Anwar et al v. Fairfield Greenwich Limited et al
Filing
978
ANSWER to Complaint. Document filed by Standard Chartered Bank International (Americas) Limited.(Nelles, Sharon)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- x
)
PASHA ANWAR, et al.,
)
)
Plaintiffs,
)
v.
)
)
)
FAIRFIELD GREENWICH LIMITED, et al.,
)
)
Defendants.
)
This Document Relates To: Blockbend Ltd. v. Standard )
Chartered Bank International (Americas) Ltd., No. 11-cv- )
)
7650.
)
-----------------------------------------------------------------------x
Master File No. 09-CV-118 (VM)
Standard Chartered Bank International (Americas) Limited’s
Answer and Defenses to the Complaint
Defendant Standard Chartered Bank International (Americas) Limited (“SCBI”),
through its undersigned counsel, hereby responds as follows to the Complaint, based on present
knowledge. SCBI reserves the right to supplement and amend this Answer and to add additional
defenses of which it becomes aware.
I.
ANSWER
Nature of the Action
1.
SCBI denies the allegations of paragraph 1, except admits that plaintiff invested
in Fairfield Sentry (“Sentry”). SCBI avers that, pursuant to the Court’s September 12, 2012
Order, plaintiff’s claims for fraudulent concealment and negligence have been dismissed.
-1-
(Dkt. No. 937.1) SCBI also avers that Standard Chartered PLC acquired American Express Bank
Ltd. (“AEBL”) from the American Express Company in or about February 2008. SCBI avers
that AEBL was renamed Standard Chartered International (USA) Ltd. and that American
Express Bank International (“AEBI”) was renamed SCBI.
2.
SCBI denies the allegations of paragraph 2, except admits that plaintiff purports
to describe events occurring in December 2008 regarding the fraud perpetrated by Bernard L.
Madoff and BLMIS.
3.
SCBI denies the allegations of paragraph 3.
4.
SCBI denies knowledge or information sufficient to form a belief as to the truth of
the allegations of paragraph 4, and therefore denies them.
5.
SCBI denies the allegations of paragraph 5.
6.
SCBI denies the allegations of paragraph 6.
7.
SCBI denies the allegations of paragraph 7, except admits that plaintiff was
charged standard fees.
8.
SCBI denies the allegations of paragraph 8.
Parties, Jurisdiction and Venue
9.
SCBI denies knowledge or information sufficient to form a belief as to the truth of
the allegations of paragraph 9 and therefore denies them, except admits that plaintiff is organized
and exists under the laws of the British Virgin Islands.
10.
SCBI denies the allegations of paragraph 10, except admits that it is a corporation
authorized to do business in Florida, with a place of business at 1111 Brickell Avenue, Miami,
Florida 33131.
1
All citations to docket entries refer to the master docket, No. 09-118, unless otherwise
noted.
-2-
11.
SCBI admits: (i) Standard Chartered PLC is the direct parent of Standard
Chartered Holdings Limited; (ii) Standard Chartered Holdings Limited is the direct parent of
Standard Chartered Bank; and (iii) Standard Chartered Bank is the direct parent of SCBI.
12.
SCBI admits the allegations of paragraph 12.
13.
SCBI denies the allegations of paragraph 13, except admits that: (i) plaintiff
purports to base venue for this action on 28 U.S.C. § 1391; and (ii) SCBI conducts business
within the Southern District of Florida.
14.
SCBI denies the allegations of paragraph 14, except admits that it conducts
business within the Southern District of Florida.
Factual Allegations
15.
SCBI admits: (i) plaintiff was a client of Schroder & Co. Trust Bank
(“Schroder”); and (ii) in or around 1998, Tirso Morales was an account manager at Schroder.
16.
SCBI denies the allegations of paragraph 16.
17.
SCBI admits: (i) the private banking division of Schroder was sold to AEBL; and
(ii) Tirso Morales was a relationship manager at AEBI.
18.
SCBI denies the allegations of paragraph 18, except admits: (i) Standard
Chartered PLC acquired AEBL from the American Express Company in or about February 2008;
and (ii) Tirso Morales was a relationship manager at SCBI.
