Anwar et al v. Fairfield Greenwich Limited et al

Filing 877

JOINT MEMORANDUM OF LAW in Opposition re: (858 in 1:09-cv-00118-VM-THK) MOTION for Reconsideration.. Document filed by CITCO Fund Services (Europe) B.V., Fairfield Greenwich Advisors LLC, Walter M. Noel, Jr, Jeffrey H. Tucker, Fairfield Greenwich Advisors L.L.C., PricewaterhouseCoopers Accountants Netherlands N.V., Jeffrey Tucker. Filed In Associated Cases: 1:09-cv-00118-VM-THK, 1:09-cv-08500-VM(Cunha, Mark)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
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ANWAR, et al.,
Plaintiffs,
v.
FAIRFIELD GREENWICH LIMITED, et al.,
Defendants.
This Document Relates To: Headway Investment
Corp. v. American Express Bank Ltd., et al., No. 09CV-08500
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:: MASTER FILE NO. 09-CV-0118 (VM)
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MEMORANDUM OF LAW OF THE NON-STANDARD CHARTERED DEFENDANTS
IN OPPOSITION TO PLAINTIFF HEADWAY INVESTMENT CORPORATION’S
MOTION FOR RECONSIDERATION

Defendants Fairfield Greenwich Advisors LLC, Walter M. Noel, Jr., Jeffrey Tucker,
PricewaterhouseCoopers LLP, PricewaterhouseCoopers Accountants N.V., and Citco Fund
Services (Europe) B.V. (collectively, the “Non-Standard Chartered Defendants”) respectfully
submit this memorandum of law in opposition to the motion (“Motion”) of Plaintiff Headway
Investment Corporation (“Headway”) for reconsideration of this Court’s April 13, 2012 order
(“Order”) insofar as the Order denied Headway leave to file an amended complaint against
defendants not affiliated with Standard Chartered.1
ARGUMENT
“Reconsideration of a previous order by the court is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial resources.”
Anwar v. Fairfield Greenwich Ltd., 800 F.Supp.2d 571, 572 (S.D.N.Y. 2011) (citation and
quotation marks omitted). The Movant “must demonstrate controlling law or factual matters put
before the court in its decision on the underlying matter that [it] believes the court overlooked
and that might reasonably be expected to alter the conclusion reached by the court.” Id.
Headway does not meet this demanding standard as to defendants not affiliated with Standard
Chartered.
Headway’s discussion of the Order as it relates to the Non-Standard Chartered
Defendants is confined to the last two paragraphs of its brief. See Headway MOL at 11-12.
Those two paragraphs are devoid of any law (much less controlling law) and contain no facts that
the Court failed to previously consider that could justify reconsideration. Headway baldly
asserts that denial of the opportunity to amend its complaint has “serious due process
1

Defendants not affiliated with Standard Chartered preserve all rights and defenses, including
any defenses they may have to the personal jurisdiction or subject matter jurisdiction of the
District Court for the Southern District of Florida. Headway’s April 27, 2012 Memorandum of
Law in Support of Its Motion for Reconsideration is abbreviated herein as “Headway MOL.”

implications” and would result in “manifest injustice.” This empty rhetoric should be rejected.
As the Court previously explained, Headway’s additional claims “could have been asserted in the
original Complaint[] and are not dependent upon evidence revealed in the course of discovery.”
Anwar v. Fairfield Greenwich Ltd., 09 Civ. 0118, 2012 WL 1415621, at *3 (S.D.N.Y. April 13,
2012). But once Headway was consolidated with Anwar for all pretrial purposes, Headway was
required to work with co-lead plaintiffs’ counsel to determine which claims they should
collectively pursue. This is a straightforward application of the rules of consolidation, which is
not a novel concept, and certainly does not raise any due process concerns.
The Court also should reject out of hand Headway’s proposal, made under the guise of
apparent compromise, that it be permitted to amend its complaint but have the response date
postponed until some indefinite time in the future. Requiring the Non-Standard Chartered
Defendants to separately respond to the individual Headway complaint, regardless of the timing
for such response, would directly contravene the governing Civil Case Management Plan and
Scheduling (“CMO”), under which “no response by Defendants is due to any individual
complaints that are consolidated into the Consolidated Action.” See March 11, 2009 CMO, Dkt.
#69, at ¶6. Moreover, Headway’s proposal “would inevitably result in significant delay in
resolving these complex, consolidated actions.” Anwar, 2012 WL 1415621, at *2.
CONCLUSION
For the foregoing reasons, Headway’s motion for reconsideration should be denied as to
defendants not affiliated with Standard Chartered.

2

Dated: May 14, 2012
New York, NY

SIMPSON THACHER & BARTLETT LLP
By: /s/ Mark G. Cunha
Mark G. Cunha
[e-mail]
Peter E. Kazanoff
[e-mail]
425 Lexington Ave.
New York, NY 10017
[phone]
Attorneys for Fairfield Greenwich Advisors LLC

WHITE & CASE LLP

KASOWITZ BENSON TORRES &
FRIEDMAN LLP

By:/s/ Andrew Hammond
Glenn Kurtz
[e-mail]
Andrew Hammond
[e-mail]
1155 Avenue of the Americas
New York, NY 10036
[phone]

By:/s/ Marc Kasowitz
Marc Kasowitz
[e-mail]
Daniel J. Fetterman
[e-mail]
1633 Broadway
New York, NY 10019
[phone]

Attorneys for Walter M. Noel, Jr.
Attorneys for Jeffrey Tucker

3

BROWN AND HELLER, P.A.

KIRKLAND & ELLIS LLP

By:

By:

/s/ Lewis N. Brown
Lewis N. Brown
1 Biscayne Tower, 15th Fl.
2 S. Biscayne Blvd,
Miami, FL 33131
[phone]

Attorneys for Citco Fund Services (Europe) B.V.

HUGHES HUBBARD & REED LLP

By:

/s/ William R. Maguire
William R. Maguire
Sarah L. Cave
One Battery Park Plaza
New York, NY 10004
[phone]

Attorneys for PricewaterhouseCoopers
Accountants N.V (PwC Netherlands)

4

/s/ Timothy A. Duffy
Timothy A. Duffy, P.C.
Amy E. Crawford
300 North LaSalle
Chicago, Illinois 60654
[phone]

Attorneys for PricewaterhouseCoopers LLP
(PwC Canada)