BN Holdings Trust v. Ginsburg et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BN HOLDINGS TRUST,
Plaintiff,
§
§
§
§
§
§
§
§
§
v.
ALAN H. GINSBURG, et al.,
Defendants.
CIVIL ACTION NO. H-25-2018
MEMORANDUM OPINION AND ORDER
BN Holdings Trust ("Plaintiff") brought this action against
Alan H. Ginsburg, John Does 1-10, Doe Law Firm 1-2, and Doe
Auditors 1-2, alleging securit s fraud, common law fraud, a civil
conspiracy under Texas law, negligent misrepresentation, breach of
fiduciary duty, and unjust enrichment. 1 Pending before the court
is Defendant Alan H. Ginsburg's Opposed Motion to Transfer Under 28
U.S. C. § 1404 (a) ("Ginsburg's Motion to Transfer") (Docket Entry
No. 25). For reasons stated below, Ginsburg's Motion to Transfer
will be granted.
I . Background
In 2023 Plaintiff entered into a Membership Interest Purchase
Agreement ("MIPA") with GLD Sponsor Member, LLC ("GLD") to acquire
1 Plaintiff's Original Complaint ("Complaint"), Docket Entry
No. 1, pp. 19-23. All page numbers reference the pagination
imprinted at the top of the page by the court's Electronic Case
Filing system.
United States District Court
Southern District of Texas
ENTERED
February 18, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-02018 Document 32 Filed 02/18/26 in TXSD Page 1 of 10

1 of GLD' s equity interest in Sagaliam Sponsor, LLC
("Sagaliam"} . 2 The MIPA contains a forum-selection clause.3 The
relevant part reads:
Each of the Parties (i} submits to the exclusive
jurisdiction of any state or federal court sitting in
New York, NY, in any action or proceeding arising out of
or relating to this Agreement or the transactions
contemplated hereby, ( ) agrees that all claims in
respect of such action or proceeding may be heard and
determined in any such court and (iii) agrees not to
bring any action or proceeding arising out of or relating
to this Agreement in any other court. 4
Although Daniel Gordon was the manager of GLD at the time the
MIPA was signed, Plaintiff alleges that GLD improperly led them to
believe Ginsburg was its beneficial owner. 5 Plaintiff also alleges
that Defendants purposely misled Plaintiff into purchasing all of
GLD's equity in Sagaliam by making material misrepresentations and
deliberate omissions of critical information and engaging in
unlawful share transfers that violated both federal and state
securities laws.6
On May 5, 2025, Plaintiff filed this action alleging
securities fraud, common law fraud, a civil conspiracy under Texas
2Membership Interest Purchase Agreement, Exhibit 1 to
Complaint, Docket Entry No. 1-1, pp. 2, 6-7.
3 Id. at 23 Section 8.13.
4Id.
5 Plaintiff's First Amended Complaint ("Amended Complaint") ,
Docket Entry No. 27, pp. 7-9 ii 19-24.
6Id. at 10-11.
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law, negligent misrepresentation, breach of fiduciary duty, and
unjust enrichment.1 On January 14, 2026, Ginsburg filed a motion
to transfer the action to the Southern District of New York.8
Plaintiff filed a response opposing the transfer on February 4,
2026, 9 and Ginsburg filed a reply on February 11, 2026.10
II. Analysis
Ginsburg seeks to transfer this action to the United States
District Court for the Southern District of New York under 28
U.S.C. § 1404(a) because the forum-selection clause contained in
the MIPA is contractually valid and enforceable.11 Although
Plaintiff does not dispute that the forum selection clause is
contractually valid and enforceable, Plaintiff argues that
Ginsburg's Motion to Transfer should be denied because (1) the
court's judgment in SEC v. Gordon, Case No. 4:03-cv-05772 (S.D.
Tex.), defeats the forum-selection clause, (2) Ginsburg is not a
party to the forum-selection clause and therefore cannot enforce
7 Complaint, Docket Entry No. 1, pp. 19-23.
8Ginsburg's Motion to Transfer, Docket Entry No. 25.
9Memorandum in Opposition to Defendant's Motion to Transfer
Venue Under 28 U.S. C. § 1404 (a) (Plaintiff's Response"), Docket
Entry No. 28.
10Defendant Alan H. Ginsburg's Reply in Support of Motion to
Transfer Under 28 U.S.C. § 1404(a) ("Ginsburg's Reply"), Docket
Entry No. 29.
11Ginsburg's Motion to Transfer, Docket Entry No. 25, pp. 4-5.
