Anwar et al v. Fairfield Greenwich Limited et al

Filing 883

REPLY 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 REPLY MEMORANDUM
OF LAW IN SUPPORT OF ITS MOTION FOR RECONSIDERATION

Jorge A. Mestre
Alan H. Rolnick
Erimar von der Osten
Carlos A. Rodriguez
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
1.

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

2.

Applicable Standard for Motion for Reconsideration..........................................................3

3.

Argument .............................................................................................................................4
A. It was Clear Error to hold that the October 2010 Order was the
Scheduling Deadline for Certain Plaintiffs to Amend Pleadings.............................................4
B. The April 2012 Order Overlooked Controlling Facts and Evidence
Demonstrating that Headway Did Not UndulyDelay in Filing its Motion
to Amend..................................................................................................................................7
C. The April 2012 Order Overlooked Controlling Facts and Evidence
Demonstrating that the Bank Would Not be Unfairly Prejudiced by the
Amendment..............................................................................................................................10
D. The Non-Bank Defendants’ Opposition Travels on Misstatements
of Applicable Law and Unsupportable Assertions of Prejudice..............................................11

4.

Conclusion ...........................................................................................................................13

ii

Table of Authorities
Cases

Page(s)

Anwar v. Fairfield Greenwich Ltd.,
800 F.Supp.2d 571 (S.D.N.Y. 2011)................................................................................11
Perez v. Pavex Corp.,
2002 WL 31500404 *1 (M.D. Fla. 2002) ........................................................................6
R.F.M.A.S., Inc. v. Mimi So,
640 F. Supp. 2d 506 (S.D.N.Y. 2009)..............................................................................4
Virgin Atl. Airways, Ltd. v. Nat’l. Mediation Bd.,
956 F. 2d 1245 (2d Cir. 1992)..........................................................................................3, 11

Statutes and Rules

Page(s)

FED. R. CIV. P. 15 .........................................................................................................................passim
FED. R. CIV. P. 16 .........................................................................................................................passim
FED. R. CIV. P. 1 ...........................................................................................................................5
FED. R. CIV. P. 16 .........................................................................................................................9

Other Sources

Page(s)

18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE § 4478.................3

iii

1.

Introduction
In opposition to Headway’s Motion for Reconsideration [D.E. 859], the Standard

Chartered defendants (collectively, the “Bank”) willfully ignore the overarching truth
about the Court’s April 13, 2012 Decision and Order (the “April 2012 Order”) [D.E. 853]
denying Headway’s Motion for Leave to Amend Complaint (“Motion to Amend”) [D.E.
837]. The truth about the April 2012 Order is that it represents clear error and will cause
manifest injustice, because it held that the October 4, 2010 Decision and Order on the
Bank’s motion to dismiss (the “October 2010 Order”) [D.E. 543] was a de facto, one-way
scheduling order that imposed, apparently only on certain plaintiffs, a deadline for
amending pleadings that ended 112 days before discovery began.
In teasing out of the October 2010 Order a one-way deadline for Headway to file
any and all amendments, it has been overlooked that this deadline on its face applied only
to the repleading of specific claims by specific plaintiffs and did not give anyone
reasonable notice that it would (or even could) apply to any and all amendments destined
to be supported by discovery that had not even begun. We respectfully submit that it was
incorrect to conclude that Headway’s motion for leave to amend was untimely and
therefore subject to the “good cause” standard of Fed. R. Civ. P. 16(a)(4) instead of the
Rule 15 standard that should apply, and which the motion to Amend easily satisfied. As a
matter of law and logic, this Court should reconsider the April 2012 Order—which
enforced an unstated deadline for amendments that expired before discovery even
began—to correct error and prevent manifest injustice.
The Bank’s papers happily adopt the erroneous premise that Headway’s Motion
to Amend was filed 16 months too late. Instead, it makes passing references to Rule 16

