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Nouvel, LLC v. Mondo Bongo, LLC, Et Al, 22-55737, No. 2 (9th Cir. Aug. 3, 2022)
Nouvel, LLC v. Mondo Bongo, LLC, Et Al, 22-55737, No. 2 (9th Cir. Aug. 3, 2022)
Nouvel, LLC v. Mondo Bongo, LLC, Et Al, 22-55737, No. 2 (9th Cir. Aug. 3, 2022)
NOUVEL, LLC,
Petitioner-Appellee,
v.
Respondents-Appellants.
27-3, Appellants Mondo Bongo, LLC, William B. Pitt, and Warren Grant
(“Appellants”) submit this emergency motion for an immediate stay of the District
Court’s July 22, 2022 Order Accepting the Report & Recommendation, to avoid
follows:
Keith R. Hummel
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
khummel@cravath.com
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basis on January 12, 2022, Ex. 2 (Ex Parte Order Granting App.), Nouvel served
(Memo. of P&A in Support of Mot. (“Mot.”)). Nouvel filed its opposition on May
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6, 2022, Ex. 4 (Memo. of P&A in Opp. to Mot. (“Opp.”)), and Appellants replied
who issued a Report and Recommendation advising the District Court to deny it on
June 8, 2022. Ex. 6 (“R&R”). Appellants filed objections to the R&R, Ex. 7
(Response to R&R Objections) (“R&R Response”)). In a July 22, 2022 order, the
quash. Ex. 9 (“Order”). In addition, the order denied Appellants’ request for a
the subpoenas and provide a privilege log by August 15, 2022. Ex. 10 (Letter from
necessary to prevent the irreparable harm that Appellants would suffer as a result
Miraval, in which Appellants Pitt and Mondo Bongo are indirect shareholders and
which Appellants Pitt and Mondo Bongo are also indirect shareholders. The harm
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causing irreparable harm. See Khrapunov v. Prosyankin, No. 18-16254 (9th Cir.
Appellants could not have moved sooner for relief in this Court, as
Appellants were not informed of Nouvel’s desired production deadline until July
28, 2022.
Counsel for Nouvel was notified of the filing of this motion on July 29,
2022, and have indicated that Nouvel intends to oppose it. Nouvel’s counsel will
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made that Appellant Mondo Bongo, LLC is a private limited liability company that
has no parent organization. No publicly held corporation owns more than 10% of
its stock.
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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
BACKGROUND AND PROCEDURAL HISTORY ............................................... 3
I. Background ........................................................................................................... 3
II. Procedural history ................................................................................................. 7
ARGUMENT ............................................................................................................. 7
I. Appellants are likely to succeed on the merits. .................................................... 8
The District Court failed to address foreign-law disputes............................... 9
The District Court failed to address the international comity concerns
raised by the subpoenas. ................................................................................ 12
II. Appellants will be irreparably harmed absent a stay. ....................................... 14
III. Nouvel will not be injured by a stay. ................................................................ 15
IV. The public interest favors a stay. ....................................................................... 16
CONCLUSION ........................................................................................................ 16
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TABLE OF AUTHORITIES
CASES
In re Digitechnic,
2007 WL 1367697 (W.D. Wash. May 8, 2007) ...................................................10
In re Gorsoan Ltd.,
2020 WL 4194822 (S.D.N.Y. July 21, 2020) ......................................................16
In re Microsoft Corp.,
428 F. Supp. 2d 188 (S.D.N.Y. 2006), abrogated on other grounds by
In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) ................................................13
In re OOO Promnefstroy,
2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009), abrogated on other grounds by
In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) .......................................... 11-13
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Khrapunov v. Prosyankin,
931 F.3d 922 (9th Cir. 2019) ................................................................................10
Khrapunov v. Prosyankin,
No. 18-16254 (9th Cir. order entered Aug. 2, 2018) ....................................... 8, 14
Lair v. Bullock,
697 F.3d 1200 (9th Cir. 2012) ............................................................................7, 9
Leiva-Perez v. Holder,
640 F.3d 962 (9th Cir. 2011) .............................................................................. 7-8
Mees v. Buiter,
793 F.3d 291 (2d Cir. 2015) .................................................................................12
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INTRODUCTION
Miraval was jointly owned through Appellee Nouvel and Appellant Mondo Bongo,
Château Miraval — in breach of rights she and Nouvel owed Pitt and Mondo
Bongo. Pitt never consented to the sale and is now challenging its validity in
suit in France against Château Miraval and its affiliate Miraval Provence. After
the District Court authorized Nouvel’s application, Appellants moved to vacate the
ex parte order and quash Nouvel’s subpoenas. In briefing that motion, the parties
recognized that the dispute is governed by Intel Corp. v. Advanced Micro Devices,
Inc., 542 U.S. 241 (2004), in which the Supreme Court established a four-factor
analysis to guide the exercise of judicial discretion under § 1782. Because the Intel
But those issues of foreign procedure were never decided. Instead, the
long as there was “some doubt” whether Appellants would prevail. This was an
abuse of discretion, departing from the guidance of this Court and the Supreme
Court. It also reflects a division of authority within the Circuit, where trial courts
Moreover, because the District Court brushed French law to the side, it
The clash between sovereigns could not be more stark: French courts have already
prohibited Nouvel from receiving many of the documents it seeks and are
presently weighing whether to permit Nouvel access to other documents that fall
within its subpoenas. The Supreme Court’s § 1782 analysis was calibrated to
prevent precisely the outcome ordered below — an American court ordering the
The decision below thus presents substantial issues that demand resolution
by this Court. Those issues will never reach this Court, however, absent a stay
its subpoenas. Appellants thus face the irreparable harm of compelled disclosure
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that would moot their appeal. To prevent that harm, and to vindicate the
Appellants respectfully request that the Court enter a stay pending a decision on
the merits.
