Anwar et al v. Fairfield Greenwich Limited et al

Filing 1425

ORDER: Accordingly, it is hereby ORDERED that the request of Defendants Standard Chartered Bank International (Americas) Ltd. I Standard Chartered International (USA) Ltd., Standard Chartered Bank, and Standard Chartered PLC (collectively, the "Standard Chartered Defendants") for a pre-motion conference regarding the Standard Chartered Defendants' contemplated motion for summary judgment is DENIED. (Signed by Judge Victor Marrero on 10/7/2015) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------x
s. ANWAR, et al.,

PASHA

09-cv-118 (VM)
Plaintiffs,
ORDER

-againstFAIRFIELD GREENWICH LIMITED,
et al.,
Defendants.

----------------------------- x
VICTOR MARRERO, United States District Judge.

By letter dated August 29,
Chartered

Bank

2014,

Defendants Standard

(Americas)

International

Ltd.

Standard

I

Chartered International (USA) Ltd., Standard Chartered Bank,
and

Standard

Chartered

Chartered

Defendants")

regarding

the

motion

for

PLC

(collectively,

requested

a

the

pre-motion

Standard Chartered Defendants'

summary

judgment

in

eleven

of

"Standard
conference

contemplated
the

actions

consolidated in the Standard Chartered Action 1 ("August 29,
2014
1314.)

Standard
The

Chartered

Standard

Defendants'

Chartered

Defendants

judgment on the following grounds:
Chartered Plaintiffs' 2

Letter").

(1)

(Dkt.

sought

No.

summary

all of the Standard

claims are barred by the Securities

The Standard Chartered Action describes the 56 cases consolidated in
this Court in which claims have been asserted against the Standard
Chartered Defendants.
2 The term Standard Chartered Plaintiffs denotes the 74 plaintiffs in the
Standard Chartered Action.
1

1

Litigation Uniform Standards Act of 1998 ( "SLUSA");

(2)

the

Standard Chartered Plaintiffs' claims of breach of fiduciary
duty,

negligence,

and gross

"Due Diligence Claims")
Defendants

conducted

recommending

negligence

(collectively,

the

fail because the Standard Chartered
sufficient

investment

in

the

due

diligence

prior

Fairfield Sentry Ltd.

Fairfield Sigma Ltd. Funds (collectively,

the "Funds");

to
and
(3)

the allegations that the Standard Chartered Defendants made
a material omission by failing to disclose that Bernard Madof f
was executing the split-strike conversion strategy ("Omission
Claims")

fail

because

the

Standard

Chartered

Defendants

disclosed Bernard Madoff's role in the Funds and the Standard
Chartered Plaintiffs cannot establish scienter, reliance, or
proximate cause; and (4) individual claims are untimely under
the applicable statute of limitations.
By
Chartered
Standard

letter

dated

Plaintiffs
Chartered

September
responded

Defendants'

(Id.)

12,
to

2014,
the

Letter,

the

August

Standard
29,

arguing

that

2014
the

Standard Chartered Defendants would be unable to demonstrate
the non-existence of a genuine dispute as to any material
fact

("September

Letter")

12,

2014

Standard

Chartered

Plaintiffs'

(filed under seal).

During a pre-motion conference held on September 29,
2014, this Court noted it was "skeptical that the defendants

2

are going to be able to make a case that as a matter of law
every one of these plaintiff's claims is subject to dismissal
. given the nature of the claims

on summary judgment[]

and the extent to which there is substantial evidence cited
by [the Standard Chartered Plaintiffs] that a reasonable jury
might very well agree with the plaintiff's theory."
Proceedings,
that

the

Dkt.

No.

Standard

1329.)

Furthermore,

Chartered

Defendants

(Tr. of

the Court stated
faced

"an

uphill

battle in persuading [the] Court that there are no issues of
[fact]

what[so]ever

standard of duty."

on

these

theories

of

negligence

and

(Id.) The Court then ordered the parties

to submit further correspondence regarding these issues for
the

Court's

consideration.

(Id.)

The

Standard

Defendants submitted a letter dated October 31,

Chartered
2014

(Dkt.

No. 1333) with the Standard Chartered Plaintiffs responding
on November 17, 2014 (Dkt. No. 1349).
On May 6, 2015, after the Second Circuit decision in In
re Kingate Mgmt. Ltd. Litig.,
the

Court

requested

further

784 F.3d 128
submissions

(2d Cir.

from

the

2015),
parties

regarding SLUSA preemption of the remaining state law claims.
(Dkt. No. 1375.) Both parties submitted letter briefs on May
29,

2015

(Dkt.

Nos.

1384,

1385)

with simultaneous replies

filed on June 8, 2015 (Dkt. Nos. 1390, 1391).
On July 29, 2015, this Court issued a Decision and Order

3

finding that the state law claims of misrepresentation and
fraud were precluded by SLUSA but the Due Diligence Claims
were not precluded ("July 29, 2015 Order") . 3

(Dkt. No. 1396.)

The Standard Chartered Defendants moved for reconsideration
of the July 29,

2015 Order insofar as

Chartered Defendants'
Claims

(Dkt.

No.

it denied Standard

motion to dismiss

1399),

which

the

the Due Diligence

Court

denied

in

part

("August 13, 2015 Order," Dkt. No. 1403) and granted in part
("August 28, 2015 Order," Dkt. No. 1407)
By

letter

Standard

dated

Chartered

August

31,

Plaintiffs'

2015

("August

Letter"),

the

31,

2015

Standard

Chartered Plaintiffs requested that the Court formally deny
the Standard Chartered Defendants' request to file a motion
for summary judgment on the remaining issues not resolved by
the July 29,
August 28,

2015 Order,
2015 Order

the August 13,

(collectively,

2015 Order, or the

the

"SLUSA Orders").

(Dkt. No. 1412.)
The

Court

has

examined

the

parties'

correspondence

regarding the Standard Chartered Defendants' request to file
a motion for summary judgment in light of the posture of the

3 The Court also made findings in the July 29,
2015 Order related to the
Anwar Action in which a class of plaintiffs representing shareholders and
partners in the Funds have asserted state and federal law claims against
the Funds' administrators and custodians and state law claims against the
Funds' auditors. Those findings are not relevant here and are therefore
not discussed.

4

Standard Chartered Action following the SLUSA Orders.

(See

Dkt. Nos. 1396, 1403, 1407.) The Court remains persuaded that
the Standard Chartered Defendants would be unable to "show[]
that there is no genuine dispute as to any material fact"
such that they would be entitled to judgment as a matter of
law on the

remaining claims of breach of

fiduciary duty,

negligence, and gross negligence. See Fed. R. Civ. P. 56(a).
Standard

Chartered

Defendants'

pursuing

summary

judgment

practice at this time in the light of the extensive prior
proceedings,
Court's

the current status of the litigation,

familiarity

with

the

issues

and the

would

be

counterproductive and serve to unnecessarily add to costs and
delay.
ORDER

Accordingly, it is hereby
ORDERED

Chartered

that

Bank

the

request

International

of

Defendants

(Americas)

Ltd.

I

Standard
Standard

Chartered International (USA) Ltd., Standard Chartered Bank,

5

and

Standard

Chartered

PLC

(collectively,

the

"Standard

Chartered Defendants") for a pre-motion conference regarding
the Standard Chartered Defendants'

contemplated motion for

summary judgment is DENIED.
SO ORDERED.

Dated:

New York, New York
7 October 2015

Victor Marrero
U.S.D.J.

6