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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1038

## Text

(\) Supreme Court, U.S.
FILED
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: 991150 MAR 18 2610

OFFICE OF THE CLERK
Sn The

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

il

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

lv
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.

vl

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.
X.

TABLE OF CONTENTS — Continued

Page

Proceedings In The Court Of Appeals.......
Post-Appellate Events ......................:00e0000

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

I.

Il.

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

19
22

23

29

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

1X

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.

xl

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

Xl

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

16

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

1

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).

3

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

4

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

5

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.

(c) It shall be unlawful for any person em-
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.

6

(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.

(c) Any person injured in his business or
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

7

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

8

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.

9

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

10

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,

1]

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¢
i2

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.)

13

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,

14

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.)

16

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.”

17

(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.)

18

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.)

19

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

20

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

21
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.)

22

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.

23

one he held in 2003, when the Cabinet supported
UPGO’s relationship with UTICo. (App. 147-49.)

7

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

24

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

25

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.)

26

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

27

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

28

(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.)

29

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,

30

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

3]

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

32

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

33

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”).

34

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.

36

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

37

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

38

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).

39

“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,

40

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

41

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

42

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

43

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1772%3A1. Public record. Not legal advice.