William J, Honan

Michael J, Frevola

HOLLAND & KNIGHT LLP

195 Broadway

New York, New York 10007-3189

(212)513-3200

ATTORNEYS FOR PLAINTIFF

WILHELMSEN PREMIER MARINE FUELS AS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WILHELMSEN PREMIER MARINE FUELS AS,

Plaintiff,

-againstUBS PROVEDORES PTY LTD. a/k/a

USS-UBS INTERNATIONAL and

RAECORP INTERNATIONAL PTY LTD.,

Defendants,

07 Civ. 5798 (CM)

MEMORANDUM IN SUPPORT OF PLAINTIFF'S AMENDED

MOTION TO VACATE THE COURT'S ORDER OF DISMISSAL

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 1 of 17
TABLE OF CONTENTS

TABLE OF AUTHORITIES,. ii

PRELIMINARY STATEMENT ..1

STATEMENT OF FACTS 2

ARGUMENT.... .....8

POINT I

UBS' BREACH OF THE SETTLEMENT AGREEMENT:

FAILURE TO PROVIDE DOCUMENTS AND THE

PAYMENT OF THE GOVERNMENT CLAIMS ..8

POINT II

UBS IS NOT ENTITLED TO DISMISSAL BECAUSE IT

HAS BREACHED THE SETTLEMENT AGREEMENT

BY FAILING TO PAY THE $2,087,891.75 OWED FROM

THE GOVERNMENT CLAIMS PAYOUT 11

CONCLUSION ..14

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 2 of 17
TABLE OF AUTHORITIES

FEDERAL CASES

Fairfax Countrywide Citizens Ass'n v. County of Fairfax,

571 F.2d 1299 (4th dr.), cert, denied, 439 U.S. 1047 (1978) .13

Nemaizer v. Baker,

793 F.2d 58 (2d Cir. 1986) 12

Septembertide Publishing, B. V, v. Stein and Day, Inc.,

884 F.2d 675 (2d Cir. 1989) 13

Shor Int'l Corp, v. Eisinger Enter,, Inc.,

1993 WL 452546 (S.D.N.Y. Nov. 3, 1993) 12, 13

STATE CASES

Callaman v. Powers,

199 N.Y. 268, 92 N.E. 747 (1910) , .....13

STATUTES AND RULES

Contract Disputes Act, 41 U.S.C. §605(c) ,.5

Federal Acquisition Regulations, 48 C.F.R. §33.207 5

Federal Rule of Civil Procedure 60(b)(6) .1,12,13

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 3 of 17
PRELIMINARY STATEMENT

Based on the arguments put forth herein and in Wilhelmsen's Motion to Vacate the

Court's Order of Dismissal, dated January 25, 2008 ("Wilhelmsen's Initial Motion"), this Court

should exercise its discretion to vacate the dismissal of the underlying action.

As explained below, since Wilhelmsen's initial Motion was filed, the following

information has come to light which, in Wilhelmsen's view, warrants the submission of an

amended motion setting forth events subsequent to the parties' briefing:

• UBS is obligated under the Settlement Agreement to pay $2,087,891,75 to Wilhelmsen if

it is paid for its claims under Tax Invoice 10039;

• UBS' Tax Invoice 10039 dated March 7, 2007 (but unknown to Wilhelmsen whether it

was submitted to DESC on March 8, 2007) is part of UBS1 "Sasebo Claim";

• UBS was paid $3,550,783.66 by the U.S. Government;

« That payment was made in December 2007;

• It was made in settlement of a claim referenced as "submitted" on March 8, 2007;

• It was for losses claimed with regard to services performed at Sasebo, Japan;

• UBS has only provided redacted documents concerning the submission of its

Government Claims and has refused to provide any amplifying documents to clarify the

basis on which it was paid by the U.S. Government; and

« UBS moved to dismiss this proceeding within a few weeks after having received the

aforementioned $3,550,783.66 but without paying or notifying Wilhelmsen of that

payment.