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it, (3) venue is independently proper under 28 U.S. C. § 1391(b)(2),
and (4) the § 1404(a) public interest factors favor Texas as a
forum.12
When evaluating a motion to transfer venue pursuant to a
forum-selection clause, "the Court must first determine whether a
contractually valid forum-selection clause exists that applies to
the present case." Brown v. Federated Capital Corp., 9 9-1 F.Supp.2d
8 5 7, 860 ( S.D. Tex. 2014). "If such a forum-selection clause
exists, the Court must then determine whether any extraordinary
circumstances unrelated to the convenience of the parties exist
that warrant denial of transfer." Id. "If no such extraordinary
circumstances exist, the Court should grant the motion to transfer
in accordance with the forum-selection clause." "Because
those factors will rarely defeat a transfer motion, the practical
result is that forum-selection clauses should control except in
unusual cases." Atlantic Marine Construction Co., 134 S. Ct. at
582.
12 Plaintiff's Response, Docket Entry No. 28, pp. 5, 11-12. The
fact that an independent basis for venue exists does not defeat a
forum-selection clause. Atlantic Marine Construction Co., Inc.
v. United States District Court for the Western District of Texas,
134 S. Ct. 568, 582 (2013) (stating that "forum-selection clauses
should control except in unusual cases,,). Moreover, "the court
need not conduct traditional jurisdiction or venue analyses when
the parties have consented to litigation in a given forum.,, J.D.
Fields & Co., Inc. v. Shoring Engineers, 391 F.Supp.3d 698, 706
( S.D. Tex. 2019). Because the court concludes that the forum
selection clause is contractually valid and enforceable, the court
need not address whether venue is independently proper under 28
U.S.C. § 1391(b)(2). Id.
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A. The court's judgment in SEC v. Gordon does not defeat the
forum-selection clause.
In 2003 the Securities and Exchange Commission ("�EC") filed
a complaint against Gordon for aiding and abetting Enron in a
fraudulent year-end transaction, 13 This court entered a Final
Judgment enjoining Gordon and "all persons in active concert or
participation with any of them, who receive actual notice of this
Final Judgment" from violating the Securities Exchange Act. 14 The
Final Judgment also stated that the court would retain jurisdiction
over the action "for the purpose of enforcing" the Final Judgment. 15
Plaintiff argues that "[t] his Court's retained ancillary
jurisdiction to enforce its 2003 Final Judgment provides an
independent basis for venue that cannot be defeated by a
contractual forum-selection clause. "16
The fact that the court has jurisdiction to enforce its 2003
Final Judgment in SEC v. Gordon is not relevant to Ginsburg's
Motion to Transfer. The court only retained juri ction over the
SEC's case against Gordon; did not retain jurisdiction over l
legal matters that involve Gordon. Plaintiff argues that it can
13 Consent and Undertaking of Daniel L.
Amended Complaint, Docket Entry No. 27-8,
Judgment Against Daniel L. Gordon, Exhibit 8
Docket Entry No. 27-8, p. 12.
Gordon, Exhibit 8 to
pp. 3-4 ':II 10; Final
to Amended Complaint,
14 Final Judgment Against Daniel L. Gordon, Exhibit B to Amended
Complaint, Docket Entry No. 27-8, pp. 12-15.
15 Id. at 16.
16 Plaintiff's Response, Docket Entry No. 28, p. 6.
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avoid the effect of the forum-selection clause agreed to three
years ago because of a Judgment that is over twenty years old
and to which neither Plaintiff nor Ginsburg were parties. But it
is well established that "a litigant is not bound by a judgment to
which [he] was not a party." Taylor v. Sturgell, 128 S. Ct. 2161,
2175 (2008); see also Martin v. Wilks, 109 S. Ct. 2180, 2184 (1989)
("A judgment or decree among parties to a lawsuit resolves issues
as among them, but it does not conclude the rights of strangers to
those proceedings."), superseded by statute on other grounds as
stated in Langraf v. USI Film Products, 114 S. Ct. 1483 (1994).
B. The forum-selection clause is contractually valid.
"When evaluating a motion to transfer venue, the Court must
first determine whether a contractually valid forum-selection
clause exists that applies to the present case." Brown, 991
F.Supp.2d at 860. To determine whether a contractually valid
forum-selection clause exists, the court must look to �(1) whether
the parties agreed to a contractually valid forum-selection clause,
and (2) whether the present case falls within the scope of the
forum-selection clause." Id. Under Fifth Circuit precedent, a
forum-selection clause in a written contract is "prima facie valid
and enforceable unless the opposing party shows that enforcement
would be unreasonable." Kevlin Services, Inc. v. Lexington State
Bank, 46 F.3d 13, 15 (5th Cir. 1995) (per curiam) (emphasis in
original).
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Because Plaintiff does not dispute that the forum-selection
clause is contractually valid, the court finds that the forum
selection clause is contractually valid and enforceable. J.D.
