1 KEITH R.

HUMMEL (admitted pro hac vice)

khummel@cravath.com
2 JUSTIN C. CLARKE (admitted pro hac vice)
jcclarke@cravath.com
3
JONATHAN MOONEY (admitted pro hac vice)
4 jmooney@cravath.com
CRAVATH, SWAINE & MOORE LLP
5 825 Eighth Avenue
New York, New York 10019
6 Telephone: (212) 474-1000

7 Facsimile: (212) 474-3700

8 JOE H. TUFFAHA (Bar No. 253723)

joe.tuffaha@ltlattorneys.com
9 PRASHANTH CHENNAKESAVAN (Bar No. 284022)
prashanth.chennakesavan@ltlattorneys.com
10 LTL ATTORNEYS LLP

11 300 South Grand Avenue, Suite 3950

Los Angeles, CA 90071-3426
12 Telephone: (213) 612-8900
Facsimile: (213) 612-3773
13
Attorneys for Defendant and
14 Cross-Complainant
Nouvel, LLC and Defendant
15 Tenute del Mondo B.V.

16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
17
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
18
WILLIAM B. PITT, an individual, and Case No. 22STCV06081
19 MONDO BONGO, LLC, a California
limited liability company, DECLARATION OF JEAN-CLAUDE
20 WIWINIUS
Plaintiffs,
21 Judge: Hon. Lia Martin
vs. Dept.: 16
22
ANGELINA JOLIE, an individual, and Action Filed: February 17, 2022
23 NOUVEL, LLC, a California limited Trial Date: None set.
24 liability company, YURI SHEFLER, an
individual, ALEXEY OLIYNIK, an
25 individual, SPI GROUP HOLDING
LIMITED, a Cyprus private limited
26 company, and TENUTE DEL MONDO
B.V., a Netherlands private limited
27 company,
28
Defendants.

DECLARATION OF JEAN-CLAUDE WIWINIUS

 1 NOUVEL, LLC, a California limited
liability company,
2
Cross-Complainant,
3 vs.
4 WILLIAM B. PITT, an individual,
MONDO BONGO, LLC, a California
5 limited liability company, MARC-
OLIVIER PERRIN, an individual, SAS
6
MIRAVAL PROVENCE, a French limited
7 liability company, SAS FAMILLES
PERRIN, a French limited liability
8 company, ROLAND VENTURINI, an
individual, GARY BRADBURY, an
9 individual, WARREN GRANT, an
10 individual, SAS PETRICHOR, a French
limited liability company; VINS ET
11 DOMAINES PERRIN SC, a French
company; SAS MIRAVAL STUDIOS, a
12 French limited liability company; SASU
LE DOMAINE, a French limited liability
13 company; SAS DISTILLERIES DE LA
14 RIVIERA, a French limited liability
company, and ROES 1-10.
15
Cross-Defendants.
16

17

18

19

20

21

22

23

24

25

26
27

28

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 I, Jean-Claude Wiwinius, declare as follows:

2 1. I am the former President of the Luxembourg Supreme Court (Cour supérieure de

3 justice) and the Luxembourg Constitutional Court, roles in which I served from 2016 until 2021.

4 2. I was a lawyer at the Luxembourg Bar from 1976 to 1980, a Judge at the District

5 Court of Luxembourg from 1980 to 1984, a Justice of the Peace in Esch-sur-Alzette,

6 Luxembourg, from 1984 to 1989, a Legal Secretary at the Court of First Instance of the European

7 Communities from 1989 to 1992, and Vice President of the Luxembourg District Court (tribunal

8 d’arrondissement de et à Luxembourg) from 1992 to 1994. I also served as Advocate General

9 from 1994 to 1999, as a Judge at the Court of Appeals from 1999 to 2015, and as a Judge at the

10 Court of Cassation from 2015 to 2021.

11 3. I hold a law degree from the University of Paris Panthéon-Sorbonne. I taught Civil

12 Procedure at the Centre Universitaire de Luxembourg for 15 years, and International Private Law

13 for 10 years.

14 4. I have presided over numerous actions in Luxembourg courts, and I am intimately

15 familiar with Luxembourg substantive law, including the law of contracts.

16 5. I have read the First Amended Cross-Complaint (“FACC”) of Defendant and

17 Cross-Complainant Nouvel, LLC (“Nouvel”) against various Cross-Defendants (the “Cross-

18 Defendants”). I have also read William B. Pitt and Mondo Bongo, LLC’s (“Mondo Bongo”)

19 Demurrer to the FACC (“Pitt Demurrer”), Warren Grant’s Demurrer to the FACC (“Grant

20 Demurrer”), and the declarations of Professor André Prüm in support of the Pitt Demurrer and the

21 Grant Demurrer. I submit this declaration to provide the Court with information that I understand

22 may be relevant to the Court’s determination of the Pitt Demurrer and the Grant Demurrer.

23 Obligation of Good Faith (Civil Code Art. 1134 paragraph 3)

24 The Obligation of Good Faith Requires Parties to a Contract to Provide Accurate Information
to Each Other
25

26 6. Nouvel alleges that Mondo Bongo breached the obligation of good faith under
27 Luxembourg law “by refusing, in the face of repeated requests by Nouvel, to provide Nouvel with

28 information about business and investment decisions made at Quimicum’s subsidiary, Chateau

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 Miraval”, even though “Mondo Bongo, but not Nouvel, has access to information about the

2 business and investment decisions of Chateau Miraval”. (FACC ¶ 297.) Nouvel alleges that

3 Mondo Bongo was obligated to provide that information to Nouvel “to maintain parity of

4 information”. (Id.) Nouvel alleges that “Mondo Bongo has denied Nouvel access to information

5 relevant to the performance of the Quimicum Articles and to Nouvel’s decisions concerning how

6 to vote at shareholder meetings”. (Id.)