Especially in light of UBS' provision of redacted claims documents and subsequent

refusal to support its claim that the payment received was for another claim, the evidence

strongly supports a finding that UBS is in further (and highly material) breach of the parties*

Settlement Agreement warranting this Court's vacatur of its order of dismissal.

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 4 of 17
STATEMENT OF FACTS

On October 22, 2007, Wilhelmsen Premier Marine Fuels AS ("Wilhelmsen" or

"Plaintiff) entered into a Settlement Agreement and Release ("Settlement Agreement") with

UBS Provedores Pty Ltd, ("UBS") and Raecorp International Pty Ltd. (collectively,

"Defendants"). Upon Defendants' complete performance of its payment obligations under the

Settlement Agreement, Wilhelmsen was to submit to the Court an order of dismissal which,

among other things, would have the effect of dismissing, with prejudice, Wilhelmsen's lawsuit

against the Defendants.

As is explained in Wilhelmsen's Initial Motion, the amount of $68,885.12 was not

transferred from HSBC Bank USA, N.A. ("HSBC") as required by the Settlement Agreement.

Therefore, Wilhelmsen did not submit the order of dismissal to the Court. Without prior notice

to Wilhelmsen and without informing the Court of the contested issues, the Defendants, in a

letter to the Court dated January 11, 2008, represented to the Court that it had complied with the

terms of the Settlement Agreement and that Wilhelmsen had failed to submit the order of

dismissal.

With that letter, Defendants included a proposed order of dismissal of its own making,

which the Court signed on January 14, 2008. Plaintiff immediately protested and the Court

requested that each party submit its position in writing for the Court's consideration.

Since Wilhelmsen's Initial Motion was filed, and while that motion has been sub judice,

Wilhelmsen has learned that UBS apparently has breached further obligations under the

Settlement Agreement. UBS has failed to pay Wilhelmsen the remaining balance of

$2,087,891.75 which became due to Wilhelmsen when UBS received over $3.5 million from the

U.S. government in December 2007. This amended motion to vacate the Court's dismissal order

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 5 of 17
incorporates this new information for the Court's consideration. To focus the Court on recent

developments, Wilhelmsen's Initial Motion is incorporated herein at Appendix A and

supplemented herewith,

Recent Events

The parties' Settlement Agreement, which was intended to conclude this litigation (a copy

of which is annexed as Exhibit #1 to the van Hemmen Certification dated February 1, 2008 filed

with this Court (Doc. #35)), provides in relevant part that:

WHEREAS, UBS has submitted a claim to the U.S. government under its

contract with the Defense Energy Support Center in the amount of THREE MILLION

ONE HUNDRED EIGHTY THOUSAND EIGHT HUNDRED FIFTY THREE DOLLARS AND

FIFTY-EIGHT CENTS ($3,180,853.58), relating to amounts invoiced pursuant to

invoice number 10039 and concerning the bunkerings [claimed in Wilhelmsen's

Verified Amended Complaint], which claim presently is under review by the U.S.

government (the "Government Claims")

* * *

6. In addition to the Initial Payment and the Second Payment, UBS will pay

to Wilhelmsen TWO MILLION EIGHTY-SEVEN THOUSAND EIGHT HUNDRED NINETYONE DOLLARS AND SEVENTY-FIVE CENTS ($2,087,891.75), which payment will

become due when the U.S. Government pays the Government Claims to UBS.

UBS warrants that it will use its best endeavors to recover from the U.S.

government on the Government Claims and will provide to Wilhelmsen copies of

its application for the Government Claims as well as a full record of its

correspondence with the U.S. government concerning the Government Claims.

The Parties agree that this amount will be paid in full from the Government

Claims payment before UBS is entitled to keep any of the Government Claims

payment for itself. . , .

Van Hemmen Certification dated Feb. 1, 2008 (Doc. #35), Ex. 1, at pp. 1, 4 (emphasis added).

