United States District Court, D. Massachusetts
SNÖFROST AB, AS THE WHOLLY OWNED SUBSIDIARY OF HOCH PARTNERS PRIVATE EQUITY INVESTORS, Plaintiff,
SUSANNE HÅKANSSON Defendant.
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
relevant dimensions of this case, except the residence of the
defendant, are grounded outside Massachusetts, indeed outside
the United States. Yet, the plaintiff, Snöfrost AB, a
Swedish company, filed the complaint in this action in this
court to enforce an alleged agreement negotiated in Sweden to
buy shares in a Swedish company.
curious inversion of the reflexive effort by most parties to
obtain some perceived, if illusory, “home court”
advantage, the defendant, Susanne Håkansson (the only
party with Massachusetts contacts) has moved to dismiss the
complaint on grounds of forum non conveniens. Ms.
Håkansson argues that Snöfrost's claim should
be addressed not by this court in Massachusetts, but by the
Malmö District Court in the Kingdom of Sweden. For its
part, the Swedish party, Snöfrost, opposes change of
venue to Sweden, and says it wants to litigate in
Massachusetts, despite its contention that the parties agreed
to a Swedish forum for arbitration.
from the parties' anomalous positions regarding preferred
forum, I will grant Ms. Håkansson's motion to
dismiss on grounds of forum non conveniens, leaving
pursuit of this dispute to Swedish legal process.
genesis of this case is the death of Ms.
Håkansson's father, Bo Håkansson, a prominent
Swedish businessman. At the time of his death, Mr.
Håkansson owned, among other business holdings, all the
shares of Farstorps Gard AB (“FGAB”).
her father's passing, Ms. Håkansson, a United
States citizen, followed advice from various professional
advisors and pursued a strategy to minimize the tax burden
associated with the sale of the FGAB shares. This strategy
involved several steps: first, the liquidation of the real
estate assets of FGAB; second, assignment by Mr.
Håkansson's other heirs of inherited FGAB shares to
Ms. Håkansson resulting in her becoming the sole
shareholder; and third, sale of the FGAB shares by Ms.
Håkansson as an American resident, taking advantage of
the step-up basis approach under the United States tax
acquiring all of the FGAB shares on or about December 20,
2017, Ms. Håkansson and her representatives - in
particular her chief advisor Mr. Thomas Sträng, a
Swedish tax consultant - sought potential buyers for the
potential buyer was Jean-Daniel Cohen, described in the
complaint as “an overseas financial investor, ”
represented by a Dutch tax consultant, Harry Rietveld.
Beginning in January 2018, Ms. Håkansson's
representatives entered into exclusive negotiations with Mr.
preliminary discussions, the parties held an in-person
meeting on January 15, 2018, in Malmö, Sweden. On behalf
of Ms. Håkansson, Mr. Sträng and Par Toms (another
Swedish tax consultant) attended the meeting. On the other
side of the negotiation table were Mr. Cohen and Mr.
Rietveld. At this meeting, Mr. Sträng circulated a
written share purchase agreement (“SPA”), drafted
by Ms. Håkansson's retained counsel. Notably, the
SPA contained both a choice of law clause stating that the
agreement “shall be governed by and construed in
accordance with the laws of Sweden without regard to its
principles of conflict of law” and an arbitration
Any dispute, controversy or claim arising out of or in
connection with this Agreement, or the breach, termination or
invalidity thereof, shall be finally settled by arbitration
administered by the Arbitration Institute of the Stockholm
Chamber of Commerce (the “SCC”). The Rules for
Expedited Arbitrations shall apply, unless the SCC in its
discretion determines, taking into account the complexity of
the case, the amount in dispute and other circumstances, that
the Arbitration Rules shall apply. In the latter case, the
SCC shall also decide whether the Arbitral Tribunal shall be
composed of one or three arbitrators.
January 15, 2018 meeting, the parties discussed various
terms, including: the purchase price; balance sheet
guarantees; a target closing date; and that a special purpose
company would be formed by Mr. Cohen within the Hoch Partners
Privates Private Equity Investors group to purchase the
shares. That special purpose company became the plaintiff in
this matter, Snöfrost. Ms. Håkansson's
counsel, Johan Jacobsson, was given the task of refining the
SPA to reflect the agreements reached at the meeting.
the January 15, 2018 meeting, Snöfrost readied itself
for closing; in doing so, it paid particular attention to
ensuring that the financial terms of the sale would not
violate Swedish banking laws. The parties anticipated a
closing date of February 16, 2018.
days prior to February 16, 2018, the parties communicated,
and Mr. Sträng, on behalf of Ms. Håkansson,
expressed concerns that a review of the transaction was still
being conducted by Ms. Håkansson's banking
institution. Snöfrost forwarded confirmation of funding
from its financial institution and caused loan documents to
be sent to Ms. Håkansson. Snöfrost's loan was
funded on February 14, 2018.
February 14, Mr. Sträng called Mr. Toms and told him
that Ms. Håkansson had chosen not to complete the sale.
Later that day, Ms. Håkansson's counsel
communicated the same message to Snöfrost's counsel.
subsequent letter, Ms. Håkansson raised financing
issues, alleging that these issues would not allow Ms.
Håkansson to proceed with the sale on February 16,
2018. Asserting uncertainties regarding the legality of the
financing of the transaction under Swedish banking law and
the uncertainty of the outcome of the Bank's review, the
letter formally communicated Ms. Håkansson's
decision to withdraw.
doctrine of forum non conveniens permits a court
with jurisdiction (and where venue is proper) to decline to
hear the case and decide the action should be addressed in
another forum, based on the convenience of the parties and
the court, and the interests of justice. See generally
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
Congress has enacted a statute, 28 U.S.C. § 1404(a),
permitting federal courts to transfer venue between
themselves for “the convenience of the parties and the
witness, ” there is no such statutory mechanism for
federal courts to transfer cases to foreign courts. Instead,
the doctrine of forum non conveniens is used to
bring “about an international transfer of a case . . .
where plaintiffs may bring approximately the same action in
the foreign forum, but without the unfairness and
inconvenience that trying the case in this country would
entail.” Howe v. Goldcorp Investments, Ltd.,
946 F.2d 944, 948 (1st Cir. 1991).
court's forum non conveniens analysis begins
with a presumption against the invocation of the
doctrine. This is because “there is a strong
presumption in favor of a plaintiff's forum
choice.” Nowak v. Tak How Invs., Ltd., 94 F.3d
708, 719 (1st Cir. 1996). However, a foreign plaintiff's
choice of forum “deserves less deference.”
Piper Aircraft Co., 454 U.S. at 255-56 (“[A]
plaintiff's choice of forum is entitled to greater
deference when the plaintiff has chosen the home forum. When
the home forum has been chosen, it is reasonable to assume
that this choice is convenient. When the plaintiff is
foreign, however, this assumption is much less
reasonable.”) (internal citations omitted). Because
Snöfrost is a foreign entity, I start with the
presumption that its choice of forum is afforded diminished
litigate this case in Sweden, Ms. Håkansson must clear
two hurdles. First, she must prove that there exists an
available and adequate alternative forum. Piper Aircraft
Co., 454 U.S. at 255 n.22 (1981). Second, she
“must show that the compendium of factors relevant to
the private and public interests implicated by the case