Anwar et al v. Fairfield Greenwich Limited et al

Filing 91

MEMORANDUM OF LAW in Support re: #90 MOTION to Remand.. Document filed by Frank E. Pierce, Frank E. Pierce Ira. (Wallner, Robert)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------­­­­­­­­x : ANWAR, et al. v. FAIRFIELD GREENWICH : LIMITED, et al. : : : ----------------------------------­­­­­­­­x

Master File No. 09 CV 0118 (VM) 09 CV 2588 (VM) (Pierce Action)

PIERCE PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION (i) TO REMAND, (ii) TO STRIKE THORNE DECLARATION AND (iii) TO VACATE CONSOLIDATION ORDER

MILBERG LLP One Pennsylvania Plaza New York, New York 10119 Tel.: [phone] Fax: [phone] SEEGER WEISS LLP One William Street New York, New York 10004 Tel.: [phone] Fax: [phone] Attorneys for Plaintiffs

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND..........................................................................................................2 ARGUMENT...................................................................................................................................3 I. THE COURT SHOULD REMAND THE ACTION FOR LACK OF SUBJECT MATTER JURISDICTION .................................................................................................3 A. B. Defendant Bears the Burden of Proof......................................................................3 This is Not a "Class Action"....................................................................................4 1. 2. C. D. E. II. III. The "Filing" Requirement is Not Met .........................................................4 The 100-Person Requirement is Not Met ....................................................5

This is Not a "Mass Action" ....................................................................................6 CAFA's Exclusions Preclude Jurisdiction...............................................................8 Plaintiffs Should be Awarded Costs ........................................................................9

THE COURT SHOULD STRIKE THE THORNE DECLARATION..............................10 THE COURT SHOULD VACATE THE CONSOLIDATION ORDER..........................11

CONCLUSION..............................................................................................................................12

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TABLE OF AUTHORITIES CASES Page Blockbuster, Inc. v. Galeno, 472 F.3d 53 (2d Cir. 2006).................................................................................3, 4, 5, 8 Broome v. ML Media Opportunity Partners L.P., 273 A.D.2d 63, 709 N.Y.S.2d 59 (1st Dep't 2000) ........................................................5 Caterpillar Inc. v. Williams, 482 U.S. 386 (1987).......................................................................................................4 Chiropractic Neurodiagnostic, P.C. v. Allstate Ins. Co., No. 08-CV-2319, 2009 U.S. Dist. LEXIS 5822 (E.D.N.Y. Jan. 26, 2009) ..................3 Continental Cas. Co. v PricewaterhouseCoopers, LLP, 57 A.D.3d 411, 869 N.Y.S.2d 506 (1st Dep't 2008)......................................................6 DiTolla v. Doral Dental IPA of New York, LLC, 469 F.3d 271 (2d Cir. 2006)...........................................................................................3 Fisher v. Beverly Enters., Inc., No. 05-CV-00316, 2005 U.S. Dist. LEXIS 38870 (E.D. Ark. Dec. 12, 2005)..........3, 5 Galstaldi v. Sunvest Cmtys. USA, LLC, No. 08-CV-62076, 2009 U.S. Dist. LEXIS 16777 (S.D. Fla. Feb. 17, 2009) ...............7 John Hancock Prop. and Cas. Ins. Co. v. Universale Ins. Co., 147 F.R.D. 40 (S.D.N.Y.) ............................................................................................10 Kramer v. Western Pac. Indus., Inc., 546 A.2d 348 (Del. 1988) ..............................................................................................6 Litman v. Prudential-Bache Prop., Inc., 611 A.2d 12 (Del. Ch. 1992)..........................................................................................5 Lupo v. Human Affairs Int'l, 28 F.3d 269 (2d Cir. 1994).............................................................................................3 Martin v. Franklin Capital Corp., 546 U.S. 132 (2005).......................................................................................................9 Mattera v. Clear Channel Commc'ns, Inc., 239 F.R.D. 70 (S.D.N.Y. 2006) .....................................................................................5 ii

Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804 (1986).......................................................................................................5 Estate of Pew v. Cardarelli, 527 F.3d 25 (2d Cir. 2008).............................................................................................9 Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399 (1st Cir. 1988) .......................................................................................10 St. Clair Shores Gen. Employees Ret. Sys. v. Eibeler, No. 06-CV-688, 2006 U.S. Dist. LEXIS 72316 (S.D.N.Y. Oct. 4, 2006) ...................11 Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988) ........................................................................................10 Sung v. Wasserstein, 415 F. Supp. 2d 393 (S.D.N.Y. 2006)........................................................................4, 6 Tanoh v. Dow Chem. Co., No. 09-55138, 2009 U.S. App. LEXIS 6931 (9th Cir. Mar. 27, 2009) ........................7 In re Textainer P'ship Sec. Litig., No. 05-CV-0969, 2005 U.S. Dist. LEXIS 26711 (N.D. Cal. July 27, 2005)...........9, 11 Wahad v. FBI, 179 F.R.D. 429, 435 (S.D.N.Y. 1998) ........................................................................10 STATUTES AND RULES 15 U.S.C. § 77p(f)(2)(A)......................................................................................................7 28 U.S.C. § 1332........................................................................................................ passim 28 U.S.C. §1447(c) ..............................................................................................................9 Fed. R. Evid. 602 ...............................................................................................................10 N.Y. Civ. Prac. Law & Rules, Article 9 ..............................................................................4

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MISCELLANEOUS Bender's Federal Practice Forms, Form No. 23.1:11 ........................................................7 Bender's Forms of Pleading of the State of New York, Form No. 6:13...............................7 West's McKinney's Forms, Derivative Actions, § 8:2.........................................................8

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INTRODUCTION Plaintiffs Frank E. Pierce and Frank E. Pierce IRA, limited partners of nominal defendant Greenwich Sentry Partners, L.P. ("Greenwich Sentry" or the "Fund"), filed this derivative action (09 Civ. 2588) on behalf of the Fund in the New York Supreme Court, County of New York. ¶ 1. 1 Defendant Fairfield Greenwich Advisors LLC ("FGA") improperly removed the action to this Court, invoking the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). Plaintiffs acknowledge that CAFA grants federal courts subject matter jurisdiction over certain class actions, but it manifestly does not confer such jurisdiction over derivative actions. Although FGA seeks to re-characterize (or, more accurately, mischaracterize) this action as a class action, nothing in CAFA permits such tactics. Because this is not a class action, there is no jurisdiction. Accordingly, the case should be remanded. The Court also should strike the two-paragraph declaration of Michael Thorne submitted in support of the removal. See Dkt. No. 1, Exhibit B. As shown below, the declaration is impermissibly conclusory and rank hearsay. Finally, the Court should vacate its March 31, 2009 Order (Dkt. No. 5), consolidating this action with the class action litigation, Anwar v. Fairfield Greenwich Group, 09 CV 0118 (VM) ("Anwar"). See generally Anwar Consolidation Order, Dkt. No. 21-2, ¶ 7, 09 CV 0118. As

1

References to "¶ __" are to the "Limited Partners' Derivative Complaint" ("Complaint"), annexed as Exhibit A to the Notice of Removal, filed March 19, 2009. See Dkt. No. 1, 09 CV 2588. Docket Numbers ("Dkt. No. __"), unless otherwise stated, refer to entries in 09 CV 2588.

