Anwar et al v. Fairfield Greenwich Limited et al

Filing 1071

DECISION AND ORDER:Accordingly, the Court hereby DENIES the Trustee's request for a pre-motion conference, deems the Trustee's February 23, 2013 letter a motion to intervene, and DENIES the Trustee's motion to intervene (Signed by Judge Victor Marrero on 3/7/2013) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------- ---- ----x
PASHA S. ANWAR, et al.,
09 Civ. 0118 (VM)
Plaintiffs,

-againstFAIRFIELD GREENWICH LIMITED,
et al.,
DECISION AND ORDER
Defendants.

--- --- --- --- X

VICTOR MARRERO, United States District Judge.

By letter dated February 23,
Picard

(the "Trustee"),

requested

a

counsel to Irving

the court appointed Trustee in the

liquidation of Bernard L.
(lIBLMISlI),

2013,

Madoff

Invest~ent

pre-motion

Securities LLC

conference

and

advised

the Court of the Trustee's intention to file a motion to
intervene in this action.

Specifically,

the Trustee seeks

intervention in order to assert at the upcoming March 22,
2013

fairness

hearing before

this

Court

that

the Trustee

has superior claims to the assets that are the subject of
the proposed settlement agreement between the Plaintiffs in
this action and defendants Fairfield Greenwich Limited and
Fairfield

Greenwich

(Bermuda)

Limited

"Fairfield Greenwich Defendants") .

-1­

(collectively,

the

The Trustee asserts that,
Civil Procedure 24 (a),

pursuant to Federal Rule of

he is entitled to

right because "the proposed settlement,

intervene as of

if approved,

would

drain money from the same limited pool of assets on which
the Trustee has first claim under SIPA.
Therefore,

2. )

the Trustee claims

(Dkt. No. 154 at

II

that he

has

a

direct

interest relating to the property or transaction and that a
partial settlement in this action would impair his ability
to protect the interest of
Al ternatively,

property.
to

intervene pursuant

the bankruptcy estate in this

the Trustee requests permission

to

Federal Rule

of

Procedure 24 (b)

because there are common questions of law and fact between
the

various

Fairf

actions

the

Trustee

has

brought

against

the

ld Greenwich Defendants and this action, and because

intervention

will

not

unduly

delay

or

prejudice

the

adjudication of the rights of the existing parties.
Plaintiffs and the Fairfield Greenwich Defendants have
filed
(Dkt.

separate
Nos.

1060

request

to

Trustee

lacks

letters

opposing

and 1061.)

intervene

Trustee's

request.

They argue that the Trustee's

should

standing;

the

(2)

be

denied

because

intervention

is

(1)

the

unnecessary

because the Trustee's objection is already pending before
this Court in the form of a motion to enjoin the proposed
settlement

agreement;

(3)

the

-2

Trustee's

request

is

untimely;

and

(4)

any further proceedings by the Trustee

would cause undue delay and prejudice the interests of the
parties.
The Court finds that neither mandatory nor permissive
intervention by
action.

the

Trustee

To begin with,

is

warranted

nonparties,

in

the

present

such as the Trustee,

generally do not have standing to object to a class action
settlement.

See,

~,

Merck-Medco

LLC,

504

(citation
filed

omitted)

a

motion

settlement,

Central
F.3d

229,

Moreover,

to

enjoin

States

the

244

the

Welfare
(2d

Fund

2007)

Cir.

Trustee

v.

has
class

preliminary

already
action

which is currently pending before this Court,

in which he advances the same theory that the Trustee has
superior

claims

assets.

This Court has before

and

Plaintiffs'

the

to

the

and

Fairfield

Greenwich

Defendants'

the Trustee's arguments

Fairfield

Greenwich

responses to the underlying issue.

Defendants'

Therefore intervention

in this action is not necessary to protect the Trustee's
alleged interest.
in

this

notice

action
of

Finally,
nearly

any alleged

prior to the

final

four

the Trustee seeks intervention
years

interest

after

and

fairness hearing.

the

less

3­

than

one

Therefore,

the Trustee had valid grounds to intervene,
this point is barred as untimely.

Trustee

had

month

even if

his motion at

Accordingly,
request

for

a

the

Court

pre-motion

hereby

conference,

DENIES

the

Trustee's

deems

the

Trustee's

February 23, 2013 letter a motion to intervene, and DENIES
the Trustee's motion to intervene.
SO ORDERED.

Dated: New York, New York
7 March 2013

/'"

~
,/

~

~.

VI TOR MARRERO
U.S.D.J.

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