I. Background
In 2008, Brad Pitt and Angelina Jolie acquired Château Miraval, a French
company comprising a home and vineyard in the south of France. Ex. 11 (Compl.,
William B. Pitt v. Angelina Jolie, No. 22STCV06081 (Cal. Sup. Ct. Feb. 17,
2022)) ¶¶ 13, 14. Pitt and Jolie purchased the company through their acquisition of
and nothing else. Id. ¶ 13. Pitt — through Mondo Bongo, his California LLC —
paid €15 million to obtain a 60% interest in Quimicum and, thus, Château Miraval.
Id. ¶ 16. Jolie — through Nouvel, her California LLC — paid €10 million to
obtain a 40% interest in Quimicum and, thus, Château Miraval. Id. ¶¶ 16-18.
a partner to reinvent Château Miraval’s wine business. Id. ¶ 34. The resulting
joint venture, Miraval Provence, quickly became one of the world’s preeminent
makers of rosé. Id. ¶ 35-36. In December 2013 — several months before Pitt and
Jolie were married at the Château Miraval estate — Pitt entered into a transaction
that transferred 10% of Quimicum to Jolie for the sum of €1, never paid, such that
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Mondo Bongo and Nouvel each nominally hold a 50% interest in Quimicum, and
by extension, Château Miraval. Id. ¶ 29. Pitt made this transfer in reliance on
contractual agreements he and Mondo Bongo made with Jolie and Nouvel that no
party could alienate their interest in Château Miraval without the other’s approval.
Id. ¶ 30.
In 2016, Jolie filed for divorce. Id. ¶ 38. Over the next several years, Jolie
engaged in exclusive negotiations with Pitt for him to buy her interest in Château
Miraval — honoring the contractual rights she owed him. Id. ¶¶ 50-55. But in
terminated discussions. Id. ¶ 56. In October 2021, Pitt learned through a press
release that Jolie had sold Nouvel, and thus her stake in Château Miraval, to an
expand the size of Quimicum’s management board and install Stoli representatives.
Cyprus as part of an unsound and legally questionable tax dodge. Id. ¶ 66. And
Stoli asked Château Miraval’s bank to effectively freeze Château Miraval’s assets
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by sharply limiting its ability to transact — a demand the bank promptly declined.
Id.
Most significant here, however, are Stoli’s repeated attempts to use Nouvel
Miraval Provence, the joint venture that owns Château Miraval’s wine business.
Stoli — owned and operated by a competitor spirits company — has used Nouvel
without authority and without Miraval Provence’s knowledge or consent. Id. Stoli
has also demanded from Château Miraval a laundry list of commercial information
application seeking the same information under 28 U.S.C. § 1782. The subpoenas
Quimicum from Mondo Bongo to Nouvel on the ground that the transaction is void
for lack of consideration. Nouvel has never sought discovery from anybody —
in France against the directors and officers of Château Miraval and Miraval
Provence. According to Nouvel, its suit will allege that (1) Château Miraval
allowed Miraval Provence “to register as its own Chateau Miraval’s trademarks
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. . . for no compensation,” and (2) “Pitt and his directors appear to have wasted the
Response) at 3.
parte discovery applications in the French courts. Its first ex parte application,
filed on December 14, 2021, sought an expansive set of documents from Château
French Discovery Order, Dec. 14, 2021). On December 22, 2021, the French court
denied that application because Nouvel was not permitted access to this
Denying Nouvel’s Discovery App., Dec. 22, 2021). “[O]nly” Quimicum was
Less than one month later, Nouvel filed two more ex parte discovery
App., Feb. 9, 2022). The applications were quickly granted, and the French courts
authorized search orders on Château Miraval and Miraval Provence that were
executed on March 4, 2022. See Ex. 15 (Decl. of Alain Maillot in Support of Mot.)
