findings Entitling Defen-

dants To Summary Judgment ................... 14

VII. Ukraine Supreme Court Proceedings In

Lazarenko’s Case Unknown To District

Court Before Granting Summary Judg-

tana ened mienipnedenesesrerecseacheuss 16

VIII. Post-Judgment Proceedings In The Dis-

Sg 17

IX.

TABLE OF CONTENTS — Continued

Page

Proceedings In The Court Of Appeals.......

Post-Appellate Events ......................:00e0000

REASONS FOR GRANTING THE WRIT ...........

Il.

Granting Certiorari Will Enable This

Court To Pronounce That It Is Not A

Matter Of Judicial Discretion To Deny

Comity To A Foreign Supreme Court

Judgment — Against The Foreign Party

Who Brought The Foreign Proceeding —

When Failure To Recognize The Foreign

Judgment Results In Dismissal Of The

American Plaintiff’s Case That Was Not

A Party To The Foreign Proceeding...........

The Court Should Grant Certiorari

Because The Lower Courts’ Refusal To

Enforce Acts Of Ukraine’s Government

Outside Ukraine That Are Consistent

With United States Policies Improperly

Expands The Role Of The Judicial

Branch Into The Conduct Of United

States Foreign Relations...........................

The District Court’s Interpretation Of

Ukraine’s Constitution As Consisting Of

Limited Enumerated Powers And Not

Permitting Implied Powers Deprives

Ukraine Of Powers Other Foreign

Governments Enjoy Under International

Law To Reclaim Public Assets Trans-

ported From Ukraine Illegally ..................

IIT a iisirssireoscercetalice Rasteaaagibibsay cilia saccueiwleduceaae

Vill

TABLE OF CONTENTS — Continued

Page

APPENDIX

Court of Appeals memorandum, filed Sep-

RN I: MIEN encecdenconniscncacsentranvannivcees evened App. l

Court of Appeals order (denying limited

remand), filed February 21, 2008.................... App. 4

District Court order granting defendants’

motion for summary Judgment re: standing;

granting plaintiffs’ motions to supplement

record, filed September 7, 2007.....................0. App. 6

District Court order denying plaintiff’s

administrative motion to exceed volume of

motion under Rule 59(e); denying as moot

plaintiff’s administrative motions to file

documents under seal and for protective

order; directions to clerk, filed October 11,

District Court order denying plaintiff’s motion

to refile, Rule 59(e) motion, application for

letter of request, motion to alter, motion for

leave of appeal, request for documents, and

motion to amend; vacating hearing, filed

ee 4 SU | ne sna neuisaantieneenes App. 65

District Court order denying administrative

request to set conference, filed February 8,

Dl sidsntusekn acaodabereperheansesncorcacsvapanasestmecesats App. 76

TABLE OF CONTENTS —- Continued

Page

District Court order denying administrative

request to set conference, filed June 16,

BE secswesdcaccodsesevsacsdtdardriesiecéccse ee App. 78

Court of Appeals order (denying panel re-

hearing or rehearing en banc), filed Novem-

RI Fly Se ike scnsvtstevcrvavevceecervennctendaaeeee App. 86

Affidavit of Dr. W. Scott Thompson in support

of plaintiff’s opposition and of cross-motion

under Rule 56(g) and for continuance re:

defendants Kiritchenko’s motion for sum-

mary judgment (with 8 selected exhibits),

NO SARUGLY DO, BOO coccesicccttesverieemane App. 88

Exhibit 12 to Thompson Affidavit, Brief of

Amicus of Ukraine, dated April 13, 1999.... App. 118

Exhibit 16 to Thompson Affidavit, Assignment

Document of Ukraine Prosecutor General's

Office to Universal Trading & Investment

Co. (UTICo), dated August 11, 1999............ App. 143

Exhibit 19 to Thompson Affidavit, Letter from

Foreign Ministry to Minister of Justice,

GROG GOIN 7, DHIIG 6 cvcnviececsesensesrsves rosacea App. 145

Exhibit 20 to Thompson Affidavit, Minister of

Justice Letter to Prime Minister, dated July

Fs BOE crrciveretuverciexsciventtiverenmaae ae App. 147

Exhibit 21 to Thompson Affidavit, Prime Min-

ister’s Ordinance, dated July 19, 2003........ App. 151

Exhibit 22 to Thompson Affidavit, Letter of

Prosecutor General to President, dated

September 15, DO0G....0<00ccececsccerstcrvesseamamaaa App. 153

TABLE OF CONTENTS - Continued

Page

Exhibit 23 to Thompson Affidavit, Letter of

President’s Administration to Minister of

Justice, dated October 2, 2003 .................... App. 158

Ukraine Supreme Court decision, dated March

int TT [il cidddehctisktosiadeueesecesbvenevecsortatacerreenss App. 160

Ukraine Supreme Court decision, dated June

De IEE Risundiiesécsseces att etleaeheinebiny App. 164

The White House Press Statement, dated

ssi cacucinausaieaididbeexeteveekeexeste App. 173

The White House Press Statement, dated

i i i icircetarvecessrestoeteseectsovcucevede App. 174

The U.S. Senate Resolution on Ukraine, dated

a aaiaiieaoniaed App. 175

Itar-Tass release, re: Verkhovna Rada’s ap-

proval of Prime Minister, dated March 11,

Satie ronecntssnee Nvaavabauerses 9) LEO RRS SLOP AONE App.

TABLE OF AUTHORITIES

Page

CASES

Alfred Dunhill of London, Inc. v. Republic of

Cuba, 425 US. 682, 96 S.Ct. 1854, 48

SK 8 PES. | | Re NOS

Baldwin v. lowa State Traveling Men’s Ass’n,

283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244

I cisiiekciastiepsnsdectaloataiesledapsainanidatiesanauntine atameaiors ddaatieedaatd 27

Banco Nactonal de Cuba v. Sabbatino, 376

U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804

b. | | Fehe SBE Eetktonte eet 40, eey Se PE Te sno 29, 32, 33, 39

Blonder-Tongue Labs., Inc. v. University of

Illinois Found., 402 U.S. 313, 91 S.Ct. 1434,

ee eee Fee CE ES cticiniidccicsvnedeetstoeuse tus cccuteeds 27

Central Green Co. v. United States, 531 U.S.

425, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001)......... 28

Films by Jove, Inc. v. Berov, 250 F.Supp.2d 156

i 8 | ene A ee ee nan eae 24, 26

First Nat. City Bank v. Banco Nacional de

Cuba, 406 U.S. 759, 92 S.Ct. 1808, 32

L.Ed.2d 466 (1972)............. SEEN SIMA rier Ak AE AIR 30, 33

Guaranty Trust Co. v. United States, 304 U.S.

126, 58 S.Ct. 785, 82 L.Ed. 1224 (1938)...........0..... 36

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258

| SRR eRe ae antes SI ee ADDER ELM: 4]

Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40

Rais Ee Ire saneseasereavucucueuneecncual: hanced 23, 24

TABLE OF AUTHORITIES — Continued

Page

Humphrey's Executor v. United States, 295 U.S.

602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935)................. 28

Ingenohl v. Walter E. Olsen & Co., 273 U.S.

541, 47 S.Ct. 451, 71 L.Ed. 762 (1927)...........0.0000.d1

Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct.

S77, BD Le Fe 200 CIGGE) onc esevcccncencecccsenesereveeeveres 41

Laker Airways Ltd. v. Sabena, Belgian World

Airlines, 731 F.2d 909 (D.C. Cir. 1984)............0...... 24

Lemoge v. United States, 587 F.3d 1188 (9th

Ai So viavoniarcucensneserdeuis tn aronicied snare waactent on 25

Lerman v. Joyce International, Inc., 10 F.3d

De ee noi ei tevectccercpiecivezinsiviivertitidniemen 37

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2

ee Me NEE Wirnsnsdsuoksiwuawiasecescudebacvercucesevnstedierauveles 42

McCulloch v. Maryland, 17 U.S. (4 Wheat.)

BRB, © Es. B70 CG occ s ces ccstsncccervncinestesves .....-40, 41

Moscow Fire Ins. Co. v. Bank of New York &

Trust Co., 20 N.E.2d 758 (N.Y. 1939), aff’d

sub nom. United States v. Moscow Fire Ins.

Co., 309 U.S. 624, 60 S.Ct. 725, 84 L.Ed. 986

BER Renate ANON Dire Nae ANTONIE EUAN SOs RA SORT: 35

Oetjen v. Central Leather Co., 246 U.S. 297, 38

5.04. 309, GZ L.Ed. TAG (IDB) ...cncccscccvecerserrsccessencees 31

Planned Parenthood of Southeastern Pennsyl-

vania v. Casey, 505 U.S. 833, 112 S.Ct. 2791,

ee et We CID oipercet tencscdenpcedarecteavunerruterieures 28

Republic of Iraq v. First Nat. City Bk., 353 F.2d

Ae ee ee I ccinak sbodsvnsceieonkececapamicipenarens 32, 39

X11)

TABLE OF AUTHORITIES — Continued

Page

Republic of Philippines v. Marcos, 806 F.2d 344

oft | ee Fe

Republic of Philippines v. Marcos, 818 F.2d

1473 (9th Cir. 1987), reh’g granted, Republic

of the Philippines v. Marcos, 862 F.2d 1355

[REPO Bivancasanesonindcelinavablantcaudinbiadsavendmncdieusienss dedusenmiccd 38

Ricaud v. American Metal Co., 246 U.S. 304, 38

AA. EB, Ge Ret: FW CR Be ie ccetasntratssnsessecscssssuens 31

Russello v. United States, 464 U.S. 16, 104

te Be, FM Rk Ba gh: | omens 37

Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479,

105 S.Ct. 3292, 87 L.Ed.2d 346 (1985)........36, 37, 38

Shapleigh v. Mier, 299 U.S. 468, 57 S.Ct. 261,

jo - ® 34) | 3 ee 3]

Somportex Ltd. v. Philadelphia Chewing Gum

Corp., 453 F.2d 435 (3rd Cir. 1971), cert.

denied, 405 U.S. 1017, 92 S.Ct. 1294, 31

SE SO OD iain dare hs casineh inlaecaneaweteKiaeaios 24

lahan v. Hodgson, 662 F.2d 862 (D.C. Cir. 1981) 23

Texas Co. v. Hogarth Shipping Corporation, 256

U.S. 619, 41 S.Ct. 612, 65 L.Ed. 1123 (1921) 31

Thurston Motor Lines, Inc. v. Jordan K. Rand,

Ltd., 460 U.S. 533, 103 S.Ct. 1343, 75

Bt ER ocicarce<e<sanasereenscadedsatesvebaosiostecucesse 28

Treinies v. Sunshine Mining Co., 308 U.S. 66,

GO S.Ct. 44, 84 LB. BSB CUBS)... cccccoccocvvevecceccesesses 28

Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct.

83, 42 L.Ed. 456 (1897).... 31

TABLE OF AUTHORITIES —- Continued

Page

United States ex rel. Kelly v. The Boeing Co., 9

8 ge EE AS: ERR A ee AS as Fe 37

Inited States v. Belmont, 301 U.S. 324, 57

S.Ct. 768, 81 L.Ed. 1134 (1937) ........ccccccroccceece. 54,35

Inited States v. Comprehensive Drug Testing,

Inc., 513 F.3d 1065 (9th Cir. 2006) ..............0cc000000 25

mited States v. International Bd. of Teamsters,

247 F.3d 370 (2d Cir. 2001)........... 25

mited States v. Lopez, 514 U.S. 549, 115 S.Ct.

1624, 131 L.. Ed: Za GZS (19S) ..........ccccccccccvcccccseess 4]

nited States v. Pink, 315 U.S. 203, 62 S.Ct.

662, BS L..2Ba. TOS (194) «0... ccccrccevecsoccesesoseve 34, 35, 36

l/nited States v Turkette. 452 US. 576, 101

S.Ct. 2524, 69 L.Ed.2d 246 (1981)...... patra ete 36

Victrix S.S. Co. v. Salen Dry Cargo A.B., 825

& ®&. gr fe AB yy eee 24

Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2d

TR IE ae OA I OR ST OTD 32

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fah, sn CE i, UP OR ML, Dh concatbuincrecatncsnsdeceeesesecunes 3, 41

I.S. Const., art. I, § 8, cl. 18.. . 3,41

Poe: we eS D | eee 1,42

1.S. Const., art. I], § 2 pone | 1,42

lS. Const. amend. V 34

TABLE OF AUTHORITIES — Continued

1I8 U.S.C. § 1962 ........

SREP SL ee oe Renee EISEN RORE OSHC OF a A EPCRA :

28 U.S.C. § 1254(1).............. ancnadetnineaveeks sicusislemenaeinn Z;

Se A ake Sails es dolce agduapabiletebsatre Hs

28 U.S.C. § 1332(a)

MISCELLANEOUS

Article 387 of the Ukrainian Civil Procedural

Code (ed. 1963)

FED. R. Civ. P. 59(e) TY De yp

go RM AR eR A, RRA eer en ee Zz. 1S 3

HERBERT WESCHLER, The Political Safeguards

of Federalism: The Role of the States in the

Selection and (Composition of the Federal

Crovernment, 54 COLUM. L. REV. 543 (1954)

RESTATEMENT (SECOND) CONFLICT OF LAWS (Pro

posed Final Draft 1967)

RESTATEMENT (THIRD) OF FOREIGN RELATIONS

LAW (1987)............ 27

RESTATEMENT OF FOREIGN RELATIONS LAW OF THI

UNITED STATES (Proposed Official Draft, 1962) ....... 32

THE FEDERALIST 12

Ukraine Cabinet of Ministers Ordinance No

38192 10

TABLE OF AUTHORITIES — Continued

Page

Ukraine Cabinet of Ministers Ordinance No.

BL SOG ...<ccsevveeess¥euen eee = 10

Ukraine President Executive Order 581 .... ef

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

To the Honorable Chief Justice John Roberts and

Honorable Associate Justices of the Supreme Court,

pursuant to United States Supreme Court Rule 13,

Petitioner Universal Trading & Investment Co., Inc.

(““UTICo”), a Massachusetts corporation, prays that a

Writ of Certiorari issue to the United States Court of

Appeals for the Ninth Circuit.

OPINIONS AND ORDERS BELOW

The Order of the United States District Court for

the Northern District of California, entered Septem-

ber 7, 2007, granting summary judgment to respon-

dents, is unpublished. (Appendix [hereafter “App.”| at

6-60.) The judgment entered September 10, 2007 for

respondents is unpublished. (App. 61.)

The Order of the District Court, entered October

11, 2007, striking UTICo’s Federal Rule of Civil Pro-

cedure 59(e) motion, is unpublished. (App. 62-64.)

The Order of the District Court, entered January

10, 2008, denying UTICo’s further post-judgment mo-

tions, is unpublished. (App. 65-75.)

The Order of the District Court, entered Feb-

ruary 8, 2008, denying UTICo’s Motion to Set Con-

ference, due to discovery of concealed Ukrainian court

decisions undermining the District Court’s summary

judgment ruling, is unpublished. (App. 76-77.)

The Order of Judges Leavy and Rymer of the

United States Court of Appeals for the Ninth Circuit

entered February 21, 2008, denying without prejudice

UTICo’s motion for a limited remand to make Federal

Rule of Civil Procedure 60(b) motion, is unpublished.

(App. 4-5.)

The Order of the District Court, entered June 16,

2008, denying UTICo’s request to make Federal Rule

of Civil Procedure 60(b) motion, is unpublished. (App.

78-85.)

The Memorandum of Judges Bea, Trott and

Conlan of the Court of Appeals entered September 24,

2009, affirming the District Court’s summary judg-

ment to Respondents, is unpublished. (App. 1-3.)

The Order of the Court of Appeals entered No-

vember 18, 2009, denying panel rehearing or rehear-

ing en banc, is unpublished. (App. 86-87.)

—_——--—_ —_--——— @ ———_

JURISDICTION

The judgment of the Court of Appeals was

entered on September 24, 2009. (App. 1.) The order of

the Court of Appeals denying panel rehearing or re-

hearing en banc was entered on November 18, 2009.

(App. 86.) This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Congress shall have Power ... To regu-

late Commerce with foreign Nations. . . .

U.S. Const., art. I, § 8, cl. 3.

The Congress shall have Power ... To make

all Laws which shall be necessary and proper

for carrying into Execution the foregoing

Powers, and all other Powers vested by this

Constitution in the Government of the United

States, or in any Department or Officer

thereof.

U.S. Const., art. I, § 8, cl. 18.

No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of

Marque and Reprisal;.... No State shall,

without the Consent of the Congress, lay any

Imposts or Duties on Imports or Exports,

except what may be absolutely necessary for

executing its inspection Laws: and the net

Produce of all Dutics and Imposts, laid by

any State on Imports or Exports, shall be for

the Use of the Treasury of the United States;

and all such Laws shall be subject to the

Revision and Controul of the Congress... .

No State shall, without the Consent of

Congress, lay any Duty of Tonnage, keep

Troops, or Ships of War in time of Peace,

enter into any Agreement or Compact with

another State, or with a foreign Power, or

engage in War, unless actually invaded, or in

such imminent Danger as will not admit of

dela,

U.S. ConstT., art. I, § 10.

He shall have Power, by and with the Advice

and Consent of the Senate, to make Treaties,

provided two thirds of the Senators present

concur; and he shall nominate, and by and

with the Advice and Consent of the Senate,

shall appoint Ambassadors, other public

Ministers and Consuls, Judges of the su-

preme Court, and all other Officers of the

United States, whose Appointments are not

herein otherwise provided for, and which

shall be established by Law: but the Con-

gress imay by Law vest the Appointment of

such inferior Officers, as they think proper,

in the President alone, in the Courts of Law,

or in the Heads of Departments.

