Anwar et al v. Fairfield Greenwich Limited et al

Filing 1529

ENDORSED LETTER addressed to Judge Victor Marrero from H. Eugene Lindsey dated 12/30/2015 re: Standard Chartered's correspondence to the Court, dated December 29, 2015. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Plaintiff Teresa Barbachano. (Signed by Judge Victor Marrero on 1/4/2016) Filed In Associated Cases: 1:09-cv-00118-VM-FM, 1:11-cv-03553-VM(cdo)

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KATZ I BARRON

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305-856-2444
305·285-9227 FAX
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December 30, 2015

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

Re:

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An.war, et al. v. Fairfield Greenwich Limited, et al,
Case No. 09-cv-118 (VM)(THK), Standard Chartered Cases
This correspondence relates to: Barbachano v. Standard Chartered Bank
International (Americas) Limited, et al, 1:11-cv-03553-VM

Dear Judge Marrero:
We write on behalf of Plaintiff Teresa Barbachano, one of the plaintiffs in the Standard
Chartered Cases ("SC Cases"), and are in receipt of Standard Chartered's correspondence to the
Court, dated December 29, 2015.
Standard Chartered argues that we have acted ''improperly," SC correspondence at I,
because Ms. Barbachano's Third Amended Complaint [D.E. 1525] appends the "uniform
negligence count'' to her existing Amended Complaint [D.E. 990], while otherwise leaving that
complaint unchanged. We disagree.
Pursuant to this Court's order, the operative pleading on behalf of Ms. Barbachano was
her Amended Complaint. See October 24, 2012 Decision and Order [D.E. 995], at 6
("[o]rder[ing] that the proposed Amended Complaint (Docket No. 990) shall serve as the
operative pleading in this matter;" and then dismissing Counts I, III, and V of the Amended
Complaint in accordance ""ith the Court's September 12, 2012 Decision and Order, [D.E. 937]).
See al.so August 22, 2014 Order [D.E. 1309], at 2 (denying "Barbachano's request for leave to
file a second amended complaint, separate from repleading a uniform negligence count in
coordination \'lfith all other plaintiffs ... "). Thus, while the Court, pursuant to its October 24,
2012 Decision and Order, dismissed certain of Ms. Barbachano's counts in her Amended
Complaint (and later, in its August 22, 2014 Order, agreed with Standard Chartered that it had
also dismissed Ms. Barbachano' s overall portfolio suitability claims), no portion of Ms.
Barbachano's Amended Complaint was stricken.

K AT Z .

BA R- R. 0

N . S QU l TE. R 0 . F A U S T. F R. l ED B E R G . E N G ll S H &. A L L E N

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Honorable Victor Marrero
December 30, 2015
Page2
Then, on December 3, 2015, the Court ordered that "(a]ny Standard Chartered Plaintiff
who seeks to amend the complaint herein solely for the purposes of pleading the uniform
negligence claim referred to above and attached to this letter is directed to do so by 12-22-15."
[D.E. 1473] That is exactly what Ms. Barbachano has done, and to do otherwise (e.g., excise
portions of her Am.ended Complaint) would not have been compliant with the Court's direction.
Moreover, in our December 22, 2015 correspondence to the Court, which notified the
Court that Ms. Barbachano was filing a Third Amended Complaint, we expressly stated that:
Ms. Barbachano hereby advises that she elects to amend her amended complaint,
[D.E. 990], to include the "uniform negligence count" and has so amended to
include that count as Count VI of her accompanying "Third Amended
Complaint," which complaint we are also filing contemporaneously herewith.
Ms. Barbachano's election is without prejudice to any right she may have
to challenge any adverse rulings contained in the Court's prior decisions in this
matter, including any adverse rulings contained in the Court's September 12,
2012 Decision and Order, [D.E. 937], the Court's October 24, 2012 Decision and
Order, [D.E. 995], the Court's August 22, 2014 Order [D.E. 1309], and the
Court's July 29, 2015 Decision and Order [D.E. 1396].
Thus, we made plain that the Third Amended Complaint was simply adding the "uniform
negligence count" to Ms. Barbachano 's .A.mended Complaint and that Ms. Barbachano was doing
so without prejudice to any right she may have to challenge the Court's prior orders with respect
to the dismissed counts and claims contained therein. At no time was it our intent to suggest or
imply that by merely filing the Third Arn.ended Complaint that any of those dismissed counts or
claims were thereby reinstated. In fact, our intent was to make plain the contrary.
Ms. Barbachano does, of course, wish to seek review of the Court's prior orders
dismissing counts and claims that she has alleged against Standard Chartered and, in that regard,
because the Court's work in this multidistrict litigation is nearly complete, Ms. Barbachano
respectfully requests that the Court enter partial final judgment pursuant to Rule 54(b), Fed. R.
Civ. P., on those dismissed counts and claims, as there is now "no just reason for delay." As the
United States Court of Appeals for the Fourth Circuit has explained in the multidistri.ct litigation
context:
There is no "just reason" for delaying the dismissed plaintiffs' appeal rights witil
after remand to the transferor coUrts. Accordingly, transferee courts in this circuit
must, at some point prior to filing a suggestion of remand, enter final judgment
under Rule 54(b) v:.rith regard to any decision or order of that court that fully
disposes of "fewer than all the claims or the rights and liabilities of fewer than all
the parties."

See, e.g., In re Food Lion, Inc., Fair Labor Srandards Act ''Effective Scheduling" Litigation, 73
F.3d 528, 533 (4th Cir. 1996) (emphasis in original; footnote omitted). Cf FedEx Ground

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Honorable Victor Marrero
December 30, 2015

Page 3
Package Sys., Inc. v. United States Judicial Panel on Multidz".strict Litigation, 662 F.3d 887, 891
(7th Cir. 2011) (holding that the JPML and transferee court possess the discretion to decide
whether to enter partial fmal judgment under Rule 54(b) prior to remand, thus allowing an
immediate appeal).
Here, Ms. Barbachano's claims involving the lack of suitability of her entire portfolio are

wholly unique to her; they involve no other plaintiff. Yet, Standard Chartered chose to bring Ms.
Barbachano into this multidistrict litigation over her objection and the Court subsequently
dismissed those claims as a matter of law. As this is the forum that Standard Chartered chose to
hear Ms. Barbachano's case prior to trial, we respectfully request that the Court enter partial final
judgment pursuant to Rule 54(b), finding "no just reason for delay," on those counts and claims
that the Court previously dismissed with respect to Ms. Barbachano so that she may take an
immediate appeal and that the Court otherwise suggest remand of her case to the Southern
District of Florida.
Thank you for your time and consideration of this matter.
Respectfully submitted,

~arron Squiter: Faust

H. Eugene Lindsey
cc:

Via E-mail to Counsel for SC Defendants and to
Counsel for SC Plaintiff, Headway Investment Corp.

The Clerk of Court is directed to enter into the public record
of this action the letter above submitted to the C1urt by

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SO ORDF:RED.

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