Preview
FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023
NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MW GESTION and MW OPTIMUM, X
derivatively on behalf of nominal defendant
:
GLOBAL CORD BLOOD :
CORPORATION, : Index No. 653598/2023
:
Plaintiffs, :
: Hon. Andrea Masley
v. :
: Part 48
GOLDEN MEDITECH HOLDINGS :
LIMITED, TING (TINA) ZHENG, ALBERT :
CHEN, YUEN KAM, MARK DA-JIAN : Mot. Seq. No. 007
CHEN, JENNIFER J. WENG, KEN LU, :
JACK CHOW, JACKY CHENG, :
CELLENKOS INC., GOLDEN MEDITECH :
STEM CELLS (BVI) COMPANY :
LIMITED, GM PRECISION MEDICINE :
(BVI) LIMITED, GOLDEN MEDITECH :
(BVI) COMPANY LIMITED, EASTON :
CAPITAL CORP., and REDWOOD :
VALUATION PARTNERS, :
:
Defendants. :
:
X
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ RENEWED MOTION FOR
ALTERNATIVE SERVICE PURSUANT TO CPLR 308(5)
POMERANTZ LLP
Jeremy A. Lieberman
Michael Grunfeld
Brandon M. Cordovi
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
Email: jalieberman@pomlaw.com
Email: mgrunfeld@pomlaw.com
Email: bcordovi@pomlaw.com
Attorneys for Plaintiffs
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 4
A. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE ZHENG, ALBERT
CHEN, KAM, LU, CHOW, AND CHENG ............................................................. 5
B. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE MARK CHEN................... 8
ARGUMENT ................................................................................................................................ 10
A. SERVICE ON THE ALTERNATIVE SERVICE DEFENDANTS AND MARK
CHEN IS IMPRACTICABLE UNDER CPLR 308(5) ........................................... 10
1. Service on the Alternative Service Defendants is Impracticable Under
CPLR 308(5) ............................................................................................................ 12
2. Service on Defendant Mark Chen is Impracticable Under CPLR
308(5) ....................................................................................................................... 14
B. PLAINTIFFS’ PROPOSED METHODS OF ALTERNATIVE SERVICE ARE
REASONABLY CALCULATED TO GIVE NOTICE TO DEFENDANTS ......... 15
1. Proposed Service on White & Case on Behalf of the Independent
Directors................................................................................................................... 16
2. Proposed Service through Golden Meditech on Behalf of Defendants
Zheng, Albert Chen, and Kam ................................................................................. 17
3. Proposed Service through Email ..................................................................... 19
4. Proposed Service through Publication ............................................................. 20
5. An Extension of Time for Service is Warranted ............................................. 21
CONCLUSION ............................................................................................................................. 22
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TABLE OF AUTHORITIES
Page(s)
Cases
Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co.,
No. 1:19-cv-10067, ECF No. 100 (S.D.N.Y. Feb 1, 2022) .....................................................20
Arista Recs. LLC v. Media Servs. LLC,
2008 WL 563470 (S.D.N.Y. Feb. 25, 2008) ............................................................................17
Born To Build, LLC v. Saleh,
139 A.D.3d 654 (2d Dep't 2016)..............................................................................................13
Bossuk v. Steinberg,
58 N.Y.2d 916 (1983) ..............................................................................................................16
Canon Inc. v. Kejiyouxiangognsi,
2021 WL 8651744 (E.D.N.Y. July 29, 2021) ..........................................................................19
Elsevier, Inc. v. Siew Yee Chew,
287 F. Supp. 3d 374 (S.D.N.Y. 2018)......................................................................................19
Fox Shiver LLC v. Individuals, Corps., Ltd. Liab. Cos., P’ships, &
Unincorporated Ass’ns,
2023 WL 6795299 (S.D.N.Y. Oct. 13, 2023) ..........................................................................13
Franklin v. Winard,
189 A.D.2d 717 (1st Dep’t 1993) ............................................................................................11
Front Row Fund I, L.P. ex rel. ChoiceWORX, Inc. v. Gross,
2023 WL 4441976 (S.D.N.Y. July 11, 2023) ..........................................................................19
Goldfarb v. Channel One Russia,
2018 WL 11225240 (S.D.N.Y. Oct. 19, 2018) ..................................................................16, 17
Hardin v. Tron Found.,
2020 WL 5236941 (S.D.N.Y. Sept. 1, 2020) ...........................................................................13
In GLG Life Tech Corp. Sec. Litig.,
287 F.R.D. 262 (S.D.N.Y. 2012) .............................................................................................17
In re Glob. Cord Blood Corp.,
No. 22-11347-dsj (Bankr. S.D.N.Y. Nov. 3, 2022), ECF No. 16 ................................16, 18, 19
In re New Oriental Educ. & Tech. Grp. Inc. Sec. Litig.,
2023 WL 5466333 (S.D.N.Y. Aug. 24, 2023) .............................................................13, 15, 17
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In re Petrobras Sec. Litig.,
2015 WL 10846515 (S.D.N.Y. Nov. 2, 2015) .........................................................................17
JPMorgan Chase Bank, Nat'l Ass'n v. Perkin,
197 A.D.3d 468 (2d Dep’t 2021) .............................................................................................20
Kelly Toys Holdings, LLC. v. Top Dep't Store,
2022 WL 3701216 (S.D.N.Y. Aug. 26, 2022) .........................................................................13
Korea Deposit Ins. Corp. v. Jung,
59 Misc. 3d 442 (Sup. Ct. N.Y. Cnty. 2017) .....................................................................12, 19
Liebeskind v. Liebeskind,
86 A.D.2d 207 (1st Dep’t 1983) ..............................................................................................12
Live Brands Holdings, LLC v. Gastronomico Gracias a Dios,
2021 WL 6064202 (S.D.N.Y. Dec. 21, 2021) .............................................................13, 15, 20
Nunez-Ariza v. Nell,
161 A.D.3d 614 (1st Dep’t 2018) ............................................................................................21
Rego v. Thom Rock Realty Co.,
201 A.D.2d 270 (1st Dep't 1994) .............................................................................................13
Safadjou v Mohammadi,
105 A.D.3d 1423 (4th Dept 2013) ...........................................................................................11
State St. Bank & Tr. Co. v. Coakley,
16 A.D.3d 403 (2d Dep’t 2005) ...................................................................................10, 11, 14
Stream SICAV v. Wang,
989 F. Supp. 2d 264 (S.D.N.Y. 2013)......................................................................................18
Tremont Fed. Sav. & Loan Ass'n v. Ndanusa,
144 A.D.2d 660 (2d Dep’t 1988) .............................................................................................20
United States v. Mrvic,
652 F. Supp. 3d 409 (S.D.N.Y. 2023)......................................................................................13
W. Supreme Buddha Ass'n v. Oasis World Peace & Health Found.,
2011 WL 856378 (N.D.N.Y. Mar. 9, 2011) ............................................................................15
Zavala v. Top Shelf Elec. Corp.,
2021 WL 3159849 (S.D.N.Y. June 14, 2021) .........................................................................18
Rules
C.P.L.R. § 306-b ............................................................................................................................21
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C.P.L.R. § 308........................................................................................................................ passim
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Plaintiffs MW Gestion and MW Optimum (“Plaintiffs”), derivatively on behalf of Global
Cord Blood Corporation (“Global Cord Blood” or the “Company”), respectfully submit this
memorandum of law in support of Plaintiffs’ renewed motion, pursuant to CPLR 308(5), to serve
the Summons and Complaint by alternative methods of service upon Defendants Ting (Tina)
Zheng (“Zheng”), Albert Chen, Yuen Kam (“Kam”), Mark Da-Jian Chen (“Mark Chen”), Dr.
