Case 1:14-cv-01996-BAH Document 261 Filed 12/13/22 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

HULLEY ENTERPRISES LTD.,

YUKOS UNIVERSAL LTD., and
VETERAN PETROLEUM LTD.,

Petitioners,
Case No. 1:14-cv-01996-BAH
v.

THE RUSSIAN FEDERATION,

Respondent.

PETITIONERS’ PARTIAL OPPOSITION TO WHITE & CASE LLP’S MOTION TO

WITHDRAW AS COUNSEL OF RECORD FOR RESPONDENT RUSSIAN
FEDERATION

Petitioners respectfully oppose, in part, White & Case’s Motion to Withdraw as counsel of

record to the Russian Federation. The Motion to Withdraw is currently on the Court’s docket as

Exhibit 3 to White & Case’s Motion to Seal. ECF 259-3. The Memorandum in Support is Exhibit

4 to the Motion to Seal. ECF 259-4.

Petitioners do not oppose White & Case’s eventual withdrawal. Petitioners only object to

the specific terms of withdrawal that White & Case proposes, which risk further delay of this long-

running action. Delay is the Russian Federation’s goal, which it has failed to achieve directly. See

Order, ECF 229, at 18 (denying Russian Federation’s request for a stay, in part because of the

“economic sanctions and other penalties imposed by the international community against the

Russian Federation following its invasion of Ukraine”). The Russian Federation should not be

allowed to attain that goal (further delay) as the indirect result of its murderous war in Ukraine.

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Petitioners respectfully request that the Court require White & Case to remain as counsel

of record for six additional months, through June 30, 2023. If no replacement U.S. counsel has

appeared for the Russian Federation by that date, then Petitioners respectfully request that one

White & Case lawyer be required to remain in the case for the sole purpose of effecting service on

the Russian Federation, or that the Court order alternative means of service. The Russian

Federation’s request for a six-month stay of this action should be rejected out of hand.

Petitioners are redacting the references, in this brief, to information contained in White &

Case’s Memorandum in Support of its Motion to Withdraw, and the Exhibits attached thereto.

Petitioners are doing this as a professional courtesy to White & Case, since that firm filed all of

these documents under seal and the Court has not yet ruled on White & Case’s Motion to Seal.

However, as Petitioners explain in their separate Opposition to White & Case’s Motion to Seal,

Petitioners do not believe that any of this briefing meets the high standard for sealing.

I. White & Case Should Be Required to Remain as Counsel for Six More Months

This Court should require White & Case to remain as counsel of record to the Russian

Federation for six more months—

White & Case’s

request to withdraw earlier than that should be denied because it would

risk “undu[e] delay” and “unfair[] prejudic[e]” to Petitioners, which are precisely the risks that

Local Rule 83.6(d) warns against. See Ofisi v. Al Shamal Islamic Bank, No. CV 15-2010 (JDB),

2021 WL 796273, at *4 (D.D.C. Mar. 2, 2021) (denying sovereign defendant’s counsel’s motion

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to withdraw, in part because of the “disruptive impact” that withdrawal would have on plaintiff’s

case).

Currently pending before this Court is the Russian Federation’s long-stayed motion to

dismiss on sovereign-immunity grounds. ECF 24. Petitioners agree with White & Case that this

motion is ripe for decision, absent any requests from this Court for oral argument or additional

briefing. The most probable immediate result of this Court’s decision on that motion will be an

appeal by the losing party. See Process & Indus. Devs. Ltd. v. Fed. Republic of Nigeria, 962 F.3d

576, 581 (D.C. Cir. 2020) (“the collateral-order doctrine” typically allows a sovereign to take an

immediate interlocutory appeal of “the denial of a motion to dismiss on the ground of foreign

sovereign immunity”).

