Anwar et al v. Fairfield Greenwich Limited et al

Filing 787

DECLARATION of Savvas A. Foukas in Opposition re: #775 FIRST MOTION to Certify Class.. Document filed by PricewaterhouseCoopers Accountants Netherlands N.V., Pricewaterhousecoopers L.L.P.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M, #14 Exhibit N, #15 Exhibit O, #16 Exhibit P, #17 Exhibit Q, #18 Certificate of Service)(Maguire, William)

Exhibit A

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF NEW YORK
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PASHA S. ANWAR, et al.,

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Plaintiffs,
Civil Action No.

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vs.

09-CV-0118(VM)

FAIRFIELD GREENWICH LIMITED, et al.,

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Defendants.
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VIDEOTAPED DEPOSITION OF MICHAEL WIND

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New York, New York

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June 22, 2011

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Reported by:

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KATHY S. KLEPFER, RMR, RPR, CRR, CLR

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JOB NO. 39598
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M. Wind
A. Well, based on the statement that they
gave me each month.
Q. Other than that statement, did you see
any documents or have any conversations with
anybody that indicated that Citco was verifying
the holdings every month?
A. No.
Q. And those monthly statements, those
statements you started to receive after you
invested, correct?
A. Starting in April.
Q. After your -- after you actually made
the decision to invest and invested your money?
A. Right. I think the first statement I
received was in April.
Q. Now, we've talked about a bunch of
documents and Mr. Divine has marked a number of
documents today. Sitting here today, other than
what you've testified to so far, can you recall
any documents that you received and relied upon
prior to making your decision to invest in
Greenwich Sentry Partners?
A. No.
Q. Prior to making your decision to
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M. Wind
interrogatory number 22?
A. I don't think so.
Q. Just that particular question?
A. Yes. I don't think so.
Q. Have you ever seen a copy of the
administration agreement between Citco Fund
Services (Europe) and Greenwich Sentry Partners?
A. No.
MS. IZQUIERDO: I think that's all I
have. Thank you.
THE WITNESS: Thank you.
MR. DECKINGER: Who's next?
MS. CRAWFORD: That's me.
MR. DECKINGER: This is show time now,
right? We get to see this person?
MR. DIVINE: I think she said she
could do without on video. Or are we doing
vide?
MR. GLASSER: I think we're -- I think
we're not doing the video up there.
MS. CRAWFORD: I think you have to get
somebody from you're A/V Department to show
our visual. So if you're comfortable, Mr.
Wind, with just hearing me instead of seeing
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M. Wind
invest in Greenwich Sentry Partners, did you
ever visit the Website www.citco.com?
A. No.
Q. After you made your investment, did
you visit the Website www.citco.com?
A. No.
Q. Now, if you will turn to Exhibit 24,
and I know it's going to be difficult, but if
you can find where your answers are. It's sort
of I guess in the middle-ish of the page.
A. I have it.
Q. Now, if you'll look at your answer to
question number 22, and if you'll just read that
to yourself and let me know when you're ready.
(Document review.)
A. Yes.
Q. All right. You indicate at the end of
your answer that, "Dawson Bypass Trust is still
reviewing records and will supplement its
response on a rolling basis to the extent any
additional responsive information becomes
available."
Sitting here today are you aware of
any additional responsive information to
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M. Wind
me, I think it might be easier to proceed
that way. Is that okay?
THE WITNESS: I would like to see you,
but that's all right. I'll accept that.
MR. STEWART: We'll take the off-stage
voice.
MS. CRAWFORD: In the interest of
time.
EXAMINATION BY
MS. CRAWFORD:
Q. Well, I introduced myself earlier.
I'm Amy Crawford from the law firm of Kirkland &
Ellis, representing PricewaterhouseCoopers
(Canada). Okay?
A. Okay.
Q. And again, we just need you to give a
verbal answer as before, all right?
A. Yes.
Q. Thank you. And can we agree to the
same ground rules as the ones that Mr. Divine
set forth at the beginning of the day that, you
know, if you can't hear me or if you don't
understand my question, you'll ask me to repeat
it or clarify, et cetera?
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M. Wind
A. That's okay. Yes.
Q. Okay. Now, I think we -- it was clear
earlier that the date of the Dawson Bypass Trust
