Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 1 of 9
`Case 1:19-cv-11586—FDS Document 210-16 Filed 07/16/21 Page 1 of 9
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`EXHIBIT 2.L
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`EXHIBIT 2.L
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 2 of 9
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`Date: July 15, 2021
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`To whom it may concern:
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`This is to certify that the attached translation from Dutch and into English is an accurate representation
`of the documents received by this office.
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`The document is designated as:
`• Select Excerpts from ECLI_NL_RBAMS_2012_BY2758
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`Alexander Danesis, Project Manager in this company, attests to the following:
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`“To the best of my knowledge, the aforementioned documents are a true, full and accurate translation
`of the specified documents.”
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`_________________________________
`Signature of Alexander Danesis
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` The Leader in Global IP Solutions
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`www.morningsideIP.com
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` info@morningsideIP.com
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`CERT-05, 2019-Mar-21, V2
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 3 of 9
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`ECLI:NL:RBAMS:2012:BY2758
`Court
`Court of Amsterdam
`Date of ruling
`08/11/2012
`Date of publication
`09/11/2012
`Case number
`527175 / KG ZA 12-1351 Pee/MV
`Areas of law
`Civil law
`Special features
`Summary proceedings
`Content summary
`843a Dutch Code of Civil Procedure no legitimate interest.
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`The bankruptcy trustee of Palm Invest demands surrender of
`documents from ABN AMRO in order to be able to provide proof
`that the bank has acted in conflict with its special duty of care by
`making a payment account available to Palm Invest and not, or at
`least not sufficiently monitoring the course of the payments on the
`account and not taking measures against Palm Invest in a timely
`manner.
`The bankruptcy trustee deems it unacceptable in any event that he
`has such a claim, whether due to breach of contract, due to tort, or as
`a Peeters/Gatzen claim. The question of whether he has such a claim
`will in his opinion be apparent from study of the documents that are
`the subject of this suit.
`The claim is denied. Art. 834a of the Dutch Code of Civil Procedure
`does not grant carte blanche to demand unlimited surrender of
`documents in order to use them to investigate whether there is
`perhaps liability for damage that the bankruptcy trustee has
`discovered in the estate. The bankruptcy trustee has no legitimate
`interest in the surrender.
`Unnecessarily, it has been considered that a portion of the requested
`documents have not been sufficiently specified within the meaning of
`Art. 843a of the Dutch Code of Civil Procedure and that the Client
`Due Diligence dossier was prepared for the benefit of the bank and
`not for the benefit of the client.
`Dutch Code of Civil Procedure (applies in case of digital litigation)
`Dutch Code of Civil Procedure (applies in case of digital litigation)
`843a
`Rechtspraak.nl
`RAV 2013/18
`RF 2013/28
`RI 2013/36
`JONDR 2013/495
`JOR 2013/61 with annotation by P.E. Ernste, LLM
`OR-Updates.nl 2012-0318
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`Law references
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`Sources
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`Judgment
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 4 of 9
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`ruling
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`COURT OF AMSTERDAM
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`Civil law section, judge in interim injunction proceedings
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`Case number / docket number: 527175 / KG ZA 12-1351 Pee/MV
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`Ruling in summary proceedings of 8 November 2012
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`In the matter of
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`EVERT WILLEM BAART, LLM, in his capacity as bankruptcy trustee in the bankruptcy of the limited
`liability company PALM INVEST B.V.,
`residing in Amsterdam,
`Plaintiff in the summons of 8 October 2012,
`Attorney S.A. van der Sluijs, LLM, of Amsterdam,
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`versus
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`the public corporation
`ABN AMRO BANK N.V.,
`with registered offices in Amsterdam,
`Respondent,
`Attorney A.J. Haasjes, LLM, of Amsterdam.
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`The parties shall be called the Bankruptcy Trustee and ABN Amro Bank hereinafter.