Ken Lu (“Lu”), Jack Chow (“Chow”), and Jacky Cheng (“Cheng”).1
INTRODUCTION
In this shareholder derivative action, Plaintiffs seek authorization to effect service under
CPLR 308(5) on Defendants Zheng, Albert Chen, Kam, Lu, Chow, and Cheng (the “Alternative
Service Defendants”). Although Plaintiffs have already served Mark Chen in New York (see
Motion to Dismiss Opposition (NYSCEF No. 210) at 38-39), they also include him in this
motion in the alternative.2
Despite significant effort, Plaintiffs have not been able to serve the Alternative Service
Defendants through traditional means. On December 7, 2023, the Court denied Plaintiffs’ initial
Motion for Alternative Service, finding “Plaintiffs’ bare assertion that there is no telling whether
and when service through the Hague Convention will be completed is woefully insufficient to
show that service pursuant [to] CPLR 308 (1), (2) or (4) cannot be made or would be unduly
burdensome.” NYSCEF No. 141 at 3 (the “Order”). The Court also found that Plaintiffs failed to
1
Plaintiffs proposed on February 15, 2023, to counsel for the Defendants who have appeared in
this action that they set a briefing schedule for Plaintiffs’ renewed motion for alternative service
and extend the current service deadline while that motion is pending, but counsel for those
Defendants did not respond to Plaintiffs’ request. Plaintiffs therefore seek this relief as an Order
to Show Cause given the upcoming service deadline of March 8, 2024. Affirmation of Michael
Grunfeld dated February 22, 2024 (NYSCEF No. 217) ¶¶3-4; (NYSCEF No. 141 at 5).
2
The Court may therefore wish to hold its ruling as to alternative service of Mark Chen in
abeyance pending its ruling on whether he was properly served in New York. Plaintiffs include
him in this motion given the upcoming service deadline.
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show service upon Mark Chen is impracticable. Id. at 3-4. The Court, however, took “no position
on the issue of whether the New York address [at which Plaintiffs attempted to serve him] is
Mark Chen’s residence.” Id. at 4 n.3. The Order also extended Plaintiffs’ time to serve these
defendants to March 8, 2024. Id. at 5.
Since then, Plaintiffs’ attempted service through the Hague Convention on each of the
Alternative Service Defendants has been completed but was unsuccessful.
In addition, in accordance with the Order, Plaintiffs further investigated two possible
addresses for Mark Chen that they obtained from a service list in a related bankruptcy action.
Plaintiffs determined that Mark Chen does not reside at either of these addresses because one is
in Beijing, where he affirmed in this action that he has not resided since 2021 (NYSCEF No. 134
¶3) and the other is the former business address of Global Cord Blood. (Infra at 9). Plaintiffs
therefore retained an investigator to locate Mark Chen’s address in Xiamen, China, where he
affirmed that he has resided at all times since 2021. NYSCEF No. 134 at 2. After an extensive
investigation, Plaintiffs’ investigators were unable to locate any information about Mark Chen in
Xiamen, nor any other residential addresses for him.
Furthermore, as explained in Plaintiffs’ original motion for alternative service, after an
extensive investigation, they were not able to locate addresses for these Defendants in the United
States (other than Mark Chen’s address in New York where Plaintiffs contend he has been
properly served). (Infra at 5).
The numerous entities involved in the Cellenkos transaction at issue in this action (the
“Transaction”)—in which Defendants are alleged to have participated in the looting of at least
hundreds of millions of dollars from Global Cord Blood—have all been served. This includes
Defendant Golden Meditech Holdings Limited (“Golden Meditech”) and its related entities. In
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addition, Defendants Jennifer J. Weng (“Weng”) and Mark Chen are being represented in this
action by White & Case LLP (“White & Case”). White & Case also currently represents
Defendants Lu, Chow, Cheng, Weng, and Mark Chen in related matters arising out of the
Transaction. All of the Alternative Service Defendants and Defendant Mark Chen thus
undoubtedly have actual notice of this action given their positions at their respective companies,
their counsel’s appearance in this action, and their close personal ties to one another.
Given Plaintiffs’ inability to locate or effectuate service on the Alternative Service
Defendants (and Defendant Mark Chen, if the Court determines he has not already been served
in New York), despite their best efforts, service under paragraphs (1), (2) or (4) of CPLR 308 is
impractical. Alternative service under CPLR 308(5) is warranted because there are several
alternative means of service that will put each Defendant on notice of this action, in the unlikely
event that they do not know about it already.
Plaintiffs hereby seek authorization for alternative service of Defendants Zheng, Albert
Chen, Kam, Mark Chen (to the extent necessary), Lu, Chow, and Cheng in accordance with
CPLR 308(5) by the following methods reasonably calculated to give them notice of this action,
by delivering a copy of the summons and complaint to:
(a) Defendants Mark Chen, Lu, Chow, and Cheng by email and registered mail to counsel
at White & Case who represent Mark Chen in this action and represent him and Lu, Chow, and
Cheng in related matters;
(b) Defendants Zheng, Albert Chen, and Kam by personal service to Defendant Golden
Meditech in the Cayman Islands;
(c) Defendants Zheng, Albert Chen, and Kam, by email and registered mail to counsel at
Kobre & Kim who represents Defendant Golden Meditech and its related entities in this action;
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(d) Defendants Zheng, Albert Chen, Kam, Mark Chen, Lu, Chow, and Cheng, by email to
the email addresses obtained through service lists filed by the Joint Provisional Liquidators
(“JPLs”) and Independent Directors in a related bankruptcy action; and
(e) Defendants Zheng, Albert Chen, Kam, Mark Chen, Lu, Chow, and Cheng, through
weekly publication for four consecutive weeks in the International Edition of the New York
Times.
Plaintiffs also request an extension of time to serve any of the Alternative Service
Defendants and Mark Chen to the extent necessary.
FACTUAL BACKGROUND
Plaintiffs filed this shareholder derivative suit on July 25, 2023 against the Global Cord
Blood’s executives, its board members, and the entities involved in the Transaction that forms
the basis of this lawsuit. Compl. The Transaction, which the Company announced on April 29,
2022, involved the acquisition of Cellenkos, a biotechnology company that focuses on umbilical
cord blood-derived cellular therapies, for over $1 billion. Compl. ¶4. This Transaction grossly
overvalued Cellenkos by making unrealistic assumptions and was hastily approved solely
because it was a highly conflicted related-party transaction involving the Company’s former
Chairman Defendant Kam, Cellenkos’s majority owner. Id. ¶¶5-9. Subsequent investigations
have shown that the Transaction was used to cover up hundreds of millions of dollars that
Golden Meditech, Kam, and other Company insiders misappropriated. Id. ¶70.
Defendant Zheng was Global Cord Blood’s Chief Executive Officer at all relevant times
and its Chairperson since January 31, 2018. Compl. ¶21. Defendant Albert Chen was Global
Cord Blood’s Chief Financial Officer at all relevant times and a member of its Board of
Directors. See Id. ¶22. Defendant Kam founded Golden Meditech and served as its Chairperson
and CEO at all relevant times. Id. ¶23. He also served as Global Cord Blood’s Chairperson until
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January 31, 2018 and continued to secretly control Global Cord Blood after those formal
positions ended. Id. ¶¶23, 87-88. Defendants Kam, Zheng, and Albert Chen have close personal
ties to each other and Albert Chen continued to be involved in running Golden Meditech after his
formal position at the company ended. Id. ¶¶8, 12, 21-23, 30, 45, 65, 75-78, 87-88.
Defendants Mark Chen, Weng, Lu, Chow, and Cheng (the “Independent Directors”) all
served as purportedly independent directors of Global Cord Blood until their removal in 2023 by
the JPLs. See Compl. ¶¶24-28. The Independent Directors have obstructed the JPLs at every turn
and continue to maintain that they control Global Cord Blood. Compl. ¶¶153-54; NYSCEF No.
33 at 5.
Plaintiffs have successfully served Defendants Weng, Mark Chen (as described above),
the Golden Meditech Defendants, Cellenkos, Easton Capital Corp., and Redwood Valuation
Partners. These Defendants’ motions to dismiss are pending. NYSCEF Nos. 48, 97, 122-23, 132.
A. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE ZHENG, ALBERT CHEN,
KAM, LU, CHOW, AND CHENG
Plaintiffs have undertaken significant efforts to locate and serve the Alternative Service
Defendants (Zheng, Albert Chen, Kam, Lu, Chow, and Cheng). Plaintiffs conducted
comprehensive factual research, including a review of Global Cord Blood’s SEC filings, filings
in a related bankruptcy action, filings in the related Cayman Islands Action, and other publicly
available sources. NYSCEF No. 22 ¶13. Plaintiffs also retained On Point Investigations to
investigate these Defendants’ addresses. Id. ¶19. After an extensive investigation, On Point was
unable to identify a current or recent United States presence for any of the Alternative Service
Defendants. Id. ¶19.
In addition, on September 26, 2023, Plaintiffs’ counsel asked counsel for Defendants
Mark Chen and Weng at White & Case to accept service on behalf of Defendants Lu, Chow,
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Cheng, and Mark Chen, given that White & Case represents the Independent Directors (Lu,
Chow, Cheng, Mark Chen, and Weng) in the related Cayman Islands and bankruptcy matters.