investment was March 6, 2008. Do you recall
that?
A. Yes.
Q. That's the date that the wire transfer
occurred; is that correct?
A. That is -- I think you're right, yes.
Q. And that was the only investment that
the Dawson Bypass Trust made, isn't that right?
A. That is correct.
Q. And the Dawson's Bypass Trust never
redeemed any of its $500,000 investment, right?
A. That is correct.
Q. Now, do you know who the auditor of
Greenwich Sentry Partners' financial statements
was at the time of your -- of the Dawson's
Bypass Trust's initial investment?
A. I don't think so, no.
Q. Now, earlier when Mr. Divine asked you
why you invested in Greenwich Sentry Partners,
you talked about stable returns, a good rate of
return, the fund's historical performance, et
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M. Wind
years 2006 and 2007, correct?
A. Yes.
Q. So you didn't rely on anything that
PwC (Canada) did to -- in making the decision to
invest?
A. Not at that -- not back then, no.
Before I made the investment.
Q. You didn't contact -- you didn't
contact PwC (Canada) before you invested, right?
A. That is correct, did not.
Q. You didn't receive any materials from
PwC (Canada) before you invested, right?
A. I don't think so, other than that
statement that I mentioned.
MS. CRAWFORD: Okay. Jacob, can you
take number 6 and pass it around and have
the court reporter mark a copy.
(Exhibit 43, a document bearing Bates
Nos. Dawson 67 through 81, marked for
identification, as of this date.)
BY MS. CRAWFORD:
Q. Mr. Wind, you've been handed what has
been marked as Exhibit 43, and this is Dawson 67
through 81. Do you see that?
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M. Wind
cetera. Do you remember that?
A. Yes.
Q. But you never inquired with Mr. Glover
or anybody else about the funds' auditors before
you invested, correct?
A. That's correct.
Q. And you didn't rely on anything that
PwC (Canada) did in making a decision to invest,
did you?
A. Not at the time, no.
Q. Is it your testimony that you relied
on something PwC (Canada) did after you made the
decision to invest?
A. Well, when you say "rely on," I had
already made the investment, and then some way
or another I was able -- someone sent me, and I
assume it was probably Glover or someone from
Fairfield, sent me the Pricewaterhouse financial
statements for 2007 and '06 and I saw where you
listed your investments or the investments of
the, excuse me, of the partnership.
Q. Okay. So sometime after you invested,
you received the year-end audited financial
statements of Greenwich Sentry Partners for the
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M. Wind
A. Yes.
Q. And what is this document?
A. It's a financial statement prepared by
Pricewaterhouse on -- concerning Greenwich
Sentry Partners, LP.
Q. Is this a document that you were
referring to having received when you referenced
audited financial statements of Greenwich Sentry
Partners?
A. Yes.
Q. And is this the only document that you
received that had PricewaterhouseCoopers' name
on it, as far as you know?
A. That is correct.
Q. So this is the only audit report that
you have seen for Greenwich Sentry Partners,
right?
A. Yes.
Q. And it's the only audit report you
have seen for any of the Fairfield funds, isn't
that true?
A. That is correct.
Q. Now, are you familiar with the fact
that PricewaterhouseCoopers is actually a number
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M. Wind
of various accounting firms located in a number
of different countries?
A. Not really.
Q. You don't have any idea which of the
PricewaterhouseCoopers firms actually audited
Greenwich Sentry Partners, do you?
A. Well, the only way I could -- I could
tell, now that you bring it up, is the day -the address that's there, which shows Toronto,
Canada, and I would figure that would be the
ones.
Q. Before I drew this to your attention,
that was not something that you were aware of,
is that fair?
A. That Toronto Pricewaterhouse had done
the audit?
Q. As opposed to another
PricewaterhouseCoopers office or firm or entity?
A. I can't -- I'm not sure if -- if I,
what do you call, was aware of that.
Q. Now, do you see the date of this
document at the top of Dawson 67?
A. April 18, 2008?
Q. So in fact this report was issued
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M. Wind
Q. And this document isn't addressed to
the Dawson Bypass Trust or to you or to any
individual limited partner, correct?
A. Say that again?
Q. Let me put it this way: This document
says, "To the partners of Greenwich Sentry
Partners, LP," do you see that?
A. Yes.
Q. It's not addressed to the Dawson
Bypass Trust, right?
A. That is correct.
Q. It doesn't have your name on it
either, right?
A. That is right.
Q. It doesn't have a mailing address for
you or the trust, right?
A. Yes, you're right.
Q. Did you read the audit opinion on page