As is explained in the Affirmation of Ronald H. Uscher, sworn to on May 20, 2008 and

submitted herewith ("Uscher Aff"), in January 2008, Wilhelmsen retained the Washington, D.C.

office of the law firm of Peckar & Abramson, P.C. to make inquiries with the U.S. Government,

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 6 of 17
(Uscher Aff., f 1). Specifically, Mr. Uscher inquired of the Defense Energy Supply Center

("DESC"), as to the status of UBS' claims pending before the DESC for UBS' fueling services

provided to U.S. Government vessels in Sasebo and Naha, Japan. (Id. f 4).

On January 30, 2008, Peckar & Abramson served DESC with a request for documents

pursuant to the Freedom of Information Act ("FOIA") relating to the contract between DESC and

UBS designated as Contract 06-D-0391 (the "DESC/UBS Contract"), and followed up that

request with an amended request on February 21, 2008. (Uscher Aff., ff 5, 8 & Exs. 1, 2).

During this same time period, UBS produced to Wilhelmsen's New York counsel a total

of 80 pages of documents regarding its Government Claims (as that term is defined in the parties'

Settlement Agreement). The documents produced appeared incomplete and redacted important

financial information. As more fully explained in the Affidavit of Michael J. Frevola dated May

20, 2008 submitted herewith ("Frevola Affidavit II"), these redactions and omissions were in

violation of the terms of the Settlement Agreement by which UBS agreed to provide Wilhelmsen

w

'

m

 & full record of its correspondence with the DESC, and its application for the claims at issue

termed the "Government Claims." (Frevola Affidavit II, f 8). No provision in the Settlement

Agreement allowed for the redactions or omissions which UBS undertook when producing

documents. Not only did the redactions make it impossible for Wilhelmsen to determine the

terms of UBS' submissions to DESC, but they also made it impossible to determine whether the

documents produced even were related to the Government Claims and supported UBS1

application. For instance, as more fully explained in the Uscher Affirmation, the UBS-produced

documents appeared "incomplete" because they did not contain a written claim certification by

1

 The Affidavit of Michael Frevola dated January 25, 2008 ("Frevola Affidavit I") was submitted in support of

Wilhelmsen's Initial Motion. For ease of reference the exhibits annexed to Frevola Affidavits I and II are numbered

sequentially.

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 7 of 17
UBS as required by the Contract Disputes Act ("CDA"), 41 U.S.C. §605(c), and the Federal

Acquisition Regulations ("FAR"), 48 C.F.R. §33.207. (Uscher Aff., f 7).

Thus, the documents produced by UBS did not appear to qualify as a "claim" under CDA

rales. (Id.). Furthermore, the redactions made it impossible to determine whether the documents

produced by UBS pertained to the "Government Claims" referenced in the parties' Settlement

Agreement. Therefore, Wilhelmsen's New York counsel wrote to UBS1 counsel to question the

completeness of UBS1 document production. (Id., see also Frevola Affidavit II, f 9 & Ex. 17).

In response, on April 4, 2008, UBS1 counsel confirmed that UBS had produced all

documents:

My client confirms that UBS has produced all claims related documents. UBS

states that there were no applicable protocol [sic] for submission of its claim

which was submitted in the emails provided to Wilhelmsen.

(Frevola Affidavit II, f 10 & Ex. 18).

On March 14, 2008, Peckar & Abramson received an interim reply to its FOIA request to

DESC. (Uscher Aff., ^9-11). In that reply, DESC provided previously unseen documents

which suggested that UBS has been paid for the Government Claims but that UBS failed to

advise Wilhelmsen. (Id., Uscher Ex. 4). One of these documents was Modification P00004 of

September 24, 2007 ("Mod. 4"). A true copy of Mod. 4 is attached to the Uscher Aff. as Exhibit

3 thereto. Mod. 4 is a modification to the DESC/UBS Contract, which summarizes the history of

UBS1 March 8, 2007 claim in the amount of $3,550,783.66 related to UBS' performance under

the DESC/UBS Contract at Sasebo. (Uscher Aff., f 10 & Uscher Ex. 3). Mod. 4 provides, in

pertinent part, that:

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 8 of 17
2. Pursuant to subsequent review of the claim and responses from all concerned

parties, the Contracting Officer has determined that the subject claim is valid and

the ContractorJLe., UBS] will be paid the amount of'$3,550,783,66,

TOTAL SUM to be paid; $3,550,783,66

(See Uscher Aff., Uscher Ex, 3, p. 2 (first emphasis added)).