shown below, consolidation is inappropriate because, among other things, plaintiffs' counsel in the Anwar class action would have a conflict in prosecuting the derivative claims in this action. 2 FACTUAL BACKGROUND On February 17, 2009, plaintiffs, limited partners of nominal defendant Greenwich Sentry, filed a "Limited Partners' Derivative Complaint" on behalf of Greenwich Sentry. Greenwich Sentry is a limited partnership organized under the laws of Delaware, with principal offices in New York City. ¶ 15. The defendants include, among others, Fairfield Greenwich (Bermuda) Ltd., which serves as the Fund's general partner, ¶ 17, and Fairfield Greenwich Advisors LLC, which provides administrative services for the Fund. ¶ 18. As alleged in the Complaint, in violation of their fiduciary duties, defendants mismanaged the Fund's business. In December 2008, Bernard Madoff admitted to government authorities that he had been running a multi-billion dollar Ponzi scheme through his firm, Bernard L. Madoff Investment Securities, LLC ("BMIS"). ¶ 2. All or almost all of the Fund's assets had been invested with Madoff and BMIS, ¶ 5, and it is believed that nearly all of those assets have been lost. Id. Plaintiffs allege that the defendants, who have pocketed hundreds of millions of dollars in management, incentive and administrator fees, ¶ 7, breached or aided and abetted breaches of duties owed to the Fund. Among other things, defendants failed to "safely manage the Fund's assets," ¶¶ 81(a), 90(a), 93(a), 97(a), and to investigate "red flags" regarding BMIS. ¶¶ 81(c), 90(c), 93(c), 97(c).

The undersigned counsel also represent plaintiff in Ferber v. Fairfield Greenwich Group, 09 CV 2366 (VM). On April 8, 2009, counsel filed a motion to remand and vacate a consolidation order in that case.

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ARGUMENT I. THE COURT SHOULD REMAND THE ACTION FOR LACK OF SUBJECT MATTER JURISDICTION A. Defendant Bears the Burden of Proof

The Second Circuit has held that, under CAFA, defendant bears the burden of establishing subject matter jurisdiction. Blockbuster, Inc. v. Galeno, 472 F.3d 53, 58 (2d Cir. 2006) ("we hold that CAFA did not change the traditional rule and that defendant bears the burden of establishing federal subject matter jurisdiction"); see also DiTolla v. Doral Dental IPA of New York, LLC, 469 F.3d 271, 275 (2d Cir. 2006). The defendant can meet its burden only by "prov[ing] to a reasonable probability" that CAFA's requirements have been satisfied. See Blockbuster, 472 F.3d at 59. In determining whether a defendant has met its burden, the Court should be mindful of the strong presumption against removal. "In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability." Lupo v. Human Affairs Int'l, 28 F.3d 269, 274 (2d Cir. 1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)); see Chiropractic Neurodiagnostic, P.C. v. Allstate Ins. Co., No. 08-CV-2319, 2009 U.S. Dist. LEXIS 5822, at *7-8 (E.D.N.Y. Jan. 26, 2009) (remanding case removed under CAFA, explaining that "any doubts" must be "resolved against removability `out of respect for the limited jurisdiction of the federal courts and the rights of states.'") (quoting In re Methyl Tertiary Butyl Ether ("MTBE") Prods., 488 F.3d 112, 124 (2d Cir. 2007)); Fisher v. Beverly Enters., Inc., No. 05-CV-00316, 2005 U.S. Dist. LEXIS 38870, at *3 (E.D. Ark. Dec. 12, 2005). Here, defendants cannot meet their burden.

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B.

This is Not a "Class Action"

CAFA establishes federal subject matter jurisdiction over class actions that meet certain requirements, including those relating to the amount in controversy, class size and diversity. See 28 U.S.C. § 1332(d). To qualify as a "class action" under CAFA, the case must have been "filed under" Rule 23 of the Federal Rules of Civil Procedure, or a state law counterpart. See 28 U.S.C. § 1332(d)(1)(B). 3 Also, there must be at least 100 members of the proposed class. See 28 U.S.C. 1332(5)(B). 4 As shown below, these requirements are not met here. 1. The "Filing" Requirement is Not Met

It is undisputed that the action was not "filed under" Rule 23 or a state law counterpart. 5 It was filed as a derivative action. 6 Thus, it does not qualify as a class action under CAFA. See

3

Section 1332(d)(1)(B) states: the term "class action" means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action ....