U.S. Const., art. IT, § 2, cl. 2.

(a) It shall be unlawful for any person who

has received any income derived, directly or

indirectly, from a pattern of racketeering

activity or through collection of an unlawful

debt in which such person has participated

as a principal within the meaning of section

2, title 18, United States Code, to use or

invest, directly or indirectly, any part of such

income, or the proceeds of such income, in

acquisition of any interest in, or the estab-

lishment or operation of, any enterprise

which is engaged in, or the activities of

which affect, interstate or foreign commerce.

A purchase of securities on the open market

for purposes of investment, and without the

intention of controlling or participating in

the control of the issuer, or of assisting

another to do so, shall not be unlawful under

this subsection if the securities of the issuer

held by the purchaser, the members of his

immediate family, and his or their accom-

plices in any pattern or racketeering activity

or the collection of an unlawful debt after

such purchase do not amount in the aggre-

gate to one percent of the outstanding secur-

ities of any one class, and do not confer,

either in law or in fact, the power to elect one

or more directors of the ‘ssuer.

(b) It shall be unlawful for any person

through a pattern of racketeering activity or

through collection of an unlawful debt to

acquire or maintain, directiy or indirectly,

any interest in or control of any enterprise

which is engaged in, or the activities of

which affect, interstate or foreign commerce.

ployed by or associated with any enterprise

engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the con-

duct «f such enterprise’s affairs through a

pattern of racketeering activity or collection

of unlawful debt.

(d) It shall be unlawful for any person to

conspire to violate any of the provisions of

subsection (a), (b), or (c) of this section.

18 U.S.C. § 1962.

(a) The district courts of the United States

shall have jurisdiction to prevent and re-

strain violations of section 1962 of this chap-

ter by issuing appropriate orders, including,

but not limited to: ordering any person to

divest himself of any interest, direct or in-

direct, in any enterprise; imposing reason-

able restrictions on the future activities or

investments of any person, including, but not

limited to, prohibiting any person from en-

gaging in the same type of endeavor as the

enterprise engaged in, the activities of which

affect interstate or foreign commerce; or

ordering dissolution or reorganization of any

enterprise, making due provision for the rights

of innocent persons.

(b) The Attorney General may institute

proceedings under this section. Pending final

determination thereof, the court may at any

time enter such restraining orders or pro-

hibitions, or take such other actions, in-

cluding the acceptance of satisfactory per-

formance bonds, as it shall deem proper.

property by reason of a violation of section

1962 of this chapter may sue therefor in any

appropriate United States district court and

shall recover threefold the damages he sus-

tains and the cost of the suit, including a

reasonable attorney’s fee, except that no per-

son may rely upon any conduct that would

have been actionable as fraud in the pur-

chase or sale of securities to establish a viol-

ation of section 1962. The exception contained

in the preceding sentence does not apply to

an action against any person that is crim-

inally convicted in connection with the fraud,

in which case the statute of limitations shall

start to run on the date on which the con-

viction becomes final.

(d) A final judgment or decree rendered in

favor of the United States in any criminal

proceeding brought by the United States

under this chapter shall estop the defendant

from denying the essential allegations of the

criminal offense in any subsequent civil

proceeding brought by the United States.

I8 U.S.C. § 1964.

Cases in the courts of appeals may be re-

viewed by the Supreme Court by the follow-

ing methods: (1) By writ of certiorari granted

upon the petition of any party to any civil or

criminal case, before or after rendition of

judgment or decree... .

28 U.S.C. § 1254(1).

The district courts shall have original juris

diction of all civil actions arising under the

Constitution, laws, or treaties of the United

States

28 U.S.C. § 1331.

(a) The district courts shall have original

jurisdiction of all civil actions where the

matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and

costs, and is between — ... (2) citizens of a

State and citizens or subjects of a foreign

state; (3) citizens of different States and in

which citizens or subjects of a foreign state

are additional parties.... For the purposes

of this section, section 1335, and section

1441, an alien admitted to the United States

for permanent residence shall be deemed a

citizen of the State in which such alien is

domiciled.

28 U.S.C. § 1332(a).

STATEMENT OF THE CASE

Be Factual Background

Respondent Pavlo Ivanovych Lazarenko, a for-

mer Prime Minister of Ukraine, conspired with

Respondent Petro Mikolayevich Kiritchenko to con-

vert over $350 million in Ukraine public assets to

themselves, their agents and entities controlled by

them worldwide. (App. 91, 118-42; 1 ER 102-39.)

Lazarenko and Kiritchenko were wanted in Ukraine

and faced charges there for misappropriating public

property but refused to surrender the assets. (App.

126-27, 140-42: 1 ER 139.) Lazarenko also was found

guilty in the United States District Court of eight

counts of money laundering. (4 AER 618-30.)

Citations in addition to Petitioner's Appendix (“App.”) are

to the Excerpts of Record (“ER”) filed by UTICo and Appellee’s

Excerpts of Record (“AER”) filed in the appeal before the United

States Court of Appeals for the Ninth Circuit.

Kiritchenko, also convicted in the United States,

admitted he converted $60 million from Ukrainian

public enterprises, out of which he gave $30 million in

bribes to Lazarenko. (UTICo’s Appellate Opening Br.

at 35.)

Petitioner Universal Trading & Investment Co.,

Inc. (““UTICo”) is a Massachusetts corporation spe-

cializing in recovery of international assets. (App. 89-

91.) On May 15, 1998 and October 2, 1998, Ukraine

Prosecutor General’s Office (““UPGO”) entered into

two agreements with UTICo for recovery abroad and

worldwide investigation of the converted Ukraine

assets. (App. 93-95; 3 ER 66-67, 91-92.)

On April 13, 1999, two months before UTICo filed

this action, UPGO addressed a “statement of Amicus

Curiae” to the District Court in support of UTICo.

(App. 98-99, 118-42.) On April 30, 1999, Ukraine

Prosecutor General Mikhailo Potebenko signed a

Power of Attorney to UTICo to conduct legal pro-

ceedings in the United States for recovering assets of

Lazarenko, Kiritchenko, and their co-conspirators.

(App. 99; 3 ER 129-30.)

As contracted payment to UTICo, UPGO on

August 11, 1999 made a written assignment to UTICo

of Ukraine’s claims for the realty assets located in the

United States converted by Respondents. (App. 101-

02, 143-44.) The value of the realty in Northern

California, the claims to which were assigned, is

about $30 million, and the assignment was calculated

to match the twelve percent interest in the 1998

agreements implemented worldwide, certified by the

Prosecutor General to the President to be in excess of

$270 million. (App. 107-08, 153-57.) There is no other

assignment or any other remuneration by Ukraine for

UTICo’s work worldwide.

On June 25, 2002, the President issued the

Executive Order 581 that regulated the government

procedure for asserting the civil claims outside of

Ukraine. (3 ER 166-69; App. 105-06.) Under the pro-

cedure adopted by that Executive Order, the Prose-

cutor General applied before the Cabinet of Ministers

for his office to be appointed the responsible body for

advancing Ukraine’s interests concerning assets of

Lazarenko and Kiritchenko abroad by contracting

with UTICo. (App. 105-06.)

On July 7, 2003, the Ministry of Foreign Affairs

and the Ministry of Justice issued documents stating

that they did not object to the implementation of

Ukraine Cabinet of Ministers Ordinance No. 38192,

dated June 30, 2003, recognizing UPGO as the con-

tinuing responsible body for protecting and con-

trolling Ukraine’s interests in matters regarding as-

sets of Kiritchenko and Lazarenko abroad. (App. 106-

07, 145-50.)

On July 19, 2003, the Cabinet of Ministers, then

headed by the recently elected President of Ukraine,

referring to the Ministry of Justice document (No. 9-

5697), issued Ordinance No. 81506 (signed by the

First Deputy Prime Minister who is Prime Minister

now). (App. 107, 151-52.) The ordinance approved,

endorsed and ratified UPGO’s agreements and work

with UTICo. (App. 107, 151-52.)

On September 15, 2003, Ukraine Prosecutor

General S. Piskun certified to President Leonid D.

Kuchma that UTICo fully had implemented the 1998

agreements by iocating and freezing worldwide over

$270 million in assets converted by respondents

and by facilitating recovery in several jurisdictions.

(App. 107-08, 153-57.) Responding to the Prosecutor

General’s letter, the Ukraine President’s Adminis-

tration — equivalent to the White House Staff — issued

a letter of acknowledgment to the Minister of Justice

dated October 2, 2003. (App. 108, 158-59.)

II. Proceedings In District Court Before

Summary Judgment

Petitioner UTICo filed the original complaint in

this case on June 24, 1999. (4 AER 632; 6 ER 8.) The

District Court had subject matter jurisdiction under

28 U.S.C. section 1331 because the complaint alleged

violations of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. section 1964.

(4 AER 632; 6 ER 8.) It had diversity jurisdiction

under 28 U.S.C. section 1332 because UTICo is a

citizen of Massachusetts, a State different from the

citizenship of any defendants. (4 AER 632; 6 ER 8.)

On August 24, 1999, defendants filed motions to

dismiss the first complaint. (6 ER 16-17.) On October

8, 1999, UTICo filed an amended complaint. (6 ER

22.) On January 24, 2000, the District Court granted

t¢

defendants’ motion to dismiss in part and denied it in

part, with leave to amend. (6 ER 43.) The second

amended complaint, filed January 20, 2000, involved

25 Defendants and alleged claims under (1) RICO;

(2) Conversion; (3) Unjust Enrichment; (4) Breach of

Fiduciary Duty; (5) Fraud; (6) Civil Conspiracy; (7)

Money Had and Received; (8) Accounting; (9) Fraud-

ulent Conveyances; and (10) Declaratory Relief. (1 ER

89, 141-66; 6 ER 41.) Apart from Lazarenko, named

by the World Bank in Washington D.C. as No. 8 on

the “Top Ten List of Most Corrupt Leaders” (4 ER

138), and his co-conspirator Kiritchenko, it included

their agents, corporations and offshore entities, used

for money laundering. (1 ER 90-99.)

On June 2, 2000, the first trial judge in this

action, Charles Legge, denied defendants’ motion to

dismiss the second amended complaint, ruling that

the August 11, 1999 assignment was valid and that

UTICo was a real party in interest for purposes of

standing. (7 ER 57-60.)

Ill. District Court Grants Summary Judg-

ment

On September 7, 2007, a month before trial, a

substituting trial judge, Maxine Chesney, recon-

sidered Judge Legge’s ruling without mentioning it

and granted summary judgment on the ground that

the 1999 assignment was invalid under Ukraine law.

(App. 6-60.) Judgment was entered on September 10,

2007. (App. 61.)

IV. District Court’s Findings On Summary Judg-

ment Regarding Kiritchenko’s Ukraine

Case

In its order granting the motion for summary

judgment, the District Court discussed rulings in two

Ukrainian court cases challenging the August 11,

1999 assignment in which UTICo was not served and

was not a party, one brought by Lazarenko and the

other brought by Kiritchenko. (App. 9-19.) On March

4, 2003, the Pechersk municipal court of Kyiv rejected

Kiritchenko’s claims on the basis they were time-

barred. (App. 11.) In dicta, however, the Pechersk

municipal court commented that UPGO had no

grounds to issue a power of attorney to foreign firms

such as UTICo. (App. 11.)

After Kiritchenko appealed, the “Judicial Cham-

ber on Civil Cases of the Court of Appeal of the City

of Kyiv” affirmed the decision of the Pechersk

municipal court. (App. 11-12.) Kiritchenko filed an

appeal with Ukraine Supreme Court on June 27,

2003 but thereafter withdrew it, thus conceding the

final denial of his claim. (App. 12.)

V. District Court’s Findings On Summary Judg-

ment Regarding Laxarenko’s Ukraine Case

The District Court additionally found that

Lazarenko filed suit against UPGO and UTICo in the

Pechersk municipal court, likewise contending that

UPGO’s assignment and power of attorney to UTICo

were invalid. (App. 15.) On September 3, 2003,

without UTICo’s being served or being made a party,

the Pechersk municipal court issued a decision in

Lazarenko’s favor, invalidating both the power of

attorney and the UPGO’s assignment to UTICo. (App.

15-17.) On July 7, 2005, the appellate court affirmed

the Pechersk municipal court’s original decision

invalidating the assignment. (App. 18-19.)

On August 5, 2005, UPGO appealed the appellate

court’s decision to Ukraine Supreme Court. (App. 19.)

The District Court granted summary judgment under

the belief that “[tlo date, the Supreme Court of

Ukraine ha{d] not taken action on the appeal.” (App.

19.)

Vl. District Court’s Findings Entitling Defen-

dants To Summary Judgment

The District Court found that, even if the August

11, 1999 assignment failed to cure UTICo’s lack of

standing when it asserted its initial complaint on

June 24, 1999, UTICo’s amended complaint, filed

after the assignment, did not warrant dismissal on

that basis. (App. 22-23.) But it rejected UTICo’s

argument that the act of state doctrine prevented the

District Court from adjudicating ti.e validity of the

assignment because of its finding that “the

assignment at issue has been declared invalid by the

Ukrainian courts.” (App. 25.) The District Court

additionally found that “the act of state doctrine only

precludes inquiry into acts of a foreign government

committed within its own territory” and, because the

act of state in question, an assignment permitting

UTICo to sue in the United States, “cannot be

considered to have been committed in Ukraine],|” the

doctrine did not apply to the present case. (App. 25-

27.)

The District Court agreed with UTICo that

Ukraine’s court decisions declaring the assignment

invalid were not enforceable against UTICo because

it never received service of process of those actions.

(App. 32-34.) But it disagreed with UTICo that

California law applied to determine the validity of

the assignment and agreed with defendants that the

Ukraine court decisions were relevant as evidence

of Ukraine law. (App. 35-46.) The District Court

conducted its own analysis of Ukraine law “even

without consideration of the Ukrainian court deci-

sions” and found that Ukraine Constitution did not

permit UPGO to assign claims on behalf of Ukraine.

(App. 46-57.)

The District Court additionally rejected UTICo’s

argument that the May 15, 1998 fee agreement,

under which UPGO hired UTICo, provided an inde-

pendent basis for standing (App. 57-58), and did not

address the October 2, 1998 follow-up agreement

made by the Prosecutor General, expanding the ini-

tial terms. (3 ER 91.) It also did not address

Ukraine’s certification in 2003 that UTICo had

implemented the agreement in full and was entitled

to remuneration under its terms. (3 ER 199.)

VII. Ukraine Supreme Court Proceedings In

Lazarenko’s Case Unknown To District

Court Before Granting Summary Judg-

ment

Unknown to the District Court when it granted

summary judgment in favor of respondents, on March

24, 2006, Ukraine Supreme Court decided to hear

the case. (App. 160-63.) On June 14, 2006, Ukraine

Supreme Court reversed the Court of Appeal. (App.

164-72.)

Ukraine Supreme Court rejected the proposition

that UPGO lacked authority under Ukraine’s Con-

stitution and Civil Code to contract with and to

remunerate UTICo. (App. 167-68.) It found that the

April 30, 1999 power of attorney furthered Ukraine’s

material interests by empowering UTICo to obtain

judicial decisions against Kiritchenko and Lazarenko

in the United States for converting Ukraine property.

(App. 168.)

Ukraine Supreme Court upheld the August 11,

2009 assignment between UPGO and UTICo as an

authorized “commission agreement, in accordance

with which, pursuant to Article 387 of the Ukrainian

Civil Procedural Code (ed. 1963), one side (which was

empowered) undertakes to accomplish in the name

and at the expense of the other side (which empow-

ered) certain legal activities.” (App. 168-69.)

Ukraine Supreme Court found that the assign-

ment granted “compensation ... to the Firm (UTICo)

for the works that had already been accomplished.”

(App. 169.) Upon remand, Lazarenko did not even

try to change the outcome, with the final judgment

entered against him on November 30, 2006. (App.

170.)

VIII. Post-Judgment Proceedings In The Dis-

rict Court

On September 18, 2007, UTICo filed a Motion to

Alter, Amend and/or Rescind the Summary Judgment

Order pursuant to Federal Rule of Civil Procedure

59(e) or, Alternatively, for Stay and to Grant Appli-

cation for Letters Rogatory to Ukraine. (5 ER 185-88.)

UTICo argued among other things that the District

Court violated UTICo’s due process rights by granting

summary judgment before hearing UTICo’s motion to

compel Lazarenko to produce the docket and other

documents in his Ukraine case. (1 ER 186-87.)

It also moved to exceed the maximum page length for

the Rule 59(e) motion. (5 ER 182-83.)

In its memorandum supporting the Rule 59(e)

motion (1 ER 190-230), UTICo argued that the

Ukraine court documents, that the District Court

previously ordered Lazarenko to produce several

times (1 ER 205-06, 228-29), “are particularly rele-

vant to evaluate the inconclusiveness of the Supreme

Court’s review. The outcome of the review of the

Supreme Court could be diametrically different from

what was submitted with the defendants’ affidavits.”

(1 ER 206-07.)

On October 11, 2007, the District Court denied

UTICo’s motion to exceed the maximum page length

and struck the Rule 59(e) motion on the ground it

exceeded the maximum 25-page length. (App. 62-64.)

On October 15, 2007, UTICo filed a notice of appeal

from the District Court’s orders granting defendants

summary judgment and denying and striking its Rule

59(e) motion. (1 ER 3-4.) On January 10, 2008, the

District Court denied all UTICo’s post-judgment

motions, including a motion to refile the Rule 59(e)

motion; a refiled, shorter Rule 59(e) motion in com-

pliance with the page limits; and a Renewed Appli-

cation for the Issuance of a Letter of Request for

Official Records. (App. 65-75.) On January 23, 2008,

UTICo filed an amended notice of appeal. (1 ER 6-7.)

