Anwar et al v. Fairfield Greenwich Limited et al

Filing 1103

ENDORSED LETTER: addressed to Judge Victor Marrero from David A. Barrett dated 3/29/2013 re: Accordingly, Plaintiffs request that Mr. Wallner's letter be treated as a motion for reconsideration by the Morning Mist Derivative Plaintiffs, and denied. The settling Defendants join us in this request. 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.. (Signed by Judge Victor Marrero on 4/3/2013) (js)

03/28/2013 15 01 FAX

212 448 2350

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BOIES SCHILLER

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575 LEXINGTON AVENUE' 7TH FI.OOR· NEW YORK. NY 10022' PH

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212 446 2300 • FAX [phone]SC

March 29,2013

BY FACSIMILE
Judge Victor Marrero
United States District Court
Southern District of New York

500 Pearl Street
New York, New York 10007
Re:

Anwar, et al. v. Fairfiehl Greenwich Limited, el al.
Master File No. 09-CV -0011 &(VM) CfM)

Dear Judge Marrero:
We write to rc::;pond to lhe March 27,2013 letter from Robert Wallner on hehalf
of the Morning Mis! Den vative Plaintiffs. seeking a pre-motion conference to address tl
motion for reconsideration in light of Comca.r;;t Corp. v. Behrend. 2013 WL t 222646
(2013). The Comeast opinion, however, has no application to this Court's well-reasoned
dccislon to overrule the Morning Misl Derivative Plaintiffs' objection to the pa.rtial
settlement in this action. (Dkt. No.1 093).
"The major grounds Justifying reconsideration are 'an intervening change of
controlling law, [he availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.'" Virgin Arl. Airways, LId. v. Nal'l Mediation Hd, 956 F.2d
1245, 1255 (2d Cir.1992) (quoting 18 C. Wright, et aI., Federal Practice & Procedure 9
4478 at 790). As this Court has recognized, "raJ coun must narrowly construe and
strictly apply Rule 6.3 so as to avoid duplicative mlings on previously considered issues
and to prevent Rule 6.3 from being llsed either 10 advance different theories not
previously arGued Or as a substitute for appealing a final judgment." Anwar \I. Fairfield
Greenwich LId., 884 F.Sllpp.2d 92,96 (S.D.N.Y. 2012).
In Comeast, the Supreme Court held that the "[r]espondents' class action was
improperly certified under Rule 23(b)(3)" because the lower courts refused ·'to entertain
arguments against respondents' damages model that bore on the propriety of class
certification, simply because those arguments would also be pertinent to the merits

determination." Comcast, 2013 WL 1222646. at *5.
COmcaJ'I is not controlling law and provides no basis for a motion for
reconsidera1ion. The Comcast decision does not discuss clas~ action settlements, nor the
issue oL'whether settling class members may release derivative claims as part of the

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212 448 2350

BOIES.

BDIES SCHILLER

SCHILLER

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FLEXNER

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Judge Victor Marrero

March 29, 2013

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settlement of a class action that is brought by shareholders of an invMtment ftmd alleging

direct claims of misrepresentation and breach of duty and of contract. Tndeed, far from

being controlling authority, Comca.~, is completely irrelevant to the issueg raised by the

Morning Misl Derivative Plaintiffs. Accordingly, Plaintiff..:; respectfully request that Mr.

Wallner's letter be treated as a motion for reconsideration by the MurninJ{ Mis!

Derivative Plaintiffs, and denied. The Settling Defendants join tiS in this request.

;rJ!!IiJ;JI'
David A. Barrett

cc:

All counsel in Anwar
Robert A. Wallner, Esq.

The ~Ierk of Court is directed to enter into the public record
ofthts ~ctlon the Ie er above submitted to the Court by
'::.I

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