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)

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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 212.446.2350 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

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