On February 6, 2008, quickly after UTICo re-

ceived and filed the June 14, 2006 Ukraine Supreme

Court’s decision and November 30, 2006 Pechersk

municipal court’s decision in Lazarenko’s case, it filed

in the District Court an “Emergency Administrative

Request to Set Conference Based Upon Discovery of

Fraud Committed By Defendants.” In support, UTICo

lodged copies of the June 14, 2006 Ukraine Supreme

Court’s decision and November 30, 2006 Pechersk

municipal court’s decision in Lazarenko’s case. (2 ER

2-20.) On February 8, 2008, the District Court denied

UTICo’s “Emergency Administrative Motion,” finding

UTICo’s notice of appeal of the summary judgment

order divested it of jurisdiction to consider the

subject. (App. 76-77.)

On June 16, 2008, the District Court denied

UTICo’s “Administrative Request for Court’s Willing-

ness to Entertain” a proposed motion under Rule

60(b), based upon the newly discovered Ukrainian

court documents. (App. 78-85.) It ruled that it “would

decline to entertain a Rule 60(b) motion” because (1)

there was no evidence that appellees knew of the

Ukrainian court decisions that were purportedly con-

cealed or that appellees did anything to hide them;

and (2) the allegedly concealed decisions were irrele-

vant to the summary judgment order because (a) the

decision did not find the assignment valid, and (b) the

District Court had conducted an independent inter-

pretation of Ukraine law in granting summary judg-

ment. (App. 78-85.)

IX. Proceedings In The Court Of Appeals

UTICo appealed both the summary judgment

order and the District Court’s denial of post-judgment

motions. (1 ER 3-4, 6-7.) On February 21, 2008, the

Court of Appeals denied UTICo’s motion for remand,

based on the newly discovered Ukraine Supreme

Court decision in Lazarenko’s case, without prejudice.

(App. 4-5.)

After the District Court declined to hear UTICo’s

Rule 60(b) motion, see ante, UTICo filed its Opening

Brief on May 30, 2008. Among UTICo’s arguments

were (1) that the June 14, 2006 Ukraine Supreme

Court decision in Lazarenko’s case reversed previous

Ukraine court decisions upon which the District

Court relied in interpreting Ukraine’s Constitution

(UTICo’s Opening Br. at 2, 8-9, 40-41, 46); (2) that

the District Court disregarded evidence of UTICo’s

accrued rights under its implemented agreements

with Ukraine (UTICo’s Opening Br. at 2, 17-18, 20-21,

33-35, 38-39); and (3) that the District Court im-

properly discounted the act of state doctrine (UTICo’s

Opening Br. at 2, 22-23, 39-40).

Accompanying its Keply Brief in the Court of

Appeals on October 20, 2008, UTICo requested judi-

cial notice of the March 24, 2006 and June 14, 2006

Ukraine Supreme Court’s decisions and November

30, 2006 Pechersk municipal court’s decision denying

Lazarenko’s claim.

On September 24, 2009, a panel of the Court of

Appeals, consisting of Circuit Judges Trott and Bea

and District Judge Conlon, sitting by designation,

affirmed in an unpublished memorandum. (App. 1-3.)

The panel considered the District Court’s deter-

mination regarding standing and interpretation of

foreign law de novo. (App. 2.) Discarding UTICo’s

interests created by the 1998 agreements, the Court

of Appeals found that UTICo’s “only possible basis of

standing was as the assignee of claims belonging to

Ukraine....” (App. 2.) Contrary to the District

Court’s finding that the case did not deserve to be

dismissed based on standing merely because the

assignment was made after the original complaint

(App. 22-23), the panel additionally found that “the

purported assignment of claims by Ukraine was a

sham created only to overcome defendants’ initial

challenge to standing.” (App. 2.) However, even if the

assignment were not a sham, UTICo still failed to

prove the assignment was valid under Ukraine law.

(App. 2.)

The panel granted judicial notice of the June

14, 2006 Ukraine Supreme Court decision in

Lazarenko’s case, approving of the assignment under

Ukraine law. (App. 3, n.1.) But the panel failed to

address it and, contrary to Ukraine Supreme Court,

inexplicably found UTICo “failed to prove a deputy

prosecutor had the authority to assign the rights of

the Ukrainian government against Kiritchenko and

Lazarenko to” UTICo and “failed to demonstrate that

the assignment constitutes the act of a foreign

sovereign power....” (App. 2.) The panel summarily

rejected all other issues raised by UTICo, calling

them “meritless.” (App. 2-3.) The panel thus declined

to consider any supplemental grounds for standing

such as UTICo’s rights under the implemented agree-

ments with Ukraine, enforcing its equitable lien,

constructive trust, and equitable subrogation. (App.

2-3.)

On October 7, 2009, UTICo petitioned for re-

hearing or rehearing en banc, raising among other

grounds, the effect of the June 14, 2006 Ukraine

Supreme Court decision discovered subsequent to

the District Court’s summary judgment order. On

November 18, 2009, the same 3-judge panel denied

UTICo’s petition for rehearing and the suggestion for

rchearing en banc. (App. 86-87.)

X. Post-Appellate Events

On February 25, 2010, Victor Yanukovich, after

general election, was sworn as the new President

of Ukraine. (App. 174.) President Barack Obama

immediately congratulated him and appointed the U.S.

delegation to attend the inauguration. (App. 173-74.)

The United States Senate passed a resolution

“Irjecognizing the important progress made by the

people of Ukraine in the establishment of democratic

institutions following the presidential run-off election

on February 7, 2010.” (App. 175-78.)

The incoming President, Yanukovich, was Prime

Minister when, on July 19, 2003, the Cabinet of Min-

isters issued Ordinance No. 81506, approving, endors-

ing, and ratifying UPGO’s powers in the Kiritchenko-

Lazarenko matter and its contract with UTICo. (App.

107, 151-52.)

On March 11, 2010, the parliament voted Nikola

Azarov into office as the new Prime Minister. Azarov

was the First Deputy Prime Minister (also holding

the Finance Minister portfolio) on July 19, 2003.

(App. 179.) It was Azarov’s signature on Ordinance

No. 81506. (App. 151-52.)

Also on March 11, 2010, Alexander Lavrinovich

was appointed as the Justice Minister of the new

government. (App. 180.) This position was the same

* UTICo requests judicial notice of documents pertaining to

events subsequent to the appellate decision.

one he held in 2003, when the Cabinet supported

UPGO’s relationship with UTICo. (App. 147-49.)

REASONS FOR GRANTING THE WRIT

I. Granting Certiorari Will Enable This

Court To Pronounce That It Is Not A

Matter Of Judicial Discretion To Deny

Comity To A Foreign Supreme Court

Judgment - Against The Foreign Party

Who Brought The Foreign Proceeding -

When Failure To Recognize The Foreign

Judgment Results In Dismissal Of The

American Plaintiff’s Case That Was Not A

Party To The Foreign Proceeding

What makes this case different from the cases

this Court has visited under the doctrine of comity

among nations is that the foreign judgment sought to

be enforced is against the foreign national that

brought the foreign proceeding. The lower courts’

failure to recognize the collateral estoppel! effect of the

foreign judgment operates to deprive the American

party-litigant of its day in court and results in

substantial economic hardship for that litigant.

After Hilton v. Guyot, 159 U.S. 113, 170-71, 210,

16 S.Ct. 139, 40 L.Ed. 95 (1895), federal courts no

longer follow the reciprocity rationale, Tahan uv.

Hodgson, 662 F.2d 862, 867 & n.21 (D.C. Cir. 1981).

But courts continue to deny comity to foreign judg-

ments when “to enforce foreign interests” would be

“fundamentally prejudicial to those of the domestic

forum.” Laker Airways Ltd. v. Sabena, Belgian World

Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984). On the

other hand, federal courts generally recognize foreign

country judgments “whenever the foreign court had

proper jurisdiction and enforcement does not prej-

udice the rights of United States citizens or violate

domestic public policy.” Victrix S.S. Co. v. Salen Dry

Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987) (citing

Hilton, supra, 159 U.S. at 202-03).

Notice and opportunity to be heard for the party-

litigant affected by the foreign judgment is normally

the “polestar” of due process. Somportex Ltd. v.

Philadelphia Chewing Gum Corp., 453 F.2d 435, 443

(3rd Cir. 1971), cert. denied, 405 U.S. 1017, 92 S.Ct.

1294, 31 L.Ed.2d 479 (1972) (citing RESTATEMENT

(SECOND) CONFLICT OF Laws, § 92 (Proposed Final

Draft 1967)). But here, the foreign judgment was in

favor of the American party that was denied notice

and opportunity to participate in the proceeding. This

case is unlike the usual one, where enforcement of

a foreign judgment would prejudice United States

citizens denied notice and an opportunity to be heard

in the foreign proceeding, Films by Jove, Inc. v. Berov,

250 F.Supp.2d 156, 205 (E.D.N.Y. 2003). Here, it is

the failure of the District Court to recognize Ukraine

Supreme Court’s decision in favor of the domestic

corporation, UTICo, that prejudices the rights of the

Massachusetts corporation and rewards the Ukrainian

fugitives from justice.

While in some circuits motions to reconsider

judgments under Rule 60(b) on the basis of newly

discovered evidence are “generally not favored,”

United States v. International Bd. of Teamsters, 247

F.3d 370, 391 (2d Cir. 2001), in the circuit where this

case arose, a district court abuses its discretion by

denying relief from a final judgment, order, or

proceeding when it makes an error of law or relies on

a clearly erroneous factual determination. Lemoge uv.

United States, 587 F.3d 1188, 1191-92 (9th Cir. 2009).

And, if a district court premises such denial upon a

legal determination, the legal issue must be reviewed

de novo. United States v. Comprehensive Drug

Testing, Inc., 513 F.3d 1085, 1101 (9th Cir. 2008).

Granting certiorari will enable this Court to

pronounce to all federal courts of appeals that comity

considerations weigh in favor of reconsidering a final

judgment against a United States citizen when a

newly discovered foreign judgment has the collateral

estoppel effect of resuscitating the United States

citizen’s case in federal court.

Here, the District Court rested its denial of

UTICo’s motion for reconsideration under Rule 60(b)

on an error of law; namely, that the newly discovered

Ukraine Supreme Court decisions in Lazarenko’s

case and the final denial of his claim to invalidate the

assignment were irrelevant to its own interpretation

of Ukraine law. (App. 82-83.) Review of Ukraine

Supreme Court’s decision shows that it substantively

reached the validity of UPGO’s contractual relation-

ship with UTICo under Ukraine law. (App. 167-70.)

Significantly, a district court sitting in the

Second Circuit, where motions to reconsider are dis-

favored, acknowledged the relevancy of a posthu-

mously discovered Russian high court decision to its

judgment in a copyrights dispute, based on an issue

requiring interpretation of Russian law. Films by

Jove, Inc., supra, 250 FSupp.2d at 190-91. The

reason the district court in Films by Jove, Inc., supra,

decided not to accord the Russian high court decision

collateral estoppel status in the proceeding before it

was that the American film company that would be

hurt by giving preclusive effect to the Russian court’s

findings was not a party to the Russian litigation. /d.

at 191. Indeed, the district court stated that, “[i]n the

ordinary case,” it “would be inclined to adopt the

High Arbitrazh Court’s positions with resnect to

issues of Sovict law.” Jd. at 196. Further, the district

court stated it might have deferred to what it

characterized as the Russian High Court’s “clearly

erroneous decision,” if the “decision impacted only the

rights of Russian parties... .” Id. at 205. However,

because the Russian High Court’s ruling resulted in

substantial economic hardship to a _ non-Russian

American party, the district court declined to enforce

it. Id.

Here, contrastingly, it is the failure to enforce

Ukraine’s highest court’s decision that affects sub-

stantial economic hardship on UTICo, a _non-

Ukrainian American party, by resulting in the

dismissal of its case in federal court. Issue preclusion

against the Ukrainian party respondents is necessary

to prevent manifest injustice because they were the

ones who brought and had full opportunity to

participate in Ukraine court proceedings ultimately

decided against them. Baldwin v. Iowa _ State

Traveling Men’s Ass’n, 283 U.S. 522, 51 S.Ct. 517, 75

L.Ed. 1244 (1931).

UTICo was not a party to the Ukraine court

proceedings. But it still may rely on the doctrine of

collateral estoppel to preclude respondents from

relitigating issues decided against them in Ukraine

court decisions. Blonder-Tongue Labs., Inc. v. Uni

versity of Illinois Found., 402 U.S. 313, 328-29, 91

S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971).

Ukraine Supreme Court’s earlier decision in

Kiritchenko’s case could not have been a final adju-

dication of UTICo’s rights against Kiritchenko

because of the failure of Ukraine courts to obtain

personal jurisdiction over UTICo. The Ukraine courts

found his claim barred by statutes of limitations, the

final adjudication was against Kiritchenko; and any

comments to the contrary in the decisions were

obiter dicta. (AER 251 [3/4/03 decision, “rejecting”

Kiritchenko’s claim]; AER 270 [5/29/05 decision upon

Kiritchenko’s claim “rejected”|; 4 ER 171 [1/26/04 de-

cision, stating “relief was denied”]; AER 308 [3/11/04

decision, stating “action ... was denied”]; AER 338

[2/3/05 decision, stating “action was denied”].)

To the extent Ukraine court decisions denying

Kiritchenko’s claim express dicta in conflict with

the latest Ukraine Supreme Court decision in

Lazarenko’s case, the latest judgment governs under

the traditional conflict of laws rule. See RESTATEMENT

(THIRD) OF FOREIGN RELATIONS Law, § 482, cmt. g

(1987) (“Courts are likely to recognize the later of two

inconsistent foreign judgments.”); see also Treinies v.

Sunshine Mining Co., 308 U.S. 66, 75-78, 60 S.Ct. 44,

49-51, 84 L.Ed. 85 (1939) (applying the rule domes-

tically to inconsistent state court judgments). Also,

under principles of stare decisis in this country, dicta

“may be followed if sufficiently persuasive” but are

not binding. Central Green Co. v. United States, 531

U.S. 425, 431, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001)

(quoting Humphrey's Executor v. United States, 295

U.S. 602, 627, 55 S.Ct. 869, 79 L.Ed. 1611 (1935)).

It is true that, for this Court, “the rule of stare

decisis is not an ‘inexorable command.’” Planned

Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833, 854, 112 S.Ct. 2791, 120 L.Ed.2d 674

(1992). But lower federal courts in this country are

bound to follow the latter of two inconsistent United

States Supreme Court holdings. Vhurston Motor

Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535,

103 S.Ct. 1348, 75 L.Ed.2d 260 (1983) (“|OJnly this

Court may overrule one of its precedents.”).

The June 14, 2006 Ukraine Supreme Court rul-

ing was the last and final word from Ukraine’s

highest court on the validity of the assignment under

Ukraine law, that both Kiritchenko and Lazarenko

had challenged in Ukraine in absentia. (App. 164-72.)

In disregarding this decision, the lower federal courts

substituted their own interpretation of Ukraine’s

Constitution for the interpretation of Ukraine’s own

highest court. (See Section III, post.)

II. The Court Should Grant Certiorari Because

The Lower Courts’ Refusal To Enforce Acts

Of Ukraine’s Government Outside Ukraine

That Are Consistent With United States

Policies Improperly Expands The Role Of

The Judicial Branch Into The Conduct Of

United States Foreign Relations

The June 14, 2006 Ukraine Supreme Court deci-

sion in Lazarenko’s case, affirming the validity of the

assignment, overturns the District Court’s primary

reason for refusing to apply the act of state doctrine,

that “the assignment at issue ha[d] been declared in-

valid by the Ukrainian courts.” (App. 25.) The District

Court’s second reason for finding the act of state

doctrine inapplicable, that the assignment was made

to recover assets in the United States (App. 25-27),

created an unprecedented and sweeping general rule

with disturbing consequences for the act of state

doctrine by conditioning its application on the re-

quirement that the act of the foreign government be

done for a purpose that must be completed within the

foreign country’s territory.

Any time the judicial branch wrongly decides not

to apply the act of state doctrine, there is the po-

tential for embarrassment to the Executive Branch in

the conduct of foreign relations. See Banco Nacional

de Cuba v. Sabbatino, 376 U.S. 398, 415, 84 S.Ct. 923,

11 L.Ed.2d 804 (1964) (“An inquiry by United States

courts into the validity of an act of an official of a

foreign state under the law of that state would not

only be exceedingly difficult but, if wrongly made,

would be likely to be highly offensive to the state in

question.”); First Nat. City Bank v. Banco Nacional de

Cuba, 406 U.S. 759, 764, 92 S.Ct. 1808, 32 L.Ed.2d

466 (1972) (“The line of cases from this Court estab-

lishing the act of state doctrine justifies its existence

primarily on the basis that juridical review of acts of

state of a foreign power could embarrass the conduct

of foreign relations by the political branches of the

government..”).

Here, there is demonstrated backing of the

United States President and Senate to the incoming

President of Ukraine and members of his Cabinet

who were in the government that supported UPGO’s

hiring of UTICo. (App. 173-81.) This reality makes it

more than an abstract possibility that the lower

courts’ decision not to apply the act of state doctrine

will have an adverse effect on relations with Ukraine.

The District Court incorrectly relied on cases

applying a rule of decision for acts of confiscation that

appellate courts also have applied to human rights

violations such as state-planned murder. (App. 26-27

and cases cited therein.) It wrongly concluded that

the act of state doctrine “ordinarily” does not apply to

acts of a foreign government when they contemplate

consequences outside the foreign country’s territory.

(App. 26.)

Numerous decisions of this Court demonstrate

that the “traditional formulation” of the act of state

doctrine as applying to acts of a foreign government

“committed within its own territory,” Banco Nacional

de Cuba v. Sabbatino, supra, 376 U.S. at 401, or

“done within its own territory,” Underhill v. Hernan-

dez, 168 U.S. 250, 252, 18 S.Ct. 83, 42 L.Ed. 456

(1897), is not to be read so literally. See Shapieigh v.