7 7. Prof. Prüm opines that because “[t]he Quimicum Articles do not impose any

8 specific obligation on Quimicum’s shareholders to share information”, “Nouvel and Mondo

9 Bongo are not obliged to share information with one another regarding Quimicum” or Chateau

10 Miraval. (Prüm Decl. ¶ 11.)

11 8. As discussed below, in my opinion, Prof. Prüm has failed to consider the reinforced

12 obligation of good faith imposed on shareholders in a corporation under Luxembourg law as a

13 result of the affectio societatis.

14 9. Under Luxembourg law, the articles of a corporation are a contract between the

15 corporation’s shareholders. (Ex. 1, A. Steichen, Précis de droit des sociétés § 130 n.3. (Saint-

16 Paul, 6th ed. 2018).)1 Here, the Quimicum Articles form a contract between Nouvel and Mondo

17 Bongo.

18 10. Under Luxembourg law, parties to a contract must perform the contract in good

19 faith. (See Ex. 2, Civil Code art. 1134 ¶ 3.) Under the obligation of good faith, contracting

20 parties must provide accurate information to each other, refrain from behavior that would deprive

21 the other party of the normal benefits of the contract, and cooperate in the performance of the

22 contract. (Ex. 3, O. Poelmans, Droit des Obligations au Luxembourg § 147 (Larcier, 2012).)

23 11. One element of the contract between shareholders through corporate articles is the

24 affectio societatis: “the idea that the shareholders, in joining a corporation, commit to participate

25 in the life of the corporation in an egalitarian spirit, in working toward a common goal”. (Ex. 1,

26 Steichen § 127.)
27
1
All exhibit citations are to the Declaration of Jonathan Mooney in Support of Nouvel’s
28 Opposition to the Pitt Demurrer and the Grant Demurrer.

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 12. The affectio societatis extends the scope of the obligation of good faith in the

2 context of contract between shareholders through corporate articles: “the affectio societatis

3 differs from the traditional notion of good faith by its intensity. In effect, beyond a simple

4 obligation of loyalty in performance, the affectio societatis imposes on shareholders a true

5 reinforced good faith, ‘a will to ally for the best and for the worst, a true team spirit’. The affectio

6 societatis, manifestation of reinforced, augmented good faith, entails a positive obligation on

7 shareholders: to cooperate in a common enterprise.” (Id.)

8 13. In short, the affectio societatis requires of shareholders the “will to work together

9 on an equal footing”. (Id. § 129.)

10 14. As discussed, the obligation of good faith requires parties to a contract to provide

11 accurate information to each other and to cooperate with each other. (Ex. 3, Poelmans § 147.)

12 The affectio societatis requires “reinforced, augmented good faith” from shareholders and

13 obligates them to “participate in the life of the corporation in an egalitarian spirit” and “work

14 together on an equal footing”. (Ex. 1, Steichen §§ 127, 129 (emphases added).)

15 15. Prof. Prüm’s argument that there is no “specific obligation on Quimicum’s

16 shareholders to share information” (Decl. ¶ 11) or “to maintain parity of information” (FACC

17 ¶ 297 (emphasis added)) is contrary to the concept of the affectio societatis and the duty of

18 shareholders to “work together on an equal footing” (Ex. 1, Steichen § 129 (emphasis added)).

19 Indeed, arguing that “Nouvel and Mondo Bongo are not obliged to share information with one

20 another regarding Quimicum” (Prüm Decl. ¶ 11) ignores that they are not strangers but partners

21 under a duty to cooperate “in a true team spirit” (Ex. 1, Steichen § 127).

22 16. Prof. Prüm also argues Mondo Bongo was under no obligation to share information

23 with Nouvel because “the information Nouvel alleges it requested from Mongo Bongo does not

24 relate directly to Quimicum but concerns the ‘business and investment decisions made at

25 Quimicum’s subsidiary, Château Miraval’.” (Prüm Decl. ¶ 12.)

26 17. I disagree. Nouvel alleges that “Quimicum’s sole asset is Chateau Miraval”, that
27 “Quimicum’s appointed directors have the power to supervise Chateau Miraval, including by

28 removing Chateau Miraval’s directors”, and that Mondo Bongo denied Novel “access to

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 information about business and investment decisions at Chateau Miraval”. (FACC ¶ 297.) In

2 doing so, Mondo Bongo necessarily denied Nouvel access to information “relevant to the

3 performance of the Quimicum Articles and to Nouvel’s decisions concerning how to vote at

4 shareholder meetings”. (Id. (emphasis added).) In my opinion, the affectio societatis obligates

5 shareholders in a holding company like Quimicum to share information about an operating

6 subsidiary like Chateau Miraval because the shareholders elect the holding company’s directors,

7 who thereby are empowered to supervise the subsidiary, including by removing its directors. (See

8 Ex. 4, Quimicum Articles § 6.3.1 (Quimicum directors “have all powers to act in the name of the

9 Company in all circumstances”); FACC ¶ 300 (“Under Chateau Miraval’s bylaws, Chateau

10 Miraval’s directors can be removed by its shareholders.”).) “Nouvel’s decisions concerning how

11 to vote at shareholder meetings” (FACC ¶ 297) for Quimicum’s directors thus depend on

12 information about the operations of the Chateau Miraval subsidiary, including because that

13 information reveals how well Quimicum’s current directors are supervising Chateau Miraval. In

14 sum, through the obligation of good faith, the affectio societatis obligates shareholders to provide

15 each other equal access to information about a corporation, including its assets and subsidiaries,

16 so that they may “work together on an equal footing”. (Ex. 1, Steichen § 129 (emphasis added).)

