Anwar et al v. Fairfield Greenwich Limited et al

Filing 1335

ENDORSED LETTER addressed to Judge Victor Marrero from David A. Barrett dated 11/13/2014 re: SCB urges the Court to revisit its ruling on the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") and to find that SLUSA bars all claims pending against SCB. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Anwar Plaintiffs. (Signed by Judge Victor Marrero on 11/14/2014) (tro)

11/13/2014 15:30 FAX

212 446 2350

BOIES.

@002/003

BOIES SCHILLER

SCHILLER

&

FLEXNER

LLP

• NEW YORK. NY 10022 •PH. 212.446.2300 •FAX [phone]
575 LEXINGTON A VENUE • 7TH FLOOR

November 13, 2014

J.!SDC SD~Y
· DOCUi\lE:\T

BY FAX

·r:r

· DOC #: -~-H-.1--.-,--1---~.

.l~:~:·E

The Honorable Victor Marrero
United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:

ECTRO:\'ICAI.LY FILED
f!LED:

·--f-'-,-~

Anwar, et al., v. Fairfield Greenwich Limited, et al., 09-CV-00118

Dear Judge Marrero:
We write on behalf of the Anwar Plaintiffs in response to the October 31, 2014 letter
from Sharon L. Nelles (Dkt. No. 13 33) on behalf of the Standard Chartered Bank Defendants
("SCB"). SCB urges the Court to revisit its ruling on the Securities Litigation Uniform
Standards Act of 1998 ("SLUSA") and to find that SLUSA bars all claims pending against SCB.
We believe that there is no basis at the present time for the Court to reconsider its ruling in
Anwar II, 728 F.Supp.2d 372, 397-399 (S.D.N.Y. 2010), that SLUSA does not preclude the
Anwar Plaintiffs' claims arising from their multi-billion dollar losses in the Fairfield Funds. The
SCB letter devotes 17 pages to the SLUSA issue, making arguments that potentially could have
significant impact on the claims of the Anwar Plaintiffs. Accordingly, if Court were to address
this subject on the merits at this time, we respectfully request leave to submit a substantive letter
brief responding to SCB's arguments.
SCB first asked the Court to revisit its SLUSA ruling a year ago, in a letter from Ms.
Nelles on November 12, 2013 (Dkt. No. 1226). The Court did not do so at that time, and there
is no more reason to do so now. Among other reasons:
•

The major pronouncement concerning SLUSA in the past year is the Supreme Court's
rejection of its application to investments in uncovered securities which were the source
of money lost in a Ponzi scheme. The Court recognized that SLUSA has "no concern"
with such investments in uncovered securities. See Chadbourne & Parke LLP v. Troice,
134 S. Ct. 1058, 1066 (2014).

•

The Second Circuit still has pending before it the appeal (fully-briefed and argued by me
on April 9, 2013) in In re Kingate, No. 11-1397. In contrast to In re Herald, Primeo &
Thema Sec. Litig., 730 F.3d 112 (2d Cir. 2013), reh 'g denied 753 F.3d 110 (2d Cir.
2014 t Kinf!ate poses the issue of SU TSA 's a12ol~ation to clairnR al!ainst investmr.nt
auv1;:;01;:; ci.J.'1u Lluru-p<ULY :st:rv11.:e prl')vil.iers (~.g., anrnrn:i!i'ITarors, cusromans and
accountants) who (unlike the defendant banks in Herald) had a direct relationship with
plaintiffs' investments in uncovered securities.

WWW BSFLLP.COM

1111312014 15:31 FAX

212 446 2350

BOIES,

BOIES SCHILLER

SCHILLER

&

@003/003

FLEXNER

LLP

The Honorable Victor Marrero
November 13, 2014
Page 2

•

It makes sense for SLUSA issues to be considered in the much broader context of the
Anwar class claims, which involve all plaintiffs, rather than the limited sub-set of the
Anwar Plaintiffs who have SCB claims.

SCB previously has stated that its SLUSA motion "would neither ask nor require this
Court to reconsider its decision not to apply SLUSA to dismiss the claims asserted in the Anwar
class action that is also a part of this MDL." Letter of November 26, 2013 (Dkt. No. 1236).
That is reiterated in SCB 's current Jetter at page 5. Although we agree that distinctions can be
drawn between the claims asserted against the SCB Defendants and those of the Anwar
Plaintiffs, it remains that SCB is asking this Court to fundamentally alter its prior SL USA
analysis in Anwar II (see, e.g., SCB letter at 14 n.12 ("the Court did not have the benefit of the
Herald decisions, which the Secord Circuit issued after [this Court's Anwar II] ruling")), an
analysis that has been relied upon by a number of other courts, and that directly affects the
Anwar Plaintiffs. If the Court were to decide to engage in such reconsideration now, we
respectfully request the opportunity to address the merits by submitting a letter brief, not
exceeding 15 pages, and to have the opportunity to participate in any further briefing or
argument the Court may allow on these issues.

p~
David A. Barrett

cc:

Sharon L. Nelles, Esq.
Standard Chartered Plaintiffs' Steering Committee
Andrew G. Gordon, Esq.
Timothy A. Duffy, Esq.
Sarah Loomis Cave, Esq.

l/-i'-1-1</
DATE