Tue 05/31/2022 11:31 AM
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On Friday, May 27, Antonello Di Meo, the distressed investor at the center of the Moby concordato tortious interference litigation, asked a New York state court to dismiss the ferry operator’s claims against him. Di Meo asserts that the suit “is a meritless and mendacious attempt to manipulate this Court into punishing an Italian national, with zero New York contacts, for exercising his contractual rights to participate in Moby’s pending Italian restructuring proceeding.”

Moby accuses Di Meo of conspiring with Morgan Stanley to thwart the company’s restructuring by buying up bonds at a “substantial discount using inside information” to procure a majority stake with veto power over Moby management’s proposed plan. In response, Di Meo denies wrongdoing and accuses Moby of engaging in a litigious “campaign of coercion” to force bondholders into accepting the plan.

Most of Di Meo’s legal arguments for dismissal mirror those already made by the Morgan Stanley defendants. On the merits, Di Meo argues that Moby’s complaint fails to state a claim against him for tortious interference because it lacks facts establishing the “critical elements” of such a claim, including “breach of contract,” “wrongful interference” and a “causal connection between Di Meo’s purported misconduct and the alleged harm.”

Di Meo specifically argues that “Moby’s claim that Di Meo tortiously interfered with the DFDS Deal Agreements fails because it lacks any allegation that DFDS breached the underlying agreements.” Instead, Di Meo continues, “Moby seeks to hold Di Meo liable for the non-occurrence of a condition precedent to DFDS’s performance (i.e., the release of encumbrances on the Moby Vessels).” Moby also “does not allege that Di Meo intended to cause DFDS to breach the contract, let alone that he actually caused it to do so,” Di Meo adds.

With respect to alleged interference with the concordato proceeding, Di Meo asserts that Moby seeks “to reframe ordinary creditor behavior as nefarious activity.” “In fact,” Di Meo adds, “nowhere does Moby allege how Di Meo prolonged and undermined the restructuring process other than by exercising his lawful rights as a creditor.”

“When a defendant has acted with a permissible purpose, such as normal economic self-interest, wrongful means have not been shown,” Di Meo asserts. “Moby’s Complaint concedes Di Meo’s self-interest, acknowledging Di Meo is motivated by ‘acquir[ing] valuable assets at lower costs’” (emphasis added).

With respect to misuse of confidential information, Di Meo points out that “[w]hile the Complaint asserts Di Meo violated the NDAs, it asserts no claim for breach of those agreements,” and he says the complaint “lacks any particularized allegations as to how he did so, beyond a mere conclusory assertion that Di Meo violated Market Abuse Laws.”

Di Meo further takes aim at Moby’s tactics in building a case against him. “Moby admits it used company funds - funds that a company engaged in Chapter 11-like restructuring should have preserved for creditors - to have its litigation counsel, acting as a cutout, hire unnamed private investigators, who then lured creditors on false pretenses into disclosing information, which Moby then relied upon to bring multiple lawsuits against those very same creditors, all because they sought to protect their own economic interests rather than supporting Moby’s preferred restructuring plan,” Di Meo says (emphasis added).

In addition to arguments on the merits, Di Meo also raises several procedural issues with Moby’s claims. First, Di Meo argues that the action is barred by New York’s statute forbidding strategic lawsuits against public participation, or SLAPPs, which requires dismissal of suits intended to deter parties from discussing matters of public interest (here, Moby’s proposed concordato plan) unless they have a “substantial basis in law.” According to Di Meo, Moby “manifestly cannot” satisfy this standard.

“Moby’s claims rest upon Di Meo’s alleged filing of the Involuntary Petition and TRO, prolonging the restructuring process, thwarting negotiations with creditors in connection with concordato proceedings, disrupting proceedings, and undermining ‘an orderly restructuring process,’” Di Meo recounts. “Each of these alleged acts plainly constitutes a ‘communication’ in a ‘public forum’ within the meaning of the Anti-SLAPP statute.”

Di Meo additionally maintains that the suit is barred by the doctrine of res judicata because Moby voluntarily dismissed its federal tortious interference suit against him and Morgan Stanley in October 2021 (before refiling the action in state court) and an earlier state court action against Di Meo and other bondholders in February 2021. According to Di Meo, under federal procedural rules the voluntary dismissal of the federal suit after the voluntary dismissal of the state court action “operates as an adjudication on the merits,” which bars the filing of a third action “based on or including the same claim.”

Further, Di Meo contends, the New York court lacks personal jurisdiction over him. As an initial matter, Di Meo says, Moby claims to have served him with process at a hotel in Dubai on a Sunday, and Sunday service “is absolutely void for any and every purpose whatsoever” under New York law. Di Meo additionally denies that he was actually served, stating in a declaration that “he was not even at the location of purported service on the day in question” and “was never served with a copy of the instant Summons or Complaint, or any papers whatsoever.”

Even if he was properly served, Di Meo adds, the New York court lacks personal jurisdiction because he “is not alleged to have transacted business, committed a tort, or engaged in any tortious conduct directed at” New York. “Not a single New York contact is even alleged,” Di Meo continues, and personal jurisdiction is based solely on “a single phone call between Drazin and Moby’s own agents.”

“Because Di Meo has not availed himself of the privilege of conducting activities in New York, the exercise of jurisdiction over him would egregiously offend ‘traditional notions of fair play and substantial justice,’” Di Meo concludes.
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