17 The Obligation of Good Faith Requires Parties to a Contract to Cooperate with Each Other

18 18. Under the obligation of good faith, contracting parties must cooperate in the

19 performance of the contract. (Ex. 3, Poelmans § 147.)

20 19. Nouvel alleges that “Mondo Bongo imposed a shareholder deadlock at Quimicum

21 to prevent Quimicum from functioning properly and rejected all of Nouvel’s reasonable proposals

22 for equal representation on the Quimicum board and for the appointment of a balanced board plus

23 one independent director”. (FACC ¶ 298.) Nouvel further alleges that “Mondo Bongo has

24 refused to cooperate with Nouvel and has completely disregarded Nouvel’s legitimate interests

25 and the parties’ shared interest in Quimicum functioning properly by repeatedly voting to

26 perpetuate the shareholder deadlock”. (Id.)

27 20. Specifically, Nouvel alleges that after Quimicum’s director resigned, Quimicum

28 was rendered unable to act. (FACC ¶ 168.) Nouvel alleges that it made several reasonable

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 proposals to elect new directors to Quimicum, including a balanced board with an equal number

2 of directors nominated by each shareholder and a balanced board plus one independent director.

3 (Id. ¶¶ 168-79.) Mondo Bongo rejected each proposal. (Id.) Instead, Mondo Bongo demanded

4 that Warren Grant, the business manager of Mondo Bongo’s sole member Brad Pitt, who Mondo

5 Bongo claimed was a “neutral person”, serve as Quimicum’s sole director. (Id. ¶ 174.) Mondo

6 Bongo also demanded that Nouvel “surrender control of Quimicum” to Mondo Bongo “as a

7 precondition to resolving the deadlock”. (Id. ¶ 176.)

8 21. Nouvel alleges that as a result of Mondo Bongo’s conduct, Quimicum has no

9 registered office, has not published its financial statements since 2018, and “is at risk of judicial

10 liquidation”. (Id. ¶ 185.)

11 22. Prof. Prüm argues that a claim “based on the shareholder’s voting decisions” must

12 be made “by way of a claim of abusive exercise of voting rights”. (Prüm Decl. ¶ 14.)

13 23. I disagree. It is indisputable that under Luxembourg law, the duty of good faith

14 imposes an obligation to cooperate in contractual performance. (Ex. 3, Poelmans, § 147; Ex. 1,

15 Steichen § 127.) Through the affectio societatis, shareholders “commit to participate in the life of

16 the corporation in an egalitarian spirit, in working toward a common goal” and “to cooperate in

17 a common enterprise”. (Ex. 1, Steichen § 127 (emphases added).)

18 24. Nouvel expressly alleges that “Mondo Bongo has refused to cooperate with

19 Nouvel and has completely disregarded Nouvel’s legitimate interests and the parties’ shared

20 interest in Quimicum functioning properly by repeatedly voting to perpetuate the shareholder

21 deadlock”. (FACC ¶ 186 (emphases added).)

22 25. Nouvel further alleges that “Pitt’s and Mondo Bongo’s refusal to consider any of

23 Nouvel’s reasonable proposals to resolve the Quimicum deadlock, their ridiculous assertion that

24 Pitt’s Hollywood business manager was a ‘neutral person’, and their ‘take it or leave it’ demand

25 for control of Quimicum shows that Pitt and Mondo Bongo were not and are not acting in good

26 faith and have no intention of resolving the shareholder deadlock”. (Id. ¶ 182.)
27 26. Mondo Bongo’s conduct, as alleged by Nouvel, evinces a failure to work “toward a

28 common goal” and to “cooperate in a common enterprise”, as required by the obligation of good

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 faith, reinforced by the affectio societatis. (Ex. 1, Steichen § 127.) In my opinion, because the

2 duty of good faith requires a party to cooperate in contractual performance and Nouvel expressly

3 alleges that Mondo Bongo failed to cooperate in the performance of the Quimicum Articles,

4 Nouvel has alleged a breach of the duty of good faith under Luxembourg law.

5 The Obligation of Good Faith Requires Parties to a Contract Not to Deprive Counterparties of
the Normal Benefits of the Contract
6

7 27. Nouvel alleges that it was deprived of the normal benefits of the Quimicum

8 Articles because the shareholder deadlock imposed by Mondo Bongo has prevented Nouvel

9 “from effectively taking part in collective decisions of Quimicum”. (FACC ¶ 299(b).) Nouvel

10 also alleges that it was deprived of the normal benefits of the Quimicum Articles because “Mondo

11 Bongo has prevented Quimicum from having a valid board” of directors who can “supervise

12 Quimicum’s subsidiary, Chateau Miraval”. (Id. ¶ 299(a).)

13 28. Prof. Prüm argues that under Luxembourg law, there is no “duty on Quimicum’s

14 shareholders as to one another” to facilitate participation in shareholder meetings. (Prüm Decl.

15 ¶ 20.) I disagree.

16 29. The obligation of good faith requires parties to refrain from behavior that would

17 deprive a counterparty of the normal benefits of the contract. (Ex. 3, Poelmans § 147.)

18 30. The Quimicum Articles provide that “each shareholder may take part in collective

19 decisions” made at Quimicum (Ex. 4, Quimicum Articles § 7.2), including the election of

20 directors (id. § 6.1.2). They further provide that the Quimicum directors elected by the

21 shareholders “will have all powers to act in the name of the Company in all circumstances”. (Id.

