Personal Jurisdiction: Subpoena To Foreign Bank Quashed On Due Process Grounds

The Southern District of New York recently quashed a subpoena seeking documents from the Commonwealth of Australia and New Zealand Banking Group Limited (ANZ Bank) for use in a foreign arbitration proceeding. This case was preceded by multi-national litigation between APR Energy Holding Ltd. and Forge Power Pty Ltd., related to a bankruptcy proceeding and four gas turbine generator sets worth millions of dollars. Having lost in the prior litigation, APR initiated arbitration against the Commonwealth of Australia and issued a subpoena seeking relevant information about Forge's finances, given that ANZ Bank is Forge's biggest creditor.

The parties initially disputed whether APR satisfied the criteria for enforcement of a Section 1782 subpoena, namely whether ANZ Bank "resides or is found in New York." ANZ Bank has only one branch office in New York, and this branch accounts only for 2% of the bank's assets, operating income and profit, and 0.3% of its employees. The