Anwar et al v. Fairfield Greenwich Limited et al

Filing 859

MEMORANDUM OF LAW in Support re: #858 MOTION for Reconsideration.. Document filed by Headway Investment Corp.. (Mestre, Jorge)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MASTER NO. 09-cv-118 (VM) (THK)
PASHA ANWAR, et al.,
Plaintiffs,
v.
FAIRFIELD GREENWICH LIMITED,
et al.,
Defendants.
This filing relates to Headway Investment Corp.
v. Standard Chartered Bank Int’l (Americas),
Ltd., et al.
________________________________________/

HEADWAY INVESTMENT CORPORATION’S MEMORANDUM
OF LAW IN SUPPORT OF ITS MOTION FOR RECONSIDERATION

Jorge A. Mestre
Alan H. Rolnick
Erimar von der Osten
Rivero Mestre LLP
2525 Ponce de Leon Blvd.
Suite 1000
Coral Gables, FL 33134
Phone Number: 305-445-2500
Fax Number: 305-445-2505
Email: [e-mail]
[e-mail]
[e-mail]

Table of Contents
I.

Page(s)
Introduction..........................................................................................................................1

II.

Applicable Standard for Motion for Reconsideration..........................................................2

III. Argument .............................................................................................................................3
A. Headway’s Amended Complaint is timely filed because it is not
subject to the repleading deadline set forth in this Court’s October 2010
Order, thus implicating Rule 15, not Rule 16 ..........................................................................3
B. A scheduling order limiting the time in which a party may amend
its pleadings to a period that expires before fact discovery has even
commenced, would be fundamentally unjust, contrary to the Federal
Rules of Civil Procedure, and contrary to the Court’s own Decision and
Order ........................................................................................................................................5
C. Under Rule 15, Headway’s Motion for Leave to Amend should be
granted because there was no “undue delay” in seeking amendment, as
defendants can demonstrate no prejudice from allowing such an
amendment, and the amendment is based on evidence uncovered during
discovery ..................................................................................................................................6
D. In the event that the Court’s October 2010 Order is construed as a
true “Scheduling Order,” even under Rule 16, Headway demonstrated
good cause and should have been granted leave to amend. .....................................................10
E. The Court’s CMO does not bar amendment of Headway’s
Complaint, but merely excuses the non-Standard Chartered defendants
from responding to Headway’s pleadings................................................................................11
IV. Conclusion ...........................................................................................................................12

ii

Table of Authorities
Cases

Page(s)

Block v. First Blood Assocs.,
988 F.2d 344 (2d Cir. 1993).............................................................................................5
Donovan v. Gillmor,
535 F. Supp. 154 (N.D. Ohio 1982).................................................................................6
Duncan v. Manager, Dept. of Safety, City and Council of Denver,
397 F.3d 1300 (10th Cir. 2005) .......................................................................................6
Greg Commc’ns. Sys., Inc. v. Am. Tel. and Tel. Co.,
98 F.R.D. 715 (D.C. Ill. 1983) .........................................................................................6
Int’l. Bank v. Price Waterhouse & Co.,
85 F.R.D. 140 (S.D.N.Y. 1980) .......................................................................................6
Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc.,
734 F. Supp 1071 (S.D.N.Y. 1990) ................................................................................4, 9
Madison Fund, Inc. v. Denison Mines Ltd.,
90 F.R.D. 89 (S.D.N.Y. 1981) .........................................................................................6
Parker v. Columbia Pictures Indus.,
204 F.3d 326 (2d Cir. 2000).............................................................................................10
Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp.,
215 F.R.D. 100 (S.D.N.Y. 2003) .....................................................................................10
R.F.M.A.S., Inc. v. Mimi So,
640 F. Supp. 2d 506 (S.D.N.Y. 2009)..............................................................................2
Robinson v. The Town of Colonie,
1993 WL 191166 (N.D.N.Y. 1993) .................................................................................10
Schonberger v. Serchuk,
742 F. Supp. 108 (S.D.N.Y. 1990) ..................................................................................2
Smith v. Guar. Serv. Corp.,
51 F.R.D. 289 (N.D. Cal. 1970).......................................................................................6
S.S. Silverblatt, Inc. v. E. Harlem Pilot Block – Building 1 Housing Dev. Fund Co.,
608 F.2d 28 (2d Cir. 1979)...............................................................................................4

iii

State Teachers Retirement Bd. v. Fluor Corp.,
654 F.2d 843 (2d Cir. 1981).............................................................................................6
Triad at Jeffersonville I, LLC v. Leavitt,
563 F. Supp. 2d 1 (D.D.C. 2008) .....................................................................................6
Virgin Atl. Airways, Ltd. v. Nat’l. Mediation Bd.,
956 F. 2d 1245 (2d Cir. 1992)..........................................................................................2