22 § 6.3.1.) For example, Quimicum is the controlling shareholder of Chateau Miraval, so

23 Quimicum’s directors may appoint and remove directors of Chateau Miraval. (FACC ¶ 300.)

24 31. Under the obligation of good faith, reinforced by the affectio societatis,

25 shareholders have a “positive obligation . . . to cooperate in a common enterprise”. (Ex. 1,

26 Steichen § 127.) In my opinion, Mondo Bongo’s imposition of a shareholder deadlock that

27 prevents “collective decisions of Quimicum” from being reached is a breach of this duty to

28 cooperate. Because Nouvel cannot “take part in collective decisions” of Quimicum with Mondo

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 Bongo’s cooperation as expected, it has been deprived of the normal benefits of the Quimicum

2 Articles. Therefore, Nouvel has alleged a breach of the duty of good faith.

3 32. Prof. Prüm also argues that “the Quimicum Articles do not give Quimicum’s

4 managers the legal right to manage its subsidiary company, Château Miraval”. (Decl. ¶ 17.)

5 33. In my opinion, Prof. Prüm is taking a formalistic view of the relationship between

6 Quimicum and Chateau Miraval. Quimicum is a holding company. It also is the controlling

7 shareholder of Chateau Miraval (FACC ¶ 300) and acts through its directors (“managers”) to

8 appoint and remove Chateau Miraval’s directors (FACC ¶ 300; Ex. 4, Quimicum Articles

9 § 6.3.1). Accordingly, Quimicum’s directors have the legal right to control and supervise

10 Chateau Miraval by choosing Chateau Miraval’s directors.

11 34. In my opinion, by preventing the election of directors who can supervise

12 Quimicum’s sole asset, Chateau Miraval, Mondo Bongo failed to “work[] toward a common

13 goal” and “cooperate in a common enterprise”, as required by the affectio societatis, and thereby

14 breached the obligation of good faith. (Ex. 1, Steichen §§ 127, 129.)

15 35. Similarly, Prof. Prüm’s argument that the Quimicum Articles do not grant “the

16 shareholders [of Quimicum] legal rights to manage the affairs of Quimicum” (Prüm Decl. ¶ 16) is

17 incorrect. Prof. Prüm’s argument ignores that the affectio societatis requires shareholders to

18 “cooperate in a common enterprise”, which means that “each shareholder must be able to

19 participate in the management of the corporation” and “must at least be able to participate in the

20 control of management”. (Ex. 1, Steichen §§ 127, 129.) Mondo Bongo’s imposition of a

21 shareholder deadlock deprives Nouvel of the right to participate in the control of management of

22 Quimicum.

23 36. The Quimicum Articles also provide that Nouvel is entitled to “a fraction of the

24 corporate assets and profits of the Company”. (Ex. 4, Quimicum Articles § 11.3.)

25 37. Nouvel alleges that “Mondo Bongo has caused Chateau Miraval’s funds and assets

26 to be misappropriated” (FACC ¶ 299(c)) and that as a result, “Chateau Miraval has not paid
27 Quimicum any dividends” (id. ¶ 302) and Quimicum has not distributed those dividends to its

28 shareholders, including Nouvel (id. ¶ 220).

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 38. Prof. Prüm argues that because “shareholders are not obliged to distribute”

2 Quimicum’s profits, no claim for breach of the duty of good faith will lie. (Prüm Decl. ¶ 21.)

3 39. I disagree. Participating in corporate profits is the objective when shareholders

4 form a corporation. (Ex. 1, Steichen § 127.) The obligation of good faith, through the affectio

5 societatis, requires shareholders to pursue a “common goal” and “common enterprise”. (Id.

6 §§ 127, 129.) Making corporate profits is that common goal in a for-profit corporation like

7 Quimicum. By misappropriating value from Quimicum’s sole asset and preventing the payment

8 of dividends to shareholders, Mondo Bongo has failed to pursue a “common enterprise” with

9 Nouvel, as required under the obligation of good faith, reinforced by the affectio societatis. (Id.

10 § 129.)

11 40. Accordingly, I believe Nouvel has adequately alleged a breach of the obligation of

12 good faith under Luxembourg law.

13 Abuse of Right (Civil Code Art. 6-1)

14 Abuse of Right Against Pitt and Mondo Bongo

15 41. Article 6-1 of the Luxembourg Civil Code provides: “Any act which manifestly

16 exceeds, by the intention of its author, by its object or by the circumstances in which it occurred,

17 the normal exercise of a right, is not protected by law, engages the liability of its author, and may

18 give rise to an action for an injunction to prevent the continuation of the abuse.”

19 42. Article 6-1 of the Luxembourg Civil Code prohibits the malicious, bad faith

20 exercise of a right or the exercise of a right that does not have utility for its holder and made

21 without regard for the rights of third parties. (Ex. 5, Cour d’appel, Pasicrisie 29, 241, at 244

22 (May 5, 1993).)

23 43. It is well established in Luxembourg law that a shareholder in a corporation may

24 abuse its right by exercising its shareholder vote in a manner that disregards the legitimate

25 interests of the other shareholder(s). (Ex. 1, Steichen § 246.)

26 44. In the case of two equal shareholders, the abusive exercise of a voting right by one
27 shareholder is described as an “abuse of equality” under Luxembourg law. (Id. § 250.)

28 45. Two conditions must be satisfied for a Luxembourg court to find abuse of equality.

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 First, the equal shareholder must reject a decision that “if not necessary for the corporation’s

2 survival, is at least indispensable to the continuation of its activities”. (Id.) Second, the equal

3 shareholder must act “to harm the legitimate interests” of the other shareholder. (Id.)

4 46. In other words, for there to be an abuse of equality, the equal shareholder must

5 “cause the failure of an essential operation of the company and act in its own interest, at the

6 expense of the other shareholders”. (Ex. 6, Cour d’appel, No. CAL-2021-00076, at 7 (Dec. 21,

7 2022).)

