Gramercy Advisor LLC, Gramercy Asset Management LLC, Gramercy Local Markets Recovery Fund LLC and Gramercy Financial Services LLC v. R. K. Lowery, Jr. L-Falling Creek LLC, Russell A. Chabaud, R-Rac Wimbledon, LLC, John P. Moffitt, J-Jason LLC, Russell A. Chabaud, Trustee of the Russell G. Chabaud 1999 Investment Trust, R- Russell Wimbledon, LLC ( 2015 )


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  •                                                                                               ACCEPTED
    01-14-00904-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    2/2/2015 3:16:12 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-14-00904-CV
    __________________________________________________________________
    FILED IN
    FIRST DISTRICT OF TEXAS AT HOUSTON    1st COURT OF APPEALS
    HOUSTON, TEXAS
    __________________________________________________________________
    2/2/2015 3:16:12 PM
    CHRISTOPHER A. PRINE
    GRAMERCY ADVISORS LLC, GRAMERCY ASSET                   MANAGEMENT Clerk LLC,
    GRAMERCY LOCAL MARKETS RECOVERY FUND LLC, AND
    GRAMERCY FINANCIAL SERVICES LLC,
    Defendants-Appellants,
    v.
    R.K. LOWRY, JR., ET AL.,
    Plaintiffs-Appellees.
    __________________________________________________________________
    DEFENDANTS-APPELLANTS’ BRIEF
    __________________________________________________________________
    From the District Court of Harris County, Texas,
    80th Judicial District; Trial Court Case No. 2008-74262
    David C. Mattka (TSB No. 13231500)         Sean F. O’Shea (pro hac vice)
    MUNSCH HARDT KOPF & HARR, P.C.             Michael E. Petrella (pro hac vice)
    401 Congress Avenue, Suite 3050            Daniel M. Hibshoosh (pro hac vice)
    Austin, Texas 78701                        O’SHEA PARTNERS LLP
    (512) 391-6100 (telephone)                 521 Fifth Avenue, 25th Floor
    (512) 391-6149 (facsimile)                 New York, NY 10175
    Email: dmattka@munsch.com                  Tel: (212) 682-4426
    Fax: (212) 682-4437
    soshea@osheapartners.com
    mpetrella@osheapartners.com
    dhibshoosh@osheapartners.com
    ORAL ARGUMENT REQUESTED
    REQUEST FOR ORAL ARGUMENT
    Pursuant to Texas Rules of Appellate Procedure 38.1(e), 39.7, and
    52.8(b)(4), Defendants-Appellants respectfully request oral argument because it
    will materially aid the Court in determination of an important question of law
    requiring careful consideration, particularly in light of the voluminous and
    complex factual record below.
    ii
    IDENTITIES OF PARTIES AND COUNSEL
    Defendants-Appellants:
    GRAMERCY ADVISORS LLC; GRAMERCY ASSET MANAGEMENT LLC;
    GRAMERCY LOCAL MARKETS RECOVERY FUND LLC; AND
    GRAMERCY FINANCIAL SERVICES LLC.
    David C. Mattka (TSB No. 13231500)     Sean F. O’Shea (pro hac vice)
    MUNSCH HARDT KOPF & HARR, P.C.         Michael E. Petrella (pro hac vice)
    401 Congress Avenue, Suite 3050        Daniel M. Hibshoosh (pro hac vice)
    Austin, Texas 78701                    O’SHEA PARTNERS LLP
    Tel: (512) 391-6100                    521 Fifth Avenue, 25th Floor
    Fax: (512) 391-6149                    New York, NY 10175
    Tel: (212) 682-4426
    Fax: (212) 682-4437
    Plaintiffs-Appellees:
    R. K. LOWRY, JR; L-FALLING CREEK, LLC; RUSSELL A. CHABAUD; R-
    RAC WIMBLEDON LLC; JOHN P. MOFFITT; J-JASON LLC; RUSSELL A.
    CHABAUD, TRUSTEE OF THE RUSSELL G. CHABAUD 1999
    INVESTMENT TRUST; R-RUSSELL WIMBLEDON, LLC; RUSSELL A.
    CHABAUD, TRUSTEE OF THE ASHLEY CHABAUD 1999 INVESTMENT
    TRUST; R-ASHLEY WIMBLEDON, LLC; RUSSELL A. CHABAUD,
    TRUSTEE OF THE AUDREY CHABAUD 1999 INVESTMENT TRUST; R-
    AUDREY WIMBLEDON, LLC; LMC RECOVERY FUND, LLC; UNION GAS
    FUNDING I, L.P.; RANA HOLDINGS, LLC; WESTY I LLC; AND MOGI, LLC.
    W. Ralph Canada, Jr. (Lead Counsel)
    David R. Deary, Wilson E. Wray and Tyler M. Simpson (Additional Counsel)
    LOEWINSOHN FLEGLE DEARY, LLP
    12377 MERIT DRIVE, SUITE 900
    Dallas, Texas 75251
    Tel: (214) 572-1700
    Fax: (214) 572-1717
    iii
    TABLE OF CONTENTS
    REQUEST FOR ORAL ARGUMENT .................................................................... ii
    IDENTITIES OF PARTIES AND COUNSEL ....................................................... iii
    TABLE OF AUTHORITIES ................................................................................... vi
    RECORD REFERENCES ....................................................................................... ix
    STATEMENT OF THE CASE ..................................................................................x
    ISSUE PRESENTED ............................................................................................... xi
    STATEMENT OF FACTS ........................................................................................1
    I.       APPELLEES AND BDO DEVISE THE TAX TRANSACTIONS ..... 1
    II.      GRAMERCY AGREES TO SOURCE EMERGING MARKET
    ASSETS FOR APPELLEES’ TAX TRANSACTION, AND TO
    ARRANGE SEPARATE INVESTMENT FUND INVESTMENTS ... 2
    III.     APPELLEES ACKNOWLEDGE THEY RECEIVED NO TAX
    ADVICE FROM GRAMERCY ........................................................................... 5
    IV.      THE IRS DISALLOWS ANY BENEFIT FROM THE TAX
    TRANSACTION ........................................................................................................ 6
    V.       APPELLEES COMMENCE LITIGATION IN A FORUM TO
    WHICH GRAMERCY HAS VIRTUALLY NO CONNECTION ........ 7
    VI.      GRAMERCY SEEKS DISMISSAL FOR LACK OF
    PERSONAL JURISDICTION ............................................................................. 9
    VII.  THE COURT BELOW REJECTS GRAMERCY’S AMENDED
    SPECIAL APPEARANCE .................................................................................. 11
    SUMMARY OF THE ARGUMENT ......................................................................12
    ARGUMENTS AND AUTHORITIES ...................................................................14
    I.       GRAMERCY DOES NOT HAVE THE MINIMUM CONTACTS
    WITH TEXAS NECESSARY TO ESTABLISH SPECIFIC
    JURISDICTION. ...................................................................................................... 14
    A.        Gramercy’s Attendance at Meetings in Texas Does Not
    Give Rise to Jurisdiction. ......................................................................... 15
    1.         The Pre-Investment Meeting. .................................................... 15
    2.         The Post-Investment Meetings. ................................................ 21
    iv
    B.        Gramercy’s Contractual Performance Outside Texas
    Cannot Establish Personal Jurisdiction. ............................................. 22
    C.        Appellees’ Performance Of Contractual Obligations In
    Texas Cannot Give Rise to Jurisdiction Over Gramercy. .......... 24
    D.        Gramercy’s Activities Concerning Appellees’ Tax
    Strategy And Fund Investments Cannot Give Rise To
    Specific Jurisdiction. ................................................................................. 25
    1.         Gramercy’s Ministerial Execution of Transactions
    Necessary To Effectuate The Tax Transactions, And
    Its Management Of Entities Involved In The Tax
    Transactions, Do Not Give Rise To
    Specific Jurisdiction. .................................................................... 25
    2.         Preparation Of Appellants’ Tax Returns Is Irrelevant
    To Personal Jurisdiction Over Gramercy. ............................ 27
    3.         The Gramercy Defendants Earned No Fees
    From Appellees, And Their Earnings From Other
    Texas Residents Are Jurisdictionally Irrelevant................ 28
    4.         Gramercy’s Transmission of Account Statements
    To Appellees Does Not Support A Finding of
    Specific Jurisdiction. .................................................................... 30
    5.         Gramercy’s Limited Communications with Appellees
    Do Not Give Rise to Jurisdiction. ........................................... 32
    E.        Gramercy’s Work on Behalf of Other Texas Clients is
    Irrelevant. ....................................................................................................... 33
    II.      THE EXERCISE OF JURISDICTION OVER GRAMERCY
    WOULD BE INCONSISTENT WITH DUE PROCESS. ...................... 34
    PRAYER ..................................................................................................................37
    CERTIFICATE OF COMPLIANCE .......................................................................38
    CERTIFICATE OF SERVICE ................................................................................39
    v
    TABLE OF AUTHORITIES
    Cases                                                                                               Page(s)
    Asshauer v. Farallon Capital Partners, L.P.,
    
    319 S.W.3d 1
    (Tex. App. 2008)............................................................................20
    BMC Software Belgium, N.V. v. Marchand,
    
    83 S.W.3d 789
    (Tex. 2002)...................................................................................22
    Bozell Grp., Inc. v. Carpet Co-op of Am. Ass’n, Inc.,
    00 CIV. 1248 (RWS), 
    2000 WL 1523282
    (S.D.N.Y. Oct. 11, 2000) ..................18
    Bryan v. Gordon,
    
    384 S.W.3d 908
    (Tex. App. 2012)........................................................................24
    Cornerstone Healthcare Group Holding, Inc. v. Reliant Splitter, L.P.,
    
    2014 WL 2538881
    (Tex. App. 2014) ...................................................................29
    Farwah v. Prosperous Mar. Corp.,
    