Statutes and Rules

Page(s)

FED. R. CIV. P. 15 .........................................................................................................................passim
FED. R. CIV. P. 16 .........................................................................................................................1, 10
FED. R. CIV. P. 11 .........................................................................................................................8, 9
Local Civil Rule 6.3.....................................................................................................................2
Local Civil Rule 6.1.....................................................................................................................9

Other Sources

Page(s)

18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE § 4478.................2

iv

I.

Introduction
As the scheduled period for discovery period neared an end in this case,

Headway’s determined and dogged efforts to unearth the relevant facts produced
information supporting the first amendment of its complaint. In a Decision and Order
dated April 13, 2012 (the “April 2012 Order”) [D.E. 853], this Court denied Headway’s1
Motion for Leave to Amend Complaint (“Motion for Leave”) [D.E. 837], based on
untimeliness and this Court’s March 11, 2009 Civil Case Management Plan and
Scheduling Order (the “CMO”) [D.E. 69].
In particular, the Court held that Headway’s Amended Complaint was untimely
because it was filed beyond a 21-day deadline for repleading dismissed claims that the
Court set in its October 4, 2010 Decision and Order on the Standard Chartered2
defendants’ initial motions to dismiss (“October 2010 Order”) [D.E. 543]. As discussed
below, that 21-day deadline expired 112 days before discovery began in this case, and the
proposed Amended Complaint did not seek to replead any dismissed claims. Instead, the
Motion for Leave sought permission to file new claims against existing defendants based
on facts adduced in discovery, which had commenced in earnest with depositions taken
over the last six months3.
Because the April 2012 Order found the Motion for Leave untimely, the Court
held it subject to the “good cause” standard of Fed. R. Civ. P. 16(b)(4). See April 2012
Order at 4-5. The Court stated that Headway’s Proposed Amended Complaint was
1

The April 13, 2012 Order also denied Plaintiffs Maridom and Barbachano’s Motions for Leave to Amend.
The terms “Standard Chartered” and “the bank” herein collectively refer to Defendants Standard
Chartered Bank International (Americas) Ltd., Standard Chartered International (USA) Ltd., and Standard
Chartered Bank.
3
In order to comply with the Court’s pre-trial schedule, we commenced taking depositions as soon as
possible after Standard Chartered began a rolling production of documents in June 2011.
2

1

“facially defective” because it asserts claims against the “Fairfield Greenwich Group and
its affiliates, individual executives at Fairfield Greenwich, PricewaterhouseCoopers LLP
(“PwC Canada”), PricewaterhouseCoopers NV (“PwC Netherlands”), Citco Fund
Services (Europe) B.V.,” (the “non-Standard Chartered defendants”), and the CMO
exempts these parties from responding to individual complaints. See id. at 8-9.4
For the reasons set forth below, Headway respectfully requests that the Court
reconsider its ruling, withdraw the pertinent aspects of April 2012 Order, and grant
Headway’s Motion for Leave to Amend the Complaint.
II.

Applicable Standard for Motion for Reconsideration
Under Local Civil Rule 6.3, a party may move for reconsideration of a court’s

order setting forth concisely the matters or controlling decisions that the party believes
the Court may have overlooked. “The provision for reargument is not designed to allow
wasteful repetition of arguments already briefed, considered and decided.” Schonberger
v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990). “The major grounds justifying
reconsideration are ‘an intervening change in controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.’” Virgin Atl.
Airways, Ltd. v. Nat’l. Mediation Bd., 956 F. 2d 1245, 1255 (2d Cir. 1992) (quoting 18 C.
Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). “A request
for reconsideration under Rule 6.3 must demonstrate controlling law or factual matters
put before the court in its decision on the underlying matter that the movant believes the
Court overlooked and that might reasonably be expected to alter the conclusion reached
by the Court.” R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 509 (S.D.N.Y. 2009)
4

We note that all defendants but two (PwC Netherlands and Standard Chartered International (USA) Ltd),
are named defendants in Headway’s original complaint, and the Motion for Leave to Amend corrected a
misidentification in the Original Complaint based on information learned through discovery.

