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 M

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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,
vs.

Civil Action No.
09-CV-0118(VM)

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FAIRFIELD GREENWICH LIMITED, et al.,

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Defendants.
------------------------------------x

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VIDEOTAPED DEPOSITION

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OF ANTHONY CONSTANTINE MALLIS

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New York, New York

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September 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. 42089

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A. MALLIS
Defendants' Joint First Set of Interrogatories
to the Plaintiffs.
Q. Who is -- I'm sorry, if I mispronounce
his name -- Fouad Rashid?
A. Fouad Rashid used to work with me. He
used to be the company's COO. He left us about
six years ago.
Q. What were his responsibilities?
A. He was effectively managing the
treasury and investments. He was, as a chief
operating officer, he also had responsibilities
for the firm, the good running of the firm.
Q. And who is Mr. Osama Muein?
A. Osama Muein was the head of Marketing
and, again, who left us in about 2004.
Actually, earlier than that. Probably around
2003.
Q. What were Mr. Muein's
responsibilities?
A. He was the head of Marketing, which
was basically, when I joined the firm, was to
effectively sell third-party funds.
Q. And now, after your March 2002 meeting
with Fairfield and after your discussion with

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A. MALLIS
your colleagues, it was either Mr. Fouad or Mr.
Muein -A. Fouad.
Q. Mr. Fouad. Sorry.
A. Right.
Q. -- who contacted Mr. Landesberger at
Fairfield?
A. I don't know the specific answer to
that, frankly. I mean, I don't remember who of
the two called them first or got in touch with
them.
Q. But it was one of those two men?
A. One of the two.
Q. What did they discuss with Mr.
Landesberger?
A. I was not party to the conversation.
Q. Did they tell you what they discussed
with Mr. Landesberger?
A. I assumed that if Fouad called him,
his brief was limited to the $1 million
investment. I think Osama actually came later,
so it would have been Fouad. Osama really came
as a sort of follow-up.
Q. And did anyone at Fairfield send Fouad

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A. MALLIS
any materials regarding Fairfield Sentry?
A. Yes, because that was part of the,
sort of the package.
Q. What were those materials?
A. I don't remember.
Q. At this point, SICO is considering
making an investment in Fairfield Sentry. Would
they -- sorry. Is that correct?
A. Say again?
Q. At this point, once Fouad is
contacting Mr. Landesberger and Fairfield is
sending documents to SICO?
A. Uh-huh.
Q. Is SICO considering making an
investment in Fairfield Sentry?
A. Yes.
Q. What would -- now, at this point would
the Investment & Treasury Department get
involved?
A. It was a very small department. I
mean, it was actually effectively headed by
Fouad.
Q. So, now, what kind of due diligence
would Fouad and SICO do prior to making the

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A. MALLIS
investment in Fairfield Sentry?
A. Be looking -- I think one of the
primary sort of considerations would be, and
there would be basically three considerations,
which we still very much stick to, one of them
is the performance; two would be who the manager
is and how -- what his reputation is; three
would be the, as I keep saying, as I keep
calling it, the sort of the supporting actors,
which is, is it being audited, is it being
monitored, is it being transparent; and -- and
last, but not least, because we are a very
conservative entity, whether they meet the
criteria of us -- of the product being
effectively transparent and conservative,
conservatively run.
Q. Now, were these formal or informal
diligence procedures?
A. Again, can you be a little bit more
specific in terms of informal and formal?
Q. Did you -- did SICO have a formal
diligence policy?
A. As you can see from the -- from the
documents that you have given me, there is a --

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A. MALLIS
there is a process that we have to follow.
Q. And did SICO follow the process in
making its investment in Fairfield Sentry?
A. We're quite religious, yes.
Q. Now, what you mentioned before in
terms of the three considerations that you
discussed?
A. Well, three or four considerations,
yes.
Q. Was that part of the formal diligence
process?
A. It's a fundamental part of any due
diligence that you undertake under any
situation.
Q. What else was part of the due
diligence process?
A. I can't off the top of my head think
of what other considerations one would sort of
have, other than the reputation and the
performance and the supporting actors there and
if it was meeting our own criteria.
Q. What else would SICO do as part of its
due diligence process?
A. I think that's probably at one of the

