Anwar et al v. Fairfield Greenwich Limited et al

Filing 1049

RESPONSE in Opposition re: #1032 MOTION for Settlement Notice of Motion for Final Approval of the Proposed Partial Settlement and Plan of Allocation. Derivative Plaintiffs' Supplemental Memorandum in Further Support of Objection to Proposed Settlement. Document filed by Miguel Lomeli, Morning Mist Holdings Limited. (Wallner, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANWAR, et al.,

Master File No. 09-cv-118 (VM)
Plaintiffs,

v.
FAIRFIELD GREENWICH LIMITED, et al.,
Defendants.

DERIVATIVE PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM
IN FURTHER SUPPORT OF OBJECTION TO PROPOSED SETTLEMENT

MILBERG LLP
One Pennsylvania Plaza
New York, New York 10119
Tel.: [phone]
SEEGER WEISS LLP
77 Water Street
New York, New York 10004
Tel.: [phone]
Attorneys for Objectors

Derivative Plaintiffs Morning Mist Holdings Ltd. and Miguel Lomeli respectfully submit
this supplement in further support of their Objection to the Proposed Settlement. After the
Objection was filed, Lead Counsel filed the declaration of their foreign law expert, Professor
Jonathan Harris, in support of their class certification motion. Professor Harris states:
A related difficulty is that English proceedings may also require
the absent class members to compete with the BMIS Trustee, the
liquidators and administrators of the Fairfield Greenwich Funds in
settlement discussions and in executing against available assets.
See Harris Declaration, Doc. 1048, ¶ 153 (emphasis supplied).
Professor Harris’ statement supports Objectors’ position that, given the FG Defendants’
“depleted finances” (as so characterized by Lead Counsel, see Doc. 1035, ¶ 131), Lead Counsel
cannot adequately represent Sentry because they have negotiated a class action settlement that
competes with and, broadly read, purports to enjoin class members from prosecuting the far more
valuable Derivative Action on behalf of Sentry. See Objection, Doc. 1047, at 10-11. The
statement also supports Objector’s position that the settlement violates the principles of National
Super Spuds, Inc. v. N.Y. Mercantile Exchange, 660 F.2d 9 (2d Cir. 1981).
Dated: February 19, 2013

Respectfully submitted,
MILBERG LLP
By: /s/ Robert A. Wallner___
Robert A. Wallner
Kent A. Bronson
Kristi Stahnke McGregor
One Pennsylvania Plaza
New York, New York 10119
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Stephen A. Weiss
Parvin Aminolroaya
SEEGER WEISS LLP
77 Water Street
New York, New York 10004
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Objectors

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