VX Gateway respond to MyAdvertisingPays’ lawsuit
I checked the docket earlier and as of yet there’s no news regarding today’s TRO and preliminary injunction hearing.
In the last twenty-four hours however, VX Gateway has filed a response in opposition to My Advertising Pay’s motion.
VX Gateway claim My Advertising Pay’s lawsuit
present(s) a complicated business relationship intertwined with complicated international banking and other financial regulations.
Primary arguments raised against a TRO or injunction include:
VX Gateway argue Texas isn’t the proper place to hear the case.
This is based on VX Gateway itself being a Panamanian corporation and its agreement between My Advertising Pays stating:
This agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the Republic of Panama.
You hereby irrevocably consent to the personal jurisdiction of and venue in the Republic of Panama with respect to any action, claim or proceeding
arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts.
VX Gateway claim that ‘forum selection clauses are enforceable under both Texas and Federal case law.‘
My Advertising Pays identified VX Gateway operators Celia Dunlop and Timothy MacKay as residents of Texas.
In the opposition filing both claim they aren’t US citizens, nor have they resided in the US since May 2008. They also don’t own a residence or have any bank accounts in the US.
What My Advertising Pays are basing their assertion that Dunlop and Mackay are residing in Texas is unclear.
Insufficient Service of Process
All defendants are claiming they haven’t been served with process, as ordered by the court on December 2nd.
Lack of irreparable injury
For a TRO to be granted, My Advertising Pays would have to demonstrate a threat of imminent irreparable injury with no adequate remedy at law.
VX Gateway essentially argue the potential loss of $60 million in stolen Ponzi funds is not imminent.
The operable facts of My Advertising Pays’ claims as asserted in its Complaint relate back to early 2016.
Given the substantial passage of time, there is no reason to believe that Plaintiff’s claimed harm has suddenly become imminent.
Monetary loss alone is not an irreparable injury.
Furthermore, My Advertising Pays has an adequate remedy at law.
Defendant VX-Panama commenced a dissolution proceeding in Panama and established a claim procedure under Panamanian law.
VX-Panama has previously encouraged the Plaintiff to participate in the
claims process, including an offer to be a co-trustee of VX Gateway’s assets.
My Advertising Pays refused the offer.
Like its investors, My Advertising Pays likely sees the whole liquidation process as a sham. Participation in which would unlikely lead to the recovery of the $60 million at issue.
Last, but not least, if Plaintiff believes a judicial remedy is the appropriate course of action, then it has the remedies afforded under Panamanian law and, per the terms of the parties’ agreement, Plaintiff is required to pursue such remedies in the Republic of Panama.
Needless to say legal action in an offshore tax-haven is unlikely to lead to a recovery either.
Balance of hardships
Perhaps the most devastating blow to My Advertising Pays’ case, is the assertion that VX Gateway simply doesn’t have the money.
VX Gateway do not have physical possession of Plaintiff’s funds and do not have the assets to acquire a bond in that amount.
Here VX Gateway actually go on the offensive, claiming if they were required to post a bond it would cause approximately $24.5 million dollars in harm to VX-Panama’s dissolution and claims process.
Stay tuned for an update on the TRO and preliminary injunction hearing…
Update 9th December 2016 – My Advertising Pays’ TRO motion has been denied.
A hearing for the preliminary injunction motion has been scheduled for early March.