Anwar et al v. Fairfield Greenwich Limited et al

Filing 902

TRANSCRIPT of Proceedings re: CONFERNCE held on 6/18/2012 before Magistrate Judge Frank Maas. Court Reporter/Transcriber: Sonya Ketter Huggins, [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/13/2012. Redacted Transcript Deadline set for 8/23/2012. Release of Transcript Restriction set for 10/19/2012.Filed In Associated Cases: 1:09-cv-00118-VM-FM et al.(McGuirk, Kelly)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PASHA ANWAR, et al.,

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Plaintiffs,

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v.
FAIRFIELD GREENWICH LIMITED et al.,

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09 CV 118(VM)(FM)

Defendants.
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New York, N.Y.
June 18, 2012
4:00 p.m.

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Before:
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HON. FRANK MAAS
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Magistrate Judge
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APPEARANCES (Via Telephone)
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BOIES SCHILLER & FLEXNER LLP
Attorneys for Plaintiffs
BY: DAVID BARRETT

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SIMPSON THACHER & BARTLETT LLP
Attorneys for Defendants Fairfield Greenwich, et al.
BY: MARK G. CUNHA

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KIRKLAND & ELLIS LLP
Attorneys for Defendant PricewaterhouseCoopers Canada
BY: TIMOTHY A. DUFFY

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HUGHES HUBBARD & REED
Attorneys for Defendant PricewaterhouseCoopers
Netherlands
BY: WILLIAM MAGUIRE

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In chambers)

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THE DEPUTY CLERK:

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This is Nolan Robinson, Judge Maas's law clerk.

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This is a conference in the matter of Anwar v.

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Good afternoon.

Greenwich.

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This conference is being recorded.

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THE COURT:

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said.

Let me correct something that my clerk

It is being recorded, but by a court reporter.

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I gather there are lots of folks on the phone, but

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only a few of them will speak, so let me take the appearances

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of whoever might speak during this conference.

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MR. BARRETT:

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This is David Barrett from Boies Schiller & Flexner,

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Your Honor, good afternoon.

and I will be speaking on behalf of the plaintiffs.

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MR. CUNHA:

Your Honor, Mark Cunha from Simpson

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Thacher Bartlett.

I will be speaking on behalf of the

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Fairfield Greenwich entities and most of the individual

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defendants.

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MR. DUFFY:

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It is Tim Duffy from Kirkland & Ellis on behalf of PwC

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Good afternoon, your Honor.

Canada.
MR. MAGUIRE:

Your Honor, this is Bill Maguire from

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Hughes Hubbard & Reed on behalf of PricewaterhouseCoopers

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Netherlands.

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THE COURT:

Good afternoon, everyone.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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I have to tell you, in all candor, I feel like

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somebody who just got dropped behind enemy lines with a

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parachute and no compass.

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of water under the bridge in this case but I have read through

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some of the pleadings, through Judge Marrero's, I guess,

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200-odd-page decision and some other materials, so I have some

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sense of what the case is about, but certainly nothing

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approaching the level of detail that Judge Katz had.

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And I know that there has been a lot

In going through materials, I saw a report letter to

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him that indicates that the parties were submitting joint

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status reports every three months.

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discovery continues, I guess I would ask for the same sort of

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reports.

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And to the extent that

I also found documents that tell me that discovery is

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slated to be completed for the Fairfield defendants by

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September 4th and that discovery for the Standard Chartered

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defendants has already ended, apparently, on May 4, although I

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also saw in PwC's papers a suggestion that the September date

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may not be realistic.

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So let me first ask whether I have the current
discovery schedule correct?

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MR. BARRETT:

Your Honor, this is David Barrett.

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You do have it correct.

With respect to the Standard

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Chartered case, while it is formally consolidated, I believe,

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by an order of Judge Marrero, essentially that case has been
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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proceeding on an entirely separate track and there's been -- I

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don't think that we have had any or very little overlapping

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discovery.

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our depositions but, essentially, that case is being litigated

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separately.