1

factors. But there is absolutely no merit to the argument that anyone would be prejudiced
by Headway’s amended complaint, as the Maridom plaintiffs handily demonstrate in their
reply [D.E. 878], which we adopt and incorporate by reference.
Nor is there any merit to the Bank’s claim that Headway’s motion for
reconsideration failed to point out controlling facts that the Court overlooked, which
might reasonably have been expected to alter its conclusion. The April 2012 Order
overlooked recently obtained evidence of the Bank’s fraud, direct evidence that the Bank
made knowingly false representations about the Fairfield Sentry Fund. That evidence
supported Headway’s careful and measured decision to move to amend to assert claims
for fraud and negligent misrepresentation, and for violation of Florida’s Chapter 517.1
The April 2012 Order also overlooked this case’s procedural history and actual
scheduling orders, in concluding that the Bank would be unduly prejudiced if it decided
to move to dismiss the amended complaint instead of answering it.
Lastly, we reply to an opposition memorandum filed by defendants Fairfield
Greenwich Group (“Fairfield”), its affiliates, Walter M. Noel Jr., Jeffrey Tucker,
PricewaterhouseCoopers LLP, PricewaterhouseCoopers N.V., and Citco Fund Services
(Europe) B.V. (collectively, the “non-Bank defendants”). The non-Bank defendants’
opposition to Headway’s Motion for Reconsideration flagrantly misstates the applicable

1

Headway and its counsel take seriously their obligations under Rule 11, and alleged a fraud claim only
after discovery revealed sufficient evidence to discharge those obligations. We are prepared to demonstrate
that there is no scienter requirement under Chapter 517, but reasonably expected the Bank to strenuously
dispute that proposition, and made sure we also could satisfy Rule 9 as to both the fraud claims and Chapter
517 claims.

2

law on this motion for reconsideration and makes unsupportable assertions of prejudice
that defy logic, not to mention the facts.2
If the Court’s April 2012 Order is not rectified, Headway will suffer manifest
injustice. If it is rectified, neither the Bank nor the non-Bank defendants will be
prejudiced in any way. They have utterly failed to demonstrate anything other than the
potential inconvenience of filing an answer or motion to dismiss, which every one of
them is quite expert at doing. Inconvenience is not prejudice, let alone unfair prejudice.
Thus, for the reasons set forth below, and those stated in Headway’s
Memorandum of Law in Support of its Motion for Reconsideration, Headway
respectfully requests that the Court reconsider its ruling, withdraw the pertinent aspects
of the April 2012 Order, and grant Headway’s Motion for Leave to Amend the
Complaint.
2.

Applicable Standard for Motion for Reconsideration
As noted previously, both in Headway’s Motion for Reconsideration and the

Bank’s opposition, “[t]he 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) (emphasis added)). This Court has stated
that “[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
2

As a threshold matter, we respectfully submit that these parties, who have never yet been required to
respond in any way to Headway’s original complaint, have no basis for complaining about prejudice from
someday having to respond to an amended complaint.

3

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) (Marrero, J.). This we have done, and shall do in further measure below.
3.

Argument
A.

It was Clear Error to hold that the October 2010 Order was the
Scheduling Deadline for Certain Plaintiffs to Amend Pleadings.

Not surprisingly, the Bank is now in total agreement with the Court’s finding that
the October 2010 Order was a de facto scheduling order that set deadlines for amending
pleadings, despite the fact that it said nothing of the sort. That Order applied by its own
terms to the Bank’s motion to dismiss. At the end of the Order, the Court set a deadline
for Headway and other plaintiffs to replead the counts of their original complaints that the
Court had dismissed without prejudice.
By its express terms, the October 2010 Order’s deadline applied only to some of
the claims alleged by specific plaintiffs. It was an Order that addressed the Bank’s motion
to dismiss. At the very end of the Order, it quite naturally set to a deadline by which
specific plaintiffs would be required to “replead” their complaints to “correct the
deficiencies” in claims that the Court had dismissed without prejudice. The Order said
nothing about any deadline for (1) amending a complaint to add new claims based on
discovery that had not yet begun, (2) amending a complaint to refine claims that had been
sustained on the motion to dismiss, or (3) amending pleadings (whether answers or
complaints) that the Bank, any other defendant, or any plaintiff whose complaint was not
subject to the Bank’s original motion to dismiss might someday file. 3 To construe the