57, Dawson 57, when you received it?
A. I looked at it, yes.
Q. Are you aware of any other statements
by PricewaterhouseCoopers (Canada) regarding
these financial statements?
A. No.
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M. Wind
after you -- after the initial investment of the
Dawson Bypass Trust, which was made on March 6,
2008, correct?
A. Yes.
Q. When did you find out that
PricewaterhouseCoopers was the auditor of
Greenwich Sentry Partners?
A. When I received this report.
Q. Now, you stated that you believe that
you received this report from Harvey Glover or
someone else at Greenwich Sentry Partners,
correct?
A. Yes.
Q. You don't have any reason to believe
that you were actually mailed this document from
PricewaterhouseCoopers, do you?
A. I don't think -- I'm almost sure -- I
don't know. No, probably not.
Q. And why do you say that?
A. Well, because I don't know if
Pricewaterhouse would have been aware that I was
a partner. It really didn't pertain to my
investment in March of 2008, and this refers to
2007.
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M. Wind
Q. What did this information -- strike
that. Is it your testimony that you relied on
this report in continuing to hold your
investment in Greenwich Sentry Partners?
A. I didn't think I testified to that,
no.
Q. Did you rely on this report in
continuing to hold your investment in Greenwich
Sentry Partners?
A. Not really. I don't think so,
although it -- at least I was able to see that
there, you know, that there was assets there and
that you had, you know, that you were auditing
it.
Q. Did you understand that
PricewaterhouseCoopers was the auditor of
Greenwich Sentry Partners' financial statements?
A. Say that again. I missed who they
represent.
Q. Fair to say that you understood that
PricewaterhouseCoopers was the auditor of
Greenwich Sentry Partners' financial statements,
right?
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M. Wind
firm that discovered Madoff's Ponzi scheme
before December 11, 2008, right?
A. There were people I think sending out
signals that there might have been something
wrong, but no, I think you're -- I think you're
right. I don't think any accounting firm
stepped in and said that -- that there was
something wrong.
Q. Do you think they failed to step in
even though they knew that there was a Ponzi
scheme going on?
A. Well, they should have.
Q. That's not what you -- fair to say
that no accounting firm discovered the Ponzi
scheme before December of 2008, right?
MR. DECKINGER: I object. That
requires speculation. Foundation.
Q. Do you know, sir, of any accounting
firm that discovered the Madoff fraud before
December 11, 2008?
A. None that I -- that I know about.
Q. And no regulatory agencies discovered
Madoff's Ponzi scheme before December 11, 2008
either, did they?
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M. Wind
Q. So what specifically do you think that
PwC (Canada) should have discovered?
A. They should have discovered and made
sure that the assets were -- were legitimate.
You listed them all.
Q. And so it's your contention that
PricewaterhouseCoopers (Canada) had the
obligation to essentially audit Bernard Madoff?
A. They weren't auditing Madoff. They
were auditing Greenwich Security -- Greenwich
Sentry Partners and the assets that they owned.
Q. And is there anything in your
accounting background that you can specifically
refer to when you say that
PricewaterhouseCoopers (Canada) had this
obligation?
A. Well, don't you believe that they had
the obligation? I mean, they certified. I
mean, they gave an opinion.
MS. CRAWFORD: I move to strike that
as nonresponsive.
A. Repeat your question then.
Q. Mr. Wind -MS. CRAWFORD: Madame Court Reporter,
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M. Wind
MR. DECKINGER: Again, I object.
Speculation. Foundation.
A. Apparently not from the information
that I have taken out of the newspapers.
Q. Have you read in the newspapers about
the S.E.C.'s investigation of Bernie Madoff
prior to December 11, 2008?
A. No. Is that the F.C.C., did you say,
the Federal Communication people?
Q. No, the S, "S" as in Sam, E.C.
A. S.E.C., the securities. No, I wasn't
aware.
Q. The S.E.C. didn't discover Madoff's
Ponzi scheme before December 11, 2008, right?
MR. DECKINGER: Objection.
Foundation. Speculation.
Q. Well, it's common sense, sir, that the
S.E.C. didn't discover the fraud prior to
Madoff's confession on December 11, 2008?
A. Right. That's what I understand.
Q. But it's your contention that PwC
(Canada) should have discovered the Madoff Ponzi
scheme, right?
A. That's correct.
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M. Wind
can you repeat the question, please?
(Record read.)
A. Well, I've done many audits and on a
lot of different corporations and companies, and
when we give an opinion, we make sure that the
assets are there, and in this case, obviously