    220 S.W.3d 585
    (Tex. App. 2007)........................................................................17
    Financial Strategy Group, PLC v. R.K. Lowry, Jr. et al.,
    No. 01-14-00273 (Tex. App. 2015) ......................................................................11
    Grand Aerie Fraternal Order of Eagles v. Haygood,
    
    402 S.W.3d 766
    (Tex. App. 2013)........................................................................34
    Guardian Royal Exch. Assurance Ltd. v. English China Clays, P.L.C.,
    
    815 S.W.2d 223
    (Tex. 1991).................................................................................35
    Gustafson v. Provider HealthNet Servs., Inc.,
    
    118 S.W.3d 479
    (Tex. App. 2003)........................................................................18
    Hotel Partners v. Craig,
    
    993 S.W.2d 116
    (Tex. App. 1994)........................................................................19
    In re Stern,
    
    321 S.W.3d 828
    (Tex. App. 2010)........................................................................20
    vi
    IRA Resources, Inc. v. Griego,
    
    221 S.W.3d 592
    (Tex. 2007).............................................................. 22, 24, 28, 29
    Johnson v. Pounds,
    
    2008 WL 3845450
    (Tex. App. 2008) ...................................................................28
    KC Smash 01, LLC v. Gerdes, Hendrichson, Ltd., L.L.P.,
    
    384 S.W.3d 389
    (Tex. App. 2012)................................................................. 24, 33
    Lang v. Capital Res. Investments, I, LLC,
    
    102 S.W.3d 861
    (Tex. App. 2003)........................................................................21
    Magnolia Gas Co. v. Knight Equip. & Mfg. Corp.,
    
    994 S.W.2d 684
    (Tex. App. 1998)........................................................................21
    Marathon Oil v. A.G. Ruhrgas,
    
    182 F.3d 291
    (5th Cir. 1999) ............................................................. 18, 23, 29, 30
    Markette v. X-Ray X-Press Corp.,
    
    240 S.W.3d 464
    (Tex. App. 2007)........................................................... 22, 25, 27
    McElroy Machine & Mfg. Co., Inc. v. Flores,
    
    2010 WL 466901
    (Tex. App. 2010) .....................................................................34
    Michiana Easy Livin’ Country, Inc. v. Holten,
    
    168 S.W.3d 777
    (Tex. 2005).................................................................................14
    Moki Mac River Expeditions v. Drugg,
    
    221 S.W.3d 569
    (Tex. 2007)......................................................................... passim
    Nat’l Indus. Sand Ass’n v. Gibson,
    
    897 S.W.2d 769
    (Tex. 1995).................................................................................20
    Olympia Capital Associates L.P. v. Jackson,
    
    247 S.W.3d 399
    (Tex. App. 2008)................................................................. 30, 33
    Proskauer Rose LLP v. Pelican Trading, Inc.,
    
    2009 WL 242993
    (Tex. App. 2009) .............................................................. 22, 33
    vii
    Riverside Exports, Inc. v. B.R. Crane & Equip., LLC,
    
    362 S.W.3d 649
    (Tex. App. 2011)........................................................................31
    Thomas v. UBS AG,
    
    706 F.3d 846
    (7th Cir. 2013) ..................................................................................7
    Turan v. Universal Plan Inv. Ltd.,
    
    70 F. Supp. 2d 671
    (E.D. La. 1999),
    aff'd in rel. part sub nom., 
    248 F.3d 1139
    (5th Cir. 2001) ...................................18
    Turan v. Universal Plan Inv. Ltd.,
    No. 99-31379, 
    2001 WL 85902
    (5th Cir. 2001)……………………… ..............21
    Walden v. Fiore,
    
