Anwar et al v. Fairfield Greenwich Limited et al
Filing
1543
ENDORSED LETTER addressed to Judge Victor Marrero from Timothy A. Duffy dated 1/28/2016 re: The PwC Defendants respectfully request that the Court deny the Trustee's request for a pre-motion conference and the request to intervene, and overrule the Trustee's objections to the pending settlement. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by PwC Defendants herein. (Signed by Judge Victor Marrero on 1/29/2016) (lmb)
r.:::~·-·.
----. =.:· --~~===:=-:..:.:..::.-.-.1
{ Is DC ~ D \; y
DOCl'\!E~
n
:1
.
ECTRO~
\
llib
I
;
!'
IC.\ LLY FILED
1
:·DOC#:
IT 1·~-l~~: [)
- - - - - --
----·-
-~
·-
'
.
('".-'.::\'-'" ''-''"'. ~"'.."'-il"
U \..
,,i.\
J •. , • • • • • . . ,
,
:-J[ql~~ I
. . . • -~---
--
AND AJtllJATED PARTNERSHIPS
'I
300 North LaSalle Street
Chicago. Illinois 60654
T1rnott1y A. Duffy, P, C
To Call Writer Directly
(312) 862-2"1145
•... ·
.. ...,
'
ir ,. . -;:l ;·; S~\.,., v?, ...
;
hl
I \L
1l
_,ti
i l
·... ' ,. J
;
/
..
\
Facsimile·
(312) 862-2200
January 28, 2016
VIA FAX
Judge Victor Marrero
United States District Court
Southern District of New York
500 Pearl Street
New York, New York l 0007
Anwar, et al. v. Fairfield Gree11wich Limited, et al.
Master File No. 09-CV -00118 (VM) (FM)
Dear Judge Marrero:
I write on behalf of my client, PricewaterhouseCoopers LLP ("PwC Canada"). and
defendant PricewaterhouseCoopers Accountants N. V. (" Pw·C Netherlands") (collective Iy, the
"PwC Defendants") at the direction of the Court in response to Mr. Wallner's letter of January
25, 2016, seeking a pre-motion conference regarding a proposed rnotion by the New Greenwich
Litigation Trustee ("the Trustee") to intervene for purposes of objecting to the proposed
settlement of the plaintiffs' claims against the PwC Defendants. The Trustee's objections are
without merit, and the Court should deny the Trustee's request to intervene. 1
As an initial matter, the Trustee's claims against the PwC Defendants have been
dismissed, and as the Court has already concluded, any prospect of reinstatement as a result of a
pending appeal and prosecution to judgment remains "speculative." Decision and Order. Dkt. #
1413, at 6 (Sept. 15, 2015). Moreover, as also previously established by the Court, the Trustee
does not have standing to object to the settlement. Id. As with the prior settlements in this
litigation, the Trustee has not identified anything in the PwC settlement that prejudices any
claims or defenses the Truslt::e may have in any proceeding. Indeed, as before, the Settlement
Agreement and the Proposed Final Order both make it clear, the Trustee is losing no rights as a
result of the settlement. Paragraph 19 of the Settlement Agreement provides:
19.
Nothing in this Stipulation ... shall release, waive, bar or otherwise affect
any claims asserted or \vhich may be asserted by the Funds, Trustees or
1 The
PwC Defendants agree with and join in the arguments made by Plaintiffs in response to the
Trustee's request.
HClr>g Kong
Lonoon
Lo~
Angeles
Munich
NQW York
Palo AllO
San Francisco
l
~-_:::_ -- __'...-~---·~]
www.k1rklani:s com
Re:
...
'i ;~J
l - .·.
(3, 2) 862-2000
lim,duffy@1<;ir1<;Jand.com
-
I~'
KIRKLAND&.., ELLIS LLP
..
..., .......
Shanghai
Washing1on. D.C
KIRKLAND
&._
ELLIS LLP
January 28, 2016
Page 2
Liquidators for the Funds, or the Released Parties, in the proceedings entitled (i)
New G1·eenwich Litigation Trust, lLC, as Successor Trustee of Greenwich Sentry.
l. P. Litigation Trust v. Gtcv Fund Services (Europe) B V et al., New York
County Clerk's Index No. 60046912009 [or] (ii) New Greenwich Litigation Trust.
