Will the real Fertilizer King please stand up? >$2B yes B as in Billion -Rybolovlev awarded $1.00

Dmitry Rybolovlev - not to be confused by Dmytro Firtash -the prior given that nickname but later bequeathed it to the latter, Yves Bouvier

I recently walked you through the rise and fall of Fertilizer King 2.0 -recent >$250M gut punch by the Ukraine Supreme Court. I make zero apologies for my asymmetrical fondness of, Dmytro Firtash. His legal woes and intersections with FARA, Zuberi, Parnas, Fruman - it’s been a fun way for me to spend my free time.
Having original and/or unaltered documents (beyond “some” highlights) are the best kind of receipts.From a practicality standpoint lugging hundreds of thousands of millions of documents

Dmitry Rybolovlev the OG Fertilizer King

Yes the same Russian Oligarch that purchased Trump’s massive property in Florida — but this isn’t about Trump/Russia because that’s irrelevant and immaterial… conversely his vexatious litigation as it relates to the estimated $2B in artwork has been repeatedly litigated both here in the United States and abroad courts in Monaco, Switzerland, France, Hong Kong and Singapore. Notwithstanding the case that caught my attention is the one in the SDNY.

• October 2, 2018 ACCENT DELIGHRT INTERNATIONAL LTD and XITRANS FINANCE LTD - for nearly a decade Rybolovlev retained the “services” of Yves Bouvier https://ecf.nysd.uscourts.gov/doc1/127023327494

• November 28, 2018 AMENDED COMPLAINT amending 1 Complaint against Sotheby's, Sotheby's Inc.. filed by Accent Delight International Ltd., Xitrans Finance Ltd… https://ecf.nysd.uscourts.gov/doc1/127023657144

• Simultaneously Attorneys for Rybolovlev filed this letter motion (see SDNY-ECF - https://ecf.nysd.uscourts.gov/doc1/127023657162) the focus was narrowly tailored to Sothebys “blanket confidentiality designation“

• Generally speaking Plaintiff Rybolovlev held the view that Sothebys blanket confidentiality was improper and the Court should rule as such

• December 7, 2018 - LETTER MOTION to Seal Document 29 Amended Complaint addressed to Judge Jesse M. Furman from Marcus A. Asner dated December 7, 2018. Document filed by Sotheby's, Sotheby's Inc - see SDNY-ECF https://ecf.nysd.uscourts.gov/doc1/127023750251

• January 18, 2019 - MEMORANDUM OF LAW in Support re: 39 MOTION to Dismiss . . Document filed by Sotheby's, Sotheby's Inc.-see SDNY-ECF https://ecf.nysd.uscourts.gov/doc1/127024001505

• June 25, 2019 -OPINION AND ORDER (see SDNY-ECF https://ecf.nysd.uscourts.gov/doc1/127024996372 re: 46 LETTER MOTION to Seal Document 41 Declaration in Support of Motion, Exhibit H addressed to Judge Jesse M. Furman from Marcus A. Asner dated January 18, 2019. filed by Sotheby's Inc., Sotheby's, 56 LETTER MOTION to Seal Document 52 Memorandum of Law in Opposition to Motion, 55 Declaration in Opposition to Motion,, and Exhibits N, O, and S addressed to Judge Jesse M. Furman from Daniel J. Kornstein dated February 15, 2019. filed by Xitrans Finance Ltd., Accent Delight International Ltd., 39 MOTION to Dismiss filed by Sotheby's Inc., Sotheby's, 32 LETTER MOTION to Seal Document 29 Amended Complaint addressed to Judge Jesse M. Furman from Marcus A. Asner dated December 7, 2018. filed by Sotheby's Inc., Sotheby's.

  • For the reasons stated above, Sotheby's motion to dismiss is GRANTED in part and DENIED in part. Specifically, the motion is denied, except insofar as it seeks dismissal of Plaintiffs' fifth claim - for injunctive relief - as to which it is GRANTED.

  • Additionally, the motion to seal the Amended Complaint is DENIED; the motion to seal Exhibit H is temporarily GRANTED; and the motion to seal Plaintiffs' brief and Exhibits N, O, and S is GRANTED in part and DENIED in part.

