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In re Klein-Bentsur

United States District Court, D. New Jersey

February 15, 2019

IN RE APPLICATION OF SHIRA ISRAELLA KLEIN-BENTSUR FOR JUDICIAL ASSISTANCE PURSUANT TO 28 U.S.C. § 1782

          OPINION AND ORDER

          JOSEPH A. DICKSON. U.S.M.J.

         This matter comes before the Court on an ex parte application by Shira Israella Klein-Bentsur ("Petitioner") requesting that the Court to facilitate the issuance of subpoenas and the gathering of documentary evidence from two entities located in this District: Amnalon LLC and MIG IRC LLC, pursuant to 28 U.S.C. § 1782(a). Petitioner seeks "to obtain discovery from [those entities] ... in aid of the divorce, alimony, and child support proceedings currently pending in Rabbinical Court in Israel." (Decl. of Shira Israella Klein-Benstur ("Klein-Bentsur Decl") ¶ 33, ECF No. 1-4). For the reasons set forth below, Petitioner's ex parte application is GRANTED.

         I. BACKGROUND

         Petitioner is a citizen of both Israel and the United States. (Klein-Bentsur Decl. ¶ 2). Petitioner and Ron Bentsur (hereinafter "Mr. Bentsur") were married on June 9, 1999. (Id. ¶ 4). The marriage produced three children: Amit, Nadav, and Eylon. (Id.). Early in their marriage, Petitioner and Mr. Benstur allegedly agreed that Mr. Bentsur would work, and Petitioner would take care of the couple's children and home. (Id. ¶ 5). Mr. Bentsur accepted employment as the Chief Financial Officer at Keryx Biopharmaceuticals Inc. and the family moved from Israel to Tenafly, New Jersey. (Id. ¶ 6). Ultimately, Mr. Bentsur became the Chief Executive Officer of Keryx, and held that position until May 2015. (Id.). Mr. Bentsur also served as the Chief Executive Officer of XTL Biopharmaceuticals Ltd. from 2006 to 2009. (Id. ¶ 7).

         During this time, Mr. Bentsur allegedly established a reputation as a talented executive in the biomedical field and amassed wealth through various investments, projects, and positions. (Id. ¶ 8). At the same time, Petitioner and Mr. Bentsur grew apart as the result of alleged emotional abuse. (Id. ¶ 9). In 2014, Petitioner and Mr. Bentsur allegedly agreed to return to Israel. (Id. ¶ 10). Petitioner and the three children returned to Israel while Mr. Bentsur stayed in New Jersey until the termination of his contract with Keryx at the end of the year. (Id.). Petitioner alleges that, despite therapy, Mr. Bentsur returned to Israel in 2015 with his emotional issues unresolved. (Id.)- Notwithstanding attempts to fix the marriage, including mediation and counseling, Petitioner and Mr. Bentsur commenced a child support action in Israeli Family Court in the hopes of amicably resolving the matter through settlement negotiations. (Id. ¶ 11). While those negotiations were ongoing, Mr. Bentsur allegedly instituted separate divorce and alimony proceedings in Rabbinical Court. (Id.)

         Petitioner alleges that Mr. Bentsur failed to disclose all of his assets before the Israeli court and attempted to prolong negotiations in an effort to dispose of his undisclosed assets. (Id. ¶ 14). More specifically, Petitioner alleges that Mr. Bentsur failed to disclose assets totaling $22 million, including an account at JPMorgan worth over $5 million, an account at Bank Leumi worth approximately $3.8 million, and an account at Mizrahi Tefahot Bank Ltd. worth about $2 million. (Id. ¶ 17). Petitioner alleges that during 2015, Mr. Bentsur transferred at least $3.76 million to unknown accounts at TD Bank, N.A. (Id. ¶ 19). In addition, Petitioner alleges that Mr. Bentsur unilaterally and secretly withdrew $1.8 million from a jointly owned real estate investment fund. (Id. ¶ 20). Petitioner also alleges that Mr. Bentsur purchased two luxurious apartments worth approximately $2.5 million, including one that he purchased for a mistress. (Id. ¶ 21).

         Petitioner alleges that, after obtaining portions of the couple's U.S. tax filings, she discovered that Mr. Bentsur had misrepresented his income before the Israeli court. (Id. ¶ 24). Petitioner further alleges that Mr. Bentsur failed to disclose income and stock options earned during his employment at various bio-pharmaceutical entities, including Stemline Therapeutics, Inc. and Advanced Inhalation Therapies AIT Ltd., as well as Amnalon LLC ("Amnalon") and MIG IRC LLC ("MIG IRC"). (Id. ¶ ¶ 26, 28).

         Petitioner contends that in 2017, while she was on vacation in Thailand with her three children, Mr. Bentsur emptied joint accounts located at Bank Hapoalim, JPMorgan, and TD Bank. (Id. ¶ 29). For instance, Petitioner alleges that Mr. Bentsur made several transfers out of a joint account at TD Bank totaling $500, 000. (Id.). Petitioner contends that she withdrew approximately $500, 000 after Mr. Bentsur allegedly threatened that he would leave her without any funds to care for herself or the children. (Id.). At the same time, Petitioner alleges that Mr. Bentsur refused to deposit his salary and investment income into joint accounts. (Id. ¶ 30). Petitioner alleges that she presented this evidence to the Rabbinical Court in Israel, which issued a Mareva Injunction. (Id. ¶ 31). Petitioner has now filed this ex parte application under 28 U.S.C. § 1782(a) in order "to obtain discovery from the companies . . . Amnalon and MIG IRC, in aid of the divorce, alimony, and child support proceedings currently pending in Rabbinical Court in Israel." (Id. ¶ 33). Amnalon and MIG IRC are located in Tenafly, New Jersey and Mendham, New Jersey, respectively. (Id. ¶ 34). Petitioner contends that such discovery will help determine "what assets [Mr. Bentsur] has" as well as "how, when, and to whom [Mr. Bentsur] has transferred assets." (Id. ¶35).

         II. LEGAL STANDARD

         Under 28 U.S.C. § 1782(a), "[t]he district court in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . [t]he order may be made . . . upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced before a person appointed by the court." A district court is permitted to grant an application under 28 U.S.C. § 1782 if the following three statutory requirements are met:

(1) the person from whom discovery is sought resides or is found within the district;
(2) the discovery is for use in a proceeding before a foreign or international tribunal; and (3) the application is made by a foreign or international tribunal or any interested person.

In re Application of Microsoft Corp.. 428 F.Supp.2d 188, 192 (S.D.N.Y. 2006).

         If the statutory requirements are met, a district court may, in its discretion, grant the application. The Supreme Court has identified four discretionary factors a district court may consider when ruling on a § 1782(a) request: (1) whether the person from whom the discovery is sought is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the character or the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance; (3) whether the § 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United ...


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