8 47. Nouvel alleges that “Pitt and his co-conspirators have caused Mondo Bongo to vote

9 in a way that prevents Quimicum from fulfilling its essential activities”. (FACC ¶ 316 (emphasis

10 added).) Nouvel alleges that as a result of Mondo Bongo’s repeated “votes against Nouvel’s

11 reasonable proposals to appoint directors”, Quimicum has had “no director since August 24,

12 2021”, “has had no registered office since Ocorian terminated its agreement with Quimicum on

13 June 28, 2022”, has not published “its annual financial statements since 2018”, and “is at risk of

14 judicial liquidation”. (Id.) Thus, Nouvel has pleaded the first element of abuse of equality: a

15 shareholder has caused “the failure of an essential operation of the company”. (Ex. 6, Cour

16 d’appel, No. CAL-2021-00076, at 7 (Dec. 21, 2022); see also Ex. 7, Cour d’appel, No. 2019-

17 00991, at 7 (March 23, 2021) (finding that a failure to elect directors and approve financial

18 statements, among other things, “puts the company’s existence at stake”).)

19 48. Nouvel also alleges that Mondo Bongo’s conduct is “designed to injure Nouvel by

20 devaluing its investments”. (FACC ¶ 9 (emphasis added).) Nouvel pleads that Mondo Bongo has

21 acted “to further its own personal interest” and “completely disregarded Nouvel’s legitimate

22 interests” by imposing the shareholder deadlock. (Id. ¶ 186 (emphasis added).) Nouvel alleges

23 that “Mondo Bongo has manufactured the shareholder deadlock at Quimicum intentionally and in

24 bad faith” (id. ¶ 315) so that “Quimicum cannot properly supervise Chateau Miraval” (id. ¶ 317),

25 which allows Mondo Bongo “to create and . . . profit from companies in which it holds an interest

26 (but in which Nouvel holds little or no interest) that use the Miraval name and appropriate Chateau
27 Miraval’s assets without proper compensation, thereby draining Quimicum’s only asset of value”

28 (id.). Thus, Nouvel has pleaded the second element of abuse of equality: a shareholder must “act

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 in its own interest, at the expense of the other shareholders”. (Ex. 6, Cour d’appel, No. CAL-

2 2021-00076, at 7 (Dec. 21, 2022).)

3 49. Prof. Prüm recognizes that the above framework applies to abuse of equality.

4 (Prüm Decl. ¶ 33.) However, he argues that “[u]nless it is clear that the responsibility for the

5 deadlock lies exclusively with one of the two shareholders that abuses its power to oppose a

6 resolution that is essential for the company, Luxembourg courts will not recognize an abuse of

7 right claim”. (Id. ¶ 34.)

8 50. Prof. Prüm contends that Nouvel and Mondo Bongo merely had a “disagreement”

9 “over the appropriate governance structure for the entity”. (Id. ¶ 36.) He argues that in voting for

10 directors, shareholders may “consider a variety of factors, including whether they prefer an

11 independent board, whether they view a proposed candidate as representing a competitor of the

12 company, whether an appointment would disrupt the long-term strategy of the business, and

13 whether it is appropriate for the company to expand the size of its board”. (Id.) He argues that

14 Nouvel cannot assert abuse of right without showing “that Mondo Bongo’s position is manifestly

15 against the corporate interest and that its failure to acquiesce in Nouvel’s proposals was solely

16 motivated by the intention to obtain an undue advantage or to harm Nouvel”. (Id.)

17 51. In my opinion, Prof. Prüm fails to account for several of the facts alleged in

18 Nouvel’s FACC. First, Nouvel clearly pleads that Mondo Bongo has opposed resolutions that are

19 “essential for the company” (Prüm Decl. ¶ 34) and has voted “against the corporate interest” (id.

20 ¶ 36). Mondo Bongo’s repeated votes against Nouvel’s attempts to reconstitute the Quimicum

21 board of directors has left Quimicum with no directors and several years of unapproved financial

22 statements (FACC ¶ 185), which, among other things, one Luxembourg court has found “puts the

23 company’s existence at stake”. (Ex. 7, Cour d’appel, No. 2019-00991, at 7 (March 23, 2021).)

24 Nouvel also pleads that as a result of Mondo Bongo’s conduct, Quimicum “is at risk of judicial

25 liquidation”. (FACC ¶ 185.) In short, in characterizing the situation at Quimicum as a

26 “disagreement” (Prüm Decl. ¶ 36), Prof. Prüm’s analysis does not account for the facts alleged by
27 Nouvel showing that “Mondo Bongo’s votes against Nouvel’s proposals are not mere disputes

28 about how to run the business; they threaten the very existence of Quimicum”. (FACC ¶ 185.)

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 52. Prof. Prüm also appears to argue that Nouvel has failed to plead that Mondo Bongo

2 bears “responsibility for the deadlock” or was “motivated by the intention to obtain an undue

3 advantage or to harm Nouvel”. (Prüm Decl. ¶¶ 34, 36.)

4 53. I disagree. Nouvel alleges that it made numerous proposals to Mondo Bongo to

5 appoint boards of different sizes and compositions to try to resolve the shareholder deadlock,

6 including on October 21, 2021 (FACC ¶ 171), on October 28, 2021 (id. ¶ 173), on November 19,

7 2021 (id. ¶ 178), and in February 2022 (id. ¶ 179), but Mondo Bongo rejected each proposal.

