Mionis v. Bank Julius Baer & Co.

301 A.D.2d 104, 749 N.Y.S.2d 497, 2002 N.Y. App. Div. LEXIS 10219
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 29, 2002
StatusPublished
Cited by31 cases

This text of 301 A.D.2d 104 (Mionis v. Bank Julius Baer & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mionis v. Bank Julius Baer & Co., 301 A.D.2d 104, 749 N.Y.S.2d 497, 2002 N.Y. App. Div. LEXIS 10219 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Sullivan, J.

In this action to recover damages for libel, tortious interference with contract and prospective business relations and intentional infliction of emotional distress arising out of the publication of an allegedly defamatory letter sent by defendants to the Greek Ministry falsely accusing plaintiffs and certain of their customers of being “Greek money-launderers,” plaintiffs appeal from the grant of defendants’ motion to stay the action and compel mediation and, if necessary, arbitration. Although effectively exonerated by the Greek authorities of any wrongdoing, plaintiffs claim to have been substantially and permanently harmed by the defamation.

Since this appeal turns on a determination of who is bound by the arbitration clause at issue, identification of the parties and an understanding of their relationship is crucial. In August 1997, plaintiff Sabby H. Mionis, a Greek citizen, left his position as an account executive at the investment firm of Donaldson, Lufkin & Jenrette Securities to establish his own investment management business, T.C. Advisors, Ltd., now known as Capital Management Advisors, Ltd. (CMA), a Bahamian corporation and a plaintiff herein. Mionis intended to set up various open-ended mutual funds to provide diversified long-term investment growth with low volatility for his clients, many of whom were Greeks, and to provide investment advice to the funds for a fee based on the size and underlying performance of the funds. Defendant Bank Julius Baer & Co., Ltd. (Bank JB) is a Swiss bank with numerous branches, including one in New York. Defendant Julius Baer Trust Company (Cayman) Ltd. (JB Cayman) is an affiliate that provides services for Bank JB clients. The various Julius Baer (JB) entities are all subsidiaries of a holding company.

[106]*106In April 1998, Mionis orally agreed with Bank JB to engage various Julius Baer entities for their “Private Label Fund” services. Although these entities offer investment funds of their own, the Private Label Fund services allow Julius Baer to generate revenues by providing third-party investment managers, like T.C. Advisors, with many of the administrative and “back office” services associated with the management of investment funds. This service permits an independent investment advisor, such as T.C. Advisors, to advise and manage a pooled fund of investors’ assets in custodial accounts maintained at Bank JB. The absence of written agreements between Mionis, T.C. Advisors and the various Julius Baer entities as to the provision of Private Label Fund services is standard in the industry.

Pursuant to this arrangement, Bank JB established two open-ended mutual funds domiciled in the Cayman Islands, T.C. Investments Ltd. and T.C. Multi-Hedge Ltd., wholly independent limited liability companies organized under the laws of the Cayman Islands, and opened custodial bank accounts for the two funds. JB Cayman served as the administrator, transfer agent and registrar. Directorate, Inc., a fund management company incorporated in the British Virgin Islands and wholly owned by Julius Baer Bank & Trust Co., which, in turn, is a wholly owned subsidiary of Julius Baer Holding Ltd. under the direction of Mionis and T.C. Advisors, managed the funds. Mionis and T.C. Advisors were appointed the investment advisor to the funds and authorized to invest the funds’ assets in accordance with the guidelines established for each of the funds in the respective offering memoranda. In investing on behalf of the funds, Mionis would place written orders with Peter Embiricos or Theodore Goneos at Bank JB in New York. The latter was the account supervisor for the fund and reported to Embiricos, who had solicited Mionis’s business and oversaw the handling of the account. Neither Embiricos nor Goneos was employed by Bank JB at the time this action was commenced.

Early in the parties’ relationship tensions arose between Mionis and Bank JB New York, which preferred to provide its own investment advisory services and secure for itself the investment advisory fees being paid by the funds to Mionis and T.C. Advisors. Indeed, Bank JB New York proposed that Mionis and T.C. Advisors concentrate their efforts in acting solely as marketing agent in attracting new investors in exchange for a commission from Bank JB. Mionis rejected these overtures and, in or about May 2000, after a series of incidents that [107]*107caused Mionis to question the quality of service being provided to the funds by the Julius Baer entities, advised Embiricos and Goneos that, effective July 31, 2000, the funds would no longer require the services of Bank JB New York, JB Cayman and Directorate, Inc.

