Anwar et al v. Fairfield Greenwich Limited et al

Filing 1217

REPLY MEMORANDUM OF LAW in Support re: #1203 MOTION for Settlement Notice of Motion for Final Approval of the Proposed GlobeOp Settlement and Plan of Allocation and an Award of Attorneys' Fees and Reimbursement of Expenses.. Document filed by Pacific West Health Medical Center, Inc. Employee's Retirement Trust. (Attachments: #1 Exhibit A - Proposed GlobeOp Final Judgment and Order of Dismissal with Prejudice, #2 Exhibit B - Final Judgment and Order Awarding Fees and Expenses)(Finkel, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PASHA ANWAR, et al.,
Plaintiffs,
v.
FAIRFIELD GREENWICH LIMITED, et al.,

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

Defendants.
This Document Relates To: 09-cv-118 (VM)

PLAINTIFFS’ REPLY MEMORANDUM IN FURTHER SUPPORT OF
MOTION FOR FINAL APPROVAL OF THE PROPOSED GLOBEOP
SETTLEMENT AND AN AWARD OF FEES AND EXPENSES
BOIES, SCHILLER & FLEXNER LLP
David A. Barrett
Howard L. Vickery, II
575 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

WOLF POPPER LLP
Robert C. Finkel
James A. Harrod
Natalie M. Mackiel
845 Third Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

BOIES, SCHILLER & FLEXNER LLP
Stuart H. Singer
Carlos Sires
Sashi Bach Boruchow
401 East Las Olas Boulevard, #1200
Ft. Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]

LOVELL STEWART HALEBIAN JACOBSON LLP
Christopher Lovell
Victor E. Stewart
61 Broadway, Suite 501
New York, NY 10006
Telephone: [phone]

Co-Lead Counsel for Plaintiffs

Before the Court is the Representative Plaintiffs’ motion for final approval of the
proposed settlement between the Representative Plaintiffs and Defendant GlobeOp for $5
million of immediate cash consideration.1 The Representative Plaintiffs, in their Opening Final
Approval Memorandum (Dkt. No. 1204) (“Opening Mem.”), demonstrated that the proposed
settlement is fair, reasonable and adequate, among other reasons, because the Representative
Plaintiffs faced significant legal and factual issues in pursuing their claims against GlobeOp.
The recovery achieved in the Settlement is an excellent result in light of the substantial risks and
certain multi-year delay of further litigation. Further, Plaintiffs demonstrated in the Opening
Mem. that the requested 25% fee award and reimbursement of $19,825.42 in expenses is
appropriate under the applicable legal standards. A proposed GlobeOp Final Judgment and
Order of Dismissal with Prejudice is submitted herewith as Exhibit A, and a proposed Final
Judgment and Order Awarding Fees and Expenses is submitted herewith as Exhibit B.
On September 10, 2013, this Court entered the GlobeOp Preliminary Approval Order,
Dkt. No. 1189 (“Preliminary Approval Order”). As part of the notice program implemented
pursuant to the Preliminary Approval Order, fifty-four printed notices and proof of claim forms
were mailed to potential Class Members, in addition to dissemination of the Summary Notice
over PR Newswire. See Affidavit of Daniel J. Polizzi, dated October 11, 2013 (Dkt. No. 12051). The printed notices apprised GlobeOp Settlement Class Members of their right to object to
the proposed settlement or to the fee and expense request, or to request exclusion from the

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The $5 million cash settlement consideration was paid by the Insurance Carriers on behalf of GlobeOp
into escrow on September 23, 2013. In total, GlobeOp’s Insurance Carriers agreed, on behalf of
GlobeOp, to pay $10,000,000 in aggregate consideration for a release of all claims asserted both in this
Action and by the Litigation Trustee in the State Court Action brought on behalf of the Domestic Funds.
GlobeOp Settlement Class Members who have perfected claims in Bankruptcy Court will directly benefit
from the $5,000,000 State Court settlement that will enhance their recovery in the Bankruptcy
Proceedings.    

