Anwar et al v. Fairfield Greenwich Limited et al

Filing 1308

ENDORSED LETTER addressed to Judge Victor Marrero from Sharon L. Nelles dated 8/21/2014 re: For the foregoing reasons, Barbachano's request to amend her complaint separate and apart from repleading a uniform negligence count in coordination with all other plaintiffs should be denied. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Standard Chartered Bank defendants. (Signed by Judge Victor Marrero on 8/22/2014) (tn)

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08/21/2014 16 16 FAX [41 ()()2/()()3 S&C LLP 125 27FL 212 558 3708 SULLIVAN & CROMWELL LLP TELEPHONE: 126 ~~d ~ 1•212·:5:59·4000 FAC.S IMll.i:, 1·2.1 Z·SS8·3S88 WWW.SUL~CROMCOM n:====::·;::,,-_...,______.....,...,. fiew JJSf)C SD'.\iY ,,-<: ;'. ', DbCUMENT #: . · ..Ao/10004-24.98 L.C:S ,...r.ic;1.1.1.:s • ""i..o Ai.To• w""11 ... 1NC:'1"0N, o.i:.. , ,.:· LBCTRo'N-ICALLY FltEti '. ,:·' ooc o/~, ~. ; • lllli:1JIN'1 "•Cl-IO ru>NI: • TOllC'f'O . " · :: : ~­ -i . ,..,. ;· ~ By Facsimile Honorable Victor Marrero. United States District Judge, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York. New York 10007. Re: Anwar, et al. v. Fairfield Greenwich Lrd.. er al., No. 09-CV-118 (S.D.N.Y.)- Standard Chartered Cases Dear Judge Marrero: We write on behalf of the Standard Chartered Defendants ("SCB"). On August 13, at the conclusion of the teleconference regarding Teresa Barbachano's request for leave to file a Second Amended Complaint. the Court directed the parties to submit letters regarding Barbachano's contencion that she has made "suitability'' allegations that render her complaint "unique" among the Standard Chartered Cases. The Court long ago rejected this contention. and it in any evem provides no basis for Barbachano to amend her complaint. The Court should thus deny Barbachano's request on the following grounds: (i) the proposed negligence claim is improper because Barbachano did not comply with the Court's prior instruction to coordinate with the Standard Chartered Plaintiffs' Steering Committee regarding the filing of a uniform negligence claim; and (ii) Barbachano's other proposed amendments are beyond the scope of that permitted by the Court's prior Orders. As Barbachano concedes in her August 18 letter (Dkt. No. 1307), this Court held nearly two years ago that "an inspection of the Barbachano complaint shows that what the plaintiff stylizes as an allegation of 'failure to render suitable investment advice' is actually indistinguishable from an allegation of negligent failure to conduct due diligence." Anwar v. Fairfield Greenwich Ltd., 891 F. Supp. 2d 548. 552 (S.D.N.Y. 2012). In other words. Barbachano is not unique. Barbachano nonetheless asserts chac the Court could not possibly have meant what it said because (i) the above language appears in the portion of the opinion discussing Florida' .s "economic loss rule"; (ii) the Coun's prior published opinion in the Standard Chartered Cases had not addressed "portfolio suitability claims"; (iii) the Court's October 24, 2012 opinion which reaffirmed the dismissal of three of Barbachano'.s claims - did not discuss suitability; (iv) suitability supposedly is not a "generic" concept; and (v) Barbachano "alleges a fiduciary relation.ship" with SCB. These arguments fail for three reasons: 08/21/2014 16 17 F~X 212 558 3709 ~ ()()3/l)r)3 S&C LLP 125 27FL -2- Honorable Y ictor Marrero Fir.'it, none of these arguments alters the fact that this Court "inspect[ edl" Barbachano's allegations and in September 2012 found them to be .. indistinguishable" from the allegations made by plaintiff$ in the other Standard Chartered Cases. 891 F. Supp. 2d at 552. It is not relevant to any analysis that the economic loss rule has. been altered or that Barbachano's 1 fiduciary duty claim remain11 alive. Second, if Barbachano believed that the Court erred in holding that her allegations are indistinguishable from those of other plaintiffs, she should have moved for reconsideration within fourteen days of the Court's decision, as required by Local Civil Rule 6.3. She did not. A"> such, the Court's determination that Barbachano' s allegations are not unique "now stands a.-:; the law of the case" and there is not "any recognized procedural means by which to rescind it or take it back." Anwarv. Fairfield Greenwich Ltd., No. 09-CV-118. 2013 WI.. 2247271, at *2 (S.D.N.Y. May 10, 2013). The limited ha.4'is upon which Barbachano and other plaintiffs obtained leave to replead a negligence claim was the Florida Supreme Court's decision in Tiara Condominium Ass 'n, Inc. v. Marsh & McLennan Cos., Inc., 110 So. 3d 399 (Fla. 2013). which altered application of the economic loss rule under Florida law. Tiara Condo did not abrogate or alter the Court's prior construction of Barbachano's allegations. Third, Barbachano'!) "generic" assertion that SCB failed Lo properly diversify her portfolio cannot survive the Court's prior holding that SCB owed plaintiffs no duty to diversify their portfolios. Anwar. 891 F. Supp. 2d at 557. Barbachano's allegat1ons concerning a "fiduciary relationship" are beside the point and, in any event. indistinguishable from the allegations advanced by other plaintiffs whose duty-to-diversify claims were rejected by this Court. Compare Barbachano Am. Compl. 9fil 13-14 with, e.g., No. 11 Civ. 7650, Comp!. <ffil 22, 35-36, 44. For the foregoing reasons. Barbachano's request to amend her complaint separate and apart from repleading a uniform negligence count in coordination with all other plaintiffs should be denied. Respectfully submitted, ~t. Sharon L. Nelles cc: H. Eugene Lindsey, Counsel for Plaintiff Teresa Barbachano (by e-mail) Standard Chartered Plaintiffs' Steering Committee (by e-mail) I In her Augu~t 18 letter, Barbachano argues that Rule 9(b) does not apply m her gm~.~ negligence or fiduciary duty claims and also a.~ks the Court to remand her case to the Southern District nf F1orida.. These two point~ are beyond the scope of the submissions that the Court requested. Tn .~hnrt, this Court has already applied · Rule 9(b) to all ofBarbachano'~ claims that are based on alleged negligent misrepresentation$. Anwar. 891 F. Supp. 2d at 552. There also is no basis for rbe Court to remand rhe Barbachano case at rhis time. (See Secnnd Amended Scheduling Order Regarding Standard Chartered Cases. ~~&r.-~~---~-------------------;.. SO ORDERED• ~-">--?:-/ DATE V'"

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