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The Standard Chartered people have attended some of

THE COURT:

Is it accurate that discovery in that case

is complete?

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MR. BARRETT:

As I understand it, fact discovery, I

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believe, is complete.

I think they may be working or have a

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schedule for expert discovery.
THE COURT:

So the September 4th deadline is also a

fact discovery deadline?

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MR. BARRETT:

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THE COURT:

That's correct, your Honor.

I guess that brings us to the letter

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exchange concerning PwC Canada's witnesses.

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appearance for Mr. Maguire, but I don't think I saw the word

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"Netherlands" anyplace in anything that was submitted to Judge

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Katz or me.

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I heard an

Is that accurate?

MR. MAGUIRE:

Your Honor, I believe that is entirely

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accurate, with the only exception being that I believe in some

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of the correspondence somewhere there is a reference, I think,

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in which the plaintiffs refer to PricewaterhouseCoopers

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Netherlands as somehow having engaged in foot-ragging or being

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slow about offering witnesses, and that we take exception to,

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but we didn't burden the Court with any letter.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So that's the

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only exception, I think, to what I just said.
THE COURT:

OK.

Then, Mr. Barrett, I will hear from

you with regard to PwC Canada and its witnesses.

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MR. BARRETT:

Thank you, your Honor.

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Essentially, your Honor, and I am sorry if we found it

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necessary to bother the Court with this, but back in March, PwC

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Canada committed to a deposition schedule which had seven or

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eight key witnesses who were the partners in charge of the

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audit team.

And based on the document review that we did,

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other people who were importantly involved in the audits that

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PwC did in 2006 and 2007 scheduled those depositions for this

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month and next month here in New York, which we appreciate the

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fact that they are bringing witnesses to New York, with one

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exception that was going to be in Toronto because of the

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witness's health.

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unfortunately, had more health problems and we, of course, are

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prepared to put a stall on that deposition until the witness is

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able to testify.

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And it turns out that that witness,

The reason we had asked for those depositions to start

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earlier in March and the reason that PwC Canada gave for

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postponing the depositions is that there is a case which is

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pending in New York Supreme Court before Justice Fried which is

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a derivative action that is brought by the trustee of --

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essentially, the bankruptcy trustee, now the litigation trustee

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for what are called the Greenwich Century funds -- the
SOUTHERN DISTRICT REPORTERS, P.C.
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Greenwich Century funds were two funds that the Fairfield

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Greenwich group ran and they were for domestic, that is, United

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States investors.

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in this case are Fairfield Century -- as opposed to Greenwich

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Century -- and a couple of related funds called Fairfield Sigma

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and Fairfield Lambda.

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10 times as large as -- I'm sorry -- the Fairfield Century

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funds are at least 10 times as large as the domestic Greenwich

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Century funds which are the subject of the state court

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By far the largest funds that are at issue

The Greenwich Century funds are at least

derivative action.
THE COURT:

I take it you are likely soon to have a

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new judge in that because Justice Fried has announced his

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retirement, correct?

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MR. BARRETT:

We are not going to have it.

The

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plaintiff in that case who is represented by the Milberg firm

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will have it.

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In addition, I should point out that, while that case

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is a derivative case and our case, of course, involves direct

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claims by investors against PwC, essentially, the substantive

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issues are, if they are not exactly the same, very similar.

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The question is, it boils down to, were the PwC audits properly

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conducted.

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Back in March when Mr. Duffy presented the schedule

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with PwC depositions in June and July, he was very much aware

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at that time of the New York state action, and I think at that
SOUTHERN DISTRICT REPORTERS, P.C.
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time took a position which made a lot of sense -- it is quoted

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in the footnote of the June 11, 2012 letter which is at tab 2

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of our letter to Judge Katz, now to your Honor, in which he

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points out to counsel for Greenwich Century that they will have

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the PwC documents, that this case is no different from any

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other in which there is ongoing discovery.