2

(Marrero, J.). We explain below the important factual and legal issues overlooked by the
April 2012 Order, which justify granting the Motion to Leave, in the interests of justice
and fundamental fairness.
III.

Argument
A.

Headway’s Amended Complaint is timely filed because it is not subject to
the repleading deadline set forth in this Court’s October 2010 Order, thus
implicating Rule 15, not Rule 16
The April 2012 Order relies first on language in the October 2010 Order, which

set a deadline for Plaintiffs, including Headway, to “replead” their complaints to “correct
the deficiencies” the Court identified in deciding the Standard Chartered defendants’
initial Rule 12 motion to dismiss, and avoid a dismissal with prejudice of those claims by
showing that such repleading would not be futile:
ORDERED that plaintiffs Headway Investment Corp., Maria Arkiby
Valladolid, Ricardo Lopez, Maridom Ltd., Caribetrans, S.A., and Abbot
Capital, Inc., herein are granted leave to replead upon submitting to the
Court, within twenty-one days of this Order, an application therefore
plausibly showing how such repleading would correct the deficiencies
identified in the Court’s findings discussed above, and thus would not be
futile.
October 2010 Order at 42 (emphasis added). As a result of this Order, Plaintiffs,
including Headway, had 21 days in which to replead claims that had been dismissed. In
Headway’s case, those were claims for negligence and unjust enrichment, as well as
claims against certain individual defendants. In its October 2010 Order, the Court held
that Headway had abandoned its negligence claims, a decision it later reversed. However,
the quoted language clearly applied solely to repleading claims that the Court dismissed
in its Order on defendants’ initial Rule 12 motion. By its own terms, and as a matter of
law and logic, the October 2010 Order could not have set a 21-day deadline for any and

3

all amendments to pleadings. Such deadlines customarily and correctly are at, near, or
just after, the end of discovery periods. But discovery in this case had not even
commenced on October 4, 2010, and would not commence for another four months, or
one hundred thirty three (133) days, to be exact.
Upon Headway’s timely Motion for Reconsideration of the October 2010 Order,
the Court reinstated Headway’s negligence claims in its November 16, 2010 Decision
and Order on Headway’s Motion for Reconsideration (“November 2010 Order”) [D.E.
565]. Thus, pursuant to the Court’s November 2010 Order, Headway’s original complaint
adequately alleged claims for breach of fiduciary duty and negligence.
In its Motion for Leave, Headway did not seek to replead any claims previously
dismissed by this Court, but to add additional claims revealed through discovery and to
correct a misidentification of two of the defendants. The 21-day cutoff for repleading
claims the Court dismissed in deciding defendants’ original Rule 12 motions is simply
inapplicable to Headway’s Proposed Amended Complaint. Headway’s Motion for Leave
does not implicate Rule 16, as there is no applicable Scheduling Order, but Rule 15,
which provides that “[a]s a matter of law, justice requires leave to amend when the
moving party has ‘at least colorable grounds’ for the proposed amendment.” Litton
Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 734 F. Supp 1071, 1078 (S.D.N.Y. 1990)
(quoting S.S. Silverblatt, Inc. v. E. Harlem Pilot Block – Building 1 Housing Dev. Fund
Co., 608 F.2d 28, 42 (2d Cir. 1979)).

4

B.

A scheduling order limiting the time in which a party may amend its
pleadings to a period that expires before fact discovery has even
commenced, would be fundamentally unjust, contrary to the Federal Rules
of Civil Procedure, and contrary to the Court’s own Decision and Order
The 21-day period in the October 2010 Order expressly applied to the repleading

of claims that had been dismissed on a Rule 12 motion. That Order did not state or, we
respectfully submit, even imply that it was intended to operate like a scheduling order
and impose an absolute deadline of 21 days for amending pleadings to add new claims or
parties. Assuming arguendo that such a deadline was intended, it would have been
fundamentally unjust, because it would have precluded the parties from using any
information obtained through discovery to refine their claims and defenses – a
fundamental purpose behind discovery under the Federal Rules of Civil Procedure.5
If the 21-day period really were a limitation on amendment to add new claims or
parties, not simply to replead dismissed claims, this would effectively have required
Plaintiffs to make any amendment to their claims before October 25, 2010, 112 days
before fact discovery even began in this case.6 Such a result could not be the intended
consequence of the Court’s language in the October 2010 Order.