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A. MALLIS
-- with that level of investment that we were
looking at at that point, would probably be as
far as we would go.
Q. What was your role in the due
diligence process?
A. I didn't have a role other than
basically approving the investment in its final
form, but I didn't have any influence on the due
diligence.
Q. And how long did this process take?
A. Well, it can take between a week and a
couple of months.
Q. How long did it take with respect to
the initial investment in Fairfield Sentry?
A. I suspect a couple of months.
Q. And what did you learn through this
investigation?
A. That it was a name that we should -that we should consider investing with.
Q. Was there anything you learned that
concerned you?
A. No. If anything concerned us, we
wouldn't have invested in the fund.
Q. Was there only one communication

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A. MALLIS
between SICO and Fairfield prior to the
investment, the request for the documents, or
would SICO have made multiple requests of
Fairfield during this diligence process?
A. I don't remember.
Q. Did you speak to anyone at Fairfield
after your meeting with Mr. Piedrahita and Mr.
Landesberger in March of 2002 and prior to your
initial investment?
A. I don't remember, because I didn't -but then I didn't record it. I would have
recorded it if I had talked to either of the two
gentlemen.
Q. Do you recall any specific
conversations -- or, rather, did anyone at SICO
tell you about any specific conversations they
had with anyone at Fairfield?
A. Well, they certainly did mention the
fact that they had been talking to Mr.
Landesberger.
Q. Did they discuss any substantive
aspects of those discussions?
A. I don't remember.
Q. And what documents did you consider in

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A. MALLIS
making the investment decision?
A. What documents we would look at?
Q. What documents did you look at?
A. Well, we certainly looked at the
performance numbers. We certainly looked at the
PPM, at the placement memo. I think these would
have probably been the fundamental, the
fundamental documents that we would be looking
at in terms of taking our decision.
Q. Was there anything else that you
considered?
A. I can't remember off the top of my
head.
Q. Now, what kind of documents would have
the performance numbers?
A. If I remember rightly, the PPM had it.
That's when we started. However, as you know,
they probably -- they had a brilliant Website
which was exceptionally informative that they -I can't remember which year, but I would imagine
it was around 2004-2005 that I personally was a
great admirer of because it had so much
information in terms of the risk management,
their approach to managing funds, et cetera, and

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A. MALLIS
the performance was something that I looked at
religiously every month.
Q. Prior to your initial investment in
2002, you didn't look at the Website, correct?
A. There wasn't a Website, if I'm not
mistaken, or if there was, it was very general
one.
(Mallis Exhibit 9, a document bearing
Bates Nos. FGANWH72640 through 72691, marked
for identification, as of this date.)
Q. I'm handing you a document marked as
Mallis Exhibit 9, Bates-stamped FGANWH72640
through 72691.
A. Uh-huh.
Q. What is this document?
A. This is a placement memo.
Q. And do you recall reviewing this
document?
A. Uh-huh.
Q. And when did you read it?
A. I don't remember the date, but it was
definitely in 2002. But I can't remember the
precise date.
Q. Was it before signing the subscription
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A. MALLIS
agreement?
A. It probably was, yes. Depending on
when the -- I can't remember when we signed the
agreement. I would have read it, yes.
Q. Was it before making the investment?
A. When was the investment made? Can you
help me with when we made the investment?
Q. If you look at your interrogatory
responses, which is Exhibit 7.
A. Yes.
Q. I believe actually I'll need to show
you your second addendum to interrogatory
responses.
A. Where is the second addendum?
(Mallis Exhibit 10, Addendum No. 2 to
Plaintiffs' Responses and Objections to
Defendants' Joint First Set of
Interrogatories to Plaintiffs for Securities
& Investment Company (SICO) Bahrain, marked
for identification, as of this date.)
Q. What's being marked as Exhibit 10, I
hand you, is the second addendum to SICO's
interrogatory responses.
A. As you can see from the -- from the

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A. MALLIS
investment date, the investment date was July 1,
2002. This placement memo was done on -- was -is dated the 15th of June. So we would have
been given access to this document.
Q. And just before we go on, the document
that I handed you, Exhibit 10, do you recognize
this document?
A. Indeed I do.
Q. And what do you recognize this
document to be?
A. It's an Addendum Number 2 to the
Plaintiffs' Responses and Objections to
Defendants' Joint First Set of Interrogatories
to Plaintiffs' for Securities & Investment
Company (SICO) Bahrain.
Q. Did you have any involvement in
drafting this document?
A. Well, there was certainly the part
which basically talks about me being registered
with the UK's SFA, yes.
Q. Did you review all the responses?
A. I looked at the responses, but I
didn't have -- I did not contribute to them
because there isn't really that much in them.

