Anwar et al v. Fairfield Greenwich Limited et al

Filing 1062

ENDORSED LETTER: addressed to Judge Victor Marrero from Mark G. Gunha dated 2/28/2013 re: Counsel. ENDORSEMENT: The Anwar plaintiff's are directed to respond by 3/4/2013, by letter not to exceed three (3) pages, to the matter set forth above by the FG defendants. So Ordered. (Signed by Judge Victor Marrero on 3/1/2013) (js)

FACSIMILE: [phone]

E-MAIL ADDRESS

DIRECT DIAL NUMBER

[e-mail]

[phone]

February 28, 2013

BY HAND
Re:

Anwar, et al. v. Fairfield Greenwich Limited, et al.,
No. 09-cv-00118(VM) (S.D.N.Y.)
, ..1....•.•••• _ _•

LSUl'S!"'J:\Y

The Honorable Victor Marrero
United States Courthouse
Southern District of New York
500 Pearl Street
New York, NY 10007-1312

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Dear Judge Marrero:

L__-=::-:::-:::.:..=.=::.:·

I write on behalf of the FG Defendants l in regard to the Court's Decision and
Order entered February 25, 2013 in the above referenced action ("Class Certification
Order"), granting in substantial part Plaintiffs' motion for class certification, "subject to
further adjustment or decertification as warranted as facts develop." Class Certification
Order at 4.
On November 30, 2012, the Court entered an Order (the "Preliminary
Approval Order") preliminary approving the proposed settlement between Representative
Plaintiffs 2 on the one hand, and Defendants Fairfield Greenwich Limited and Fairfield
Greenwich (Bermuda) Limited on the other (the "Settlement"), which, if approved, provides
for, among other things, the dismissal and release of all claims in this action against the FG
I For purposes of this letter, the "FG Defendants" are defined as Defendants Fairfield Greenwich Limited,
Fairfield Greenwich (Bermuda) Limited, Fairfield Heathcliff Capital LLC, Fairfield Greenwich Advisors.
LLC, Fairfield Risk Services Ltd., Lourdes Barreneche, Vianney d'Hendecourt, Yanko Della Schiava. Carina
Noel Piedrahita, Harold Greisman, Jacqueline Harary, Richard Landsberger, Daniel Lipton, Julia Luongo,
Mark McKeefry, Maria Teresa Pulido Mendoza, Charles Murphy, Santiago Reyes, Andrew Smith, Philip
Toub, Walter M. Noel, Jr., Andres Piedrahita, Jeffrey Tucker, Amit Vijayvergiya, Cornelis Boelc, David 13.
Horn, Robert A. Blum and Gregory Bowes.

For purposes of this letter, the "Representative Plaintiffs" are defined as Pacific West Health Medical Center
Employees Retirement Trust, Harel Insurance Company Ltd., Martin and Shirley Bach Family Trust, Natalia
Hatgis, Securities & Investment Company Bahrain, Dawson Bypass Trust and St. Stephen's School.

2

BEIJING

HONG KONG

HOUSTON

LONDON

Los ANGELES

PALO ALTO

SAO PAULO

SEOUL

TOKYO

WASHINGTON,

D.c.

SIMPSON THACHER & BARTLETT LLP

The Honorable Victor Marrero

-2-

February 28, 2013

Defendants. The Preliminary Approval Order preliminarily certified a settlement class. See
Preliminary Approval Order, attached as Exhibit A hereto, at '1 2. In addition, pursuant to
paragraph 30 of the Preliminary Approval Order, the Court stayed all litigation of claims in
this action between the Representative Plaintiffs and the FG Defendants pending further
order of the Court (the "Stay,,). 3
We respectfully are writing to clarify whether the Class Certitlcation Order
applies to the claims against the FG Defendants despite the Stay. If the Class Certification
Order does in fact apply to the claims against the FG Defendants notwithstanding the Stay,
the FG Defendants' time to file a motion for reconsideration or a petition seeking
interlocutory appeal would arguably expire before the hearing on the fairness of the
Settlement currently scheduled for March 22, 2013, forcing the FG Defendants (and also the
PlaintifTs) to expend time and expense on briefing that may well be rendered moot within
weeks.
Under the circumstances, we respectfully request the Court enter an order
clarifying that, in light of the stay, the Class Certification Order does not at this time apply
to the claims asserted in the action against the FG Defendants, but the applicability of the
order to the FG Defendants will be revisited if the Court does not approve the Settlement or
the Settlement fails to become efTcctive for any other reason. In the alternative, we request
the Court to grant the FG Defendants leave from the Stay for the limited purpose of filing a
motion for reconsideration and/or pursuing an interlocutory appeal of the Class Certification
Order.