Petitioners intend to move the D.C. Circuit to expedite that appeal. Delay is causing

irreparable harm to Petitioners’ ability to execute on any remaining Russian Federation assets in

the United States. See 28 U.S.C. § 1657(a) (appellate court may “expedite the consideration of any

action” for “good cause”). The Chabad spiritual movement has already moved to attach property

held or controlled by VEB (the Russian Federation agency that finances that country’s

international investment projects, manages its sovereign debt, and serves as its “piggy bank”) and

by Tenex-USA (the Russian Federation’s agent in the United States handling its sales of nuclear

materials). 1 White & Case are well aware of Chabad’s efforts, since the firm continues to represent

Tenex-USA before Judge Lamberth. 2 Meanwhile, the Congress of the United States continues to

1
Plaintiff’s Motion to Attach Property, Agudas Chasidei Chabad v. Russian Federation, et al.,
No. 05-cv-1548, ECF 235, at 2-8 (D.D.C. filed Apr. 8, 2022).
2
See, e.g., Tenex-USA’s Reply in Opposition to Motion for Leave to File Sur-Reply, Agudas
Chasidei Chabad v. Russian Federation, et al., No. 05-cv-1548, ECF 259 (D.D.C. filed Aug. 22,
2022 by White & Case).
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consider outright seizure of Russian Federation assets to help pay for the damage caused by the

war in Ukraine. 3

If this Court were to permit White & Case to withdraw , then that

would risk delay of this imminent appeal.

To avoid delays in the anticipated sovereign-immunity appeal, Petitioners respectfully

request that this Court order that White & Case remain as counsel to the Russian Federation for

six more months, through June 30, 2023. This should prevent the Russian Federation from delaying

the appeal, at the D.C. Circuit, on the basis of the supposed need for new lawyers to learn the case.

See id.

Six more months of work for the Russian Federation will not cause significant prejudice to

White & Case.

3
See U.S. Senate Foreign Relations Committee, Press Release, Risch, Whitehouse Offer
Legislation to Repurpose Sovereign Russian Assets for Ukraine (Oct. 4, 2022), available at
https://www.foreign.senate.gov/press/rep/release/risch-whitehouse-offer-legislation-to-
repurpose-sovereign-russian-assets-for-ukraine (“U.S. Senators Jim Risch (R-Idaho), ranking
member of the Senate Foreign Relations Committee, and Sheldon Whitehouse (D-R.I.) offered the
Russian Elites, Proxies, and Oligarchs Act (REPO Act), legislation to provide additional assistance
to Ukraine using assets confiscated from the Central Bank of the Russian Federation and other
sovereign assets of the Russian Federation, as an amendment to the FY2023 National Defense
Authorization Act.”).
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Moreover, the prejudice to White

& Case cannot be all that significant, given that the firm continues to represent the Russian nuclear

import-export firm Tenex-USA. 4

II. Even After Six Months, One White & Case Lawyer Should Be Required to Remain
as Counsel, for the Limited Purpose of Ensuring Service on the Russian Federation,
Until Replacement Counsel Appears

If this Court were to permit White & Case to withdraw before replacement counsel has

appeared on this Court’s docket, then that would risk serious disruption and further delay because

the Russian Federation will claim that it did not receive service of filings, and of this Court’s

orders, after White & Case’s departure. Therefore, Petitioners respectfully request that this Court

order that at least one White & Case lawyer remain on the docket, even after six months have

passed, for the sole and limited purpose of accepting service on behalf of the Russian Federation.

See Fed. R. Civ. P. 5(b)(2)(E); Bd. of Trustees of Sign, Pictorial & Display Indus. Welfare Fund

v. PS Servs. Co., LLC, 2018 WL 1626344, at *2 (N.D. Cal. Apr. 2, 2018) (permitting party’s

counsel to withdraw, where counsel pledged to continue to accept service on party’s behalf until

new counsel entered appearance in the action). This order should remain in effect until replacement

counsel appears on the Court’s docket on behalf of the Russian Federation.