5

Although we here deal with a plaintiff’s motion to amend a complaint to add claims and correct
misidentified parties, the Court’s reading of the October 2010 Order arguably would prevent defendants
from asserting new affirmative defenses, cross claims or counter claims as well. It also arguably would
prevent any party from dropping another party from a claim, cross-claim or counter claim. Finally, it would
impose an unreasonable deadline on the plaintiffs that was not imposed on Standard Chartered, which was
granted a right to seek amendment of its answer after the close of discovery, as discussed below.
6
The Second Amended Scheduling Order Regarding Standard Chartered Cases filed February 4, 2011
(“Scheduling Order”) provides that “except with respect to the parties’ obligations to provide initial
disclosures . . . , this Second Amended Scheduling Order shall not take effect or create any obligations on
parties in the Standard Chartered Cases until this Court enters a Steering Committee Order appointing the
Standard Chartered plaintiffs’ steering committee.” Scheduling Order at 3-4. The Scheduling Order further
states that “No party is obligated to produce any documents or information until the Court enters the
proposed Confidentiality Order.” Scheduling Order at 4. The Stipulation and Order Appointing Standard
Chartered Plaintiffs’ Steering Committee and Stipulated Protective Order governing the handling of
confidential material were entered on the same day, February 4, 2011. See D.E. 602 and 603, respectively.
Thus, the earliest possible time that fact discovery could have commenced was February 4, 2011, 133 days
after the Court’s October 4, 2010 Order – 112 days after the deadline to replead the dismissed claims.

5

Further, to the extent that the October 2010 Order might be viewed as a
scheduling order, it is internally inconsistent. Although the Order gave Plaintiffs 21 days
to replead claims that had been dismissed, it also gave those Plaintiffs who had asserted
claims for unjust enrichment the opportunity to amend their complaints to replead those
claims at a later time, if, during discovery, additional facts were uncovered that would
support the claim. See October 2010 Order at 40. The Court expressly contemplated
amendments based on facts adduced during discovery, which necessarily would be filed
long after the 21 day repleading deadline expired.
Lastly, the Court’s Scheduling Order of February 4, 2011 [D.E. 604] states
“Following [the] close of fact discovery, the Standard Chartered defendants may file an
amended answer in any Standard Chartered Case where an answer has been filed in
accordance with paragraphs 17 or 18 above.” Scheduling Order at 11. This
accommodation clearly reflects the Court’s acknowledgment that facts learned during
discovery might support an amended answer by Standard Chartered to reflect newly
obtained information. It is highly unlikely that the Court intended to provide such an
opportunity only to defendants, while forcing Headway and other plaintiffs to live with
initial pleadings unaided by the benefits of discovery. Such a result would contradict the
letter and spirit of the Federal Rules of Civil Procedure and would result in manifest
injustice.
C.

Under Rule 15, Headway’s Motion for Leave to Amend should be granted
because there was no “undue delay” in seeking amendment, as defendants
can demonstrate no prejudice from allowing such an amendment, and the
amendment is based on evidence uncovered during discovery
Under Rule 15, “[m]ere delay, however, absent a showing of bad faith or undue

prejudice, does not provide a basis for a district court to deny the right to amend.” Block