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A. MALLIS
Q. Did anyone ask you for information to
include in these interrogatory responses?
A. No. No.
Q. Did you sign this document?
A. I believe I did. It's, as you can see
from the third page, it has my signature.
Q. Now, is everything in this document
accurate?
A. Well, I think everything is accurate,
yes.
Q. Is there anything you would like to
change?
A. No.
Q. Turning back to the PPM?
A. Uh-huh.
Q. Which is marked as Exhibit 9?
A. Right.
Q. So now that your memory has been
refreshed in terms of when you made the initial
investment, did you read this prior to your
initial investment?
A. Indeed.
Q. And did you read the whole document?
A. I can't remember, but I read it. I

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A. MALLIS
point, you were also acting as auditors to these
funds.
Q. Does PricewaterhouseCoopers also audit
one of SICO's subsidiaries?
A. Yes. You probably ought to talk to
SFS, which is our custody arm.
Q. After your meeting with Mr. Piedrahita
in March of 2002, I believe you testified
earlier that you returned to SICO and discussed
that meeting with your colleagues?
A. Uh-huh.
Q. Is that correct?
A. Correct.
Q. Do you recall your earlier testimony
that you shared with your colleagues at SICO
your impression that Fairfield Sentry had the
right sort of, quote/unquote, framework -A. Very much so.
Q. -- that SICO considered for its
investments?
A. Very much so.
Q. And with respect to that framework, I
believe that you said -- one of the things you
said was that it had the likes of

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A. MALLIS
PricewaterhouseCoopers as auditors; do you
recall that testimony?
A. Yes.
Q. Do you also recall your earlier
testimony when counsel for Fairfield asked you
what kind of due diligence SICO performed before
making its initial investment in Fairfield
Sentry, and you answered in part that it looks
at whether the investment is being audited?
A. Correct.
Q. Do you recall that? Is it fair to say
that -- that in 2002, when you were considering
an investment in Fairfield Sentry on behalf of
SICO, that you appreciated that the Fairfield
Sentry Fund was audited?
A. Oh, definitely.
Q. And is it also fair to say that you
were satisfied that the fund was audited by
PricewaterhouseCoopers?
A. That was a plus for us.
Q. So you had the March 1, 2002 meeting
at Fairfield with Mr. Piedrahita -- Piedrahita,
excuse me, and then SICO invested around July 1,
2002 for the first time in Fairfield Sentry,

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A. MALLIS
right?
A. Correct.
Q. Do you recall when in that period SICO
actually made the decision that they would
invest in Fairfield Sentry?
A. As I've mentioned previously, it was
between the time that I had gone to London
and -- rather, returned back from London and the
first of July.
Q. In that period of time that you just
described, did you contact Fairfield Greenwich
Group again to discuss the auditor of the
Fairfield Sentry Fund?
A. No, I didn't call them up. I don't
believe -- I personally didn't call them up to
ask them, you know, additional information in
regards to the auditor -- yeah, in regards to
Pricewaterhouse.
Q. Would you like to get some more water?
A. No. No. I'm fine.
Q. Did you contact PricewaterhouseCoopers
to discuss their engagement with the Fairfield
Sentry Fund during that period of time you just
referred to?

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A. MALLIS
A. No. And chances are that they
wouldn't even have answered us.
Q. Why do you say that?
A. I would imagine that, up to the point
that we didn't invest, there was a client
confidentiality between -- between
Pricewaterhouse and Fairfield.
Q. Are you aware that the auditor of
Fairfield Sentry changed during the course of
SICO's investment?
A. No. We always thought of
Pricewaterhouse as being the -- as being the
auditors from inception.
Q. So you don't know which
PricewaterhouseCoopers firm audited Fairfield
Sentry for which years of your investment?
A. No.
Q. Prior to SICO's decision to reinvest
in Fairfield Sentry in 2004, did you contact
Fairfield about the auditors of the Fairfield
Sentry Fund?
A. No. You know, a red flag would have
been raised if the auditor had changed; i.e., if
they had switched out of, say, Pricewaterhouse

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A. MALLIS
to KPMG, that would have been a sign that one
would have sort of delved a little bit more
into.
Q. Did you attempt to contact the
auditors, did you attempt to contact
PricewaterhouseCoopers prior to your decision to
invest in 2004 in Fairfield Sentry?
A. No.
Q. Is your answer the same for the 2005
investment?
A. All the way up to 2008.
Q. All the way up to 2008 you did not
contact PricewaterhouseCoopers in connection
with your investment in Fairfield Sentry?
A. No. No.
Q. I'm going to narrow in now and talk
specifically about PricewaterhouseCoopers
(Netherlands), so I may say "PwC (Netherlands)."
A. Right.
Q. Prior to this litigation, had you
heard of the PricewaterhouseCoopers
(Netherlands) office of PwC?
A. I'm assuming that you have a -- if you
have an office in Bahrain and/or somewhere in