19.
SCBI denies the allegations of paragraph 19, except admits that plaintiff held
accounts at Schroder, AEBI and SCBI.
20.
SCBI denies knowledge or information sufficient to form a belief as to the truth of
the allegations of paragraph 20 and therefore denies them, except admits that Tirso Morales met
with representatives of plaintiff.
21.
SCBI denies the allegations of paragraph 21.
-3-
22.
SCBI denies the allegations of paragraph 22.
23.
SCBI denies the allegations of paragraph 23.
24.
SCBI denies the allegations of paragraph 24, except admits that Sentry was
generally regarded as a safe investment.
25.
SCBI denies the allegations of paragraph 25, except admits that AEBI conducted
due diligence on Sentry.
26.
SCBI denies the allegations of paragraph 26, except admits that Sentry was
generally regarded as a safe investment.
27.
SCBI denies the allegations of paragraph 27.
28.
SCBI denies the allegations of paragraph 28, except admits that Sentry invested
substantially all of its assets with BLMIS.
29.
SCBI denies the allegations of paragraph 29.
30.
SCBI denies the allegations of paragraph 30, except admits that in or around
2004, plaintiff purchased shares of Sentry for approximately $250,000.
31.
SCBI denies knowledge or information sufficient to form a belief as to the truth of
the allegations of paragraph 31 and therefore denies them, except admits: (i) Tirso Morales from
time to time conducted meetings with representatives of plaintiff; and (ii) in or around mid-2008,
plaintiff purchased approximately 148.2 additional shares of Sentry for approximately $200,000.
32.
SCBI denies the allegations of paragraph 32.
33.
SCBI denies the allegations of paragraph 33.
34.
SCBI denies the allegations of paragraph 34.
35.
SCBI denies the allegations of paragraph 35.
36.
SCBI denies the allegations of paragraph 36.
-4-
37.
SCBI denies the allegations of paragraph 37, except admits that plaintiff invested
in Sentry.
38.
SCBI denies the allegations of paragraph 38.
39.
SCBI denies the allegations of paragraph 39, except admits that plaintiff held
investments in Sentry in or around December 2008.
40.
SCBI denies the allegations of paragraph 40.
41.
The allegations of paragraph 41 contain a legal conclusion to which no response
is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 41.
42.
The allegations of paragraph 42 contain a legal conclusion to which no response
is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 42.
43.
The allegations of paragraph 43 contain a legal conclusion to which no response
is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 43.
44.
SCBI denies the allegations of paragraph 44.
45.
SCBI denies the allegations of paragraph 45, except admits that plaintiff purports
to describe certain information reflected on a website entitled “STEP Wealth Directory.” SCBI
respectfully refers the Court to the unnamed portions of this website for a complete and accurate
description of their contents.
46.
SCBI denies the allegations of paragraph 46, including paragraphs 46(a)-(e),
except admits that plaintiff purports to describe certain information reflected on Standard
-5-
Chartered Bank’s website. SCBI respectfully refers the Court to the unnamed portions of this
website for a complete and accurate description of their contents.
47.
SCBI denies the allegations of paragraph 47, except admits that plaintiff purports
to describe certain information reflected on Standard Chartered Bank’s website. SCBI
respectfully refers the Court to the unnamed portions of this website for a complete and accurate
description of their contents.
48.
SCBI denies the allegations of paragraph 48, except admits that plaintiff purports
to describe certain information reflected on Standard Chartered Bank’s website under a heading
entitled “Responsible Selling and Marketing.” SCBI respectfully refers the Court to this website
for a complete and accurate description of its contents.
49.
SCBI denies the allegations of paragraph 49.
50.
SCBI denies the allegations of paragraph 50.
51.
SCBI denies the allegations of paragraph 51.
52.
SCBI denies knowledge or information sufficient to form a belief as to the truth of
the allegations of paragraph 52, and therefore denies them, except admits that Sentry placed
substantially all of its assets in BLMIS.
53.
SCBI denies the allegations of paragraph 53.
54.
SCBI denies the allegations of paragraph 54.
55.
SCBI denies the allegations of paragraph 55.
56.