Mier, 299 U.S. 468, 474-76, 57 S.Ct. 261, 81 L.Ed. 355

(1937) (Fact that land taken under law of Mexico was

not part of Texas because of avulsion of Rio Grande

and treaty did not alter effect if prior Mexican

decree.); Ingenohl v. Walter EF. Olsen & Co., 273 U.S.

541, 544, 47 S.Ct. 451, 71 L.Ed. 762 (1927) (In case

involving effect of act of United States Philippines’s

government abroad: “Of course, a foreign state might

accept the Custodian’s transfer as good within its

jurisdiction, if there were no opposing local interest or

right.”); Texas Co. v. Hogarth Shipping Corporation,

256 U.S. 619, 631, 41 S.Ct. 612, 65 L.Ed. 1123 (1921)

(“That the charter party was entered into in this

country is not material. The important consideration

is that it became impossible of performance through a

supervening Act of State which operated directly on

the ship and the parties could not avoid.”); Ricaud v.

American Metal Co., 246 U.S. 304, 310, 38 S.Ct. 312,

62 L.Ed. 733 (1918) (Act of Mexican government

affecting title to bullion continued to have effect after

bullion was brought into United States); Oetjen v.

Central Leather Co., 246 U.S. 297, 303, 38 S.Ct. 309,

62 L.Ed. 726 (1918) (“The principle that the conduct

of one independent government cannot be success-

fully questioned in the courts of another is as applic-

able to a case involving the title to property brought

within the custody of a court, such as we have here,

as it was held to be to the cases cited, in which claims

for damages were based upon acts done in a foreign

country.”).

The arbitrary gencral rule created by the District

Court not to apply acts of state with extraterritorial

effects is actually a distortion of the well-established

principle that, where the purpose of the foreign gov-

ernment’s act is to confiscate property located outside

the foreign territory, United States courts will not

enforce the act unless it furthers United States policy.

See Banco Nacional de Cuba v. Sabbatino, supra, 376

U.S. at 454 (White, J., dissenting) (referring to “the

public policy test traditionally applied to extraterri-

torial takings of property, even though embarrassing

to foreign affairs”); Republic of Iraq v. First Nat. City

Bk., 353 F.2d 47, 51 (2d Cir. 1965), citing RESTATE-

MENT OF FOREIGN RELATIONS LAW OF THE UNITED

STATES, § 46 (Proposed Official Draft, 1962) (“[W]hen

property confiscated is within the United States at

the time of the attempted confiscation, our courts wiil

give effect to acts of state ‘only if they are consistent

with the policy and law of the United States.’”);

Zwack v. Kraus Bros. & Co., 237 F.2d 255, 259 (2d

Cir. 1956) (“[Floreign acts of confiscation are pre-

sumed to be against the public policy of the forum

[citations] absent a treaty or other indication of a

public policy to do so... .”).

In permitting the District Court’s conclusion to go

unchecked, the Court signals approval of the Judicial

Branch’s passing on the validity of an entire category

of foreign acts of state that it previously taught was

dangerous to foreign policy for domestic courts to be

engaged in adjudicating; namely, acts committed

within a foreign State consistent with United States

policy. See Banco Nacional de Cuba v. Sabbatino,

supra, 376 U.S. at 423 (“The doctrine as formulated

in past decisions expresses the strong sense of the

Judicial Branch that its engagement in the task of

passing on the validity of foreign acts of state may

hinder rather than further this country’s pursuit of

goals both for itself and for the community of nations

as a whole in the international sphere.”); First Nat.

City Bank v. Banco Nacional de Cuba, supra, 406

U.S. at 764 (observing that the act of state doctrine is

“buttressed by judicial deference to the exclusive

power of the Executive over conduct of relations with

other sovereign powers and the power of the Senate

to advise and consent on the making of treaties”).

Indeed, if the District Court’s reformulation of

the act of state doctrine were to be accepted, then

even the decrees of foreign governments sought by

the United States to protect American interests would

be subject to judicial scrutiny if their purposes

contemplated effects outside the territory of the

foreign government. There is no reason to make

judicial scrutiny of acts of state dependent in most

cases on the territorial location of the act’s purpose.

See Alfred Dunhill of London, Inc. v. Republic of

Cuba, 425 U.S. 682, 728, 96 S.Ct. 1854, 48 L.Ed.2d

301 (1976) (Powell, J., concurring) (“question|ing]} the

wisdom of attempting the articulation of any broad

exception to the act of state doctrine within the

confines of a single case”).

The District Court’s unprecedented exception to

the act of state doctrine for acts of a foreign gov-

ernment with cxtratcrritorial purposes conflicts with

United States Supreme Court precedents such as

United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758,

81 L.Ed. 1134 (1937), and United States v. Pink, 315

U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942). In those

cases, as an incident of recognition of the Soviet

Union, the United States sought to enforce an assign-

ment to it by the Soviet Union in 1933, of nation-

alized assets of Russian nationals located in the

United States (“the Litvinov Assignment”). Belmont,

supra, 301 U.S. at 326; Pink, supra, 315 U.S. at 211-

13. In United States v. Belmont, “[t)he court below ...

took the view that the situs of the bank deposit was

within the state of New York; that in no sense could it

be regarded as an intangible property right within

Soviet territory; and that the nationalization decree,

if enforced, would put into effect an act of con-

fiscation.” 315 U.S. at 327. Reversing the lower court

and rejecting the view that the Soviet act of state was

a taking in violation of the Fifth Amendment of the

United States Constitution, this Court held, “What

another country has done in the way of taking over

property of its nationals, and especially of its

corporations, is not a matter for judicial consideration

here. Such nationals must look to their own govern-

ment for any redress to which they may be entitled.”

315 U.S. at 332.

In United States v. Pink, supra, the Court again

considered whether it should find the Litvinov

assignment to be an act of state, this time in the

context of the Russian Government's nationalization

in 1918 and 1919 of the insurance business. 315 U.S.

at 210-11. The Litvinov assignment included assets of

the New York branch of the First Russian Insurance

Company that remained in possession of the New

York insurance authority after American creditors’

claims against the company had been paid, which the

United States sought to recover first in federal and

then in State court. Jd. at 211-13. While the litigation

in State court was pending, a New York Court of

Appeals in another case held that the Russian de-

crees had no extraterritorial effect, Moscow Fire Ins.

Co. v. Bank of New York & Trust Co., 20 N.E.2d 758,

767 (N.Y. 1939), aff’d sub nom. United States v.

Moscow Fire Ins, Co., 309 U.S. 624, 60 S.Ct. 725, 84

L.Ed. 986 (1940), resulting in a dismissal of the

United States’ complaint in the lower State court.

Pink, supra, 315 U.S. at 215, 217. If the New York

Court of Appeals was correct that the Russian 1917

and 1918 confiscation decrees had no extraterritorial

effect, “then Russia had nothing here to assign.” Id.

at 217.

On certiorari, the United States Supreme Court

found the declaration of the Soviet Government’s

intent persuasive. Pink, supra, 315 U.S. at 221-22.

Following Belmont, supra, 315 U.S. at 332, it held

that the Russian decrees intended to have extra-

territorial effect and did affect the New York assets of

the First Russian Insurance Company. /d.

This Court observed in Pink, supra, that “[iJt is

one thing to hold as was done in Guaranty Trust Co.

v. United States, supra, 304 U.S. page 142, 58 S.Ct.

page 793, 82 L.Ed. 1224, that under the Litvinov

Assignment the U.S. did not acquire ‘a right free of a

pre-existing infirmity’ such as the running of the

statute of limitations against the Russian Govern-

ment, its assignor.” 315 U.S. at 222. But it was quite

another thing “to deny enforcement of a claim under

the Litvinov Assignment because of an overriding

policy of the State which denies validity in New York

of the Russian decrees on which the assigned claims

rest.” Id.

The District Court’s refusal to give extra-

territorial effect to the August 11, 1999 assignment is

inconsistent with United States policies that (1)

permit foreign nations to sue in this country; and (2)

permit assignment of RICO causes of action. See

Republic of Philippines v. Marcos, 806 F.2d 344, 354

(2d Cir. 1986) (“[A}n action brought by a foreign gov-

ernment against its former head of state arises under

federal common law.”); Sedima, S.P-R.L. v. Imrex Co.,

Inc., 473 U.S. 479, 496-98, 105 S.Ct. 3292, 87 L.Ed.2d

346 (1985) (broadly construing RICO). An assignee of

the Philippines’s rights against Marcos could not sue

under the reasoning for the District Court’s decision.

“RICO is to be read broadly. This is the lesson not

only of Congress’ self-consciously expansive language

and overall approach, see United States v. Turkette,

452 U.S. 576, 586-87 [101 S.Ct. 2524, 69 L.Ed.2d 246]

(1981), but also of its express admonition that RICO

is to ‘be liberally construed to effectuate its remedial

purposes, Pub.L. 91-452, § 904(a), 84 Stat. 947.”

Sedima, S.P.R.L. v. Imrex Co., Inc., supra, 473 U.S. at

497-98: see also Russello v. United States, 464 U.S.

16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17 (1983) (“The

legislative history clearly demonstrates that the

RICO statute was intended to provide new weapons

of unprecedented scope for an assault upon organized

crime and its economic roots.”).

Thus in Sedima, this Court, rejecting limits on

standing that would have required a RICO plaintiff to

allege a “racketeering injury” rather than an injury

“simply caused by the predicate acts,” held that there

is “standing if... he has been injured in his business

or property by the conduct constituting the violation.”

473 U.S. at 485, 496. In Lerman v. Joyce Inter-

national, Inc., 10 F.3d 106, 112-13 (3d Cir. 1993);

Justice Alito held that claims for RICO injuries were

transferrable under a general assignment of “all ...

causes of action” and “claims ... of whatsoever na-

ture” that eliminated the possibility of split recoveries

or duplicative liability by extinguishing the assignor’s

right to assert RICO claims. Accord United States ex

rel. Kelly v. The Boeing Co., 9 F.3d 743, 748 (9th Cir.

1993) (holding that “|aJs a general rule, terms of art

are not required for a valid Assignment”).

As in Lerman, supra, 10 F.3d at 112-13, the Au-

gust 11, 1999 assignment, based on the implemented

1998 agreements, was broadly written to transfer to

UTICo all of Ukraine’s claims to the United States-

located realty converted by respondents, including

those for injuries from predicate acts under RICO.

(App. 143-44.) Because the United States realty

assets that Ukraine assigned, identified property by

property in the April 13, 1999 Amicus Letter of

Ukraine (App. 139) counted towards but did not

satisfy the twelve percent remuneration that UTICo

already earned (App. 144, 168-69), the assignment

completely relinquished all of Ukraine’s interest in

the assets.

Far from an act of confiscation, the assignment

compensates a Massachusetts corporation for return-

ing assets abroad to the State that is their rightful

owner. Cf. Republic of Philippines v. Marcos, supra,

806 F.2d at 360 (“The complaint seeks recovery of

property illegally taken hy a former head of state, not

confiscation of property legally owned by him..”).

The District Court’s refusal to apply the act of

state doctrine ignores the Congress’s directive to

liberally construe RICO to effectuate its remedial

purpose. Sedima, supra, 473 U.S. at 497-98. It opened

the door to an inquiry into the validity of Ukraine’s

assignment, an act consistent with United States

policy, and resulted in the release of stolen Ukraine

assets into United States commerce. See Republic of

Philippines v. Marcos, 818 F.2d 1473, 1491 (9th Cir.

1987) (Holcomb Hall, J., concurring in part and

dissenting in part ) (“In passing RICO, Congress was

concerned with the effect of organized crime on the

economy of the United States.”), reh’g granted,

Republic of the Philippines v. Marcos, 862 F.2d 1355

(1988).

“It is fundamental]! to our constitutional scheme

that in dealing with other nations the country must

speak with a united voice.” Republic of Iraq, supra,

353 F.2d at 50. The voice of the lower courts in this

case is that the United States views all official acts of

a foreign nation like acts of confiscation, with

skepticism and distrust if they are intended to affect

property outside the foreign nation’s borders, even if

such acts are in accord with United States policy.

This impression needs to be reviewed and corrected.

lil. The District Court’s Interpretation Of

Ukraine’s Constitution As Consisting Of

Limited Enumerated Powers And Not Per-

mitting Implied Powers Deprives Ukraine

Of Powers Other Foreign Governments

Enjoy Under International Law To Reclaim

Public Assets Transported From Ukraine

Illegally

The District Court’s decision not to apply the act

of state doctrine made it embark on the difficult task

of interpreting whether UPGO had authority under

Ukraine’s Constitution to hire UTICo to track and

freeze the assets of Kiritchenko and Lazarenko

abroad and to assign UTICo Ukraine’s claims to

assets located in the United States as compensation

for UTICo’s contracted work worldwide on the

recovery of the converted assets. (App. 46-57.)

One of the traditional justifications for the act of

state doctrine is the absence of consensus concerning

a particular area of international law. See Sabbatino,

supra, 376 U.S. at 428 (“(TJhe greater the degree of

codification or consensus concerning a particular area

of international law, the more appropriate it is for the

judiciary to render decisions regarding it. ...”). Here,

the absence of consensus on philosophies of inter-

preting our own constitution should have alerted the

District Court that the circumstances were consistent

with one of the traditional justifications for the act of

state doctrine.

Opposing defendants’ motion for summary judg-

ment, UTICo submitted declaraticas of Ukraine law

experts, scholars on the law, who opined that UPGO

has implicit powers under Ukraine’s Constitution to

take actions in the State’s interest that do not contra-

dict express limitations of its authority, such as the

assignment here to UTICo. (App. 50-54 [discussing

Declarations of Professors Valery Ivanovich Kusnetsov,

Viktor Fedorovich Pogorelko and Vratislav Pechota].)

The conclusion that Ukraine’s Constitution did not

permit UPGO to assign claims on behalf of Ukraine

(App. 54-55) frustrates Ukraine’s ability to act in its

interest abroad and deprives Ukraine of powers other

sovereigns enjoy under international law.

Take this Court’s early cases interpreting our

constitution, for instance. McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 406, 4 L.Ed. 579 (1819), stated,

“Among the enumerated powers, we do not find that

of establishing a bank or creating a corporation. But

there is no phrase in the instrument which, like

the articles of confederation, excludes incidental or

implied powers, and which requires that everything

gran‘ed shall be expressly and minutely described.”

The District Court’s interpretation of Ukraine’s

Constitution, adopted in 1996, was one that strictly

limits the powers of governmental entities to those

enumerated and leaves no organ of the State with the

authority to prosecute illegal transportation of public

property outside the country or to enter into contracts

with private companies abroad to do so. (App. 46-57.)

That proposition means that as soon as Lazarenko

and Kiritchenko converted Ukraine’s assets and hid

those outside its borders, Ukraine could not contract

with any non-Ukraine entity for recovery of such

stolen assets.

Like the Commerce and Necessary and Proper

clauses, Articles of Ukraine’s Constitution that grant

UPGO authority to represent the interests of Ukraine

in judicial bodies should be broadly interpreted so as

not to frustrate government action and to effectuate

the purposes of the Articles. See, e.g., Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct.

348, 13 L.Ed.2d 258 (1964) (broadly construing U.S.

Const., art. I, § 8, cl. 3); Katzenbach v. McClung, 379

U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) (same);

McCulloch v. Maryland, supra, 17 U.S. (4 Wheat.) 316

(broadly interpreting U.S. Const., art. I, § 8, cl. 18).

The theory of enumerated powers developed in

the United States as an appropriate consideration for

interpreting the federal constitution, which “creates a

federal government of enumerated powers.” United

States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 131

L. Ed. 2d 626 (1995); see also Marbury v. Madison, 5

U.S. (Cranch) 137, 176, 2 L.Ed. 60 (1803) (Marshall,

C. J.) (“The powers of the legislature are defined, and

limited; and that those limits may not be mistaken, or

forgotten, the constitution is written.”). But modern

Ukraine did not form similarly from a confederacy of

independent states to which powers over matters

not enumerated in Ukraine’s Constitution can be

reserved. THE FEDERALIST No. 45 (James Madison)

(“The powers reserved to the several States will

extend to all the objects, which, in the ordinary

course of affairs, concern the lives, liberties and

properties of the people; and the internal order, im-

provement, and prosperity of the State.”); see gen-

erally HERBERT WESCHLER, The Political Safeguards

of Federalism: The Role of the States in the Selection

and Composition of the Federal Government, 54

CoLuM. L. Rev. 543 (1954).

Assuming it is acceptable to refer to United

States history to interpret Ukraine’s Constitution,

during formation of the United States, the States

yielded power over controversies affecting forcign

relations to the federal government. THE FEDERALIST

Nos. 41-42, 44 (James Madison). So was that senti-

ment expressed in the powers enumerated in the

Constitution to conduct foreign policy. U.S. CONST.,

art. I, § 10; art. II, § 2. So is that sentiment honored

today in our jurisprudence. See Republic of Philip-

pines v. Marcos, supra, 806 F.2d at 354 (“The question

whether to honor such a request by a foreign gov-

ernment is itself a federal question to be decided with

uniformity as a matter of federal law, and not sep-

arately in each state... ”).

The Court of Appeals did not review meaning-

fully the District Court’s interpretation of Ukraine’s

Constitution. The District Court’s view leaves no

organ of government with power to assign Ukraine’s

rights to non-Ukraine corporations such as UTICo to

reclaim stolen assets located outside Ukraine.

CONCLUSION

Wherefore, it is respectfully requested that the

petition for writ of certiorari be granted and the

decision of the Court of Appeals be reversed.