8 Instead, Mondo Bongo first proposed that the business manager of its sole member, who they

9 claimed was a “neutral person”, serve as Quimicum’s sole director.2 (Id. ¶ 174.) Later, Mondo

10 Bongo “demanded that Nouvel surrender control of Quimicum . . .as a precondition to resolving

11 the deadlock”. (Id. ¶ 176). Prof. Prüm does not account for these facts, which show that Mondo

12 Bongo bears responsibility for the deadlock, in his analysis.

13 54. Nouvel also alleges that “Mondo Bongo has manufactured the shareholder

14 deadlock at Quimicum intentionally and in bad faith” to disable Quimicum from supervising

15 Chateau Miraval so that Mondo Bongo could “divert Chateau Miraval’s funds” and “appropriate

16 Chateau Miraval’s valuable assets”. (FACC ¶ 315.) Nouvel pleads that Mondo Bongo’s conduct

17 is “designed to injure Nouvel by devaluing its investments”. (Id. ¶ 9 (emphasis added).) In my

18 opinion, Nouvel clearly has alleged that Mondo Bongo was motivated “by the intention to obtain

19 an undue advantage or to harm Nouvel” (Prüm Decl. ¶ 36), i.e., to drain value from Quimicum’s

20 unsupervised subsidiary in order to enrich itself at Nouvel’s expense.

21 55. Prof. Prüm argues that “the shareholder deadlock at Quimicum has been at least

22 temporarily resolved by the appointment of a provisional administrator with a limited mission to

23 regularize the company”, so “the survival of the company would not be at stake”. (Prüm Decl.

24 ¶ 37.)

25 56. I disagree. In the first place, Pitt’s Demurrer and Prof. Prüm are incorrect to the

26
2
27 I note that repeatedly proposing an unacceptable candidate for director, as Mondo Bongo has
done (FACC ¶¶ 172, 174), itself has been held to constitute an abuse of right. (Ex. 8, J. Winandy,
28 Manuel des droits des sociétés, at 202 (2019).)

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 1 extent they suggest that Nouvel must allege “the survival of the company” is at stake in order to

2 plead abuse of right. (Demurrer at 25; Prüm Decl. ¶ 37.) Under Luxembourg law, Nouvel need

3 only plead that Mondo Bongo is causing “the failure of an essential operation of the company”

4 (Ex. 6, Cour d’appel, Dkt. No. CAL-2021-00076, at 7 (Dec. 21, 2022)) or voting against a

5 decision “indispensable to the continuation of its activities” (Ex. 1, Steichen § 250). In the second

6 place, although a provisional administrator was appointed with a limited mandate that did not

7 include supervising Chateau Miraval, Nouvel alleges that “the provisional administrator did not

8 accomplish any of [his] tasks before his mandate expired on June 15, 2023, so his term to act was

9 extended by the Luxembourg court for an additional three months”. (FACC ¶ 181.) Quimicum

10 still lacks a board of directors, a registered office, and approved financial statements, so its

11 essential activities remain paralyzed and the shareholder deadlock remains unresolved.

12 Abuse of Right Against Warren Grant

13 57. Prof. Prüm argues that “Nouvel does not appear to allege that Mr. Grant took any

14 specific acts in connection with the Cross-Defendants’ alleged abuse of voting rights at

15 Quimicum”. (Prüm Decl. ¶ 38.) I disagree.

16 58. Under Luxembourg law, a third party may be held liable for a principal’s violation

17 of a contractual right if the third party participates knowingly in that violation. (See Ex. 9,

18 Tribunal d’arrondissement de Luxembourg, Pasicrisie 16, 558 (June 21, 1952); Ex. 10, Tribunal

19 d’arrondissement de Luxembourg: Civil et commercial, No. 143530, at 2 (Feb. 1, 2013).)

20 59. Nouvel pleads that prior to the deadlock, Quimicum’s director was “supplied by

21 Ocorian, a management, administrative, and fiduciary services agency”. (FACC ¶ 94.) Nouvel

22 alleges that “Ocorian communicated principally with Grant about all matters concerning

23 Quimicum” and that “Grant has acted as Pitt’s agent to help render Quimicum unable to act and

24 supervise Chateau Miraval, and has provided advice and guidance to Pitt about beginning and

25 continuing the deadlock at Quimicum”. (Id. ¶ 98.) Nouvel alleges that Grant offered to serve as

26 Quimicum’s sole director as part of Mondo Bongo’s bad faith effort “to assume complete control
27 of Quimicum” that prolonged the shareholder deadlock. (Id. ¶ 174.) And Nouvel alleges that

28 Grant served as a director of Chateau Miraval while it was being looted of assets, including when

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 1 Miraval Provence was registering Chateau Miraval’s trademarks in breach of Chateau Miraval’s

2 contractual rights. (Id. ¶ 125.) Nouvel alleges that Grant also served as an officer of a French

3 entity party owned by Mondo Bongo that misappropriated Chateau Miraval’s assets during the

4 Quimicum shareholder deadlock. (Id. ¶ 132.)

5 60. In short, Nouvel pleads facts showing that Grant knowingly participated in Mondo

6 Bongo’s abuse of right in imposing a shareholder deadlock and using it to harm Nouvel by

7 misappropriating Chateau Miraval’s assets. (Ex. 9, Tribunal d’arrondissement de Luxembourg,

8 Pasicrisie 16, 558 (June 21, 1952); Ex. 10, Tribunal d’arrondissement de Luxembourg: Civil et

9 commercial, No. 143530, at 2 (Feb. 1, 2013).)

10 Causation

11 61. Prof. Prüm argues that “Nouvel’s allegations regarding what a board of directors at

12 Quimicum would have done had the company not been in shareholder deadlock . . . is too

13 speculative and theoretical to support a theory of harm based on shareholder deadlock”. (Prüm

14 Decl. ¶ 41.) I disagree.

15 62. Luxembourg law adheres to the theory of adequate causation. Under this theory, a

16 wrongful act must lead to the harm complained of in the normal course of events for a plaintiff to

17 recover. (Ex. 11, Cour d’appel, No. 31494, at 6 (Jan. 7, 2009).)