cc:

Counsel in Anwar (by email)

SO ORDERED.
DATE ,
'JeTOR ~1ARRERO. u.S.D.J.
3 Specifically, the Preliminary Approval Order reads: "Pending final determination of whether the Settlement
should be approved or further order of the Court, the Court hereby stays all litigation of claims and related
discovery in the Action between the Representative Plaintiffs and Settlement Class Members on one hand and
the FG Defendants on the other, except as provided in the Stipulation and as necessary to carry out or comply
with the terms and conditions of the Stipulation." Ex. A at or 30.

EXHIBIT A

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lJ~ITED STATES DISTRICT CO'JRT1~.:\rL FILL,!):

SOUTHERN DISTRICT OF NEW YOR

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PASHA ANWAR, et
Master File No. 09-cv-II8 (VM) (FM)
v.

FAIRFIELD GREENWICH LIMITED, et al.,
Defendants.

ORDER PRELIMI~ARILY APPROVING SETTLE.\lENT

AND PROVIDING FOR NOTICE OF PROPOSED SETTLEMENT

WIIEREAS, a class action is pending he fore the Court entitled Pasha Anwar. ef 01 \.
Fairfield Greenwich Umifed, et aL Civil Action 09-cv-118 (VM). Lnited States District (oun

for the Southern District of New York (the" /\ction"):
WHEREAS, the Court has reviewed the Stipulation of Settlement dated us of' r\ovemher
6,2012 (the "Stipulation"), which has heen entered into hy the Representative Plaintiffs (on
hehalfofthe Settlement Class) and the Settling Defendants (the "Settling Parties");
WI IEREAS, the Stipulation which, together with the exhibits annexed thereto, sets forth
the terms and conditions for a proposed pal1ial settlement and dismissal of the Action with
prejudice (the "Settlement");
WHEREAS, the Settling Parties have made application, pursuant to Federal Rule

or Civli

Procedure 23(e), f'or an order preliminarily approving the Settlement, and the Court having read
and considered the Stipulation, the exhibits annexed thereto. and submissions made re:ating to
the Settlement:
WHEREAS, the Senl

Parties have consented to the entry uf th:s Order" and

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WHEREAS, all capitalized and dciined tcnns contained herein shall have thc same
meaning as set forth in the Stipulation;
NOW, THEREFORE. IT IS HEREBY ORDERED:
1.

The Court does hereby preliminarily approve the Stipulation and the

sel forth therein. subject
2.

[0

further consideration at the Settlemen[

Sl:llierll\.'111

described below.

Pursuant to Rules 23(a) and 23(b)(3) uftbe Federal Rules orCivil Procedure and

for the purposes of the Settlement only, the Action is hereby preliminarily certified as a class
action on behalf of all Persons who were Benei1cial Owners of shares or limited partnership
interests in the Funds as of December 10, 2008 (whether as holders of record or [raceable to a
shareholder or limited partner account of record), and who

sum~red

a Net Loss oCprincipal

invcsted in the Funds, excluding (i) those Persons who timely and validly requcst exclusion Crom
the Settlement Class; (ii) Fairfield Sigma Limited, (iii) Fairfield Lambda Limited, (iv) any
Settlement Class Member who has been dismissed from this Action with prejudiee; and (v) the
FG Defendants and any entity in which the FG Defendants have a controlling interest. and the
officers, directors. affiliates. legal representatives, immediate ramily members, heirs, Sllccessors.
subsidiaries amJlor assigns oC any sllch individual or entity in their capacity

flS slieil

("Sclli.;mcfll

Class Members").
3.

