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REISS v. SOCIETE CENTRALE DU GROUPE DES ASSURAN.

February 27, 2003

BRAD M. REISS, PLAINTIFF,
V.
SOCIETE CENTRALE DU GROUPE DES ASSURANCES NATIONALES, A/K/A SUPPLEMENTAL ORDER SOCIETE CENTRALE DU GAN, A/K/A SOCIETE DE GESTION DE GARANTIES ET DE PARTICIPATIONS, UNION POUR LE FINANCEMENT D'IMMEUBLES DE SOCIETES, UNION INDUSTRIELLE DE CREDIT AND GAN S.A., DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, District Judge.

SUPPLEMENTAL ORDER

By Decision and Order dated January 30, 2003 (the "Decision")*fn1 the Court, addressing defendants' renewed motion to dismiss, scheduled an evidentiary hearing with respect to the issue of whether the Court has subject matter jurisdiction over this action, which involves foreign state defendants, based on the commercial activity exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602-1611. In separate letters to the Court dated February 19, 2003, both defendants requested clarification of the Court's ruling and additional time to comply, while also implying that the Court may have incorrectly shifted the applicable burden of persuasion to defendants. In order to respond to defendants' concerns, the Court held a conference with the parties on February 27, 2003, at which it issued a clarifying statement, a copy of which is attached and incorporated to the Order set forth below. Accordingly, it is hereby

ORDERED that the statement of the Court, a copy of which is attached and incorporated hereto, issued at the conference held on February 27, 2003 with the parties in this action, be made part of the official record of this matter as a Supplemental Order clarifying and elaborating on the Court's Order dated January 30, 2003.

SO ORDERED.

Brad M. Reiss v. Societe Centrale, et al.

98 Civ. 8302

Statement of the Court

at the Conference with the Parties on February 27, 2003

Attachment to Supplemental Order Dated February 27, 2003

Pending before the Court is the renewed motion to dismiss the Amended Complaint of defendants Societe Centrale du Groupe des Assurances Nationales ("Societe") and Gan S.A. (Collectively, the "Defendants"). The Court issued a Decision and Order, dated January 30, 2003 (hereinafter, the "Decision"), analyzing the issues presented by the Renewed Motion to Dismiss, making preliminary evaluations of the evidence put forward, indicating issues of fact in dispute that must be decided by the Court and, ultimately, ordering an evidentiary hearing on the issue of whether this Court has subject matter jurisdiction over this action, which involves foreign state defendants, based on the commercial activity exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602-1611.

This conference was convened at the request of defendant Societe in a letter dated February 19, 2003, which was supported by GAN S. A. in a letter of the same day and essentially opposed by the plaintiff in this case, Brad M. Reiss ("Reiss") in a letter dated February 21, 2003. We meet today because Societe and GAN S.A. suggest that this Court is mistaken in the following respects: (i) as to the control that the Defendants have over three of the principal witnesses in this case, Phillipe Rosio ("Rosio"), Alan Juliard ("Juliard") and Guy de Chavanne ("de Chavanne") (collectively referred to as the "French Witnesses"); (ii) in placing the burden on the Defendants for locating and producing at an evidentiary hearing de Chavanne, the former principal of both Defendants during the time of the events at issue in this case, from around 1992-1997, who appears to have been the key executive of the "GAN group" involved in the sale of UIC and UIS to General Electric Capital Corporation ("GECC"); and (iii) in placing the burden on the Defendants for producing Rosio and Juliard at an evidentiary hearing.

The Defendants explain that they need more time to arrange for the testimony that this Court suggested would be helpful in its Decision and also request that the Court consider various alternate means of hearing the testimony of the French Witnesses because it will likely not be feasible to have them come to New York. Therefore, the Defendants have asked for an adjournment of the evidentiary hearing originally scheduled to have begun on Wednesday, February 26, 2003, and a scheduling conference in order to set a new date for an evidentiary hearing that takes into account their concerns.

There are two preliminary legal matters that should not be in dispute between the parties.

First, the Second Circuit has instructed in Reiss v. Societe Centrale du Groupe des Assurances Nationales ("Reiss II") that it is "essential for the district court to afford the parties the opportunity to present evidentiary material at a hearing on the question of FSIA jurisdiction." 235 F.3d 738, 748 (2d cir. 2000) The Circuit Court further instructed that "[t]he district court should afford broad latitude to both sides in this regard and resolve disputed factual matters by issuing findings of fact." Id. Furthermore, in its Reply Memorandum of Law in Support of its Renewed Motion to Dismiss, dated December 2, 2002, Societe noted that "the Court's resolution of fact issues relating to jurisdiction may, if necessary, be done with the assistance of an evidentiary hearing, as the Court of Appeals stated it considered essential' for the resolution of disputed ...


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