NYSCEF No. 33 at 8 (citing NYSCEF No. 29 [Bankruptcy Statement]; NYSCEF No. 25
[Second JPL Report] at 10; NYSCEF No. 26 [Third JPL Report] at 18). Plaintiffs’ counsel also
asked White & Case, and counsel in this action for the Golden Meditech Defendants, about
service of Defendants Kam, Albert Chen, and Zheng. Counsel at White & Case informed
Plaintiffs’ counsel on October 10, 2023, that White & Case “is counsel for only the non-
executive, independent directors”—i.e., Defendants Mark Chen, Lu, Chow, and Cheng—yet “are
not authorized to accept service on their behalf.” Id. at 8 (citing NYSCEF No. 32 [Email
Correspondence]). Counsel for the Golden Meditech Defendants also stated that they would not
accept service on behalf of Defendants Kam, Albert Chen, and Zheng. Id. at 8 (citing NYSCEF
No. 32 [Email Correspondence]). These Defendants have also evaded the JPLs’ efforts to contact
them. Compl. ¶153; NYSCEF No. 33 at 8 (citing NYSCEF No. 25 [Second JPL Report] at 18;
NYSCEF No. 26 [Third JPL Report] at 18).
Plaintiffs have retained Shreefer Law Firm, LLC (“Shreefer”), a firm that specializes in
international service of process, to assist in locating service addresses for the Alternative Service
Defendants. NYSCEF No. 33 at 8-9. Shreefer retained Veriton Investigations in Hong Kong, to
locate service addresses for the Alternative Service Defendants. See Affirmation of Karina
Shreefer dated February 22, 2024 (NYSCEF No. 220) (“Shreefer Aff.”) ¶5. Plaintiffs had reason
to believe each of the Alternative Service Defendants are located in Hong Kong because they
were all employed in high level positions at Global Cord Blood and/or Golden Meditech, which
are based in Hong Kong, or were directors of Global Cord Blood and had additional connections
to Hong Kong. Compl. ¶¶8, 21-24, 26-28, 64-65, 73, 78; Shreefer Aff. ¶4. On August 30, 2023,
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Plaintiffs learned that the investigation revealed potential residential addresses in Hong Kong,
through a review of property records, for each of the Alternative Service Defendants. Shreefer
Aff. ¶6. Plaintiffs then directed Shreefer to commence service of process in Hong Kong,
pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (the “Hague Convention”), for each of the
Alternative Service Defendants. Shreefer Aff. ¶7. Shreefer commenced that service through the
Hague Convention on September 1, 2023. Shreefer Aff. ¶8.
These attempts to serve each of the Alternative Service Defendants were unsuccessful.
Shreefer Aff. ¶¶10-14; NYSCEF Nos. 222-27 [Certificates of Non-Service]. As demonstrated by
the certificates of non-service, the Bailiff’s Assistants of the High Court of Hong Kong assigned
to serve each of these defendants were unable to locate them at the addresses discovered by
Plaintiffs’ investigators. Shreefer Aff. ¶¶10-14; NYSCEF Nos. 222-27 [Certificates of Non-
Service]. The address identified for Defendant Lu was vacant. Shreefer Aff. ¶11; NYSCEF No.
223 [Lu Certificate of Non-Service]. The property manager for the address identified for Albert
Chen was unable to identify him, the specific apartment identified for him did not exist, and a
similar apartment number was occupied by a woman who stated that she did not know him.
Shreefer Aff. ¶10; NYSCEF No. 222 [Albert Chen Certificate of Non-Service].
Service on Kam and Zheng, who are in a personal relationship and share two children,
through the Hague Convention was attempted at the same residential address that was identified
for both of them. Shreefer Aff. ¶12; and NYSCEF Nos. 224-25 Kam and Zheng Certificates of
Non-Service]. The Bailiff’s Assistant made two service attempts, but was not successful after
leaving a message for them on the first attempt and being told on the second attempt that the
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tenant did not have any knowledge of either Kam or Zheng. Shreefer Aff. ¶12; NYSCEF Nos.
224-25 [Kam and Zheng Certificates of Non-Service].
Similarly, the Bailiff’s Assistant who attempted to serve Cheng was unsuccessful after
two attempts that included leaving a message on the first attempt and being told by the tenant on
the second attempt that the tenant did not have any knowledge of Cheng. Shreefer Aff. ¶13;
NYSCEF No. 226 [Cheng Certificate of Non-Service].
The Bailiff’s Assistant who attempted to serve Chow was told at two different service
attempts that Chow “was not in.” Shreefer Aff. ¶14; NYSCEF No. 227 [Chow Certificate of
Non-Service]. Chow also did not respond to a message that the Bailiff’s Assistant left after the
first service attempt. Shreefer Aff. ¶14; NYSCEF No. 227 [Chow Certificate of Non-Service].
These efforts show that Plaintiffs have demonstrated diligence in trying to locate and
serve the Alternative Service Defendants, but have not been able to complete service through
traditional means or the Hague Convention, either because these Defendants have evaded
Plaintiffs’ service attempts or because Plaintiffs have not been able to identify their current
residential addresses despite their best efforts.
B. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE MARK CHEN
Plaintiffs undertook significant efforts to locate and serve Defendant Mark Chen. They
located an address in New York, New York, associated with both him and Defendant Weng, who
are married, and conducted service of both of them at that address. Plaintiffs explain in further
detail in their pending opposition to Defendant Mark Chen’s motion to dismiss why that service
upon him in New York is proper under CPLR 308(2) and 308(4). NYSCEF No. 210 at 38-39.
In addition to the many steps that Plaintiffs have taken to locate Defendant Mark Chen in
New York, and out of an abundance of caution in case the Court holds that the service upon him
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in New York is not valid, they have gone even further and undertaken an extensive investigation
to locate him outside the United States.
After their initial Motion for Alternative Service was denied without prejudice, Plaintiffs
looked further into two addresses, referenced by the Court in its Order, that they obtained from
service lists filed in a related Bankruptcy Action. NYSCEF No. 141 at 4; NYSCEF No. 30.
[Bankruptcy Service List]; Shreefer Aff. ¶18. One of the addresses is for Global Cord Blood.
Plaintiffs cannot serve Mark Chen at this address for the independent reasons that (1) Global
Cord Blood vacated these premises, (2) it is now being controlled by the JPLs, who themselves
are not able to communicate with Mark Chen, and (3) service at a place of business is not
required. Compl. ¶¶152-157 (discussing evasion of the JPLs); NYSEF No. 164 [First JPL
Report] ¶¶6.4.1, 6.9.1 and p. 33 (explaining on September 13, 2022, “GCBC remove[d] their
company sign from the GCBC HQ and vacate[d]” the premises “on account of purported ‘rent
arrears’”); (Infra at 14). The other address in the Bankruptcy Action service list is located in
Beijing, China. However, Mark Chen affirmed in this action that he currently resides in Xiamen,
China, where he says he has resided at all times since 2021, and that he has not resided in Beijing
since 2021. NYSCEF No. 134 ¶3. Because Mark Chen has affirmed in this action that he does
not reside in Beijing, Plaintiffs undertook the following additional efforts to locate him.
Shreefer, at Plaintiffs’ direction, retained AsiaOTG Investigation (“AsiaOTG”), an
investigative firm located in China, to locate the requested residential service address. Shreefer
Aff. ¶16. AsiaOTG was unable to locate any residential addresses that were connected to Mark
Chen in Xiamen or elsewhere. Shreefer Aff. ¶17. While AsiaOTG’s investigation found that
Mark Chen has been associated with businesses in the past, service through the Hague
Convention at any of these companies would not be unsuccessful. Id. Out of an abundance of
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caution, Plaintiffs have directed Shreefer to commence service via the Hague Convention at
Mark Chen’s former Beijing address, because that is the best available residential address that
Defendants have for him other than the New York address where they served him and Weng.
Shreefer Aff. ¶18. But because Mark Chen has affirmed that he has not resided in Beijing since
2021, that effort is not likely to succeed, and Plaintiffs therefore seek alternative service of him.
Id.