LLC, as Successor Trustee of Greenwich Sentry Partners, L.P. Litigation Trust v.
Citco Fund Services (Europe) BV, et al., New York County Clerk's Index No.
600498/2009 ... ; provided, however, that to the extent that any such claims have
been or may be asserted, nothing in this Stipulation shall prevent the Released
Parties from asserting any defenses or raising any argument as to liability or
damages with respect to such claims or, with the exception of the provisions of~
4, prevent the Released Parties from asserting any rights, remedies or claims
against the Funds. or Trustees or Liquidators for the Funds, or in the abovereferenced Iitigations.
Paragraph 16 in the settling parties' Proposed Final Order contains the same language. See
Exhibit B to the Settlement Agreement. Paragraph 4 of the Settlement Agreement (referred to in
both Paragraph 19 of the agreement and Paragraph 16 of the Order, provides:
4.
Subject to the conditions set forth herein, the PwC Defendants agree to
waive, and by operation of the Final Judgment shall have waived all rights to seek
recovery on claims for contribution or indemnity that they hold or may hold
against the Funds or any party indemnified by the Funds, the FG Defendants,
GlobeOp, and the Citco Defendants for any expenses incurred or amounts paid in
settlement or otherwise in connection with the Action. Nothing in this provision
precludes the PwC Defendants from arguing that the settlement proceeds in this
case are an offset against claims that may be made against them in other
proceedings.
The bottom line is that all claims and defenses in other proceedings, except any claim by the
PwC Defendants to attempt to recover the Anwar settlement payment or expenses, are expressly
preserved. Thus there can be no possible prejudice to the Trustee as a result of the settlement.
Ignoring this absence of prejudice, the Trustee's first objection is that the Settlement
Agreement is "void and unenforceable" because it was not signed by PricewaterhouseCoopers
International Ltd. ("PwC IL"). It is neither improper nor unusual for a class action settlement
agreement to release or bar claims against parties or non-parties who are not signatories to a
settlement agreement and to provide that they will be bound by orders relating to the settlement.
Here the settling parties negotiated releases that extend to a number of affiliated entities and
KIRKLAND &.. ELLIS LLP
January 28, 2016
Page 3
individuals beyond the signing parties, including PwC IL. The Trustee's objection is entirely
without merit.
The Trustee's second objection is to the Settlement Agreement's acknowledgment that it
does not preclude the PwC Defendants from arguing that the settlement consideration be used to
offset claims in other proceedings. As explained in prior submissions in connection with the
earlier settlements, the effect of the PwC Defendants' settlement payment on other claims or
judgments is a matter for determination in those proceedings. not this one. and neither the
Settlement Agreement nor the Proposed Final Order in any way pre-judges that issue. The
documents simply, and appropriately, make it clear to class members that the PwC Defendants
may argue in other proceedings that the settlement consideration they are paying in this case may
be relevant to the calculation of damages or any judgment related to other claims. In any event,
the Court overruled precisely this objection in connection with the Citco settlement, and the
Trustee advances no grounds for a different result here. Dkt # l 413 at 5-6.
The Trustee's third and final objection is that the settlement funds should be allocated in
some rnanncr between amounts to be paid to investors in the domestic versus the off-shore FGG
funds. This is both unnecessary and impractical. Each class member who submits a valid claim
will be paid based on that investor's losses. To the extent it is later relevant whether or to what
extent payments were made based on investment losses associated with a particular fund, the
relevant facts \viii be easily determinable from the records generated in the claims process.
Indeed, it would be difficult, if not impossible, to predict in advance the appropriate allocation of
settlement proceeds by "fund" as the amount of and basis for such payments will ultimately
depend upon the claims made by participating investors.
ln light of the foregoing. the PwC Defendants respectfully request that the Court deny the
Trustee's request for a pre-motion conference and the request to intervene, and overrule the
Trustee's objections to the pending settlement.
Respectfully,
Is/ Timothy A. Duffy
Timothy A. Duffy, P.C.
cc:
Robert A. Wallner
Counsel of Record (via e/mail)
{:cion
The Clerk of Court is directed to enter into the public record
th. e letter above submitted to. the.C~urt by
w
~ &t:;J-;s. ~~-
SO ORDERED.
/_-}£(--/?
DATE
.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?