After receiving these documents, on March 19, 2008 Peckar & Abramson called Kay

Bushman, Esq., an attorney in DESC's Office of General Counsel who is assigned to the

DESC/UBS Contract claims. (Uscher Aff., f 12). During that conversation, Ms. Bushman

confirmed that UBS was paid the claimed amount of $3,550,783,66, which she believed had

occurred sometime in late December 2007. (Id.)

As recited in the portion of the Settlement Agreement quoted on page 2 above, the

Government Claims are those "relating to amounts invoiced pursuant to invoice number 10039"

This language was inserted by Defendants' counsel and defined the claim on which UBS would

pay Wilhelmsen if paid by the U.S. Government. (Frevola Affidavit II, ^| 5). The documents

produced by UBS include a cover sheet entitled "Sasebo Claim" dated "07 March, 2007"

followed by a claim letter of the same date and a document designated "Tax Invoice 10039"

which purports to invoice the Government for "1 Each Claim Dated 7th March, 2007." (See

Uscher Aff., Ex. 5 (for copies of the reference documents)).

The claim amounts on these documents are (improperly) redacted making it both hard to

trace submission for and payment of the claims. However, the "Sasebo Claim" dated 07 March,

2007 clearly is the "Claim Dated 7th March, 2007" referred to in Tax Invoice 10039, In turn, Tax

Invoice 10039 clearly is the "invoice number 10039" referred to in the second "Whereas" clause

of the Settlement Agreement. Therefore, it follows that the "Sasebo Claim" dated 07 March,

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 9 of 17
2007 is the "Government Claims" referred to in the Settlement Agreement, and that Wilhelmsen

is entitled to be paid $2,087,891.75 on the Government's payment to UBS of the Sasebo Claim,

This conclusion is supported by the response of UBS' counsel (Frevola Affidavit II,

Ex. 18) following Wilhelmsen's New York counsel's April 2, 2008 letter (Ex. 17) questioning the

completeness of UBS' document production. UBS1 counsel replied: "My client confirms that

UBS has produced all claims related documents." (Ex. 18). This response confirms that the

Sasebo Claim pertaining to Tax Invoice 10039, was contained in the documents produced by

UBS, and must be the "Government Claims" referred to in the parties' Settlement Agreement.

The documents produced by UBS contain no other Sasebo claim. The Government has paid

$3,550,783.66 on the Sasebo claim, and therefore it appears that UBS most likely has been paid

on the "Government Claims." (Uscher Aff, ff 16, 19).

Having received this information, Wilhelmsen wrote again to UBS' counsel on April 10,

2008 and set forth Wilhelmsen's basis for believing that UBS had been paid for its Government

Claims and that UBS had failed to pay Wilhelmsen. In that letter, Wilhelmsen demanded

payment of the $2,087,891.75 due under numbered paragraph 6 of the Settlement Agreement by

April 14, 2008. A true copy of the letter to UBS' counsel dated April 10, 2008 is annexed to

Frevola Affidavit II as Exhibit 19.

In response to this letter, UBS1 counsel replied on April 17, 2008, tacitly confirming that

UBS had received the $3,550,783.66 payment from DESC and relaying "instructions" from her

client as to the nature of that payment. The entirety of her message follows:

I am. instructed by my client that the payment of $3,550,783.66 relates to services

rendered by UBS to DESC which are in no way referable to the claim referenced

in the Settlement Agreement.

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 10 of 17
(Frevola Affidavit II, f 13 & Ex, 20 (emphasis added)).