6

v. First Blood Assocs., 988 F.2d 344 (2d Cir. 1993) (quoting State Teachers Retirement
Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)); Madison Fund, Inc. v. Denison
Mines Ltd., 90 F.R.D. 89, 92 (S.D.N.Y. 1981); Int’l. Bank v. Price Waterhouse & Co., 85
F.R.D. 140, 142 (S.D.N.Y. 1980); see also Duncan v. Manager, Dept. of Safety, City and
Council of Denver, 397 F.3d 1300 (10th Cir. 2005); Triad at Jeffersonville I, LLC v.
Leavitt, 563 F. Supp. 2d 1 (D.D.C. 2008); Donovan v. Gillmor, 535 F. Supp. 154 (N.D.
Ohio 1982); Greg Comm. Sys., Inc. v. Am. Tel. and Tel. Co., 98 F.R.D. 715 (D.C. Ill.
1983); Smith v. Guar. Serv. Corp., 51 F.R.D. 289 (N.D. Cal. 1970).
In this case, Standard Chartered has done absolutely nothing – nor can it – to
demonstrate any bad faith or undue prejudice from Headway’s Motion for Leave.
Further, it is more than a little disingenuous for Standard Chartered to complain about
delay, after its protracted efforts to grind down the plaintiffs by obstructing discovery, as
if we were fighting for terrain in a Russian winter. Time admittedly has passed while we
battled to get the discovery that undergirds Headway’s proposed Amended Complaint,
but the mere passage of time, at most, supports a bare allegation of delay – not undue
delay. And even if there had been delay, that would not justify denying Headway its first
amendment of its complaint based on information learned through discovery.
Headway has indisputably been diligent in conducting discovery and advancing
this case, all the while fighting an uphill battle against highly capable counsel whose
marching orders appear to have been to delay resolution of any issue through any
available means, while pretending to “meet and confer” about those issues. While this
case may have a complicated procedural history, Headway has requested only a single
extension of discovery, for a mere two months, a request that was essentially unopposed

7

by Standard Chartered and granted by this Court. As a result and as the Court is aware,
discovery is still ongoing.
We respectfully submit that any perceived delay in readying this case for trial is
largely attributable to stonewalling tactics by Standard Chartered, which have caused
papers to pile up on the desk of Magistrate Judge Katz and consumed a substantial
expenditure of time and resources by the Court and by Plaintiffs.
Second, mindful of the obligations imposed by Rule 11, Headway was not in a
position to properly allege claims against Standard Chartered for fraud and for violations
of the Florida Securities and Investor Act claim until we obtained discovery, because
Headway did not possess the requisite evidentiary support for these claims. Only through
discovery, did Headway obtain a legally sufficient basis for these claims, at which time
we sought to amend the Complaint.
For example, in the Original Complaint, Headway alleged that Sam Perruchoud
was involved in the due diligence process at American Express/Standard Chartered. That
was all Headway knew at the time. It was not until much later, after finally obtaining
discovery, that Headway came to learn of Mr. Perruchoud’s direct and important role in
the Fairfield Sentry Ponzi scheme. He was not merely “involved” in Standard Chartered’s
due diligence, he was its due diligence. When we finally were able to take depositions,
one after another Standard Chartered witness pointed the finger at Mr. Perruchoud, and
we confirmed his intimate relationship with the limited due diligence that was conducted,
which goes to the very heart of this matter.
Third, although allowing Headway to amend its Complaint could conceivably
cause some delay, this is not a certainty, and any such delay need not be lengthy.

8

Although the April 2012 Order suggests that “inevitable” motions to dismiss will be
prompted by an amended complaint, such motions are neither required under the Federal
Rules of Civil Procedure, nor do such motions, if brought, trigger protracted procedure.
Under Local Rule 6.1(a), no more than one month will be required to resolve any such
motions. One month is hardly a long time in the life of this complex, multi-district
litigation involving tens of millions of dollars, a case that was pending for almost two
years before we obtained any discovery, in which no motions for summary judgment
have been filed and there is no scheduled trial date.
Thus, there is no showing of undue delay by Headway in this matter (even though
we do not believe the same cannot be said of Standard Chartered), and any “delay” in
seeking the amendment is not the result of any obfuscation or obstruction by Headway,
but a strict compliance with its responsibilities under Rule 11.
Headway’s Motion for Leave was subject to standards the Court applied in the
Litton case. There, the plaintiff moved to amend its complaint for the third time to add a
claim for punitive damages. This amendment came over three years after commencement
of the action. However, the Court found that such delay was not “undue”:
[w]hile this delay cuts against a grant of the amendment, it certainly is not
dispositive. It appears that the amendment is based on facts developed
during discovery, including the deposition of persons involved with
[defendant] during the period in question. The resulting prejudice to
[defendant], if any, is extremely minimal and does not rise to the level of
‘undue prejudice.’ Although pretrial preparation has been extensive,
discovery is still open and there is no set trial date. Therefore, the parties
are not burdened by the reopening of discovery. Moreover, it does not
appear that the proposed amended complaint will result in extensive
additional discovery or unduly delay the trial.
Litton Indus., 734 F. Supp. 1071, 1078 (emphasis added).