In the alternative, this Court should expressly authorize an alternate means of service on

the Russian Federation, to be used by Petitioners following White & Case’s withdrawal. The Court

may, for instance, authorize Petitioners to effect service by mailing papers to the Russian Embassy

4
See supra note 2.
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in Washington, D.C. See Fed. R. Civ. P. 5(b)(2)(B)(i). 5 The High Court of Justice, in the United

Kingdom, recently addressed this problem following White & Case’s withdrawal from

representing the Russian Federation in Petitioners’ enforcement action in that court. See Ex. 1. The

High Court’s Order explicitly provides for mail and email-based service on the Russian Federation.

Id. Similarly, in an Ontario court case arising from an arbitration taking place in Canada against

the Russian Federation, the Ontario court permitted the Russian Federation’s counsel to withdraw

but also explicitly authorized service on the Russian Federation by email. Ex. 2, ¶ 7 (court order,

listing specific addresses to be used for service). And in the Sberbank case pending in the Southern

District of New York, Magistrate Judge Gorenstein’s order required Sberbank to have “a new

attorney file a notice of appearance” within seventeen days; if no new attorney appeared, then the

withdrawing attorneys from White & Case were required to provide plaintiffs with “all contact

information” for Sberbank. Ex. 3.

III. The Court Should Not Reward the Russian Federation With the Additional Six
Month Stay It Requests

Regardless of whether this Court permits White & Case to withdraw or six

months from now, the Court should deny the Russian Federation the blanket six-month stay that it

demands. Granting that stay would, in effect, reward the Russian Federation for its murderous war

against Ukraine.

5
Service by mail to an address within the Russian Federation would not be feasible in this case.
See Fed. R. Civ. P. 5(b)(2)(C). Not only has White & Case has not provided the Court with the
Russian Federation’s “last known address,” as is required under Local Civ. R. 83.6(c), but courier
services have indefinitely suspended delivery to the country. See N.Y. Times, Companies Are
Getting Out of Russia, Sometimes at a Cost (Oct. 14, 2022) (noting that FedEx, DHL, and UPS
have suspended deliveries to Russia), available at: https://www.nytimes.com/article/russia-
invasion-companies.html.

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A year ago, after the Dutch Supreme Court’s decision, the Russian Federation sought to

renew the stay in this case. During briefing on that motion to stay, the Russian Federation brushed

aside Petitioners’ concerns about the possibility of an invasion of Ukraine. The Russian Federation

told this Court that the troops massed on Ukraine’s border represented just another “difficult period

for relations between the United States and the Russian Federation” and were “[im]material” to

Petitioners’ concerns about forthcoming economic sanctions. ECF 208, at 23. Less than two

months after the Russian Federation made those statements to this Court, its troops crossed the

Ukrainian border and its shells, bombs and missiles started falling on the Ukrainian cities.

The Russian Federation’s request for a six-month stay should also be rejected because the

Russian Federation has not acted with diligence.

Back in July of this year, the Russian Federation told this Court that it “h[ad]

been working diligently” for “several months” to “identify qualified replacement counsel.” ECF

244-2, ¶¶ 5, 8 (Declaration of Andrey Kondakov). 6 Mr. Kondakov also pledged that he would

“endeavor to provide further updates to this Court as the situation evolves.” Id. ¶ 8.

6
The Declaration describes Mr. Kondakov as “the Director General of the International Centre for
Legal Protection (the “Centre”). The Centre has been tasked by the Prosecutor General’s Office of
the Russian Federation (PGO) with coordinating Respondent’s legal defense in various
jurisdictions, including where post-arbitration litigation is ongoing in connection with the arbitral
awards rendered in favor of Hulley Enterprises Ltd., Yukos Universal Ltd., and Veteran Petroleum
Ltd. (‘Petitioners’).” ECF 244-2, ¶ 1.
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Nor does the Russian Federation offer any specific reasons why

are

not acceptable alternatives. See ECF 259-6, at 2

In this District, the

Russian Federation is already represented by different U.S. counsel—the law firm of Marks &

Sokolov—in the very similar Yukos Capital action. That case was recently brought by a creditor

of Yukos who is seeking to enforce a separate arbitral award rendered against the Russian

Federation pursuant to the Energy Charter Treaty. See Petition to Enforce Arbitral Award, ECF 1,

Yukos Capital Ltd. v. Russian Federation, 22-cv-798 (D.D.C.) (Nichols, J.); see also Declaration

of Bruce Marks, id. ECF 27-9 (filed Oct. 6, 2022) (“I am the managing member of Marks &

Sokolov, LLC, and counsel for Respondent, the Russian Federation, in the above-captioned matter.

