Anwar et al v. Fairfield Greenwich Limited et al

Filing 1532

ENDORSED LETTER addressed to Judge Victor Marrero from Sharon L. Nelles dated 12/29/2015 re: We write on behalf of Standard Chartered Bank International (Americas) Ltd. and Standard Chartered PLC (together, "SCB") in response to the December 22, 2015 letter from plaintiff Teresa Barbachano concerning her proposed Third Amended Complaint, and as further specified in this letter. 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 Defendants. So ordered. (Signed by Judge Victor Marrero on 1/6/2016) Filed In Associated Cases: 1:09-cv-00118-VM-FM, 1:11-cv-03553-VM (rjm) Modified on 1/6/2016 (rjm).

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December 29, 2015

By Facsimile
Honorable Victor Marrero,
United States District Judge,
Southern District of New York,
Daniel Patrick Moynihan U.S. Courthouse,
500 Pearl Street,
New York, New York 10007.
Re:

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JUDCE fV1AiiRERO

Anwar v. Fairfield Greenwich Ltd - No. 09-cv-118 (VM)(FM)Barbachano v. Standard Chartered Bank International (Americas)
Ltd,, et aL No. l l-CV-3553

Dear Judge Marrero:
We write on behalf of Standard Chartered Bank International (Americas)
Ltd. and Standard Chartered PLC (together, "SC.B") in response to the December 22,
2015 letter from plaintiff Teresa Barbachano concerning her proposed Third Amended
Complaint. (Dkt. #1526.) Ms. Barbachano purpons to submit her proposed amended
pleading in response to this Court's Order of December 3, 2015. That Order allowed
certain Standard Chartered Plaintiffs to amend their operative complaints "solely for the
purpose ofpleading the uniform negligence [countf' in the form agreed by the parties.
(Dkt. #1473 at 2 (emphasis added).) Ms. Barbachano's proposed Third Amended
Complaint, however, improperly attempts to re-plead, for the third time, claims dismissed
by this Court years ago. SCB respectfully requests that the Court reject the proposed
Third Amended Complaint and either (i) order that any further amended complaint drop
all previously dismissed claims and add only the uniform negligence count; or (ii) deny
Ms. Barbachano the right to further amend at all and proceed with remand of the
Barbachano action as is.
There are two issues. First, Ms. Barbachano's proposed new pleading
reasserts, word-for-word, the fraud and negligent misrepresentation claims (Counts I, III
and V) that this Court dismissed on October 24, 2012, Anwar v. Fairfield Greenwich
Ltd., 286 F.R.D. 258, 259 (S.D.N.Y. 2012) (Dkt. #995), and denied leave to re-plead on
August 22, 2014 (Dkt. #1309). Likewise, Ms. Barbachano's proposed breach of
fiduciary duty and gross negligence claims (Counts II and IV) are replete with the same

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Honorable Victor Marrero

allegations of misrepresentations and omissions that this Court found to be insufficient
under Rule 9(b) in its prior Orders (see Proposed Third Am. Compl. ~ 69, 93): 1 Anwar,
891 F. Supp. 2d 548, 552-55 (S.D.N.Y. 2012); Anwar, 286 F.R.D. at 259-60, and/or
precluded under the Securities Litigation Unifonn Standards Act of 1995, (July 29, 2015
Order, Dkt. #1396; August 28, 2015 Order at 3, Dkt. #1407 ("dismissing allegations
based on the Standard Chartered Defendants' failure to disclose im1estment risk")). Ms.
Barbachano should not be permitted to use the Court's assent to her submitting a
proposed new uniform negligence count as license to assert, on the eve of her case being
remanded back to the United States District Court for the Southern District of Florida,
claims that this Court dismissed years ago.

Second, the proposed Third Amended Complaint asserts the same
portfolio suitability claims that the Court dismissed and denied Ms. Barbachano leave to
re-plead. Specifically, the asserted breach of fiduciary duty and gross negligence claims
(Counts II and IV) allege breaches of purported "duties to review the invesunents
contained in her investment portfolio, to render suitable recommendations regarding the
increase or liquidation of assets in her investment ponfolio ... and to cause the purchase
or sale of investments on behalf of Barbachano only after obtaining Barbachano's written
authorization." (Proposed Third Am. Comp!. mJ 68, 92.) These allegations are identical
to the allegations that Ms. Barbachano attempted to include in her proposed Second
Amended Complaint. The Court denied Ms. Barbachano leave to file that complaint on
August 22, 2014 after extensive letter briefing. (Dkt. ## 1301 (Letter from Mr. Lindsey
on behalf of Ms. Barbachano), 1303 (Lener from Ms. Nelles on behalf of SCB), 1307
(Letter from Mr. Lindsey), 1308 (Letter from Ms. Nelles), 1309 (Order denying leave to
file Second Amended Complaint)); see also 891 F. Supp. 2d at 552 (holding that "an
inspection of the Barbachano complaint shows that what the plaintiff stylizes as an
allegation of 'failure to render suitable investment advice' is actually indistinguishable
from an allegation of negligent failure to conduct due diligence"). Ms. Barbachano has
provided no basis for reconsideration of the Court's prior Order-nor is there any.
Accordingly, SCB respectfully requests that the Coun deny Ms.
Barbachano leave to file her proposed Third Amended Complaint and order that any
further amended complaint add only the uniform negligence count and drop all
previously dismissed claims, including: (i) proposed Cowits I, III and V in their entirety;
(ii) any claim based on alleged misrepresentations or omissions in connection with Ms.
Barbachano's purchases of Fairfield Sentry Ltd; and (iii) any claim based on an alleged
failure to render suitable investment advice with respect to investments in her portfolio.
SCB funher requests that Ms. Barbachano be ordered to file any further proposed amended

(See also Proposed Third Am. Compl.

~ii

67, 69, 70, 71, 73, 91, 93, 94, 95, 97.)

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Honorable Victor Marrero

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complaint by no later than January 12, 2016. In the alternative, SCB respectfully requests
that the Court deny Ms. Barbachano the right to further amend her complaint at all,

nctfully

sub~

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Sharon L. Nelles
cc:

H. Eugene Lindsey, counsel for Ms. Barbachano

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

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SO ORDERED.

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