Anwar et al v. Fairfield Greenwich Limited et al

Filing 1281

TRUE COPY ORDER of USCA. USCA Case Number 13-2340-cv(L); 13-2345 (con). Upon due consideration, it is hereby ordered, adjudged, and decreed that the certification order entered on February 25, 2013 is VACATED and REMANDED for further proceedings in the District Court consistent with this order and with the developed record, including any facts revealed by discovery that has taken place since the original certification order. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 06/19/2014. (nd)

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N.Y.S.D. Case #
09-cv-0118(VM)
13-2340-cv (L); 13-2345-cv (Con)
St. Stephen‘s Sch. v. PricewaterhouseCoopers Accountants N.V.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of June, two thousand fourteen.
PRESENT: ROSEMARY S. POOLER,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
---------------------------------------------------------------------ST. STEPHEN‘S SCHOOL, et al.,
Plaintiffs-Appellees,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
_________________
DATE FILED:June 19, 2014
______________

SHIMON LAOR, et al.,
Plaintiffs,
v.
PRICEWATERHOUSECOOPERS
ACCOUNTANTS
N.V., CITCO FUND SERVICES (EUROPE) B.V.,
CITCO BANK NEDERLAND N.V. DUBLIN BRANCH,
CITCO CANADA INC., CITCO GLOBAL CUSTODY
N.V., CITCO GROUP LIMITED, CITCO FUND
SERVICES
(BERMUDA)
LIMITED,
PRICEWATERHOUSECOOPERS L.L.P.,
Defendants-Appellants,
YANKO DELLAW SCHIAVA, et al.,
Consolidated-Defendants,

CERTIFIED COPY ISSUED ON 06/19/2014

Nos. 13-2340-cv(L),
13-2345-cv(Con)

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GLOBEOP FINANCIAL SERVICES LLC, et al.,
Defendants.
---------------------------------------------------------------------APPEARING FOR APPELLANTS:
CHRISTOPHER LANDAU (Emily P.
Hughes, Kirkland & Ellis LLP,
Washington D.C.; Timothy A. Duffy,
Kirkland & Ellis LLP, Chicago, Illinois,
on the brief), Kirkland & Ellis LLP,
Washington,
D.C.,
for
PricewaterhouseCoopers LLP.
William R. Maguire, Sarah L. Cave,
Hughes Hubbard & Reed LLP,
New York,
New
York
for
PricewaterhouseCoopers
Accountants
N.V.
WALTER REIMAN (Brad S. Karp,
Leslie Gordon Fagen, Andrew G.
Gordon, Patrick J. Somers, on the brief),
Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, New York, for
The Citco Group Ltd., Citco Fund
Services (Europe) B.V., Citco (Canada)
Inc., Citco Global Custody N.V., Citco
Bank Nederland N.V. Dublin Branch,
and Citco Fund Services (Bermuda) Ltd.

APPEARING FOR APPELLEES:

STUART H. SINGER (Victor E.
Stewart, Lovell Stewart Halebian
Jacobson, LLP, New York, New York;
David A. Barrett, Howard L. Vickery, II,
Boies, Schiller & Flexner LLP, New
York, New York; Robert C. Finkel, Wolf
Popper LLP, New York, New York, on
the brief), Boies, Schiller & Flexner,
LLP, Fort Lauderdale, Florida.

Appeal from a judgment of the United States District Court for the Southern
District of New York (Victor Marrero, Judge).

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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order entered on February 25, 2013, is VACATED and
REMANDED.
In these consolidated interlocutory appeals, defendants-appellants The Citco
Group Ltd., Citco Fund Services (Europe) B.V., Citco (Canada), Inc., Citco Global
Custody N.V., Citco Bank Nederland N.V. Dublin Branch, and Citco Fund Services
(Bermuda) Ltd. (the ―Citco Defendants‖) and PricewaterhouseCoopers, LLP and
PricewaterhouseCoopers Accountants N.V. (the ―PwC Defendants‖) challenge the district
court‘s certification of a class of investors in four funds (the ―Funds‖) created and
managed by the Fairfield Greenwich Group (―FGG‖), which class seeks damages for
billions of dollars in lost value sustained by the Funds following the collapse of the
Madoff Ponzi scheme.
The PwC Defendants argue that the district court erred in certifying a class
without analyzing class certification separately as to the claims asserted against them, and
that plaintiffs cannot, in any event, satisfy Fed. R. Civ. P. 23(b)(3) because individual
issues predominate with respect to (1) the duty of care PwC owed to class members, and
(2) those members‘ reliance on PwC audits. The Citco Defendants similarly argue that
plaintiffs cannot prove reliance by common evidence and, therefore, cannot satisfy the
predominance requirement of Rule 23(b)(3). The Citco Defendants further argue that
plaintiffs fail to meet Rule 23(b)(3)‘s superiority requirement with respect to their holder

