Contract analysis

1. Plaintiff Driftwood Absolute Return Fund Ltd. Driftwood Absolute Return Fund Ltd. is an exempted company incorporated and registered under the laws of the Cayman Islands, Cayman Registration No. MC-349217. Its registered address is c/o Hargrove Corporate Services Ltd., 4th Floor, Windward House, 94 Elgin Avenue, George Town, Grand Cayman KY1-1104. Driftwood is managed by Driftwood Capital Management LP, a Delaware

2. Defendant Meridian Prime Capital LLC Meridian Prime Capital LLC is a New York limited liability company formed on March 14, 2019, with Employer Identification Number 84-3217659. Its registered and principal office address is 140 Broadway, Suite 3510, New York, New York 10005. Meridian Prime held itself out to the market as an institutional FX prime brokerage offering FX forwards, options, and spot execution servic

3. Individual Defendant Viktor Andreyevich Zelenko Viktor Andreyevich Zelenko, born June 3, 1978, is a naturalized citizen of the United States. He resides at 425 East 58th Street, Apt. 32F, New York, New York 10022 — a luxury condominium purchased with misappropriated funds, as discussed below. Zelenko has a background in FX trading, having served as an FX trader at Bridgemont Bank NA from 2006 to 2015 and at Claren

4. Individual Defendant Irene Maria Carvallo Irene Maria Carvallo, born November 17, 1982, is a citizen of the United States. She resides at 88 Greenwich Street, Apt. 2704, New York, New York 10006. Carvallo is a Certified Public Accountant who was formerly a senior accountant at Ledgerfield & Associates PC, a New York accounting firm. Carvallo has served as Chief Financial Officer of Meridian Prime since its incepti

5. Individual Defendant Dmitri Pavlovich Sobchak Dmitri Pavlovich Sobchak, born February 22, 1985, is a Ukrainian national and lawful permanent resident of the United States. He resides at 301 West 57th Street, Apt. 18B, New York, New York 10019. Prior to joining Meridian Prime, Sobchak served as an FX desk analyst at Bridgemont Bank NA, where he worked under Zelenko. Zelenko recruited Sobchak to Meridian Prime in 20

I. THIS COURT SHOULD GRANT A TEMPORARY RESTRAINING ORDER PURSUANT TO CPLR § 6301 A. Legal Standard for a TRO Under CPLR § 6301 Under CPLR § 6301, a temporary restraining order may be granted where the moving party demonstrates: (1) a likelihood of success on the merits; (2) irreparable injury in the absence of the restraining order; and (3) a balancing of the equities in the movant's favor. See Nobu Next Door, LLC v.

1. Fraud. To establish a claim for fraud under New York law, a plaintiff must prove: (i) a material misrepresentation of fact; (ii) made with knowledge of its falsity (scienter); (iii) with the intent to induce reliance; (iv) justifiable reliance by the plaintiff; and (v) damages resulting from such reliance. See Eurycleia Partners, LP v. Padilla & Severin LLP, 12 N.Y.3d 553, 559 (2009); Lama Holding Co. v. Smith Bar

2. Conversion. Conversion under New York law is "the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights." Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50 (2006). The defendant must exercise dominion over the plaintiff's property inconsistent with the plaintiff's rights. See Republic of Haiti v. Duvalier, 211 A.D.2d a

3. Breach of Fiduciary Duty. Meridian Prime, as an FX prime broker holding Driftwood's margin deposits and settlement proceeds in client accounts, owed fiduciary duties of loyalty and care to Driftwood. See Bullmore v. Rowan Whitfield CPAs LLP Cayman Islands, 45 A.D.3d 461, 464 (1st Dep't 2007) (recognizing fiduciary duties arising from custodial relationships); In re Estate of Rothko, 43 N.Y.2d 305, 319 (1977). A br

4. Unjust Enrichment. To state a claim for unjust enrichment under New York law, a plaintiff must establish that: (i) the defendant was enriched; (ii) at the plaintiff's expense; and (iii) equity and good conscience require the defendant to disgorge the enrichment. See Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011). Defendants were enriched to the tune of $47.3 million — entirely at Driftwood's expen

5. Alter Ego / Veil-Piercing. Under New York law, a court may pierce the corporate veil where the corporate form has been used as a mere alter ego or instrumentality of its owners to perpetrate a fraud or injustice. See Morris v. New York State Dep't of Taxation & Fin., 82 N.Y.2d 135, 141 (1993); TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339 (1998). The inquiry focuses on whether the owners exercised compl

II. THIS COURT SHOULD GRANT AN ORDER OF ATTACHMENT IN THE AMOUNT OF $50,000,000 PURSUANT TO CPLR § 6201 A. Legal Standard for Attachment Under CPLR § 6201 Attachment is a provisional remedy authorized by CPLR Article 62 to secure the satisfaction of a judgment that may ultimately be rendered in the plaintiff's favor. CPLR § 6201 specifies the grounds upon which attachment may be granted. As relevant here, subdivision

III. THE SCOPE OF THE REQUESTED RELIEF IS APPROPRIATELY TAILORED A. The TRO Should Restrain All Defendants Driftwood respectfully submits that the temporary restraining order should apply to all four defendants: Meridian Prime Capital LLC, Viktor Zelenko, Irene Carvallo, and Dmitri Sobchak. The justification for restraining each defendant is compelling. As to Meridian Prime, the entity defendant served as the vehicle

1. Enter a temporary restraining order pursuant to CPLR § 6301 and § 6313(a), without prior notice to defendants, freezing all accounts held by Meridian Prime Capital LLC at Bridgemont Bank NA and restraining all defendants — Meridian Prime Capital LLC, Viktor Andreyevich Zelenko, Irene Maria Carvallo, and Dmitri Pavlovich Sobchak — from transferring, encumbering, dissipating, secreting, or otherwise disposing of any

2. Grant an order of attachment in the amount of $50,000,000 pursuant to CPLR § 6201 et seq., attaching the specified assets of all defendants as set forth in Point II.F above;

3. Set a prompt return date for a hearing on Driftwood's application for a preliminary injunction, to be held within such time as the Court deems appropriate;

4. Authorize Driftwood to serve the temporary restraining order and order of attachment upon Bridgemont Bank NA, Marlowe Asset Management Trust Company of Delaware, and the New York City Register; and

5. Grant such other and further relief as this Court deems just and proper. Dated: August 7, 2023 New York, New York Respectfully submitted, CALDERWOOD & HARKNESS LLP CALDERWOOD & HARKNESS LLP By: ________ Priya Anand, Partner Hannah Brinkley, Senior Associate 200 Park Avenue, 42nd Floor New York, New York 10166 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 Attorneys for Plaintiff Driftwood Absolute Return Fund