18 63. Under Luxembourg law, a director is expected to fulfill his or her duties like a

19 reasonable person and “to bring to the management of the company’s affairs the normal care

20 required”. (Ex. 12, Tribunal d’arrondissement de Luxembourg, No. 235/89, at 1 (June 9, 1989).)

21 Nouvel alleges that by manufacturing a shareholder deadlock, Pitt and his co-conspirators

22 rendered Quimicum unable to supervise Chateau Miraval (FACC ¶¶ 97, 221) and pilfered the fund

23 and asset of Chateau Miraval, Quimicum’s sole asset (id. ¶¶ 109-53). Given that directors are

24 expected to behave reasonably, in the normal course of events, a Quimicum director would have

25 stopped the misappropriation of assets at Chateau Miraval. Nouvel’s allegation that “[a]ny

26 reasonable director made aware of the conduct of Pitt, Perrin, and their co-conspirators to drain
27 value from Quimicum’s sole asset, Chateau Miraval, would have taken steps to protect that asset”

28 (id. ¶ 221) pleads that in the absence of a deadlock, Nouvel would not have suffered the damages

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 1 it seeks to recover. It therefore satisfied the requirement of adequate causation under Luxembourg

2 law. (Ex. 11, Cour d’appel, No. 31494, at 6 (Jan. 7, 2009).)

3 64. Prof. Prüm also argues that “Nouvel’s Luxembourgish law claims are premised on

4 shareholder deadlock”, but “[d]amage that Nouvel alleges occurred before there was an alleged

5 shareholder deadlock at Quimicum . . . cannot be traced to the shareholder deadlock”. (Prüm

6 Decl. ¶ 42.)

7 65. I believe that Prof. Prüm’s analysis does not account for several of the facts alleged

8 in Nouvel’s FACC. Many of the harms alleged by Nouvel occurred only after Mondo Bongo

9 imposed the shareholder deadlock at Quimicum, including “Nouvel’s governance rights are being

10 thwarted on an ongoing basis” (FACC ¶ 217), the diversion of Chateau Miraval’s resources to

11 Pitt’s and Perrin’s “personal business endeavors” (id. ¶¶ 130-44), and Chateau Miraval giving

12 control of Miraval Provence to Familles Perrin (id. ¶¶ 145-53). Nouvel also alleges that Mondo

13 Bongo and its co-conspirators concealed certain harms from Nouvel until after they imposed the

14 deadlock, such as permanently transferring Chateau Miraval’s trademarks to Perrin. (Id. ¶ 191.)

15 Nouvel can recover for all of these harms under the theory of adequate causation under

16 Luxembourg law because Nouvel has alleged that they would not have occurred in the ordinary

17 course of events absent the shareholder deadlock. (Id. ¶ 221; Ex. 11, Cour d’appel, No. 31494, at

18 6 (Jan. 7, 2009).)

19 66. Nouvel also alleges that the only Quimicum director in office before Pitt imposed

20 the shareholder deadlock had been supplied by a “management, administrative, and fiduciary

21 services agency” and “had not taken any steps to exercise oversight over Chateau Miraval”.

22 (FACC ¶ 94.) Nouvel alleges that it first met with this director to raise concerns about “Pitt’s

23 behavior with respect to Chateau Miraval” in September 2020. (Id.) Nouvel alleges that almost

24 immediately after Nouvel tried to alert that director to Pitt and Mondo Bongo’s misconduct, and

25 after the director had attempted to resign, Pitt and Mondo Bongo imposed the shareholder

26 deadlock.3 (Id. ¶¶ 94, 96.)

27
3
Ocorian—the agency that had loaned the sole director of Quimicum—stated that its agreement
28 with Mondo Bongo and Nouvel provides that Ocorian directors appointed to the Quimicum board

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 67. Nouvel adequately alleges that prior to the shareholder deadlock, Quimicum had

2 not been managed by a “reasonable director” who had been “made aware of the conduct of Pitt,

3 Perrin, and their co-conspirators to drain value from Quimicum’s sole asset, Chateau Miraval”.

4 (FACC ¶ 232.) Nouvel pleads that Pitt and Mondo Bongo’s imposition of the shareholder

5 deadlock prevented such a director from ever taking office and putting a stop to their newly

6 disclosed wrongs. (Id. ¶ 221.)

7 68. Accordingly, Nouvel demonstrated adequate causation under Luxembourg law.

8 Direct Harm

9 69. Prof. Prüm argues that “[t]he damages alleged by Nouvel regarding the

10 misappropriation of Château Miraval’s assets and its nonpayment of dividends to Quimicum are

11 not direct and personal as required by Luxembourgish law”. (Prüm Decl. ¶ 49.) He argues that

12 the same principle applies “to allegations that Mondo Bongo harmed Château Miraval (and, by

13 extension, Quimicum and Nouvel) by diverting assets to side projects in which Mondo Bongo

14 holds an interest”. (Id.) For the reasons explained below, I disagree.

15 70. Under Luxembourg law, “whenever the shareholders have experienced damage ut

16 universi, damage that affects them all without distinction”, only the corporation can bring a claim.

17 (Ex. 15, Tribunal civil de Luxembourg, Pas. 3, 537, at 538 (Aug. 10, 1891).) In contrast, when

18 “the damage affects only one or several shareholders ut singuli, i.e., they have been victims of a

19 tactic or a fraudulent act practiced only against them, they have the right to bring action

20 individually and their action is admissible”. (Id.)