Respectfully submitted,

JEFFREY A. NEEDELMAN

Attorney at Law

P.O. Box 471146

San Francisco, CA 94147-1146

(415) 441-4401

Counsel of Record for Petitioner

MARCH 2010

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNIVERSAL TRADING & No. 07-16873

INVESTMENT COMPANY, |no xo

: 3:99-CV-3073-MMC

Plaintiff-Appellant, [jes MORANDUM?

Vv.

PETRO MIKOLAYEVICH

KIRITCHENKO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted September 15, 2009

San Francisco, California

(Filed Sep. 24, 2009)

Before: TROTT and BEA, Circuit Judges, and

CONLON,** District Judge.

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable Suzanne B. Conlon, United States

District Judge for the Northern District of Illinois, sitting by

designation.

App. 2

Universal Trading & Investment Co. (“UTI”)

appeals the district court’s order granting summary

judgment in favor of defendants. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the

district court’s determination regarding standing, as

well as the district court’s interpretation of foreign

law. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047

(9th Cir. 2009); Brady v. Brown, 51 F.3d 810, 816 (9th

Cir. 1995). We affirm.

UTIs only possible basis of standing was as the

assignee of claims belonging to Ukraine, and UTI

bore the burden of proving the assignment’s validity.

Britton v. Co-op Banking Group, 4 F.3d 742, 746 (9th

Cir. 1993). The district court did not err in concluding

the assignment was invalid under Ukrainian law.

The purported assignment of claims by Ukraine was

a sham created only to overcome defendants’ initial

challenge to UTI’s standing. Even were it not, UTI

failed to prove the assignment was valid under

Ukrainian law. UTI failed to prove a deputy prose-

cutor general had the authority to assign the rights of

the Ukrainian government against Kiritchenko and

Lazarenko to UTI. UTI has also failed to demonstrate

that the assignment constitutes the act of a foreign

sovereign power; the act of state doctrine is therefore

inapplicable. See Liu v. Republic of China, 892 F.2d

1419, 1432 (9th Cir. 1989) (“The burden of proving

acts of state rests on the party asserting the appli-

cability of the doctrine”).

We have considered the other issues raised by

UTI in its opening brief and reject them as meritless.

Issues raised for the first time in UTIs reply brief are

waived. Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.

1996).

AFFIRMED.

Appellees’ motion to strike portions of UTIT’s reply brief is

denied as moot. UTT’s motion for this court to take judicial notice

of three certified Ukrainian court decisions is granted

App. 4

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNIVERSAL TRADING & |No 07-16873

INVESTMENT COMPANY,

INC. D.C. No.

CV-99-03073-MMC

Plaintiff-Appellant, Sittin ikeistos

™" of California,

PETRO MIKOLAYEVICH |2" Francisco

KIRITCHENKO; et al., ORDER

Defendants-Appellees. |(Filed Feb. 21, 2008)

Before: LEAVY and RYMER, Circuit Judges.

Appellee’s motion to dismiss this appeal for lack

of jurisdiction is denied without prejudice to renewing

the arguments in the answering brief. See Nat?

Indus. v. Republic Natl Life Ins. Co., 677 F.2d 1258,

1262 (9th Cir. 1982) (stating that merits panel may

consider appellate jurisdiction despite earlier denial

of motion to dismiss).

Appellant’s motion for a preliminary injunction

pending appeal is denied. Cf Grupo Mexicano de

Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S.

308 (1999).

Appellant’s motion for a limited remand is denied

without prejudice to a renewed motion accompanied

by an indication that the district court is willing

to entertain the proposed Federal Rule of Civil

App. 5

Procedure 60(b) motion. See Crateo v. Intermark, Inc.,

536 F.2d 862, 869 (9th Cir. 1976).

The opening brief is due March 24, 2008; the

answering brief is due April 23, 2008; and the reply

brief is due within 14 days after service of the

answering brief.

App. 6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNIVERSAL TRADING No. C-99-3073 MMC

& INVESTMENT CO., ORDER GRANTING DE-

Plaintiff FENDANTS’ MOTION FOR

, SUMMARY JUDGMENT

| RE: STANDING; GRANT-

PETRO MIKOLAYEVICH ING PLAINTIFFS’ MO-

KIRITCHENKO, et al., TIONS TO SUPPLEMENT

Defendants. RECORD

(Docket Nos. 843, 1028, 1043,

1196)

/(Filed Sep. 7, 2007)

Before the Court is the motion for summary judg-

ment filed by defendants Peter Kiritchenko, Izabella

Kiritchenko, and Ludmilla Kiritchenko (collectively,

“Kiritchenko”), by which motion Kiritchenko contends

plaintiff Universal Trading & Investment Co. (““UTI”

or “UTICo”) lacks standing to bring the instant ac-

tion. Defendants Brancross U.S. Holdings, Inc., BRC

Property Holdings LLC, Xanadu Property Holdings,

LLC, ABS Trading, Inc., and Michael Menko, collec-

tively, have filed a joinder in Kiritchenko’s motion.

Separate joinders have been filed by, respectively,

defendant Eurofed Bank Limited; defendants Alex

Liverant and Torq Development Corporation; and de-

fendants Pavel Lazarenko and Tamara Lazarenko

(collectively, “Lazarenko”). UTI has filed opposition to

the motion, to which Kiritchenko has replied. With

App. 7

permission of the Court, UTI has supplemented its

opposition with three previously-filed declarations on

Ukrainian Jaw; Kiritchenko, with the Court’s permis-

sion, has filed a surreply addressing such declara-

tions.

Also before the Court are three motions filed by

UTI seeking permission to further supplement the

record. With respect to each such motion, Kiritchenko

has filed opposition and UTI has filed a reply.

Having reviewed the papers filed in support of

and in opposition to the motions, the Court rules as

follows.

BACKGROUND

The instant action was filed June 24, 1999, and is

based on the allegation that defendants were par-

ticipants in “a criminal organization and enterprise

designed to steal large sums of money from the

Government of Ukraine[.]” (See Second Amended

Complaint ¥ 32.) UTI alleges the Prosecutor General

of Ukraine has “assigned, for consideration, the right

of recovery of damages and/or assets for the claims” to

UTI. (See id. 4 1.) Thus, UTI claims standing as an

assignee of Ukraine’s claims.

The purported assignment is a document dated

August 11, 1999, on letterhead of the Prosecutor

General’s Office of Ukraine (“PGOU”), which docu-

ment is addressed to U.A. Lambert (“Lambert”), pres-

ident of UTI, and signed by M.S. Obykhod, “Deputy

App. 8

Prosecutor General of Ukraine” (“Obykhod”). (See

Clements Supp. Decl. Ex. A.)' The document provides:

Taking into consideration the scope of work

performed and support provided by your

company, as well as civil action by UTIC with

regard to real estate located in the United

States which may belong to Ukrainian citi-

zens P. M. Kyrychenko, his family members,

P. J]. Lazarenko, and four Californian com-

panies controlled thereby, i.e., Dugsbery Inc.,

Brancross U.S. Holdings Inc., Property Hold-

ings, LLC, and Xanadu Property Ho/l||dings,

LLC, we hereby confirm our agreement that

the Ukrainian party will assign to UTIC

material claims with regard to the above-

mentioned real estate to the extent that you

can prove in your Federal Court the unlawful

ownership of such real estate, provided that

the sum thereof will be credited, in future, to

the amount of payment to be made by the

Ukrainian party for your services, not

' The text of all Ukrainian documents quoted in this order

are English translations of the original documents. In light of

the declaration of Mariam Nayiny, president of IDEM Transla-

tions, Inc., attesting to the accuracy of the translations, and de-

fendants’ failure to submit evidence that any of the translations

quoted herein are materially inaccurate, defendants’ objections

to such translations are overruled.

* To the extent the spelling of any name contained in a

quotation from a translated document differs from the spelling

used in the complaint or other document referenced herein, the

Court has retained the spelling used by the translator of such

document.

App. 9

exceeding 12% of all funds to be returned to

Ukraine from abroad with the assistance of

UTIC as provided by Letter No. 12-01379-97

dated May 15, 1998, and Letter No. 12-

11015-97 dated October 2, 1998, of the Office

of the Prosecutor General of Ukraine.

(See Clements Supp. Decl. Ex. A.) Lambert testified

at his deposition that the August 11, 1999 assignment

reduced to writing a prior oral assignment. (See

Clements Decl. Ex. B (Lambert Dep.) at 89:4-14.)

Obykhod attests, however, that “[pJrior to August 11,

1999, there were no written or oral assignments of

claims from the Office of the Prosecutor General or

the government of Ukraine to UTI.” (See Roman Decl.

Ex. 1 (Obykhod Decl.) 4 5.)

The validity of the August 11, 1999 assignment to

UTI has been litigated in Ukrainian courts in two

separate actions.

A. Kiritchenko Ukrainian Lawsuit

Kiritchenko filed suit against the PGOU and

“third person” UTI in the Pechersk regional court in

the city of Kiev (“Pechersk court”), seeking to invali-

date the assignment and a prior power of attorney.”

* A document titled “Power of Attorney,” dated April 30,

1999, provides:

By virtue of this Power of Attorney, I. Mykhailo

Olexiovych Potebenko, Prosecutor General of Ukraine

with reference to our outgoing document #12-11015-

97 of 13.04.99, empower UTICo., U.S. federal E.D.

(Continued on following page)

App. 10

#04-3181148, at: 35 Almont Street, Winthrop-Boston,

MA 02152, USA, on the basis of collected information

about the property in the USA of citizens of Ukraine

Petro Mikolaievich Kiritchenko and Pav!o Ivanovich

Lazarenko, acquired by them for proceeds of crime, in

view that they are charged with crimes including

misappropriation of the State and public property of

Ukraine in especially large scale, to organize and to

implement in the USA the legal work, seeking judg-

ment on attaching such assets, including the real

estate property held by the above Ukrainian citizens

in the names ef Dugsbery Inc., Brancross U.S. Hold

ings, Inc., BRC Property Holdings, LLC, Xanaau

Property Holdings, LLC., and for further representing

for Ukraine the material claims of Ukraine upon such

assets, in accordance with the Ukrainian laws and in

accordance with the judicial decisions and judicial

proceedings in Ukraine. In particular UTICo. is em-

powered to involve in the necessary judicial pro

ceedings in USA and for accomplishing designated

juridical tasks in presenting Ukraine’s material

claims the law firms and lawyers, selected by UTICo.,

including but not limited to: Hale and Door, 60 State

Street, Boston, MA 02109; Law Offices of Robert D.

Carrow, 1 Embarcadero Center, Suite 880, San

Francisco, CA 94111; Law Offices of Philip R. Boncore

1..L..P., 1140 Saratoga St., Boston, MA 02128, and to

relieve those from such juridical tasks.

The present Power of Attorney is valid for one

year from the date of its issuance. If judicial pro-

cedures are initiated outside of Ukraine in respect of

the above-mentioned assets, then this Power of Attor-

ney will be prolonged for the whole term of such

judicial procedures.

This Power of Attorney is executed in the name of

the Prosecutor General Office of Ukraine by myself,

Mykhailo Olexiovych Potebenko, Prosecutor General

of Ukraine, which I confirm by my personal signature.

(Continued on following page)

App. 11

(See Romanova Decl., filed June 2, 2006, Ex. A at 1.)

On March 4, 2003, the Pechersk court issued a

written decision holding that the PGOU “had no legal

basis to issue the Power of Attorney to the foreign

firm UTI ... to conduct the case concerning the

Defendant P.M. Kyrychenko, and to entrust it with

the right of representation of the material claims of

Ukraine[.]” (See id. at 3.) The Pechersk court also

rejected the assignment on the ground that “there are

no references to the laws which would give the

General Prosecutor’s Office of Ukraine grounds to

transfer to UTI Co unrestricted authorities on conces-

sion of the material claims concerning property|.]”

(See id.) The Pechersk court nonetheless rejected

Kiritchenko’s claim on th* ground that it was time-

barred under the applicable three-year statute of

limitations. (See id.)

The PGOU appealed, arguing that although the

trial court was correct in rejecting Kiritchenko’s suit

as untimely, it erred in finding the assignment and

power of attorney invalid. (See Clements Decl. Ex. M.)

Kiritchenko also appealed, apparently arguing that

the trial court erred in dismissing his claim as

(See Lambert Decl. in Opposition to Motion to Expunge and in

Support of Injunctive Relief, filed August 2, 1999, Ex. A.)

* Each of the Ukrainian court decisions issued in the

Kiritchenko matter has been authenticated pursuant to the

requirements of Rule 44(aX2) of the Federal Rules of Civil Pro-

cedure and the Hague Convention Abolishing the Requirement

of Legalization for Foreign Public Documents. (See Romanova

Decl., filed June 2, 2006, {WY 3-5 and Exs. A-FE.)

App. 12

time-barred.” (See id. Ex. O.) On May 29, 2003, the

“Judicial Chamber on Civil Cases of the Court of

Appeal of the City of Kyiv” affirmed the decision of

the Pechersk court. (See Romanova Decl. Ex. B.)°

Kiritchenko filed an appeal with the Supreme

Court on June 27, 2003, but thereafter withdrew his

appeal. (See Lambert Decl., filed September 8, 2006,

Ex. F.) There is no evidence before this Court that the

PGOU appealed the decision of the appellate court to

the Ukraine Supreme Court.

On October 17, 2003, however, the PGOU filed a

“petition for review” with the Pechersk court, arguing

that the Cabinet of Ministers of the Ukraine, on July

19, 2003, “agreed to the proposal of the Ukrainian

Ministry of Justice to appoint the Ukrainian Prose-

cutor General’s Office as authority responsible for the

organization and continuation of any activities in-

tended to protect the state’s property interests in

cases related to the returning of P.M. Kiritchenko’s

—

* A copy of Kiritchenko’s appeal has not been filed with this

Court.

* Petro Konstantinovich Ryabenko, a Ukrainian attorney,

relying on Article 317 of the Civil Code of Ukraine, attests:

“Although the Ukrainian courts ... held that Mr. Kiritchenko

failed to file his action within the three-year statute of limi-

tations, under Ukrainian law, this does not transform the court’s

findings regarding the legal validity of the Assignment and

Power of Attorney into ‘dicta.’ Every finding made by the Kiev

Regional Court and affirmed and adopted by the Kiev Court of

Appeal has legal force and effect.” (See Clements Decl. Ex. FF

(Ryabenko Decl.) J] 9-10.)

App. 13

and PJ. Lazarenko’s property to the Ukraine.” (See

Clements Decl. Ex. Q at 2 (emphases in origina)).)

The PGOU argued that said “assignment by the

Ukrainian Cabinet of Ministers confirms and ap-

proves” the prior agreements between the PGOU and

UTI.’ (See id.)

Thereafter, on February 20, 2004, the PGOU filed

an “additional petition for review,” in which it argued

that UTI, on December 10, 2003, had notified the

PGOU that UTI “had received no notification as to

the time, date, or venue of the case proceedings in

question” due to court error in addressing notices to

UTI. (See id. Ex. R at 2.) The PGOU further argued

‘

that the court’s notices to UTI were “in violation of

the procedures determined by the Hague Convention”

on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters (“Hague

Convention”). (See id.)

On March 11, 2004, the Pechersk court denied

the PGOU’s petitions for review. (See Romanova Decl.

Ex. C.) The Pechersk court stated that the approval of

the Cabinet of Ministers “cannot be accepted by the

* Although the PGOU was appointed as of July 19, 2003 “to

be the responsible body and organization for the continuation of

the actions aimed at protecting the material interests of the

State in the matters regarding ... repatriating to Ukraine the

assets of Kiritchenko P.M. and Lazarenko P.1.,” (see Thomson

Decl., filed Jan. 20, 2006, Exs. 20-21), there is no suggestion in

the appointment documents that such appointment retroactively

validated any actions taken by the PGOU prior to that date.

App. 14

court as discovery of new facts because the [PGOU] is

a state body obligated, inter alia, to protect the

interests of the State and act on the State’s behalf

where so determined by law.” (See id. at 2.) The

Pechersk court held that the PGOU had “failed to

demonstrate to the court any essential facts that were

not and could not be known to the court and are

material to the case and that the [PGOU]’s petition

must therefore be declined.” (See id. at 2.) Although

the Pechersk court noted the PGOU’s argument that

UTI was not given notice of the suit, it did not

address the issue. (See id. at 1.)

On March 25, 2004, the PGOU appealed. (See

Clements Decl. Ex. T.) On May 7, 2004, the appellate

court denied the appeal. (See Romanova Decl. Ex. D.)

The appellate court noted that it had previously

affirmed the Pechersk court’s March 4, 2003 decision

and that the PGOU had not appealed the appellate

court’s ruling. (See id. at 2.) The court further held

that the Pechersk court had made a “correct and

justified conclusion” that the July 19, 2003 approval

of the Cabinet of Ministers “could not be accepted by

the court as a newly discovered fact,” and that “the

fact that the court had sent notifications to the third

party to an incorrect address was also inessential and

immaterial to the case.” (See id. at 3.)

On June 4, 2004, the PGOU filed an appeal with

the Supreme Court of Ukraine. (See Clements Decl.

Ex. V.) On June 10, 2004, according to the Supreme

Court, the Pechersk court held that the appeal would

be “left without action due to the inconsistency of

App. 15

both its form and content with the requirements of

civil process laws” and ordered the flaws to be

corrected by June 20, 2004. (See Romanova Decl. Ex.

E at 1.)” When the PGOU failed to correct the flaws in

the execution of its appeal, the Pechersk court, in a

judgment issued June 24, 2004, deemed the appeal

unfiled and returned it to the PGOU. (See id. at 2.)