3

One wonders how this deadline could have applied to the Bank, let alone the non-Bank defendants,
because none of them had filed any pleadings when the Court entered the October 2010 Order, and none
of them except the Bank have ever filed any pleadings since. If it were applicable to all parties, this
reading of the Order would require striking the Bank’s answer as untimely, together with any answers that
the non-Bank defendants might eventually file and any amendments to complaints filed by those plaintiffs

4

October 2010 Order as a scheduling order, and its 21-day deadline for “repleading”
specified claims as applying to all pleadings and all parties, it would have to apply to
pleadings that had not (and still have not) been filed, and to litigants who were not even
before the Court when the deadline expired.
We don’t fault the Bank for agreeing with the April 2012 Order and arguing that
Headway’s Motion to Amend was subject to the “good cause” standard of Rule 16, and
making a case to support the conclusion that “good cause” hadn’t been shown. One
generally does not look a gift horse in the mouth, and the Bank has been gifted a result
that cannot be squared with the federal rules’ admonition that they be “construed and
administered to secure the just, speedy and inexpensive determination” of this action. See
Fed. R. Civ. P. 1 (emphasis added).
And while the Bank incorrectly asserts that Headway has not shown that the April
2012 Order overlooked controlling decisions, evidence, or factual matters, it fails to
address the most obvious reason why that Order was clearly erroneous. A deadline for
amending pleadings cannot expire 112 days before discovery is allowed to begin.4

whose cases were not yet before the court when the Court issued its October 2010 Order. If that seems a
logical impossibility, then we are left with the fundamental unfairness of applying this newly-discovered
deadline only to the plaintiffs whose original complaints were subject to the Bank’s motion to dismiss, and
implying that the Order said things it didn’t say, because the 21-day deadline expressly applied only to
repleading claims that had been dismissed without prejudice. Nothing any defendant said or could say
addresses the massive prejudice from such a decision, which would create different sets of rules for the
defendants than for certain plaintiffs. Such a decision would indeed implicate due process concerns.
4
Footnote 1 of the Bank’s opposition makes no sense. The fact that the October 2012 Order gave some
other plaintiff a short time to replead its claims for fraud or negligent misrepresentation cannot be
“imputed” to Headway. That Order’s repleading deadline applied to claims that had been dismissed
without prejudice and Headway timely addressed the relevant claims that actually were in its complaint.
Headway has no juridical relationship with any other plaintiff that would support such unprecedented
“imputation,” which comes straight out of the “Say Anything” playbook. The only thing all plaintiffs have
in common is that they were sold worthless shares in a Ponzi scheme by the Bank and other defendants. We
know the Bank would have made Rule 9 arguments if Headway had originally sued for fraud, despite its
cynical, post hoc invitation to have done so long before we obtained the evidence in discovery, which
required hand-fighting the Bank on all conceivable (and some inconceivable) issues. It would be, and is,
fundamentally unfair to penalize Headway for conducting this case in a reasonable manner.

5

Headway has canvassed federal law, and found no case where the deadline for
amending pleadings expired before discovery began. In current federal practice, deadlines
for amending pleadings are not teased out of orders on motions to dismiss, but specified
in scheduling orders issued under Rule 16(3)(A). Such orders “must limit the time to join
other parties, amend the pleadings, complete discovery, and file motions.” Such orders
typically set deadlines for amending pleadings that expire near, at, or soon after the
deadline set for completing discovery, not 112 days before discovery even begins.
Of course, not all scheduling orders set deadlines for amending pleadings, and
that is what happened here. The Second Amended Scheduling Order Regarding Standard
Chartered Cases filed February 4, 2011 (the “Scheduling Order”) [D.E. 604] does not
contain a deadline for amending pleadings. When that is the case, “the amendment
standard articulated in Rule 15(a) governs [a plaintiff’s] request for leave to amend.”
Perez v. Pavex Corp., 2002 WL 31500404 *1 (M.D. Fla. 2002).5
Accordingly, to correct clear error and prevent manifest injustice, the Court
should reconsider its decision in the April 2012 Order that the October 2010 Order
contained a deadline for Headway to amend its complaint as to any claims other than the