    134 S. Ct. 1115
    (2014) ..........................................................................................24
    Statutes                                                                                                         Page
    Tex. Rev. Civ. Stat. Ann. art. 1528n § 7.01 ...............................................................8
    Rules                                                                                                           Page
    Tex. R. App. P. 38.1(e) ............................................................................................. ii
    Tex. R. App. P. 38.7...................................................................................................1
    Tex. R. App. P. 39.7.................................................................................................. ii
    Tex. R. App. P. 52.8(b)(4) ........................................................................................ ii
    Other Authorities                                                                                               Page
    Larson, Erik, Record $8 Billion Tax Fraud Gets Ex-Lawyer 15 Years, Bloomberg
    Businessweek, June 25, 2014, http://www.businessweek.com/news/2014-06-
    25/ex-lawyer- sentenced-to-15-years-over-8-billion-tax-fraud ..............................7
    viii
    RECORD REFERENCES
    Citations in this Appellant’s Brief to the parties are as follows:
    Appellants Gramercy Advisors LLC, Gramercy Asset Management LLC,
    Gramercy Local Markets Recovery Fund LLC, and Gramercy Financial Services
    LLC will be referred to collectively as “Gramercy.”
    Appellees R. K. Lowry, Jr.; L-Falling Creek, LLC; Russell A. Chabaud; R-RAC
    Wimbledon LLC; John P. Moffitt; J-Jason LLC; Russell A. Chabaud, Trustee of
    the Russell G. Chabaud 1999 Investment Trust; R-Russell Wimbledon, LLC;
    Russell A. Chabaud, Trustee of the Ashley Chabaud 1999 Investment Trust; R-
    Ashley Wimbledon, LLC; Russell A. Chabaud, Trustee of the Audrey Chabaud
    1999 Investment Trust; R-Audrey Wimbledon, LLC; LMC Recovery Fund, LLC;
    Union Gas Funding I, L.P.; RanA Holdings, LLC, Westy I LLC, and MOGI, LLC
    will be referred to as “Appellees.”
    Citations in this Appellant’s Brief to the record are as follows:
    CR – Clerk’s Record (i.e. CR [page]; e.g. CR 1)
    Supp. CR – Supplemental Clerk’s Record (i.e. Supp. CR [page]; e.g.
    Supp. CR 1)
    App. – Appendix (i.e. App. [tab]; e.g. App. 1)
    ix
    STATEMENT OF THE CASE
    Nature of the Case:   This appeal arises from the district court’s Order denying
    Gramercy’s Amended Special Appearance.
    Course of
    Proceedings:          Appellees filed an action against numerous defendants,
    including Gramercy, regarding an alleged scheme to
    defraud Appellees by inducing them to enter into certain
    tax shelter transactions. Gramercy filed a Special
    Appearance, and later an Amended Special Appearance,
    contesting the court’s personal jurisdiction.
    Trial Court:          District Court of Harris County, Texas, 80th
    Judicial District, Judge Larry Weiman
    presiding; Case No. 2008-74262
    Trial Court’s
    Disposition:          On May 30, 2014, Gramercy filed an Amended Special
    Appearance. On October 17, 2014, the district court
    entered an Order denying Gramercy’s Amended Special
    Appearance.
    x
    ISSUE PRESENTED
    1.    Did the district court err in denying Gramercy’s Amended Special
    Appearance and exercising personal jurisdiction over Gramercy when Appellees
    conceded Gramercy was not subject to general jurisdiction, and when there was
    virtually no connection between Gramercy’s Texas contacts and the misconduct
    forming the basis of Appellees’ claims?
    xi
    STATEMENT OF FACTS1
    I.            APPELLEES AND BDO DEVISE THE TAX TRANSACTIONS
    Appellees are ultra-wealthy businessmen who enjoyed large capital gains in
    2000. CR___(Fifth Amended Petition (“FAP”) ¶ 83). Seeking to reduce their tax
    liability on their multimillion-dollar earnings, Appellees approached defendant
    below BDO USA, LLP (formerly known as BDO Seidman LLP) (“BDO”).
    CR___(FAP ¶ 84). At a September 26, 2000 meeting in Texas that Gramercy did
    not attend, BDO suggested that Appellees execute a specific tax strategy it had
    designed. CR___(FAP ¶ 86). Two well-known law firms that allegedly did not
    attend the September 26, 2000 meeting, Sidley Austin, LLP (“Sidley Austin”) and
    De Castro, West, Chodorow, Glickfeld & Nass, Inc. (“De Castro”), also advised
    Appellees that they would benefit from the BDO-designed strategy. See, e.g.,
    CR___(FAP ¶¶ 43-44). Based on BDO’s representations at the September 26,
    1
    The record citations in this brief are blank because Gramercy did not have
    access to a copy of the record at the time of filing. This Court denied Gramercy’s
    request for a copy of the record because the underlying documents were originally
    filed under seal in the 80th District Court and no order authorized their release. On
    discovery of this issue on January 15, 2015, Gramercy immediately filed an agreed
    request for access to the record in the 80th District Court, but the resulting order
    was not signed until January 27, 2015, and was not made available until January
    29, 2015. At that time, Gramercy immediately requested the Harris County
    District Clerk to supplement his record, but the Clerk was unable to complete that
    process in time to meet Gramercy’s February 2, 2015 briefing deadline. Gramercy
    cannot obtain a copy of the record until the Clerk provides this Court with a copy
    of the 80th District Court’s signed order. As such, Gramercy still does not have a
    copy of the record. Pursuant to Tex. R. App. P. 38.7, Gramercy will amend this
    brief with proper citations once it receives a copy of the record.
    1
    2000 meeting, Appellees decided to execute the tax transaction (the “Tax
    Transaction”) designed by BDO.
    II.   GRAMERCY AGREES TO SOURCE EMERGING MARKET
    ASSETS FOR APPELLEES’ TAX TRANSACTION, AND TO
    ARRANGE SEPARATE INVESTMENT FUND INVESTMENTS
    Gramercy’s role in the Tax Transaction was extremely limited and
    peripheral because it is not an accounting or tax advisory firm. Gramercy is a
    Connecticut-based asset management firm with particular expertise in emerging
    markets. CR___(Affidavit of Robert Lanava dated Sept. 18. 2014 (“Lanava Aff.”)
    ¶ 4). Gramercy’s reputation was known to BDO, which contacted Gramercy and
    requested that it source emerging market and other assets for the Tax Transaction.
    CR___(Lanava Aff. ¶ 20). Gramercy agreed to do so, but only on the explicit
    condition that Appellees acknowledge Gramercy was not opining on, or making
    representations as to, the effectiveness or legitimacy of the Tax Transaction.
    CR___(Lanava Aff. Exs. 1-2).
    Gramercy was introduced to Appellees at a November 2000 meeting in
    Texas attended by Appellees, a Gramercy representative, Jay Johnston, and certain
    BDO personnel. CR___(Affidavit of Jay Johnston dated July 18, 2014 (“Johnston
    Aff.”) ¶ 6). Mr. Johnston discussed Gramercy’s investment funds and provided a
    description of the types of assets Gramercy would source for Appellees. 
    Id. Mr. Johnston
    did not discuss the tax aspects of the Tax Transaction or speculate as to
    2
    how the IRS might view the transaction. 
    Id. Subsequent to
    the November 2000
    meeting, Appellees hired Gramercy to perform two separate tasks: (1) acquire
    certain assets as directed by BDO for use in the Tax Transaction, and (2) manage
    investments in some of Gramercy’s investment funds (the “Fund Investments”).
    CR___(Lanava Aff. ¶ 21). This action arises from the IRS’s ultimate decision to
    disallow Appellees any tax benefits from the Tax Transaction; the litigation has
    nothing to do with the Fund Investments. CR___(FAP at 39).
    After the November 2000 meeting, Gramercy performed separate and
    distinct tasks related to the two prongs of its engagement by Appellees:
     Tax Transactions: In connection with the Tax Transactions (which
    Appellees decided to engage in for the 2001-2005 tax years), Gramercy
    acquired assets with characteristics determined by BDO. CR___(Lanava
    Aff. ¶¶ 21-22). Gramercy acquired these assets from either its New York
    office (Gramercy was based in New York City from its inception through
    mid-2001) or its Connecticut office (Gramercy has been based in
    Connecticut since mid-2001). CR___(Lanava Aff. ¶¶ 25-26). Gramercy
    reported the results of these transactions to Appellees’ independent
    accountants—BDO and Financial Strategy Group, PLC (“FSG”)—who
    3
    then prepared Appellees’ tax returns.2       CR___(Lanava Aff. ¶ 30).
    Gramercy did not execute any transactions related to the Tax
    Transactions from Texas and all of the Tax Transaction trades were
    processed through investment exchanges and banks located outside of
    Texas. CR___(Lanava Aff. ¶ 22).
     Fund Investments: In connection with the Fund Investments, Gramercy
    managed Appellees’ investments; sent periodic account statements to
    Appellees and/or their advisors; and had occasional telephone calls with
    Appellees and/or their advisors. CR___(Lanava Aff. ¶¶ 21, 24). All of
    these activities, which are unrelated to the Tax Transactions underlying
    this lawsuit, were undertaken from Gramercy’s offices in New York or
    Connecticut. CR___(Lanava Aff. ¶¶ 25-26). Gramercy personnel also
    attended a limited number of meetings in Texas with Appellees and/or
    their advisors at Appellees’ request in order to update them on the
    performance of their Fund Investments or to discuss certain investment
    opportunities unrelated to the Tax Transaction. CR___(Lanava Aff. ¶ 24,
    Johnston Aff. ¶ 8).
    2
    BDO prepared Appellees’ tax returns in its Chicago, Illinois headquarters.
    CR___(Lanava Aff. ¶ 18). FSG prepared Appellees’ tax returns in its Memphis,
    Tennessee office. CR___(Lanava Aff. ¶ 30).
    4
    III.   APPELLEES ACKNOWLEDGE                  THEY     RECEIVED          NO   TAX
    ADVICE FROM GRAMERCY
    Gramercy’s performed its services for the Tax Transaction pursuant to an
    Investment Management Agreement (“IMA”). Each of the investing Appellees
    executed an IMA with Gramercy in it acknowledged in the plainest terms that
    Gramercy had not rendered any advice concerning the tax implications of the
    transactions in question:
    [Gramercy] is not required to inquire into or take into
    account the effect of any tax laws or the tax position of
    [Appellee] in connection with managing the Account. To
    the fullest extent permitted by law, neither [Gramercy],
    its members or any of their respective affiliates and
    their respective partners, members, officers, directors,
    employees, shareholders and agents shall be liable in
    any manner to [Appellee] with respect to the effect of
    any U.S. federal, state, local or any other taxes of any
    nature whatsoever on the Account of [Appellee] in
    connection with managing the Account or in
    connection with this Agreement or otherwise.
    [Appellee] agrees that [it] has consulted [its] own tax
    advisor regarding the possible tax consequences of
    establishing the Account or entering into any investment
    made under or in connection with this Agreement.
    CR___(Lanava Aff. ¶¶ 30, 32 and Ex. 1, ¶ 7(c) (emphasis added)). Each of the
    IMAs has an integration clause and a New York choice-of-law provision.
    CR___(Lanava Aff. Ex. 1, ¶¶ 14(a), 14(d)).
    Similarly, in side “Belief Letters,” each investing Appellee explicitly
    represented to Gramercy that
    5
    it has consulted with its own financial, tax and legal
    advisors with respect to the Transactions and, in
    particular, the effect of the tax laws and regulations
    and the impact of any notices or announcements issued
    by the IRS, (b) it has not relied on [Gramercy] for any
    financial, tax or legal advice with respect to the
    Transactions, and (c) it shall not have any claim against
    [Gramercy] in the event that any tax liability, problem
    or issue should arise in connection with the
    Transactions other than as a direct result of any
    negligence of [Gramercy] in effecting the investments
    pursuant to the [IMA].
    CR___(Lanava Aff. ¶¶ 30, 33 and Ex. 2 (emphasis added)).
    Additionally, each investing Appellee also executed an Interest Transfer
    Agreement containing both a New York choice-of-law provision and a forum
    selection clause in which the parties agreed to the non-exclusive jurisdiction of
    courts located in New York City. CR___(Lanava Aff. ¶ 34 and Ex. 3 § 9.5).
    IV.   THE IRS DISALLOWS              ANY     BENEFIT       FROM     THE     TAX
    TRANSACTION
    Appellees’ tax returns for the 2001-05 tax years were prepared by BDO
    and/or FSG. Gramercy had no role whatsoever in the preparation of those returns
    other than supplying limited factual information to the relevant accounting
    professional(s). CR___(Lanava Aff ¶ 30). After Appellees filed their tax returns
    for the 2001-05 tax years, the IRS audited them. CR___(FAP ¶ 253). Appellees
    claim the IRS has represented that they will be required to pay the taxes they
    6
    attempted to avoid through use of the Tax Transaction, and will also be assessed
    penalties and interest. CR___(FAP ¶ 254).
    V.            APPELLEES COMMENCE LITIGATION IN A FORUM TO WHICH
    GRAMERCY HAS VIRTUALLY NO CONNECTION
    On December 18, 2008, Appellees initiated this lawsuit in Harris County,
    Texas, seeking to make Gramercy the unwilling insurer of their inherently risky
    Tax Transaction.3 Yet Gramercy has effectively no ties to Texas. Each Gramercy
    Defendant is a limited liability company organized under the laws of the State of
    Delaware. CR___(Lanava Aff. ¶¶ 3, 4, 8; FAP ¶¶ 30-34). Prior to 2001, each
    Gramercy Defendant had its principal place of business in New York, New York.
    CR___(Lanava Aff. ¶ 3). Since 2001, each Gramercy Defendant has had its
    principal place of business in Greenwich, Connecticut. CR___(Lanava Aff. ¶ 3,
    3
    The frivolousness of claims such as those Appellees assert in this case was
    recently addressed by Judge Richard Posner of the United States Court of Appeals
    for the Seventh Circuit, who labeled similarly situated persons “tax cheats” whose
    sole aim was to avoid millions of dollars in federal income taxes. Thomas v. UBS
    AG, 
    706 F.3d 846
    , 850 (7th Cir. 2013). Judge Posner referred to the lawsuit such
    plaintiffs brought against the bank that maintained certain accounts for them
    outside the United States as a “travesty” and expressed surprise the defendant had
    not asked for the imposition of sanctions. 
    Id. at 854.
    Similarly, U.S. District Judge
    William Pauley recently referred to tax shelter litigants such as Appellees as “real
    estate tycoons, tire magnates and software developers” who refused to contribute
    to the country that “made their achievements possible,” and further criticized “the
    incredible greed of [these] super wealthy” individuals. Larson, Erik, Record $8
    Billion Tax Fraud Gets Ex-Lawyer 15 Years, Bloomberg Businessweek, June 25,
    2014, http://www.businessweek.com/news/2014-06-25/ex-lawyer- sentenced-to-
    15-years-over-8-billion-tax-fraud.
    7
    FAP ¶¶ 30-34). None of the Gramercy Defendants, nor any of their members, has
    ever resided in Texas. CR___(Lanava Aff. ¶¶ 4, 8; Johnston Aff. ¶¶ 3-4).
    Gramercy does not transact business in Texas; does not maintain licensing
    under the Texas foreign limited liability company laws to transact business here,
    see Tex. Rev. Civ. Stat. Ann. art. 1528n § 7.01; is not required to, and thus does
    not pay income or sales taxes in Texas; does not own or lease real or personal
    property in Texas; does not maintain offices, bank accounts, telephone listings,
    employees, or representatives in Texas; and does not advertise or affirmatively
    solicit business in Texas by means of “cold calling” or other similar sales tactics.
    CR___(Lanava Aff. ¶¶ 5-7, 9-12, 14; Johnston Aff. ¶¶ 4-5). Additionally, none of
    Gramercy’s employees are professionally licensed in the State of Texas. 
    Id. Gramercy operates
    a passive website which is not specifically directed to
    persons in Texas. CR___(Lanava Aff. ¶¶ 14, 16-17). Gramercy’s website merely
    provides information about Gramercy and general contact information for its
    offices, none of which are located in Texas. 
    Id. Gramercy’s website
    does not
    allow for the direct purchase of any goods or services through the website. 
    Id. Gramercy has
    had a small number of Texas-based clients, but they comprise
    a miniscule part of its business. From 2000 through 2008 (when Appellees filed
    their initial complaint), Gramercy Advisors and Gramercy Financial Services were
    the only Gramercy Appellants to have income derived from Texas clients.
    8
    Gramercy Advisors earned $150,000 from Texas-based clients in 2002 (the only
    year it received income from Texas clients), representing seven-tenths of one
    percent (.70%) of Gramercy Advisors’ income for that year. CR___(Lanava Aff. ¶
    18. Gramercy Financial Services earned $13,803 from Texas based clients in 2004
    (the only year it received income from Texas clients), representing five-
    hundredths of one percent (.05%) of Gramercy Financial Services’ income for
    that year.   
    Id. Gramercy did
    not have substantive conversations with BDO
    personnel in Texas concerning the Tax Transactions. CR___(Lanava Aff. ¶ 23).
    VI.   GRAMERCY SEEKS DISMISSAL FOR LACK OF PERSONAL
    JURISDICTION
    On May 6, 2009, Gramercy submitted a special appearance seeking
    dismissal of all claims against it for lack of personal jurisdiction. CR___(Special
    Appearance dated May 6, 2009). On November 11, 2011, Appellees filed a Fifth
    Amended Petition, which is the operative pleading for purposes of this appeal.
    CR___(FAP dated Nov. 11, 2011). Although the FAP consists of 133 pages and
    334 paragraphs and was filed after Gramercy gave notice of its intent to challenge
    personal jurisdiction, it contains only the following boilerplate allegations as to
