Anwar et al v. Fairfield Greenwich Limited et al

Filing 1283

ENDORSED LETTER addressed to Judge Victor Marrero from H. Eugene Lindsey dated 6/17/2014 re: I write on behalf of Plaintiff Teresa Barbachano, one of the Plaintiffs in the Standard Chartered Cases ("SC Cases"), in response to the Standard Chartered Defendants' letter, dated June 9, 2014. 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 Teresa Barbachano. (Signed by Judge Victor Marrero on 6/17/2014) Filed In Associated Cases: 1:09-cv-00118-VM-FM, 1:11-cv-03553-VM(tn)

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www.katzba rron.eom

June 17, 2014

Honorable Victor Mar ero
United States District
Daniel Patrick Moyni
500 Pearl Street
New York New York

Re:

Anwar, et al. v. Faiifield Greenwich Limited, et al.,
Case N . 09-cv-118 (VM)(THK), Standard Chartered Cases
This c rrespondence relates to: Barbac/Jano v. Standard Chartered Bank
Interna ional (Americas) Limited, et al., 1:11-cv-03553-VM

Dear Judge Marrero:
I write on beh
Chartered Cases ("SC
June 9, 2014. Defen
possible defense moti
the reasons previous!
November 19, 2013 a
today, June 17, 2014,
Second Circuit's Ord
Herald, Primeo & Th
to Defendants' June 9
Liason Counsel in his

If of Plaintiff Teresa Barbachano, one of the Plaintiffs in the Standard
Cases"), in response to the Standard Chartered Defendants' letter, dated
nts' Jetter renews their request for a pre-motion c-0nference regarding a
under the Securities Litigation Uniform Standards Act ("SLUSA"). For
· set forth in correspondence from Plaintiffs' Liaison Counsel, dated
d March 5, 2014, 1 as well as in Liaison Counsel's c-0rrespondence, dated
hi ch Ms. Barbachano adopts, Defendants' request should be denied. The
r Denying Petitions for Panel Rehearing in Trezziova v. Kohn (Jn re
a Sec. Litig.), Case No. 12-J 56-cv(L) (2d Cir. May 28, 2014), attached
letter, does not change the analysis presented to the Court by Plaintiffs'
revious correspondence.

In addition, ti r the reasons set forth in Ms. Barbachano's correspondence, dated
November 19, 2013, 2 which Ms. Barbachano incorporates herein, dismissal is particularly
inappropriate with res ect to her claims. As set forth in that correspondence, Ms. Barbachano's
complaint (and her a ended complaint) raise issues that only pertain to her - that is, the
suitability (or lack t reof) of investment advice that SCBI rendered to Ms. Barbachano
regarding her entire p folio, and not merely its advice and lack of due diligence with regard to
1

Docket Entrie 1223 & 1249.

2

Docket Entry 224.
KATZ. BAR.R

N. $QUITERO. FAUST. FR.trnBER.G. ENCLlSH & ALLEN. P.A.
MlAMI ·FT. LAUDER.DALE

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P. 00:

Honorable Victor Ma ero
June 17, 2014
Page Two
Fairfield Sentry. Inde
position that her case
legal and factual quest
should be remanded
Defendants' request t
permit Ms. Barbach
any of Ms. Barbachan

d, from the beginning, it has been (and continues to be) Ms. Barbachano's
should not have been transferred to this multidistrict litigation because
ons unique to her case predominate. Accordingly, Ms. Barbachano's case
the Southern District of Florida if the Court is inclined to grant the
dismiss based on SLUSA. In the lesser alternative, the Court should
leave to amend her complaint to the extent that the Court believes that
's claims are subject to dismissal under SL USA.

Further, the de 1ision in Trezziova v. Kohn (In re Herald, Primeo & Thema Sec. Lirig.),
730 F.3d I 12 (2d Cir. 0 J3) - even on rehearing - remains inapposite. There, the court held that
claims against Madof s bankers, JPMorgan and BNY, arising from their material assistance to,
and constructive or tual knowledge of, Madoff's Ponzi scheme, fell within the ambit of
SLUSA - that is, the !aims were founded on those defendants' direct assistance to the Ponzi
scheme. As the Secon· Circuit stated:
Plaintiffs, how ver, contend that it is inappropriate under SLUSA to elide their
purchase of ' ncovered" interests in foreign feeder funds with Madoffs
"downstream" transactions in covered securities. This argument, however,
ignores the fa that, on the very face of plaintiffs' complaints, the liability of
JPMorgan and BNY is predicated not on these banks' relationships with
plaintiffs or th ir investment in the feeder funds but on the banks' relationship
with, and all ged assistance to, Madoff Securities' Ponzi scheme, which
indisputably e1 gaged in purported investments in covered securities on U.S.
exchanges.
Id. at 118-19 (citati n omitted, emphasis added); see id. at 119 (explaining that "[t)he
complaints, fairly read charge that JPMorgan and BNY knew of the fraud, failed to disclose the
fraud, and helped the fi aud succeed-in essence, that JPMorgan and BNY were complicity (sic) in
Madofrs fraud"); see !so Order Denying Petitions for Panel Rehearing, at 8 (stating that "the
defendant banks are l!eged to have furthered [Madoff Securities' Ponzi] scheme"). Thus,
liability of BNY and PMorgan was dependent on their relationship with Madoff, and not on
those defendants' relat nship with the plaintiffs in that case.

Here, however, Ms. Barbachano's case - even that part of it related to due diligence of
Fairfield - is not base on the claim that SCBI was complicit in Madoff's fraud. The decision in
Trezziova is, therefore, inapplicable to Ms. Barbachano's case for this reason as well.
Respectfully submitted

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