Anwar et al v. Fairfield Greenwich Limited et al

Filing 1366

ENDORSED LETTER addressed to Judge Victor Marrero from Robert A. Wallner dated 4/13/2015 re: Counsel writes pursuant to Your Honor's local rules to request a pre-motion conference to address the Trustee's request for access to sealed documents filed by the Anwar parties in connection with the recently-determined Rule 23 class certification motion. ENDORSEMENT: The parties are directed to address the matter set forth above to Magistrate Judge Frank Maas, to whom this dispute has been referred for resolution, as well as for supervision of remaining pretrial proceedings, establishing case management schedules as necessary, and settlement. (Signed by Judge Victor Marrero on 4/13/2015) (tn)

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Robert A. Wallner
Direct Dial: 212-946-9335
[e-mail]

April 13, 2015
VIAFAX
The Honorable Victor Marrero
United States District Judge
Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007

Re: Anwar v. Fair.field Greenwich Ltd., 09-118 (VM)
Dear Judge Marrero:
We represent non-party New Greenwich Litigation Trustee, LLC, as Successor Trustee
("Trustee") of the Greenwich Sentry and Greenwich Sentry Partners Litigation Trusts. 1 We
write pursuant to Your Honor's local rules to request a pre-motion conference to address the
Trustee's request for access to sealed documents filed by the Anwar parties in connection with
the recently-determined Rule 23 class certification motion.2
By Order dated March 3, 2015 ("Order"), Your Honor certified a class of investors in
Greenwich Sentry, Greenwich Sentry Partners, and other funds. See Anwar v. Fairfield
Greenwich Ltd., 2015 U.S. Dist. LEXIS 27050 (S.D.N.Y. Mar. 3, 2015), petition filed, No. 15792 (2d Cir. Mar. 16, 2015). The Order references evidence concerning defendants' alleged
misconduct, including evidence that "the Citco Defendants withheld the same material
information from all of their clients or investors .... " LEXIS, at *77 (internal quotation marks
and citation omitted); see id. at *76 & n.9 (referencing allegations, "support[ed] with common
evidence," that Citco "did not disclose that: (1) its internal auditors had grave doubts about the
veracity of ... whether the Funds' assets existed; (2) it was not following its own, or industry1

Lawsuits on behalf of the trusts are pending in New York state court against Citco Fund
Services (Europe) BV, Citco (Canada) Inc., PricewaterhouseCoopers LLP, and
PricewaterhouseCoopers Accountants, N.V., who are also defendants in Anwar. See Walker,
Truesdell, Roth & Assocs., Inc. v. GlobeOp Fin. Servs. LLC, Index Nos. 600469/2009 &
600498/2009 (Sup. Ct., NY Cnty. May 27, 2014) (dismissal motions granted), notices of appeal
filed (Sup. Ct., NY Cnty, June 27, 2014).
2

To narrow any dispute, the Trustee does not seek material reflecting discovery produced by the
Anwar plaintiffs or their depositions.

One Pennsylvania Plaza· New York, NY 10119 · T 212.594.5300 · F 212.868.1229 · milberg.com

The Honorable Victor Marrero
April 13, 2015
Page2

standard procedures, but was basing the NAY solely on unverified information from Madoff,
never reconciling that information with an independent source; [and] (3) its attempts to verify
that the Funds' assets existed failed .... ") (internal quotation marks omitted, emphasis supplied).
The continued sealing of the class motion documents (including briefs and exhibits) is
unwarranted, given the common law and First Amendment presumption of access to judicial
documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 113 (2d Cir. 2006).
Although Lugosch addressed sealed documents on a summary judgment motion, the presumption
of access is especially strong here because, inter alia, (i) the class motion, unlike the motion in
Lugosch, has already been decided, see id. at 120-21; and (ii) the Order expressly references
evidence concerning defendants' alleged liability. See generally Pa. Pub. Sch. Emps. Ret. Sys. v.
Morgan Stanley & Co., 772 F.3d 111, 119 (2d Cir. 2014) ("The party seeking certification must
establish the Fed. R. Civ. P. 23 requirements by a preponderance of the evidence."). Moreover,
the documents are particularly important to the Trustee, as the defendants rely on the Trustee's
litigation in their Rule 23(f) petition for appellate review of the Order, and describe the litigation
as "substantially similar" to Anwar. See Anwar v Fairfield Greenwich Ltd., No. 15-792 (2d Cir.
Mar. 17, 2015), Doc. 6-2 (Citco Brief at 15 n.11), see also id. (Declaration of Walter Rieman,~ 6
(attaching complaints).
We respectfully request that the Court schedule a pre-motion conference so that we may
further address the issue.

R~l'.y~
Robert A. Wallner
cc (via email):
David A. Barrett, Esq.
Sarah L. Cave, Esq.
Timothy A. Duffy, Esq.
Robert C. Finkel, Esq.
Andrew G. Gordon, Esq.
Victor E. Stewart, Esq.

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