    why jurisdiction over Gramercy is proper in Harris County, Texas:
    This Court has personal jurisdiction over [Defendant]
    pursuant to the constitution and laws of the United States
    and the State of Texas. At all relevant times, [Defendant]
    has done and is doing business in the State of Texas, but
    does not maintain a regular place of business or current
    9
    designated agent upon whom service may be made in this
    civil action. As described hereafter, [Defendant] has
    contracted with a corporation through its Texas office,
    and either party was to perform the contract in whole or
    in part in the State of Texas. Additionally, [Defendant]
    has committed torts, in whole or in part, in the State of
    Texas, including intentional tortious acts directed at a
    resident of the State of Texas where the brunt of the harm
    was felt. [Defendant’s] conduct in the State of Texas has
    been committed by officers, directors, employees, and/or
    agents of [Defendant] acting within the scope of their
    employment or agency. [Defendant] has purposefully
    availed itself of the benefits and protections of the laws
    of the State of Texas and could reasonably anticipate
    being subject to the jurisdiction of courts of the State of
    Texas. This suit against [Defendant] will not offend
    traditional notions of fair play and substantial justice and
    is consistent with due process of law. CR___(FAP ¶ 30).
    On May 30, 2014, in response to the FAP, Gramercy filed an Amended
    Special Appearance, seeking dismissal of all claims against it for lack of personal
    jurisdiction. CR___(Amended Special Appearance dated May 30, 2014). On June
    19, 2014, Appellees filed a Response to Gramercy’s Amended Special
    Appearance, conceding that the court could not exercise general jurisdiction over
    Gramercy, but nonetheless claiming it could exercise specific jurisdiction.
    CR___(Response dated June 19, 2014 at 43). Appellees’ Response sought to
    buffer the conclusory and bare-bones jurisdictional allegations in the FAP with a
    half dozen affidavits purporting to set forth jurisdictionally relevant facts.4 In
    4
    See CR___: Affidavit of David R. Deary dated June 16, 2014 (“Deary
    Aff.”); CR___: Affidavit of Russell A. Chabaud dated Feb. 28, 2014 (“Chabaud
    10
    reality, however, Appellees’ affidavits concerned jurisdictional contacts other
    Defendants, not Gramercy, had with Texas. 
    Id. On July
    22, 2014, Gramercy filed
    a Reply scrutinizing the evidence submitted by Appellees and noting that it was
    insufficient to give rise to personal jurisdiction. CR___(Reply).
    VII. THE COURT BELOW REJECTS GRAMERCY’S AMENDED
    SPECIAL APPEARANCE
    On October 17, 2014, the district court held oral argument on Gramercy’s
    Amended Special Appearance. CR___(Tr. at 5). Following that hearing, the
    district court stated that it would exercise jurisdiction. CR___(Tr. at 46). The
    district court later issued a written summary order denying Gramercy’s Amended
    Special Appearance. App. A (Order dated Oct. 17, 2014). The district court did
    not offer any explanation for its reasoning, nor any analysis of the record. On
    November 5, 2014, Gramercy filed a Request for Proposed Findings of Fact and
    Conclusions of Law. CR___. To date, the district court has not acted on that
    request, and has never explained its reasons for denying Gramercy’s Amended
    Special Appearance.5
    Aff.”); CR___: Affidavit of R.K. Lowry, Jr. dated Feb. 17, 2014 (“Lowry Aff.”);
    CR___: Affidavit of John P. Moffitt dated Feb. 10, 2014 (“Moffitt Aff.”); CR___:
    Affidavit of Todd Simmens dated May 22, 2014 (“Simmens Aff.”); and CR___:
    Affidavit of Newt Vannaman dated Feb. 18, 2014 (“Vannaman Aff.”).
    5
    On January 27, 2015, this Court reversed the district court’s denial of a
    special appearance by defendant FSG, finding its Texas contacts insufficient to
    support a finding of personal jurisdiction. See Financial Strategy Group, PLC v.
    R.K. Lowry, Jr. et al., No. 01-14-00273 (Tex. App. Houston—Jan. 27, 2015)
    (unpublished), App. B.
    11
    SUMMARY OF THE ARGUMENT
    The record below affords no basis for Texas courts to exercise personal
    jurisdiction over Gramercy in this matter. Appellees have conceded that there is
    no general jurisdiction over Gramercy, and accordingly bear the burden of showing
    that their claims arise out of activities that Gramercy engaged in within Texas.
    Appellees failed to make such a showing in the district court, and indeed cannot do
    so.
    Gramercy does not have the minimum contacts with Texas necessary to
    establish specific jurisdiction, and each and every argument that Appellees asserted
    to the contrary below is infirm. By Appellees’ own account, Gramercy attended
    just a single meeting with them prior to their decision to engage in the Tax
    Transaction, and gave no tax advice at that meeting. Following the meeting,
    Appellees signed written, integrated agreements acknowledging and promising that
    Gramercy had given them no tax advice, and that they were not relying on
    Gramercy for any such advice. Moreover, although Gramercy attended several
    meetings with Appellees after the Tax Transaction, each involved Appellees’ Fund
    Investments, which have nothing to do with this lawsuit, and in any case were held
    at Appellees’ request. These facts preclude any finding that Gramercy duped
    Appellees into engaging in the Tax Transaction, and establish that the district court
    had no basis to exercise specific jurisdiction over Gramercy.
    12
    The Appellees note that Gramercy engaged in various activities and
    communications       related    to     the        performance   of    its   contractual
    obligations.    However, all that Appellees have established is that Gramercy
    communicated with and rendered contractual performance to Texas residents from
    outside of Texas. As a matter of law, that is insufficient to support specific
    jurisdiction.    Moreover,     Appellees’     own      contractual   performance   and
    communications from Texas are irrelevant to whether Gramercy is subject to
    specific jurisdiction here. Further, Gramercy’s transmission of information to
    Appellees in Texas concerning their fund investments (as distinct from their Tax
    Transaction investments) is unrelated to Appellees’ claims, and therefore
    immaterial to specific jurisdiction. In addition, work Gramercy performed for, and
    fees it received from, Texas clients other than Appellees are wholly irrelevant to
    specific jurisdiction over Gramercy.
    Finally, given the sparseness of Gramercy’s contacts with Texas, subjecting
    it to personal jurisdiction would offend traditional notions of fair play and
    substantial justice. The district court lacks personal jurisdiction over Gramercy
    and erred in denying its Amended Special Appearance.
    13
    ARGUMENTS AND AUTHORITIES
    I.    GRAMERCY DOES NOT HAVE THE MINIMUM CONTACTS
    WITH TEXAS NECESSARY TO ESTABLISH SPECIFIC
    JURISDICTION.
    To establish specific jurisdiction over Gramercy, Appellees must show that
    it purposefully availed itself of the privilege of conducting activities within Texas,
    and that their claims resulted from injuries that are alleged to arise from or relate to
    Gramercy’s contacts with Texas.        Moki Mac River Expeditions v. Drugg 
    221 S.W.3d 569
    , 575 (Tex. 2007). The nexus between the Texas contacts and the
    operative facts of the litigation must be “substantial,” such that the defendant’s
    forum contacts “will be the focus of the trial.” 
    Id. Moreover, there
    are three
    elements to the purposeful availment inquiry: (1) only the defendant’s contacts
    with the forum are relevant, not the unilateral activity of another party or third
    person; (2) the contacts must be purposeful instead of merely fortuitous; and (3)
    through the contacts the defendant must be seeking some benefit, advantage, or
    profit. Michiana Easy Livin’ Country, Inc. v. Holten, 
    168 S.W.3d 777
    , 785 (Tex.
    2005).    “[A] nonresident may purposefully avoid a particular jurisdiction by
    structuring its transactions so as neither to profit from the forum’s laws nor be
    subject to its jurisdiction.” 
    Id. Appellees argued
    below that Gramercy had various types of contact with
    Texas that were sufficient to give rise to specific jurisdiction. Yet the district court
    made no specific finding of any connection between any of Gramercy’s alleged
    14
    Texas contacts and Appellees’ claims in the FAP. Moreover, the record is devoid
    of evidence or allegations sufficient to establish such a connection.
    A.             Gramercy’s Attendance at Meetings in Texas Does Not Give
    Rise to Jurisdiction.
    Appellees argued below that Gramercy’s attendance at various meetings in
    Texas, at which the Tax Transaction was purportedly discussed, was sufficient to
    give rise to jurisdiction. Close examination of Appellees’ own accounts of the
    meetings, however, contradicts their position.6
    1.             The Pre-Investment Meeting.
    Appellees argued below that one Gramercy representative, Jay Johnston,
    attended a single pre-investment meeting in Texas in November 2000 related to
    their Tax Transaction, thus giving rise to specific jurisdiction. Yet Appellees’ own
    account of that meeting in the record below reveals that Mr. Johnston made no
    representations about the Tax Transaction.7 Specifically, Appellees’ affidavits
    show that Paul Shanbrom of BDO led the meeting and made every single tax-
    related representation:
    6
    Any Gramercy personnel who attended meetings in Texas with Appellees or
    their representatives did so solely in their capacity as employees of Gramercy
    Advisors LLC. CR___(Lanava Aff. ¶ 24; Johnston Aff. ¶ 10). Accordingly, to the
    extent this Court finds such meetings relevant, that relevance is limited to the
    Court’s ability to assert personal jurisdiction over Defendant-Appellant Gramercy
    Advisors LLC alone.
    7
    Gramercy attended the meeting at the request of BDO and/or Appellees.
    CR___(Johnton Aff. ¶ 8).
    15
     “Shanbrom also made specific recommendations about the amount of
    money [Appellees] should invest to maximize [their] tax savings.”
    Vannaman Aff. ¶ 11; Chabaud Aff. ¶ 11; Lowry Aff. ¶ 11; Moffitt
    Aff. ¶ 10 (emphasis added).
     “Shanbrom made it clear that the distressed debt transactions
    implemented by Gramercy were intended to take advantage of
    purportedly legal tax loopholes to offset [Appellees’] anticipated tax
    liability.” Vannaman Aff. ¶ 12; Chabaud Aff. ¶ 12; Lowry Aff. ¶ 12
    (emphasis added).
     “Shanbrom led the discussion about how the tax savings were derived
    . . . .” Vannaman Aff. ¶ 11; Chabaud Aff. ¶ 11; Lowry Aff. ¶ 11;
    Moffitt Aff. ¶ 10 (emphasis added).
     “Shanbrom repeatedly told [Appellees] that the distressed debt
    transactions were legal.” Vannaman Aff. ¶ 13; Chabaud Aff. ¶ 13;
    Lowry Aff. ¶ 13; Moffitt Aff. ¶ 12 (emphasis added).
     Shanbrom said that if the IRS challenged the validity of the distressed
    debt strategy, [Appellees] would prevail.” Vannaman Aff. ¶ 13;
    Chabaud Aff. ¶ 13; Lowry Aff. ¶ 13; Moffitt Aff. ¶ 12 (emphasis
    added).
     “Shanbrom told [Appellees] that Sidley Austin, a reputable law firm,
    would issue ‘independent’ opinion letters confirming the propriety of
    the distressed debt strategy. Shanbrom touted R.J. Ruble, a partner at
    Sidley Austin, as the recognized expert on distressed debt strategies.”
    Vannaman Aff. ¶ 13; Chabaud Aff. ¶ 13; Lowry Aff. ¶ 13; Moffitt
    Aff. ¶ 12 (emphasis added).
     “According to Shanbrom, Ruble would draft the opinion letters that
    would overcome any IRS challenge and would provide absolute
    penalty protection.” Vannaman Aff. ¶ 13; Chabaud Aff. ¶ 13; Lowry
    Aff. ¶ 13; Moffitt Aff. ¶ 12 (emphasis added).
    These unequivocal, considered statements by Appellees Lowry, Chabaud,
    and Moffitt, as well as their accountant Vannaman, establish that Shanbrom alone
    16
    made any tax-related representations at the November 2000 meeting. Mr. Johnston
    is alleged merely to have “confirm[ed] the details” and “discussed how Gramercy
    made the distressed debt investment and the types of distressed debt assets
    involved.” CR___(Vannaman Aff. ¶ 11; Chabaud Aff. ¶ 11; Lowry Aff. ¶ 11;
    Moffitt Aff. ¶ 10). Appellees’ affidavits even concede that Gramercy was only
    involved in discussions concerning the amount of taxes Appellees sought to avoid
    to ensure that “Gramercy had enough distressed debt assets to meet BDO’s
    recommendations and [Appellees’] needs.”                            CR___(Vannaman Aff. ¶ 11;
    Chabaud Aff. ¶ 11; Lowry Aff. ¶ 11; Moffitt Aff. ¶ 10) (emphasis added); see also
    CR___(Johnston Aff. ¶ 6).
    To give rise to specific jurisdiction, a defendant’s contacts with the forum
    must be specifically actionable in themselves. The crux of the Fifth Amended
    Petition is that Gramercy sold Appellees faulty tax advice, yet they do not claim
    Mr. Johnston made any of the tax-related statements that form the basis for their
    claims at the November 2000 Texas meeting. Accordingly, any other statements
    Mr. Johnston did make at that meeting are irrelevant to specific jurisdiction.8 See,
    8
    Even if Gramercy’s statements at the pre-investment meeting played some
    role in Appellees’ decision to pursue the Tax Transaction, those statements are not
    substantially related to Appellees’ claims that they were sold an inherently faulty
    tax strategy, as Gramercy never made any representations regarding that strategy.
    See Farwah v. Prosperous Mar. Corp., 
    220 S.W.3d 585
    , 597 (Tex. App.—
    Beaumont 2007, no pet.) (that plaintiff’s claimed “injuries would not have
    17
    e.g., Gustafson v. Provider HealthNet Servs., Inc., 
    118 S.W.3d 479
    , 484 (Tex.
    App.—Dallas 2003, no pet.) (several Texas meetings involving defendant’s
    representative insufficient to give rise to specific jurisdiction where plaintiff did
    not allege representative “breached any duties to it or committed any torts during
    these meetings”); Marathon Oil v. A.G. Ruhrgas, 
    182 F.3d 291
    , 295 (5th Cir.
    1999) (no specific jurisdiction over non-resident defendant that attended three
    meetings in Texas relating to gas sales contract over which plaintiff sued where
    there was no evidence defendant made false statements at meetings); Moki 
    Mac, 221 S.W.3d at 585
    (in-state representations insufficient to give rise to specific
    jurisdiction unless actionable in themselves, even where generally related to the
    subject matter of the case); Turan v. Universal Plan Inv. Ltd., 
    70 F. Supp. 2d 671
    ,
    674 (E.D. La. 1999) aff’d in rel. part sub nom. 
    248 F.3d 1139
    (5th Cir. 2001)
    (“Travels to business meetings [in the forum], conversations on the telephone, and
    correspondences by mail are not sufficient to establish minimum contacts unless
    there is evidence that the plaintiffs’ claims directly arise from those specific
    activities.”); Bozell Grp., Inc. v. Carpet Co-op of Am. Ass’n, Inc., 00 CIV. 1248
    (RWS), 
    2000 WL 1523282
    , at *7 (S.D.N.Y. Oct. 11, 2000) (declining to exercise
    specific jurisdiction over defendant who attended meetings in forum with plaintiff;
    occurred ‘but for’ [defendant’s] presence in Texas” held insufficient to create
    substantial connection between wrongful conduct and forum contacts).
    18
    although meetings were related to plaintiff’s claims, court deemed them “mere
    links in the chain of events leading to the claims for which relief is sought”).9
    Crucially, even if Mr. Johnston did make tax-related statements at the
    November 26, 2000 meeting with Appellees, that still would not be sufficient to
    establish specific jurisdiction, because Appellees repeatedly acknowledged in
    writing after that meeting that (i) Gramercy had not rendered any opinion or
    advice on the tax implications of the transactions effectuated for Appellees; and (ii)
    Appellees were relying on their tax and legal advisors—not Gramercy—
    concerning the tax aspects of their investments. CR___(Lanava Aff. Ex. 1, ¶ 7(c);
    Lanava Aff. Ex. 2); see also Facts § 
    III, supra
    . Those acknowledgements were
    contained in IMAs that included integration clauses. CR___(Lanava Aff. Ex. 1, ¶
    14(a)). Those acknowledgements establish that no prior tax-related representations
    by Gramercy can give rise to their claims, and thus that they are insufficient to
    establish specific jurisdiction.                               See, e.g., Moki 
    Mac, 221 S.W.3d at 585
    9
    Moreover, because the conspiracy alleged by Appellees was, even according
    to them, formed outside of Texas and well before the November 2000 meeting,
    Mr. Johnston’s single pre-investment trip to Texas cannot give rise to specific
    jurisdiction. See Hotel Partners v. Craig, 
    993 S.W.2d 116
    , 122 (Tex. App.—
    Dallas 1994, pet. denied) (no jurisdiction over defendant attorney who visited
    Texas for meetings with plaintiffs concerning resort manager with whom he
    allegedly conspired, where allegations demonstrated that purported conspiracy
    arose and was conducted outside Texas and not purposefully directed at Texas).
    The pre-investment meeting in Texas was not even decisive in forming the parties’
    relationship, because Appellees subsequently traveled to New York to meet with
    Gramercy before deciding to invest with it. CR___(Lanava Aff. ¶ 27).
    19
    (representations insufficient to give rise to specific jurisdiction unless actionable in
    themselves, even where generally related to the subject matter of the case).
    To the extent Appellees seek to conflate BDO’s actions and statements at
    the November 26, 2000 meeting (or at any other time) with Gramercy’s on the
    grounds that they conspired together, those efforts are unavailing. Texas courts
    reject attempts to blur the jurisdictional contacts of separate defendants on the
    basis that they are engaged in a conspiracy. See Nat’l Indus. Sand Ass’n v. Gibson,
    
