Anwar et al v. Fairfield Greenwich Limited et al

Filing 1091

ENDORSED LETTER addressed to Judge Victor Marrero from Mark G. Cunha dated 3/15/2013 re: On behalf of the Settling Defendants, we respond to the letter of 3/12/2013 from David J. Sheehan, counsel for the BLMIS Trustee. The Trustee seeks leave from the Court to file additional material in support of a motion to intervene that has already been denied by Order dated 3/8/2013. The Trustee acknowledges that he is not requesting the Court to reconsider his request for intervention. Instead, he seeks to supplement the record for his contemplated appeal of the Order. We respectfully submit that a pre-motion conference is unnecessary and that the Court should deny the Trustee's request to supplement the record with the material enclosed with his letter to the Court dated 3/12/2013. Because the Trustee's letter, apparently with attachments, alreadywas added to the record, to avoid any doubt concerning the proper composition of the record, we respectfully request the Court to strike pages 3 through 70 of the document file at Dkt. No 1080. ENDORSEMENT: Request GRANTED. The Clerk of Court is directed to strike pages 3 through 70 of the document filed under Docket No. 1080. These pages were entered into the record by error. The Court's endorsement on the Trustee's letter to the Court dated 3/12/13 explicitly directs the Clerk of Court to enter into the record "the letter above" the Court intended the Order only as to the letter. (Signed by Judge Victor Marrero on 3/15/2013) (sac)

Mar-IS-2013 03:47pm

From-SIMP ON THACHER

+

T-522

F-755

P 002

SIMPSON TRACHER &: BARTLETT LL
425LEXXNGTO~AvBNUn

NJJ:W YORE, N.Y. 10017-<39154

...
. . ....
.-----....--" .-­ .::..:"-+.:--=-=--=-=====:::.

(CH~I 4Go·eooo

- - ,; L~~\)C Sli:-;y
DJJI.1iC'I DlAZ.

FACSDCrtJt

N~1!lR

2U-45S-347S

(212)

41+Ef~tC ~ 1E;\ r

!i
:. r:ECTI{O:'-:t I\LLY nU~D ::
l()\:::

; ~ \\1 E 11 i

BY FACSIMILE

E-MAIl:. ....

])DnCS~

[e-mail]

k il
-[)+.-'<:--:_H..:-"""~_.....-'/ru
n'

1

March 15,2013

Re:

The Honorable Vi
United States Cou
Southern District
500 Pearl Street
New York, NY 1

I

Anwar, er al. v. Fairfield Greenwic Limited,
No. 09-cv-00118(VM) (S.D.N. Y.)

el

al.,

tor Marrero
house
New York
07-1312

Dear Judge Marrer
On ehalfofthe Settling Defendants, we respond to tl e letter of March 12,
2013 from David J Sheehan, counsel for the BLMIS Trustee (the" etter"). The Trustee
seeks leave from t e Court to file additional material in support of a otion to intervene that
has already been d nied by Order dated March S, 2013 (the "Order"). The Tmstee
acknowledges that e is not requesting the COllrt to reconsider his re uest for intervention.
Instead, he seeks t supplement the record for his contemplated appe of the Order.
It is ifficult to understand what the Trustee seeks to a complish by
requesting to suppl ment the record after the Court's decision. The r ason and grounds [or
the Trustee's reque t to intervene were adequately set forth in his Fe ruary 26, 2013 letter
requesting a pre-m tion conference. In any event, menloranda of la are not pan of the
record on appeal. ee Unired Srares v. Noall, 587 F.2d 123, 125 n.1 ( d Cir. 1978). The
only factual materi which the Trustee seeks to submit is contained i a declaration by
Mark A. Kornfeld hich appears to repeat verbatim the same alleged facts that Mr. Komfeld
previously presente to the Court in connection with the Trustee's ad ersary proceeding to
enjoin the propose Settlement. See Decl. of Mark A. Kornfeld, Pic d v. Fairfield
Greenwich Limired et al., No. 12 Civ. 9408 (S.D.N.Y. Jan. 11,2013), Dkt. No. 24. Should
the Court deny the rustee's request to enjoin the proposed settlemen -made on the exact
same basis as his d plicative request to intervene-he may pursue w atever appellate rights
he may have on a r cord that includes Mr. Kornfeld's declaration.