The Court finds, preliminarily and Cor purposes oCthis Settlement only. that the

prerequisites for a class action under Rules 23(a) and 23(b)(3) oi'the Federal Rules of Ci'vil
Procedure have been satisfied in that: (a) the number of Settlement Class Members is so
numerous that joinder ofal! members of the Settlement Class is impracticable; (b) there arc
questions or law or fact common to the Settlement Class Members that predominate over any

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individual questions; (c) the claims of the Representative Plaintiffs an.; typical of the claims of
the Settlement Class they

to represent; (d) the Representative Plaintiffs fairly and

adequately represent the interests of the Settlement Class: and (e) a class action is superior to
other available methods for the fair and efficient adjudication of the Action.
4.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, preliminarily and for

the purposes ofthi$ Settlement only, the Representative Plaintiffs are appointed as the class
representatives on behalfofthe Settlement Class, and Boies, Schiller & Flexner LLP. Wolf
Popper LLP, and Lovell Stewart Iialchian Jacobson LLP arc hereby appointed Lead Counsel fur
the Settlement Class (,Plainti rfs' Lead Counsel"). Plainti ITs' l.ead Counsel have the authorit)- t()
enter into the Stipulation on behalf of the Settlemen1 Class and are authorized to act on hehal r

or

the Settlement Class with respect to all aets or consents required by or that may be gi veri
pursuant to the Settlement.
S.

The Court rinds that: (a) the Stipulation resulted from good faith, arm's-length

negotiations; and (b) the Stipulation is sufficiently fail, reasonable and adequate to the
Settlement Class Vlemhers to warrant providing notice of the Settlement to Settlement Class
Memhers and holding a Settlement J learing.
6.

.)(;1 t.. i It

The Settlement I learing shall be held before the Ilot1orable Victor \;larrao un
2013. at

Il~L.m., at the United States District Cour1 for the Southern

District of New York, SOO Pearl Street Ncvv York, New York. 10007, to determine whether the
proposed partial Settlement of the Action on the terms anel conditions pJ"()vided for ill the
Stipulation is fair, reasonahe ancl adequate tu the Settlement Class and should he aprro\ed hy
the Court; whether a FinaJ Judgment and Order of Dismissal with Prejmilce ("Final .Judgment")

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as provided in Exhibit B to the Stipulation should be entered herein; whether the proposed Plan
of Allocation should be approved: whether to approve the Representative Plaintiffs' application
for their reasonable costs ami expenses (including lost wages and an incentive award) directly
relating to their representation of the Settlement Class: to determine the amount of fees and
expenses that should be awarded to PlaintifTs' Counsel; and to rule upon such other matters as
the Court may deem appropriate. The Court may adjourn the Settlement Hearing without further
notice to Settlement Class Members.
7.

The Court approves, as to form and content, the Notice of Proposed Settlement of

Class Action and Settlement Fairness Hearing and Motion for Attorneys' Fees and
Reimbursement of Expenses (the "Notice"), the Summary Notice ("Summary Notice"), and the
Proof of Claim and Release form (the "Proof of Claim"), annexed as Exhibits A-I, A-2 and A-3
to the Stipulation.
8.

The Coun appoints Rust Consulting as the Claims Administrator to supervise and

administer the notice procedure as well as the processing of claims. as follows:
(a)

Not later than ten (10) days after the date of this Order, the Settling

Defendants, and defendants Citco Fund Services (Europe) B. V _, Citco Canada, Inc .. and
GlobeOp Financial Services LLC shall provide to Plaintiff's the last known name and address of
record owners of shares or limited partnership interests in the Funds as of December 2008 in
electronic format in the rOml currently maintained, without redaction, and subject to the
Confidentiality Order in this Action (Dkt. No. 591).
(b)

Not later than fifteen (15) days after the date of this Order (the "Notice

Date"), the Claims Administrator shall cause a copy of the Notice and the Proof of Claim.