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`4. Evaluation
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 6 of 9
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`4.1. Because the matter in this case is a proceedings in which provisional relief is demanded, the
`judge in interim injunction proceedings will disregard Article 127a section 1 and section 2 of the Dutch
`Code of Civil Procedure - which provides that consequences are linked to non-timely payment of the
`court fees. Applying this provision would, after all, lead to unfairness of a paramount nature,
`considering the interest of one or both parties in the access to the judge.
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`4.2. Article 843a of the Dutch Code of Civil Procedure provides that a person who has a legitimate
`interest can demand examination, copying, or excerpting of specific documents, including data stored
`on a data carrier, relating to a legal relationship in which he or his predecessor is a party. This
`involves cases in which the content of a written piece of evidence is fundamentally known to a party
`but this party does not have that piece in its possession, while it would like to submit the relevant
`piece in a proceedings, for example. The special obligation to produce of Article 843a of the Dutch
`Code of Civil Procedure applies both legally and extrajudicially. Article 843a of the Dutch Code of Civil
`Procedure ties the grantability of the claim to three cumulative conditions, to wit: (i) the plaintiff or
`requester must have a legitimate interest, it must involve (ii) specific documents (iii) relating to a
`legal relationship in which the plaintiff or requester or his legal predecessor is a party. So-called
`‘fishing expeditions’ are prevented by these restrictions.
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`4.3. The judge in interim injunction proceedings is of the opinion that the claim based on Article 843a
`of the Dutch Civil Code cannot succeed if it is already sufficiently certain at this time that neither a
`claim based on a shortcoming of ABN Amro Bank in the performance of its agreement with Palm
`Invest, nor a claim based on tort can be grantable considering that in that case there is no discussion
`of a legitimate interest in surrender.
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`4.4. The bankruptcy trustee, referring to Supreme Court, 8 June 2012, LJNBV8510, states that it is
`not required for the grantability of the demand for surrender of the documents requested by him that
`a proceedings is pending on the legal relationship between the parties or is expected to be
`commenced, and then continues under 20 of the written summary of arguments by his counsel that it
`is thus not necessary to discuss his right to claim all too extensively in these summary proceedings.
`The question of whether the bankruptcy trustee has a right to demand from ABN Amro Bank due to
`violation of the special duty of care vis-à-vis Palm Invest based on breach of contract, or tort, or vis-à-
`vis the joint creditors of Palm Invest as what is known as a Peeters/Gatzen claim, will primarily
`become apparent after study of the documents that are the object of these summary proceedings,
`according to the bankruptcy trustee, who thinks that in any event his claims are not implausible from
`the start.
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`4.5. In the judgment of the Supreme Court cited by the bankruptcy trustee, it was admittedly decided,
`as a result of the disputed decision of the Court of Appeal that this article lacked independent
`application since there was no indication that a proceedings concerning the main issue would be
`conducted in the Netherlands, that Article 843a of the Dutch Code of Civil Procedure does not require
`that a proceedings is pending or will be commenced, or will be carried on in the Netherlands, but no
`definite answer was provided on the question of when a legitimate interest is present. According to the
`opinion of the judge in interim injunction proceedings, it is necessary for the person who demands the
`surrender to clearly specify why he demands surrender of the documents, partly in the interest of the
`person from whom surrender of specific documents is demanded.
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`Since, according to the provided explanation, the issue for the bankruptcy trustee is to be able to
`investigate whether he can hold ABN Amro Bank liable for specific damage that Palm Invest itself
`suffered from contract or tort, it is the duty of the bankruptcy trustee to indicate what the nature of
`the breach of contract or tort is. Insofar as the bankruptcy trustee acts on behalf of the joint creditors
`(Peeters/Gatzen), the same applies: he must indicate precisely what the nature of the claim is and to
`what extent the documents known to him, but which he does not have at his disposal, can provide him
`with a benefit and lead to providing evidence for establishing his legal position from the various legal
`grounds vis-à-vis ABN Amro Bank on which his claim is based.
