Anwar et al v. Fairfield Greenwich Limited et al
ENDORSED LETTER addressed to Judge Victor Marrero from Sharon L. Nelles dated 8/29/2014 re: We write on behalf of the Standard Chartered Defendants ("SCB"), pursuant to the Court's Individual Practices and the July 10, 2014 Order (Dkt. No. 1285), to request a pre-motion conference regarding SCB's contemplated unified motion for summary judgment in 11 actions that the parties and the Court have designated as "test cases" for summary judgment purposes (the "SCB Test Cases"). ENDORSEMENT: SCB litigation plaintiffs are directed to respond by 9-7-14 by letter not to exceed three (3) pages, to the matter set forth above by SCB defendants. (Signed by Judge Victor Marrero on 9/3/2014) (lmb)
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August 29, 2014
Honorable Victor Marrero,
United States District Judge,
Daniel Patrick Moynihan United States Courthouse,
500 Pearl Street,
New York, New York 10007.
Anwar. et al. v. Fairfield Greenwich Ltd., et al., No. 09-CV-118
CS.D.N.Y.)- Standard Chartered Cases
Dear Judge Marrero:
We write on behalf of the Standard Chartered Defendants ("SCB"), pursuant to
the Court's Individual Practices and the July 10, 2014 Order (Dkt. No. 1285), to request a premotion conference regarding SCB's contemplated unified motion for sununary judgment in
11 actions that the parties and the Court have designated as "test cases" for summary judgment
purposes (the "SCB Test Cases"). 1 (Stipulation and Order Regarding Discovery in Specified
Standard Chartered Cases, at 3-4 (Mar. 2, 2012) (Dkt. No. 826); Stipulation and Order Striking
Allegations and Deferring Discovery in Specified Standard Chartered Cases, at 5 (Sept. 18,
2013) (Dkt. No. 1193).)
SCB is a defendant in 57 actions (the "Standard Chartered Cases") filed between
April 2009 and December 2012 and transferred to and/or consolidated before this Court for pretrial proceedings. Over the last three-and-a-half years, the parties have engaged in extensive
discovery, including (i) depositions of more than 110 fact witnesses; (ii) 17 expert reports;
(iii) 12 expert depositions; (iv) extensive written discovery; and (v) party and third-party
The 11 SCB Test Cases are: Maria Akriby ·valladolid, No. 10-cv-918; Headway
Investment Corp., No. 09-cv-8500; Maridom Ltd. et al., No. l O-cv-920; Joaquina Teresa
Barbachano, No. l l-cv-3553; Victor Jorge Saca, et al., No. l l-cv-3480; Sa/car Ltd., No. 1 l-cv899; Alberto Perez, No. 1 l-cv-903; San Blas S.A., et al., No. l l-cv-5727; Triple R Holdings Ltd,
et al., No. 1 l-cv-897; Jose de Passos Vieira Lima, No. 11-cv-5722; and Juan Carlos Sabil/011,
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Honorable Victor Marrero
S&C LLP 125 BO 26FL
document productions totaling more than 3.5 million pages. Discovery closed on August 15,
With discovery in the SCB Test Cases now complete, SCB intends to move for
summary judgment through a unified motion, as contemplated by the Court's Order of March 2,
2012. (Dkt. No. 826.) Plaintiffs' claims in these cases fall into two main categories. First,
plaintiffs allege that SCB breached a duty owed to plaintiffs by recommending investments in
Fairfield Sentry Ltd. or Fairfield Sigma Ltd. (together, the "Fairfield Funds") without conducting
due diligence "sufficiently to become informed as to [the Fairfield Funds'] nature, price, and
financial prognosis" (the "Due Diligence Claims"). Anwar v. Fairfield Greenwich Ltd, 826 F.
Supp. 2d 578, 591 (S.D.N.Y. 2011) ("SCB If'). Second, plaintiffs allege that SCB made a
material omission by failing to disclose "that Madoff was actually executing the split-strike
conversion strategy" (the "Omission Claims"). Anwar v. Fairfield Greenwich Ltd, 745 F. Supp.
2d 360, 373 n.7 (S.D.N.Y. 2010) ("SCB I"). SCB's contemplated unified motion will address
both categories of claims, as well as certain individual claims raised by the SCB Test Case
plaintiffs, and seek summary judgment on the following grounds:
(1) For the reasons more fully set forth in SCB's prior submissions to the Court
(Dkt. Nos. 1226, 1236, 1246 and 1276), all of plaintiffs' claims are barred by the Securities
Litigation Uniform Standards Act of 1998 and should be dismissed.
(2) The Due Diligence Claims (whether couched as breach of fiduciary duty,
negligence or gross negligence) survived motions to dismiss based on the allegation - now
proven false through discovery - that SCB failed to conduct sufficient due diligence prior to
recommending the Fairfield Funds. See SCB I, 745 F. Supp. 2d at 376 ("As Lopez and the
Maridom Plaintiffs allege that a high-ranking Standard Chartered executive admitted that no
diligence had been done on the Fairfield Funds, and Headway and Valladolid allege that no
diligence was actually performed, a breach of fiduciary duty based on these facts is properly
alleged."); SCB II, 826 F. Supp. 2d at 591.
(3) The Omission Claims fail because discovery has revealed that SCB disclosed
Madoff s role in the Fairfield Funds and because plaintiffs cannot establish the requisite
elements of scienter, reliance or proximate cause.
(4) Individual claims made by plaintiffs in the SCB Test Cases are untimely under
the applicable statutes of limitations (e.g., the Due Diligence Claims alleged in Headway).
SCB's contemplated unified motion will seek the dismissal of the SCB Test Cases
in their entirety; and the Court's decision on that motion will "make clear what (if any) plaintiffspecific issues remain for trial." (Stipulation and Order, at 3-4 (Dkt. No. 826).)
In light of the number of parties and issues involved in the SCB Test Cases, the
expansive fact and expert discovery that bears on those issues, and the schedule already
The parties have deferred plaintiff-specific discovery in 42 of the Standard Chartered
Cases. (Dkt. Nos. 826, 1193.)
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Honorable Victor Marrero
established in the related Anwar class action, where summary judgment briefing will not be
completed before December 2014 (Dkt. No. 1275), SCB proposes the following briefing
Plaintiffs who previously received leave of the Court to replead negligence claims
that had been dismissed under Florida's economic loss role shall coordinate
among themselves and with SCB to file a uniform negligence claim by Friday,
October 10, 2014.
Summary judgment motions in the SCB Test Cases (whether by plaintiffs or by
SCB) shall be filed by Friday, January 30, 2015. Any party moving for summary
judgment may file a single brief in support of no more than 75 pages.
Responses to summary judgment motions in the SCB Test Cases shall be filed by
Friday, April 3, 2015. Responsive briefs may be no longer than 75 pages.
Replies to summary judgment motions in the SCB Test Cases shall be filed by
Friday, May 1, 2015. Reply briefs may be no longer than 38 pages.
SCB's proposed time periods for motion practice and page limits are equivalent to
those established in the Anwar litigation, which involves fewer parties than the SCB Test Cases.
(Id.) Plaintiffs in the Standard Chartered Cases have informed SCB and the Court that they
intend to oppose SCB's request for leave to file a summary judgment motion (Dkt. No. 1285)
and thus have declined to confer on SCB's proposed schedule.
For the foregoing reasons, SCB respectfully requests that the Court hold a premotion conference to discuss SCB's contemplated motion, or, alternatively, approve SCB's
proposed briefing schedule for that motion,
Sharon L. Nelles
Standard Chartered Plaintiffs' Steering Committee (by e-mail)
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