28 U.S.C. § 1332(d)(1)(B).
4

Section 1332(d)(5)(B) provides: Paragraphs (2) through (4) [28 U.S.C. §§ 1332(d)(2) - (4)] shall not apply to any class action in which *** the number of members of all proposed plaintiff classes in the aggregate is less than 100.

28 U.S.C. § 1332(d)(5)(B). See Blockbuster, 472 F.3d at 57 (the 100-person requirement is a "prerequisite[]" for CAFA jurisdiction).
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See generally N.Y. Civ. Prac. Law & Rules, Article 9 (Class Actions).

FGA acknowledges that fact. See Notice of Removal, at ¶ 1 (the case was brought as a "putative derivative action"). As the "master of the complaint," plaintiff gets to choose how to plead. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 387 (1987); see also Sung v. Wasserstein, 415 F. Supp. 2d 393, 398 (S.D.N.Y. 2006) (Marrero, J.) ("[A] plaintiff, as master of her complaint, is free to avoid federal jurisdiction by pleading only state claims even where a federal claim is also available") (internal quotations and citation omitted). "Jurisdiction may not
[footnote continued]

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Beverly Enters., 2005 U.S. Dist. LEXIS 38870, at *5 (remanding case removed under CAFA: "Because the lawsuit was not filed under Rule 23 or a similar state statute as a class action, this Court has no jurisdiction."); see generally Blockbuster, 472 F.3d at 56 (explaining that section 1332(d)(1) "defines a class action as any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or a similar state rule ...."); compare with Mattera v. Clear Channel Commc'ns, Inc., 239 F.R.D. 70, 78 (S.D.N.Y. 2006) (action qualified as "class action" under CAFA where plaintiff filed suit "on her own behalf and on behalf of a class of persons under [Fed. R. Civ. P.] 23(a), (b)(2), and (b)(3).") (brackets in original). 2. The 100-Person Requirement is Not Met

Even assuming, arguendo, that this case had been "filed" as a class action, it still would not satisfy CAFA's 100-person requirement. Although FGA argues that the action was brought to benefit the Fund's limited partners, see Notice of Removal ¶ 6(e), FGA's counsel has represented that the Fund has just 29 current limited partners, and 5 former limited partners. See Exhibit A to April 14, 2009 Declaration of Robert A. Wallner, Esq., filed herewith. Thus, even under defendant's argument, the 100-person requirement is not met.

be sustained on a theory that the plaintiff has not advanced." Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 810 n.6 (1986). Whether direct, non-derivative claims are available to the Fund's investors is thus beside the point. But see Broome v. ML Media Opportunity Partners L.P., 273 A.D.2d 63, 64, 709 N.Y.S.2d 59, 60 (1st Dep't 2000) (limited partners lacked standing to assert class action claims that "allege no more other than the mismanagement and diversion of assets, and do not implicate any injury to plaintiffs distinct from the harm to the partnership.") (citations omitted); Litman v. Prudential-Bache Props., Inc., 611 A.2d 12, 16 (Del. Ch. 1992) (holding that lawsuit, although brought as class action, was really a derivative action, noting that the "gist" of the complaint was that "the general partners breached their fiduciary duties by inadequately investigating and monitoring investments and by placing their interests in fees above the interest of the limited partners.").

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C.

This is Not a "Mass Action"