    897 S.W.2d 769
    , 773 (Tex. 1995) (rejecting conspiracy theory of jurisdiction); In
    re Stern, 
    321 S.W.3d 828
    , 841 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
    (personal jurisdiction inquiry limited to whether “the defendant itself purposefully
    established minimum contacts such as would satisfy due process”); Asshauer v.
    Farallon Capital Partners, L.P., 
    319 S.W.3d 1
    , 17 (Tex. App.—Dallas 2008, no
    pet.) (“the supreme court has declined to recognize the assertion of personal
    jurisdiction over a nonresident defendant based solely on the effects or
    consequences of an alleged conspiracy [even] with a resident of the forum state”)
    (citations omitted). Accordingly, the only question before this Court is whether
    Gramercy itself has sufficient contacts with Texas to be subject to jurisdiction, not
    whether any other Defendant below had such contacts, regardless of any alleged
    “conspiracy.”
    20
    2.    The Post-Investment Meetings.
    Appellees also argued below that Gramercy attended several post-
    investment meetings in Texas, and that those were sufficient to give rise to specific
    jurisdiction. The meetings at issue, however, were held for the sole purpose of
    updating them on their separate Fund Investments with Gramercy.
    CR___(Johnston Aff. ¶ 8). The meetings thus have nothing to do with this case,
    and cannot form the basis for specific jurisdiction. See, e.g., Turan v. Universal
    Plan Investments Ltd., No. 99-31379, 
    2001 WL 85902
    , at *2 (5th Cir. Jan. 24,
    2001) (“Business meetings in the forum state and related communications … are
    not sufficient to establish the requisite ‘minimum contacts’ unless Appellants’
    claims arose from those activities”); Lang v. Capital Res. Investments, I, LLC, 
    102 S.W.3d 861
    , 866 (Tex. App.—Dallas 2003, no pet.) (meeting with defendant in
    Texas to discuss business plan did not confer specific jurisdiction where plaintiff’s
    claims concerned defendant’s mismanagement of company, not business plan or
    any statements made by defendant at meeting).
    The meetings were also requested by Appellees, not Gramercy, and are
    insufficient to give rise to specific jurisdiction for that reason as well. Magnolia
    Gas Co. v. Knight Equip. & Mfg. Corp., 
    994 S.W.2d 684
    , 688, 691 (Tex. App.—
    San Antonio 1998) (defendants’ travel to Texas for meetings they did not instigate
    21
    insufficient to give rise to specific jurisdiction), abrogated on other grounds, BMC
    Software Belgium, N.V. v. Marchand, 
    83 S.W.3d 789
    (Tex. 2002).
    B.     Gramercy’s Contractual Performance              Outside    Texas
    Cannot Establish Personal Jurisdiction.
    Appellees argued below that Gramercy is subject to personal jurisdiction
    because it entered into contracts with Texas residents. As a matter of law, such
    contacts are irrelevant.   A non-resident’s out-of-state contractual performance
    pursuant to a contract entered into with Texas residents does not subject the out-of-
    state defendant to personal jurisdiction. See IRA Resources, Inc. v. Griego, 
    221 S.W.3d 592
    , 595 (Tex. 2007) (reversing denial of special appearance by California
    investment advisor who performed work for Texas residents from its California
    office); Proskauer Rose LLP v. Pelican Trading, Inc., 14-08-00283-CV, 
    2009 WL 242993
    , at *5 (Tex. App.—Houston [14th Dist.] Feb. 3, 2009, no pet.) (New York
    law firm not subject to personal jurisdiction where law firm drafted opinion letter
    for Texas tax shelter client because preparation of letter was done in New York,
    not Texas); Markette v. X-Ray X-Press Corp., 
    240 S.W.3d 464
    , 468 (Tex. App.—
    Houston [14th Dist.] 2007, no pet.) (affirming special appearance of Indiana law
    firm where advisory work allegedly giving rise to lawsuit was performed in
    Indiana, not Texas, despite communication of results of work to plaintiffs in
    Texas).      Gramercy performed its contractual obligations outside of Texas, and
    22
    therefore its performance cannot form a basis for personal jurisdiction.10
    CR___(Lanava Aff. ¶¶ 25, 26).
    Appellees’ argument to the district court that Gramercy is subject to personal
    jurisdiction because the relevant contracts contemplated a long-term agreement
    between the parties is likewise without merit.                                       Appellees executed new
    transactional documents with Gramercy for each tax year in which they pursued
    their BDO-designed tax strategy. See, e.g., CR___(Vannaman Aff. Exs. 3, 5-10,
    14-19, 20-24, 42, 47, 54-59, 62-79; Simmens Aff. Exs. 12-14, 18-20). That fact
    utterly belies their argument that the parties intended to enter into a long-term
    agreement.11 In any event, even a long-term agreement is insufficient to give rise
    to specific jurisdiction where, as here, the defendant’s forum contacts were not
    actionable in themselves.                                      Marathon Oil v. A.G. 
    Ruhrgas, 182 F.3d at 295
    (requiring specifically actionable misconduct to exercise specific jurisdiction);
    Moki 
    Mac, 221 S.W.3d at 585
    (same).
    10
    Moreover, Gramercy executed the contracts at issue in New York or
    Connecticut. CR___(Lanava Aff. ¶¶ 32, 34-35). And all transactions executed by
    Gramercy concerning the Tax Transaction were executed from New York or
    Connecticut and processed through exchanges in New York or overseas.
    CR___(Lanava Aff. ¶¶ 22, 26). Gramercy did not execute a single trade or
    transaction with regard to the Tax Transaction from Texas or that was processed or
    cleared through Texas. 
    Id. 11 Moreover,
    Gramercy executed the transactions Appellees requested to
    implement their tax strategy in a short period of time near the end of each calendar
    year. CR___(Lanava Aff. ¶ 22).
    23
    C.     Appellees’ Performance Of Contractual Obligations In
    Texas Cannot Give Rise to Jurisdiction Over Gramercy.
    Appellees argued that their performance under their contracts with
    Gramercy—which amounted to wiring money from Texas to accounts in New
    York and elsewhere—is sufficient to give rise to specific jurisdiction. That is
    incorrect; only Gramercy’s contacts with Texas are relevant to a determination of
    whether it is subject to personal jurisdiction. See Walden v. Fiore, 
    134 S. Ct. 1115
    , 1125-26 (2014) (contacts relevant to jurisdictional analysis are those
    between defendant and forum state, not those that may exist between plaintiff and
    forum state); KC Smash 01, LLC v. Gerdes, Hendrichson, Ltd., L.L.P., 
    384 S.W.3d 389
    , 394 (Tex. App.—Dallas 2012, no pet.) (plaintiffs’ performance in
    Texas cannot be considered factor in determining whether defendant subject to
    personal jurisdiction); 
    Griego, 221 S.W.3d at 597
    (accepting money from Texas
    resident to open financial account insufficient to confer jurisdiction). That certain
    agreements were signed by Appellees in Texas is also jurisdictionally irrelevant.
    See Bryan v. Gordon, 
    384 S.W.3d 908
    , 917 (Tex. App.—Houston [14th Dist.]
    2012, no pet.) (“disposition of the jurisdictional question should not turn on”
    where a plaintiff signed a contract).
    24
    D.    Gramercy’s Activities Concerning Appellees’ Tax Strategy
    And Fund Investments Cannot Give Rise To Specific
    Jurisdiction.
    1.    Gramercy’s Ministerial Execution of Transactions
    Necessary To Effectuate The Tax Transactions,
    And Its Management Of Entities Involved In The
    Tax Transactions, Do Not Give Rise To Specific
    Jurisdiction.
    Appellees argued below that Gramercy’s execution of transactions pursuant
    to certain Subscription Agreements gives rise to jurisdiction. This argument is
    without merit. The Subscription Agreements, see, e.g., CR___(Vannaman Exs. 14-
    19), facilitated the transfer of assets as part of Appellees’ Tax Transaction.
    CR___(Lanava Aff. ¶ 35).      Yet the agreements and related transactions had
    nothing to do with Texas. Pursuant to the agreements, assets were moved from
    one New York investment account to another New York investment account.
    CR___(Vannaman Exs. 14-19 at Appendix A). The Subscription Agreements also
    arranged for funds to be wired through a bank account outside of Texas for the
    benefit of the New York investment accounts. CR___(Vannaman Exs. 14-19 at
    Appendix A, at 2-3). The Subscription Agreements were sent to Gramercy’s New
    York City office, where Gramercy’s performance pursuant to the agreements took
    place. (Vannaman Exs. 14-19 at Appendix A, at 2; Lanava Aff. ¶¶ 25, 35). The
    Subscription Agreements therefore fail to provide a basis for the exercise of
    jurisdiction over Gramercy in Texas. See, e.g., 
    Markette, 240 S.W.3d at 468
    (out-
    25
    of-state contractual performance insufficient to establish personal jurisdiction,
    despite communication of results of work to plaintiffs in Texas).
    Appellees argued that Gramercy played a role in various limited liability
    companies that implemented the Tax Transaction, thus giving rise to specific
    jurisdiction. That argument is baseless. First, Appellees alleged that Gramercy
    played a role in managing four of the entities that implemented the Tax
    Transaction (LMC, MPICS, RDICTD, and SGASSI). Even taking that allegation
    as true, all four companies were formed in Delaware, not Texas.12 Similarly,
    Appellees argued that Gramercy held a 10% interest in several entities involved in
    the Tax Transaction (STKEE, DSAMP, and WAINKR). Yet those were Delaware
    limited liability companies.13 Accordingly, Gramercy’s involvement with these
    entities is irrelevant to the jurisdictional analysis.
    12
    See CR___(Simmons Aff. Ex. 2 at BDO Lowry Court 0000399 (LMC a
    “Delaware limited liability company”); Simmons Aff. Ex. 22 at BDO Lowry Court
    0004662 (MPICS a “Delaware limited liability company”); Simmons Aff. Ex. 24
    at BDO Lowry Court 0004811 (SGASSI a “Delaware limited liability company”);
    Simmons Aff. Ex. 26 at BDO Lowry Court 0005002 (RDICTD a “Delaware
    limited liability company”)).
    13
    See CR___(Vannaman Aff. Ex. 68 at VANN0007253 (STKEE a “Delaware
    limited liability company); Vannaman Aff. Ex. 69 at VANN0007592 (DSAMP a
    “Delaware limited liability company); Vannaman Aff. Ex. 70 at VANN0007910
    (WAINKR a “Delaware limited liability company)).
    26
    2.             Preparation Of Appellants’ Tax Returns Is
    Irrelevant To Personal Jurisdiction Over
    Gramercy.
    Appellees argued that Gramercy’s purported role in preparing tax returns
    reflecting their tax strategy is sufficient to give rise to specific jurisdiction. In fact,
    the record evidence was undisputed that BDO prepared the tax returns reflecting
    Appellees tax strategy for 2000 and 2001, while FSG prepared them for 2002
    through 2004).14 Gramercy did not prepare the returns. CR___(Lanava Aff. ¶ 30).
    Gramercy’s only role with regard to the preparation of Appellees’ taxes was to
    transmit raw financial information to either BDO’s New York office or to FSG’s
    Memphis, Tennessee office. CR___(Lanava Aff. ¶ 30). The information provided
    by Gramercy reflected the results of Gramercy’s ministerial execution of
    transactions from either New York or Connecticut and with counterparties in New
    York. 
    Id. As a
    matter of law, Appellees’ allegations are insufficient to give rise to
    specific jurisdiction. Any work performed by Gramercy (or indeed, BDO and
    FSG) on the tax returns was performed outside of Texas, thus rendering it
    irrelevant to the personal jurisdiction analysis. See 
    Markette, 240 S.W.3d at 468
    14
    See, e.g., CR___(Vannaman Exs. 28 at VANN0003025 (2000 return
    prepared by BDO); 44 at VANN0003107 (2001 return prepared by BDO); 45 at
    VANN0003414 (2002 return prepared by FSG); 51 at VANN0003595 (2003 return
    prepared by FSG); 80 at GA0328286 (2004 tax return prepared by FSG); 81 at
    GA0328307 (2004 tax return prepared by FSG); and 82 at GA0328328 (2004 tax
    return prepared by FSG)).
    27
    (affirming special appearance of Indiana law firm where advisory work allegedly
    giving rise to lawsuit was performed in Indiana, not Texas, despite communication
    of results of plaintiffs in Texas). Further, Appellees’ claims arise from the content
    of the returns (for which BDO and FSG are responsible), not their delivery, see
    CR___(FAP ¶¶ 40-41), and Gramercy’s transmission of any returns to Texas is
    accordingly irrelevant. See 
    Griego, 221 S.W.3d at 598
    (IRA administrator’s acts
    of “accepting payment for opening [an] account, and sending [forum plaintiff]
    periodic account statements … are too inconsequential to support a claim that it
    purposefully directed its activities” at Texas); Johnson v. Pounds, 11-07-00073-
    CV, 
    2008 WL 3845450
    , at *5 (Tex. App.—Eastland, Aug. 14, 2008, pet. denied)
    (affirming special appearance where plaintiff failed to establish that causes of
    action arose from defendants’ contacts with Texas). And as noted, Appellees
    specifically disclaimed reliance on any tax-related statements Gramercy could have
    made, rendering them irrelevant to Appellees’ claims against Gramercy, and to
    specific jurisdiction. See § 
    I-A, supra
    .
    3.    The Gramercy Defendants Earned No Fees From
    Appellees, And Their Earnings From Other Texas
    Residents Are Jurisdictionally Irrelevant.
    Appellees contended that Gramercy earned millions of dollars in fees from
    implementing the Tax Transaction, thus giving rise to personal jurisdiction. That
    argument is flat wrong. None of the Gramercy entities that are parties to this case
    28
    received income from the Appellees.15 CR___(Lanava Aff. ¶ 18). And even if
    they had, that would be insufficient to establish jurisdiction. 
    Griego, 221 S.W.3d at 597
    (accepting money from Texas resident to open financial account insufficient
    to confer jurisdiction over out-of-state defendant).
    Further, with respect to Gramercy’s earnings from Texas residents
    unconnected to this case, Plaintiffs have conceded the issue of general jurisdiction,
    so any such earnings are irrelevant.16 See generally Marathon 
    Oil, 182 F.3d at 295
    15
    Appellees paid any fees relating to the Tax Transaction to Gramercy
    Financial Products LLC (“GFP”), not to any of the Gramercy Defendants.
    CR___(Simmens Aff. re: Payments Ex. 1). GFP is a separate entity from any of
    the Defendants and it is not a party to the lawsuit. CR___(Lanava Aff. ¶ 19). Any
    payments received by GFP are therefore immaterial in determining whether any of
    the Gramercy Defendants are subject to personal jurisdiction. See Cornerstone
    Healthcare Group Holding, Inc. v. Reliant Splitter, L.P., 05-11-01730-CV, 
    2014 WL 2538881
    , at *3-4 (Tex. App—Dallas Jun. 5, 2014) (granting special
    appearance of corporate entity where entity in question did not have
    jurisdictionally relevant ties to Texas, despite ties of subsidiary).
    16
    In any case, two of the Gramercy defendants (Gramercy Asset Management
    and Gramercy Local Markets Recovery Fund) received no income from any Texas
    clients during the relevant time period. CR___(Lanava Aff. ¶ 18). The two
    Gramercy Defendants that did receive income from Texas clients—Gramercy
    Advisors and Gramercy Financial Services—received very small amounts and
    percentages of their income from any Texas clients (let alone Appellees).
    Gramercy Advisors earned $150,000 from Texas based clients in 2002 (the only
    year from 2000-2008 in which it received income from Texas clients), representing
    seven-tenths of one percent (.70%) of Gramercy Advisors’ income for that year.
    