they weren't there.
Q. And you do that often by receiving
confirmations from third parties; is that right?
A. Sometimes, yes. Other times, we'll
actually ask for the securities, to look at
them.
MS. CRAWFORD: I have nothing further.
MS. PIERCE: That leaves me.
MR. DECKINGER: I'm sorry. Do we have
a count on the time?
THE VIDEOGRAPHER: 6:10.
MR. DECKINGER: 6:10?
THE VIDEOGRAPHER: Yes.
EXAMINATION BY
MS. PIERCE:
Q. Mr. Wind, I introduced myself earlier,
but for the record, my name is Betsy Pierce.
I'm with the firm of Hughes Hubbard & Reed and
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M. Wind
we represent PricewaterhouseCoopers
(Netherlands).
You recall the questions that you were
asked just a moment ago by counsel for PwC
(Canada), PricewaterhouseCoopers (Canada), about
the fact that PricewaterhouseCoopers is a large
organization made up of different firms
internationally. So, based on that, do you
understand, then, that PricewaterhouseCoopers
(Netherlands) is a different defendant than
PricewaterhouseCoopers (Canada) -A. Now I do.
Q. -- in this litigation.
I'm going to ask some similar
questions to the questions that were asked by
counsel for PricewaterhouseCoopers (Canada), but
I'll be sure to specifically address them to
PricewaterhouseCoopers (Netherlands). I just
wanted to make sure that you understand when I
ask those questions, I'm speaking about
PricewaterhouseCoopers (Netherlands).
You testified about the audit report,
Exhibit 43, that you received. You received
that document from Mr. Glover, you believe?
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M. Wind
Greenwich Group, but I'll represent to you that
PricewaterhouseCoopers did not audit Greenwich
Sentry Partners.
A. All right.
Q. So I'll repeat the question, which is:
In making your investment in Greenwich Sentry
Partners, did you rely on anything from
PricewaterhouseCoopers (Netherlands)?
A. No.
Q. Do you, in your capacity as trustee of
Dawson Bypass Trust, have you ever had any
contact with anyone from PricewaterhouseCoopers
(Netherlands)?
A. No.
Q. And in your capacity as trustee in
making that investment in Greenwich Sentry
Partners, have you ever had any contact with
anyone at PricewaterhouseCoopers (Netherlands)?
A. No.
MS. PIERCE: I think that's all I
have. Thank you.
MR. DECKINGER: Anybody else? No?
We would like to take a break.
MR. STEWART: Take a short break and
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A. Yes.
Q. And is it correct the testimony that
you have given today, pretty much everything
that you received or everything you received
related to your investment in Greenwich Sentry
Partners you probably received from Mr. Glover?
A. Yes.
Q. So then is it fair to say that you did
not receive anything from PricewaterhouseCoopers
(Netherlands)?
A. That's correct.
Q. Related to your investment?
A. That's correct.
Q. And would you agree that you didn't
rely on anything from PricewaterhouseCoopers
(Netherlands) when making your investment?
A. Before I answer that, could you
explain to me, when you say you represent
Pricewaterhouse (Netherlands), in what capacity
was Pricewaterhouse (Netherlands) representing
who?
Q. In this litigation,
PricewaterhouseCoopers (Netherlands) did audit
some firm or some funds within the Fairfield
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M. Wind
we'll come back with a few cross -- I mean
direct, redirect, partly direct, or whatever
you want to call it.
THE VIDEOGRAPHER: The time is 6:57
P.M. We're going off the record.
(Recess.)
THE VIDEOGRAPHER: The time is 7:26
P.M. We're back on the record.
EXAMINATION BY
MR. DECKINGER:
Q. Okay. Mr. Wind, we're going to start
with Pricewaterhouse. We're going to go in
reverse order.
Could you turn to document 43, please,
Exhibit 43, rather, and can you describe what
that is?
A. It's a financial statement presented
by PricewaterhouseCoopers of Toronto, of Canada.
Q. Before today, did you know or were you
aware that there was a difference between
PricewaterhouseCoopers, full stop,
PricewaterhouseCoopers (Canada),
PricewaterhouseCoopers (Netherlands)?
A. No.
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MR. DECKINGER: We're not going to let
him discuss anything about what was said in
the content of those communications. We
object on the grounds of attorney-client
privilege.
MR. DIVINE: Gotcha.
MS. GARTHWAITE: And we would like to
just preserve an objection to that claim of
privilege.
MR. DIVINE: We would join in that
objection.
MS. IZQUIERDO: We would join.
MR. DIVINE: I think everybody would
join.
MR. DECKINGER: I think all the
defendants have joined in the objection to
our objection.
MR. DIVINE: I concur. Anybody else
have anything they want to say?
(Continued on the next page to include
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Subscribed and sworn to
before me this day
of
2011.
_______________________