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risk that a deposition will have to be reopened; and, third,

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and I think perhaps the most important point, the chances that

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that would actually be necessary in this case are very slim, to

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And there is some

say the least.
Now, it turns out and we learned for the first time

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last week when Mr. Duffy wrote to us canceling these

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depositions that, apparently, the protective order that the

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state court plaintiffs need to work out with the defendants in

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order to get access to the discovery records in our case -- all

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of which we have had access to, obviously, and in the case of

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PwC Canada for quite a long time -- that that protective order,

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for some reason, which I don't know, has never been agreed upon

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and, therefore, the New York plaintiffs have not had access to

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these documents.

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obviously had any control over.

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circumstances, we really don't see any basis for postponing the

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deposition.

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That is not something that we knew about or
But based on those

The other reason which was given by Mr. Duffy is a
couple of letter briefs that his firm and our firm sent to
SOUTHERN DISTRICT REPORTERS, P.C.
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Judge Marrero following the Second Circuit's decision in

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Stephenson v. PricewaterhouseCoopers, essentially asking for

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reconsideration for the second time of Judge Marrero's 250-page

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decision which kept in some of the claims against PwC.

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attached those letters to our letter for your Honor's

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convenience.

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We

I don't know when Judge Marrero will decide that.

THE COURT:

Nor do I, but I should tell you, I did

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call him earlier today, among other reasons, to tell him that

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I'm the new magistrate judge on the case.

And he indicated to

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me that his chambers is working on the application so,

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presumably, it will be sooner rather than later although, like

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you, I don't have a clue when that will be.

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MR. BARRETT:

Nor, frankly, does either side know how

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he is going to decide.

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to argue it to your Honor but that probably wouldn't serve any

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purpose.

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And I think that we both would be happy

What I do think is important, though, is even if PwC

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Canada is dismissed entirely from the case -- and we really

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don't think that is going to happen -- with respect to all the

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claims, particularly the claims based on subsequent investments

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by existing investors where the damages for those claims alone

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are well over a billion dollars, whether or not the claims are

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dismissed, the other parties in the case -- PwC will remain an

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essential party of the case -- essential to the decision of the

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case, whether or not it is a party.

I cannot imagine,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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particularly based on some of the documents that we have now

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seen, that the other defendants, certainly the Fairfield

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Greenwich, the FGG defendants and the CITGO defendants are not

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going to be making contribution claims against PwC or, at the

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very least, saying or arguing that they didn't do anything

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wrong, that it was PwC's audits which caused all of the

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problems and caused the damages to the plaintiffs.

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Unless Mr. Gin is going to say, and I don't think he

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is, that under no circumstances would they make those kind of

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arguments, we are going to essentially have to take the same

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kind of discovery from PwC whether they are in the case or not.

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So while, in theory, the argument that Mr. Duffy makes that the

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depositions will be quite different if there are no claims

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against PwC, I think that's just not realistic.

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explain why he thinks it would be different, but given the

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intensity with which this case has been and is being litigated,

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it seems to me that it is virtually the same deposition whether

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or not PwC is a party.

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Maybe he can

Finally, your Honor, as you have seen, there have been

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a substantial number of depositions in this case.

Contrary to

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what Mr. Duffy has indicated, they have been depositions of key

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fact witnesses, including from CITGO, managing directors of the

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CITGO entity who were also directors of the Fairfield Century

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fund itself.

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of at least three members of the executive committee,

From Fairfield Greenwich we have had depositions

SOUTHERN DISTRICT REPORTERS, P.C.
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depositions of the head of sales, deposition of, essentially,

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the head of finance and of a number of people who use the title

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of partners in the firm.

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Everybody has been contributing.

The other thing that I should say is there have been

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depositions of about 20 witnesses on the plaintiffs' side in

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connection with the class certification process.

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actively discussing additional dates and additional witnesses

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for CITGO in particular and also for Pricewaterhouse

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Netherlands.

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And we are

We are taking the depositions in an order that makes

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sense to us.

We think that we have been diligent in doing

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that.

