Anwar et al v. Fairfield Greenwich Limited et al

Filing 1552

ENDORSED LETTER addressed to Judge Victor Marrero from 2/19/2016 dated 2/18/2016 re: We write to request that Your Honor grant plaintiffs permission to file a motion for an order rejecting eight requests for exclusion from the Citco Settlement that were received by the Settlement Administrator over two months after the October 16, 2015 deadline for requesting exclusion from the Citco Settlement Class, and over one month after this Court entered the Final Judgment and Order of Dismissal With Prejudice on November 20, 2015 (Dkt. No. 1457). ENDORSEMENT: The Settlement Administrator is directed to respond by 2-23-16, by letter not to exceed three (3) pages, to the matter set forth above. Plaintiff's Co-lead counsel are directed to communicate this Order to the Settlement Administrator by close of business on 2-19-16. (Signed by Judge Victor Marrero on 2/19/2016) (lmb) (Main Document 1552 replaced on 2/22/2016) (lmb). (lmb).

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LAW OFFICES

WOLF POPPER LLP
845 THIRD A VENUE
NEW YORK, N.Y. 10022-6601
LONG ISLAND OFFICE
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OFFICE PHONE [phone]

SUITE 400

FACSIMILE [phone]

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[phone]

WWW.WOLFPOPPER.COM

FAX: (5!6) 726-7724

DIRECT DIAL:

212.451.9620

February 18, 2016
:[

By Hand Delivery

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iL. I'

Honorable Victor Marrero
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007

Re:

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Anwar, et al v. Fairfield Greenwich Limited, et al.
Master File No. 09-CV-00118 (VM) (FM)

Dear Judge Marrero:
We are Co-Lead Counsel for the plaintiff class in the above Anwar action. We write to
request that Your Honor grant plaintiffs permission to file a motion for an order rejecting eight
requests for exclusion from the Citco Settlement that were received by the Settlement
Administrator over two months after the October 16, 2015 deadline for requesting exclusion
from the Citco Settlement Class, and over one month after this Court entered the Final Judgment
and Order of Dismissal With Prejudice on November 20, 2015 (Dkt. No. 1457). The eight late
requests for exclusion gave no reason for their late submission.
As Your Honor knows, plaintiffs entered into a Stipulation of Settlement with the Citco
Defendants dated August 12, 2015 (Dkt. No. 1398). Pursuant to that Stipulation, this Court
entered a preliminary approval order dated August 13, 2015 (Dkt. No. 1402), and authorized the
mailing of a class notice and the publication of a summary notice, which notified class members
that any request for exclusion from the Settlement Class was required to be submitted to the
Claims Administrator (Rust Consulting, Inc.) so as to be received on or before October 16, 2015.
See Dkt. No. 1424.
Prior to the final settlement hearing on November 20, 2015, we apprised Your Honor that
Rust had received 566 requests for exclusion from the Citco Settlement Class. See Dkt. No.

WOLF POPPER LLP

Honorable Victor Marrero
February 18, 2016
Page 2

1445 at 2. Pursuant to the Stipulation of Settlement, Your Honor entered the November 20, 2015
Final Judgment, listing on Exhibit 1 thereto (which was filed under seal) the Settlement Class
Members who had opted-out of the Settlement by requesting exclusion from the Settlement Class
prior to the November 20, 2015 Final Settlement Hearing. Each of those Class Members was
affiliated with Deminor Recovery Services, and Deminor had submitted the requests for
exclusion for substantially all Citco Settlement Class Members who requested exclusion. See
Dkt. No. 1445 at 2.
On December 28, 2015, Rust received from Deminor another set of requests for
exclusion on behalf of 19 purported members of the Citco Settlement Class. Eleven of these 19
investors had submitted timely requests for exclusion prior to entry of the Final Judgment and
their names are identified as opt-outs in Exhibit 1 to the Final Judgment. With respect to the
remaining eight Settlement Class Members who had not previously requested exclusion from the
Settlement Class, Deminor provided no reason or explanation for the late submissions. Based on
their requests for exclusion, Plaintiffs estimate that these eight Class Members comprise a total
of approximately $616,000 of potential net losses.
On January 22, 2015, plaintiffs wrote to Deminor explaining the basis for recommending
that the Court reject the eight untimely requests for exclusion (Exhibit 1) 1• Deminor responded
on February 12, 2015 (Exhibit 2).
Relief from a final judgment under Rule 60(b) requires a showing of "excusable neglect."
The argument in Deminor's letter of February 12, 2015 does not address this standard, nor
otherwise demonstrate a basis to find excusable neglect for the eight investors' late submission
of requests for exclusion. Other courts have rejected late opt-out requests that were made after
entry of final judgment dismissing a class action. See, e.g., In re Adelphia Corp. Sec. &
Derivatives Litig., 271 F. App'x 41, 44 (2d Cir. 2008) (denying request for extension of time to
opt-out where, even though class member became aware of settlement one day after opt-out
deadline, it "waited a full month" to seek an extension); Jn re Static Random Access Memory
(SRAM) Antitrust Litig., No. C 07-01819 CW, 2009 WL 2447802, at* 3 (N.D. Cal. Aug. 7,
2009) (class member's two month delay in contacting plaintiffs' counsel after discovering it
missed the opt-out deadline "belies its argument that it acted reasonably and diligently" in
seeking extension oftime to opt-out). See also Midland Cogeneration Venture L.P. v. Enron
Corp. (In re Enron Corp.), 419 F.3d 115, 126 (2d Cir. 2005) ("preoccupation or an excessive
workload" do not excuse delay).