• June 25, 2019 -AMENDED COMPLAINT amending 29 Amended Complaint against Sotheby's, Sotheby's Inc..Document filed by Accent Delight International Ltd., Xitrans Finance Ltd.. Related document: 29 Amended Complaint - See SDNY-ECF https://ecf.nysd.uscourts.gov/doc1/127024998173

• July 23, 2019 -ANSWER to 66 Amended Complaint, 29 Amended Complaint with JURY DEMAND., ANSWER to 66 Amended Complaint, 29 Amended Complaint with JURY DEMAND. Document filed by Sotheby's, Sotheby's Inc. see SDNY-ECF https://ecf.nysd.uscourts.gov/doc1/127025169925

Summary after dozens of motions, replies, cross motions - the Court ruled that Sothebys must answer the allegations in the Complaint and subsequent amended Complaint(s) and accordingly in 2019 the Court denied Sothebys Motion to Dismiss.

Fast Forward to June 14, 2021 and yesterday the SDNY Court issued the following Memorandum, Opinion and Order. See SDNY-ECF https://ecf.nysd.uscourts.gov/doc1/127029277036

…acquired 38 art masterworks for more than $2 billion…

Dmitry Rybolovlev Position:

in his complaint(s) he alleged a scheme by Yves Bouvier - who is an art dealer and not a party to the case but was retained by Rubolovlev for nearly a decade. Yuves Bouvier plays a central role in other cases previously litigate in various Courts across the Globe concerning his “shady and unethical scheme aka business practices”

Rybolovlev chiefly contends; Bouvier and Sotheby’s acted in concert with each other to defraud Plaintiffs of approximately “one billion dollars in connection with the purchase of a world-class art collection” -side note it is truly vexing that Rybolovlev didn’t name Bouvier as a defendant

The primary claim in the case is that Sotheby’s aided and abetted Bouvier’s alleged fraud, but Plaintiffs also allege that Sotheby’s breached a tolling agreement (the “Tolling Agreement”) not to file any lawsuit against them without fourteen days’ notice…not to file any lawsuit against them without fourteen days’ notice.

In an oral opinion, the Court granted summary judgment to Plaintiffs as to liability on their contract claim, holding that Sotheby’s had breached the Tolling Agreement by filing a lawsuit against Plaintiffs in Switzerland on November 17, 2017.

🌶 sidebar: I will continue to repeat this because for some reason most fail to understand that there are plenty of facts disclosed in a Company’s Securities Exchange Commission Filings. Sotheby’s SEC filings:

https://www.sec.gov/edgar/browse/?CIK=823094

The key is you simply need to know where and what to look for. For Example Sotheby’s 10-Q filing - which reads in part:

…November 17, 2017, Sotheby’s, together with its London, Geneva and Vienna subsidiaries, and one of its employees (collectively, “the Sotheby’s Parties”), initiated a declaratory judgment action (requête en conciliation) in Switzerland (the “Swiss Action”), at the Tribunal de Première Instance de la République et Canton de Genève, against Dmitry Rybolovlev and various persons and entities affiliated with him.

Sotheby’s SEC Filing Form 10-Q

The Sotheby’s Parties’ action seeks a declaration that the Sotheby’s Parties owe no liability or debt to Mr. Rybolovlev and his affiliates in connection with sales of art and related services to entities affiliated with Mr. Yves Bouvier, as discussed in more detail below. Sotheby’s filed its detailed Statement of Claim on July 11, 2017.

Again SEC filings are a matter of public information and invariably they tend to contain a plethora of disclosures and indisputable facts. In addition the SEC filings tend to contain the Filer’s position statements and forward looking statements.

…we are not aware of Mr. Rybolovlev actually filing the threatened U.K. litigation against Sotheby’s, and believe that Geneva is the correct venue for the dispute, that the Lugano Convention effectively precludes Mr. Rybolovlev from sustaining an action in the U.K., and that the Sotheby’s Parties will prevail in the Swiss Action.

Sotheby’s SEC Filing -Form 10-Q page 47 respectively

…October 2, 2018, two entities controlled by Mr. Rybolovlev commenced proceedings against Sotheby’s and Sotheby’s, Inc…allege that Sotheby’s and Sotheby's Inc. and their agents, aided and abetted an alleged fraud that Mr. Bouvier allegedly perpetrated against Mr. Rybolovlev and affiliated entities and are claiming a minimum of $380 million in damages.

