Anwar et al v. Fairfield Greenwich Limited et al

Filing 1412

ENDORSED LETTER addressed to Judge Victor Marrero from Richard E. Brodsky dated 8/31/2015 re: We respectfully request that the Court (i) formally deny the Standard Chartered Defendants' request for leave to file a motion for summary judgment, and (ii) schedule a conference to discuss possible remand to the Judicial Panel on Multidistrict Litigation and disposition of these cases. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Standard Chartered plaintiffs. (Signed by Judge Victor Marrero on 9/8/2015) (lmb) Modified on 9/9/2015 (lmb).

From: Richard E. Brodsky

Fax: [phone]

To: Hon. Victor Marrero

Fax: +1 [2121 805-6382

Page 2 of 4 0813112015 1:11 PM

THE BRODSKY LAW fIRf\1-, PL
RICHARD

f·

BRODSKY, AlTORNEY AT LAW

August 31, 2015

By Facsimile Transmission
to [phone]

Honorable Victor Marrero
United States District Judge
Daniel Patrick Moynihan U-8. Courthouse
500 Pearl Street
New York, New York 10007-1312

Re:

Anwar, et al. v. Fairfield Greertwich Limited, et al.
09-cv-118 (VM) (THK)

1

Standard Chartered Cases
Dear Judge Marrero:
I am the Liaison Counsel for the Standard Chartered Plaintiffs in the
Standard Chartered Cases.
Given the Court's recent ruling on SLUSf\ in this matter, this is our
renewed request that the Court (i) formally deqy the Standard Chartered
Defendants' request for leave to file a motion
summary judgment, and (ii)
schedule a conference to discuss possible rematjd to the Judicial Panel on
Multidistrict Litigation and disposition of these' cases.

for

The status of the Standard Chartered Caises is as follows:
1.

The first Standard Chartered Case was transferred to this Court
for pretrial procedures in October 2~09. (DE 281, October 24,
2009).

2.

All fact discovery was concluded in May 2012.
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3.

All expert reports have been delivered and all expert discovery
has been concluded_ Expert discove~y was significantly delayed by
the November 2013 guilty plea to a felony by one of the Standard
Chartered Defendant's proffered ex~ert witnesses, which resulted
in the Defendants' being permitted to engage a third expert,
followed by new expert-discovery di$putes, such that expert
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200 S. BISCAYNE BOULEVARD, STE. l930i• MIAMI, FLORIDA 3313t
V\'WVV .1-HIOBRODSK 'I' L/\WF~RM.COM

786-220-3328 • RBHODSl\.Y@Tl-ll:BRdDSKYLAWFIRM.COM

From: Richard E. Brodsky

Fax: [phone]

To: Hon. Victor Marrero

FaY: +1 i2121 805-6382

Page 3 of 4 0813112015 1:11 PM

Hon. Victor Marrero
August 31, 2015
Page 2
depositions were not completed un~il August 2014.
4.

By letter dated August 29, 2014, the Standard Chartered
Defendants requested a conference !regarding their desire to file a
motion for summary judgment. (DEl 1314, Sept. 3, 2014).
'

5.

By letter dated September 12, 2014,, the Standard Chartered
Plaintiffs opposed the request for l~ave to file for summary
judgment on the ground that such~ motion would be futile and a
waste of party and judicial resourc~s. (Sealed).
'
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6.

This Court held a hearing on SepteJ;nber 29, 2014, on the request
and ordered additional letter briefs. (Unnumbered paperless
1

order,Sept.29,201~.

7.

The Standard Chartered Defendan~s submitted a letter brief
dated October 31, 2014. (DE 1333, November 5, 2014).
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8.

The Standard Chartered Plaintiffs $ubmitted a letter brief dated
November 17, 2014. (DE 1349, Jamtary 7, 2015).

9.

After further separate full letter bri~fing, the Court held that
SLUSA applies to the claims of the Standard Chartered Plaintiffs
and clarified which claims were pref,luded by SLUSA and which
were not. DE 1396 (July 29, 2015) ('!,Due Diligence Claims" not
precluded). The Court denied the Stjtndard Chartered
Defendants' motion for reconsiderat~on of the July 29, 2015 order
as to the "Due Diligence Claims,"
1403 (August 13, 2015), and,
as to the claims of failure to disclos~ "investment risk," granted
the motion and held that the claims' were precluded. DE 1407
(August 28, 2015).

Dt
1

The only remaining pre.trial issue before,this Court at this time is the
Standard Chartered Defendants' request for lealve to file a formal motion for
summary judgment, which has not been separa1ely addressed by the Court.
The record reveals that there is absolutely no n ed for the Court to further
consider that request. This Court should promptly deny it.
At the hearing on that request on September 29, 2014, the Court
stated its preliminary view that the Standard Cih.artered Defendants'
showing an entitlement to summary judgment dn the Standard Chartered
Plaintiffs' claims would be an "uphill battle." Trknscr., 9/29/14 hrg., 47. That
statement by the Court has proven correct: the $tandard Chartered
Defendants have not come close to climbing, no~ to mention surmounting,

From: Richard E. Brodsky

Fax: [phone]

To: Hon. Victor Marrero

Fay: [phone]

Page 4 of 4 08/3112015 1:11 PM

Hon. Victor Marrero
August 31, 2015
Page 3
that hill_
Instead, in our letter dated September 12, 2014, at the hearing on
September 29, 2014, and in our letter dated Ndvember 17, 2014 (DE 1349),
we have made a factual showing-one that the !iStandard Chartered
Defendants have formally stated that they do rtot challenge-unquestionably
demonstrating that a reasonable jury could retl.irn a verdict in any one of the
Standard Chartered Plaintiffs' favor at trial of the Due Diligence Claims.1 As
we have amply demonstrated, therefore, there is, no need to go through the
paces of a formalistic motion under Fed.RCiv.P~ 56; such a motion would be
an exercise in futility would just add more delar to an already over-delayed
situation. Elevating form over substance in this way would make no sense.
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Therefore, we respectfully request that the Court (i) formally deny the
Standard Chartered Defendants' request for leJve to file a motion for
summary judgment, and (ii) schedule a confereuce to discuss possible remand
to the Judicial Panel on Multidistrict Litigatioq and disposition of these
cases. Such steps would expedite this matter in! accordance with the intent of
Fed.R.Civ.P. 1 and practices and procedures in :multi-district litigation.
Thank you for your careful consideration of this letter.
Sincerely yours,

Richard Et Brodsky
cc:

SC Plaintiffs' Counsel
SC Defendants' Counsel

We have also shown that the Standard Chartered Defendants have waived
their right to assert a limitations defense becau$e they failed to assert
limitations as an affirmative defense in any answer to any of the large
number of complaints against them. DE 1349, at 2-3. It would be severely
prejudicial to the Standard Chartered Plaintiffs! were the Standard
Chartered Defendants permitted to raise this a*erthought, for the first time,
long after the pleadings had closed and all discovery completed.
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