Wilhelmsen's counsel demanded an unredacted copy of the documents produced by UBS

related to the Government Claims and the documentation for the "other claim" that UBS alleged

was covered by the $3,550,783,66 payment. A true copy of the letter demanding unredacted

copies is attached to the Frevola Affidavit II as Exhibit 21.

UBS' counsel sent Tax Invoice 10454 and Mod. 4 in response to the demand for

documentation, A true copy of the covering email and attached documents is attached to Frevola

Affidavit II as Exhibit 22.

On May 5, 2008, Wilhelmsen's counsel reiterated the request for documents to explain

the Government Claims and the DESC payment. A true copy of the May 5, 2008 request is

attached to Frevola Affidavit II as Exhibit 23. To date, no further explanation of the Government

Claims or the DESC payment has been received.

ARGUMENT

POINT I

UBS' BREACH OF THE SETTLEMENT AGREEMENT:

FAILURE TO PROVIDE DOCUMENTS AND

THE PAYMENT OF THE GOVERNMENT CLAIMS

In her email of April 29, 2008, UBS provided the following explanation to explain that

the DESC payment was not for the Government Claims.

Attached please find a copy of UBS' tax invoice numbered 10454 in the amount

of $3,550,783.66 together with the relevant amendment to the contract, namely

P0004. These documents establish that the $3,550,783.66 payment by the

government to UBS did not relate to the Government Claims but to a separate and

distinct claim. Wilhelmsen was aware at the time of negotiating the Settlement

Agreement that UBS had claims other than the Government Claims pending.

(Frevola Affidavit II, Ex. 22).

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 11 of 17
But Tax Invoice 10454 establishes nothing of the sort. Mr, Uscher's Affirmation explains

how Tax Invoice 10454 (dated September 24, 2007) is nothing more than an invoice from UBS

that reflected the settlement reached between UBS and DESC in September 2007 as to UBS'

claim submitted in March 2007:

17. ...Tax Invoice 10454 is not proof that DESC paid the $3,550,783.66 on a

claim other than the Sasebo Claim originally submitted under Tax Invoice

10039. Tax Invoice 10454 merely invoices for the already agreed-upon Mod. 4

amount, as can be seen by the reference in the Invoice to Mod. 4 and by the date

of the Invoice (9/24/07), which is the same as DESC's execution of Mod. 4.

18. Because UBS has redacted all financial information from Tax Invoice

10039 and apparently has not produced any claim documents pertaining to the

bunkerings claimed in Wilhelmsen's Verified Amended Complaint, it is possible

that the $3,550,783.66 agreed to in Mod. 4, and then billed by Tax Invoice 10454,

represents payment of those "Government Claims" referenced in the Settlement

Agreement. Even if an unredacted Tax Invoice 10039 were to reveal that it was

for an amount other than $3,550,783.66, the difference could still be (a) amount

attributable to the bunkerings claims in Wilhelmsen's Verified Amended

Complaint (the other portion of the "Government Claims") or (b) additional UBS

submissions and negotiations that occurred after the initial submission of Tax

Invoice 10039.

19. Therefore, Tax Invoice 10454 does not change my conclusion that the

claims on which UBS was paid most likely were the "Government Claims"

referenced in the Settlement Agreement, thus obligating UBS to pay Wilhelmsen

the $2,087,891.75 owed to Wilhelmsen under numbered paragraph 6 of the

Settlement Agreement

(Uscher Aff., fl 17-19) (emphasis added).

Hence, despite UBS' representations to the contrary, UBS has provided no evidence to

show that it was paid for "another" claim. Indeed, Mod. 4 supports the contention that the

settlement between DESC and UBS covered the Government Claims because Mod. 4 (at page 2

of 2) specifically cites to a claim submitted within one day of Tax Invoice 10039 and references

that claim as for Sasebo, Japan:

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 12 of 17
1. On March 8, 2007, USS-UBS submitted a claim under Item 765-61

(Sasebo, Japan) in accordance with FAR 33.206 for $3,550,783.66 for costs

incurred in response to the Government's request for surge capabilities to meet

requirements that did not materialize.