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realities of some of the document production, it will probably

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be the case that we need to extend that September 4th discovery

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deadline by a couple of months but, again, I don't see why that

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is any reason to wait, in effect, indefinitely to start the

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depositions of PwC Canada.

It is the case that, given where we are and given the

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THE COURT:

Mr. Duffy.

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MR. DUFFY:

Your Honor, I don't disagree in terms of

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the basic facts and much of what Mr. Barrett says, but it won't

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surprise you that I have a little bit different view.

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forth in our letter, our primary reason for seeking to weigh in

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on the depositions --

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THE COURT:

Hang on just a second.

are both having trouble.

As set

The reporter and I

It is not accurate to say that your

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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voice is breaking up, but it sounds like you are too close or

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using a speakerphone or all of the above.

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MR. DUFFY:

Is this a little better?

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THE COURT:

It is.

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MR. DUFFY:

Let me try this.

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The primary reason we are seeking to delay these

Go ahead.

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depositions is because of the Stephenson decision.

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even plaintiffs agree it is bound to have a dramatic effect on

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the claims against PwC and, of course, in our view, it may get

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I think

rid of those claims entirely.

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And given that issue which, hopefully, Judge Marrero

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will address shortly, combined with the fact that for reasons

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that I won't go into, but simply the fact that the plaintiffs

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in the state court litigation are not ready to start discovery

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and those depositions are very likely to be duplicative, as

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Mr. Barrett said, depositions in this matter.

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Justice Fried who is being replaced, by the way, and Judge

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Marrero have ordered all the parties to coordinate their

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discovery to the fullest extent possible.

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And in fact both

By postponing the depositions, to the extent they are

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necessary, we kill two birds with one stone.

We need to

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coordinate on the other litigation so there's not duplicative

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depositions.

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will be extended.

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of months.

Layer on top of that the fact that the schedule
I would be surprised if it is only a couple

Mr. Barrett didn't say how many more depositions he
SOUTHERN DISTRICT REPORTERS, P.C.
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needs to do, but I think the answer is north of 20 at least.

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And I am not faulting him for taking long, it is just a

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complicated case, there are a lot of depositions to take, but

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if it is not going to happen by September, it is not going to

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happen by October.

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Given those circumstances, we feel it makes sense to
defer.

Now the argument is made --

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THE COURT:

Let me just tell you that your voice is

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starting to break up again.

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MR. DUFFY:

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He made the argument that, well, the depositions will

I apologize, your Honor.

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still be necessary in that event and, frankly, I just don't see

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how that is true.

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postponing, waiting to get clarity on the claims, if in fact

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they intend to make claims.

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finger-pointing, for lack of a better word, I very much doubt

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it would require the same level of intensity, the same scope of

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discovery that is currently on the table with the plaintiffs.

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None of the other parties are objecting to

And even if there is a sort of

We are happy to go forward whenever we have to go

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forward, but what we are trying to avoid is having to go

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forward twice and with depositions that turn out to be

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irrelevant because the claims change so much.

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prefer Judge Marrero to resolve the issue one way or the other

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and we proceed.

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that happens and, frankly, that is not prejudicing anyone given

I think we all

We just think it makes sense to wait until

SOUTHERN DISTRICT REPORTERS, P.C.
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the state of the overall schedule.
THE COURT:

Well, my initial thought was, as

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Mr. Barrett said, that there is no stay and, therefore, the

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depositions should go forward immediately, but I am not

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insensitive to what you said in terms of not wanting to do it

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twice in relation to the state court plaintiffs.

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understand that the hang-up there is lack of a confidentiality

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order such that PwC can turn over its documents.

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And I

In some cases where there has been parallel litigation

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in state court and federal court, I have contacted the state

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court judge and have taken on some of the role, I guess, that a

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referee might take in state court and have tried to smooth

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things over.

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be helpful here or not.

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have been averse to my contacting the judge in the commercial

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division, but a confidentiality order would not seem to be a

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heavy lift in terms of moving things along.