In sum, Plaintiffs have demonstrated diligence in trying to locate and serve the
Alternative Service Defendants in the United States and abroad. Shreefer, Plaintiffs’ foreign
litigation consultant, confirms that she has taken all reasonable steps to locate the Alternative
Service Defendants and Mark Chen abroad, including by retaining investigators who focus on
the regions where these Defendants are believed to reside and attempting to serve these
Defendants via the Hague Convention at the best available residential addresses that were
identified through these efforts. Shreefer Aff. Plaintiffs make this renewed motion for alternative
service because they have not been able to complete service via these methods.
ARGUMENT
Alternative service under CPLR 308(5) is warranted where the methods set forth in
CPLR 308(1), (2) and (4) are impracticable. State St. Bank & Tr. Co. v. Coakley, 16 A.D.3d 403,
403 (2d Dep’t 2005). Then, CPLR 308(5) expressly authorizes service on natural persons “in
such manner as the court, upon motion without notice, directs, if service is impracticable under”
those more conventional methods of service.
A. SERVICE ON THE ALTERNATIVE SERVICE DEFENDANTS AND MARK
CHEN IS IMPRACTICABLE UNDER CPLR 308(5)
Service through conventional means on the Alternative Service Defendants and Mark
Chen is impracticable because Plaintiffs have undertaken far-reaching efforts to serve them, but
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have not been able to do so. The “impracticability” standard under CPLR 308(5) depends on the
facts and circumstances of each case and “does not require the applicant to satisfy the more
stringent standard of ‘due diligence’ under CPLR 308(4), or to make a showing that actual prior
attempts to serve a party under each and every method provided in the statute have been
undertaken.” State St., 16 A.D.3d at 403 (citation omitted). The meaning of “impracticable”
depends on the facts and circumstances of the particular case. Safadjou v Mohammadi, 105
A.D.3d 1423, 1424 (4th Dept 2013).
On December 7, 2023, the Court denied Plaintiffs’ initial Motion for Alternative Service
because “Plaintiffs’ bare assertion that there is no telling whether and when service through the
Hague Convention will be completed is woefully insufficient to show that service pursuant [to]
CPLR 308 (1), (2) or (4) cannot be made or would be unduly burdensome.” NYSCEF No. 141 at
3. This dismissal was “without prejudice and with opportunity to renew.” Id. at 5.
Plaintiffs have now undertaken extensive efforts to locate and serve the Alternative
Service Defendants and Mark Chen, but have still not been able to complete service upon them.
These circumstances make it impracticable, if not impossible, to serve Defendants Zheng, Albert
Chen, Kam, Mark Chen (to the extent necessary), Lu, Chow, and Cheng under CPLR 308(1), (2),
and (4). See State St., 16 A.D.3d at 403; Franklin v. Winard, 189 A.D.2d 717, 717 (1st Dep’t
1993) (“A showing of impracticability under CPLR 308(5) does not require proof of actual prior
attempts to serve a party under the methods outlined” under CPLR 308(1), (2), and (4)”). Indeed,
a plaintiff is not even required to demonstrate due diligence—which Plaintiffs have shown
here—before resorting to alternative service under CPLR 308(5). Liebeskind v. Liebeskind, 86
A.D.2d 207, 210 (1st Dep’t 1983).
11
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1. Service on the Alternative Service Defendants is Impracticable Under CPLR
308(5)
Plaintiffs have undertaken extensive efforts to locate and serve the Alternative Service
Defendants (Zheng, Albert Chen, Kam, Lu, Chow, and Cheng) through conventional means. (See
supra at 5-10). After determining that they reside in Hong Kong, Plaintiffs enlisted Shreefer, an
expert in international service, who, in turn retained Veriton Investigations to locate the
Alternative Service Defendants in Hong Kong. (Supra at 6). Shreefer then attempted to serve all
the Alternative Service Defendants through the Hague Convention at the residential addresses
that Veriton Investigations found for them in Hong Kong. Shreefer Aff. ¶¶7-8. Despite these best
efforts, Plaintiffs have not been able to complete service on the Alternative Service Defendants
because these Hague Requests were not successful. Shreefer Aff. ¶¶10-14; NYSCEF Nos. 222-
27 [Certificates of Non-Service].3
Courts routinely permit alternative service of foreign defendants under CPLR 308(5)
where plaintiffs are unable to complete it under the Hague Convention. Korea Deposit Ins. Corp.
v. Jung, 59 Misc. 3d 442, 446-47 (Sup. Ct. N.Y. Cnty. 2017) (permitting alternative service
where defendant did not disclose his whereabouts and plaintiff retained a foreign services
business who was unable to complete service in Korea despite repeated attempts to do so); see
also Live Brands Holdings, LLC v. Gastronomico Gracias a Dios, 2021 WL 6064202, at *1–2
(S.D.N.Y. Dec. 21, 2021) (granting alternative service where plaintiff attempted to serve
3
Since Defendant Chow appears to reside at the address where two Hague service attempts were
not successful, Plaintiffs are continuing to assess whether there are additional ways to serve him
at that address via the Hague Convention. Shreefer Aff. ¶14. The authorities described above,
however, make clear that service on him through traditional means is impracticable without any
further efforts, because Plaintiffs’ two attempts via the Hague Convention were not successful.
In the alternative, Plaintiffs request an extension of time to serve Defendant Chow while they
assess whether he may be served through other means under the Hague Convention. (See infra at
21-22).
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defendants through personal service and means outlined in the Hague Convention); United States
v. Mrvic, 652 F. Supp. 3d 409, 415 (S.D.N.Y. 2023) (granting motion for alternative service
where the moving party spent “considerable time and effort reasonably attempting to effectuate
service” under the Hague Convention); Hardin v. Tron Found., 2020 WL 5236941, at *2
(S.D.N.Y. Sept. 1, 2020) (finding retention of private investigator and attempted service through
the Hague Convention sufficient to justify alternative service).
Further, Courts regularly grant motions for alternative service, and hold that the Hague
Convention does not apply, where a defendant’s physical address is unknown despite plaintiff’s
best efforts to find it. Born To Build, LLC v. Saleh, 139 A.D.3d 654, 655-56 (2d Dep't 2016)
(permitting alternative service where the defendant stated she worked and lived in China, but did
not disclose her address, preventing plaintiff from attempting service through the Hague
Convention); Rego v. Thom Rock Realty Co., 201 A.D.2d 270, 270 (1st Dep't 1994) (alternative
service under CPLR 308(5) on insurance carrier was appropriate where investigator made
significant efforts to locate defendant who “may be out of both the state and country”); see also
In re New Oriental Educ. & Tech. Grp. Inc. Sec. Litig., 2023 WL 5466333, at *2–3 (S.D.N.Y.
Aug. 24, 2023) (finding the Hague Convention does not apply where executive defendants’
residential addresses are not known); Fox Shiver LLC v. Individuals, Corps., Ltd. Liab. Cos.,
P’ships, & Unincorporated Ass’ns, 2023 WL 6795299, at *2 (S.D.N.Y. Oct. 13, 2023) (finding
alternative service appropriate where there was no other means to obtain the physical addresses
of defendants); Kelly Toys Holdings, LLC. v. Top Dep't Store, 2022 WL 3701216, at *7
(S.D.N.Y. Aug. 26, 2022) (same).
As such, service on the Alternative Service Defendants via conventional means is
impracticable under CPLR 308(5) for the independent reasons that (1) Plaintiffs’ attempt to serve
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them at the best available addresses via the Hague Convention was not successful and (2) if those
addresses are not where these Defendants reside then Plaintiffs are unable to locate their
addresses for service despite diligent efforts to do so.
2. Service on Defendant Mark Chen is Impracticable Under CPLR 308(5)
In its prior Order, the Court expressly noted that it took “no position on the issue of
whether the New York address is Mark Chen’s residence.” NYSCEF No. 141 at 4. Plaintiffs
continue to maintain that service at this U.S. residential address is proper. NYSCEF No. 210 at
38-39 [Motion to Dismiss Opposition]; (Supra at 8). In the alternative, if the Court finds service
has not already been properly effectuated on Mark Chen, the extensive efforts that Plaintiffs have
undertaken to locate him, both in the U.S. and abroad, satisfy the requirements for alternative
service under CPLR 308(5). State St., 16 A.D.3d at 403.
