Irving H. Picard v. Kingate Global Fund, Ltd. et al
| Irving H. Picard |
| FIM Advisers LLP, First Peninsula, The Ashby Trust, Ashby Investment Services Limited, Citi Hedge Fund Services Limited, Kingate Management Limited, Kingate Euro Fund, Ltd., Federico Ceretti, HSBC Bank Bermuda Limited, Alpine Trustees Limited, El Prela Trust, Carlo Grosso, FIM Limited, Ashby Holding Services Limited, El Prela Trading Investments Limited, Port of Hercules Ltd., Kingate Global Fund, Ltd. and El Prela Group Holding Services |
| Securities Investor Protection Corporation |
| Bernard L. Madoff Investment Securities LLC |
| 1:2011cv07256 |
| October 14, 2011 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Jed S Rakoff |
| Bankruptcy Withdrawal |
| 28 U.S.C. § 157 |
| None |
Docket Report
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Filing 22
OPINION AND ORDER: Accordingly, the Court concludes that, in a SIPA proceeding such as this, a defendant may succeed on a motion to dismiss by showing that the complaint does not plausibly allege that that defendant did not act in good faith. Because this determination must be made on the basis of the specific allegations in the Trustee's various complaints, the Court, having set out the general framework, hereby leaves it to the Bankruptcy Court to determine in any given instance whether the foregoing standards have been met. Accordingly, the Court directs that the following adversary proceedings be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order: (1) those cases listed in Exhibit A of item number 197 on the docket of 12 Misc. 115; and (2) those cases listed in the schedule attached to item number 468 on the docket of 12 Misc. 115 that were designated as having been added to the "good faith" consolidated briefing. (Signed by Judge Jed S. Rakoff on 4/27/2014) (mro)
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Filing 21
OPINION AND ORDER: Except to the extent provided in other orders, the Court directs that what remains of the adversary proceedings listed in Exhibit A of item number 119 on the docket of 12 Misc. 115 be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order. (Signed by Judge Jed S. Rakoff on 4/15/2013) (tro)
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Filing 20
ORDER: The Court has consolidated merits briefing in all proceedings that have raised the issues listed above. See Order dated April 13, 2012. Order relating to 546(e) dated May 15, 2012; Order relating to Standing and SLUSA dated May 15, 2012. Order dated June 6, 2012. Therefore, the Court directs the parties to continue according to the procedures that were previously arranged for the consolidated resolution of the issues the defendants have raised Citi Hedge also asks the Court to withdraw the reference to determine whether SIPA and other securities laws alter the standard the Trustee must meet in order to show that a defendant did not receive transfers in "good faith" under 11 U.S.C. 550(b}. For the reasons stated in Picard v. Primeo Fund et al., 11 Civ. 6524 (JSR) (S.D.N.Y. May IS, 2012), the Court withdraws the reference in order to resolve this issue. The Court has previously consolidated briefing on the issue of good faith, see Order dated Order dated June 23, 2012, and thus directs the Trustee, the Securities Investor Protection Corporation, and Citi Hedge to proceed in accordance with that Order. The Clerk of the Court is ordered to close items number one, twelve, and eighteen on the docket of 11 civ. 7134 and item number one on the docket of 11 Civ. 7256. (Signed by Judge Jed S. Rakoff on 7/2/2012) (pl) Modified on 7/16/2012 (pl).