9

Similarly, in the present case, although Headway sought the amendment nearly
three years after filing its Original Complaint, depositions began only six months ago,
discovery is ongoing, the facts underlying the amendment were learned through
discovery, there is no trial date, and the amendment would not result in “extensive
additional discovery or unduly delay the trial.” Allowing amendment is even more
appropriate here because, unlike the Litton plaintiffs, Headway was seeking a first
amendment, not a third, and Headway’s action has been subjected to a complex and timeconsuming process of removal, transfer, consolidation and inclusion in a steering
committee, factors absent in the Litton case.
Any delay that might result from allowing Headway to amend its complaint need
not be lengthy, much less unduly lengthy. The liberal standards of Rule 15 were easily
satisfied, and Headway’s Motion for Leave should have been granted.
D.

In the event that the Court’s October 2010 Order is construed as a true
“Scheduling Order,” even under Rule 16, Headway demonstrated good
cause and should have been granted leave to amend.
Under Rule 16, “[a] schedule shall not be modified except upon a showing of

good cause and by leave of the district judge. . . .” Fed. R. Civ. P. 16(b). “A finding of
good cause depends on the diligence of the moving party.” Rent-A-Center, Inc. v. 47
Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (quoting Parker v.
Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)). “In other words, the
movant must show that the deadlines cannot be reasonably met despite its diligence.
Rent-A-Center, 47 F.R.D. at 100 (citing Robinson v. The Town of Colonie, 1993 WL
191166 (N.D.N.Y. 1993)).

10

As explained above, the deadline imposed by the Court’s October 2010 Order
expired almost four months before the commencement of fact discovery. It follows, a
priori, that however much diligence a party exercises, without access to facts uncovered
through discovery, that party cannot determine whether an amendment is justified. Thus,
the fact that this deadline expired well before discovery began, standing alone, satisfies
the “good cause” requirement of Rule 16.
E.

The Court’s CMO does not bar amendment of Headway’s Complaint, but
merely excuses the non-Standard Chartered defendants from responding to
Headway’s pleadings
This Court’s CMO provided a substantial accommodation to the non-Standard

Chartered defendants. The CMO not only forced Headway to litigate its claims outside of
its chosen venue as a member of a steering committee comprised of diverse plaintiffs
with diverse issues, but it also allowed the non-Standard Chartered defendants to avoid
responding to Headway’s complaint or the complaints of any of the individual plaintiffs.
The Court has now added to that accommodation an unintended and unjustifiable benefit,
in holding that the CMO forecloses the right of Headway (and any other individual
plaintiff), to ever assert any newly discovered or amended claims against those
defendants. This is a result with serious due process implications. While the non-Standard
Chartered defendants initially took cover behind the CMO, and now retreat behind the
Court’s April 2012 Order, the statutes of limitations for Headway’s fraud and Florida
Securities and Investor Act claims continue to tick away, allowing those defendants to
wield a shield as if it were a sword.
This Court can, and should, prevent manifest injustice by allowing Headway to
amend its Complaint. We understand that the non-Standard Chartered defendants might

11

not immediately be required to respond to Headway’s Amended Complaint, in the same
way they were exempted from responding to Headway’s Original Complaint. However,
this more reasonable interpretation of the CMO will not only preserve Headway’s right to
vindicate its claims, but will also promote judicial efficiency by allowing the issues
developed through discovery to be framed for trial in the most efficient way.
IV.

Conclusion
For all the foregoing reasons, Headway respectfully requests that this Court

reconsider the above-described instances of error in the April 13, 2012 Decision and
Order, and amend that Order to allow Headway to amend its Complaint.
Dated: April 27, 2012
Respectfully submitted,
RIVERO MESTRE LLP
Attorneys for Headway Investment Corp.
2525 Ponce de Leon Boulevard
Suite 1000
Miami, Florida 33134
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
By:

12

/s/ Jorge A. Mestre__________
JORGE A. MESTRE
Fla. Bar No. 088145
ALAN H. ROLNICK
Fla. Bar No. 715085
ERIMAR VON DER OSTEN
Fla. Bar No. 028786
CARLOS A. RODRIGUEZ
Fla. Bar No. 091616

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 27, 2012, I electronically filed the foregoing
document with the Clerk of Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or via U.S. Mail.