    Id. Gramercy Financial
    Services earned $13,803 in 2004 (the only year between
    2000 and 2008 it received income from Texas clients), representing five-
    hundredths of one percent (.05%) of Gramercy Financial Services’ income for that
    year.
    29
    (requiring specifically actionable misconduct to exercise specific jurisdiction);
    Moki 
    Mac, 221 S.W.3d at 585
    (same).
    4.      Gramercy’s Transmission of Account Statements
    To Appellees Does Not Support A Finding of
    Specific Jurisdiction.
    Appellees asserted that Gramercy’s transmission of account statements into
    Texas supports a finding of specific jurisdiction. The account statements at issue,
    however, solely concerned Appellees’ Fund Investments, not their Tax
    Transaction.        See, e.g. CR___(Vannaman Aff. ¶ 54 (stating that “these email
    ‘flash’ previews of investment returns related to the non-tax reducing
    investments”) (emphasis added)).        Because this information concerned Fund
    Investments wholly separate from the Tax Transaction that is the basis of
    Appellees’ complaint, it is irrelevant to determining whether Gramercy is subject
    to specific jurisdiction. See, e.g., Moki 
    Mac, 221 S.W.3d at 569
    (no specific
    jurisdiction where subject of meetings distinct from issues in litigation); Marathon
    
