Cypriot or not? Suite disputes Frost & Fire’s place of business in case against Currenex
According to Suite, Frost & Fire – one of the defendants in the case against Currenex, is simply trying to avoid the binding effects of service by using unsupported claims about its location.
Financial analytic software firm Suite on Monday sought to prove that the process of service in a copyright infringement case against Currenex was not insufficient, as claimed by one of the defendants in the lawsuit – Frost & Fire.
The case, captioned SUITE, LLC v. CURRENEX, INC. et al (1:17-cv-06920), continues at the New York Southern District Court.
Let’s recall that the case refers to events from September 2011, when Suite signed an agreement with State Street and Currenex providing the latter with a perpetual license of Suite’s ALib Analytic Library (ALib), analytical software used for pre-execution pricing, risk management and valuations on bonds, interest-rate swaps and related rates derivatives products, including options and credit derivatives. The license was limited to State Street’s and Currenex’s use and precluded resale or sharing with third parties.
Currenex and State Street allegedly distributed Suite’s copyrighted, confidential software and source-code to third parties, including including an existing customer of Suite, TradingScreen, and a competitor of Suite, Frost & Fire, without the consent or authorization of Suite, thereby breaching the confidentiality provision and the restrictions stipulated in the contract.
In particular, Bleron Baraliu, an individual at Currenex and State Street who was involved in negotiating the agreement signed in September 2011, abruptly terminated the agreement one year after it was executed and then, shortly thereafter, left to run Frost, a competitor to Suite that he founded while working for State Street.
Frost & Fire have argued that Bleron Baraliu was not the right person to receive the summons and the complaint against Frost in this case. The company also stated that Frost & Fire Ltd. is a citizen of, and maintains its principal place of business in, the Republic of Cyprus—a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. No officer or director of the company resides, or is present, in the United States, according to Frost.
On Monday, December 4, 2017, Suite stressed that Bleron Baraliu is the CEO and founder of Frost & Fire, and no one disputes that he willingly accepted the summons and complaint against Frost & Fire Ltd. from the process server on October 28, 2017. According to the plaintiff, Frost now attempts to avoid the binding effects of this service.
Frost’s description of Baraliu as only a director of Frost & Fire Holdings, S.A., is a falsehood by omission, Suite argues. Frost & Fire’s Motion to Dismiss for insufficient service process leaves out very pertinent information about Baraliu’s role at the heart of Frost & Fire, instead relying on unsupported technicalities and gamesmanship, according to the plaintiff.
Regarding the assertion that Frost’s officers and directors are all located in Cyprus, Frost presents no evidence to support this questionable claim, Suite says.
To the extent Frost is now merely disputing service with plans to later deny its role on substantive grounds after further delay, these tactics are an improper waste of the Court’s time and the parties’ money, Suite emphasizes. On the other hand, if Frost is the right entity on substantive grounds, its unwillingness to provide simple and complete information to Suite – and the Court – is unacceptable, according to the plaintiff.
Because Frost & Fire maintains an office in midtown Manhattan, Frost may have intentionally omitted a personal jurisdiction objection. Suite refers to a map from Frost & Fire website, showing office locations in New York City and Albania, not in Cyprus. This evidence suggests that, while Frost & Fire Ltd. may be incorporated in Cyprus, its principal place of business is in New York. Although Frost asserts in the Motion that the principal place of business for Frost & Fire Ltd. is in Cyprus, there is no evidence of this.
The plaintiff adds that the Court’s inquiry is not whether Frost & Fire Ltd. could be served under the Hague Convention – which is the point focused on by Frost – but rather whether the undisputed personal service of Baraliu is sufficient to constitute service on Frost & Fire Ltd. under these rules.
The plaintiff argues that the Court should deny Frost’s Motion to Dismiss.