The Order noted that Plaintiffs did not attempt service on Mark Chen at two addresses
referenced in a service list filed in a related Bankruptcy Action. NYSCEF No. 141 at 4;
NYSCEF No. 30 [Bankruptcy Service List]. Plaintiffs’ investigation revealed one address is for
Global Cord Blood and Mark Chen cannot be served there because (1) Global Cord Blood has
vacated those premises and (2) the company is being controlled by the JPLs, who Mark Chen has
evaded (Supra at 9). Service at the other addres
Preview
FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MW GESTION and MW OPTIMUM, X derivatively on behalf of nominal defendant : GLOBAL CORD BLOOD : CORPORATION, : Index No. 653598/2023 : Plaintiffs, : : Hon. Andrea Masley v. : : Part 48 GOLDEN MEDITECH HOLDINGS : LIMITED, TING (TINA) ZHENG, ALBERT : CHEN, YUEN KAM, MARK DA-JIAN : Mot. Seq. No. 007 CHEN, JENNIFER J. WENG, KEN LU, : JACK CHOW, JACKY CHENG, : CELLENKOS INC., GOLDEN MEDITECH : STEM CELLS (BVI) COMPANY : LIMITED, GM PRECISION MEDICINE : (BVI) LIMITED, GOLDEN MEDITECH : (BVI) COMPANY LIMITED, EASTON : CAPITAL CORP., and REDWOOD : VALUATION PARTNERS, : : Defendants. : : X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ RENEWED MOTION FOR ALTERNATIVE SERVICE PURSUANT TO CPLR 308(5) POMERANTZ LLP Jeremy A. Lieberman Michael Grunfeld Brandon M. Cordovi 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 Email: jalieberman@pomlaw.com Email: mgrunfeld@pomlaw.com Email: bcordovi@pomlaw.com Attorneys for Plaintiffs 1 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 4 A. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE ZHENG, ALBERT CHEN, KAM, LU, CHOW, AND CHENG ............................................................. 5 B. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE MARK CHEN................... 8 ARGUMENT ................................................................................................................................ 10 A. SERVICE ON THE ALTERNATIVE SERVICE DEFENDANTS AND MARK CHEN IS IMPRACTICABLE UNDER CPLR 308(5) ........................................... 10 1. Service on the Alternative Service Defendants is Impracticable Under CPLR 308(5) ............................................................................................................ 12 2. Service on Defendant Mark Chen is Impracticable Under CPLR 308(5) ....................................................................................................................... 14 B. PLAINTIFFS’ PROPOSED METHODS OF ALTERNATIVE SERVICE ARE REASONABLY CALCULATED TO GIVE NOTICE TO DEFENDANTS ......... 15 1. Proposed Service on White & Case on Behalf of the Independent Directors................................................................................................................... 16 2. Proposed Service through Golden Meditech on Behalf of Defendants Zheng, Albert Chen, and Kam ................................................................................. 17 3. Proposed Service through Email ..................................................................... 19 4. Proposed Service through Publication ............................................................. 20 5. An Extension of Time for Service is Warranted ............................................. 21 CONCLUSION ............................................................................................................................. 22 i 2 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 TABLE OF AUTHORITIES Page(s) Cases Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., No. 1:19-cv-10067, ECF No. 100 (S.D.N.Y. Feb 1, 2022) .....................................................20 Arista Recs. LLC v. Media Servs. LLC, 2008 WL 563470 (S.D.N.Y. Feb. 25, 2008) ............................................................................17 Born To Build, LLC v. Saleh, 139 A.D.3d 654 (2d Dep't 2016)..............................................................................................13 Bossuk v. Steinberg, 58 N.Y.2d 916 (1983) ..............................................................................................................16 Canon Inc. v. Kejiyouxiangognsi, 2021 WL 8651744 (E.D.N.Y. July 29, 2021) ..........................................................................19 Elsevier, Inc. v. Siew Yee Chew, 287 F. Supp. 3d 374 (S.D.N.Y. 2018)......................................................................................19 Fox Shiver LLC v. Individuals, Corps., Ltd. Liab. Cos., P’ships, & Unincorporated Ass’ns, 2023 WL 6795299 (S.D.N.Y. Oct. 13, 2023) ..........................................................................13 Franklin v. Winard, 189 A.D.2d 717 (1st Dep’t 1993) ............................................................................................11 Front Row Fund I, L.P. ex rel. ChoiceWORX, Inc. v. Gross, 2023 WL 4441976 (S.D.N.Y. July 11, 2023) ..........................................................................19 Goldfarb v. Channel One Russia, 2018 WL 11225240 (S.D.N.Y. Oct. 19, 2018) ..................................................................16, 17 Hardin v. Tron Found., 2020 WL 5236941 (S.D.N.Y. Sept. 1, 2020) ...........................................................................13 In GLG Life Tech Corp. Sec. Litig., 287 F.R.D. 262 (S.D.N.Y. 2012) .............................................................................................17 In re Glob. Cord Blood Corp., No. 22-11347-dsj (Bankr. S.D.N.Y. Nov. 3, 2022), ECF No. 16 ................................16, 18, 19 In re New Oriental Educ. & Tech. Grp. Inc. Sec. Litig., 2023 WL 5466333 (S.D.N.Y. Aug. 24, 2023) .............................................................13, 15, 17 ii 3 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 In re Petrobras Sec. Litig., 2015 WL 10846515 (S.D.N.Y. Nov. 2, 2015) .........................................................................17 JPMorgan Chase Bank, Nat'l Ass'n v. Perkin, 197 A.D.3d 468 (2d Dep’t 2021) .............................................................................................20 Kelly Toys Holdings, LLC. v. Top Dep't Store, 2022 WL 3701216 (S.D.N.Y. Aug. 26, 2022) .........................................................................13 Korea Deposit Ins. Corp. v. Jung, 59 Misc. 3d 442 (Sup. Ct. N.Y. Cnty. 2017) .....................................................................12, 19 Liebeskind v. Liebeskind, 86 A.D.2d 207 (1st Dep’t 1983) ..............................................................................................12 Live Brands Holdings, LLC v. Gastronomico Gracias a Dios, 2021 WL 6064202 (S.D.N.Y. Dec. 21, 2021) .............................................................13, 15, 20 Nunez-Ariza v. Nell, 161 A.D.3d 614 (1st Dep’t 2018) ............................................................................................21 Rego v. Thom Rock Realty Co., 201 A.D.2d 270 (1st Dep't 1994) .............................................................................................13 Safadjou v Mohammadi, 105 A.D.3d 1423 (4th Dept 2013) ...........................................................................................11 State St. Bank & Tr. Co. v. Coakley, 16 A.D.3d 403 (2d Dep’t 2005) ...................................................................................10, 11, 14 Stream SICAV v. Wang, 989 F. Supp. 2d 264 (S.D.N.Y. 2013)......................................................................................18 Tremont Fed. Sav. & Loan Ass'n v. Ndanusa, 144 A.D.2d 660 (2d Dep’t 1988) .............................................................................................20 United States v. Mrvic, 652 F. Supp. 3d 409 (S.D.N.Y. 2023)......................................................................................13 W. Supreme Buddha Ass'n v. Oasis World Peace & Health Found., 2011 WL 856378 (N.D.N.Y. Mar. 9, 2011) ............................................................................15 Zavala v. Top Shelf Elec. Corp., 2021 WL 3159849 (S.D.N.Y. June 14, 2021) .........................................................................18 Rules C.P.L.R. § 306-b ............................................................................................................................21 iii 4 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 C.P.L.R. § 308........................................................................................................................ passim iv 5 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 Plaintiffs MW Gestion and MW Optimum (“Plaintiffs”), derivatively on behalf of Global Cord Blood Corporation (“Global Cord Blood” or the “Company”), respectfully submit this memorandum of law in support of Plaintiffs’ renewed motion, pursuant to CPLR 308(5), to serve the Summons and Complaint by alternative methods of service upon Defendants Ting (Tina) Zheng (“Zheng”), Albert Chen, Yuen Kam (“Kam”), Mark Da-Jian Chen (“Mark Chen”), Dr. Ken Lu (“Lu”), Jack Chow (“Chow”), and Jacky Cheng (“Cheng”).1 INTRODUCTION In this shareholder derivative action, Plaintiffs seek authorization to effect service under CPLR 308(5) on Defendants