¶ 16. The documents obtained via this procedure are being held in escrow while
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the French courts weigh Château Miraval’s and Miraval Provence’s challenges to
these orders. Id. Nouvel has yet to file any underlying merits claim in France.
On January 7, 2022, Nouvel filed its § 1782 application, Ex. 1, which was
granted on an ex parte basis five days later, Ex. 2. On March 17, 2022, Appellants
moved to quash the subpoenas issued by Nouvel pursuant to its application. Ex. 3.
denial of the motion to quash. Ex. 6. On July 22, 2022, the District Court entered
an order accepting the R&R. Ex. 9. That order also denied Appellants’ request for
On July 29, 2022, Appellants filed their notice of appeal from the District
Court’s order. Appellants now bring this motion to stay the decision below
ARGUMENT
considerations: “(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies.”
Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012). The Court applies a “sliding
scale” in weighing these factors, under which “a stronger showing of one element
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may offset a weaker showing of another.” Leiva-Perez v. Holder, 640 F.3d 962,
If the Court does not authorize a stay pending this appeal, there will be no
appeal, because Nouvel will rush to compel production before the Court issues its
discovery under § 1782. See, e.g., Khrapunov v. Prosyankin, No. 18-16254 (9th
Cir. order entered Aug. 2, 2018); Akebia Therapeutics, Inc. v. Fibrogen, Inc., No.
15-15274 (9th Cir. order entered Mar. 16, 2015); see also All. for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“Under [the sliding scale]
likelihood of success on the merits.”). The Court should follow that practice here,
to avoid irreparable harm, resolve a division of authority among the district courts
proceedings.
related comity concerns. Appellants thus have a “substantial case on the merits”
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supporting the grant of a stay that would maintain the status quo pending appeal.
In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the
Supreme Court identified four factors that courts should consider in making the
“may be outside the foreign tribunal’s jurisdictional reach”; (2) “the nature of the
foreign tribunal, the character of the proceedings underway abroad, and the
The first three Intel factors present questions of foreign law, as to which the
parties joined issue below through the submission of affidavits from experts in
Luxembourgish and French law. But the District Court did not resolve those
disputes. Instead, Judge Eick concluded that the District Court “should not”
consider such issues, Ex. 6 (R&R) at 7, and the District Court agreed, holding that
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prior trial-court decisions within this Circuit, which have similarly declined to
AG, 2013 WL 5947973, at *2; Cryolife, Inc. v. Tenaxis Med., Inc., 2009 WL
This Court has never endorsed the approach adopted by the District Court.
To the contrary, in Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir. 2019), the
district courts within this Circuit have likewise interpreted Intel to require a careful
Wash. May 8, 2007), for example, the court performed a comprehensive review of
both parties’ evidence on foreign discovery procedure and the record in the
Inc., 2016 WL 11529803 (N.D. Cal. Aug. 9, 2016), the court weighed the parties’
The District Court’s departure from these precedents was dispositive below.
Luxembourg would permit the discovery that Nouvel has sought here. This goes
to the first Intel factor, which considers whether discovery is available in the
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Mar. 19, 2021) 27-29. Rather than address this evidence, the District Court
weighed the first Intel factor against Appellants because it had “some doubt that
the requested discovery is or will become available in the foreign courts.” Ex. 9
(Order) at 2 (emphasis added). See also Ex. 6 (R&R) at 9 (weighing the first Intel
factor against Appellants because “[s]ufficient doubt pervades the issue of the
alleged availability of the subject discovery”). But the first Intel factor does not
ask whether there is “some doubt” that a petitioner may obtain foreign discovery.
overseas.
Second, the District Court declined to address disputed issues of French law.
Just months before Nouvel filed its § 1782 application, a French court held that
Château Miraval. Ex. 13 (French Order Denying Nouvel’s Discovery App., Dec.
22, 2021). Under the third Intel factor, permitting Nouvel access to the very same
(S.D.N.Y. Oct. 15, 2009), abrogated on other grounds by In re del Valle Ruiz, 939
F.3d 520 (2d Cir. 2019). Alerted to this evidence, the District Court acknowledged
that the “third Intel factor concerns foreign ‘rules akin to privileges that prohibit
Buiter, 793 F.3d 291, 303 n.20 (2d Cir. 2015)). But it failed to address how the
Nouvel has argued that the authorities urging a close analysis of foreign law
under Intel are “wrong[],” and that it should receive the benefit of the “doubt” on
the parties’ disputes. Ex. 4 (Opp.) at 13-14; Ex. 8 (R&R Response) at 11. This
appeal thus squarely presents the question whether a court abuses its discretion by
foreign law before ordering invasive discovery under § 1782. Intel itself makes
clear that the answer to this question is yes, by directing finders of fact to analyze
issues of foreign law. Intel, 542 U.S. at 264-65. To correct the line of district
court cases that hold otherwise — and preserve Appellants’ right to appeal on an
issue that has split the district courts in this Circuit — the Court should issue a stay
pending appeal.