5

The Bank cannot argue that Headway did not make a “good cause” showing until its Motion for
Reconsideration. The Bank is well aware that Headway had no reason to believe that its Motion for Leave
had to demonstrate “good cause.” Had Headway known that the Court would treat the October 2010 Order
as a scheduling order for amending pleadings, a good cause argument would have been included in the
motion to amend. Furthermore, if Headway had known the Court would treat its October 2010 Order as an
across-the-board scheduling order to amend pleadings, we would have requested clarification as soon as it
was clear the Court viewed the October 2010 Order in such a light. That is the problem here. No party
would reasonably assume that the October 2010 Order was a scheduling order for amending pleadings.
Indeed, even the Bank didn’t believe the October 2010 Order was a scheduling order. While it did rely on
the 21-day repleading period in the October 2010 Order in opposing plaintiff Maridom’s Motion for Leave
to Amend, it did not once argue that the Court should determine the question under the Rule 16 “good
cause” standard. Despite whatever the Bank might say now, if it had felt it could get the benefit of the more
stringent Rule 16 standard, it would have sought it. But the Bank knew the October 2010 Order was not a
scheduling order, and as such, only opposed Maridom’s motion under a Rule 15 standard.

6

claims the October 2010 Order dismissed without prejudice, and apply the standards of
Rule 15 to Headway’s Motion to Amend.
B.

The April 2102 Order Overlooked Controlling Facts and Evidence
Demonstrating that Headway Did Not Unduly Delay Filing its Motion to
Amend

The Bank is mistaken in arguing that Headway has failed to identify evidence of
factual matters the Court overlooked on this motion, and it’s equally mistaken in
trivializing Headway’s discussion of its diligent efforts to obtain that evidence. The April
2012 Order held that Headway had unduly delayed in filing its Motion to Amend.
Because of that Order’s clear error in creating a post-hoc rationale for a pleading deadline
that did not exist, the Court held that Rule 16 applied to the Motion to Amend. After
correcting that mistake, the Court should decide whether Headway’s Motion to Amend
satisfies Rule 15. It is ironic that the Court’s “undue delay” discussion under Rule 16
overlooks the very facts that reveal it to be ill-founded.
Specifically, the Court found that permitting the proposed amendment now, when
fact discovery has just ended, “would inevitably result in significant delay in resolving
these complex, consolidated actions.” (April 2012 Order at 6). With all due respect to the
defendants, nobody wants this case resolved more quickly than we do. But it is hardly
inevitable that the amendment cause any delay, and whether it does is entirely within the
control of the defendants. They could answer the amended complaint, put the case at
issue and move forward quickly. Even a motion to dismiss need not cause significant
delay unless the Court allows it to. The April 2012 Order’s forecast of “significant” delay
evidently anticipates a dilatory round of motion practice. But we will not be the ones

7

making it so, and the defendants should not be further rewarded for their efforts to keep
this case from ever getting out of creeper gear.
Any potential delay from allowing the amendment would not be “undue” in light
what really happened here. Of course, discovery in Headway’s case has been slowed
somewhat by the multi-district vortex into which it was pulled by the process of
consolidation (despite resisting vigorously), but any “delay” to which anyone could point
is the result of the Bank’s two speeds, slow and stop, in responding to discovery requests.
Specifically, while discovery officially began in February 2011 and Headway
propounded discovery requests on February 17th, we soon found ourselves bogged down
in an interminable meet and confer process, by which the Bank kept us from getting any
documents for four months, until June 2011. Then, despite plaintiffs’ attempts to begin
deposing Bank witnesses in September 2011, we didn’t get to take our first deposition
until November 21, 2011, three days before Thanksgiving.6 Not one of these delays was
of our making. We filed our Motion to Amend less than four months after we finally
were able to take our first deposition and six weeks before the close of discovery.7
We are mindful of our obligations under Rule 11. But until we received
documents and took depositions, Headway was not in a position to reasonably allege
claims against Standard Chartered for fraud and for violations of the Chapter 517 of the
Florida Statutes, The Florida Securities and Investor Act. Within four months of the first

6

In a complex case, the passage of less than four months between the first deposition and a motion to file
an amended complaint based on newly discovered evidence is not delay, let alone undue delay. Moreover,
if the Magistrate Judge had not ordered depositions to begin on November 21, 2011, the Bank may have
gotten its wish of delaying depositions until all documents had been produced. After we brought several
discovery motions to the Magistrate, the Bank didn’t finish producing documents until March 2, 2012, two
weeks before Headway moved to amend.
7
Furthermore, given the Bank’s continuing rescheduling of depositions, including Robert Friedman’s, one
of the most critical witnesses in the case, Headway was forced to move to amend before even getting the
benefit of hearing what Mr. Friedman had to say during his March 22, 2012 deposition.

