Athene Holding Ltd v Imran Siddique, Stephen Cernich and Caldera Holdings Ltd

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judge: Shade Subair Williams, J.:
• Judgment Date: 31 January 2025
• Year: 2025
• Docket Number: Commercial Jurisdiction 149 of 2018

Athene Holding Ltd

and

Imran Siddique, Stephen Cernich and Caldera Holdings Ltd

Subair-Williams, J.

Commercial Jurisdiction 149 of 2018

Supreme Court

Appearances:

Counsel for the Plaintiff:

Bridget Lucas KC of Counsel

Mr. Kevin Taylor

Mr. Nick Howard

Mr. John McSweeney

( Walkers Bermuda Limited)

Counsel for the First and Third Defendants:

Mr. Michael Todd KC of Counsel

Ms. Katie Tornari

Ms. Christina Herrero

( Marshall Diel & Myers Limited)

Counsel for the Second Defendant:

Mr. Gavin Mansfield KC of Counsel

Ms. Laura Williamson

Mr. Michele Gavin-Rizzuto

( Kennedys Chudleigh Limited)

RULING OF Shade Subair Williams, J.:

Shade Subair Williams, J.:

INTRODUCTION:

1 These proceedings were commenced by a Specially Indorsed Writ of Summons (the “Writ”) filed on 3 May 2018. In a number of previous interlocutory rulings of both this jurisdiction of Court and the Court of Appeal, an account of the pleaded facts, as they were, is provided. An overview of the related US proceedings consisting of two sets of a JAMS arbitration and various Court proceedings in New York (the “New York Proceedings”) is also provided in previous rulings of this Court and the Court of Appeal.

2 The age of the Writ, together with its circuitous travel to the upper Court, unveils the vigour of the parties' will to fiercely tackle through this litigation. Those full servings of judicial scrutiny are facilitated by the appearances of three separate skillful teams of experienced Counsel, each led by formidable London-based King's Counsel.

3 At this stage of these proceedings, I am concerned with competing applications for trial directions. Athene Holding Limited (“Athene” / the “Plaintiff”) seeks leave to amend its pleadings, leave to adduce two expert witnesses and a direction for a split trial. The Defendants are in pursuit of further and better particulars of claim and further and better particulars of loss and quantum in the form of a Schedule of Loss. Each of these four applications were contentious, save that the Plaintiff's application to amend was conditionally agreed.

4 The hearing documents for these applications consisted of extensive written submissions from each party and seven bundles of documents accumulating thousands of pages in hardcopy before the Court.

5 At the close of the 2-day hearing, I reserved my decision on these applications, which I now provide in this reasoned Ruling.

THE PARTIES AND THE RELEVANT NON-PARTIES

6 The Plaintiff is a former Bermuda exempt company now redomiciled in Delaware which, through its US subsidiaries, operates as a business creating, acquiring and reinsuring annuity-like products and investing in assets to generate investment returns to pay those liabilities. In December 2016, Athene transitioned from being under the private ownership and control of Apollo Global Management LLC (“Apollo [In this Ruling I employ the term “Apollo” to refer to Apollo Global Management LLC singularly and collectively with its affiliates]”) to being publicly registered on the New York Stock Exchange. Apollo retained a significant share interest in Athene after the December 2016 IPO and in or around January 2022, Athene and Apollo merged.

7 The First Defendant, Mr. Imran Siddiqui, (“D1”) is a former director and officer of Athene. It is said on his pleaded case that he served as an officer of Athene only in his capacity as a director nominated by Apollo [The Plaintiff states on its pleaded case that during the time that D1 and D2 were associated with Athene, Apollo held approximately 17% of Athene's shares and Apollo appointed six of the fifteen members of Athene's Board of Directors]. The Plaintiff's case is that D1's office holding commenced on 16 July 2009 and that during his tenure he served as the lead director, that being the director with primary responsibility in significant aspects of the Plaintiff's business. This related to the Plaintiff's strategic direction, its financial underwriting and its identification, pricing and execution of strategic transactions. The Plaintiff's case is that D1 ended his service to the Plaintiff as a director on or about 20 March 2017.

8 The Plaintiff describes the Second Defendant, Mr. Stephen Cernich, (“D2” and together with D1, the “Officer Defendants”) as one of its former officers together with certain of its subsidiaries between 1 January 2015 and 30 June 2016, or thereabout. In his role as “Executive Vice President, Corporate Development” D2 was one of the primary people responsible for the Plaintiff's merger, acquisition and strategic transaction activities. Prior to that role, the Plaintiff says that D2 was the Plaintiff's Chief Actuary, responsible for determining the Plaintiff's reserving practices and modelling, including with respect to potential acquisition targets.