The allegations of paragraph 56 contain an opinion to which no response is
required. To the extent a response is deemed required, SCBI denies the allegations of paragraph
56.
-6-
57.
The allegations of paragraph 57 contain an opinion to which no response is
required. To the extent a response is deemed required, SCBI denies the allegations of paragraph
57.
58.
The allegations of paragraph 58 contain an opinion to which no response is
required. To the extent a response is deemed required, SCBI denies the allegations of paragraph
58.
59.
SCBI denies the allegations of paragraph 59.
60.
SCBI denies the allegations of paragraph 60.
61.
SCBI denies the allegations of paragraph 61.
62.
SCBI denies the allegations of paragraph 62.
AS AND FOR A FIRST CLAIM
(Breach of Fiduciary Duty)
SCBI repeats and realleges its responses to paragraphs 1 through 62 as if fully set
forth herein.
63.
SCBI denies the allegations of paragraph 63.
64.
SCBI denies the allegations of paragraph 64.
65.
The allegations of paragraph 65 contain a legal conclusion to which no response
is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 65.
66.
SCBI denies the allegations of paragraph 66.
67.
SCBI denies the allegations of paragraph 67.
68.
SCBI denies the allegations of paragraph 68.
-7-
69.
The allegations of paragraph 69, including paragraphs 69(a)-(i), contain a legal
conclusion to which no response is required. To the extent a response is deemed required, SCBI
denies the allegations of paragraph 69, including paragraphs 69(a)-(i).
70.
The allegations of paragraph 70 contain a legal conclusion to which no response
is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 70, including by denying that plaintiff suffered any damages as a result of conduct by
SCBI.
AS AND FOR A SECOND CLAIM
(Fraudulent Concealment)
SCBI repeats and realleges its responses to paragraphs 1 through 71 as if fully set
forth herein.
71.
The allegations of paragraph 71 contain a legal conclusion and relate to plaintiff’s
claim for fraudulent concealment that the Court dismissed on September 12, 2012 (Dkt. No.
937); therefore, no response is required. To the extent a response is deemed required, SCBI
denies the allegations of paragraph 71.
72.
The allegations of paragraph 72, including paragraphs 72(a)-(d), contain a legal
conclusion and relate to plaintiff’s claim for fraudulent concealment that the Court dismissed on
September 2, 2012; therefore, no response is required. To the extent a response is deemed
required, SCBI denies the allegations of paragraph 72, including paragraphs 72(a)-(d).
73.
The allegations of paragraph 73 contain a legal conclusion and relate to plaintiff’s
claim for fraudulent concealment that the Court dismissed on September 12, 2012; therefore, no
response is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 73.
-8-
74.
The allegations of paragraph 74 contain a legal conclusion and relate to plaintiff’s
claim for fraudulent concealment that the Court dismissed on September 12, 2012; therefore, no
response is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 74.
75.
The allegations of paragraph 75 contain a legal conclusion and relate to plaintiff’s
claim for fraudulent concealment that the Court dismissed on September 12, 2012; therefore, no
response is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 75, including by denying that plaintiff suffered damages as a result of conduct by
SCBI.
AS AND FOR A THIRD CLAIM
(Negligence)
SCBI repeats and realleges its responses to paragraphs 1 through 75 as if fully set
forth herein.
76.
The allegations of paragraph 76 contain a legal conclusion and relate to plaintiff’s
negligence claim that the Court dismissed on September 12, 2012 (Dkt. No. 937); therefore, no
response is required. To the extent a response is deemed required, SCBI denies the allegations of
paragraph 76.
77.
The allegations of paragraph 77, including paragraphs 77(a)-(h), contain a legal
conclusion and relate to plaintiff’s negligence claim that the Court dismissed on September 12,
2012; therefore, no response is required. To the extent a response is deemed required, SCBI
denies the allegations of paragraph 77, including paragraphs 77(a)-(h).
78.
The allegations of paragraph 78 contain a legal conclusion and relate to plaintiff’s
negligence claim that the Court dismissed on September 12, 2012; therefore, no response is
-9-
required. To the extent a response is deemed required, SCBI denies the allegations of paragraph
78, including by denying that plaintiff suffered any damages as a result of conduct by SCBI.