Under CAFA, if an action is not a "class action" under section 1332(d)(1)(B), it still may be "deemed" one if it is a "mass action" that otherwise satisfies the requirements of 28 U.S.C. §§ 1332(d)(2)-(10). See 28 U.S.C. § 1332(d)(11)(A). CAFA defines a "mass action" as any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under [section 1332](a). 28 U.S.C. § 1332(d)(11)(B) (emphasis added). But here, the claims are derivative claims on behalf of the nominal defendant. Thus, the action does not assert individual claims (monetary or otherwise) of 100 persons -- much less claims of 100 persons that are proposed to be tried jointly. See generally Continental Cas. Co. v PricewaterhouseCoopers, LLP, 57 A.D.3d 411, 869 N.Y.S.2d 506, 507 (1st Dep't 2008) ("Even if plaintiff limited partners' claims of fraudulent inducement are sufficient, as a legal matter, to support a direct claim against the partnership's auditor, ... they failed to submit evidence to raise an issue of fact in opposition to defendant's prima facie showing that the damages claimed all emanated from losses that took place after the initial investment, did not affect plaintiffs differently from other limited partners, and were therefore derivative ....") (emphasis added) (citations omitted); Kramer v. Western Pac. Indus., Inc., 546 A.2d 348, 353 (Del. 1988) ("Delaware courts have long recognized that actions charging `mismanagement which depress[] the value of stock [allege] a wrong to the corporation; i.e., the stockholders collectively, to be enforced by a derivative action.'") (brackets in original, citations omitted); cf. Sung v. Wasserstein, 415 F. Supp. 2d 393, 408 (S.D.N.Y 2006) (Marrero, J.) (remanding derivative

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lawsuit that had been removed under Securities Litigation Uniform Standards Act ("SLUSA"), noting that the case was "not a class action"). 7 See also Section B.2., above. The absence of 100 claimants in the Complaint thus is fatal to any "mass action" approach. See Tanoh v. Dow Chem. Co., No. 09-55138, 2009 U.S. App. LEXIS 6931, at *20-21 (9th Cir. Mar. 27, 2009) (affirming remand: CAFA's "mass action" provision did not permit removal of cases, each of which asserted claims of fewer than 100 plaintiffs); compare with Galstaldi v. Sunvest Cmtys. USA, LLC, No. 08-CV-62076, 2009 U.S. Dist. LEXIS 16777, at *6 (S.D. Fla. Feb. 17, 2009) (action was "mass action" where, inter alia, "[t]he Complaint on its face names 177 individual Plaintiffs, thereby appearing to satisfy the numerosity requirement."). Moreover, because the claims are derivative, no plaintiff -- much less 100 persons -could satisfy the $75,000 jurisdictional amount required under 28 U.S.C. § 1332(a). Accordingly, there is no jurisdiction here. 8

SLUSA requires, inter alia, that the lawsuit (or group of lawsuits) seek damages "on behalf of more than 50 persons ...." See 15 U.S.C. § 77p(f)(2)(A). In Sung, the Court found that SLUSA's "conditions [had] not been satisfied" with respect to the derivative action. 415 F. Supp. 2d at 408, see id. at 407 ("None of these conditions are met here."). According to FGA, "the Complaint alleges that Plaintiffs have suffered damages based on the alleged mismanagement of $9 million." See Notice of Removal, at ¶ 6(f) (emphasis added). But the Complaint does not describe those amounts as damages suffered by plaintiffs. Moreover, the fact that limited partners may indirectly benefit from the successful prosecution of the litigation (in the sense that they are investors in an entity on whose behalf the derivative action is litigated) does not change the fact that this is a derivative action and not a class action. Indeed, conventional pleading practices recognize that investors can benefit from a derivative action. See Bender's Forms of Pleading of the State of New York, Form No. 6:13, Allegations in Shareholders' Derivative Action, ¶ 1 (available on LEXIS; jurisdiction: New York; source categories: Forms) ("[P]laintiff was and still is a stockholder of the defendant ... and sues on behalf of himself (or herself) and all other stockholders of the defendant corporation."); Bender's Federal Practice Forms, Form No. 23.1:11, Complaint in Stockholder's Suit Based on Conspiracy to Waste and Misappropriate Assets, ¶ 3 (available on LEXIS; jurisdiction: Federal; source categories: Forms) (form for derivative complaint under Fed. R. Civ. P. 23.1: "Plaintiffs bring this action on behalf of themselves and all other stockholders of _______ [name of first
[footnote continued]
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D.