9 D2 admits that he was an employee of the Plaintiff between 2009 and 30 June 2016. He accepts that he was appointed to be the Plaintiff's Chief Actuary and says that he held that position up until the end of 2010 and between (approximately) August 2014 and October 2015. As Chief Actuary, he says that he was responsible for the Plaintiff's reserving practices, actuarial financial reporting, retail pricing and modelling. However, he denies ever having been responsible for determining the Plaintiff's reserving practices in respect of potential acquisition targets. D2 also admits that he was the Plaintiff's Executive Vice President, Corporate Development and that as Executive Vice President he managed the Plaintiff's merger, acquisition and strategic transaction activities.

10 D1 and D2 founded Caldera Holdings Ltd, the Third Defendant (“D3”) which was incorporated on 11 July 2017 as a Bermuda exempt company. The Plaintiff's case is that D1 and D2 are each either a director, a shareholder and/or a beneficial owner of D3's shares. The Plaintiff says that the Officer Defendants own and control D3 and that D3 is the agent and/or nominee of D1 and D2. That is said to mean that D1's and D2's knowledge is to be attributed to D3. This is all admitted by D1 and D2, save that they deny that their ownership and control of D3 makes D3 an agent and/or nominee as alleged.

11 Mr. Ming Dang was a senior employee of Apollo and Mr. Thomas Daula and Mr. Huan Tseng were senior employees of Athene, who, on the Plaintiff's case, collaborated with D1 and D2. That is all that is said by way of background on the Plaintiff's RRASOC in relation to Mr. Dang, Mr. Tseng and Mr. Daula. (In other related proceedings (JAMS 2 Final Award) it was said that Mr. Dang joined Apollo as an associate in 2011 and was subsequently admitted as a partner in two of its affiliated entities in 2016 and 2018.)

12 The Plaintiff's case is that D1 and D2, either themselves or with the assistance of employees of Apollo and Athene secretly removed and used its trade secrets and other protected confidential, proprietary and commercially sensitive information. (Intermittently, I will employ terms such as the “relevant documents”, the “relevant information”, or the “relevant documents and information” to refer in a general sense to what the Plaintiff contends to be its misused documents and information.) The Plaintiff says that when D1 and D2's respective office holdings came to an end, they directed or otherwise induced Mr. Dang to transmit to them the Plaintiff's Documents and Information. It is expressly stated on the Plaintiff's pleaded case that Mr. Dang acted on several occasions on the instructions of D1 and D2 and surreptitiously took and sent the relevant documents to D1 and/or D2.

RECAP OF THE US PROCEEDINGS JAMS 1

13 In the first JAMS proceedings (“JAMS 1”), Apollo brought claims for injunctive relief against D1 and Company A. This was to be adjudicated by a single arbitrator in New York, applying Delaware law. Neither the Plaintiff, D2, nor D3 were party to JAMS 1 where Apollo sought to prevent D1 from using its confidential information in relation to Athene. D1 was accused of breach of fiduciary duty and breach of his post-employment restrictive covenants. Company A was accused of tortious interference with those contractual obligations.

14 The JAMS 1 claims were settled pursuant to a Settlement Agreement and Mutual Release dated 21 February 2018 (the “Settlement Agreement”). The Settlement Agreement was governed by New York law and contained an arbitration clause for dispute resolution.

JAMS 2

15 The second JAMS Arbitration proceedings (JAMS 2) commenced simultaneously with these present proceedings. In JAMS 2, Apollo brought claims against D1 which were consolidated [Mr. Dang's counterclaim for the advancement of fees was also part of the consolidated JAMS 2 proceedings] with its claims against D3 and Mr. Dang. Apollo alleged in its Statement of Claim that D1 had engaged in wrongful use and disclosure of Apollo's “Confidential Information” in violation of the Settlement Agreement. In respect of Mr. Dang, numerous claims were made, amongst which it was alleged that he violated his contractual and fiduciary duties by joining D1 and others in sharing Apollo's confidential information and aiding in their scheme to usurp Apollo's corporate opportunity. Apollo also brought claims against D1 and D3 for tortious interference and aiding and abetting Mr. Dang's breach of fiduciary duty. These claims related only to post-Settlement Agreement conduct. So, the allegations concerned conduct which occurred on or after 22 February 2018.

16 A final award was made by the single arbitrator, Mr. Mark E. Segall (the “Arbitrator” or “Mr. Segall”), on 26 April 2019 (the “Award” or the “Final Award”).

17 In the Final Award, the Arbitrator found that D1 breached the Settlement Agreement in that he failed to return or destroy Apollo's confidential information and then made a false attestation of compliance with the contractual requirement for him to do so. The Arbitrator also...