The District Court also abused its discretion by failing to address “the
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Luxshare, Ltd., 142 S. Ct. 2078, 2088 (2022). If the District Court’s order is not
stayed, the subpoenas it authorizes will intrude on both past and pending French
court proceedings.
whether it is entitled to receive many of the documents that it has sought in this
acknowledged, the French courts have held that it is prohibited from accessing
other documents sought here, due to its status as an indirect shareholder of Château
French court orders demonstrate that a French court would not “welcome the
Tube (CRT) Antitrust Litig., 2012 WL 6878989, at *2 (N.D. Cal. Oct. 22, 2012).
To the contrary, the issuance of subpoenas for those documents in this proceeding
would “frustrate the careful balance struck by the [foreign] courts in the
any decision by this Court would plainly “either preempt or contradict” prior and
195 (S.D.N.Y. 2006), abrogated on other grounds by In re del Valle Ruiz, 939 F.3d
The Section 1782 discovery authorized by the District Court thus runs
directly contrary to the comity concerns that animate the second and third Intel
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factors. See Intel, 542 U.S. at 264 (instructing factfinders to consider the “nature
of the foreign tribunal,” “the character of the proceedings underway abroad,” and
§ 1782 applications). Yet the District Court was silent on the evident conflict
Appellants will suffer two distinct forms of irreparable harm in the absence
of a stay. First, absent a stay, Appellants will be stripped of their right to judicial
review, because the appeal will be rendered moot. As the Ninth Circuit has
granting discovery under § 1782, the loss of Appellants’ appeal right constitutes
irreparable harm. See Khrapunov v. Prosyankin, No. 18-16254 (9th Cir. order
entered Aug. 2, 2018) (citing Becker v. United States, 451 U.S. 1306, 1311 (1981)
granted, . . . the[] appeal may well become moot . . . .”); John Doe Agency v. John
Doe Corp., 488 U.S. 1306, 1309 (1989) (“The fact that disclosure would moot that
injury.”)).
aggressive competitor spirits business that now controls Nouvel. Stoli, through
Nouvel, seeks virtually all documents from the past decade that in any way relate
pending appeal); see also Berhardt v. Cnty. of Los Angeles, 279 F.3d 862, 871 (9th
Cir. 2002) (“Where the activities sought to be enjoined already have occurred, and
the appellate courts cannot undo what has already been done, the action is moot,
of this appeal. While a § 1782 applicant may incur injury if it does not receive
not a concern here. Nikon Corp. v. GlobalFoundries U.S. Inc., 2017 WL 4865549,
at *3 (N.D. Cal. Oct. 26, 2017). There are no looming overseas deadlines.
place that would threaten Nouvel’s ability to use the discovery it seeks under
§ 1782. As for France, Nouvel’s contemplated action is still not filed. Thus, there
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is no danger that a stay would jeopardize Nouvel’s use of any discovery obtained
here. See In re Gorsoan Ltd., 2020 WL 4194822, at *7 (S.D.N.Y. July 21, 2020)
(granting stay after finding no merit to § 1782 applicant’s argument that it would
Finally, the public interest favors granting a stay. Because granting a stay
poses no risk of harm to Nouvel, a stay would act solely to “preserv[e] judicial
pending.” Gorsoan, 2020 WL 4194822, at *8. A stay would also serve the “public
interest in comity between the United States and foreign tribunals,” id., because it
would permit this Court to consider Appellants’ arguments that Nouvel is using
CONCLUSION
For the reasons stated above, Appellants respectfully request that this Court
stay the District Court’s order pending the resolution of their appeal.
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CERTIFICATE OF CONFERENCE
Counsel for Nouvel was notified of the filing of this motion on July 29, 2022
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Appellants are not aware of any related cases pending in this Court.
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CERTIFICATE OF SERVICE
The undersigned certifies that on this 3st day of August, 2022, a copy of
Appellant’s Emergency Motion Under Circuit Rule 27-3 for Stay Pending Appeal
was electronically transmitted to the United States Court of Appeals for the Ninth
Circuit using the Court’s ECF filing system and was served on the following
parties via (i) electronic notice pursuant to the Court’s ECF filing system, or (ii) by
United States first class mail, postage prepaid, to the persons who do not receive
Keith R. Hummel
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
khummel@cravath.com
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