8

deposition, we determined that Headway had a legally sufficient basis for bringing these
additional claims. It cannot fairly be said that taking depositions for less than four months
before we moved to amend was anything but reasonable. It is not rendered any less
reasonable by the fact that some other plaintiff alleged a legally insufficient Chapter 517
claim without taking any discovery. If anything, the dismissal of that plaintiff’s claim
suggests that Headway acted properly in taking discovery before filing the claim.
As we also noted in Headway’s Motion for Reconsideration, it was not until we
finally received documents and were able to take depositions that we confirmed the
critical role Samuel Perruchoud played in the Bank’s decision to sell shares in a Ponzi
scheme and to conduct what passed for due diligence into Fairfield Sentry. More
recently, we learned that Mr. Perruchoud had serious misgivings about Fairfield Sentry,
and we obtained the declaration of a former colleague and Bank relationship manager,
Sebastian Gonzalez, who worked in the same Bank office as Mr. Perruchoud in Geneva,
Switzerland, during the relevant time period. We have learned that Mr. Perruchoud told
Mr. Gonzalez there was something wrong with the Sentry fund, and that he believed
Madoff would “explode” one day.8 Mr. Perruchoud warned Mr. Gonzalez to not “put
your clients in” the Sentry fund, said he thought Fairfield would explode because it was
“not possible to achieve such high returns with such low volatility,” and insisted that
something was wrong. This is direct evidence of the Bank’s scienter, its actual
knowledge of the falsity of its representations to clients about the safety and security of
Fairfield Sentry, that fabulous hedge fund with such invariably positive results that the
bank marketed it as a “risk reducer.”
8

Local Rule 6.3 states that parties should not attach any declaration or affidavits to a motion for
reconsideration unless directed to by the Court. Accordingly, we have not attached the February 17, 2012
Declaration of Sebastian Gonzalez. If the Court requests the Declaration, we will provide it forthwith.

9

Headway’s diligent efforts to conduct discovery, and the results of those efforts,
constitute a significant set of facts that the Court overlooked in deciding that Headway
unduly delayed in moving to amend. Those discovery efforts and results confirmed the
slapdash quality of what passed for due diligence at the Bank with regard to Fairfield
Sentry. They also led us to discover that this due diligence was conducted and overseen
by a Bank employee who had doubts and misgivings about the Fund’s bonafides, and
foresaw that Madoff would someday “blow up,” even as he was approving the Sentry
Fund for sale to clients such as Headway. The April 2012 Order overlooked these
important, recently discovered facts, which compel its reconsideration.
C.

The April 2012 Order Overlooked Controlling Facts and Evidence
Demonstrating that the Bank Would Not be Unfairly Prejudiced by the
Amendment

The Bank’s contention that a defendant would be unfairly prejudiced by the filing
of a first amendment to a complaint, prior to the close of discovery, after less than four
months of depositions in a complex case -- merely because it might decide that it should
move to dismiss -- cannot be justified by reference to the rules or cases. But the Bank
also is wrong in asserting that Headway failed to identify facts that the Court overlooked
in deciding the Bank would be unfairly prejudiced by Headway’s amendment. As noted
above, allowing this amendment sought before the close of discovery need not cause
“significant delay” or any prejudice to the Bank, especially since the April 2012 Order’s
basis for this conclusion was the potential for another round of motions to dismiss. Such
motions need not be made, and even if they are, need not consume more than thirty days
under local rules, as the Maridom plaintiffs demonstrated in their reply [D.E. 878].