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 7 of 9
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`Article 843a of the Dutch Code of Civil Procedure does not grant carte blanche to demand unlimited
`surrender of documents in order to use them to investigate whether there is perhaps liability for
`damage that the bankruptcy trustee has discovered in the estate.
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`4.6. It has been established that a limiting banking relationship existed between Palm Invest and ABN
`Amro Bank.
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`Palm Invest had received disposition of a payment account at ABN Amro Bank on the basis of which
`ABN Amro Bank carried out Palm Invest’s payment transactions, and nothing more than that. There
`was no asset management relationship, ABN Amro Bank was not involved in investment actions of
`Palm Invest, and there was no credit relationship.
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`According to the bankruptcy trustee, ABN Amro Bank did not, or in any case not sufficiently, abide by
`its special duty of care vis-à-vis Palm Invest. The special duty of care can therefore exclusively reside
`in the agreement whereby ABN Amro Bank gave Palm Invest access to the payment transactions by
`providing it with a payment account and facilitating payments to and from the bank account.
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`The bankruptcy trustee does not provide a precise description of the content of the duty of care in the
`case of the mere existence of a payment account. The bankruptcy trustee thinks that ABN Amro Bank
`did not properly carry out Client Due Diligence (CDD) and that based on the payments and debits on
`the account, ABN Amro Bank would have had to have seen that the amounts deposited there were
`being misused. The bankruptcy trustee accuses ABN Amro Bank of not asking any critical questions of
`Palm Invest about the movements on the bank account and the financial position of Palm Invest. If
`ABN Amro Bank would have maintained better supervision, always paid attention to the transactions,
`commenced an investigation sooner and asked questions sooner to the formal and actual directors of
`Palm Invest, then, according to the bankruptcy trustee, the damage that Palm Invest inflicted on its
`creditors would have been considerably smaller.
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`4.7. ABN Amro Bank has no supervisory duty in the legal relationship between ABN Amro Bank and
`Palm Invest. The Client Due Diligence, based on the Customer Due Diligence for Banks of the Basel
`Committee on Banking Supervision, was not established for the protection of the interests of individual
`clients of banks. The standards of care set forth therein are aimed at guaranteeing the reliability of the
`banking system and of individual banks. Individual clients of banks can thus also not derive any claims
`for possible violations from these standards (Article 6.163 Dutch Civil Code). Moreover, the
`bankruptcy trustee does not argue why, in his opinion, asking questions and (intensive) monitoring of
`movements on Palm Invest’s bank account could have moved ABN Amro Bank to terminate the
`relationship earlier that it did. It is established, in any case, according to the bankruptcy trustee’s own
`arguments and from a discussion with ABN Amro Bank with the executives of Palm Invest, that these
`persons had little interest in the truth – thus for some time they maintained that their accountant
`would issue a statement requested by ABN Amro Bank, knowing that they had no accountant that
`could cover a statement, while they themselves, after ABN Amro Bank had terminated the relationship
`based on their lies, still continued with their criminal actions – so that it is not likely that, in response
`to questions from ABN Amro Bank, they would have stated truthfully that they were using the
`payment account for their fraudulent practices. It was not argued nor proven that it was apparent
`from the individual credits on the bank account or from the individual debits that the receipts were
`intended for investment and that the expenditures were used for other purposes than those for which
`the income was received on the account, nor was it argued or proven where ABN Amro Bank would
`have had to have been aware of this in merely making the payment facility available.
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`The causal connection between the alleged damage and the execution of the payments in the manner
`in which ABN Amro Bank did so is also lacking, and it is due to this that any claims by the bankruptcy
`trustee against ABN Amro Bank fail, whether he wants to base them on breach of contract or on tort
`by ABN Amro Bank. Because the bankruptcy trustee did not state any other basis for such a claim with
`respect to a possible Peeters/Gatzen claim, the considerations discussed above also apply to this
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 8 of 9
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`claim, if made. This does not – of course – represent an opinion on claims of individual creditors of
`Palm Invest.