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substantially in the fonns annexed as Exhibits A-I and A-3 to the Stipulation, to be mailed by
first class mail to all record owners of shares or limited partnership interests in the funds as of
December 10, 2008 and all Settlement Class Members who can be identified with reasonable
effort;
(c)

Not later than thirty (30) days alter the date of this Order. the Claims

Administrator shall cause the Summary Notice to be published in the international and North
American editions of

Ih(:;

Wall Street Journal on two occasions at least seven days apart, and

shall cause the Summary Notice to be published for international distribution over elLNewswire.
9.

Record owners who are nominees or custodians who held as of Deeember 10.

2008, or currently hold, shares or limited partnership interests orthe J'unds lur the benefit or
Settlement Class Members shall within ten (10) days or receipt or the Notice and Proof of Claim
as provided in

(f 8(b) hereof, either (i) request additional

eopies of the Notice and Proof oCClairn

su11icient to send the Notice and Proof of Claim to all Beneficial Owners for whom they are
nominee or custodian, and within fifteen (15) days aner receipt thereof send copies to such
Beneficial Owners; or (ii) provide a list or the names. addresses and email addresses or such
Beneficial Owners to the Claims Administrator, in which event the Claims Administrator shall
promptly deliver the Notice and Proof of Claim to such Beneficial Owners. Nominees who ekct
to send the Notice and Proof of Claim to their Beneficial Owners shall send a statement
certification to the Claims Administrator confirming that the mailing has been made as directed.
The Claims Administrator shalL if requested, reimburse banks, brokerage hous..:s or otht.:f
nominees or custodians out orthe Settlement fund solely lur their reasonable out-of·pocket
expenses incurred in providing notice

to

Beneficial Owners, which expenses would not have

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been incurred except for the sending of such notice, and subjcct to further order of this Court
with respect to any dispute concerning such reimbursement.
10.

Not later than Jlfteen (15) days after the date or this Order- the Claims

Administrator shall causc the Stipulation and its exhibits, this Preliminary Approval Order. and a
copy of the Notice to be posted on the following website: www.rusteonsulting.com.

11.

Not later than eighty (80) days after the date of this Order. Plaintiffs' Lead

Counsel shall cause to be filed with the Court proof, by atlidavit or declaration, of the mailing
and publishing required by this Order.

12.

The forms and methods set forth herein of notifying SeWement Class Members of

the Settlement and

terms and conditions meet the requirements of due process, Rule 23 of the

Federal Rules of Civil Proccdurc, and Scction 21D(a)(7) of the Exchange Act 15 U.S.c. 78u­
4(a)(7), as amended by the Private Securities Litigation Reform Aet

1995: constitute the best

notice practicable under the circumstances: and constitute due and sufficient notice to all Persons
entitled thereto.
13.

All Settlement

Members shall be bound by all det-.:rminations and

judgments in this Action concerning the Settlement, unless such Persons request -.:xclusion from
the Settlement Class in a timely and proper manner.

14.

Any Person falling within the definition

the Settlement

may, upon

request. be excluded from the Settlement Class. Any request for exclusion must be in the form
of a written, signed statement (the "Request for Exclusion") and received by the Claims
Administrator at the address designated in the Notice on
Hearing (the "Exclusion Deadline").

6

Of

before 35 ciuys prior to the Settlement

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In order to be valid, each such Request for Exclusion (A) must state the name.

address, email address and telephone number of the Person seeking exclusion; state that the
sender "requests exclusion from the SeUlement Class in Anwar, ef al. v. Fairfield (jreemvich

Limifed, el at., Case No. 09-cv-118," and state (i) the full name orthe Fund(s) purchased: (ii) the
date(s), number and dollar amount of shares or limited partnership interests purchased, and of
any redemption transactions; (iii) the dates and amounts of' any other recoveries the Person has
received in respect orthat Person's investment in the Fund(s): and (iv) the number of shares or
limited partnership interests held by that Person in the Fund(s) as of December I D, 200X: and (B)
must be submitted with documentary pIOof(i) orall transactions in Fund shares or limited
partnership interests; and (ii) demonstrating the Person's status as a Beneficial Owner or the
Fund(s). Any such Request for Exclusion must be signed and submitted by the Beneficial
Owner.
16.

