Anwar et al v. Fairfield Greenwich Limited et al

Filing 1229

LETTER MOTION for Conference addressed to Magistrate Judge Frank Maas from Carl W. Mills dated August 19, 2013. Document filed by Citco Group Limited, Pricewaterhouse Coopers Accountants N.V., Pricewaterhousecoopers LLP (US). (Attachments: #1 Exhibit A, #2 Exhibit B)(Cave, Sarah)

EXHIBIT B

UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION

SECURITIES EXCHANGE ACT of 1934
Rel. No. 70120 / August 5, 2013
____________________________________
)
In the Matter of
)
)
ANWAR v. FAIRFIELD GREENWICH
)
LIMITED, No. 09 Civ. 00118 (S.D.N.Y.) )
____________________________________)

ORDER DENYING PETITION FOR REVIEW
Pursuant to Rule 431(b)(2) of the Rules of Practice, 1 it is ORDERED that the Petition of
Citco Fund Services (Europe) B.V.; Citco (Canada), Inc.; Citco Group Limited; Citco Global
Custody N.V.; Citco Fund Services (Bermuda) Limited; Citco Bank Nederland N.V. Dublin
Branch; PricewaterhouseCoopers Accountants N.V.; PricewaterhouseCoopers LLP; and
GlobeOp Financial Services LLC (collectively, “Petitioners”) seeking review of the June 7, 2013
decision by delegated authority of the Office of the General Counsel (“Office”) declining to
authorize testimony requested in subpoenas to nine former or current Commission staff members
is hereby denied.
On February 27, 2013, the Petitioners asked the Office to authorize nine depositions of
former or current Commission staff members who had worked on an examination or
investigation of Bernard Madoff and/or Bernard L. Madoff Investment Securities, LLC
(“BLMIS”). On June 7, 2013, the Office notified the Petitioners that it would not authorize any
testimony because the burden on the SEC of providing the testimony outweighed the very
limited relevance of the testimony sought. In their Petition for Review, the Petitioners contend
that the information sought is relevant to litigation that is pending against the Petitioners and that
there is no burden that would outweigh the relevance.
In considering whether to accept or reject the Petition, the Commission must consider the
factors in Rule 411(b)(2) of the Rules of Practice, 2 that is, whether:
1
2

17 CFR 201.431(b)(2).

17 CFR 201.411(b)(2). Rule 431(b)(2) makes the factors in Rule 411(b)(2) applicable to a
decision whether to review action taken pursuant to delegated authority.

(i) a prejudicial error was committed in the conduct of the proceeding; or
(ii) the decision embodies:
(A) a finding or conclusion of material fact that is clearly
erroneous; or
(B) a conclusion of law that is erroneous; or
(C) an exercise of discretion or decision of law or policy that is
important and that the Commission should review.
The Petition does not allege that any prejudicial error was committed in the conduct of
the proceedings or that the Office’s decision embodies a finding of material fact that is clearly
erroneous, and the Commission finds that no such errors occurred.
With respect to conclusions of law, the Commission finds that the Petitioners have not
shown that the Office’s conclusions of law were incorrect. Because the Petitioners have not
shown that any information the potential witnesses may provide about Madoff will affect any
specific claims in the Anwar litigation, they have not countered the Office’s conclusion that the
testimony they seek is at most minimally relevant. The Petitioners also have not shown that the
Office improperly concluded that the burden on the Commission outweighs the limited relevance
of the testimony because of the burden giving testimony would place on the Commission.
Authorizing the testimony would mean that at least three current staff members would each lose
multiple days of work to prepare for and appear at a deposition. In addition, preparing for all of
the depositions would place an additional burden on other staff members, particularly because of
the complexity of determining what matters relating to Madoff remain privileged.
Finally, the Commission finds that the Office’s decision does not embody an exercise of
discretion or a decision of law or policy that is important and that the Commission should
review. Although the underlying litigation is clearly large and significant, Commission policies
and practices are at best tangentially involved, and staff depositions are not likely to address any
significant issues of law or policy.
Because the Petitioners have not satisfied any of the factors in Rule 411(b)(2) of the
Rules of Practice, their Petition for Review is denied.
By the Commission.

Elizabeth Murphy
Secretary