Denial of Prayer for Relief
SCBI denies that plaintiff is entitled to any of the relief prayed for on pages 14, 16
and 17 of the Complaint.
Jury Trial Demand
Plaintiff’s demand for a trial by jury is subject to its account agreement(s) with
SCBI.
II.
DEFENSES
First Defense
Plaintiff fails to state a claim upon which relief can be granted.
Second Defense
Any damages allegedly suffered by plaintiff were caused by the intervening act(s)
or omission(s) of persons or entities other than SCBI, and said act(s) or omission(s) superseded
any act or omission by SCBI for which it might be considered liable.
Third Defense
Plaintiff’s claims are barred, in whole or in part, because SCBI’s alleged conduct
was not the cause of plaintiff’s injuries.
Fourth Defense
The claims asserted in the Complaint are barred by the equitable doctrines of
laches, waiver, estoppel, unclean hands, and other equitable defenses that may appear upon
further discovery and investigation.
- 10 -
Fifth Defense
SCBI has not engaged in any conduct that would entitle plaintiff to an award of
punitive damages.
Sixth Defense
Plaintiff’s claims are barred, in whole or in part, because plaintiff knowingly and
voluntarily assumed the risks inherent in the investments at issue.
Seventh Defense
Plaintiff was contributorily and/or comparatively negligent.
Eighth Defense
Plaintiff’s claims are barred, in whole or in part, by the economic loss doctrine.
Ninth Defense
Plaintiff’s claims are barred, in whole or in part, because they are preempted by
the Securities Litigation Uniform Standards Act, 15 U.S.C. § 78bb(f)(1).
Tenth Defense
Plaintiff did not justifiably or reasonably rely on any alleged representations, acts
or omissions by SCBI.
Eleventh Defense
Plaintiff’s claims are barred, in whole or in part, because SCBI, or any person or
entity acting or purporting to act on SCBI’s behalf, acted in good faith and with due care and
diligence.
Twelfth Defense
Plaintiff’s claims are barred, in whole or in part, by virtue of its account
agreement(s) with SCBI.
- 11 -
Thirteenth Defense
Plaintiff’s claims are barred, in whole or in part, by virtue of disclosures in the
applicable subscription agreement(s) and private placement memorandum applicable to
plaintiff’s purchase(s) of shares in Sentry.
Fourteenth Defense
SCBI was entitled to and did, reasonably and in good faith, rely on the acts and
representations of other third parties with respect to the transactions and events that are the
subject of plaintiff’s claims.
Fifteenth Defense
Any damages recoverable by plaintiff from SCBI are limited to the percentage of
fault attributable to SCBI, and thus would not include the percentage of fault attributable to atfault third parties, including but not limited to the defendants named in the Second Consolidated
Amended Complaint in Anwar v. Fairfield Greenwich Limited, No. 09-CV-0118.
Sixteenth Defense
Any recovery by plaintiff against SCBI is to be offset, in whole or in part, by any
and all other recoveries (including, where applicable, redemptions) by plaintiff with respect to its
investments in Sentry.
Seventeenth Defense
SCBI is entitled to recover indemnity and/or contribution from others for any
liability they incur to plaintiff.
Eighteenth Defense
Any recovery by plaintiff against SCBI is to be offset by any and all debts,
liabilities or obligations owed by plaintiff to SCBI.
- 12 -
WHEREFORE, SCBI respectfully demands judgment dismissing this action with
prejudice together with its costs and disbursements.
Respectfully submitted,
By: /s/ Sharon L. Nelles
Sharon L. Nelles
Bradley P. Smith
Patrick B. Berarducci
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
Telephone: (212) 558-4000
Facsimile: (212) 558-3588
E-mail: nelless@sullcrom.com
Diane L. McGimsey
SULLIVAN & CROMWELL LLP
1888 Century Park East
Los Angeles, California 90067
Telephone: (310) 712-6600
Facsimile: (310) 712-8800
Attorneys for Defendant
Standard Chartered Bank
International (Americas) Ltd.
October 12, 2012
- 13 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?