10

Moreover, the April 2012 Order’s conclusion that the Bank would be unfairly
prejudiced by the potential for a new round of motions to dismiss is completely
undermined by the Magistrate Judge’s Order Amending the August 9, 2011 Second
Amended Scheduling Order Regarding Standard Chartered Cases [D.E. 695], which
provides for the semiannual filing of motions to dismiss in actions transferred after
January 1, 2012. At present, the Bank continues to transfer cases filed against it in other
jurisdictions to the Southern District of New York, including those in its most recent
Notice of Potential “Tag-Along” Actions filed on May 8, 2012. Unless it has decided to
start answering complaints, the Bank would be briefing motions to dismiss even if
Headway had never moved to amend. The Bank’s claim of prejudice is disingenuous, and
the April 2012 Order overlooked procedural facts that completely undermine that claim,
which had, and has, no merit whatsoever.
D.

The Non-Bank Defendants’ Opposition Travels on Misstatements of
Applicable Law and Unsupportable Assertions of Prejudice

The non-Bank defendants partially quote this Court’s July 27, 2011 Order
denying PwC’s motion for reconsideration, and state that “[t]he Movant ‘must
demonstrate controlling law or factual matter 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.’” non-Bank defendants’
Memorandum of Law in Opposition to Headway’s Motion for Reconsideration (“Opp.
MOL”) at 1 (quoting Anwar v. Fairfield Greenwich Ltd., 800 F. Supp.2d 571, 573
(S.D.N.Y. 2011)). It would have been good if these defendants had not omitted the
immediately preceding sentences, which state that “[t]he major grounds justifying
reconsideration are ‘an intervening change in controlling law, the availability of new

11

evidence, or the need to correct a clear error or prevent manifest injustice.’” Anwar, 800
F. Supp.2d at 573 (emphasis added) (quoting Virgin Atl. Airways 956 F.2d at 1255).
One hopes that these defendants didn’t think they would fool the Court (or us) by
misstating the hornbook law that governs this motion. In any event, as the quoted Order
makes clear, the existence of clear error or the threat of manifest injustice both justify
reconsideration, even when there is no new evidence of change in the law. We have
demonstrated above that the April 2012 Order suffers from clear error, in teasing out of
the October 2010 Order’s repleading deadline for claims dismissed without prejudice, a
deadline for any amendment based on discovery that would not even begin until 112 days
later. We also have demonstrated the manifest injustice of imposing such a deadline on
Headway, a deadline that could not logically apply to any party that had not filed
pleadings in October 2010, which includes the Bank and non-Bank defendants, as well as
any plaintiff whose claims were not subjected to the motions to dismiss addressed by the
October 2010 Order. This clear error and manifest injustice requires reconsideration.
Further, the non-Bank defendants’ parroting of the April 2012 Order’s erroneous
conclusion that allowing Headway to amend its Complaint would “inevitably result in
significant delay in resolving these complex, consolidated actions,” Opp. Mot. at 2, adds
nothing to the analysis. Moreover, this assertion, by these defendants, is particularly illfounded, since they also claim that they are exempted from responding to any individual
plaintiff’s complaints by the Court’s CMO dated March 11, 2009 [D.E. 69]. If this were
true (which we do not concede), then what delay in resolving the claims against them
would result from allowing the amendment? The answer is none. Whenever the non-

12

Bank defendants have to respond to individual plaintiffs’ complaints, they can just as
easily respond to Headway’s Amended Complaint as they could to the original.
To let stand an order preventing Headway from exercising its right to an
amendment based on evidence obtained during discovery, sought less than four months
after taking its first deposition and six weeks before discovery ended, would be clear
error causing manifest injustice. The Court can—and should— correct that error and
prevent that manifest injustice by allowing Headway to amend its Complaint.
4.

Conclusion
For all the foregoing reasons, as well as those stated in Headway’s Memorandum

in Support of its Motion for Reconsideration [D.E. 859], Headway respectfully requests
that this Court reconsider the April 13, 2012 Decision and Order, and amend that Order
to allow Headway to amend its Complaint.
Dated: May 21, 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:

13

/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 May 21, 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

14

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]

1460.01\PLEAD\REP SUPP MOT RECONS

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