1

Plaintiffs submit herewith a copy of this letter which redacts the names of Settlement Class
Members from Exhibits 1 and 2 to this Jetter. In the event this letter is publicly filed, we
respectfully request that the redacted letter be used for filing purposes to protect the
confidentiality of the investors' identities.

WOLF POPPER LLP

Honorable Victor Marrero
February 18, 2016
Page 3

There is no basis for relieving these eight class members from the operation of the Final
Judgment and their requests for exclusion should be denied.
Respectfully submitted,

;f)J (pl
Robert C. Finkel
RCF:rd
Enclosures
cc:
Charles DeMoulin, Esq.
Andrew G. Gordon, Esq.
David A. Barrett, Esq.

EXHIBIT 1

LAW OFFICES

WOLF POPPER LLP
845 THIRD AVENUE
NEW YORK, N.Y. 10022·6601
LONG ISLANO OFFICE
11 GRACE AVENUE

OFFICE. PHONE (211!) 769·4600

SUITE 400

FACSIMILE 1<!12) 486·2093

OR£AT NECK, N.Y, 11021

www.wOLFPOPPER.COM

1s1a> 7a&·7723
FAX: <s1e• ?26·7724

OIREC't DIAL:

212.451.9620

January 22, 2016

By Electronic Mail
Deminor Recovery Services Team
DRS Belgium SCRL/CVBA
Avenue Van Nieuwenhuyse Laan 6 b. 8
1160 Bruxelles-Brussel
Belgium
j [e-mail]
[e-mail]
Re: Anwar v. Fairfield Greenwich Ltd., 09 CV 0119 <YM> - Late Exclusion Requests
Dear Deminor Recovery Services Team:
We are co-lead counsel for the plaintiff class in the above Anwar action. We have been
advised by the claims administrator, Rust Consulting, that on December 28, 2015, they received
correspondence from your office (see Exhibit A) enclosing 19 requests for exclusion from the
Citco Settlement Class (the "December requests"). Pursuant to the Preliminary Approval Order
(August 13, 2015) and the Notice of Proposed Partial Settlement of Class Action (August 27,
2015), the deadline for delivery of exclusion requests to Rust Consulting was October 16, 2015 . 1
No explanation was provided in your December 28, 2015 letter for the late submission of the
December requests.
On November 20, 2015, the District Court entered a Final Judgment approving the Citco
Settlement and excluding from the Citco Settlement Class all persons who had filed requests for
exclusion from the Settlement Class up to that date.

1

All cou11 documents are available on the settlement website: www.fairfieldgreenwichlitigntion.com

WOLF POPPER LLP

Deminor Recovery Services Team
January 22, 2016
Page 2

Eleven of the investors who submitted untimely December requests had previously and
timely requested exclusion from the Citco Settlement Class; they are identified as opt-outs in
Exhibit I to the Citco Final Judgment, which is filed under seal. The remaining eight investors
who filed untimely, non-duplicative December requests are listed in Exhibit B to this letter (the
"Exhibit B investors").
In the event that you or any of the investors wish to respond to this letter, please do so
within two weeks. Subject to review of any responses, it is our intention to inform the District
Court on or shortly after February 8, 2016 of the untimely requests for exclusion made by the
Exhibit B investors, and to request that the Court endorse our letter confirming the rejection of
these requests.
Plaintiffs' co-lead counsel believe that, having been given notice and an opportunity to
file requests for exclusion in accordance with Due Process requirements, the Exhibit B investors
are members of the Citco Settlement Class who are bound by the Citco Final Judgment,
including provisions releasing, and barring further litigation against, the Citco Defendants among
others. We are not aware of a basis for reopening the Final Judgment at this time.
We further note that Exhibit B investors may choose to file proof of claim forms that may
enable them to share in the class recovery from the Citco Settlement. Because the deadline for
filing proofs ofclaim was December 28, 2015, such claims would be untimely and subject to the
discretion of the Court whether they would be accepted.
Sincerely,

RCF:rd
Enclosures
cc: David A. Barrett, Esq.
Andrew G. Gordon, Esq.