By:

/s/ Jorge A. Mestre__________
Jorge A. Mestre

13

Sullivan & Cromwell LLP
New York, New York
Attorneys for Private Bank Defendants

Simpson Thacher & Bartlett LLP
New York, New York
Attorneys for FGG Defendants

Sharon L. Nelles: [e-mail]

Peter E. Kazanoff: [e-mail]

Greenberg Traurig, P.A.
Miami, Florida
Attorneys for Individual FGG Defendants, Standard
Chartered Bank International (Americas) Limited and
Standard Chartered PLC

Brown & Heller
Miami, Florida
Attorneys for CITCO Fund Services (Europe)
B.V.

Ricardo Alejandro Gonzalez: [e-mail]
The Brodsky Law Firm
Miami, Florida
Attorneys for Maridom Ltd., Caribetrans, S.A.,
And Abbot Capital, Inc.
Richard E. Brodsky:
[e-mail]

Amanda McGovern: [e-mail]
Curran & Associates
Miami, Florida
Attorneys for Ricardo Lopez, Jorge Asensio,
Auburn Overseas Corp., Interland Investments
Corp., Iston Holding Limited, Nemagus Ltd.,
Moises Lou-Martinez, New Horizon Development
Inc., Alberto Perez, Ramiro Rendiles, Reinaldo
Ruiz , Salcar Limited, Triple R Holdings Ltd., The
Five Stars Financial Group Ltd., Vilebens, S.L.,
Velvor, S.A., 5C Investments Ltd., Archangel
Resources Limited, Apple Trading Limited, Bahia
Del Rio, S.A., Blount International, S.A. and
Esther Diaz de Camara

Dimond Kaplan & Rothstein, P.A.
Miami, Florida
Attorneys for Pujals

Laurence E. Curran III: [e-mail]
Jones & Adams
Miami, Florida
Attorneys for Almiron and Carrillo

Robert Linkin: [e-mail]

Matthew Jones: [e-mail]

Sonn Erez, PLC
Fort Lauderdale, Florida
Attorneys for Saca, Lancaster Overseas, Ltd., and
Dieka, S.A. de C.V.

de la O Marko Magolnick & Leyton PA
Miami, Florida
Attorneys for Gerico, de Rivera
Joel S. Magolnick: [e-mail]

Jeffrey Erez: [e-mail]
Kachroo Legal Services, P.C.
Cambrudge, Massachusetts
Attorneys for Caso

Aguirre Morris and Severson
San Diego, California
Attorneys for Marka Akriby Valladolid

Gaytri D. Kachroo: [e-mail]
Katz Barron Squitero Faust
Miami, Florida
Attorneys for Joaquina Teresa Barbachano Herrero

Maria Severson: [e-mail]
Kirkland & Ellis LLP
New York, New York
Attorneys for Pricewaterhousecoopers L.L.P.

Marissa C. Corda: [e-mail]

Andrew M. Genser: [e-mail]
Timothy A. Duffy: [e-mail]

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Wolf Popper LLP
New York, NY 10022
Attorneys for Pacific West Health Medical Center Inc.
Employees Retirement Trust

Lovell Stewart Halebian Jacobson, LLP
New York, NY 10006
Attorneys for Pasha S. Anwar
Victor E. Stewart: [e-mail]

James A. Harrod: [e-mail]
Alan Rolnick
Studio City, CA 91604

White & Case LLP (NY)
New York, New York
Attorneys for Walter Noel, Jr.

Attorneys for Headway Investment Corp.
Glenn Kurtz: [e-mail]
Alan Rolnick: [e-mail]
Hughes Hubbard & Reed LLP (NY)
New York, New York

Dechert, LLP (NYC)
New York, New York

Attorneys for PricewaterhouseCoopers Accountants
Netherlands N.V.

Attorneys for Andres Piedrahita

Andrew J. Lavender:
Gabriel Sean Marshall: [e-mail] [e-mail]
Sarah Loomis Cave: [e-mail]
William R. Maguire: [e-mail]
Kasowitz, Benson, Torres & Friedman, LLP (NYC)
Debevoise & Plimpton, LLP (NYC)
New York, New York
New York, New York
Attorneys for Jeffrey Tucker

Attorneys for Helen Virginia Cantwell

Adam K. Grant: [e-mail]

Helen Virginia Cantwell:
[e-mail]

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