Fields & Co ., Inc. v. Shoring Engineers, 391 F.Supp.3d 698, 706
(S.D. Tex. 2019) (holding that the forum-selection clause was
enforceable because the plaintiff had "failed to carry its heavy
burden of showing that the
unreasonable").
forum-selection clause
C. Ginsburg can enforce the forum-selection clause.
[was]
Although Ginsburg is not a signatory to the forum-selection
clause, non-signatories are permitted to enforce forum-selection
clauses "where, under the circumstances, the non-signatories enjoyed
a sufficiently close nexus to the dispute or to another signatory
such that it was foreseeable that they would be bound." Franlink
Inc. v. BACE Services, Inc., 50 F.4th 432, 439 (5th Cir. 2022).
Courts may consider "(l) common ownership between the signatory and
the non-signatory, (2) direct benefits obtained from the contract at
issue, (3) knowledge of the agreement generally and (4) awareness of
the forum-selection clause particularly." Id. at 442.
Because Ginsburg is closely related to the dispute, it is
foreseeable he would be bound by the forum-selection clause.
Ginsburg was a co-owner of GLD and was named as its managing member
in SEC filings at the time the parties entered into the MIPA.17 As
17Amendment Complaint, Docket Entry No. 27, p. 8 1 21.
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co-owner of GLD, Ginsburg would benefit from the sale of GLD's
equity in Sagaliam to Plaintiff. Moreover, the MIPA is relevant to
each of Plaintiff's claims against Ginsburg. The court therefore
concludes that Ginsburg can enforce the forum-selection clause
under the closely related doctrine.
D. Plaintiff has failed to show that extraordinary circumstances
warrant denial of transfer.
Since there is a contractually valid forum-selection clause,
the court must "determine whether any extraordinary circumstances
unrelated to the convenience of the parties exist that warrant
denial of transfer." Brown, 991 F.Supp.2d at 860. Only the public
interest factors of a traditional § 1404 (a) analysis may be
considered. Atlantic Marine Construction Co., 134 S. Ct. at
581 82. Public interest factors include: "{1) the administrative
difficulties flowing from court congestion; (2) the local interest
in having localized interests decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the
avoidance of unnecessary problems of conflict of laws of the
application of foreign law." In re Volkswagen AG, 371 F.3d 201,
203 (5th Cir. 2004) (per curiam). The public interest factors
"outweigh a valid forum clause only in truly extraordinary cases."
Weber v. PACT XPP Technologies, AG, 811 F.3d 758, 776 (5th Cir.
2016).
Plaintiff argues that Texas has a compelling local interest in
this case because (1) the Plaintiff's principal place of business
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is in Texas, (2) the transaction documents were executed in Texas,
and (3) this court entered a final judgment over Gordon in 2003. 18
Although Plaintiff's principal place of business is in Texas
and although the MIPA was negotiated in Texas, �a single factor
purportedly weighing in favor of Texas is insufficient to
demonstrate that this is a 'truly extraordinary case[]' warranting
transfer." Mangoceuticals, Inc. v. Accelerated Digital Media, LLC,
CIVIL ACTION NO. 3:24-CV-3116-B, 2025 WL 2977950, at *7 (N.D. Tex.
Oct. 22, 2025) (quoting Weber, 811 F.3d at 776); see also In re
Lloyd's Register North America, Inc., 780 F.3d 283, 294 (5th Cir.
2015) (holding that although part of the facts occurred in Texas
and although there had been a similar lawsuit in a Texas federal
court, those considerations were not enough to make enforcement of
the forum-selection clause invalid); Doe v. Facebook, Inc., Civil
Action No. H-22-0226, 2023 WL 3483891, at *10 (S.D. Tex. May 16,
2023) (holding that although part of the facts occurred in Texas,
that was not enough to make enforcement of the forum-selection
clause invalid); Davis v. Meta Platfoms, Inc., Civil Action
No. 4:22-CV-01001, 2023 WL 4670491, at *17 (E.D. Tex. July 20,
2023) (holding that when a Texas-based plaintiff brings an action
against a defendant headquartered in another state, the local
interest factor is neutral). Likewise, as discussed above, the
fact that this court has jurisdiction to enforce its 2003 Final
18Plaintiff's Response, Docket Entry No. 28, pp. 11-12.
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Judgment in SEC v. Gordon does not warrant the denial of a
transfer .19
Plaintiff has therefore failed to establish that the public
interest factors under§ 1404(a) overwhelmingly disfavor transfer.
Atlantic Marine Construction Co., 134 S. Ct. at 584.
III. Conclusion and Order
For the reasons explained above, Defendant Alan H. Ginsburg's
Opposed Motion to Transfer Under 28 U.S.C. § 1404(a) (Docket Entry
No. 25) is GRANTED, and this action is TRANSFERRED to the
United States District Court for the Southern District of New York.
SIGNED at Houston, Texas, on this 18th day of February, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
19 Plaintiff does not argue that any other public interest
factors support the denial of a transfer.
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