    Oil, 182 F.3d at 295
    (same).
    Moreover, even if the account statements at issue were relevant to
    Appellees’ claims (which they are not), mere communication with a Texas resident
    does not subject a nonresident defendant to jurisdiction.         Olympia Capital
    Associates L.P. v. Jackson, 
    247 S.W.3d 399
    , 418 (Tex. App.—Dallas 2008, no
    pet.) (nonresident defendants’ transmission of investment statements and other
    30
    contract-related communications to Texas plaintiff “insufficient to establish the
    minimum contacts necessary to support the exercise of specific personal
    jurisdiction”).
    Appellees also contended below that Gramercy’s maintenance of a website
    containing certain Fund Investment account information is sufficient to give rise to
    specific jurisdiction. In fact, the website merely contained information identical to
    records Gramercy had already been providing to Appellees via mail and/or e-mail,
    viewable on a password-protected basis.           CR___(Lanava Aff., ¶¶ 16-17).
    Appellees could take no action via the website. 
    Id. These facts
    rendered the
    website “passive” in nature and irrelevant to the jurisdictional analysis. Riverside
    Exports, Inc. v. B.R. Crane & Equip., LLC, 
    362 S.W.3d 649
    , 655 (Tex. App.—
    Houston [14th Dist.] 2011, pet. denied) (“Absent evidence that a business intends
    to serve the Texas market, a website that is merely informational, presenting only
    ‘passive advertising,’ generally will not support the exercise of personal
    jurisdiction.”); Washington DC Party Shuttle, LLC v. IGuide Tours, 
    406 S.W.3d 723
    , 737 (Tex. App.—Houston [14th Dist.] 2013), review denied (Aug. 22, 2014)
    (passive website is one “in which the foreign defendant has simply posted
    information on a website that can be viewed in other jurisdictions” and noting such
    websites do not support the exercise of personal jurisdiction.”) (citation omitted).
    31
    5.     Gramercy’s Limited Communications                with
    Appellees Do Not Give Rise to Jurisdiction.
    Finally, Appellees contended before the district court that Gramercy is
    subject to jurisdiction because it communicated consistently with them and their
    representatives in Texas about various matters relating to the Tax Transactions.
    See, e.g., CR___(Vannaman Aff. ¶¶ 20-21, 23-24, 26-29, 31-39, 41-47, 49-51). As
    a general matter, Appellees’ jurisdictional arguments concerning Gramercy’s
    purported role in preparing their tax returns, attendance at meetings in Texas, and
    performing under the parties’ agreements are without merit for reasons addressed
    in §§ I-A, I-B, and 
    I-D, supra
    . Beyond that, the communications Appellees allege
    are insufficient to confer jurisdiction because they are limited to the following:
     Gramercy sent two faxes to Texas, one concerning an interest
    purchase agreement and another transmitting a tax return extension.
    CR___(Vannaman Aff. ¶¶ 32, 39).
     Gramercy sent ten emails to Texas containing draft transaction
    documents and the routine management of various out-of-state
    companies. CR___(Vannaman Aff. ¶¶ 43, 45, 50).
     Gramercy participated in two phone calls with Appellees’ advisor
    concerning transactions implementing their tax strategy.
    CR___(Vannaman Aff. ¶ 32).
    In sum, Appellees point only to two faxes, ten emails, and two phone calls in
    five years to support their “consistent communications” argument, and even those
    limited communications concerned work performed by Gramercy (or others)
    32
    outside of Texas.17 Such communications do not give rise to jurisdiction. See KC
    