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I don't know whether that is something that would

MR. DUFFY:

I have had some cases where people

No, your Honor, it wouldn't.

And,

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frankly, based on email traffic over the last couple of days,

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we hope to get it finalized very soon.

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it is necessary to wait until it is actually entered by the

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court, as long as I have a handshake agreement with the

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plaintiffs in that case, I am happy to give them my documents

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but they have, frankly, been a little slow in getting that

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done, I think, actually, frankly, to give themselves more time

And I don't think that

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to prepare.

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to being resolved.

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soon as I can.

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although we have no objection to it if it turns out to be.

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I am hopeful that that is on track and very close
I am ready to send them my documents as

Hopefully, your involvement won't be necessary,

THE COURT:

As I said, absent a stay, I thought I

would simply order that the depositions go forward.
I think what I am going to do, Mr. Barrett, is hedge

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my bets somewhat and say that they should go forward commencing

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the week of July 16th.

That gives some time for documents to

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be turned over to the Milberg firm, although not a lot of time,

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I suppose and, perhaps, better enables the two cases to be

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coordinated in terms of discovery of PwC.

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But I do agree with Mr. Barrett that this should not

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necessarily await the outcome of Judge Marrero's ruling with

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respect to the Stephenson case.

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increases the likelihood that perhaps Judge Marrero may have

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ruled, but none of us know when that will occur and it could be

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some time away.

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reach a different result, that is going to be my decision.

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So unless somebody gives me a good reason to

MR. DUFFY:
July 16th.

Obviously, parenthetically, it

Your Honor, I believe you said the week of

It was a little hard to understand.

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THE COURT:

Yes.

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MR. BARRETT:

That's what I said.

That would certainly be fine with us.

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We have a couple of depositions that are already scheduled

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after that and I'm sure that we could reschedule the ones that
SOUTHERN DISTRICT REPORTERS, P.C.
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were supposed to take place before that.

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MR. DUFFY:

Yes, your Honor, I would be willing --

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THE COURT:

This is Mr. Barrett?

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MR. BARRETT:

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That was Dave Barrett, your Honor.

I'm

sorry.

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MR. DUFFY:

Your Honor, it is Mr. Duffy.

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Obviously, I would prefer a different result, I think

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that is not an unreasonable solution so we will move forward on

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that basis.

I will conference with Mr. Barrett and his

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partners as to whether they want to speak with those people

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they already have on those days or move everyone back or

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however they want to approach it.

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calendar.

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THE COURT:

We will get those set on the

If you conclude that some other adjustment

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is required, whatever counsel work out, obviously, by agreement

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is fine with me.

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Just for my own education, are there any other issues

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in the offing that you see between now and September 4th other

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than possibly an extension of the fact discovery deadline?

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MR. BARRETT:

Your Honor, this is David Barrett.

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As Mr. Maguire, who is counsel for PwC Netherlands

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indicated, we are concerned that there may be a problem -- I

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certainly am not suggesting that there will be and I hope that

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we can work it out -- in arranging the depositions for PwC

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Netherlands, essentially because, unlike the other parties in
SOUTHERN DISTRICT REPORTERS, P.C.
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the case who were entitled, apparently, under the law to insist

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that depositions occur where the witness is located -- I am not

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sure that that is the case for every witness, it may depend on

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the status of the witness within the organization, but both PwC

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Canada and CITGO have agreed -- CITGO, with certain conditions

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that I think we can work out -- to bring their witnesses to the

7

United States which is obviously a huge savings in time and

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expense for all the parties.

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PwC Netherlands has been unwilling to do that and so

10

far is insisting that the depositions take place in Amsterdam.

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We have asked them to schedule the depositions in such a way

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that if they are going to insist on that -- and, again, it

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seems to me it is inefficient and expensive for them to send

14

lawyers to the Netherlands when one witness could travel

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versus, presumably, a number of lawyers even for their own

16

preparation -- that only maybe two trips or three trips at the

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most overseas would be necessary.