The plaintiffs also allege that the Sotheby's Parties, in commencing the Swiss Action, violated a tolling agreement that the parties had entered into and seek an injunction prohibiting the Sotheby's Parties from prosecuting the Swiss Action.. January 18, 2019, the Sotheby's and Sotheby's Inc. filed a motion to dismiss this complaint, which they believe to be meritless, on numerous grounds.On June 25, 2019, the District Court in New York granted in part and denied in part Sotheby's and Sotheby's Inc.'s motion to dismiss this case on forum non-conveniens and international comity grounds and to dismiss the plaintiffs’ breach of contract claim for failure to state a claim…

The Court Grants Sotheby’s Motion to Dismiss

Plaintiffs contend that they are entitled to damages in excess of $1.5 million, reimbursement of the fees they accrued in preparation for a lawsuit that, but for Sotheby’s breach, they allegedly would have filed against Sotheby’s in the United United Kingdom. Sotheby’s contends that Plaintiffs are entitled only to nominal damages.

For the reasons that follow, the Court agrees with Sotheby’s and, thus, grants Sotheby’s motion and denies Plaintiffs’.

Tolling Agreement

First argument from Sotheby’s was - we aren’t party to the tolling agreement therefore we can’t violate an agreement we are not party to. The Court disagreed and clearly articulated that indeed Sotheby’s was party to the Tolling Agreement and when they filed action against Rybolovlev -Sotheby’s had violated the agreed upon terms and conditions of the aforementioned Tolling Agreement.

Did I mentioned how protracted this litigation was? To give you a better sense I now refer you to the footnotes - that’s half a dozen Orders/Opinions

Skandden billed Rybolovlev >$1.57M for 2 months

This goes without saying but just over 60 days Rybolovlev retained Skadden the firm billed him over $1.57M.

September 2017, Plaintiffs retained Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”) “in relation to” litigation they “contemplated” filing in the United Kingdom against Sotheby’s, Bouvier, and others. Sotheby’s

October and December 2017, Skadden billed Plaintiffs $1,577,377.58 ($1,577,264.48 in legal fees plus $113.10 in bank wire transfer fees), which Plaintiffs promptly paid.

…that footnote is brutal but from a practical standpoint what exactly did Skadden do to have billed Rybolovlev over $1.57Million for just over 60 days representation. As articulated by the Court Rybolovlev never filed suit in the U.K. - also the Court found Sotheby’s arguments concerning the Tolling Agreement unpersuasive and ultimately (albeit rather narrowly) granted summary judgment to the Plaintiff of Sotheby’s “liability on their breach-of-contract claim”

This suit followed. In response to Plaintiffs’ contention that Sotheby’s breached the Tolling Agreement by filing suit in Switzerland without providing the requisite fourteen-day notice, Sotheby’s took the position that Plaintiffs’ October 27, 2017 letter to this Court constituted sufficient notice…

May 28, 2020, the Court rejected this argument and held that, by filing the Swiss action, Sotheby’s had breached the Tolling Agreement. ECF No. 174; May 28, 2020… On that basis, the Court granted summary judgment to Plaintiffs only as to liability on their breach-of-contract claim.

No really the Court Awarded $1.00

Did you really think I was exaggerating or that I misread the Memo/Opinion? I can assure you that I was not…the underlying issue is Rybolovlev essentially wanted the Court to “speculate” and read further into Rybolovlev’s theories and rank speculation…that’s not how our Judicial System works. Come correct with facts or don’t come at all…

Put simply, to accept Plaintiffs’ theory of damages would require the Court to speculate on which side would have won that hypothetical race to the courthouse, which New York law does not permit the Court to do so…

…so even if the proposed damages are too speculative to support their claims, Plaintiffs would have plausible claims for nominal damages.”… Sotheby’s does not dispute that Plaintiffs are entitled to nominal damages here. See ECF No. 234, at 4, 6. Accordingly, the Court awards each Plaintiff nominal damages of $1.00.

Here I uploaded yesterday’s Memorandum and Opinion to my public drive -as for what happens next? The Court ordered parties to file “show cause in writing” concerning the redactions and various sealed filings…

Also I created a public folder entitled Rybolovlev v Sotheby’s - I suppose the plaintiff might file an appeal but I genuinely do not know how successful that will be. As for what to expect next? Between March to Present there have been numerous filings that were filed under seal and as per yesterday’s Order the parties are required to file “show cause” why those filings should remain under seal… happy reading -Filey