Anwar et al v. Fairfield Greenwich Limited et al

Filing 1193

STIPULATION AND ORDER STRIKING ALLEGATIONS AND DEFERRING DISCOVERY IN SPECIFIED STANDARD CHARTERED CASES: that Plaintiffs agree to strike allegations of misrepresentations made in the context of their breach of fiduciary duty claims, as further set forth in this Order; Plaintiffs agree to strike allegations of misrepresentations regarding due diligence and the characteristics of the Fairfield Sentry fund in the context of their negligent misrepresentation claims, as further set forth in this Order; the parties in the Actions agree that the claims in plaintiffs' respective complaints for fraud and gross negligence and the allegations set forth therein shall not be affected by the language of this Stipulation other than as so specifically set forth herein; the parties in the Actions agree that the March 2012 Stipulation deferring discovery concerning plaintiff-specific issues will apply as further set forth in this Order; the parties in the Actions agree that Standard Chartered will answer plaintiffs' respective complaints on or before the forty-fifth day following the Court's entry of this Stipulation and Proposed Order; Plaintiffs in the Actions have preserved the right to appeal the actions described above in paragraphs 1 and 2 of this Stipulation and Proposed Order, as further set forth; and the parties in the Actions reserve all rights with respect to plaintiffs' ability to file Amended Complaints and defendant's ability to oppose the filing of any Amended Complaints. (Signed by Judge Victor Marrero on 9/18/2013) (tn)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JUDGE i'JIAhRERO

PASHA S. ANWAR, et al.,
Plaintiffs,

v.
FAIRFIELD GREENWICH LIMITED,

Master File No. 09-CV-118 (VM) (FM)

et al.,
Defendants.
This Document Relates To: Specified
Standard Chartered Cases

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STIPULATION AND

ORDE:
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STRIKING ALLEGATIONS AND DEFERRING DISCOVERY
IN SPECIFIED STANDARD CHARTERED CASES
WHEREAS, plaintiffs represented by undersigned counsel have brought
the following six actions (the "Actions") raising similar, and in many actions identical,
allegations and causes of action concerning the conduct of Standard Chartered Bank
International (Americas) Ltd. ("SCBI") arising out of plaintiffs' investments in Fairfield
Sentry Ltd. and/or Fairfield Sigma Ltd.:

(I)

Emilio Diaz v. Standard Chartered Bank International (Americas) Ltd.,
No. 12-cv-9146;

(2)

Bernardo J. Rosental v. Standard Chartered Bank International
(Americas) Ltd., No. 12-cv-9421;

(3)

Lyac Venture Corp. v. Standard Chartered Bank International (Americas)
Ltd, No. 12-cv-9422;

(4)

Sara Boltvinik de Uziel v. Standard Chartered Bank International
(Americas) Ltd., No. 12-cv-9423;

(5)

TRE-C, S.A. v. Standard Chartered Bank International (Americas) Ltd.,
No. 12-cv-9425;

(6)

Skyworth Products Ltd v. Standard Chartered Bank International
(Americas) Ltd~ No. 12~cv-9427;
WHEREAS, the Initial Scheduling Order Regarding Standard Chartered

Cases (Dkt. No. 375)~1 as amended by the Second Amended Scheduling Order Regarding
Standard Chartered Cases (Dkt. No. 609), the August 9, 201 t Order Amending the
Second Amended Scheduling Order Regarding Standard Chartered Cases (Dkt. No. 695)
and the August 13,2012 Stipulation and Scheduling Order Regarding Standard Chartered
Defendants Time to Respond to Complaints in Specified Standard Chartered Cases
(collectively, the "Scheduling Orders") direct the parties to apply the Court's prior
rulings in these consolidated proceedings across all cases to avoid "duplicative motion or
pleading practice on matters already considered by this Courtn (Dkt. No. 609 1 15), and,
in circumstances where the Court's prior rulings require the dismissal of later-filed claims,
to "confer and determine whether they can agree that such claim[s] ... shall be dismissed
pursuant to the bases set forth" in this Court's prior rulings, subject to plaintiffs' right to
"challenge the dismissal of the claim on appeal" (Dkt. No. 6091 16(a)(ii) n.3);
WHEREAS, plaintiffs in the Actions assert claims against SCBI that are
identical or substantially similar to other claims asserted against SCBl by other plaintiffs
in this consolidated proceeding (the "Standard Chartered Cases");
WHEREAS, this Court has issued three prior orders in these proceedings,
on October 4,2010, November 2,2011 and September 12,2012, dismissing similar
claims raised by plaintiffs in the Standard Chartered Cases;

All docket citations are to Case No. 09-cv-118, unless otherwise noted.