(Frevola Affidavit II, f 17, Ex. 22) (emphasis added).

Rather than having provided "support" for the conclusion that UBS was paid on another

claim before the government, UBS has confirmed the following or documents from DESC have

shown the following;

• UBS was paid $3,550,783.66 by the U.S. Government;

• That payment was made in December 2007;

• It was made in settlement of a claim referenced as "submitted" on March 8, 2007;

• It was for losses claimed with regard to services performed at Sasebo, Japan;

• UBS' Tax Invoice 10039 dated March 7, 2007 (but unknown to Wilhelmsen whether it

was submitted to DESC on March 8, 2007) is part of UBS' "Sasebo Claim";

• UBS is obligated imder the Settlement Agreement to pay $2,087,891.75 to Wilhelmsen if

it is paid for its claims under Tax Invoice 10039; and

• UBS has only provided redacted documents concerning the submission of its

Government Claims and has refused to provide any amplifying documents to clarify the

basis on which it was paid by the U.S. Government.

According to Mr. Uscher, who advises clients on government procurement issues, the

facts above strongly suggest that UBS' Government Claims have been paid. (Uscher Aff., f 12).

As Mr. Uscher has explained to this Court, the payment by DESC in December 2007 is most

likely for the Government Claims. (Uscher Aff., f 12). UBS has the documentation to

demonstrate the basis for the December 2007 DESC payment and UBS has the submission made

10

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 13 of 17
for the Government Claims. UBS has declined to provide this documentation to Wilhelmsen.

The Settlement Agreement clearly stated that the Government Claims application and "all

correspondence with the U.S. Government concerning the Government Claims" would be

provided to Wilhelmsen by UBS. UBS has clearly breached the Settlement Agreement by

providing an incomplete application and redacted documents.

UBS has been evasive if not misleading regarding the DESC payment and the

Government Claims. If the Government Claims have not already been paid, which seerns

unlikely, there will be no way to tell if they are paid at a later date. UBS has shown itself

absolutely unwilling to adhere to the Settlement Agreement which it has breached on multiple

occasions. The dismissal of the underlying action should be vacated.

POINT II

UBS IS NOT ENTITLED TO DISMISSAL BECAUSE IT HAS BREACHED

THE SETTLEMENT AGREEMENT BY FAILING TO PAY THE

$2,087,891.75 OWED FROM THE GOVERNMENT CLAIMS PAYOUT

As explained in Wilhelmsen's Memorandum of Law in Support of Wilhelmsen's Initial

Motion, UBS has failed to satisfy a condition precedent to being entitled to the dismissal order in

the first place, because UBS did not make the initial payment under the order. Now there is

further reason to vacate the dismissal order because UBS has apparently been paid on its

Government Claims but has failed to pay Wilhelmsen in accordance with the Settlement

Agreement. In addition, UBS has breached the Settlement Agreement by producing incomplete

and redacted documents regarding the Government Claims, which will make it impossible for

Wilhelmsen to ever establish definitively if and when the Government Claims were or will be

paid. That having been said the facts suggest that the Government Claims were paid in

December 2007 by DESC.

11

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 14 of 17
This Court has the discretion to vacate the dismissal order for UBS' breach of the

Settlement Agreement under Federal Rule of Civil Procedure Rule 60(b)(6). Fed. R, Civ. P. R,

60(b)(6); Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

This portion of the Rule is properly invoked when there are extraordinary

circumstances justifying relief, when the judgment may work an extreme and

undue hardship, and when the asserted grounds for relief are not recognized in

clauses (l)-(5) of the Rule.

Nemaizer, 793 F.2d at 63 (citations omitted). Here, clauses (1) to (5) of Rule 60(b) do not apply,

the circumstances here are extreme and allowing the dismissal to stand will work an undue

hardship on Wilhelmsen.