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____________________
MICHAEL WIND

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MR. STEWART: At least we all agreed
on something.
MR. DIVINE: All right. I think we
can go off the record.
THE VIDEOGRAPHER: The time is 8:18
P.M. We're going off the record.
oOo

M. Wind

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5
COUNTY OF NEW YORK)
6
I, Kathy S. Klepfer, a Registered
7
Merit Reporter and Notary Public within and
8
for the State of New York, do hereby
9
certify:
10
That MICHAEL WIND, the witness whose
11
deposition is herein before set forth, was
12
duly sworn by me and that such deposition is
13
a true record of the testimony given by such
witness.
14
I further certify that I am not
15
related to any of the parties to this action
16
by blood or marriage and that I am in no way
17
interested in the outcome of this matter.
18
In witness whereof, I have hereunto
19
set my hand this 28th day of June, 2011.
20
21
------------------------------KATHY S. KLEPFER, RPR, RMR, CRR, CLR 22
23
24
25
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M. Wind
INDEX
TESTIMONY OF M. WIND:
PAGE
Examination by Mr. Divine
7, 319
Examination by Ms. Izquierdo
258
Examination by Ms. Crawford
265
Examination by Ms. Pierce
293
Examination by Mr. Deckinger
297
EXHIBITS:
PAGE
Exhibit 1, Plaintiffs' Supplemental Initial
23
Disclosures, Subject to November 2, 2010
Amended Stipulation and Order Governing
Confidentiality, D.E. #560
Exhibit 2, a document bearing Bates Nos.
25
Dawson 0000117 through 142
Exhibit 3, a document bearing Bates Nos.
32
Dawson 0000242 through 280
Exhibit 4, a document bearing Bates Nos.
68
Dawson 0000206 through 207
Exhibit 5, a document bearing Bates Nos.
74
Dawson 0000238 through 240
Exhibit 6, a document bearing Bates Nos.
76
Dawson 0000234 through 237
Exhibit 7, a document bearing Bates Nos.
77
Dawson 0000210 through 211
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