I am an attorney licensed to practice in the United States District Court for the District of

Columbia . . . .”). Here, the Russian Federation’s “Statement of Objection” does not even mention

Yukos Capital or the Marks & Sokolov firm, let alone explain why Marks & Sokolov could not

replace White & Case.

The Russian Federation claims that

but that claim, too, is belied by the

record in the Yukos Capital case. In Yukos Capital, it took just eight days for the Russian

Federation to go from being “unrepresented by American counsel” (on September 19, 2022) to

“engag[ing]” Marks & Sokolov (on September 27, 2022). Motion for Extension of Time, Yukos

Capital, 22-cv-798, ECF 24, at 1-2. Mr. Kondakov confirms this timeline in his own Yukos Capital

declaration,

In early September, the ICLP [the International Centre for Legal Protection] communicated
with Marks & Sokolov, LLC (“Marks & Sokolov”), an international law firm with offices

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in the U.S. and Moscow, which has been involved in Russia related matters since 1998.
Once Marks & Sokolov cleared conflicts and provided information on its qualifications
and experience, Marks and Sokolov’s attorneys and the ICLP met in Istanbul to discuss the
matter in mid-September. After negotiating the terms of the engagement and obtaining
authority to engage the firm, ICLP engaged Marks & Sokolov in the interests of the Russian
Federation on September 27, 2022.

Declaration of Andrey Kondakov, Yukos Capital, 22-cv-798, ECF 31, ¶ 8.

Even in a criminal case, the “right to retain counsel of one’s own choice is not absolute,”

but must be balanced against the public’s “strong interest in the prompt, effective, and efficient

administration of justice.” United States v. Burton, 584 F.2d 485, 488 (D.C. Cir. 1978) (no abuse

of discretion where trial court denied criminal defendant’s request for a thirty-day continuance to

hire new counsel, after his current lawyer withdrew). The Russian Federation should not be

permitted to use White & Case’s withdrawal to obtain for itself a further stay of this action.

CONCLUSION

The Court should deny White & Case’s motion, and order that White & Case remain

counsel for record to the Russian Federation until June 30, 2023. The Court should also order that

at least one White & Case lawyer remain as counsel of record after that date, solely for the limited

purpose of accepting service of filings, until new U.S. counsel enters a valid notice of appearance

in this action on behalf of the Russian Federation. In the alternative, the Court should order an

alternate and feasible method of service on the Russian Federation.

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Dated: December 13, 2022 Respectfully submitted,

/s/ Steven M. Shepard

Steven M. Shepard (Pro Hac Vice)
Jacob W. Buchdahl (Pro Hac Vice)
Zachary B. Savage (Pro Hac Vice)
Susman Godfrey L.L.P.
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019-6023
Telephone: (212) 336-8330
Facsimile: (212) 336-8340
sshepard@susmangodfrey.com
jbuchdahl@susmangodfrey.com
zsavage@susmangodfrey.com
sspies@susmangodfrey.com

Richard W. Hess
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 1500
Houston, TX 77002
Telephone: (713) 653-7839
rhess@susmangodfrey.com

Counsel for Petitioners

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CERTIFICATE OF SERVICE

I certify that on December 13, 2022, the foregoing document was filed electronically

and served upon all counsel of record via the Court’s CM/ECF filing system in accordance

with the Federal Rules of Civil Procedure.

/s/ Steven M. Shepard

Steven M. Shepard

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