The appellate court affirmed that decision on October

5, 2004. (See id.) The PGOU thereafter appealed the

June 24, 2004 and October 5, 2004 rulings to the

Supreme Court, which denied the appeal in a decision

dated February 3, 2005.° (See id.)

B. Lazarenko Ukrainian Lawsuit

Lazarenko filed a separate lawsuit against the

PGOU in the Pechersk court, likewise seeking to in-

validate the PGOU’s power of attorney and assign-

ment to UTI. The case was not assigned to the same

judge who heard Kiritchenko’s case. On September 3,

2003, the Pechersk court issued a written decision in

" The above quotation is from the February 3, 2005 opinion

of the Supreme Court of Ukraine.

“ Contrary to Kiritchenko’s assertion, it dues not appear

that the Supreme Court of Ukraine ruled on the merits of the

PGOU’s appeal, but rather ruled only that the lower courts did

not err in finding the PGOU’s appeal on the merits to be im-

properly filed. Nonetheless, the Supreme Court did not purport

to alter the appellate court’s opinion affirming the trial court’s

conclusions that the PGOU lacks authority to assign claims of

Ukraine and that Kiritchenko’s lawsuit was untimely.

App. 16

Lazarenko’s favor.'’ (See Clements Decl. Ex. X.)'' The

Pechersk court held that “neither a public prose-

cutor’s office nor any public prosecutors have any

legal grounds to issue a power of attorney to anyone,

including the foreign firm UTICo, since they do not

act as a party to the legal proceedings or have any

personal interest therein or claims thereunder —

which proves that neither the power of attorney nor

any acts performed by said firm as attorney in fact

under the power of attorney conform with the law.”

(See id. at 2.) The Pechersk court further found the

PGOU “had no grounds to grant a power of attorney

to a foreign firm in the conduct of proceedings with

respect to Respondent P.I. Lazarenko, to say nothing

about the right of reassignment, and ‘t is for this rea-

son that UTICo was entitled [to] act neither on behalf

of the Ukraine nor on behalf of the [PGOU].” (See id.

at 3.) The Pechersk court additionally held that the

PGOU “has no right under applicable Ukrainian laws

to delegate any representation functions for protecting

" The court noted that “third party” UTI had not appeared,

“even though notice has been duly given of the time and place of

the proceedings.” (See id. at 1.) The court concluded that “the

case could be examined in absence of the third party representa-

tive based on the existing evidence on file as provided by Article

172 of the Ukrainian Civil Procedure Code.” (See id. )

'' Each of the Ukrainian court decisions issued in the

Lazarenko matter has been authenticated pursuant to the re-

quirements of Rule 44(a\(2) of the Federal Rules of Civil Proce-

dure and the Hague Convention Abolishing the Requirement of

Legalization for Foreign Public Documents. (See Logosha Decl.,

filed June 2, 2006, 94 3-5 and Exs. A-E.)

App. 17

the interests of the state to any other body.” (See id.

at 3.) Finally, the Pechersk court invalidated both the

power of attorney and the PGOU’s assignment to

UTI. (See id. at 5.)

The PGOU appealed, and the civil division of the

appellate court of Kiev, in an opinion issued Novem-

ber 27, 2003, reversed, finding that the Pechersk

court’s conclusions “involved a gross violation of the

rules of both material and process law.” (See id. Ex. Y

at 2.) The appellate court held that the Pechersk

court, having concluded that the PGOU had violated

Lazarenko’s rights by making an unlawful assign-

ment to UTI, erred by failing “to clarify the nature of

legal relations and legal grounds for the claims so

made as required by Article 137 of the Ukrainian

Civil Process Code.” (See id. at 3.) The appellate court

further held that the Pechersk court erred by failing

“to make provisions for bringing to trial the UTICo

firm as co-defendants.” (See id. at 4.) The appellate

court remanded the action to the trial court for

further proceedings.

Lazarenko appealed to the Supreme Court of

Ukraine. In an opinion dated March 17, 2005, the

Supreme Court reversed the appellate court, holding

that the decision of the appellate court was “based on

an incorrect application of the norms of procedural

law.” (See id. Ex. AA at 3.) With respect to the

appellate court’s ruling on the merits of the appeal,

the Supreme Court held that, pursuant to rules of

Ukrainian civil procedure, the appellate court should

have decided the case “on its merits rather than

App. 18

ordering a retrial by the original trial court,” and

remanded the case to the appellate court. (See id. at

4.) With respect to the appellate court’s holding that

the Pechersk court erred by not bringing UTI to trial

as a co-defendant, the Supreme Court also reversed,

noting that the Pechersk court had properly named

UTI as a third party in accordance with Ukrainian

rules of civil procedure. (See id.)

On July 7, 2005, the appellate court issued a

decision affirming the Pechersk court’s original deci-

sion invalidating the assignment.” (See id. Ex. BB.)

The appellate court held that, under Ukrainian law,

“offices of public prosecutors and prosecutors, not

being a party of a case and not having personal in-

terests or claims, do not have legal grounds for

issuing powers of attorneys to any party|.]” (See id. at

4.) Additionally, under Ukrainian law, the assignment

is invalid because “only the owner of the property has

‘ A handwritten copy of the decision submitted to this

Court appears to be missing text on the right side, as a result of

the copying process; a similar copy appears to have been sub-

mitted to the translator, as the translation submitted to the

Court contains question marks and notations that text has been

“cut off” and that text is “missing.” (Sce id.) Nevertheless, the

translator was able to translate the bulk of the opinion, and the

ruling is clear. Although defendants later submitted an authen-

ticated printed version of the opinion, and an English transla-

tion thereof, the Court has not considered such translation

because defendants did not submit a declaration from the

translator with respect thereto. The Court notes, however, that

such translation is consistent with the translation of thk-

handwritten copy.

App. 19

the right to dispose of it,” and the PGOU is not “the

owner of the property” at issue in the assignment and

does not have “direct rights and powers regarding

disposal of the property.” (See id. at 5.) The appellate

court denied the PGOU’s appeal and left “the

Decision of Pechersk District Court of City of Kyiv of

September 3, 2003 without changes.” (See id. at 6.)

On August 5, 2005, the PGOU appealed the

appellate court’s decision to the Supreme Court of

Ukraine. (See Clements Decl. Ex. CC.) To date, the

Supreme Court of Ukraine has not taken action on

the appeal."

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure

provides that summary judgment as to “all or any

part” of a claim “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” See Fed. R. Civ. P.

56(b), (c). Material facts are those that may affect the

outcome of the case. See Anderson v. Liberty Lobby,

' Although the July 8, 2005 appellate court decision has

been appealed to the Supreme Court of Ukraine, it “has full

legal force and effect” under Ukrainian law unless and until the

Supreme Court “revoke[s] the legal force and effect of the Court

of Appeal ruling.” (See Clements Decl. Ex. FF (Ryabenko Decl.)

q 10.)

App. 20

Inc., 477 U.S. 242, 248 (1986). A dispute as to a

material fact is “genuine” if there is sufficient evi-

dence for a reasonable jury to return a verdict for the

nonmoving party. See id. The Court may not weigh

the evidence. See id. at 255. Rather, the nonmoving

party’s evidence must be believed and “all justifiable

inferences must be drawn in [the nonmovant’s] favor.”

See United Steelworkers of Am. v. Phelps Dodge Corp.,

865 F.2d 1539, 1542 (9th Cir. 1989) ‘en banc) (citing

Liberty Lobby, 477 U.S. at 255).

The moving party bears the initial responsibility

of informing the district court of the basis for its

motion and identifying those portions of the plead-

ings, depositions, interrogatory answers, admissions

and affidavits, if any, that it contends demonstrate

the absence of a genuine issue of material fact. See

Celotex Corp. vu. Catrett, 477 U.S. 317, 323 (1986).

Where the nonmoving party will bear the burden of

proof at trial, the moving party’s burden is discharged

when it shows the court there is an absence of evi-

dence to support the nonmoving party’s case. See id.

at 325.

Where the moving party “bears the burden of

proof at trial, he must come forward with evidence

which would entitle him to a directed verdict if the

evidence went uncontroverted at trial,” and “establish

the absence of a genuine issue of fact on each issue

material to his [claim].” See Houghton v. South, 965

F.2d 1532, 1536-37 (9th Cir. 1992) (citations omitted).

App. 21

A party opposing a properly supported motion for

summary judgment “may not rest upon the mere

allegations or denials of [that] party’s pleading, but

. must set forth specific facts showing that there is

a genuine issue for trial.” See Fed. R. Civ. P. 56(e); see

also Liberty Lobby, 477 U.S. at 250. The opposing

party need not show the issue will be resolved

conclusively in its favor. See Liberty Lobby, 477 U.S.

at 248-49. All that is necessary is submission of suf-

ficient evidence to create a material factual dispute,

thereby requiring a jury or judge to resolve the

parties differing versions at trial. See id.

The district court is not required to search the

record sua sponte for some genuine issue of material

fact. See Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

1996) (“It is not our task, or that of the district court

to scour the record in search of a genuine issue of

triable fact. We rely on the nonmoving party to

identify with reasonable particularity the evidence

that precludes summary judgment.”); see also Carmen

v. San Francisco Unified School District, 237 F.3d

1026, 1031 (9th Cir. 2001) (“The district court need

not examine the entire file for evidence establishing a

genuine issue of fact, where the evidence is not set

forth in the opposing papers with adequate references

so that it could conveniently be found.”).

DISCUSSION

As an initial matter, the Court has before it three

motions by UTI to supplement the record with

App. 22

additional evidence. Although, as Kiritchenko points

out, much of the evidence UTI seeks to submit is

inadmissible hearsay, without foundation, repetitious,

or irrelevant to the issue of the validity of the

assignment, the Court nonetheless will GRANT the

motions to supplement the record, and will consider

below the new evidence to the extent it is both

admissible and relevant.

The Court next turns to the merits of defendants’

motion. Defendants move for summary judgment on

the ground that UTI lacks standing to assert any

claims belonging to Ukraine. Rule 17(a) of the Fed-

eral Rules of Civil Procedure provides that “[e]very

action shall be prosecuted in the name of the real

party in interest.” See Fed. R. Civ. P. 17(a). If a claim

has been assigned, the assignee becomes the real-

party-in-interest and can maintain suit in its own

name. See Klamath-Lake Pharmaceutical Ass'n v.

Klamath Medical Service Bureau, 701 F.2d 1276,

1282 (9th Cir. 1983). The burden of proving the

validity of an assignment lies with the purported

assignee. See Britton v. Co-op Banking Group, 4 F.3d

742, 746 (9th Cir. 1993).

A. Timing of Assignment

Defendants argue that even if the August 11,

1999 assignment from the PGOU to UTI is valid, it

does not operate to cure UTI’s lack of standing to

assert the instant action at the time the complaint

was filed on June 24, 1999.

App. 23

Assuming, arguendo, UTI lacked standing to

assert its initial complaint, however, an amended

complaint was filed October 8, 1999, after the assign-

ment was executed. Where a plaintiff obtains an

assignment after the filing of his initial complaint,

and thereafter files a timely amended complaint,

dismissal for lack of standing is not warranted.” See,

e.g., Kilbourn v. Western Surety Co., 187 F.2d 567, 571

(10th Cir. 1951) (rejecting contention plaintiff’s claim

subject to summary judgment where plaintiff ob-

tained assignment after filing initial complaint but

before filing amended complaint).

Accordingly, defendants have not demonstrated

that the execution of the assignment after the filing

of the initial complaint entitles them to summary

judgment.

B. Act of State Doctrine

UTI next argues that the act of state doctrine

bars the Court from examining the legality of the

PGOU’s assignment to UTI.

‘“ Defendants do not argue that the statute of limitations

expired on any claim during the three-and-one-half-month

period between the date of the initial complaint and the date the

amended complaint was filed. See, e.g., United States ex. rel.

Wulff v. CMA, Inc., 890 F.2d 1070, 1073-75 (9th Cir. 1989) (af-

firming summary judgment in favor of defendants where statute

of limitations ran after initial complaint filed but before plain-

tiffs obtained assignment).

App. 24

“The act of state doctrine in its traditional

formulation precludes the courts of this country from

inquiring into the validity of the public acts a recog-

nized foreign sovereign power committed within its

own territory.” Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 401 (1964); see also Underhill v.

Hernandez, 168 U.S. 250, 252 (1897) (“Every sover-

eign state is bound to respect the independence of

every other sovereign state, and the courts of one

country will not sit in judgment on the acts of the

government of another, done within its own ter-

ritory.”). The doctrine “has its roots, not in the Con-

stitution, but in the notion of comity between

independent sovereigns,” as well as “judicial def-

erence to the exclusive power of the Executive over

conduct of relations with other sovereign powers and

the power of the Senate to advise and consent on the

making of treaties.” See First National City Bank v.

Banco National de Cuba, 406 U.S. 759, 765 (1972).

“(T]he act of state doctrine justifies its existence

primarily on the basis that juridical review of acts of

state of a foreign power could embarrass the conduct

of foreign relations by the political branches of the

government.” /d. at 765. “The doctrine, today, is a

flexible one designed to prevent judicial pronounce-

ments on the legality of the acts of foreign states

which could embarrass the Executive Branch in the

conduct of foreign affairs.” Liu v. Republic of China,

892 F.2d 1419, 1432 (9th Cir. 1989). “The ‘touchstone’

or ‘crucial element’ is the potential for interference

with our foreign relations.” /d.

App. 25

Thus, the doctrine does not apply where, for

example, the executive branch “expressly represents

to the Court that application of the act of state

doctrine would not advance the interests of Amcrican

foreign policy,” see First National City Bank v. Banco

National de Cuba, 406 U.S. at 768, or where the

foreign government concedes the unlawfulness of the

act in question, see Republic of the Philippines uv.

Murcos, 862 F.2d 1355, 1360 (9th Cir. 1988) (en banc)

(holding act of state doctrine “is not a promise to the

ruler of any foreign country that his conduct, if

challenged by his own country after his fall, may not

become the subject of scrutiny in our courts”).

Here, the assignment at issue has been declared

invalid by the Ukrainian courts. As the Ukrainian

government, by its courts, has invalidated the very

assignment at issue, the Court is not barred by the

act of state doctrine from examining the validity of

said assignment for purposes of determining whether

UTI has standing to assert the instant action. See,

e.g., id. at 1360.

Moreover, as defendants point out, the act of

state doctrine kas no application here because the act

of state in question cannot be considered to have been

committed entirely in Ukraine. The assignment was

given by the PGOU to UTI, a Massachusetts corpo-

ration, for the express purpose of filing suit on

Ukraine’s behalf in the United States courts. (See

Clement Decl. Ex. A.) As noted, the act of state

doctrine only precludes inquiry into acts of a foreign

government committed within its own territory. See

App. 26

Sabbatino, 376 U.S. at 401; see also Underhill, 168

U.S. at 252. The act of state doctrine ordinarily does

not preclude judicial review of the extraterritorial

effects of acts of state. See, e.g., Liu, 892 F.2d at 1433

(finding act of state doctrine not applicable to state-

ordered murder planned in foreign country and

carried out in California); Maltina Corp. v. Cawy

Bottling Co., 462 F.2d 1021, 1025 (5th Cir. 1972)

(finding act of state doctrine did not bar former

owners of Cuban corporation confiscated by Cuban

government from suing third party in United States

to preserve right to use United States trademark

registered in name of confiscated corporation; declin-

ing to give “‘extra-territorial effect’ to a confiscatory

decree of a foreign state”); Taubacalera Severiano

Jorge v. Standard Cigar Co., 392 F.2d 706, 715-16

(5th Cir. 1968) (finding act of state doctrine did not

bar former owners of Cuban corporation confiscated

by Cuban government from suing Florida corporation

for money owed prior to confiscation; holding “acts

are to be recognized under the Act of State Doctrine

only insofar as they were able to come to complete

fruition within the dominion of the Cuban govern-

ment”); Republic of Irag v. First National Bank, 353

F.2d 47, 51 (2nd Cir. 1965) (finding act of state doc-

trine did not bar judicial review of Iraqi confiscation

of assets located in United States; noting, “when

property confiscated is within the United States at

the time of the attempted confiscation, our courts will

vive effect to acts of state only if they are consistent

with the policy and law of the United States.”) (in-

ternal quotation and citation omitted); but see In re

App. 27

Philippine National Bank, 397 F.3d at 773 (finding

“extraordinary circumstances” requiring application

of act of state doctrine to preclude district court’s

interference with Philippine Supreme Court order

requiring transfer of assets from Singapore to Repub-

lic of Philippines). Here, because the assignment at

issue was purportedly made for the express purpose

of permitting UTI to file suit in United States courts

to recover assets located in the United States, the

Court finds the act in question was not committed

entirely within Uxraine, and, accordingly, the act of

state doctrine does not bar this Court from reviewing

the validity of said assignment.

For the reasons set forth above, the Court finds

the act of state doctrine does not bar the Court from

examining the legality of the PGOU’s assignment to

UTI.

C. Fugitive Disentitlement Doctrine

UTI argues that Kiritchenko and Lazarenko are

fugitives from justice with respect to various Ukrain-

ian criminal charges and, consequently, are barred by

the fugitive disentitlement doctrine from seeking en-

forcement of the Ukrainian judgments in this Court.

Assuming, arguendo, that Kiritchenko and Lazarenko

are fugitives with respect to criminal charges in

Ukraine, however, the fugitive disentitlement doc-

trine, for the reasons set forth below, does not bar

them from seeking to enforce the Ukrainian judg-

ments in this Court.

App. 28

The fugitive disentitlement doctrine authorizes a

court to “dismiss an appeal or writ in a criminal mat-

ter when the party seeking relief becomes a fugitive”

during the pendency of his appeal. See Degen v.

United States, 517 U.S. 820, 823 (1996); Ortega-

Rodriguez v. United States, 507 U.S. 234, 239 (1993).