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Filing 19
CONSENT ORDER AMENDING STERN COMMON BRIEFING ORDER: On consent of (i) the above-captioned defendants (collectively, "Stern Withdrawal Defendants"), (ii) Irving H. Picard, as Trustee (the "Trustee") for the substantively consolidated liquidation proceedings of Bernard L. Madoff Investment Securities LLC under the Securities Investor Protection Act, and (iii) the Securities Investor Protection Corporation ("SIPC", together with the Stern Withdrawal Defendants and the Trustee, the "Parties"), the Order, In re: Madoff Securities, No. 12-MC-115 (JSR) (S.D.N.Y. April 13, 2012) (ECF No.4) (the "Stern Order") shall hereby be modified to permit the following: (1) Young Conaway Stargatt & Taylor, LLP, conflicts counsel for the Trustee, may file a joinder, not to exceed two pages (excluding exhibits identifying the relevant adversary proceedings), to the Trustee's opposition to the Consolidated Brief on Behalf of Stern Withdrawal Defendants Responding to Issues Raised by Order of the Court Entered on April 13, 2012 ("Stern Withdrawal Defendants' Brief"), on behalf of the Trustee in certain of the adversary proceedings listed on Exhibit A to the Stern Order on or before May 25, 2012; and (2) Windels Marx Lane & Mittendorf, LLP, special counsel to the Trustee, may file a joinder, not to exceed two pages (excluding exhibits identifying the relevant adversary proceedings), to the Trustee's opposition to the Stern Withdrawal Defendants' Brief on behalf of the Trustee in certain of the adversary proceedings listed on Exhibit A to the Stern Order on or before May 25, 2012. In either case, the respective joinders may only specify what portions of the Trustee's opposition are joined and may not make or offer any additional substantive argument. (Signed by Judge Jed S. Rakoff on 5/24/2012) (jfe)
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Filing 18
ORDER: The reference of the Adversary Proceedings is withdrawn from the Bankruptcy Court to this Court solely with respect to the Section 546(e) Withdrawal Defendants, in part, for the limited purpose of hearing and determining issues relating to the application of Section 546(e) in the Adversary Proceedings, including, without limitation, as further set forth in this Order. On or before July 27, 2012, (i) the Financial Institution Defendants and (ii) all remaining Section 546(e) Withdrawal Defendants, including all Opt-Out Defendants, shall each file (x) a consolidated motion pursuant to Fed. R. Civ. P. 12 (made applicable to the Adversary Proceedings by Fed. R. Bankr. P. 7012) and (y) a consolidated supporting memorandum of law, not to exceed forty (40) pages each (the "Motion to Dismiss"). The Motion to Dismiss shall include a reference (by civil action number and docket number only) to one or more representative complaints filed by the Trustee against either (a) a Initial Transferee Defendant; and (b) a Financial Institution Defendant. Any further requirement that the Pleadings subject to the Motion to Dismiss be identified or filed is deemed waived and satisfied. The Trustee and SIPC may each file a memorandum of law in opposition to each Motion to Dismiss filed by the Financial Institution Defendants and the remaining Section 546(e) Withdrawal Defendants, with each opposition not to exceed forty (40) pages, on or before September 28, 2012. The Financial Institution Defendants and the remaining Section 546(e) Withdrawal Defendants may each file a consolidated reply brief, not to exceed twenty (20) pages each, on or before October 19, 2012 (the "Reply Brief'). In the event the Trustee files an amended complaint (the "Amended Complaint") in any of the Adversary Proceedings after the Motion to Dismiss is filed, the Reply Brief shall include a reference (by civil action number and docket number only) to a representative Amended Complaint filed by the Trustee against an Initial Transferee Defendant and a Financial Institution Defendant. Any further requirement that the Amended Complaints subject to the Motion to Dismiss be identified or filed is deemed waived and satisfied. In the event the Trustee files an Amended Complaint, he shall, at the time the Amended Complaint is filed, provide the Section 546(e) Withdrawal Defendants a blackline reflecting the changes made in the Amended Complaint from the then operative complaint. The Court will hold oral argument on the Motions to Dismiss on October 30, 2012 at 4:00 p.m. (the "Hearing Date"). On or before October 19, 2012, the Financial Institution Defendants and the remaining Section 546(e) Withdrawal Defendants shall each designate one lead counsel to advocate their position at oral argument on the Hearing Date, but any other attorney who wishes to be heard may appear and so request. The caption displayed on this Order shall be used as the caption for all pleadings, notices and briefs to be filed pursuant to this Order. and (b) a Financial Institution Defendant. Any further requirement that the Pleadings subject to the Motion to Dismiss be identified or filed is deemed waived and satisfied. ( Oral Argument set for 10/30/2012 at 04:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 5/15/2012) (mro)