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A. MALLIS
the Gulf, you are most everywhere in Europe
also.
Q. Aside from your assumption, were you
specifically familiar with the Netherlands
PricewaterhouseCoopers?
A. I wasn't aware -- I wasn't familiar
with the practice in the Netherlands, and there
was no reason for me to.
Q. In connection with SICO's investments
in Fairfield Sentry in 2002, 2004, 2005 and
2008, did you have any contact with
PricewaterhouseCoopers (Netherlands) concerning
SICO's decisions to invest in the Fairfield
Sentry Fund?
A. No.
Q. So you did not speak to anyone at PwC
(Netherlands) concerning SICO's investments in
Fairfield Sentry?
A. No.
Q. You had no meetings with anyone at
PricewaterhouseCoopers (Netherlands) in
connection with SICO's investment in Fairfield
Sentry?
A. No.

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A. MALLIS
Q. You did not send any written
communications to PricewaterhouseCoopers
(Netherlands) in connection with Fairfield
Sentry investment on behalf of SICO?
A. There was no reason for us to do so.
Q. And you, sir, did not receive any
written communications directly from
PricewaterhouseCoopers (Netherlands) concerning
SICO's investments in Fairfield Sentry?
A. That was passed through the custodian,
Citco.
Q. Switch gears again and talk about
SICO's funds for a few minutes. Does SICO
arrange for the funds that it offers its clients
the SICO funds to be audited?
A. Yes, definitely. It's part of the -it's part of the requirements of the Central
Bank.
Q. And those audits occur on an annual
basis?
A. Those -- the audits occur on an annual
basis, but they are reviewed quarterly.
Q. Do the auditors issue opinions?
A. For year-end, they certainly do.

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A. MALLIS
Q. Are the audited financials in the
audit opinions of the SICO funds shared with
SICO's investors?
A. Definitely.
Q. How often does SICO share this
information with the investors in the SICO
funds?
A. If they're reviewed on a quarterly
basis, we have to -- to give it to not only the
shareholders but to the regulators, and then on
an annual basis, when there is an opinion that
is sort of added onto the financial statements,
we, as a normal course, we pass them on to
our -- on to the investors.
Q. Is that something that SICO does
directly with its investors, or do you rely on a
third party to communicate that information?
A. No, we usually do it directly.
Q. Do the auditors communicate directly
with the investors, or does that information
passthrough SICO to the investors?
A. The auditors? The auditors -- I'm
sorry, go back again on the question.
Q. Sure. I just want to understand how

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A. MALLIS
September and made the investment in October -A. Correct.
Q. -- 2008 timeframe?
And of course, at that point, there
are no financial statements for 2008, correct?
A. There are no financial statements, but
there were performance reports.
Q. And there were no audited financial
statements for 2008?
A. Audited for 2008?
Q. For the period 2008.
A. I don't recollect that, although I
think the financials were -- their cycle, their
accounting cycle ended in June, June -- it
wasn't -- if I'm not mistaken, June, end of June
every year.
Q. Do you have the exhibit that you were
just discussing with counsel?
A. No, let me retract that back. It
actually, from looking at this, it does show
that as of the end of December 31. So the
answer to your question is, yes, we hadn't
received anything for 2008.
Q. No audited financial statements for

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A. MALLIS
2008 at the time you made -- SICO made the
decision -A. For the last one.
Q. -- to make the additional investment
in 2008?
A. Correct.
Q. But you were interested in preserving
capital and you thought that an additional
investment in Fairfield Sentry in 2008 was one
way to do that?
A. Yes.
Q. And you liked that Fairfield Sentry
year to date in 2008 was outperforming the
market?
A. According to the numbers that they
were sending us, yes.
Q. Now, some of my questions might seem
repetitive from my colleague's, but I'm going to
specify that these questions, when I refer to
PwC now, are going to be referring to PwC
(Canada).
A. Right.
Q. So I just want to ask you about any
contact or communications that you had with PwC