A Request [or Exclusion shall not be valid or effective unless it provides the

required information and is made within the time staled above, or the exclusion is otherwise
accepted by the Court. The Claims Administrator shall provide all Requests for Exclusion and
supporting documentation submitted therewith (including untimely requests) to counsel Cor the
Settling Parties as soon as possible and no later than the Exclusion Deadline or upon the receipt
thereof (if later than the Exclusion Deadline). The Settlement Class will not include any Person
who delivers a valid and limely Request for Exclusion.
17.

Any Settlement Class Member who submits a Request for Exclusion shall not be

deemed to have submitted to thejurisdiction of any Court in the United States fur any matter on
account of such submission, and any Settlement Class Member who submits a Proof

7

or Claim

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th~r~by submits to th~ jurisdiction of this Court with respect only to the subject matter of such

Proof of Claim and all determinations made by this Court thereon and shall 110t be deemed to
have submitted to the jurisdiction of this Court or of any court in the United Stales lor any other
matter on account of such submission.
18.

/\oy Person that submits a Request for Exclusion may thereafter suhmit to the

Claims /\dministrator a written revocation of that Request for Exclusion, provided that it is
received no later than two business days before the Settlement Hearing, in which event that
Person will be included in th~ Settlement Class.

19.

All

P~rsons

who submit a valid, timely and unrevoked Request for Exclusion will

be forever barred from receiving any payments purSU<lI1t to the Settlement.

20.

Any Settlem~nt Class Member who wish~s to shar~ in the distribution or the

proceeds of th~ Settlement shall complete and submit a Proof or Claim tiJrm in accordance with
the instructions contained therein. Unless the Court orders olherwisi.? all I'rool'

or ClaIm forms

must be received by the Claims Administrator no later than one hundred and twenty (I

days

after the Notice Date. Any Settlement Class rv1ember \.\'ho does n01 submit a Proof of Claim and
the information and documentation required therein within the time allowed shall be barred from
sharing in the distribution of the proceeds of the Settlement, unless otherwise ordered by the
Court.
21.

Except \'\'here a Settlement Class Member who submits a Request t()r Exclusion

commences or otherwise prosccutes or pursues a Released Claim against a Released Party, all
information submitted by a Settlement Class Member in a Request lor Exclusion or a Proof oj'
Claim shall be treated as confidential protected information and may not be disclosed by the

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Claims Administrator, its affiliates or the Settling Parties to any third party absent a further order
of this Court upon a showing of necessity, and any such infonnation that is submitted to the
Court shall be filed under seal.
22.

Any Settlement Class Member may enter an appearance in the Action, at their

own expense. individually or through counsel of their own choice. in which case such counsel
must file with the Clerk of the Court a notice of such appearance. Absent entry of an appearance
by counsel, Settlement Class Members will be represented by Plaintiris' Lead Counsel.
23.

Any Settlement Class Member may appear and show cause why the proposed

Settlement should or should not be approved as fair. reasonable and adequate. why a judgment
should or should not be entered thereon, why the Plan or Allocation should or should not be
approved, or why attorneys' fees and reimbursement of expenses or an incentive award should or
should not be awarded to Plaintiffs' Counsel or the Representative Plaintiffs; provided, however,
that no Settlement Class Member or any other Person shall be heard or entitled to contest the
approval of the terms and conditions of the proposed Settlement, or, if approved. the Final
Judgment, or any other order relating thereto, unless that Person has filed appropriate objections.
affidavits and briefs with the Clerk of the United States District Court for the Southern District of
New York, on or before thirty-tive (35) days prior to the Settlement I leming and delivered
copies or any such papers to counsel identified in the Notice on or heron: sllch date. An)
Settlement Class Member who does not make an objection in thc manner provided shall he
deemed to have waived sLlch objection and shall forever be foreclosed from making any sllch
objection, unless otherwise ordered by the Court.