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Settlement Class by October 25, 2013.
In response to that notice, no objections or requests for exclusion have been received
from Class Members to the GlobeOp Settlement, or to the fee or expense request. This is a
significant affirmation of the fairness of the Settlement. See Maley v. Del Global Techs. Corp.,
186 F. Supp. 2d 358, 362 (S.D.N.Y. 2002) (McMahon, J.). In this Circuit, “[i]t is well settled
that the reaction of the class to the settlement is perhaps the most significant factor to be weighed
in considering its adequacy.” In re Bear Stearns Comp., Inc. Sec. Litig., 2012 U.S. Dist. LEXIS
161269, *at 16 (S.D.N.Y Nov. 9, 2012) (Sweet, J.) (quoting In re Am. Bank Note Holographics,
Inc., 127 F. Supp.2d 418, 425 (S.D.N.Y. 2001)).
The only objection to the GlobeOp Settlement was filed by the PwC Defendants, joined
by the Citco Defendants (Dkt. Nos. 1208 and 1209), and was directed solely to Paragraph 15 of
the Preliminary Approval Order2 pertaining to this Court’s jurisdiction over Settlement Class
Members. That same language from Paragraph 15 of the Preliminary Approval Order was
proposed to be included as Paragraph 27 of the proposed Final Judgment and Order annexed as
Exhibit B to the GlobeOp Stipulation of Settlement dated as of August 27, 2013 (Dkt. No. 11845). The Settling Parties initially included this language in the Preliminary Approval Order and
proposed Final Judgment to maintain consistency with language in the Final Judgment in the
settlement with the Fairfield Greenwich Defendants. See Final Judgment and Order of Dismissal

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Paragraph 15 of the Preliminary Approval Order states as follows:
Any GlobeOp Settlement Class Member who submits a Request for Exclusion shall not be
deemed to have submitted to the jurisdiction of any Court in the United States for any matter on
account of such submission, and any GlobeOp Settlement Class Member who submits a Proof of
Claim thereby submits to the jurisdiction of this Court with respect only to the subject matter of
such Proof of Claim and all determinations made by this Court thereon and shall not be deemed
to have submitted to the jurisdiction of this Court or of any court in the United States for any
other matter on account of such submission.

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with Prejudice (Dkt. No. 1097) at ¶ 28.3 Plaintiffs consider that such language is not necessary
with respect to the GlobeOp Settlement because this Settlement involves only investors in the
Domestic Funds, virtually all of whom are U.S. persons and have already filed Proofs of Interest
in the Bankruptcy Court. Accordingly, Plaintiffs respectfully request that Paragraph 27 of the
proposed Final Judgment and Order be changed so that it states only that “[t]he Preliminary
Approval Order is hereby amended to omit Paragraph 15 therein.” See Ex. A, Paragraph 27. As
such, the PwC and Citco Defendants’ objection to the GlobeOp Settlement has been mooted by
the Settling Parties’ agreement to omit the disputed language from the Preliminary Approval
Order and the proposed Final Approval Order submitted herewith. The PwC and Citco
Defendants have represented to counsel for Plaintiffs, based on the revised proposed Final
Approval Order, that they will be withdrawing their objection.
Finally, under the Class Action Fairness Act of 2005, “[a]n order granting final approval
of a proposed settlement may not be issued earlier than 90 days after the later of the dates on
which the appropriate Federal official and the appropriate State official are served with [notice of
the settlement].” Notice was given by GlobeOp’s counsel to the appropriate State and Federal
officials on September 24, 2013. See Declaration of David H. McGill (Dkt. No. 1207).
Accordingly, Paragraph 29 of the proposed Final Judgment has been amended to provide that
“pursuant to 28 U.S.C. § 1715(d), this Final Judgment shall not become effective until December
26, 2013.”

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The PwC and Citco Defendants made a similar objection to the FG Settlement, Plaintiffs responded, and
this Court overruled the objection (at Dkt No. 1142) and entered the Final Judgment and Order including
the provision at issue. The PwC and Citco Defendants appealed (Dkt. No. 1121) and the matter now is
pending before the Second Circuit.

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CONCLUSION
For the reasons set forth herein and in Plaintiffs’ Opening Memorandum, the proposed
Settlement and fee and expense applications should be finally approved.
November 8, 2013

Respectfully submitted,
/s/ Robert C. Finkel

David A. Barrett
Howard L. Vickery, II
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

Robert C. Finkel
James A. Harrod
Natalie M. Mackiel
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: 212.486.2093

Stuart H. Singer
Carlos Sires
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
401 East Las Olas Boulevard, #1200
Ft. Lauderdale, Florida 33301
Telephone: [phone]

Christopher Lovell
Victor E. Stewart
LOVELL STEWART HALEBIAN JACOBSON LLP
61 Broadway, Suite 501
New York, NY 10006
Telephone: [phone]

Interim Co-Lead Counsel for Plaintiffs and
Lead Counsel for PSLRA Plaintiffs

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