The purposes of the doctrine are “to avoid making

decisions that could not be enforced, to deter flight, to

assure an effective adversary process, and to serve

the interest in efficient, dignified appellate practice.”

See United States v. Gonzalez, 300 F.3d 1048, 1051

(9th Cir. 2002) (internal quotation and citation

omitted).

Here, neither Kiritchenko nor Lazarenko is seek-

ing relief with respect to the criminal matters in

Ukraine from which they are alleged to have become

fugitives. As the Second Circuit has noted, there are

no cases “in which the doctrine was applied by a court

of the jurisdiction to which, rather than from which,

the alleged fugitive had fled.” See Bano v. Union

Carbide Corp., 273 F.3d 120, 125 (2nd Cir. 2001). As

the Second Circuit explained:

That is not surprising. Because the purpose

of the doctrine is to allow courts to protect

their proceedings and judgments, a court will

ordinarily employ it only to ensure the en-

forceability of its decisions; to discourage

flouting its process; to discourage flights

from its administration of justice; or to avoid

prejudice to the other side affecting litigation

that is or may be before it.

App. 29

Id. at 125-26 (emphases in original). The doctrine

applies only where there is “some connection between

a defendant's fugitive status and his appeal.” See

Ortega-Rodriguez, 507 U.S. at 249. In Bano, for

example, the Second Circuit found the fugitive disen-

titlement doctrine inapplicable to district court pro-

ceedings wherein the defendants were fugitives from

court proceedings in India, holding “[iJt is the courts

of India ..., not the United States District Court for

the Southern District of New York, that would have

the authority ... to defend their own dignity by

sanctioning the defendants’ alleged acts of defiance,

which occurred solely within their domain.” See Bano,

273 F.3d at 127.

Similarly, in the instant action, because

Kiritchenko and Lazarenko are alleged to be fugitives

from Ukraine, the fugitive disentitlement doctrine

does not preclude them from seeking enforcement of

Ukrainian judgments in this Court.

D. Enforcement of Ukrainian Judgments

Against UTI

As discussed above, the Ukrainian courts, in two

different lawsuits, have found the PGOU’s assign-

ment to UTI invalid on the ground the PGOU lacks

authority under Ukrainian law to assign any claims

held by the state of Ukraine to anyone. (See Romanova

Decl. Exs. A, B; Clements Decl. Exs. X, BB.) UTI

argues the Ukrainian court decisions cannot be en-

forced against UTI.

App. 30

1. Standard for Recognition of Foreign

Judgments

Federal jurisdiction over the instant action is

based on both diversity and the existence of a federal

question. (See SAC 4q 27-28.) As set forth below, the

same standard applies to recognition of foreign judg-

ments irrespective of whether jurisdiction is based on

diversity or a federal question.

“There is currently no federal statute governing

recognition of foreign judgments in the _ federal

courts.” Yahoo! Inc. v. La Ligue Contre Le Racisme et

L’Antisemitisme, 433 F.3d 1199, 1212 (9th Cir. 2006)

(en banc) (opinion of Fletcher, J.). “In diversity cases,

enforceability of judgments of courts of other coun-

tries is generally governed by the Jaw of the state in

which enforcement is sought.” Jd. at 1213." Although

UTI contends the enforceability of the Ukrainian

judgments is determined by California’s Uniform

Foreign Money-Judgments Recognition Act, that Act

applies only to a “‘judgment of a foreign state

Although the cited section of Judge Fletcher’s opinion is

joined by only two other judges on the en banc panel, the opinion

authored by Judge Fisher concurring in part and dissenting in

part is in agreement with Judge Fietcher that, in a diversity

action, the enforcement of a foreign judgment is a question of

the law of the state in which enforcement is sought. See id. at

1239 n.4 (Fisher, J., concurring in part and dissenting in part.)

Because Judge Fletcher’s opinion on this issue is joined by two

other judges, and Judge Fisher’s opinion is joined by four other

judges, a majority decision of the en banc panel exists on this

issue.

App. 31

granting or denying recovery of a sum of money.’” See

id. (quoting Cal. Code Civ. Proc. § 1713.1(2)). As dis-

cussed above, the Ukrainian courts did not award

damages, but rather, addressed the issue of whether

the PGOU validly assigned Ukraine's claims to UTI.

Thus, the Uniform Foreign Money-Judgments Recog-

nition Act has no application; rather, the Court must

“look to general principles of comity followed by the

California courts” as embodied in the Restatement of

the Foreign Relations Law of the United States. See

id. at 1213. Likewise, in federal question cases, courts

look to the Restatement of the Foreign Relations Law

of the United States. See Bank Melli Iran v. Pahlavi,

58 F.3d 1406, 1410 (9th Cir. 1995) (citing Hilton v.

Guyot, 159 U.S. 113, 205-06 (1895) and Restatement

(Third) of the Foreign Relations Law of the United

States § 482) (noting “fi]t has long been the law of the

United States that a foreign judgment cannot be

enforced if it was obtained in a manner that did not

accord with due process”).

Section 482 of the Restatement (Third) of the

Foreign Relations Law of the United States sets forth

the circumstances under which a United States court

shall not recognize a foreign judgment, and the

circumstances under which such a court need not

recognize a foreign judgment. “A court in the United

States may not recognize a judgment of the court of a

foreign state if “(a) the judgment was rendered under

a judicial system that does not provide impartial

tribunals or procedures compatible with due process

of law; or (b) the court that rendered the judgment

App. 32

did not have jurisdiction over the defendant in ac-

cordance with the law of the rendering state and with

the rules set forth in § 421.”" See Restatement

(Third) of the Foreign Relations Law of the United

States § 482(1). A court “need not” recognize a foreign

judgment if, inter alia, “the defendant did not receive

notice of the proceedings in sufficient time to enable

him to defend,” or “the judgment was obtained by

fraud,” or “the cause of action on which the judgment

was based, or the judgment itself, is repugnant to the

public policy of the United States or of the State

where recognition is sought.” See id. § 482(2\b), (c),

(d).

2. Lack of Due Process

Although UTI asserts numerous grounds in sup-

port of its argument that the Ukrainian courts’

decisions cannot be enforced against UTI, the Court

need not address all of them; the Court agrees with

UTI that the Ukrainian court decisions are not

enforceable age’ -TI consistent with due process

because service of process was never effected upon

UTI in the Ukrainian actions. Roman A. Plyamovaty,

a member of UTI’s board of directors, attests that UTI

“has never been served with any summons or plead-

ings from Ukrainian courts, under the Hague

" Section 421 sets forth various factors to be considered in

determining whether “the relationship of the state to the person

or thing is such as to make the exercise of jurisdiction reason-

able.” See id. § 421.

App. 33

Convention or otherwise,” (see Plyamovaty Decl.,

filed Jan. 20, 2006, 7 3), and there is no evidence to

the contrary.

Defendants do not argue that UTI was served in

the Ukrainian actions, but contend UTI eventually

received informal notice of the actions. In support

thereof, defendants submit UTI’s declaration attest-

ing to lack of service, dated December 2, 2003, and

filed by the PGOU in the Kiritchenko Ukrainian liti-

gation, thus arguably demonstrating UTI was at least

aware of the Kiritchenko Ukrainian litigation before

that litigation concluded. (See Clements Decl. Ex. R.)

A “due process ‘principle of general application

in Anglo-American jurisprudence,” however, is that

“one is not bound by a judgment in personam in a

litigation in which he is not designated as a party or

to which he has not been made a party by service of

process.” See Ortiz v. Fibreboard Corp., 527 U.S. 815,

846 (1999) (quoting Hansberry v. Lee, 311 U.S. 32, 40

(1940)). Consistent therewith, the Courts of Appeals

have held, with respect to foreign litigation, that any

judgment entered in such foreign litigation cannot be

enforced in United States courts against any party

not properly served therein. See Norex Petroleum Ltd.

v. Access Industries, Inc., 416 F.3d 146, 161-62 (2d

Cir. 2005) (internal quotation and citation omitted)

(holding Russian default judgment could not be given

“ Ukraine, like the United States, is a party to the Hague

Convention.

App. 34

preclusive effect by United States court without af-

fording defendant opportunity to challenge in United

States action whether such defendant was properly

served in Russian action); Koster v. Automark In-

dustries, Inc., 640 F.2d 77, 81 n.3 (7th Cir. 1981)

(holding Dutch default judgment not enforceable in

United States courts because service on defendant

pursuant to Dutch law failed to “comport with

American due process requirements”); see also Arco

Electronics Control Ltd. v. Core Intl, 794 F. Supp.

1144, 1146 (S.D. Fla. 1992) (refusing to enforce Israeli

judgment against Florida corporation where Florida

corporation was not served in Israeli litigation pur-

suant to requirements of Hague Convention); Mata v.

American Life Ins. Co., 771 F. Supp. 1875, 1390 (D.

Del. 1991) (refusing to recognize Bolivian judgment

where purported service on defendant failed to

“comport with United States notions of constitutional

due process”). Accordingly, this Court finds any infor-

mal notice UTI received with respect to the Ukrain-

ian litigation does not suffice for purposes of

compliance with due process.

In sum, because there is no evidence UTI was

ever served in the Ukrainian actions, the Court finds

the Ukrainian courts’ decisions are not enforceable

against UTI."

“In light of such ruling, the Court need not determine

whether, pursuant to § 482(1), it cannot enforce the Ukrainian

courts’ decisions against UTI because the Ukrainian courts

lacked jurisdiction over LITI, or whether, pursuant to § 482(2), it

(Continued on following page}

App. 35

E. Ukrainian Judgments as Evidence of

Foreign Law

Defendants argue that even if the Ukrainian

judgments are not directly enforceable against UTI,

the Court should defer to the Ukrainian judgments as

evidence of Ukrainian law on the issue of the PGOU’s

authority to assign claims held by Ukraine.

1. Choice of Law

UTI argues that the Ukrainian judgments are

irrelevant because the Court should apply California

law, not Ukrainian law, to determine the validity of

the assignment from the PGOU to UTL.

Where, as here, jurisdiction is based on the exis-

tence of a federal question, (see SAC ¥ 28), “federal

common law applies to the choice of law rule deter-

mination.” See Schoenberg v. Exportadora de Sal, 930

F.2d 777, 782 (9th Cir. 1991). Federal common law

“follows the approach of the Restatement (Second) of

Conflict of Laws[.]” See id. As defendants point out,

the validity of an assignment is “determined by the

local law of the state which, with respect to the

particular issue, has the most significant relationship

to the assignment and the parties.” See Restatement

“need not” enforce such decisions on the grounds that UTI failed

to receive notice of the proceedings in sufficient time to defend or

that the judgment is repugnant to the public policy of the United

States or California.

App. 36

(Second) of Conflicts of Laws § 209.*° The comments

to § 209 expressly state that § 209 applies to the issue

of “the capacity of the assignor to make an effective

assignment.” See id. cmt. a. Ukraine unquestionably

has the most significant relationship, both to the

assignment and the parties, with respect to the issue

of whether the PGOU has the capacity to assign

claims held by Ukraine. California and the United

States have no interest in determining the scope of

authority of Ukrainian prosecutors, or the circum-

stances under which the government of Ukraine may

assign its claims to others.

As noted, UTI also relies on diversity as a basis

for jurisdiction over the instant action. (See SAC

{| 27.) “A district court in a diversity case must apply

the same choice of law analysis that would be applied

by state courts in the jurisdiction in which the district

court is situated.” See Liew v. Official Receiver

and Liquidator (Hong Kong), 685 F.2d 1192, 1195 (9th

Cir. 1982) (citing Alaxon Co. v. Stentor Electric Mfg.

Co., Inc., 313 U.S. 487, 496 (1941)). In Liew, in de-

termining the validity of an assignment, the Ninth

Circuit applied California’s “governmental interest”

analysis. See id. Under such analysis, where there is

“ Although § 209 refers to the assignment of contractual

rights, the Restatement’s introductory note to the topic states

§ 209 “probab![yv]" is “also applicable to assignments of rights of

action in tort.” See Restatement (Second) Conflicts of Law, intro-

ductory note to Chapter 8, Topic 2. “Assignment of Contractual

Rights.” The Court is aware of no authority to the contrary

App. 37

a conflict between the laws of two jurisdictions, but

only one of the jurisdictions has an interest in having

its laws applied to the issue in question, the court

applies the law of that jurisdiction. See id. at 1196.

Here, as noted, only Ukraine has an interest in

determining the scope of authority of UkKrainian

prosecutors, or the circumstances under which the

government of Ukraine may assign its claims to

others.”

Thus, regardless of whether the Court applies

federal or California choice of law rules, the Court

must apply Ukrainian law to determine the validity

of the assignment from the PGOU to UTI.

2. Determination of Foreign Law; Ukrainian

Court Decisions As Evidence Thereof

Pursuant to Rule 44.1 of the Federal Rules of

Civil Procedure, a district court, “in determining for-

eign law, may consider any relevant material or

source, including testimony, whether or not submitted

by a party or admissible under the Federal Rules of

Evidence.” See Fed. R. Civ. P. 44.1. In particular,

*” UTI argues that, under California choice of law rules,

questions affecting the title to real property are to be deter-

mined by the law of the jurisdiction in which the property is

located. (See Opp. at 18 (citing Cummings v. Bullock, 367 F.3d

182, 383 (9th Cir. 1966).) Although plaintiff. in the instant

action, seeks title to certain real property located in California.

the threshold issue here is the validity of the assignment to UTI.

not a question concerning the title to real property.

App. 38

courts may rely on foreign case law. See Pazcoguin v.

Radcliffe, 292 F.3d at 1214 (discussing Philippine

case law in determining issue of Philippine law).

The determination of foreign law is a question of

law. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216

(9th Cir. 2002); see also Fed. R. Civ. P. 44.1 (“The

court’s determination [of foreign law] shall be treated

as a ruling on a question of law.”). “Even differences

of opinion on the content, applicability, or interpre-

tation of the foreign provision may not be charac-

terized as a ‘genuine issue as to any material fact’

under Rule 56.” Banco de Credito Industrial, S.A. v.

Tesoreria General de la Seguridad Social de Espana,

990 F.2d 827, 838 (5th Cir. 1993) (internal quotation

and citation omitted).

As discussed above, the Ukrainian courts, in two

different lawsuits, have found the PGOU’s assign-

ment to UTI invalid on the ground the PGOU lacks

authority under Ukrainian law to assign the claims of

Ukraine to anyone. (See Romanova Decl. Exs. A, B;

Clements Decl. Exs. X, BB.) Defendants offer the

above-referenced Ukrainian court decisions “under

Rule 44.1 as a statement of the law of Ukraine

regarding the validity of the assignment.” (See Reply

at 7-8.)

UTI argues that, pursuant to Comment “i” to

§ 482 of the Restatement (Third) of Foreign Relations

Law, the Ukrainian opinions are not admissible as

evidence for any purpose. Comment “i” provides:

App. 39

If a foreign judgment is refused recognition

on grounds of unfairness of the judicial

system, unfair procedures, fraud, or lack of

jurisdiction, it may not be admitted for any

purpose in the United States. Judgments

refused recognition on other grounds — for

instance, under Subsection 2(d), (e), or (f),”"

or because of lack of reciprocity, ... — may be

admitted as evidence of the matters litigated

or determined, but will not be binding on the

court or preclude the opposing party from

introducing contrary evidence.

See Restatement (Third) of Foreign Relations Law

§ 482, cmt. i.”

a. Asserted Lack of Impartial Judicial

System/Unfair Procedures

UTI argues, relying in large part on United

States Department of State Country Reports on

Human Rights Practices (“Country Reports”) for

Pursuant to §§ 2(d), (ec), and (f), a court “need not recog-

nize a judgment of the court of a foreign state if .. . (d) the cause

of action on which the judgment was based, or the judgment

itself, is repugnant to the public policy of the United States or of

the State where recognition is sought; (e) the judgment conflicts

with another final judgment that is entitled to recognition; or (f)

the proceeding in the foreign court was contrary to an agree-

ment between the parties to submit the controversy on which

the judgment is based to another forum.” See Restatement

(Third) of Foreign Relations Law § 482(2)(d), (e), (f).

“ The parties have cited no case law interpreting comment

“1,” and this Court has located none.

App. 40

Ukraine, that the Court should not consider the

Ukrainian judgments because Ukrainian courts are

not impartial tribunals and do not provide procedures

compatible with due process of law.

The Country Reports, while recognizing that the

Constitution of Ukraine provides for an independent

judiciary, nonetheless express some concern about

past incidents of corruption in the Ukrainian court

system. (See, e.g., Country Reports on Human Rights

Practices, Ukraine, 2002 § 1(e);*’ Country Reports

on Human Rights Practices, Ukraine, 2003 § 1(e);

Country Reports on Human Rights Practices, Ukraine,

2004 § 1(e);*” Country Reports on Human Rights

Practices, Ukraine, 2005 § 1(e)”.) The Country Re-

ports also include positive statements about Ukrain-

ian courts, however, suggesting that the Ukrainian

judicial system has been improving. For example, the

2004 Country Report for Ukraine notes that “the Su-

preme Court continued to show increasing independence

“ The 2002 Country Report on Human Rights Practices,

Ukraine, is available at http://www.state.gov/g/drl/rls/hrrpt/

2002/18398.htm.

*“ The 2003 Country Report on Human Rights Practices,

Ukraine, is available at http://www.state.gov/g/drl/rls/hrrpt/

2003/27871.htm.

* The 2004 Country Report on Human Rights Practices,

Ukraine, is available at http//www.state.gov/g/drl/rls/hrrpt/2004/

41715. htm.

* The 2005 Country Report on Human Rights Practices,

Ukraine, is available at http://www.state.gov/g/dri/rls/hrrpt/2005/

61682.htm.

