US Federal Court Grants Telenor Motion, Holds Altimo in Contempt, Imposes Fines and Orders Altimo To Sell Shares
November 20 2008 - 10:35AM
Marketwired
(Fornebu, Norway; Kyiv, Ukraine; and New York, New York - 20
November 2008) The US Federal Court for the Southern District of
New York on 19 November granted Telenor's motion requesting that
Alfa Group companies Altimo, Alpren, Hardlake and Storm be held in
contempt of court for their failure to obey a November 2, 2007
court order upholding Telenor's arbitration award against Alfa
Group subsidiary Storm. The Court held all four companies in
contempt, imposed escalating fines, and ordered Storm to sell its
shares in Ukrainian mobile operator Kyivstar within 90 days, unless
within that period, Alfa has divested its shareholdings in excess
of 5 per cent of Turkcell and Ukrainian High Technologies.
The Court found that none of the four Alfa companies had
complied with the Court's November 2, 2007 order and ordered them
to immediately begin complying. The Court imposed fines of $100,000
per day on the four Alfa companies, beginning on 29 November until
they comply with the order, with such amount doubling to $200,000
per day 30 days thereafter, and to $400,000 per day 30 days after
that, and continuing to double every 30 days until they are no
longer in contempt. The Court found that Alfa's previous efforts to
comply with the arbitration award by entering into purported asset
sales did not in fact comply with the Court's prior order, and, as
a consequence, ordered Storm to sell its Kyivstar shares within 90
days, unless within that period, Alfa has sold its shares in excess
of 5% of Turkcell and Ukrainian High Technologies. The Court
ordered Storm to deposit its Kyivstar shares with the Court, along
with an executed blank share transfer form, within seven days so
that the Court can ensure Storm complies with its divestiture
obligations. The Court also ordered the four Alfa companies to pay
Telenor's attorneys' fees and costs incurred in connection with the
contempt motion.
The Court's November 2, 2007 order confirmed that Storm was
required to sell its stake in Kyivstar or that Altimo must dispose
of stakes higher than five per cent in competing wireless operators
Turkcell and Ukrainian High Technologies within 120 days of the
date of the arbitration award. The order also required Storm and
its Alfa affiliates to begin attending Kyivstar board and
shareholder meetings, to withdraw their various lawsuits in Ukraine
and to cease filing additional lawsuits in Ukraine.
In his 47 page decision, Judge Gerard E. Lynch of the Southern
District of New York said:
At every juncture in this dispute, Storm and the Altimo Entities
have brought questionable claims in Ukrainian courts that
have-through a combination of procedural unfairness, the absence of
bona fide opposition, and poorly reasoned decisions- purported to
vindicate Storm's and the Altimo Entities' interests.
Referring to the collusive litigation techniques employed by
Alfa, Judge Lynch said:
[The Altimo Entities and Storm's] extensive and brazen history
of 'collusive and vexatious litigation,' used to avoid compliance
with their legal obligations, supports an inference that they are
complicit too in this latest chapter.
Judge Lynch recognized that Alfa's conduct is harmful to both
Kyivstar and Telenor, stating:
The magnitude of the harm [from] Storm and the Altimo Entities'
continued contempt of the November 2 Order is great. Kyivstar, a
multi-billion dollar enterprise, is paralyzed from taking important
corporate action, including disbursement of hundreds of millions of
dollars in potential dividends. Moreover, Storm and the Altimo
Entities have enormous financial resources and have shown a
willingness to incur significant expense . in order to avoid their
legal obligations. Under these circumstances, a substantial daily
fine is required to compel compliance. Moreover, the harm to
Telenor increases with time ..
Referring to various Ukrainian legal opinions submitted to the
Court by Storm and the other Alfa entities, Judge Lynch said:
The opinions appear to be nothing more than a sham, a
pseudo-legal excuse for Storm and the Altimo Entities to refuse to
do what they have all along refused to do. It is outrageous, though
not surprising given their prior conduct in this matter, that Storm
and the Altimo Entities would construct such a sham. It is both
outrageous and surprising that their counsel-two esteemed New York
law firms-would represent that sham to the Court, unexamined, as a
bona fide basis for their clients' refusal to comply with the Final
Award.
"We are very pleased with the Court's decision," said Telenor's
Executive Vice President and Head of Central and Eastern Europe,
Jan Edvard Thygesen. "It shows how little regard Alfa Group has for
the rule of law, the agreements they have entered into, arbitration
awards, court orders and their business partners. Being held in
contempt by a US federal court is a serious matter. Things will
only get worse for Alfa until it begins to comply with the Court's
order."
A complete copy of the Court's decision can be found at:
http://www.telenor.com/press/docs/2008/Contempt-Opinion-and-Order.pdf
Further information:
Dag Melgaard, Vice President Group Communications, Telenor ASA
tel: +47 901 92 000 e-mail: dag.melgaard@telenor.com Anna
Ivanova-Galitsina, PR and Communications Director, Telenor Russia
tel: +7 495 937 9588 e-mail: anna.galitsina@telenor.com Anastasiya
Sosevych, PR and Communications Director, Telenor Ukraine tel: +
380674676666 e-mail: anastasiya.sosevych@telenor.com
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