Here, UBS entered into a Settlement Agreement in which it represented that the

Government Claims were related to the bunkering claims of Wilhelmsen set forth in its

Complaint. See Settlement Agreement (relevant provisions quoted supra at 3). In the Settlement

Agreement, UBS agreed to provide information regarding the Government Claims to

Wilhelmsen and to pursue payment of the Government Claims for the benefit of UBS. Id. UBS

has not provided the information and appears to have been paid on the Government Claims

without paying that money to Wilhelmsen as required by the Settlement Agreement. The very

basis on which the action was settled has been negated by these breaches of the Settlement

Agreement.

In Shorlnt'l Corp. v. Eisinger Enter., Inc., 1993 WL 452546 (S.D.N.Y. Nov. 3, 1993),

the Plaintiff Shor moved pursuant to Federal Rule of Civil Procedure 60(b)(6) for an order

vacating the order of discontinuance and the settlement agreement on which it was based, and to

restore the action to the trial calendar. Almost one year after an order of discontinuance was

entered, Shor claimed that the defendant breached the agreement on numerous occasions and

12

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 15 of 17
showed a lack of good faith. Id. at *1. The court denied the motion because Plaintiff failed to

show the defendant "materially breached the settlement agreement," but set forth the applicable

standard:

The failure of one party to fulfill its duties under a settlement agreement can

constitute an extraordinary circumstance. "Upon repudiation of a settlement

agreement which has terminated litigation pending before it, a district court has

the authority under 60(b)(6) to vacate its prior dismissal order and restore the case

to its docket."

Shor, 1993 WL 452546 at *2 (quoting Fairfax Countywide Citizens Ass'n v. County of Fairfax,

571 F.2d 1299 (4th Cir.), cert, denied, 439 U.S. 1047 (1978)). UBS1 actions here are material

breaches of the Settlement Agreement by which UBS has repudiated the Settlement Agreement.

The Rule 60(b)(6) standard has been explained as follows:

The extent of noncompliance necessary to establish a material breach of a

settlement agreement under Rule 60(b), Fed. R. Civ. P., is similar to that required

in a state law action for recession of a contract. Innocent, inadvertent, or

immaterial breaches of a settlement agreement do give rise to a rescission claim.

"[Bjefore rescission will be permitted, the breach must be 'material and willful,

or, if not willful, so substantial and fundamental as to strongly tend to defeat the

object of the parties in making the contract.' " Septembertide Publishing, B, V, v.

Stein and Day, Inc., 884 F.2d 675, 678 (2d Cir. 1989) (quoting Callaman v.

Powers, [199 N.Y. 268,] 92 N.E. 747 (1910)).

Id. at *2. Wilhelmsen settled this action and accepted as settlement, any payment received by

UBS from DESC, related to the bunkering referred to in Wilhelmsen's Verified Amended

Complaint. UBS now refuses to provide information regarding the claim made to DESC and

payment received from DESC. The object of the Settlement Agreement is defeated by UBS1

actions.

13

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 16 of 17
Furthermore, UBS' actions in redacting documents, providing incomplete claims and

refusing to explain the Government Claims or the claim that it alleges have been paid, are

deliberate acts which have been performed willfully. These actions have defeated the payment

to Wilhelmsen of the agreed sums under the Settlement Agreement.

Here, Wilhelmsen has met the criteria for granting a Rule 60(b)(6) motion and the

dismissal order should be vacated.

CONCLUSION

Wilhelmsen, for the reasons set forth above, respectfully renews its request that the Court

vacate its order of dismissal so that Wilhelmsen can enforce its remedies for UBS' failure to pay

the full amount due under the Settlement Agreement.

Dated: New York, New York

May 20, 2008

HOLLAND & KNIGHT LLP

William J. Honan

Michael J. Frevola

195 Broadway

New York, New York 10007-3189

Tel: (212)513-3200

Fax: (212)385-9010

Attorneys for Plaintiff"

Wilhelmsen Premier Marine Fuels AS

#5294573 vl

14

Case 1:07-cv-05798-CM-HBP Document 41 Filed 05/20/2008 Page 17 of 17