Zheng, Albert Chen, Kam, Lu, Chow, and Cheng (the “Alternative Service Defendants”). Although Plaintiffs have already served Mark Chen in New York (see Motion to Dismiss Opposition (NYSCEF No. 210) at 38-39), they also include him in this motion in the alternative.2 Despite significant effort, Plaintiffs have not been able to serve the Alternative Service Defendants through traditional means. On December 7, 2023, the Court denied Plaintiffs’ initial Motion for Alternative Service, finding “Plaintiffs’ bare assertion that there is no telling whether and when service through the Hague Convention will be completed is woefully insufficient to show that service pursuant [to] CPLR 308 (1), (2) or (4) cannot be made or would be unduly burdensome.” NYSCEF No. 141 at 3 (the “Order”). The Court also found that Plaintiffs failed to 1 Plaintiffs proposed on February 15, 2023, to counsel for the Defendants who have appeared in this action that they set a briefing schedule for Plaintiffs’ renewed motion for alternative service and extend the current service deadline while that motion is pending, but counsel for those Defendants did not respond to Plaintiffs’ request. Plaintiffs therefore seek this relief as an Order to Show Cause given the upcoming service deadline of March 8, 2024. Affirmation of Michael Grunfeld dated February 22, 2024 (NYSCEF No. 217) ¶¶3-4; (NYSCEF No. 141 at 5). 2 The Court may therefore wish to hold its ruling as to alternative service of Mark Chen in abeyance pending its ruling on whether he was properly served in New York. Plaintiffs include him in this motion given the upcoming service deadline. 1 6 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 show service upon Mark Chen is impracticable. Id. at 3-4. The Court, however, took “no position on the issue of whether the New York address [at which Plaintiffs attempted to serve him] is Mark Chen’s residence.” Id. at 4 n.3. The Order also extended Plaintiffs’ time to serve these defendants to March 8, 2024. Id. at 5. Since then, Plaintiffs’ attempted service through the Hague Convention on each of the Alternative Service Defendants has been completed but was unsuccessful. In addition, in accordance with the Order, Plaintiffs further investigated two possible addresses for Mark Chen that they obtained from a service list in a related bankruptcy action. Plaintiffs determined that Mark Chen does not reside at either of these addresses because one is in Beijing, where he affirmed in this action that he has not resided since 2021 (NYSCEF No. 134 ¶3) and the other is the former business address of Global Cord Blood. (Infra at 9). Plaintiffs therefore retained an investigator to locate Mark Chen’s address in Xiamen, China, where he affirmed that he has resided at all times since 2021. NYSCEF No. 134 at 2. After an extensive investigation, Plaintiffs’ investigators were unable to locate any information about Mark Chen in Xiamen, nor any other residential addresses for him. Furthermore, as explained in Plaintiffs’ original motion for alternative service, after an extensive investigation, they were not able to locate addresses for these Defendants in the United States (other than Mark Chen’s address in New York where Plaintiffs contend he has been properly served). (Infra at 5). The numerous entities involved in the Cellenkos transaction at issue in this action (the “Transaction”)—in which Defendants are alleged to have participated in the looting of at least hundreds of millions of dollars from Global Cord Blood—have all been served. This includes Defendant Golden Meditech Holdings Limited (“Golden Meditech”) and its related entities. In 2 7 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 addition, Defendants Jennifer J. Weng (“Weng”) and Mark Chen are being represented in this action by White & Case LLP (“White & Case”). White & Case also currently represents Defendants Lu, Chow, Cheng, Weng, and Mark Chen in related matters arising out of the Transaction. All of the Alternative Service Defendants and Defendant Mark Chen thus undoubtedly have actual notice of this action given their positions at their respective companies, their counsel’s appearance in this action, and their close personal ties to one another. Given Plaintiffs’ inability to locate or effectuate service on the Alternative Service Defendants (and Defendant Mark Chen, if the Court determines he has not already been served in New York), despite their best efforts, service under paragraphs (1), (2) or (4) of CPLR 308 is impractical. Alternative service under CPLR 308(5) is warranted because there are several alternative means of service that will put each Defendant on notice of this action, in the unlikely event that they do not know about it already. Plaintiffs hereby seek authorization for alternative service of Defendants Zheng, Albert Chen, Kam, Mark Chen (to the extent necessary), Lu, Chow, and Cheng in accordance with CPLR 308(5) by the following methods reasonably calculated to give them notice of this action, by delivering a copy of the summons and complaint to: (a) Defendants Mark Chen, Lu, Chow, and Cheng by email and registered mail to counsel at White & Case who represent Mark Chen in this action and represent him and Lu, Chow, and Cheng in related matters; (b) Defendants Zheng, Albert Chen, and Kam by personal service to Defendant Golden Meditech in the Cayman Islands; (c) Defendants Zheng, Albert Chen, and Kam, by email and registered mail to counsel at Kobre & Kim who represents Defendant Golden Meditech and its related entities in this action; 3 8 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 (d) Defendants Zheng, Albert Chen, Kam, Mark Chen, Lu, Chow, and Cheng, by email to the email addresses obtained through service lists filed by the Joint Provisional Liquidators (“JPLs”) and Independent Directors in a related bankruptcy action; and (e) Defendants Zheng, Albert Chen, Kam, Mark Chen, Lu, Chow, and Cheng, through weekly publication for four consecutive weeks in the International Edition of the New York Times. Plaintiffs also request an extension of time to serve any of the Alternative Service Defendants and Mark Chen to the extent necessary. FACTUAL BACKGROUND Plaintiffs filed this shareholder derivative suit on July 25, 2023 against the Global Cord Blood’s executives, its board members, and the entities involved in the Transaction that forms the basis of this lawsuit. Compl. The Transaction, which the Company announced on April 29, 2022, involved the acquisition of Cellenkos, a biotechnology company that focuses on umbilical cord blood-derived cellular therapies, for over $1 billion. Compl. ¶4. This Transaction grossly overvalued Cellenkos by making unrealistic assumptions and was hastily approved solely because it was a highly conflicted related-party transaction involving the Company’s former Chairman Defendant Kam, Cellenkos’s majority owner. Id. ¶¶5-9. Subsequent investigations have shown that the Transaction was used to cover up hundreds of millions of dollars that Golden Meditech, Kam, and other Company insiders misappropriated. Id. ¶70. Defendant Zheng was Global Cord Blood’s Chief Executive Officer at all relevant times and its Chairperson since January 31, 2018. Compl. ¶21. Defendant Albert Chen was Global Cord Blood’s Chief Financial Officer at all relevant times and a member of its Board of Directors. See Id. ¶22. Defendant Kam founded Golden Meditech and served as its Chairperson and CEO at all relevant times. Id. ¶23. He also served as Global Cord Blood’s Chairperson until 4 9 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 January 31, 2018 and continued to secretly control Global Cord Blood after those formal positions ended. Id. ¶¶23, 87-88. Defendants Kam, Zheng, and Albert Chen have close personal ties to each other and Albert Chen continued to be involved in running Golden Meditech after his formal position at the company ended. Id. ¶¶8, 12, 21-23, 30, 45, 65, 75-78, 87-88. Defendants Mark Chen, Weng, Lu, Chow, and Cheng (the “Independent Directors”) all served as purportedly independent directors of Global Cord Blood until their removal in 2023 by the JPLs. See Compl. ¶¶24-28. The Independent Directors have obstructed the JPLs at every turn and continue to maintain that they control Global Cord Blood. Compl. ¶¶153-54; NYSCEF No. 33 at 5. Plaintiffs have successfully served Defendants Weng, Mark Chen (as described above), the Golden Meditech Defendants, Cellenkos, Easton Capital Corp., and Redwood Valuation Partners. These Defendants’ motions to dismiss are pending. NYSCEF Nos. 48, 97, 122-23, 132. A. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE ZHENG, ALBERT CHEN, KAM, LU, CHOW, AND CHENG Plaintiffs have undertaken significant efforts to locate and serve the Alternative Service Defendants (Zheng, Albert Chen, Kam, Lu, Chow, and Cheng). Plaintiffs conducted comprehensive factual research, including a review of Global Cord Blood’s SEC filings, filings in a related bankruptcy action, filings in the related Cayman Islands Action, and other publicly available sources. NYSCEF No. 22 ¶13. Plaintiffs also retained On Point Investigations to investigate these Defendants’ addresses. Id. ¶19. After an extensive investigation, On Point was unable to identify a current or recent United States presence for any of the Alternative Service Defendants. Id. ¶19. In addition, on September 26, 2023, Plaintiffs’ counsel asked counsel for Defendants Mark Chen and Weng at White & Case to accept service on behalf of Defendants Lu, Chow, 5 10 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 Cheng, and Mark Chen, given that White & Case represents the Independent Directors (Lu, Chow, Cheng, Mark Chen, and Weng) in the related Cayman Islands and bankruptcy matters. NYSCEF No. 33 at 8 (citing NYSCEF No. 29 [Bankruptcy Statement]; NYSCEF No. 25 [Second JPL Report] at 10; NYSCEF No. 26 [Third JPL Report] at 18). Plaintiffs’ counsel also asked White & Case, and counsel in this action for the Golden Meditech Defendants, about service of Defendants Kam, Albert Chen, and Zheng. Counsel at White & Case informed Plaintiffs’ counsel on October 10, 2023, that White & Case “is counsel for only the non- executive, independent directors”—i.e., Defendants Mark Chen, Lu, Chow, and Cheng—yet “are not authorized to accept service on their behalf.” Id. at 8 (citing NYSCEF No. 32 [Email Correspondence]). Counsel for the Golden Meditech Defendants also stated that they would not accept service on behalf of Defendants Kam, Albert Chen, and Zheng. Id. at 8 (citing NYSCEF No. 32 [Email Correspondence]). These Defendants have also evaded the JPLs’ efforts to contact them. Compl. ¶153; NYSCEF No. 33 at 8 (citing NYSCEF No. 25 [Second JPL Report] at 18; NYSCEF No. 26 [Third JPL Report] at 18). Plaintiffs have retained Shreefer Law Firm, LLC (“Shreefer”), a firm that specializes in international service of process, to assist in locating service addresses for the Alternative Service Defendants. NYSCEF No. 33 at 8-9. Shreefer retained Veriton Investigations in Hong Kong, to locate service addresses for the Alternative Service Defendants. See Affirmation of Karina Shreefer dated February 22, 2024 (NYSCEF No. 220) (“Shreefer Aff.”) ¶5. Plaintiffs had reason to believe each of the Alternative Service Defendants are located in Hong Kong because they were all employed in high level positions at Global Cord Blood and/or Golden Meditech, which are based in Hong Kong, or were directors of Global Cord Blood and had additional connections to Hong Kong. Compl. ¶¶8, 21-24, 26-28, 64-65, 73, 78; Shreefer Aff. ¶4. On August 30, 2023, 6 11 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 Plaintiffs learned that the investigation revealed potential residential addresses in Hong Kong, through a review of property records, for each of the Alternative Service Defendants. Shreefer Aff. ¶6. Plaintiffs then directed Shreefer to commence service of process in Hong Kong, pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”), for each of the Alternative Service Defendants. Shreefer Aff. ¶7. Shreefer commenced that service through the Hague Convention on September 1, 2023. Shreefer Aff. ¶8. These attempts to serve each of the Alternative Service Defendants were unsuccessful. Shreefer Aff. ¶¶10-14; NYSCEF Nos. 222-27 [Certificates of Non-Service]. As demonstrated by the certificates of non-service, the Bailiff’s Assistants of the High Court of Hong Kong assigned to serve each of these defendants were unable to locate them at the addresses discovered by Plaintiffs’ investigators. Shreefer Aff. ¶¶10-14; NYSCEF Nos. 222-27 [Certificates of Non- Service]. The address identified for Defendant Lu was vacant. Shreefer Aff. ¶11; NYSCEF No. 223 [Lu Certificate of Non-Service]. The property manager for the address identified for Albert Chen was unable to identify him, the specific apartment identified for him did not exist, and a similar apartment number was occupied by a woman who stated that she did not know him. Shreefer Aff. ¶10; NYSCEF No. 222 [Albert Chen Certificate of Non-Service]. Service on Kam and Zheng, who are in a personal relationship and share two children, through the Hague Convention was attempted at the same residential address that was identified for both of them. Shreefer Aff. ¶12; and NYSCEF Nos. 224-25 Kam and Zheng Certificates of Non-Service]. The Bailiff’s Assistant made two service attempts, but was not successful after leaving a message for them on the first attempt and being told on the second attempt that the 7 12 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 tenant did not have any knowledge of either Kam or Zheng. Shreefer Aff. ¶12; NYSCEF Nos. 224-25 [Kam and Zheng Certificates of Non-Service]. Similarly, the Bailiff’s Assistant who attempted to serve Cheng was unsuccessful after two attempts that included leaving a message on the first attempt and being told by the tenant on the second attempt that the tenant did not have any knowledge of Cheng. Shreefer Aff. ¶13; NYSCEF No. 226 [Cheng Certificate of Non-Service]. The Bailiff’s Assistant who attempted to serve Chow was told at two different service attempts that Chow “was not in.” Shreefer Aff. ¶14; NYSCEF No. 227 [Chow Certificate of Non-Service]. Chow also did not respond to a message that the Bailiff’s Assistant left after the first service attempt. Shreefer Aff. ¶14; NYSCEF No. 227 [Chow Certificate of Non-Service]. These efforts show that Plaintiffs have demonstrated diligence in trying to locate and serve the Alternative Service Defendants, but have not been able to complete service through traditional means or the Hague Convention, either because these Defendants have evaded Plaintiffs’ service attempts or because Plaintiffs have not been able to identify their current residential addresses despite their best efforts. B. PLAINTIFFS’ EFFORTS TO LOCATE AND SERVE MARK CHEN Plaintiffs undertook significant efforts to locate and serve Defendant Mark Chen. They located an address in New York, New York, associated with both him and Defendant Weng, who are married, and conducted service of both of them at that address. Plaintiffs explain in further detail in their pending opposition to Defendant Mark Chen’s motion to dismiss why that service upon him in New York is proper under CPLR 308(2) and 308(4). NYSCEF No. 210 at 38-39. In addition to the many steps that Plaintiffs have taken to locate Defendant Mark Chen in New York, and out of an abundance of caution in case the Court holds that the service upon him 8 13 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 in New York is not valid, they have gone even further and undertaken an extensive investigation to locate him outside the United States. After their initial Motion for Alternative Service was denied without prejudice, Plaintiffs looked further into two addresses, referenced by the Court in its Order, that they obtained from service lists filed in a related Bankruptcy Action. NYSCEF No. 141 at 4; NYSCEF No. 30. [Bankruptcy Service List]; Shreefer Aff. ¶18. One of the addresses is for Global Cord Blood. Plaintiffs cannot serve Mark Chen at this address for the independent reasons that (1) Global Cord Blood vacated these premises, (2) it is now being controlled by the JPLs, who themselves are not able to communicate with Mark Chen, and (3) service at a place of business is not required. Compl. ¶¶152-157 (discussing evasion of the JPLs); NYSEF No. 164 [First JPL Report] ¶¶6.4.1, 6.9.1 and p. 33 (explaining on September 13, 2022, “GCBC remove[d] their company sign from the GCBC HQ and vacate[d]” the premises “on account of purported ‘rent arrears’”); (Infra at 14). The other address in the Bankruptcy Action service list is located in Beijing, China. However, Mark Chen affirmed in this action that he currently resides in Xiamen, China, where he says he has resided at all times since 2021, and that he has not resided in Beijing since 2021. NYSCEF No. 134 ¶3. Because Mark Chen has affirmed in this action that he does not reside in Beijing, Plaintiffs undertook the following additional efforts to locate him. Shreefer, at Plaintiffs’ direction, retained AsiaOTG Investigation (“AsiaOTG”), an investigative firm located in China, to locate the requested residential service address. Shreefer Aff. ¶16. AsiaOTG was unable to locate any residential addresses that were connected to Mark Chen in Xiamen or elsewhere. Shreefer Aff. ¶17. While AsiaOTG’s investigation found that Mark Chen has been associated with businesses in the past, service through the Hague Convention at any of these companies would not be unsuccessful. Id. Out of an abundance of 9 14 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 caution, Plaintiffs have directed Shreefer to commence service via the Hague Convention at Mark Chen’s former Beijing address, because that is the best available residential address that Defendants have for him other than the New York address where they served him and Weng. Shreefer Aff. ¶18. But because Mark Chen has affirmed that he has not resided in Beijing since 2021, that effort is not likely to succeed, and Plaintiffs therefore seek alternative service of him. Id. In sum, Plaintiffs have demonstrated diligence in trying to locate and serve the Alternative Service Defendants in the United States and abroad. Shreefer, Plaintiffs’ foreign