Anwar et al v. Fairfield Greenwich Limited et al

Filing 1067

ENDORSED LETTER: addressed to Judge Victor Marrero from David A. Barrett dated 3/4/2013 re: Counsel for Plaintiffs write Accordingly, Plaintiffs agree with the FG Defendants' request that the Class Certification Order should not apply to Plaintiffs' claims against the FG Defendants. As will he further discussed in Plaintiffs' Reply Memorandum in support of final approval of the Settlement, we will request that in the event the Court grants final approval, the ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by plaintiffs. So Ordered. (Signed by Judge Victor Marrero on 3/6/2013) (js)

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March 4,2013

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Judge Victor Marrero
United States District Court
United States Courthouse
Southern District of New York
500 Pearl Street
New York, NY 10007

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Anwar, et al. v. Fairfield Greenwicll Limited, et aL.
No. 09-cv-OOl18(VM) (S.D.N. Y.)

Dear Judge Marrero:
On behalf l)[ Plaintiffs, we respond to the February 28. 2013 letter to the Court
IT-om Mark G. Cunha, counsel for the FG Defendants. As Mr. Cunha notes, paragraph 30
of the Court's Order Preliminary Approval the Settlement (ECF no. lO08, the
"Preliminary Approval Order") imposed a stay of "all litigation ... in the Action between
[Plaintiffs J and the FG Defendants." In light of that stay, Plaintiffs join in the FO
Defendants' request that the Court enter an order clarifying that the Decision and Order
of February 25. 2013 (ECF no. 1052, the "Class Certification Order"), does not apply to
Pla.intiff,)' claims against the FG Defendants at this time. As Mr. Cunha notes, the
requested clarification would avoid any need for what, we hope, would be unnecessary
motion practice prior to the final fairness hearing on March 22, 2013.
In connection with the Class Certification Order, Plaintiffs further note that in
paragraph 2 of the Preliminary Approval Order, the Settlement Class was defined in
relevant part as:
[AlII Persons who were Beneficial Owners of shares or limited partnership
interests in the Funds a,c:; of Decem her 10, 2008 (whether as holders of
record or traceable to a shareholder or limited partner account of record),
and who suffered a Net Loss of principal invested in the Funds ....
Under this definition, the Settlement Class does not exclude persons from a number of
countries that were excluded in the Class Certification Order (the "Excluded Countries").
Plaintiffs and the FG Defendants are in agreement that no change in the def1nhion
of the Settlement Cla<;s is necessary in light of thl.': Clas!) Certification Order. In other
words, the Settling Parties intend that the Settlement, as agreed by the parties and

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prciiminarily approved by the Court, should cover beneficial owners of the Funds on a
worldwide basis without excluding beneficial owners in any countries.
A~ the Class CeniIicalion Order makes clear. the question whether a United
States class action judgment would be enforceahle in other countries is a hotly-contested
issue, just like many other issues in the Action. The Parties were, of course, fully aware
of and famUiar with that issue when they executed the Stipulation of Settlement, having
exhaustively briefed it and "presented ... extensive dueling expert reports" (Class
Certification Order at 19). Having considered that contested issue along with all other
aspects of the case, the Setting Parties agreed to the Settlement Class detinition as part of
the bargain in a heavily-negotiated overall agreemc:nL I

It is axiomatic that certification of a settlement class in a securities case is "the
best, most practical way to effectuate settlements involving large numbers of claims
...." In Re Giant Interactive Group, Inc. Sec. LiTig, 279 F.R.D. 151, 158 (S.D.KY.
2011). Courts in this District and elsewhere regularly certify worldwide settlement
classes although judgment recognition issues (see Class Certification Order at t 6-39)
may a.rise in the contcxt of a litigatcd class. See, e,g, in re GianI Inleraclive, 279 F.R.D.
at 159 (superiority requirement satisfied for settlement class comprising of thousands of
owners geographically dispersed in U.S .. Canada and China); Taft v, Ackermans, 2007
U.S. Dist. tEXIS 9144 (S.D.N.Y. January 31, 2007) (certifying settlement class in
securities action ",ith several thousand class members around the world); In re Lloyd's
Am. TrUST Fund Licig, 2002 U.S. Dis1. LEXIS 22663 (S.D.N.Y. November 26,2002) at
'" 5 (certi fying settlement class of over one thousand members from dozens of countries
including France, Swit7eriand, South Africa, England and Canada); in re Royal Ahold
N. V Sec. and ERiSA Litix., 437 F. Supp. 2d 467 (D. Md. 2006) (certifying a worldwide
settlement class in securities action with class and related claims barred in any [orwn);
An'war v. Fairfield Greenwich Group (DaSilva Ferreira v. EFG Capital, No. 11 Civ.
0813 (VM), ECF no. 890 (Final Judgment June L 2012) (while defendant raised res
judicata issues in class certification briefing: the parties agreed on settlement class
covering all relevant countries).
Accordingly, Plaintiffs agree with the FG Defendants' requcst that thc Class
CL:rtification Order should not apply to Plaintiffs' claims against the FG Defendants. As
will he further discussed in Plaintiffs' Reply Memorandum in support of final approval of
the Settlement, we will request that in the event the Court grants tinal approval, the

The non-settling Defendants have not objected to the definition of the Settlement
Class. The scope ofthe class in the continuing litigation against the non-settling
Defendant" will be as defined in the Class Certification Order.
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March 4,2013
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detinition of the Settlemenl Class should remain as set forth in the Preliminary Approval
Order. The fG Defendants join in this reque~t.
Respctful

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avid A. Barrett

cc:

Counsel In Anwar (by email)

. The ~lerk. of Court is directed to enter into the public record
the letter above submilt<d to the Court by

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_SO_O_R-: :D~F., =.R:,!:E; .D_._...?/ ~____
?VICTOR MARRERO. U.S.D.J.