MEMORANDUM OPINION AND ORDER The plaintiff, Imran Siddiqui, is a former director of the defendant, Athene Holding Ltd., and a former partner at Apollo Management Holdings, L.P. He seeks an order enjoining and declaring invalid a pending suit the defendant has brought against him in Bermuda.1 The plaintiff claims that the Bermuda suit must be adjudicated by a New York court pursuant to the forum selection clause contained in a contract between Apollo and Athene, to which the plaintiff is an alleged beneficiary.The defendant moves to dismiss the plaintiff’s suit under Federal Rule of Civil Procedure 12 (b) (6) for failure to state a claim upon which relief can be granted. The defendant argues that the contract’s forum selection clause does not apply to the plaintiff and that the defendant’s suit against the plaintiff was filed properly in Bermuda. The defendant’s motion is granted.I.In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).II.Apollo is a private equity and investment management firm headquartered in New York. First Am. Compl. (“FAC”) 8. Apollo founded the defendant company, Athene, in 2009 as “an alternative investment vehicle.” Id. 9. Athene was incorporated in Bermuda pursuant to the Bermuda Companies Act of 1981. Adler Decl. Ex. 5 84(1). Apollo appoints six members to Athene’s fifteen-member board of directors. FAC 10.The plaintiff was employed at Apollo between 2008 and March 2017, where he worked as part of a team that advised Athene in connection with Athene’s business. Id. 18. In this capacity, the plaintiff gave Athene strategic advice concerning potential business acquisitions. Id. The plaintiff also served as a director of Athene between 2009 and March 2017. Adler Decl. Ex. 1 at 219, Ex. 2; see FAC 48.On August 23, 2016, Apollo and Athene entered into an Advisory Services Agreement (the “ASA”), which was made effective retroactively to January 1, 2015. FAC Ex. 1 (“ASA”). The ASA governed the rights and compensation of employees who Apollo made available to Athene for various “services.” Id. §§1, 9. The ASA defined “services” to exclude any work that an Apollo employee might perform for Athene in the employee’s capacity as a director of Athene. Id. §1.In early 2018, Apollo filed an arbitration against the plaintiff claiming that he was breaching certain restrictive covenants and other obligations owed to the company by pursuing the acquisition of insurance company assets (the “Target”). FAC 32. The plaintiff did not deny pursuing the Target but contended that no duty to Apollo prevented him from doing so. Id. Apollo withdrew the arbitration and resolved the matter with the plaintiff but then, on May 3, 2018, Apollo filed another arbitration in New York against the plaintiff based on similar conduct. Id.
33-35. The arbitrator in that proceeding issued a final decision on April 26, 2019. Dkt. No. 33 Ex. A. Among other things, the decision granted some of Apollo’s claims against the plaintiff relating to breach of contract and aiding and abetting breach of fiduciary duty, denied other claims, and awarded Apollo compensatory and punitive damages against the plaintiff. Id. at 21-22. An unopposed petition to confirm the arbitrator’s award is currently pending in New York State court.On May 3, 2018 — the same day that Apollo filed its second arbitration against the plaintiff — Athene brought suit against the plaintiff in the Supreme Court of Bermuda. Id. 35. Athene alleged that the plaintiff was significantly involved in preparing and managing Athene’s plans for acquiring the Target and that the plaintiff’s own pursuit of the Target — carried out through a company named Caldera that the plaintiff created2 — violated his duty to Athene. See id.