litigation consultant, confirms that she has taken all reasonable steps to locate the Alternative Service Defendants and Mark Chen abroad, including by retaining investigators who focus on the regions where these Defendants are believed to reside and attempting to serve these Defendants via the Hague Convention at the best available residential addresses that were identified through these efforts. Shreefer Aff. Plaintiffs make this renewed motion for alternative service because they have not been able to complete service via these methods. ARGUMENT Alternative service under CPLR 308(5) is warranted where the methods set forth in CPLR 308(1), (2) and (4) are impracticable. State St. Bank & Tr. Co. v. Coakley, 16 A.D.3d 403, 403 (2d Dep’t 2005). Then, CPLR 308(5) expressly authorizes service on natural persons “in such manner as the court, upon motion without notice, directs, if service is impracticable under” those more conventional methods of service. A. SERVICE ON THE ALTERNATIVE SERVICE DEFENDANTS AND MARK CHEN IS IMPRACTICABLE UNDER CPLR 308(5) Service through conventional means on the Alternative Service Defendants and Mark Chen is impracticable because Plaintiffs have undertaken far-reaching efforts to serve them, but 10 15 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 have not been able to do so. The “impracticability” standard under CPLR 308(5) depends on the facts and circumstances of each case and “does not require the applicant to satisfy the more stringent standard of ‘due diligence’ under CPLR 308(4), or to make a showing that actual prior attempts to serve a party under each and every method provided in the statute have been undertaken.” State St., 16 A.D.3d at 403 (citation omitted). The meaning of “impracticable” depends on the facts and circumstances of the particular case. Safadjou v Mohammadi, 105 A.D.3d 1423, 1424 (4th Dept 2013). On December 7, 2023, the Court denied Plaintiffs’ initial Motion for Alternative Service because “Plaintiffs’ bare assertion that there is no telling whether and when service through the Hague Convention will be completed is woefully insufficient to show that service pursuant [to] CPLR 308 (1), (2) or (4) cannot be made or would be unduly burdensome.” NYSCEF No. 141 at 3. This dismissal was “without prejudice and with opportunity to renew.” Id. at 5. Plaintiffs have now undertaken extensive efforts to locate and serve the Alternative Service Defendants and Mark Chen, but have still not been able to complete service upon them. These circumstances make it impracticable, if not impossible, to serve Defendants Zheng, Albert Chen, Kam, Mark Chen (to the extent necessary), Lu, Chow, and Cheng under CPLR 308(1), (2), and (4). See State St., 16 A.D.3d at 403; Franklin v. Winard, 189 A.D.2d 717, 717 (1st Dep’t 1993) (“A showing of impracticability under CPLR 308(5) does not require proof of actual prior attempts to serve a party under the methods outlined” under CPLR 308(1), (2), and (4)”). Indeed, a plaintiff is not even required to demonstrate due diligence—which Plaintiffs have shown here—before resorting to alternative service under CPLR 308(5). Liebeskind v. Liebeskind, 86 A.D.2d 207, 210 (1st Dep’t 1983). 11 16 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 1. Service on the Alternative Service Defendants is Impracticable Under CPLR 308(5) Plaintiffs have undertaken extensive efforts to locate and serve the Alternative Service Defendants (Zheng, Albert Chen, Kam, Lu, Chow, and Cheng) through conventional means. (See supra at 5-10). After determining that they reside in Hong Kong, Plaintiffs enlisted Shreefer, an expert in international service, who, in turn retained Veriton Investigations to locate the Alternative Service Defendants in Hong Kong. (Supra at 6). Shreefer then attempted to serve all the Alternative Service Defendants through the Hague Convention at the residential addresses that Veriton Investigations found for them in Hong Kong. Shreefer Aff. ¶¶7-8. Despite these best efforts, Plaintiffs have not been able to complete service on the Alternative Service Defendants because these Hague Requests were not successful. Shreefer Aff. ¶¶10-14; NYSCEF Nos. 222- 27 [Certificates of Non-Service].3 Courts routinely permit alternative service of foreign defendants under CPLR 308(5) where plaintiffs are unable to complete it under the Hague Convention. Korea Deposit Ins. Corp. v. Jung, 59 Misc. 3d 442, 446-47 (Sup. Ct. N.Y. Cnty. 2017) (permitting alternative service where defendant did not disclose his whereabouts and plaintiff retained a foreign services business who was unable to complete service in Korea despite repeated attempts to do so); see also Live Brands Holdings, LLC v. Gastronomico Gracias a Dios, 2021 WL 6064202, at *1–2 (S.D.N.Y. Dec. 21, 2021) (granting alternative service where plaintiff attempted to serve 3 Since Defendant Chow appears to reside at the address where two Hague service attempts were not successful, Plaintiffs are continuing to assess whether there are additional ways to serve him at that address via the Hague Convention. Shreefer Aff. ¶14. The authorities described above, however, make clear that service on him through traditional means is impracticable without any further efforts, because Plaintiffs’ two attempts via the Hague Convention were not successful. In the alternative, Plaintiffs request an extension of time to serve Defendant Chow while they assess whether he may be served through other means under the Hague Convention. (See infra at 21-22). 12 17 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 defendants through personal service and means outlined in the Hague Convention); United States v. Mrvic, 652 F. Supp. 3d 409, 415 (S.D.N.Y. 2023) (granting motion for alternative service where the moving party spent “considerable time and effort reasonably attempting to effectuate service” under the Hague Convention); Hardin v. Tron Found., 2020 WL 5236941, at *2 (S.D.N.Y. Sept. 1, 2020) (finding retention of private investigator and attempted service through the Hague Convention sufficient to justify alternative service). Further, Courts regularly grant motions for alternative service, and hold that the Hague Convention does not apply, where a defendant’s physical address is unknown despite plaintiff’s best efforts to find it. Born To Build, LLC v. Saleh, 139 A.D.3d 654, 655-56 (2d Dep't 2016) (permitting alternative service where the defendant stated she worked and lived in China, but did not disclose her address, preventing plaintiff from attempting service through the Hague Convention); Rego v. Thom Rock Realty Co., 201 A.D.2d 270, 270 (1st Dep't 1994) (alternative service under CPLR 308(5) on insurance carrier was appropriate where investigator made significant efforts to locate defendant who “may be out of both the state and country”); see also In re New Oriental Educ. & Tech. Grp. Inc. Sec. Litig., 2023 WL 5466333, at *2–3 (S.D.N.Y. Aug. 24, 2023) (finding the Hague Convention does not apply where executive defendants’ residential addresses are not known); Fox Shiver LLC v. Individuals, Corps., Ltd. Liab. Cos., P’ships, & Unincorporated Ass’ns, 2023 WL 6795299, at *2 (S.D.N.Y. Oct. 13, 2023) (finding alternative service appropriate where there was no other means to obtain the physical addresses of defendants); Kelly Toys Holdings, LLC. v. Top Dep't Store, 2022 WL 3701216, at *7 (S.D.N.Y. Aug. 26, 2022) (same). As such, service on the Alternative Service Defendants via conventional means is impracticable under CPLR 308(5) for the independent reasons that (1) Plaintiffs’ attempt to serve 13 18 of 29 FILED: NEW YORK COUNTY CLERK 02/22/2024 07:21 PM INDEX NO. 653598/2023 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 02/22/2024 them at the best available addresses via the Hague Convention was not successful and (2) if those addresses are not where these Defendants reside then Plaintiffs are unable to locate their addresses for service despite diligent efforts to do so. 2. Service on Defendant Mark Chen is Impracticable Under CPLR 308(5) In its prior Order, the Court expressly noted that it took “no position on the issue of whether the New York address is Mark Chen’s residence.” NYSCEF No. 141 at 4. Plaintiffs continue to maintain that service at this U.S. residential address is proper. NYSCEF No. 210 at 38-39 [Motion to Dismiss Opposition]; (Supra at 8). In the alternative, if the Court finds service has not already been properly effectuated on Mark Chen, the extensive efforts that Plaintiffs have undertaken to locate him, both in the U.S. and abroad, satisfy the requirements for alternative service under CPLR 308(5). State St., 16 A.D.3d at 403. The Order noted that Plaintiffs did not attempt service on Mark Chen at two addresses referenced in a service list filed in a related Bankruptcy Action. NYSCEF No. 141 at 4; NYSCEF No. 30 [Bankruptcy Service List]. Plaintiffs’ investigation revealed one address is for Global Cord Blood and Mark Chen cannot be served there because (1) Global Cord Blood has vacated those premises and (2) the company is being controlled by the JPLs, who Mark Chen has evaded (Supra at 9). Service at the other addres