CAFA's Exclusions Preclude Jurisdiction

Even assuming, arguendo, that this were a class action that otherwise satisfied CAFA's requirements, jurisdiction still would be unavailable because the claims of the class hypothesized by FGA implicate the internal affairs of the nominal defendant, Greenwich Sentry, and the duties that defendants owed it. CAFA excludes such claims from its reach. Specifically, CAFA provides that subject matter jurisdiction under section § 1332(d)(2) "shall not apply to any class action that solely involves a claim" that relates to the internal affairs or governance of a corporation or other form of business enterprise and that arises under or by virtue of the laws of the State in which such corporation or business enterprise is incorporated or organized .... 28 U.S.C. § 1332(d)(9)(B). In this case, the claims arise under state law and quintessentially relate to the "internal affairs or governance" of Greenwich Sentry, including defendants' mismanagement of the Fund's affairs and their failure to discharge their fiduciary duties.9 As such, even if this were a class action (it is not), there would be no jurisdiction under section 1332(d)(2)(B). As the Northern District of California court explained in finding that CAFA jurisdiction was unavailable under section 1332(d)(9)(B): corporate defendant] similarly situated."); West's McKinney's Forms, Derivative Actions, § 8:2 (available on Westlaw; database: MCF-BCL; citation text: MCF Business 8:2) (form for derivative complaint under N.Y. Bus. Corp. Law § 626: "The plaintiff ..., complaining of the defendants, in the right of [name of defendant corporation], to procure a judgment in its favor, and suing on behalf of all the shareholders thereof similarly situated, respectfully shows and alleges ....").
9

In Blockbuster, the Second Circuit raised, but did not resolve, the issue as to which party bears the burden of proof concerning CAFA's "exceptions" under 28 U.S.C. §§ 1332(d)(3) and (5). See 472 F.3d at 58. Plaintiff submits that, as to 28 U.S.C. § 1332(d)(9)(B), defendants bear the burden of proof. The issue, however, is academic here because even if plaintiff bears the burden, it has been satisfied.

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[P]laintiff alleges defendants, in their role as general partners of the Textainer partnerships, (1) rendered the sale of the assets of the partnerships "fundamentally unfair" to the limited partners by demanding that all potential bidders agree to enter into a management contract with one of the defendants, (2) rendered the sale "fundamentally unfair" to the limited partners by undervaluing Textainer's assets, and (3) gained support for the sale by distributing materially misleading proxy statements to the limited partners. Each of these alleged acts affects plaintiff and the other limited partners solely in their capacity as limited partners of the Textainer partnerships. Indeed, plaintiff essentially claims that defendants "fraudulent[ly] or negligent[ly] mismanage[d]" the partnership's affairs, and "unlawfully profit[ed] at the [partnership's] expense." Moreover, the fiduciary duties allegedly breached arise solely because of the parties' relationship as partners of the Textainer partnerships. In re Textainer P'ship Sec. Litig., No. 05-CV-0969, 2005 U.S. Dist. LEXIS 26711, at *19-20 (N.D. Cal. July 27, 2005) (brackets in original, citations omitted). 10 E. Plaintiffs Should be Awarded Costs

Under 28 U.S.C. §1447(c), the court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." In evaluating such relief, the Court properly considers whether the removing party "lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Here, there was no reasonable basis for the removal. To the contrary, it was pure stratagem. Accordingly, plaintiffs should be awarded costs. We also submit that, even if this were a class action under CAFA, jurisdiction also would be unavailable because of section 1332(d)(9)(C). That section provides that section 1332(d)(2) "shall not apply to any class action that solely involves a claim ... that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder)." 28 U.S.C. § 1332(d)(9)(C). See Textainer P'ship, 2005 U.S. Dist. LEXIS 26711, at *24 (§ 1332(d)(9)(C) applied "[b]ecause the sole claim in the Labow action concerns, exclusively, `fiduciary duties relating to or created by or pursuant to' the limited partnership interests in the Textainer partnerships, and those interests are securities"); Estate of Pew v. Cardarelli, 527 F.3d 25, 35-38 (2d Cir. 2008) (Poller, J., dissenting). We are aware that our position is contrary to the Panel's majority ruling in Pew, see 527 F.3d at 31-32, and respectfully submit that the majority erred. Nonetheless, we raise the issue now to preserve it for possible appellate review and rectification.
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II.

