December 17, 2018 court of first instance - Orders
Claim No. CFI-015-2018
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
THE COURT OF FIRST INSTANCE
BETWEEN:
(1) ED&F MAN CAPITAL MARKETS MENA LIMITED
(2) ED&F MAN CAPITAL MARKETS LIMITED
Claimants
and
(1) SAYYED HUSSAIN
(2) RJ O’BRIEN MENA CAPITAL LIMITED
(3) STEPHEN GHALLAMI
Defendants
CONSENT ORDER
UPON the parties having agreed the terms of settlement as set out in Schedule 1
AND UPON the Second Defendant undertaking to the Court in the form set out in Schedule 2
AND UPON the Claimants undertaking to the Court in the form set out in the Schedule 3
AND UPON the Defendants undertaking to the Court in the form set out in Schedule 4
AND BY mutual consent of all parties
IT IS HEREBY ORDERED THAT:
1.All further proceedings in this action be stayed upon the terms set out in Schedules 1 to 4 except for the purpose of enforcing those terms.
2. Liberty to apply in order to carry such terms into effect.
3. Proceedings against the Third Defendant are discontinued subject to the provisions of Schedules 1 and 4.
4. The Defendants’ undertakings and the Claimants’ cross-undertaking to the Court issued on 3 April 2018 are discharged with the exception of paragraph 7 of Schedule A, paragraph 8 of Schedule B and paragraph 8 of Schedule C (Confidential Information).
5. Nothing in this Consent Order shall be treated as waiving or foregoing such right as the Claimants may have to make an Application to the DIFC Courts under RDC 28.64 and 28.66 and 30.65-30.70 in relation to any document produced in these proceedings and any such right is expressly preserved.
6. No order as to costs.
Issued by:
Nour Hineidi
Date of issue: 17 December 2018
At: 3pm
SCHEDULE 1
1.The Defendants shall pay the Claimants the sum of US$850,000 by 4pm on 30 December 2018 as a contribution towards their legal costs of the DIFC Courts proceedings, without admission of liability.
2. In the event that anyone other than the First or Third Defendants seek to set up this agreement or any of these terms as a defence or jurisdictional bar to proceedings in the United States District Court Northern District of Illinois proceedings between ED&F Man Capital Markets MENA Limited, ED&F Capital Markets Limited and JVMC Holdings Corp (fka RJO Holdings Corp), Jamal Oulhadj, Stephen Ghallami, Case Number 18-cv-05704 (“the US Proceedings”) and any related or connected proceedings, the stay shall be lifted without the need for any application to the DIFC Courts. The Third Defendant specifically warrants and undertakes that no application for costs or expenses or other relief against the Claimants will be made by him in the US Proceedings.
3. These terms are without prejudice to any other claims, causes of action, complaints or proceedings, whether currently pending or commenced in the future, including for the avoidance of doubt the US Proceedings, between the parties hereto or any of their affiliates and is not a release, settlement or discharge of any claim in the US Proceedings. For the further avoidance of doubt, the parties agree that nothing in these terms shall impact upon the ability of the Claimants to continue the US Proceedings or to submit any evidence to the court in the US Proceedings regardless of whether such evidence might have been submitted to the court in the DIFC. Accordingly it is agreed that the US Proceedings will continue until they have been adjudicated on by the appropriate American court or tribunal(s) or compromised by agreement between the parties and the Defendants agree and undertake that they will not file (or assist or cause or procure others to file) motions or make submissions designed to bring about an end to the US Proceedings or preclude any evidence on grounds that the claims or evidence submitted to the court in the US Proceedings have been mooted or compromised by these terms. Further and for the avoidance of doubt nothing herein constitutes an express or implied submission to the jurisdiction of any court of the United States of America by any Defendant in these proceedings. For the further avoidance of doubt, the entry into this Agreement and/or the making of this Order does not constitute nor can it found any argument that the Second Defendant or RJ O’Brien Associates LLC or any RJ O’Brien affiliate (as defined in Schedule 3) is waiving or withdrawing any defense, argument or counter-claim that has been, may be, or may come to be, raised in the US Proceedings.
4. Further and without prejudice to the Claimants’ rights to make the conduct, acts or omissions of the Third Defendant the subject of the US Proceedings, those Proceedings shall be discontinued as against him. Any cross-undertakings given by the Claimants on 28 March 2018 to the DIFC Courts are hereby discharged. The Third Defendant specifically warrants and undertakes that no application for costs or expenses or other relief against the Claimants will be made by him in the US Proceedings.
| PENAL NOTICE If you RJ O’Brien MENA Capital Limited disobey your Undertaking you may be held to be in contempt of court and you may be fined or referred to the Attorney General of Dubai. Any person who knows of this Undertaking and disobeys the Undertaking and does anything which helps or permits any person to whom this Undertaking applies may be held to be in contempt of court and may be fined or referred to the Attorney General of Dubai SCHEDULE 2 UNDERTAKING 1. RJ O’Brien MENA Capital Limited hereby undertakes not until 15 December 2019 to recruit any of the First Claimant’s brokers, senior executives or sales staff employed by the First Claimant as at 15 December 2018. |
SCHEDULE 3
THE CLAIMANTS UNDERTAKE:
1.Not to bring any legal proceedings in the United Arab Emirates against any current or former employee of the Second Defendant who was employed by the First Claimant in the period 1 December 2017 to 30 September 2018 or any part thereof (for the avoidance of doubt including but not limited to the First and Third Defendants), in relation to their employment by the First Claimant, the circumstances of the termination of their employment, any fiduciary duties owed to the First Claimant, any alleged breaches of express or implied terms of their contracts of employment, any alleged conspiracy arising out of or connected with the employment or engagement of any individual falling within this clause and any liability whether individual or joint and/or several in tort and/or pursuant to DIFC Law 5 of 2005 and/or the DIFC Law of Damages and Remedies No. 7 of 2005.
2. Not to bring any further legal proceedings against the Second Defendant, its directors and officers, Mr Gerald F. Corcoran and Mr Daniel Staniford or any affiliate of RJ O’Brien Associates LLC (affiliate for these purposes meaning any corporate entity in which RJ O’Brien Associates LLC has directly or indirectly an interest of more than 10% of the voting or beneficial shares or a right of control), in the United Arab Emirates in respect of liability alleged to arise out of any employee conduct or engagement falling within paragraph 1. Nothing herein constitutes a submission to the jurisdiction in the United States by anyone, nor a waiver of defense or argument that has been, may be, or may come to be raised in the US proceedings.
SCHEDULE 4
The Defendants undertake to the Court to preserve all documents and copies (as defined in RDC 28.1 and 28.2) in connection with these proceedings.