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Filing 17
ORDER: IT IS HEREBY ORDERED AS FOLLOWS: 1)The reference of the Adversary Proceedings is withdrawn from the Bankruptcy Court, in part and solely with respect to the Standing and SLUSA Withdrawal Defendants, to this Court for the limited purpose of deciding the following issues (the "Withdrawn Standing and SLUSA Issues"): (a) whether the Trustee has standing to bring common law claims; and (b) whether SLUSA preempts the Trustee's common law claims. Except as otherwise provided herein or in orders of this Court, the reference to the Bankruptcy Court is otherwise maintained for all other purposes; 2) The Trustee and SIPC are deemed to have raised, in response to all pending motions for withdrawal of the reference based on the Withdrawn Standing and SLUSA Issues, all arguments previously raised by either or both of them in opposition to all such motions granted by the Prior Standing and SLUSA Withdrawal Ruling, and such objections or arguments are deemed to be overruled, solely with respect to the Withdrawn Standing and SLUSA Issues, for the reasons stated in the Prior Standing and SLUSA Withdrawal Ruling; 3) All objections that could be raised by the Trustee and/or SIPC to the pending motions to withdraw the reference in the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters; 4.) The Standing and SLUSA Withdrawal Defendants shall file one consolidated opening brief, not to exceed forty ( 40) pages, addressing the Withdrawn Standing and SLUSA Issues on or before August 3, 2012. Separately, on or before August 3, 2012, certain Standing and SLUSA Withdrawal Defendants as to whom the Trustee asserts the applicability of the "insider exception" to the in pari delicto I Wagoner doctrine may submit a brief, not to exceed seven (7) pages, on that part of the standing issue; 5.) The Trustee and SIPC shall each file an opposition brief, not to exceed forty (40) pages each, addressing the Withdrawn Standing and SLUSA Issues on or before September 14, 2012. Separately, on or before September 14, 2012, the Trustee may submit a separate brief, notto exceed seven (7) pages, regarding the effect of the "insider exception" on the in pari delicto I Wagoner doctrine; 6.) The Standing and SLUSA Withdrawal Defendants shall file one consolidated reply brief, not to exceed twenty (20) pages, on or before October 5, 2012. Separately, on or before October 5, 2012, certain Standing and SLUSA Withdrawal Defendants as to whom the Trustee asserts the applicability of the "insider exception" to the in pari delicto I Wagoner doctrine may submit a separate reply brief, not to exceed five (5) pages, on that part of the standing issue; 7.) The Court will hold oral argument concerning the Withdrawn Standing and SLUSA Issues on October 15, 2012, at 4:00 p.m. (the "Hearing Date"); 8.) On or before October 5, 2012, the Standing and SLUSA Withdrawal Defendants shall designate one lead counsel to advocate their position at oral argument on the Hearing Date. Separately, on or before October 5, 2012, the certain Standing and SLUSA Withdrawal Defendants as to whom the Trustee asserts the applicability of the "insider exception" to the inpari delicto I Wagoner doctrine shall designate one counsel to advocate their position on that part of the standing issue at oral argument on the Hearing Date; 9.) The caption displayed on this Order shall be used as the caption for all pleadings, notices and briefs to be filed pursuant to this Order; 10.) All communications and documents (including drafts) exchanged between and among any of the defendants in the Adversary Proceedings listed on Exhibit A, and/or their respective attorneys, shall be deemed to be privileged communications and/or work product, as the case may be, subject to a joint interest privilege; 11.) This Order is without prejudice to any and all grounds for withdrawal of the reference (other than the Withdrawn Standing and SLUSA Issues) raised in the Adversary Proceedings by the Standing and SLUSA Withdrawal Defendants, all of which are preserved; 12.) Nothing in this Order shall: (a) waive or resolve any issue raised by any party other than the withdrawal of the