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A. MALLIS
(Canada), and I believe in the context of other
questions you've answered this, but let me ask
it again.
Did you have any direct
communications, oral or written, with PwC
(Canada) at any time that SICO was considering
or made investments in Fairfield Sentry?
A. No.
Q. Did you have any in-person meetings
with anyone at PwC (Canada) with regard to
SICO's investments in Fairfield Sentry?
A. No, sir.
Q. Did you send any written
correspondence to anyone at PwC (Canada)
regarding SICO's investments in Fairfield
Sentry?
A. No, sir.
Q. And you received no written
correspondence in connection with those
investments?
A. No, sir.
MR. VICKERY: Objection to form.
There's a -- you mean direct communications,
I believe, because he got financial

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A. MALLIS
statements. He just came -MR. TRESSLER: Written correspondence,
which I think is generally understood.
Q. We know that the audited financial
statements contained an audit opinion letter?
A. Uh-huh.
Q. But you have also testified -correct?
A. Testified to?
Q. The audited financial statements
contained an audit opinion letter?
A. Right.
Q. You have testified several times today
that you did not receive the audited financial
statements directly from any
PricewaterhouseCoopers entity, correct?
A. Correct.
(Continued on the next page to include
the jurat.)

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Page 294
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A. MALLIS
Q. So it's fair to summarize that you
received no written correspondence from
Pricewaterhouse?
A. Very fair statement, sir.
MR. TRESSLER: Thank you, Mr. Mallis,
I have no further questions.
THE WITNESS: Thank you, sir.
THE VIDEOGRAPHER: The time is 5:44.
This is the end of the deposition, September
22, 2011.
oOo

____________________
ANTHONY C. MALLIS
Subscribed and sworn to
before me this day
of
2011.

_______________________
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CERTIFICATE
STATE OF NEW YORK )
: ss
COUNTY OF NEW YORK)
I, Kathy S. Klepfer, a Registered
Merit Reporter and Notary Public within and
for the State of New York, do hereby
certify:
That ANTHONY CONSTANTINE MALLIS, the
witness whose deposition is herein before
set forth, was duly sworn by me and that
such deposition is a true record of the
testimony given by such witness.
I further certify that I am not
related to any of the parties to this action
by blood or marriage and that I am in no way
interested in the outcome of this matter.
In witness whereof, I have hereunto
set my hand this 28th day of September,
2011.
------------------------------KATHY S. KLEPFER, RPR, RMR, CRR, CLR

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Page 297

1
INDEX
2
TESTIMONY OF N. AL SHIRAWI:
PAGE
3
Examination by Ms. Gudis
7
4
Examination by Ms. McGovern
230
5
Examination by Ms. Pierce
266
6
Examination by Mr. Tressler
286
7
8
MALLIS EXHIBITS:
PAGE
9
Exhibit 1, a document bearing Bates Nos.
70
10
SICO 1863 through 1875
11
Exhibit 2, a document bearing Bates Nos.
70
12
SICO 1876 through 1936
13
Exhibit 3, a document bearing Bates Nos.
70
14
SICO 1937 through 2014
15
Exhibit 4, a document bearing Bates Nos.
73
16
SICO 2035 through 2037
17
Exhibit 5, a document bearing Bates Nos.
83
18
SICO 312
19
Exhibit 6, a document bearing Bates Nos.
84
20
SICO 313
21
Exhibit 7, Plaintiffs' Responses and Objections 85
22
to Defendants' Joint First Set of Interrogatories
23
to Plaintiffs
24
Exhibit 8, Verification
86
25
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INDEX (Cont'd.)
2
MALLIS EXHIBITS:
PAGE
3
Exhibit 9, a document bearing Bates Nos.
106
4
FGANWH72640 through 72691
5
Exhibit 10, Addendum No. 2 to Plaintiffs'
107
6
Responses and Objections to Defendants' Joint
7
First Set of Interrogatories to Plaintiffs for
8
Securities & Investment Company (SICO) Bahrain
9
Exhibit 11, a document bearing Bates Nos.
150
10
SICO 8009 through 8014
11
Exhibit 12, a document bearing Bates Nos.
162
12
SICO 269 through 291
13
Exhibit 13, a document bearing Bates Nos.
170
14
SICO 41 through 45
15
Exhibit 14, a document bearing Bates Nos.
177
16
SICO 349 through 351
17
Exhibit 15, a document bearing Bates Nos.
178
18
SICO 347 to 348
19
Exhibit 16, a document bearing Bates Nos.
179
20
SICO 592 to 596
21
Exhibit 17, a document bearing Bates Nos.
182
22
SICO 324 through 326
23
Exhibit 18, a document bearing Bates Nos.
188
24
SICO 327 to 328
25
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