    Smash, 384 S.W.3d at 393
    (nonresident defendant’s “telephone and email
    communications and the sending of payments to [forum resident] do not
    “constitute a contact demonstrating purposeful availment”); Olympia Capital
    Associates, 
    L.P. 247 S.W.3d at 418
    (“[E]ngaging in communications related to the
    execution and performance of [a] contract [between nonresident defendant and
    forum resident] are insufficient to establish the minimum contacts necessary to
    support the exercise of specific personal jurisdiction over the nonresident
    defendant.”); Proskauer, 
    2009 WL 242993
    , at *4 (mailing documents to Texas
    client and email exchanges with Texas client insufficient to give rise to
    jurisdiction).
    E.             Gramercy’s Work on Behalf of Other Texas Clients is
    Irrelevant.
    Appellees argued that Gramercy’s involvement with other Texas clients
    confers jurisdiction, but that argument is unavailing. As noted above, Appellees do
    not allege that Gramercy is subject to general jurisdiction. See Facts § 
    VI, supra
    .
    17
    Appellees also alleged vaguely that their accountant, Vannaman, received
    “hundreds of mailings from Gramercy.” CR___(Vannaman Aff. ¶ 46). To the
    extent such mailings have not been included in the record, this assertion is
    conclusory and meaningless. Beyond that, it is impossible to determine whether
    the subject matter of the purported communications relates in any way to
    Appellees’ claims such that the district court can exercise specific jurisdiction over
    Gramercy. Indeed, by Vannaman’s own admission, many of the purported
    mailings concerned Appellees’ Fund Investments (which are concededly not at
    issue in this case).
    33
    Accordingly, the only contacts between Gramercy and Texas potentially relevant
    to resolution of Gramercy’s Special Appearance are those that relate to the instant
    lawsuit. See Grand Aerie Fraternal Order of Eagles v. Haygood, 
    402 S.W.3d 766
    ,
    774 (Tex. App.—Eastland 2013, no pet.) (holding defendant not subject to specific
    jurisdiction and stating that “[i]n a specific jurisdiction analysis, the relevant facts
    concern the relationship between the nonresident defendant and the forum that are
    connected to the lawsuit.”); McElroy Machine & Mfg. Co., Inc. v. Flores, 13-08-
    00528-CV, 
    2010 WL 466901
    , at *4 (Tex. App.—Corpus Christi Feb. 11, 2010, no
    pet.) (specific jurisdiction lacking where defendants’ contacts with the forum state
    not connected to operative facts of the litigation). The Fifth Amended Petition
    contains no allegations that Gramercy’s work for Texas investors unrelated to
    Appellees somehow gave rise to Appellees’ causes of action, and accordingly any
    such work is irrelevant.
    II.   THE EXERCISE OF JURISDICTION OVER GRAMERCY WOULD
    BE INCONSISTENT WITH DUE PROCESS.
    Exercising personal jurisdiction over Gramercy would offend traditional
    notions of fair play and substantial justice and would be inconsistent with the
    constitutional requirements of due process. The following five factors should be
    considered in evaluating whether the exercise of personal jurisdiction over
    Gramercy would comport with due process: (1) the burden on Gramercy; (2) the
    interest of Texas in adjudicating this dispute; (3) Appellees’ interest in obtaining
    34
    convenient and effective relief; (4) the interstate judicial system’s interest in
    obtaining the most efficient resolution of controversies, and (5) the shared interest
    of the several states in furthering the fundamental social policies. See Guardian
    Royal Exch. Assurance Ltd. v. English China Clays, P.L.C., 
    815 S.W.2d 223
    , 231
    (Tex. 1991).
    The Guardian factors point towards dismissal of this action against
    Gramercy. Gramercy has no business presence in Texas and is headquartered in
    Connecticut. CR___(Lanava Aff. ¶¶ 3, 7). Forcing Gramercy to litigate in Texas
    would obviously burden it. Gramercy’s operations are and have been based in the
    Northeast where its employees reside and where all of its files are kept.
    CR___(Lanava Aff. ¶ 6).       Moreover, while some Appellees reside in Texas,
    Gramercy could not have been expected to believe that work it performed in New
    York or Connecticut would somehow subject it to personal jurisdiction in Texas.
    The first Guardian factor therefore weighs in favor of dismissal.
    The third factor is virtually irrelevant because approximately half of the
    Appellees are Delaware entities. CR___(FAP at 4-5) (stating that Appellees L-
    Falling Creek LLC, R-RAC Wimbledon LLC, J-Jason LLC, R-Russell Wimbledon
    LLC, R-Ashley Wimbledon LLC, R-Audrey Wimbledon LLC, and LMC Recovery
    Fund LLC are Delaware entities). And none of Appellants are present in Texas.
    35
    The second and fourth factors also do not warrant the exercise of
    jurisdiction. As described above, Appellees’ claims against Gramercy are focused
    on Gramercy’s work in New York or Connecticut. Additionally, the contracts at
    issue have New York choice of law clauses. Accordingly, not only does New
    York have a greater interest than Texas in adjudicating this dispute as the location
    of the alleged wrongful conduct, but also New York courts are better situated to
    apply New York law. A New York forum would therefore better serve the interest
    of providing the most efficient resolution of the instant dispute.
    As this is a commercial dispute between sophisticated parties, the fifth factor
    is not implicated. Thus, the first, second, and fourth factors weigh in favor of
    dismissal while the third and fifth factors are neutral, establishing that the exercise
    of personal jurisdiction over Gramercy would be inconsistent with due process.
    See, e.g., Kaufman et al. v. BDO Seidman L.L.P. et al., No. 12 L 13292, Illinois
    Circuit Court, Cook County, Opinion dated Nov. 26, 2014 (unpublished), App. D
    at 7 (finding exercise of personal jurisdiction over Gramercy would offend
    traditional notions of fair play and substantial justice on facts similar to those
    present here); Coe et al. v. BDO Seidman, L.L.P., et al., No. 12 L 13691, Illinois
    Circuit Court, Cook County, Opinion dated Nov. 26, 2014 (unpublished), App. C
    at 7 (same).
    36
    PRAYER
    For the foregoing reasons, Gramercy respectfully requests that the trial
    court’s order denying Gramercy’s Amended Special Appearance be reversed, and
    that this Court grant such other and further relief as it deems just and proper.
    Dated:       February 2, 2015
    Respectfully submitted,
    MUNSCH HARDT KOPF & HARR, P.C.
    By:__/s/ David C. Mattka______________
    David C. Mattka (TSB No. 13231500)
    MUNSCH HARDT KOPF & HARR, P.C.
    401 Congress Avenue, Suite 3050
    Austin, Texas 78701
    (512) 391-6100 (telephone)
    (512) 391-6149 (facsimile)
    Email: dmattka@munsch.com
    Lead Counsel for Defendants-Appellants
    Additional Counsel:
    Sean F. O’Shea (pro hac vice)
    Michael E. Petrella (pro hac vice)
    Daniel M. Hibshoosh (pro hac vice)
    O’Shea Partners LLP
    521 Fifth Avenue, 25th Floor
    New York, New York 10175
    (212) 682-4426 (telephone)
    (212) 682-4437 (facsimile)
    Email: soshea@osheapartners.com
    Email: mpetrella@osheapartners.com
    Email: dhibshoosh@osheapartners.com
    37
    CERTIFICATE OF COMPLIANCE
    Pmsuant to Texas Rule of Appellate Procedure 9.4, I certify that the
    foregoing brief of Defendants-Appellants was prepared using Microsoft Word and,
    according to the reckoning of that software program, contains 8,6 13 words.
    Daniel M. Hibshoosh (pro hac vice)
    38
    CERTIFICATE OF SERVICE
    As required by Texas rule of Appellate Procedure 6.3 and 9.5, I hereby
    certify that on February 2, 2015, I served this document via e-filing and e-mail on
    the following:
    W. Ralph Canada, Jr.
    ralphc@lfdlaw.com
    David R. Deary
    davidd@lfdlaw.com
    Wilson Wray
    wilsonw@lfdlaw.com
    Tyler Simpson
    tylers@lfdlaw.com
    Loewinsohn Flegel Deary, LLP
    12377 Merit Drive, Suite 900
    Dallas, Texas 75251
    Attorneys for Appellees
    /s/ David C. Mattka
    David C. Mattka