App. 41

during the course of the year”; that the “Constitution

includes procedural provisions intended to ensure a

fair trial,” although remnants of a “Soviet era

criminal justice system” limited those rights pending

enactment of additional legislation; that Ukrainian

law “provides for broad use of juries,” albeit, to date,

juries had been used in only a limited number of

cases; and that a new Judicial Academy “trains new

judges and continues the education of sitting judges

... [and] graduated its first groups of judges in April

2003.” (See Country Reports on Human Rights Prac-

tices, Ukraine, 2004 § 1(e).) The 2005 Country Report

observes that although the head of the Ukraine

Supreme Court had stated that, during the previous

administration, he had received calls from senior

administration officials and had been given instruc-

tions how to rule in specific cases, he had received “no

such calls under the [current] Yuschenko administra-

tion.” (See Country Reports on Human Rights

Practices, Ukraine, 2005 § l(e).) Moreover, “{i]n con-

trast to 2004, there were no credible reports that the

government sought to dismiss politically unsympa-

thetic judges,” and “{hjuman rights groups, the

media, and legal watchdog organizations noted that

the court continued to show independence during the

course of the year.” (See id.)

Likewise, although a 2004 report from the United

States Department of State titled, “Doing Business in

Ukraine: A Country Commercial Guide for U.S. Com-

panies” (“Commercial Guide”), (see Motion to Supple-

ment Record, filed June 16, 2006, Ex. 2), also relied

App. 42

on by UTI, notes that “|mJost U.S. businesses con-

sider the local and national court systems unpre-

dictable and try to avoid them,” (see id. at 117), the

Commercial Guide also states that a 2003 law created

“an independent judicial department to manage the

court system,” which “increases the independence of

the judiciary,” (see id. at 117), and further notes “an

encouraging trend toward conforming Ukraine's legal

system to international norms.” (See id.)

Here, the court decisions in the Kiritchenko

Ukrainian litigation were issued in 2003, 2004, and

2005; the decisions in the Lazarenko Ukrainian

ligation were issued in 2003 and 2005. Although the

triai court decisions in each action were issued in

2003, the most recent appellate decisions in each ac-

tion were issued in 2005, by which time the Ukrain-

ian court system had made substantial progress, and

found no error in the trial court decisions. Moreover,

the issue decided by the Ukrainian courts — whether

the PGOU has authority to assign claims to UTI, or,

indeed, to anyone — is, in essence, a question of law;

consequently, any deficiencies at the time the earlier

proceedings were conducted are unlikely to have had

any impact on the independent legal analysis there-

after conducted by the higher courts. Finally, as

discussed further below, the legal analyses set forth

in the Ukrainian court decisions are consistent with

each other and are based on the same constitutional

provisions and statutes identified by the parties’

experts herein as relevant, thus suggesting that any

deficiencies in the Ukrainian court system did not

App. 43

impact the legal reasoning in the actions at issue

herein.

Accordingly, the Court finds UTI has not demon-

strated that the Ukrainian courts are so lacking in

impartiality, due process, or procedural fairness that

the United States courts should disregard all

Ukrainian court decisions as a matter of course, or

the particular decisions at issue herein. See, e.g., In

the Matter of the Arbitration Between Monegasque de

Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311

F.3d 488, 499 (2d Cir. 2002) (rejecting argument that

asserted corruption rendered Ukraine inadequate “al-

ternate forum” for purposes of forum non conveniens

analysis; finding no showing that Ukraine “is char-

acterized by a complete absence of due process or an

inability of the forum to provide substantial justice to

the parties”).

b. Asserted Fraud

UTI further argues that the Court should not

consider the Ukrainian judgments because they were

obtained by fraud. UTI contends that various as-

serted irregularities in the manner in which the

Kiritchenko and Lazarenko Ukrainian actions were

conducted are evidence of fraud.*’ Assuming, arguendo,

* In particular, with respect to the Kiritchenko Ukrainian

litigation, UTI argues that (1) the March 4, 2003 judgment of

the Pechersk court was issued only 19 days after the case was

filed; (2) the Ukrainian judge mailed a summons to UTI only six

(Continued on following page)

App. 44

the existence of any such irregularities, however, the

Court, having reviewed the evidence upon which UTI

relies, and for the reasons set forth by defendants,

finds UTI has failed to raise a triable issue that any

such irregularities are the result of fraud. Moreover,

UTI has submitted no evidence that any such ir-

regularities resulted in any failure by the Ukrainian

courts to reasonably apply the relevant law to what

are essentially the undisputed relevant facts. UTI has

submitted no evidence that the analyses in which the

Ukrainian courts engaged are at odds with Ukrainian

law.

days before the March 4, 2003 judgment; (3) the March 4, 2003

hearing, which led to issuance of the March 4, 2003 judgment,

was conducted within two hours, without witnesses or experts,

and generated no transcripts; (4) the March 4, 2003 judgment

included dicta; (5) the May 29, 2003 appellate hearing took only

ten minutes; (6) Kiritchenko initially produced, in the instant

litigation, an illegible copy of a receipt purporting to indicate an

attempt to serve UTI in the Kiritchenko Ukrainian litigation;

and (7) Kiritchenko submitted to the Ukrainian court an illegi-

ble copy of the August 11, 1999 assignment. With respect to the

Lazarenko Ukrainian litigation, UTI argues that (1) the sum-

mons to UTI was sent to the wrong address only ten days before

the September 3, 2003 hearing in the Pechersk court; (2) the

September 3, 2003 judgment was unusually lengthy; (3) an un-

signed copy of the September 3, 2003 opinion in the Lazarenko

Ukrainian action was obtained by Kiritchenko; (4) the July 7,

2005 opinion is sloppily handwritten; and (5) Judge Strizhevska,

the judge who issued the September 3, 2003 decision of the

Pechersk court has been under investigation for tampering with

judicial proceedings in other cases.

App. 45

c. Failure to Serve UTI

UTI further argues that the Court should not

consider the Ukrainian judgments for any purpose

because UTI was not served in either of the Ukrain-

ian actions. As discussed above, the Ukrainian judg-

ments are not enforceable against UTI because UTI

was never served in those actions. Nothing in § 482 of

the Restatement (Third) of Foreign Relations Law,

however, expressly precludes a foreign judgment,

under such circumstances, from being considered as

persuasive authority with respect to the determina-

tion of an issue of foreign law. The absence of any

such discussion is not surprising; determination of

foreign law is expressly governed by Rule 44.1 of the

Federal Rules of Civil Procedure, which expressly

permits district courts, in determining foreign law, to

“consider any relevant material or source, ... whether

or not ... admissible under the Federal Rules of

Evidence.” See Fed. R. Civ. P. 44.1 (emphasis added).

Moreover, the Ukrainian actions were actively liti-

gated by the PGOU, who, as UTIs purported as-

signor, was aligned in interest with UTI, and there is

no contention that the Ukrainian courts lacked juris-

diction over the PGOU, let alone over the subject

matter of the action.

Accordingly, the Court finds the lack of service on

UTI does not preclude the Court from considering the

Ukrainian courts’ decisions with respect to the issue

of the PGOU’s authority to assign claims of Ukraine,

and the Court will consider the Ukrainian courts’

decisions as evidence of Ukrainian law, in addition to

App. 46

the parties’ other evidence of Ukrainian law relevant

to such issue.

3. Analysis of Ukrainian Law

Defendants argue that the Constitution and laws

of Ukraine grant the PGOU specific enumerated

powers, and that the authority to assign claims on

behalf of the state is not included therein.

As defendants observe, Article 19 of the Ukraine

Constitution provides: “Bodies of state power ... and

their officials are obliged to act only on the grounds,

within the limits of authority and in the manner

envisaged by the Constitution and laws of Ukraine.”

(See Clements Decl { 6 and Ex. E.) The Commentary

to Article 19 explains that such entities “must act

exclusively within limits determined by laws and

regulations,” and that “[tjheir activities must be com-

pletely and accurately defined, controlled, and regu-

lated to the maximum extent possible in order to

prevent any acts which may be detrimental to the

individual, the society or the state for any reasons

whatsoever.” (See id.)

Article 92, subsection 14, of the Ukraine Consti-

tution further provides that “the organization and

operation of the procuracy” is “determined exclu-

sively by the laws of Ukraine.” (See id. 4] 7 and Ex. F.)

” The parties agree that references to the “procuracy” refer

to the PGOU.

App. 47

Article 121 of the Ukraine Constitution defines the

authority of the PGOU, as follows:

The Procuracy of Ukraine constitutes a unified

system which is entrusted with:

(1) prosecution in court on behalf of the

State;

(2) representation of the interests of a

citizen or of the State in court in cases

determined by law;

(3) supervision of the observance of laws by

bodies that conduct detective and search

activity, inquiry and pre-trial investigation;

(4) supervision of the observance of laws in

the execution of judicial decisions in criminal

cases, and also in the application of other

measures of coercion related to the restraint

of personal liberty of citizens.

(See id. 4] 8 and Ex. G.)

Ukraine’s Code of Civil Procedure further defines

the scope of the authority of the PGOU. In particular,

Article 13 provides that “[tlhe scope and limits of the

public procurator’s powers during the hearing of a

case shall be defined by this Code.” (See id. | 10 and

Ex. I.) Article 120 provides that “[a] public procurator

shall be a participant in civil proceedings in the court

.. [and] shall exercise the rights specified in Article

99,” (see id. 411 and Ex. J); Article 99 grants all

individuals participating in a case the following

nghts:

App. 48

the right to review the case materials and

make transcripts thereof; obtain copies of

decisions, determinations, decrees, or any

other documents related to the case; partici-

pate in court hearings; present evidence and

participate in investigation of evidence; file

petitions or exceptions; give oral or written

explanations to the court; present his or her

arguments, considerations, or objections; ap-

peal any court decision or determination; and

exercise any other procedural rights accorded

thereto by law.

(See id. ¥ 12 and Ex. K.) Article 120 grants a public

procurator the additional rights to:

(1) Affirm or alter declarations made by

him before the court in defense of the rights

and lawful interests of individuals and the

state or waive such declarations;

(2) Submit cassation or separate appeals

with regard to, respectively, the decision or

ruling of the court of the first instance in

cases or regarding matters in the hearing of

which the procurator participated.

(See id. 9 11 and Ex. J.) As defendants point out,

none of the above-referenced provisions provide that

~ Additionally, the authority of the PGOU is further de-

fined by statute and, in particular, by a 1991 law referred to

as both the “Law of Ukraine ‘On Procuracy’” and the “Law of

Ukraine: On General Prosecutor’s Office” (hereafter, “1991 law”).

(See id. Ex. G (Commentary to Article 121; noting “[aJctivities

all procurators are regulated by the Law of Ukraine “On

(Continued on following page)

App. 49

the PGOU is authorized to assign to third parties

claims belonging to Ukraine.

Defendants submit a declaration from Aleksandr

Romanovich Mikhailenko (“Mikhailenko”), professor

and head of the Department of Procedural Law, Insti-

tute of Advocateship, at Taras Shevchenko National

University of Kiev, dated March 7, 2000. Relying on

Articles 19 and 121 of the Ukraine Constitution,

Mikhailenko opines that the PGOU “may act only

within the scope of authority and by such means

as provided by the Constitution of Ukraine and

Ukrainian laws.” (See Clements Surreply Decl. Ex. A

(Mikhailenko Decl.) { 8.) Mikhailenko further opines,

relying on Article 102 of the Ukraine Constitution,

that an assignment of Ukraine’s claims by the PGOU

“to anyone, including a private foreign firm, for the

Procuracy” dated November 5, 1991, as amended”); see also The

Law of Ukraine: On General Prousecutor’s Office, No. 1789-XII

(1991) (Ukraine) (summary of statute provided by Ukrainian

Parliament), available at http://zakon.rada.gov.ua/cgi.bin/laws/

anot.cgi?nreg=1789-12&p-1181578107055724.) Although no party

has submitted a copy of such statute, the Court notes that the

above-referenced summary thereof provides that the PGOU

“shall supervise observance and correct application of laws by

the Cabinet of Ministers of Ukraine, ministries and depart-

ments, bodies of state and economic management and control,

local councils, their executive bodies, military units, all legal

entities and natural persons,” and that the “[bJasic functions of

the General Prosecutor’s Office shall be support of state accu

sation in court and representation of interests of citizen or state

in court in cases inscribed by law.” See id. There is no suggestion

therein that the PGOU has authority to assign to third parties

claims belonging to Ukraine.

App. 50

purpose of protecting the interests of Ukraine, is not

based on law” and that “only the President of Ukraine

as head of state may act on behalf of the state of

Ukraine.” (See id. 4 12; see also Pechota Decl. Ex. B

(English translation of Ukraine Constitution) Art. 102

(providing, “Ihe president of Ukraine is the head of

state and acts in the name of the state.”). Relying

further on Article 121 and the 1991 law, Mikhailenko

opines that “if the state of Ukraine has sustained

material damage, the [PGOU] may indeed represent

the state in court,” but that no law authorizes the

PGOU “to delegate any of its constitutional represen-

tative functions to uphold the interests of the state to

any other authority.” (See Clements Surreply Decl.

Ex. A (Mikhailenko Decl.) 49 17, 24.) Mikhailenko

further opines that the PGOU “may act to assign

material claims on behalf of the state of Ukraine only

to the extent provided by the Constitution or laws of

Ukraine,” and that “neither the Constitution of

Ukraine nor any law of Ukraine provides for any

officer of the |PGOU]| to be vested with such powers.”

(See Clements Surreply Decl. Ex. A (Mikhailenko

Decl.) 4 27(b).) Accordingly, Mikhailenko concludes,

the PGOU has “no right to act in such manner.” (See

id.)

UTI relies on the declarations of Valery Ivanovich

Kuznetsov (“Kuznetsov”), dated April 4, 2000; Viktor

Fedorovich Pogorelko (“Pogorelko”), dated April 4,

2000; and Vratislav Pechota (“Pechota”), dated April

6, 2000. Kuznetsov is the Chairman of the Depart-

ment of International Law at the Academy of

App. 51

Diplomacy of the Ministry of Foreign Affairs of

Russia. (See Kuznetsov Decl. at 4:11-13.) Kuznetsov

attests he was asked to opine on the issue of whether

the PGOU, “within the framework of investigating its

criminal cases, has the right to enter into contractual]

relations with foreign legal entities and to contract

them to locate, identify and assist in repatriation to

Ukraine of assets illegally withdrawn from Ukraine.”

(See Kuznetsov Decl. at 5:25-6:3.) Relying on the

language in Article 121 of the Ukraine Constitution

providing that the PGOU “is entrusted with

representation of the interests ... of the State in

court in cases determined by law,” Kuznetsov con-

cludes that the PGOU “has the power to enter into

contractual relations with foreign legal entities if the

protection of rights and interests of citizens and of the

State requires so.” (See Kuznetsov Decl. at 7:2-5.)

Kuznetsov offers no opinion, however, as to whether

the PGOU has the authority to assign to third parties

claims belonging to Ukraine.

Pogorelko is the Head of the Department of

Constitutional Law and Local Self-Government at the

V.M. Koretsky Institute of State and Law at the

National Academy of Science of Ukraine. (See

Pogorelko Decl. at 5:17-20.) Relying on Article 121,

Pogorelko opines that the PGOU “has the entirety of

the authority to represent the interests of the

Ukrainian State in the judicial bodies.” (See id. 4 1.)

Pogorelko further opines that the PGOU has the

authority to seek confiscation of the property of the

accused in criminal cases and has “the power to take

App. 52

corresponding decisions in regard to civil suits

outside of Ukraine.” (See id. ¥4 3-4.) Although, ac-

cording to Pogorelko, the PCOU “is not yet prepared

to effectively implement civil litigation functions in

the civil courts outside of Ukraine,” the PGOU, “by

right, has the grounds to enter into the contractual

relations with private legal entities who are specif-

ically engaged in the location, determination and

repatriation of assets.” (See id. { 6.) Pogorelko further

attests that “[t]here exists no legislative act that

would prohibit to the Prosecutor General’s Office such

contractual actions outside of Ukraine.” (See id. 7 14.)

Pogorelko cites no statute or law that expressly

empowers the Prosecutor General to assign claims to

third parties, however.

Pechota is a Senior Research Scholar and Ad-

junct Professor of Law (retired) at Columbia Uni-

versity School of Law and a member of the faculty of

the Harriman Institute for the Study of Russia and

Eastern Europe at Columbia University. (See Pechota

Decl. { 1.) Pechota attests that, under Ukrainian law,

the PGOU “has been granted wide powers,” some of

which “are strictly defined, others are outlined in

general terms, and still others are implied (that is,

they follow from the express authority given to the

{PGOU] though such powers are not manifested by

explicit and direct definition.” (See id. 4 10.) Pechota

concedes that because the PGOU traditionally “was

concerned with matters that arose in the context of

Ukrainian domestic affairs,” the 1991 law “contains

only a passing reference to international aspects of

App. 53

the [PGOU’s] functions,” and provides only that the

PGOU “deals with matters arising from international

treaties concluded by Ukraine and from the generally

recognized rules of international law.” (See id. { 11

and n.4.) According to Pechota, the PGOU, in order to

give substance to such “passing reference,” issued, on

December 25, 1995, “an instruction entitled ‘On tine

Procedure of Interaction Between the Organs of the

Ukrainian Procuracy and Institutions of Foreign

Countries,” which, Pechota attests, provides for in-

volvement of the PGOU in matters such as “repatri-

ation of stolen property and illegally appropriated

objects and values” and “obtaining information re-

garding the movement of money in bank accounts and

their arrest.”” (See id.) Although Pechota attests that

such “instruction” has the force of law, (see id. J 11),

Pechota does not contend that it authorizes the

PGOU to assign claims of the Ukraine to third

parties.

Pechota does state, however, that because Article

121 of the Ukrai

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