Anwar et al v. Fairfield Greenwich Limited et al

Filing 436

SUPPLEMENTAL MOTION to Dismiss On the Newly-Arisen Ground That Plaintiffs' Common-Law Claims are Preempted by SLUSA. Document filed by Standard Chartererd Bank, Standard Chartered Bank International (Americas) Limited, Standard Chartered Private Bank, Standard Chartered International (USA) Ltd., Standard Chartered PLC. (Attachments: #1 Exhibit A)(Nelles, Sharon)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------- x PASHA ANWAR, et al., ) ) Plaintiffs, ) ) v. ) FAIRFIELD GREENWICH LIMITED, et al., ) Master File No. 09-CV-118 (VM) ) ) Defendants. ) ) This Document Relates to: Bhatia v. Standard ) Chartered Int'l (USA) Ltd., No. 09-CV-2410; Tradewaves Ltd. v. Standard Chartered International ) ) (USA) Ltd., No. 09-CV-9423; Headway Investment ) Corp. v. American Express Bank Ltd., No. 09-CV08500; Lopez v. Standard Chartered Bank International ) ) (Americas) Ltd., No. 10-CV-00919; Maridom Ltd. v. Standard Chartered Bank International (Americas) Ltd., ) No. 10-CV-00920; and Valladolid v. American Express ) )) Bank Ltd., No. 10-CV-00918. ) -------------------------------------------------------------------- x SUPPLEMENTAL MOTION TO DISMISS ON THE NEWLY-ARISEN GROUND THAT PLAINTIFFS' COMMON-LAW CLAIMS ARE PREEMPTED BY SLUSA Pursuant to the Scheduling Order entered by this Court on January 29, 2010, on March 10, 2010, Standard Chartered Defendants filed a motion to dismiss Bhatia v. Standard Chartered International (USA) Ltd., No. 09-CV-2410, and Tradewaves Ltd. v. Standard Chartered International (USA) Ltd., No. 09-CV-9423 under Rules 12(b)(1), (3) and (6) of the Federal Rules of Civil Procedure and the doctrine of forum non conveniens. On the same date, Standard Chartered Defendants filed a motion to dismiss Headway Investment Corp. v. American Express Bank, No. 09-CV-08500, Lopez v. Standard Chartered International (Americas) Ltd., No. 10-CV-00919, Maridom Ltd. v. Standard Chartered International (Americas) Ltd., No. 10-

CV-00920, and Valladolid v. American Express Bank Ltd., No. 10-CV-00918 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. At the time those motions were filed, an additional matter, Pujals v. Standard Chartered Bank International (Americas) Ltd., No. 10-CV-02878 ("Pujals"), was before the Judicial Panel on Multidistrict Litigation pending decision on the Pujals plaintiffs' objection to a conditional transfer order. On April 1, 2010, the Judicial Panel on Multidistrict Litigation transferred Pujals to this District, and on April 16, 2010, this Court consolidated Pujals with Anwar v. Fairfield Greenwich Group, No. 09-CV-00118, for all pretrial purposes. The consolidation of Pujals with Anwar gives rise to a new and additional ground for dismissal of plaintiffs' common law claims that was not previously available to the Standard Chartered Defendants. Specifically, with the consolidation of Pujals, the cases against the Standard Chartered Defendants now constitute a "covered class action" under the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), 15 U.S.C. §§ 78bb(f)(1), 78bb(f)(5)(B), 77p(b), 77p(f)(2)(A), and plaintiffs' common law claims are therefore preempted for the reasons set forth in the accompanying memorandum of law. Standard Chartered Defendants respectfully request permission to supplement their March 10, 2010 motions to include this additional discrete ground for dismissal. Mindful of not disturbing the Scheduling Orders already in place, Standard Chartered Defendants contacted counsel for plaintiffs in the Standard Chartered Cases in an effort to reach agreement on a proposed briefing schedule that would (i) have plaintiffs' response due to this supplemental motion on May 28, 2010 and (ii) have Standard Chartered Defendants' reply due on June 4, the same day defendants' reply papers are due on the motions submitted on March 10, 2010 under the Court's April 15, 2010 Amended Scheduling Order. Standard -2-

Chartered Defendants understand that plaintiffs object to this schedule and instead seek a schedule whereby they would first have 72 hours to brief procedural issues and then an additional 10 days from the time the Court addresses procedural issues to address any substantive issues. Standard Chartered Defendants respectfully disagree that it is necessary to bifurcate briefing on plaintiffs' procedural and substantive objections, but do not object to plaintiffs' request for 10 days to incorporate their objections to this additional argument into their opposition papers otherwise due today (with defendants' date to submit their reply papers extended 10 days) if this schedule is acceptable to the Court. A proposed scheduling order is included herewith as Exhibit A. 1 Dated: May 3, 2010 New York, New York /s/ Sharon L. Nelles Sharon L. Nelles (SN-3144) SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Standard Chartered Defendants

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If the Court grants plaintiffs' request for bifurcated briefing, Standard Chartered Defendants do not oppose the 72 hours plaintiffs request and respectfully request 24 hours to submit any response. -3-