Anwar et al v. Fairfield Greenwich Limited et al

Filing 1148

ENDORSED LETTER: addressed to Judge Victor Marrero from David S. Stone dated 6/7/2013 re: On behalf of putative class Plaintiff Caso, we respectfully submit this brief response to the June 5, 2013 letter reply of Standard Chartered Bank. Intemationa1 (Americas) Ltd. ("Standard Chartered"). Although Standard Chartered's reply adds little to its argument, it contains misstatements of law and fact which warrant clarification. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by plaintiff Ricardo Rodriguez Caso. No further submission on these underlying issue will be necessary, and will not be accepted. So Ordered. (Signed by Judge Victor Marrero on 6/7/2013) (js)

Jun. 7. 2013

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June 7,2013
Honorable Victor Marrero
United States District Court Judge
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, NY 10007
Re:

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1!D;ATE ~--::.~.,~':±.~::!I

Anwar, et al. v. Fairfield Greenwich, Ltd, ef al., No. 09-CV-llS (S.D.N.Y.) -­
Caso v. Standard Chartered Bank International (Americas) Ltd., et a1.

No. 10-CV-9196 (S.D.N.Y.)
Dear Judge Marrero:
On behalfof putative class Plaintiff Caso, we respectfully submit this brief respoDSe to
the June 5,2013 letter reply of Standard Chartered Bank. Intemationa1 (Americas) Ltd..
("Standard Chartered"). Although Standard Chartered's reply adds little to its argument, it
contains misstatements of law and fact which warrant clarification.
The crucial fact here, as this Court recognized in its May 18,2013 Order, is that the
parties agreed in the NISA that "all controversies between [the parties] arising out of or
concerning the Agreement,lhe Investment Account, Transactions, Holdings or any related matter
shall be detennined by arbitration.,,1 The language of this Order clearly demonstrates that the
Court understood and interpreted this provision to require an controversies, including Plaintiffs
putative class action claim and whether Plaintiff could pursue a class action, to be cletennined by
arbitration,2 This is apparent from the fact that nowhere does the Order refer to Caso's
individual claims.
I The cases relied on by Standard Chartered are irrelevant to the situ81ion here. Ryan v. JP Morgan Chase & Co.,
2013 U.S. Dist. LEXIS 24628 (S.P.N.Y. 212112013), involved an arbitration clause with an express. class Q(;tiOD
waiver, whereas the NISA has no such provision. Santkn \1. Fo/'ex. Capiral Markets LLC, 2011 WL 5980202, at *4
(S.D.N.Y. Nov. 29, 2011) involved an arbitration clause that was silent as to whether the arbitrability ofa dispute
was for the court or for the arbitrator, whereas in the NlSA, the parties agreed to be bound by the rules of the AAA,
which r:nak.e that iuue arbitrable.
2 Nor, as Standard Chartered implies, has this Court held that class arbitration is inherently incompatible with the
arbitration process. InAlIwar v. Fairfield Greenwich Ltd, 728 f.Supp.2d 462 (S.D.N.Y. 2010), this Court held that
collective arbitrations were permissible as a normal matter of joinder. Anwar did not address whether class

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Honorable Victor Marrero

June 7,2013

Page 2 of2

Indeed, the Court's decision was consistent with the Second Circuit's holding in Emilio v.
Sprint Spectrum L.P., 2013 WL 203361 (2d Cir. Jan. 18,2013), that arbitration provisions
wherein the parties agree to be boWld by arbitration rules that make the class arbitration issue
arbitrable take that issue away from the courts.:3 The AM, in compliance with the Court's
Order, has placed the parties on a schedule to decide the arbitrability of Caso' s class action
claims. Consistent with the parties' agreement to arbitrate "all controversies," the parties will
have their very first opportunity to fully brief class issues that have great significance to the
putative class and lead plaintiff as well as to Standard Chartered in the arbi1ration. Accordingly,
Standard Chartered's request should be denied.

Respectfully submitted,

?~
David S. Stone

arbitrations would be permissible when the parties expressly commit "all controversies" and "any rel8Ied matter" to
arbitraIion in a forum that expressly provides rules for class arbitrations.

In Ibis reBpect, the proceduraJ status of Emilio is irrelevant. Moreover, Standard Chartered's attempt to distingui~
Emilio is unavailing because the AAA Rules (Rule l(c)), like the JAMS rules at issue in Emilio (Rule 4), also
require arbitrators to comply with tourt orders.

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