After the termination of the funds’ relationship with the Julius Baer entities, officers of the Greek Economic Crime Prosecution Corps conducted a search of Mionis’s office and confiscated his business records and computer files. During the investigation, Mionis, a Jew, alleges that he was repeatedly confronted with anti-Semitic comments by the authorities, who focused their investigation on several of his more prominent Jewish clients as supposed “money launderers.” Ultimately, the authorities were unable to find any evidence of money laundering by Mionis or any of his clients and the investigation was closed with the levying of a small fine for “so-called bookkeeping irregularities.” According to Mionis, the adverse publicity caused him to lose clients, including Greece’s largest insurance company.

Subsequently, Mionis obtained from the Greek government a copy of the letter that triggered the investigation. Written on a Julius Baer letterhead and bearing the name, although not the signature, of Charles Farrington of JB Cayman, the August 5, 2000 letter stated: “Please find attached a list of Greek money-launderers (tax evasion). All of them have an account with TC Investment in the Cayman Islands.” The letter further recited that the accounts were managed by Mionis, who “could give you more details about attached list.” Attached to the letter was a partial printout of one of the funds’ shareholder lists, which included six Greek individual investors, three of whom are alleged to be prominent Jews. The remaining shareholders, three major international corporations, two of which are prestigious Swiss banks and the third a subsidiary of the largest Swiss bank, are alleged to be Julius Baer’s largest Swiss competitors.

Plaintiffs further allege that the letter’s money-laundering allegation was malicious since JB Cayman was empowered under Cayman Islands law to require investors to verify both their identity and the source of the monies used to purchase shares in the funds. At no time did the administrator, JB Cayman, or the director, Directorate, Inc., seek to verify either the identity of the investors or the source of the funds invested. As noted, the two funds opened custodial accounts with Bank JB. The agreements entered into at that time between Bank JB [108]*108and the two funds, known as a “Management Authorization for Third Parties” (authorization agreement), designated T.C. Advisors as the funds’ “agent and attorney-in-fact (the ‘Attorney’),” thus enabling it to manage the funds’ assets in the accounts. The authorization agreement (1) required Bank JB to permit T.C. Advisors to direct activity in the accounts; (2) made the acts of T.C. Advisors binding on the funds; and (3) held Bank JB harmless for such acts. The agreement specifically defined the scope of T.C. Advisors’ authority as “Attorney” for the funds.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Arporan v. Delshah Mgt. LLC
2025 NY Slip Op 34764(U) (New York Supreme Court, New York County, 2025)
Matter of Wythe Berry LLC v. Goldman
2024 NY Slip Op 04632 (Appellate Division of the Supreme Court of New York, 2024)
Mak Tech. Holdings Inc. v. Anyvision Interactive Tech. Ltd.
181 N.Y.S.3d 219 (Appellate Division of the Supreme Court of New York, 2022)
Matter of Sciame Constr., LLC v. Accurate Specialty Metal Fabricators, Inc.
167 N.Y.S.3d 394 (Appellate Division of the Supreme Court of New York, 2022)
CP JBAM Holdings, LLC v. Shapiro
2017 NY Slip Op 5506 (Appellate Division of the Supreme Court of New York, 2017)
Themis Capital, LLC v. Democratic Republic of Congo
35 F. Supp. 3d 457 (S.D. New York, 2014)
Bruckmann, Rosser, Sherrill & Co. v. Marsh USA, Inc.
87 A.D.3d 65 (Appellate Division of the Supreme Court of New York, 2011)
Anderson Street Realty Corp. v. New Rochelle Revitalization, LLC
78 A.D.3d 972 (Appellate Division of the Supreme Court of New York, 2010)
Edge Group Waiccs LLC v. Sapir Group LLC
705 F. Supp. 2d 304 (S.D. New York, 2010)
All Metro Health Care Services, Inc. v. Edwards
25 Misc. 3d 863 (New York Supreme Court, 2009)
Brooks v. BDO Seidman, LLP
25 Misc. 3d 445 (New York Supreme Court, 2009)
American Personality Photos, LLC v. Mason
589 F. Supp. 2d 1325 (S.D. Florida, 2008)
Sassi-Lehner v. Charlton Tenants Corp.
55 A.D.3d 74 (Appellate Division of the Supreme Court of New York, 2008)
In re the Arbitration between Colonial Cooperative Insurance & Muehlbauer
46 A.D.3d 1012 (Appellate Division of the Supreme Court of New York, 2007)
Gulf Underwriters Insurance v. Verizon Communications, Inc.
32 A.D.3d 709 (Appellate Division of the Supreme Court of New York, 2006)
Elite Gold Inc. v. TT Jewelry Outlet Corp.
31 A.D.3d 338 (Appellate Division of the Supreme Court of New York, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
301 A.D.2d 104, 749 N.Y.S.2d 497, 2002 N.Y. App. Div. LEXIS 10219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mionis-v-bank-julius-baer-co-nyappdiv-2002.