THE COURT SHOULD STRIKE THE THORNE DECLARATION The two-paragraph declaration of FGA Managing Director and Associate General

Counsel Michael Thorne (Exhibit B to Notice of Removal, see Dkt. No. 1) should be stricken. The declaration states: Based on records and information obtained by Greenwich Sentry Partners, L.P., the number of persons who allegedly suffered damages in the proposed class exceeds 100. Thorne Decl. ¶ 2. "A vaguer and more conclusory affidavit is hard to imagine." Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988). Indeed, Thorne fails to disclose such basic information as the criteria used to calculate the 100-plus number, any description of the 100-plus persons, or how he determined that each of those persons was allegedly damaged. For that reason, the declaration should be stricken. See Wahad v. FBI, 179 F.R.D. 429, 435 (S.D.N.Y. 1998) Moreover, Thorne's declaration admits that the 100-plus number (however calculated) is based on records and information obtained by the Fund -- none of which have been identified. The declaration thus is rank hearsay and should be stricken for that reason as well. See John Hancock Prop. and Cas. Ins. Co. v. Universale Ins. Co., 147 F.R.D. 40, 44-45 (S.D.N.Y. 1993) (refusing to consider managing director's affidavit, where his statements were based on a review of his company's records and other documents); Wahad, 179 F.R.D. at 435 (striking portions of lawyer's affidavit that were "fraught with improper legal conclusions, ultimate facts, conclusory statements, and inadmissible hearsay."); see generally Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) ("[A] hearsay affidavit is not a substitute for the personal knowledge of a party.") (citations omitted); Fed. R. Evid. 602.

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III.

THE COURT SHOULD VACATE THE CONSOLIDATION ORDER By Order dated March 31, 2009, the Court consolidated this derivative action with the

Anwar class action litigation "for all purposes." 11 In accordance with paragraph 7 of the January 27, 2009 Order in Anwar, plaintiffs move to vacate the consolidation order. It should be vacated for two reasons. First, as shown above, there is no subject matter jurisdiction here. In the absence of such jurisdiction, the consolidation order should be vacated. See Textainer P'ship, 2005 U.S. Dist. LEXIS 26711, at *32. Second, prosecution of these derivative claims by the class action plaintiffs and their counsel in the Anwar federal class action would create an impermissible conflict of interest. See St. Clair Shores Gen. Employees Ret. Sys. v. Eibeler, No. 06-CV-688, 2006 U.S. Dist. LEXIS 72316, at *23 (S.D.N.Y. Oct. 4, 2006) ("Courts in this Circuit have long found that plaintiffs attempting to advance derivative and direct claims in the same action face an impermissible conflict of interest.") (citing authorities). For that reason alone, consolidation is not appropriate.

See Dkt. No. 5. Subsequently, by Order filed April 6, 2009, the Court indicated that the consolidation was for the purposes of promoting "coordination of discovery and other pretrial proceedings." See Dkt. No. 7.

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CONCLUSION For the foregoing reasons, the case should be remanded to state court, the Thorne declaration should be stricken, and the consolidation order should be vacated. Dated: April 14, 2009 /s/ Robert A. Wallner Robert A. Wallner (RW-5109) Kent A. Bronson (KB-4906) Kristi Stahnke McGregor (KM-1575) MILBERG LLP One Pennsylvania Plaza New York, New York 10119 Tel.: [phone] Fax: [phone] [e-mail] [e-mail] [e-mail] Stephen A. Weiss James E. O'Brien III Christopher M. Van de Kieft SEEGER WEISS LLP One William Street New York, New York 10004 Tel.: [phone] Fax: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs

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