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`Differently than the bankruptcy trustee, the judge in interim injunction proceedings thus arrives at the
`preliminary opinion, based on the facts established in these proceedings and arguments expressed by
`the bankruptcy trustee, that the bankruptcy trustee’s claims are implausible, meaning that the
`bankruptcy trustee has no legitimate interest in his demand for surrender. Article 843a of the Dutch
`Code of Civil Procedure does not serve any other interest than assistance in furnishing proof.
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`4.8. Unnecessarily, the judge in interim injunction proceedings considers that, if the bankruptcy
`trustee would indeed have a claim against ABN Amro Bank based on violation of the special duty of
`care by the bank, the demand for surrender of the documents requested under 3.1 iv through vi would
`not be grantable. With regard to the internal memoranda and because the demanded documents are
`insufficiently specified, and because internal memoranda can be of entirely different natures and the
`opponent of a party to a proceedings cannot make any claim on every text in which a view on a
`specific dispute is expressed within an enterprise, for instance in order to prepare a defense. The
`same applies mutatis mutandis to the requested reports and their underlying documentation of
`internal investigations by ABN Amro Bank of or about Palm Invest, more specifically but not
`exclusively the compliance report of about July 2007, already because the term reports is an unclear
`description of a text while the bankruptcy trustee also does not know whether such reports exist and
`thus is fishing for documents, while ABN Amro Bank has denied that such reports exist.
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`The bankruptcy trustee has just as little a claim to surrender of the CDD dossier because while it is
`true that this is meaningful for ABN Amro Bank’s determining its standpoint with respect to its client
`Palm Invest, it was not created (also) for the benefit of the client, but has a different purpose, as was
`discussed above.
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`4.9. ABN Amro Bank offered to surrender the documents demanded under 3.1 under i, ii, and iii,
`although in its view it is not required to do so. It follows from the foregoing that ABN Amro Bank is not
`required to surrender the documents based on Article 843a of the Dutch Code of Civil Procedure.
`There is then also no place for sentencing ABN Amro Bank to surrender the documents, despite its
`willingness. However, the judge in interim injunction proceedings assumes that ABN Amro Bank will
`not return to that offer, also because it is possibly indeed required to surrender some of the
`documents at issue here based on Article 843b of the Dutch Code of Civil Procedure.
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`4.10. As the party in the wrong, the bankruptcy trustee will be ordered to pay the costs of the
`proceedings, which on the part of ABN Amro Bank are estimated at € 1,391.00 (€ 575.00 in court fees
`and € 816.00 in attorney salary).
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`5. Ruling
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`The judge in interim injunction proceedings
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`5.1. denies the requested relief,
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`5.2. orders the bankruptcy trustee to pay the costs of these proceedings on the part of ABN Amro
`Bank, estimated up to today at € 1,391.00, to be increased by the statutory interest rate starting
`fourteen days after the date of pronouncement of this judgment until settlement.
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`5.3. orders the bankruptcy trustee to pay the costs arising after this judgment, estimated at:
`- € 131.00 in attorney salary,
`- to be increased, subject to the condition that pronouncement of this judgment has occurred and the
`convicted party has not satisfied it within 14 days after official notification of the judgment, by an
`amount of € 68.00 in attorney salary and the service costs for service of the pronouncement, to be
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`Case 1:19-cv-11586-FDS Document 210-16 Filed 07/16/21 Page 9 of 9
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`increased by the statutory interest rate thereon starting fourteen days after the service of this
`judgment until settlement,
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`5.4. declares this judgment enforceable with immediate effect with respect to the order to pay the
`procedural costs and the subsequent costs.
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`This judgment was issued by J.A.J. Peeters, LLM, judge in interim injunction proceedings, and
`pronounced publicly in the presence of the court clerk, M. Veraart, LLM, on 8 November 2012.
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