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claims. We assume the parties‘ familiarity with the underlying facts and the record of
prior proceedings, which we reference only as necessary to explain our decision to vacate
and remand.
We review a district court‘s decision on class certification for abuse of discretion
as to the ―determination on certification, as well as to its rulings that the individual Rule
23 requirements have been met.‖ In re Flag Telecom Holdings, Ltd. Secs. Litig., 574
F.3d 29, 34 (2d Cir. 2009). ―While our review of the legal standards applied by the
district court and the court‘s other legal conclusions is de novo . . . the district court‘s
application of those standards to the facts of the case is again reviewed only for abuse of
discretion.‖ Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (internal citations
omitted). ―To the extent that the ruling on a Rule 23 requirement is supported by a
finding of fact, that finding, like any other finding of fact, is reviewed under the ‗clearly
erroneous‘ standard.‖ In re Initial Pub. Offering Secs. Litig., 471 F.3d 24, 40–41 (2d Cir.
2006).
In conducting such review, we are nevertheless mindful that ―Rule 23 does not set
forth a mere pleading standard.‖ Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551
(2011). The ―party seeking class certification must affirmatively demonstrate . . .
compliance with the Rule,‖ and a district court may only certify a class if it ―‗is satisfied,
after a rigorous analysis,‘‖ that the requirements of Rule 23 are met. Id. (quoting General
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)); see also In re Initial Pub. Offering

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Secs. Litig., 471 F.3d at 41 (holding that district court must make a ―definitive
assessment of Rule 23 requirements‖ and ―resolve[] . . . factual disputes relevant to each
Rule 23 requirement‖).
In applying that standard here, the district court—which had already issued
numerous detailed rulings on other issues in this case, see, e.g., Anwar v. Fairfield
Greenwich Ltd., 884 F. Supp. 2d 92 (S.D.N.Y. 2012); Anwar v. Fairfield Greenwich Ltd.,
800 F. Supp. 2d 571 (S.D.N.Y. 2011); Anwar v. Fairfield Greenwich Ltd., 728 F. Supp.
2d 372 (S.D.N.Y. 2010); Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 354
(S.D.N.Y. 2010)—focused primarily on the claims asserted against FGG. These claims,
however, were the subject of a settlement agreement that had the preliminary approval of
the district court. Moreover, the district court granted final approval of this settlement
shortly after issuing the class certification order. The certification order as it pertains to
extant claims against the Citco Defendants and the PwC Defendants does not provide us
with sufficient factual findings as to how Rule 23(b)‘s requirements are satisfied to allow
even deferential review. Although ―we will not reverse a class certification simply
because the district court has not explicitly recited each finding,‖ Shahriar v. Smith &
Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011), a district court must
provide sufficient factual findings on Rule 23 requirements as they pertain to the claims
asserted against each defendant to demonstrate compliance with the law in deciding to
certify.

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Here, the order does not indicate how common evidence can show (1) the
existence of a duty of care applicable to the class either under the standard identified in
Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435
(1985),1 or otherwise; or (2) reliance by the class on alleged misrepresentations by (a) the
Citco Defendants and (b) the PwC Defendants, either under the presumption identified in
Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153–54 (1972),2 or
otherwise.

1

Under Credit Alliance Corp., ―[b]efore accountants may be held liable in negligence to
noncontractual parties who rely to their detriment on inaccurate financial reports, certain
prerequisites must be satisfied: (1) the accountants must have been aware that the
financial reports were to be used for a particular purpose or purposes; (2) in the
furtherance of which a known party or parties was intended to rely; and (3) there must
have been some conduct on the part of the accountants linking them to that party or
parties, which evinces the accountants‘ understanding of that party or parties‘ reliance.‖
65 N.Y.2d at 551, 493 N.Y.S.2d at 443.
2

See Stoneridge Inv. Partners, LLC v. Scientific Atlanta, 552 U.S. 148, 159 (2008)
(observing Affiliate Ute rebuttable presumption of reliance applies ―if there is an
omission of a material fact by one with a duty to disclose‖ such that ―the investor to
whom the duty was owed need not provide specific proof of reliance‖).
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Accordingly, we VACATE the class certification order as to claims against the
Citco Defendants and the PwC Defendants, and we REMAND for further proceedings in
the district court consistent with this order and with the developed record, including any
facts revealed by discovery that has taken place since the original certification order.
FOR THE COURT:
Catherine O‘Hagan Wolfe, Clerk of Court

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