21 71. In my opinion, Prof. Prüm’s analysis ignores several facts alleged in Nouvel’s

22 FACC. For example, Nouvel pleads that “Nouvel’s governance rights are being thwarted on an

23 ongoing basis” and “Nouvel has been prevented from exercising oversight over the business that it

24 owns and realizing the benefits of its investment”. (FACC ¶ 217.) Nouvel also alleges that it has

25

26 would simply follow the wishes of the shareholders and would not supervise its subsidiaries. (Ex.
13, Oct. 5, 2020 letter from Ocorian; Ex. 14, Oct. 23, 2020 letter from Kam (Stewart) Cheong,
27 referenced in FACC ¶ 99.) Nouvel alleges that once it realized that Pitt was using this lack of
supervision to plunder value from Chateau Miraval, it sought to bring normal governance to
28 Quimicum—and Pitt imposed the shareholder deadlock. (FACC ¶¶ 94-97.)

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 1 been injured by being deprived of equal access to information relevant to the governance of

2 Quimicum: “Mondo Bongo, but not Nouvel, has access to information about the business and

3 investment decisions of Chateau Miraval, which Mondo Bongo refuses to share with Nouvel”.

4 (Id.) In my opinion, these harms alleged by Nouvel concerning the subversion of Nouvel’s right

5 to participate in the governance of Quimicum and to have equal access to information as its co-

6 equal shareholder, Mondo Bongo, are direct harms affecting only Nouvel ut singuli.

7 72. Nouvel also pleads that Nouvel loaned millions of dollars to Chateau Miraval

8 through Quimicum (FACC ¶ 112) and that it has been harmed because Cross-Defendants’ conduct

9 has prevented the repayment of those shareholder loans to Nouvel (id. ¶¶ 114, 220), even though

10 “Nouvel reasonably expected the millions of dollars it loaned to Chateau Miraval through

11 Quimicum to be repaid after Chateau Miraval’s wine business became profitable” (id. ¶ 220).

12 Nouvel alleges that “Pitt and his co-conspirators are directly and intentionally harming Nouvel by

13 rendering a substantial portion of Nouvel’s assets in the form of its outstanding shareholder loans

14 illiquid”. (Id.) Nouvel’s allegations concerning the non-repayment of shareholder loans that it

15 alone made to Quimicum concern damage to Nouvel ut singuli as opposed to damage ut universi

16 that affects all shareholders without distinction. (Ex. 15, Tribunal civil de Luxembourg, Pas. 3,

17 537, at 538 (Aug. 10, 1891).) Under Luxembourg law, Nouvel may recover for damage from the

18 non-repayment of its shareholder loans.

19 73. Nouvel also alleges that although Chateau Miraval has been paid tens of millions of

20 euros in dividends from Miraval Provence, none of that money has ever “been distributed to

21 Quimicum or its shareholders”. (FACC ¶ 114.) “Instead, Pitt and his co-conspirators have

22 diverted all of the wine business’ profits to their own purposes, including companies in which

23 Mondo Bongo holds an ownership interest (but in which Nouvel holds little or no interest),

24 thereby benefiting Mondo Bongo at Nouvel’s expense.” (Id. ¶ 220; see id. ¶¶ 130-39.) In effect,

25 Nouvel alleges that funds that should have been distributed as dividends equally to both Nouvel

26 and Mondo Bongo through Quimicum instead have been distributed indirectly to Mondo Bongo
27 only, through entities in which Mondo Bongo, but not Nouvel, holds an ownership interest. In my

28 opinion, Nouvel’s allegation that funds that should have been distributed as dividends equally to

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DECLARATION OF JEAN-CLAUDE WIWINIUS
 1 Nouvel and Mondo Bongo instead were transferred to Mondo Bongo through entities in which

2 Mondo Bongo, but not Nouvel, holds an ownership interest adequately alleges that the relevant

3 “damage affects only one or several shareholders ut singuli, i.e., they have been victims of a tactic

4 or a fraudulent act practiced only against them”. (Ex. 15, Tribunal civil de Luxembourg, Pas. 3,

5 537, at 538 (Aug. 10, 1891).)

6 74. Accordingly, in my opinion Nouvel may pursue a claim for direct damages under

7 Luxembourg law.

8 Trespass to Chattels

9 75. I understand that under U.S. law, a party can bring a claim for intentional

10 interference with another’s chattel (bien mobilier in Luxembourg law) that harms the physical

11 condition, quality, or value of the chattel or that deprives the owner of use of the chattel for a

12 substantial time. I understand that trespass to chattels allows a party to recover for physical

13 damage or disruption or impairment to the functioning of the chattel.

14 76. I understand that Nouvel makes a claim against the Cross-Defendants for trespass

15 to Chattels. (FACC ¶¶ 303-310.)

16 77. Prof. Prüm argues that “Luxembourgish law does not recognize the tort of trespass

17 to chattels, nor does it recognize any claim with equivalent elements in the context of a

18 shareholder dispute about the economic value of shares”. (Prüm Decl. ¶ 52.)

19 78. I disagree. Under Luxembourg law, recourse may always be had to the provisions

20 of Article 1382 of the Luxembourg Civil Code, which provides “Any act of a person, of whatever

21 nature, which causes damage to another person, obliges the person whose fault it is to make

22 reparation for it.” In my opinion, Article 1382, which creates broad tort liability under

23 Luxembourg law, allows Nouvel to make a claim against Mondo Bongo for harm caused by

24 Mondo Bongo to Nouvel’s Quimicum shares.

25 79. Prof. Prüm also argues that a “shareholder cannot sue for loss which is merely

26 derivative of that suffered by a company, including a loss in the company’s value that affects the
27 value of the company’s shares”. (Prüm Decl. ¶ 53.) As explained above, the harm alleged by

28 Nouvel, including interference with Nouvel’s right to participate in the governance of Quimicum,

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 is damage that uniquely affects Nouvel ut inguli. (See supra'1t 69-74.)
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