Anwar et al v. Fairfield Greenwich Limited et al

Filing 1317

RESPONSE re: #1311 Memorandum of Law in Opposition to Motion Plaintiffs' Memorandum in Response to Partial Opposition of Sylvia Tucker to Distribution of the GlobeOp Settlement Fund. Document filed by Pacific West Health Medical Center, Inc. Employee's Retirement Trust. (Finkel, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PASHA S. ANWAR, et al.,
Plaintiffs,
v.
FAIRFIELD GREENWICH LIMITED, et al.,

Master File No. 09-cv-00118 (VM)

Defendants.

This Document Relates To: 09-cv-00118 (VM)

PLAINTIFFS’ MEMORANDUM IN RESPONSE TO PARTIAL OPPOSITION
OF SYLVIA TUCKER TO DISTRIBUTION OF GLOBEOP SETTLEMENT FUND
Plaintiffs submit the following information with respect to the partial opposition to
Plaintiffs’ motion for entry of the proposed GlobeOp Distribution Order (Dkt. No. 1293-1) filed
by Sylvia Tucker, defendant Jeffrey Tucker’s mother (Dkt. No. 1311-13). Ms. Tucker contends
that the term “immediate family member” in the Fairfield Greenwich Stipulation of Settlement
(Dkt. No. 996, para. 1(ss)) has a narrow meaning and was intended by defendants only to
exclude “spouses and children” from the Fairfield Greenwich Settlement Class. See Declaration
of Mark Cunha dated August 29, 2014 (Dkt. No. 1312) (“In my thinking about whose claims
would be excluded by the term ‘immediate family member,’ I had in mind spouses and
children.”).1

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Plaintiffs agree that the term “immediate family member” in the earlier Fairfield Greenwich
Stipulation of Settlement (Dkt. No. 996) has the same meaning as the term in the later GlobeOp
Stipulation of Settlement (Dkt. No. 1184, para. 1(s)). The Second Circuit recently affirmed this
Court’s denial of the BLMIS Trustee’s attempt to block the Fairfield Greenwich settlement.
Accordingly, Plaintiffs will file a proposed distribution order for the Fairfield Greenwich
settlement fund when the Court of Appeals decision becomes final; Plaintiffs intend to exclude
Ms. Tucker for the same reasons discussed in text, subject to the Court’s decision on the pending
motion.

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“Immediate family member” is a defined term under the federal securities laws (see 17
C.F.R. §229.404(a), Instructions; 17 C.F.R. 240.16a-1(e)), and includes “any child, stepchild,
parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law.” As a defined term under the federal securities laws, “immediate
family member” is customarily used in securities settlements to establish exclusions from
settlement classes without the need for further definition of that term. See, e.g., Rubin v. MF
Global, Case No. 08 Civ. 2233 (VM) (para. 1c) (excluding defendants’ “immediate families”
from the Class).
Defendants negotiated in the Fairfield Greenwich Stipulation of Settlement (Dkt. No.
996) for a broad release that largely mirrors the definition under the federal securities laws. See
para. 1(mm) (“’Released Parties’ means . . . (ii) each of the FG Individual Defendants and their
respective present, past and future spouses, parents, siblings, children, grandparents, and
grandchildren, the present, past and future spouses of their respective parents, siblings and
children, and the present, past and future parents and siblings of their respective spouses,
including step and adoptive relationships.”). The release of claims against “parents” of
Individual Defendants differentiates such persons from ordinary class members who are not
receiving releases.
Ms. Tucker also suggests that Plaintiffs should be somehow estopped from denying her
class membership because she was originally mailed a Fairfield Greenwich class notice and a
deficiency letter on her Fairfield Greenwich claim. See Tucker Declaration (Dkt. No. 1313),
paras. 6-8. At the time of the mailings of the Fairfield Greenwich notice and deficiency letter,
Plaintiffs’ counsel were acting with respect to approximately 3000 potential class members and
had not identified Sylvia Tucker as Jeffrey Tucker’s mother. Ms. Tucker was identified as an

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excluded member of the settlement classes in 2013 when Plaintiffs’ counsel were preparing the
mailing of the GlobeOp settlement notice to fewer than 100 potential class members.
Dated: September 5, 2014
Respectfully submitted,

WOLF POPPER LLP
By: s/ Robert C. Finkel
Robert C. Finkel
Natalie M. Mackiel
845 Third Avenue
New York, NY 10022
Tel [phone]
BOIES, SCHILLER & FLEXNER LLP
David A. Barrett
Howard L. Vickery, II
575 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
BOIES, SCHILLER & FLEXNER LLP
Stuart H. Singer
Carlos Sires
Sashi Bach Boruchow
401 East Las Olas Boulevard, #1200
Ft. Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]
LOVELL STEWART HALEBIAN
JACOBSON LLP
Christopher Lovell
Victor E. Stewart
61 Broadway, Suite 501
New York, NY 10006
Telephone: [phone]

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