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All funds held by the Escrow Agent shall be deemed and considered to he in

custodia legis of the Court, and shall remain subject to theiurisdiction of the Court. until such
time as such funds shall be distributed or returned pursuant to till' Stipulation and Plan

or

Allocation and/or fUl1her order(s) of the Court.
25.

All papers in support of the Settlement. the Plan of Allocation, Representative

Plaintiffs' application for reimbursement of expenses or an incentive a\vard, and the application
for attorneys' fees or expenses, shall be filed and served not later than fifty (50) days prior to the
Settlement Hearing. Any reply papers shall be filed and served no later than fourteen (14) days
prior to the Settlement Hearing.
26.

The Settling Defendants, their counsel and the Released Parties shall have no

responsibility for or liability with respect to the Plan

or Allocation or any application for

attorneys' fees or expenses submitted hy Plaintiffs' Counselor the Representative Plaintiffs. and
such matters will be considered separately from [he fairness, reasonableness and adequacy of the
Settlement.
27.

All reasonahle expenses incun'ed in identifying and notifying Settlement Class

Members, as well as in administering the Settlement, including payment of any taxes, shall be
paid as set forth in the Stipulation. In the event the Settlement is not approved hy the Court, or
otherwisc fails

to

become efTective, neither the Representative Plaintiffs nor Plaintiffs' Counsel

shall have any obligation to repay any amounts actually and properly disbursed from the
Settlement Fund to pay for such expenses.
2X.

Neither the Stipulation, nor any of its terms or provisions, nor any of the

negotiations or proceedings connected with it shall be construed as an admission or concession

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by the Settling Defendants or any of the Released Parties of the truth of any of the allegations in
the Action, or of any liability, fault, or wrongdoing of any kind and shall not be construed as. or
deemed to be evidence of or an admission or concession that the Representative Plaintiffs or any
Settlement Class Members have suffered any damages, harm, or loss. further, neither the
Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings
connected with it. nor this Order shall be construed as an admission Or concession by the
Representative Plaintiffs of the validity of any factual or legal defense or of any intirmity in any
of the claims or facts alleged in this Action.
29.

The Settling Defendants may elect to terminate the Settlement only as prov ided in

the Stipulation. In such event, or in the event the Settlement does not become e1Tedive in
accordance with the terms of the Stipulation or the Effective Date does not occur, then the
Stipulation and this Order (including any amendment(s)

thereot~

and except as expressly

provided in the Stipulation or by order of the Court) shall be rendered null and void, of no further
force or ellect, and without prejUdice to any Settling Party, and may not be introduced as
evidence or used in any action or proceeding by any Person against the Settling Parties or the
Released Panies, and each shall be restored to his, her or its respective litigation positions as they
existed prior to the execution of the Stipulation.
30.

Pending tinal determination of whether the Settlement should be approved or

further order of the Court. the Court hereby stays all litigation of claims and related discovery in
the Action between the Representative Plaintiffs and Settlement Class Memhers on one hand and
the FG Defendants on the other, except as provided in the Stipulation and as necessary to carry
out or comply with the terms and conditions of the Stipulation.

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Exccpt as providcd in the Stipulation, pending final detennination of \vhethcr the

Settlement should be approved or further order of the Court. no potential Settlement Class
Member, whether directly, representatively or in any other capacity. and whether or not such
Persons have appeared in the Action, shall commence or prosecute in any court or forum any
proceeding involving the subject matter of any of the Rekased Claims against any of the
Released Parties. This injunction is necessary to protect and effectuate the Settlement, this
Order, and the Court's f1cxibil ity and authority to effectuate the Settlement and to enter judgment
when appropriate, and is ordered in aid of the Court's jurisdiction and to protect its judgments

32.

The Court reserves the right to consider all fUJ1her applications arising out of or

connected with the Stipulation. The Court may approve the Settlement, with such modilications
as may be agreed to by the Settling Parties, without further notice 10 the SettlemenT Class, where
to do so would not impair Settlement Class Members' rights in a manner inconsistent with Rule

23 and due process of 1m\,.
IT IS SO ORDERED.

DArED:
The Honorable Victor Marrero
United States District Judge

12