Atlantica Holdings, Inc. et al v. Sovereign Wealth Fund Samruk-Kazyna JSC

Filing 267

CLERK'S JUDGMENT re: 266 Memorandum & Opinion in favor of BTA Bank JSC, Sovereign Wealth Fund Samruk-Kazyna JSC against Atlantica Holdings, Inc., Baltica Investment Holding, Inc., Blu Funds, Inc. It is hereby ORDERED, ADJUDGED AND DECREE D: That for the reasons stated in the Court's Opinion and Order dated August 5, 2020, Defendants are entitled to summary judgment with respect to Plaintiffs claims under Section I 0(b) and Rule l 0b-5. It follows that they are also entitled t o summary judgment with respect to Plaintiffs' controlling-person liability claims under Section 20(a). See, e.g., First Jersey Sec., Inc., l 01 F.3d at 1472 ("In order to establish a prima facic case of [under Section 20(a)], a plaintif f must show a primary violation.... "). Accordingly, Defendants' motion for summary judgment is GRANTED, and Plaintiffs' motion for partial summary judgment is DENIED. In addition, Defendants' motion to strike the Hrycay reply declaration is GRANTED in part. All other motions are DENIED as moot. One housekeeping matter remains: By letter-motions, both Plaintiffs and Defendants sought to file certain documents under seal. See ECF Nos. 213, 220, 243. The Court granted the letter-motions temporarily, pending its decision on the underlying motions. It is well established that filings that are "relevant to the performance of the judicial function and useful in the judicial process" arc considered "judic ial documents" to which a presumption in favor of public access attaches. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Moreover, the mere fact that information is subject to a confidentiality agreement between litigan ts is not a valid basis to overcome that presumption. See, e.g., United States v. Wells Fargo Bank N.A., No. 12-CV-7527 (JMF), 2015 WL 3999074, at *4 (S.D.N.Y. June 30, 2015) (citing cases). Thus, any party that believes any materials currently und er seal should remain under seal or be redacted is ORDERED to show cause in writing, no later than two weeks from the date of the Opinion and Order, why doing so would be consistent with the presumption in favor of public access. If, by that deadl ine, no party contends that any particular documents should remain under seal or in redacted form, then the parties shall promptly file such documents publicly on ECF; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/6/2020) (Attachments: # 1 Right to Appeal) (km)

Case 1:12-cv-08852-JMF Document 267 Filed 08/06/20 Page 1 of 2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ATLANTICA HOLDINGS, INC., et al.,
Plaintiffs,

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12 CIVIL 8852 (JMF)

-againstSOVEREIGN WEAL TH FUND SAMRUKKAZYNA JSC,
Defendant.

-----------------------------------------------------------X
ATLANTICA HOLDINGS, INC, et al.,
Plaintiffs,
13 CIVIL 5790 (JMF)
-against-

JUDGMENT
BTA BANK JSC,
Defendant.

-----------------------------------------------------------X
It is hereby

ORDERED, ADJUDGED AND DECREED: That for the reasons

stated in the Court's Opinion and Order dated August 5, 2020, Defendants are entitled to
summary judgment with respect to Plaintiffs claims under Section 10(b) and Rule 10b-5. It
follows that they are also entitled to summary judgment with respect to Plaintiffs' controllingperson liability claims under Section 20(a). See, e.g., First Jersey Sec., Inc., 101 F.3d at 1472
("In order to establish a prima facie case of [under Section 20(a)], a plaintiff must show a
primary violation .... "). Accordingly, Defendants' motion for summary judgment is GRANTED,
and Plaintiffs' motion for partial summary judgment is DENIED. In addition, Defendants' motion
to strike the Hrycay reply declaration is GRANTED in part. All other motions arc DENIED as
moot. One housekeeping matter remains: By letter-motions, both Plaintiffs and Defendants
sought to file certain documents under seal. See ECF Nos. 213,220, 243. The Court granted the
letter-motions temporarily, pending its decision on the underlying motions. It is well established

Case 1:12-cv-08852-JMF Document 267 Filed 08/06/20 Page 2 of 2

that filings that arc "relevant to the performance of the judicial function and useful in the judicial
process" are considered "judicial documents" to which a presumption in favor of public access
attaches. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Moreover, the
mere fact that information is subject to a confidentiality agreement between litigants is not a
valid basis to overcome that presumption. See, e.g., United States v. Wells Fargo Bank N.A., No.
12-CV-7527 (JMF), 2015 WL 3999074, at *4 (S.D.N.Y. June 30, 2015) (citing cases). Thus, any
party that believes any materials currently under seal should remain under seal or be redacted is
ORDERED to show cause in writing, no later than two weeks from the date of the Opinion and
Order, why doing so would be consistent with the presumption in favor of public access. If, by
that deadline, no party contends that any particular documents should remain under seal or in
redacted form, then the parties shall promptly file such documents publicly on ECF; accordingly,
the case is closed.

Dated: New York, New York
August 6, 2020

RUBY J. KRAJICK

Clerk of Court
BY:

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Deputy Clerk