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WHEREAS, counsel for the parties in the Actions have conferred
regarding the application of the Court's prior rulings to the claims and allegations made
in the Actions;
WHEREAS, plaintiffs in the Actions and SCBI agree that under the
Court's prior rulings, plaintiffs' claims for breach of fiduciary duty and negligent
misrepresentation would not survive a motion to dismiss because:
• plaintiffs' allegations of misrepresentations made in their breach of
fiduciary duty claims (e.g.• Diaz CompI. "57, 58(e)-(f)) would not as
now pled support a cause of action under the Courfs prior ruling that
such alleged misrepresentations fail under Rule 9(b) of the Federal
Rules of Civil Procedure because plaintiffs "do not adequately allege
the context of each alleged misrepresentation with sufficient
particularity" or "plead with particularity facts giving rise to a strong
inference that a defendant acted with the requisite state of mind,"
Anwar v. Fairfield Greenwich Lid., 826 F. Supp. 2d 578, 586-87

(S.D.N.Y.

2011)~

• plaintiffs' allegations in their negligent misrepresentation claims that
SCBl misrepresented its due diligence and the characteristics of the
Fairfield Sentry fund (e.g., Diaz Compi." 66-70) would not as now
pled support a cause of action under the Court's prior ruling that such
alleged misrepresentations fail under Rule 9(b) of the Federal Rules of
Civil Procedure because plaintiffs "do not adequately allege the
context of each alleged misrepresentation with sufficient particularity"

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or "plead with particularity facts giving rise to a strong inference that a
defendant acted with the requisite state of mind," Anwar, 826 F. Supp.
2d at 586-87; see also Anwar v. Fairfield Greenwich Ltd., 891 F. Supp.
2d 548, 553-555 (S.D.N.Y. 2012);
WHEREAS, each of the Actions was initiated and transferred to this

Court after the close of general fact discovery in the Standard Chartered Cases, which
occurred on May 4, 2012; and
WHEREAS, counsel for the parties in the Actions have conferred

regarding the efficient management of these actions and previously stipulated to defer
discovery on plaintiff-specific issues in other Standard Chartered Cases under the March
2, 2012 Stipulation and Order Regarding Discovery in Specified Standard Chartered
Cases (the "March 2012 Stipulation");
NOW, THEREFORE, IT IS HEREBY STIPULATED AND
AGREED by and between the undersigned counsel for parties in the Actions, subject to

the approval of the Court, that:
1.

Plaintiffs agree to strike allegations of misrepresentations made in the

context of their breach of fiduciary duty claims, which are pleaded as Count J in the
complaints filed in the Actions, including, for example, paragraphs 57 and 58(e)-(f) of the
complaint in Emilio Diaz v. Standard Chartered Bank International (Americas) Ltd, No.
12- cv-9146 ("Diaz").
2.

Plaintiffs agree to strike allegations of misrepresentations regarding due

diligence and the characteristics of the Fairfield Sentry fund in the context of their
negligent misrepresentation claims, which are pleaded as Count 2 in the complaints filed

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in the Actions, including, for example, paragraphs 66-70 of the complaint in Diaz. For
the avoidance of doubt, the scope ofthe surviving negligent misrepresentation claims in
the Actions shall be the same as the negligent misrepresentation claims alleged in the
actions addressed in the September 5, 2012 so-ordered stipulation (Dkt. No. 936)
between SCBI and other plaintiffs represented by the undersigned counsel for the
plaintiffs.
3.

The parties in the Actions agree that the claims in plaintiffs' respective

complaints for fraud and gross negligence and the allegations set forth therein shall not be
affected by the language of this Stipulation other than as so specifically set forth herein.
4.

The parties in the Actions agree that the March 2012 Stipulation deferring

discovery concerning plaintiff-specific issues will apply to the Actions as if they were
listed as among the "Stipulating Actions" in paragraph 1 of the March 2012 Stipulation.

S.

The parties in the Actions agree that Standard Chartered will answer

plaintiffs' respective complaints on or before the forty-fifth day following the Court's
entry of this Stipulation and Proposed Order.
6.

Plaintiffs in the Actions have preserved the right to appeal the actions

described above in paragraphs 1 and 2 of this Stipulation and Proposed Order, which
shall be deemed to have been rendered based on the reasoning set forth in the Court's
prior rulings. In the event of a successful appeal ofthe Court's prior rulings by plaintiffs
in the Actions, the plaintiffs in the Actions reserve their right to reassert any allegations
struck pursuant to the terms of this Stipulation.

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7.

The parties in the Actions reserve all rights with respect to plaintiffs'

ability to file Amended Complaints and defendant's ability to oppose the filing of any
Amended Complaints.
DATE: August"3(, 2013

CURB~~ ~~ _ _ _
_
_
Laurence E. Curran
Attorneys for Plaintiffs Emilio Diaz,
Bernardo J. Rosental, Lyac Venture
Corp., Sara Boltvinik de Uziel, TRE­
C, SA., and Skyworth Products Ltd

Attorneys for Defendant Standard
Chartered Bank International
(Americas) Ltd

SO ORDEREDlhiS;t!£

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