BEIJxNo HONG KONG Ho

N

LONDON Los ANGEt..l!S P.u.o A.I.TO SAo

PAln.O

SEOUL TOEYO WASHING'TON', D.C.

Mar-1S-Z013 03:47pm
SDtPSON

+

From-SI PSON THACHER

Tlt..t..c

T-522

P.003

F-7S5

4& BABTI.XTT I.I.P

The Honorable

",

Mareh 15,2013

-2-

N r would the Trustee'. application accompli.h hi.lstated purpose of
augmenting the r rd on appeal. Material that was not before the :district coun at the time
of its ruling is no properly considered by the Cowt of Appeals. SJe Dictograph Prods. Co.
v. Sonotone Cor ,231 F.2d 867 (2d Cir. 1956) ("On this appeal w~ may not consider any
depositions or 0 er evidence that were not filed in the district cour't when [it] decided the
motion."); Unite States v. Blinder, ] 0 F.3d 1468, 1477 (9th Cir. 1'93) ('ilapers submitted
to the district co . after the ruJing that is challenged on appeal shoWd be S1.ricken fTOm the
record on appeal') (quotation omitted»; Mira v. Plumbers & Pipefitters Nat '/ Pension Fund.
No. 01 CV 5196,2002 WL 31357702, at *2 (S.D.N.Y. Oct. 17, 20eb) ("Because plaintiffs
supplemental affi :vit was not part of the record when the Court rJJed on defendants'
summary judgm t motion and plaintiff's cross-motion seeking thd same, it may not now
I
become pan of t record on appeal.").

In

dition, "[o]nly where the parties dispute the acdl.lracy of certain portions
of the record sho Id the district court address the issue of what is ink:luded in the record on
appeal." Shre;er . Weight Walchers Ne. Region, Inc., 872 F. SuPPJ 1,4 (E.D.N.Y. 1994).
Because the Trus ee seeks to ':'alter or add" evidence to the record at opposed to
"supplement[ing] a record that is incomplete because of enor or 01ission," his request is
improper. Jd
.
I

Th se limitations on a pany's ability to supplement the record are necessary,
among other reas ns. to preserve the finality ofa district coun's dedision and to conserve
the parties' reso cs. If a party were free to supplement the record 'with additional evidence
or memoranda, th opposing party may be compelled to spend time land resources in
responding, op . g the door to potentially endless submissions on Issues already decided.
This is wholly in nsistent with the Trustee'S plll'ported concern with "the interests of
judicial and party conomy." See Letter from David Sheehan at 2, ,CF No; 1054.
.

.

,

W respectfully submit that a pre-motion conference lis unnecessary and that

the Court should cny the Trustee's request to supplement the record with the material
enclosed with his etter to the Court dated March 12,2013. Becausd the Trustee's letter.
apparently with a achments, already was added to the record, to avdid any doubt concerning
the proper compo idon ofthe record, we respectfully request the Co~n to strike pages 3
through 70 of the ocument filed at Dkt. No.1 080. See Natural Re~Jpurces Defense Council
v. u.s. Food & D gAdmin., 884 F. Supp. 2d lOS, 116 n. 5 (S.D.N.V. 2012) ("a cowt has
inherent authority ·0 strike any .filed paper which it determines to bel ... improper Wlder the
circumstances." (q otation omitted».
.
I

...,........~~~'!"""l~~~~se~l,...fo_r,.p_l81~·..
...
nt:,iffl","s_a_d,.v..
is.eythat they agree with the relief sought here,

4J!~~~~~~~!:p:'c..~.-~~-=-~~_

~~.
Mark G. Cunha

I

C/t.

Mar-15-2013 03:47pm

From-SIM SON THACHER

SIMPSON Tlu.cllER

T-522 P 004

F-755

BAR'rLE'rT LLP

The Honorable V ctor Marrero

cc:

+

Counsel i Anwar (by email)
David J. S eehan, Esq. (by email)

-3­

March 15,2013