EXHIBIT A

'

de1ninor

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RECOVERY SERVICES

Fairfield Greenwich Securities Litigation
c/o Rust Consulting
201 Lynda le Ave. S.
Faribault, MN 55021
Dear Sir,
Dear Madam,
In this box you will find the exclusion letters from the Citco Settlement Class in Anwar, et al. v. Fairfield
Greenwich Limited, et al., Case No. 09-cv-118 for the followlng clients:
Claim ID

Claimant

Joint clalmant(s)

REDACTED

Please treat these exclusion letters as confidential protected information as stipulated in the order
preliminarily approving the settlement and providing for notice of proposed settlement.
we remain available should you have any question with respect to these requests for exclusion.
Yours sincerely,
The Deminor Recovery Services Team

EXHIBITB

Fairfield Greenwich Securities Litigation Citco Settlement
Exclusion Requests
Name of Claimant

REDACTED

EXHIBIT 2

•
1

Mr. Robert Finkel
\X·olf Popper I .I ,P
845 Third ,\venue
New York, NY 10022-6601
United States of ,\rncrica

I 1cbruary 12, 2016

By e-mail: Rl·inkd(a{wolfpoppcr.com

Your references:

Anwar v. Fairfield Greenwich Ltd., 09 CV 0119 (VM) - Late Exclusion
Requests

Dear Sir,

We refer to your letter ofJanuary 22, 2016 in which you write that eight investors (whom you listed
in Exhibit B to your letter) would have filed untimely requests for exclusion from the Citco
Settlement Class and would therefore be bound by the Citco Final Judgment. ,\ccording to you,
those eight investors would have provided a rek.-ase to, and be barred from further litigations
against, the Citco Defendants.
We disagree for the reasons stated below.
Legal proceedings against Citco Bank Nederland N.V., Citco Fund Services (Europe) B.V. and
Citco Global Custody N.V. (hereafter together "Citco") have been initiated in 2010 in the
Netherlands on behalf of a group of around 700 investors. These proceedings, which arc still
pending, arc related to the role and involvement of Citco with the Fairfield funds (Fairfield Sentry,
Sigma and Lambda). \X'e advise and represent the investors involved in these proceedings. They
arc represented in court by lawyers from CMS Derks Star Husmann N.\'.
In November 2015, our clients' lawyers smt a letter to Mr. Michel Deckers who represents Citco
in the Dutch legal proceedings. With that letter, Citco was clearly and unequivocally informed that
all investors who arc involved in the Dutch proceedinhrs did not (and still do not) consider
themselves to be bound by the provisions of the class settlement in the US class action, rchrardless
of whether they would be part of the "Settlement Class" and/ or would (not) have (timely) filed an
exclusion letter requesting their exclusion from the Citco Class Settlement. All investors were
identified in an exhibit to that letter.
Since our clients have explicitly elected to participate in a legal action in the Netherlands against
Citco and they have once more formally confirmed through their Dutch lawyers that they want to
continue litigation in the Netherlands rcgardle11s of any clas11 settlement in the US, the fact that
some of them would not have (timely) excluded themselves from the class settlement in the l~S

DRS Belgium SCRL I CVBA • Avenue Van Nieuwenhuyse Laan, 6b8 • 1160 Bruxelles-Brussel
TEL [phone]. FAX [phone]. RPM Bruxelles RPR Brussel. TVA BTW BE 0452.511.928
ING BANK 310·1068957-06 • IBAN BE85 310106895706 • BIC BBRUBEBB
www.dern:nor.com

cannot be consi<lere<l by Citco a~ an acceptance, even implicit, of the Citco Class Settlement. Jn
other words, our client~ cannot be prevente<l from continuing to litigate in the Netherlands against
Citco and they have not waived any rights or claims awunst Citco. The only exception WC could

think of is where an investor would have voluntarily and formally accepted to be bound by the
Class Settlement in the l 'S.
Citco was perfectly aware of this. We arc therefore rather surprised that you deemed it necessary
to raise this issue once more. \X!e trust that we have now clarified this matter.
Yours sincerely,

.c:::·:~~

Charles Demoulin

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Joeri Klein

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