And at least so far, we have

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not been able to accomplish that.

And so, I hope that we will

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be able to, you know, work that out, but that would be the

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issue that was alluded to in my letter.

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MR. MAGUIRE:

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Obviously, it would be much easier for me too if we

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could get everybody to come to New York as Mr. Barrett said.

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Nothing would be easier and more convenient for me.

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Your Honor, this is Bill Maguire.

Our problem is that our witnesses, the people who are
SOUTHERN DISTRICT REPORTERS, P.C.
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with PricewaterhouseCoopers Netherlands, in fact most of the

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people we are talking about are no longer with the firm, they

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are former employees, they are employed by other organizations

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or they are not working now, they are retired or housewives or

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whatever.

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the Netherlands, that's where they live and work.

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obviously, can ask these people to come to New York, but if

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they prefer to be deposed in the Netherlands, that is their

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right.

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They live and those who are employed are employed in
So we,

We have gone back a couple of times now with the

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witnesses.

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Mr. Gregory -- to try to get a more convenient -- we have been

13

given dates twice and we have gone back and forth to try to get

14

better dates, to try to save everybody as much travel and

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inconvenience as possible.

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We have managed to try to consolidate or make back-to-back or

17

approximately back-to-back as many depositions as we can, but

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plaintiff started out asking for 19 witnesses, working through

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about the first dozen.

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And I spoke with Mr. Barrett's partner,

We have had some success in that.

And our problem has been, number 1, our witnesses have

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other commitments; and, number 2, we have been trying to get

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everything done by this September 4 date.

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great deal limited our ability to find dates that are totally

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convenient to everybody.

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the extent that we have some breathing room beyond September 4,

And so that has a

So we have been doing our best, to

SOUTHERN DISTRICT REPORTERS, P.C.
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I think that might make it a lot easier for us to try to save

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everybody a lot of unnecessary travel.

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And I think if Judge Marrero's decision comes down and

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it turns out there are a lot of witnesses who don't need to be

5

deposed, that would obviously save a tremendous amount of

6

trouble.

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it is in our interests to keep the expense down and keep the

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unnecessary travel down and within the parameters of the

9

discovery cutoff and for what plaintiffs reasonably want and

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So we will continue to work with plaintiffs because

need, but we will do our best.

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THE COURT:

Confer with Mr. Barrett and if there is a

12

schedule that goes beyond September 4 but it is in everybody's

13

interest because it reduces to, say, two trips the number of

14

times attorneys need to go to the Netherlands, that is

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certainly something I would probably look favorably upon.

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failing that, I am sure that Mr. Barrett wants to move his case

17

along.

But

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MR. BARRETT:

Yes, thank you, your Honor.

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And I appreciate Mr. Maguire's cooperation, but people

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who are no longer working, in particular, I think that they

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would find an expense-paid trip to New York to be a nice perk,

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but maybe they like it better in Amsterdam.

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THE COURT:

And maybe they have been to New York in

August.
MR. BARRETT:

We had better make it September then.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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C6IUANWC
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THE COURT:

The only other question I had is, in large

2

cases I often schedule periodic in-court conferences just to

3

see how we are doing.

4

pattern here.

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prefer?

6

early August just to see how you are doing?

That doesn't seem to have been the

Does that make sense or what would counsel

By way of example, should I be scheduling something in

7

MR. BARRETT:

Your Honor, this is David Barrett.

8

I am not sure that it is necessary in this case.

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There's been, as you said earlier, a lot of water under the

10

bridge, but given where we are now, I am not sure that it is

11

necessary or at least necessary at that point.

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THE COURT:

OK.

That's fine.

13

So then I will wait to hear from counsel as to

14

whatever other issues arise, and I will expect that I will

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likely hear something about the fact discovery schedule.

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you do make an application to me to adjust the fact discovery

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schedule, play it out and also give me an expert discovery

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schedule deadline at the same time.

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Anything else from anyone?

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OK.

Thank you all.

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o

0

o

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

If