reference solely with respect to the Standing and SLUSA Issues; (b) limit, restrict or impair any defense or argument that has been raised or could be raised by any Standing and SLUSA Withdrawal Defendant in a motion to dismiss under Fed. R. Civ. P. 12 or Fed. R. Bankr. P. 7012, or any other defense or right of any nature available to any Standing and SLUSA Withdrawal Defendant (including, without limitation, all defenses based on lack of personal jurisdiction or insufficient service of process), or any argument or defense that could be raised by the Trustee or SIPC in response thereto; and (c) be deemed or construed as the submission of a motion to dismiss under Fed. R. Civ. P. 12 or Fed. R. Bankr. P. 7012; 13.) Nothing in this Order shall constitute an agreement or consent by any Standing and SLUSA Withdrawal Defendant to pay the fees and expenses of any attorney other than such defendant's own retained attorney. This paragraph shall not affect or compromise any rights of the Trustee or SIPC. 14. This Order is without prejudice to and preserves all objections of the Trustee and SIPC to timely-filed motions for withdrawal of the reference currently pending before this Court (other than the withdrawal of the reference solely with respect to the Withdrawn Standing and SLUSA Issues) with respect to the Adversary Proceedings, and the defenses and responses thereto that may be raised by the affected defendants, are deemed preserved on all matters; 15.) The procedures established by this Order shall constitute the sole and exclusive procedures for determination of the Withdrawn Standing and SLUSA Issues in the Adversary Proceedings, and this Court shall be the forum for such determination. To the extent that briefing or argument schedules were previously established with respect to the Withdrawn Standing and SLUSA Issues in any of the Adversary Proceedings, this Order supersedes all such schedules solely with respect to the Withdrawn Standing and SLUSA Issues. To the extent that briefing or argument schedules are prospectively established with respect to motions to withdraw the reference or motions to dismiss in any of the Adversary Proceedings, the Withdrawn Standing and SLUSA Issues shall be excluded from such briefing or argument. Except as stated in this paragraph, this Order shall not be deemed or construed to modify, withdraw or reverse any prior Order of the Court that granted withdrawal of the reference in any Adversary Proceeding for any reason. (Oral Argument set for 10/15/2012 at 04:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 5/15/2012) (jar)
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| Filing 16 CERTIFICATE OF SERVICE of Brendan Cyr re #15 on February 24, 2012. Service was made by ECF, by Hand, by First Class Mail. Document filed by Citi Hedge Fund Services Limited. (Boccuzzi, Carmine) |
| Filing 15 REPLY MEMORANDUM OF LAW in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL).. Document filed by Citi Hedge Fund Services Limited. (Boccuzzi, Carmine) |
| Filing 14 MEMORANDUM OF LAW in Opposition re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL).. Document filed by Securities Investor Protection Corporation. (Attachments: #1 Certificate of Service)(Bell, Kevin) |
| Filing 13 MEMORANDUM OF LAW in Opposition re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL).. Document filed by Irving H. Picard. (Warshavsky, Oren) |
| Filing 12 NOTICE OF APPEARANCE by Lauren Attard on behalf of Securities Investor Protection Corporation (Attachments: #1 Affidavit of Service)(Attard, Lauren) |
| Filing 11 DECLARATION of Oren J. Warshavsky in Opposition re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL).. Document filed by Irving H. Picard. (Attachments: #1 Exhibit 1)(Warshavsky, Oren) |
| Filing 10 NOTICE OF APPEARANCE by Kevin H. Bell on behalf of Securities Investor Protection Corporation (Attachments: #1 Affidavit of Service)(Bell, Kevin) |
| Filing 9 NOTICE OF APPEARANCE by Nicholas J. Cremona on behalf of Irving H. Picard (Cremona, Nicholas) |
| Filing 8 NOTICE OF APPEARANCE by Oren J. Warshavsky on behalf of Irving H. Picard (Warshavsky, Oren) |
| Filing 7 NOTICE OF APPEARANCE by Jerilin Buzzetta on behalf of Citi Hedge Fund Services Limited (Buzzetta, Jerilin) |
| Filing 6 NOTICE OF APPEARANCE by David Yury Livshiz on behalf of Citi Hedge Fund Services Limited (Livshiz, David) |
| Filing 5 NOTICE OF CASE ASSIGNMENT to Judge Jed S. Rakoff. Judge Unassigned is no longer assigned to the case. (pgu) |
| CASE ACCEPTED AS RELATED. Create association to 1:11-cv-03605-JSR. Notice of Assignment to follow. (pgu) |
| Magistrate Judge Henry B. Pitman is so designated. (pgu) |
| Mailed letter to the United States Bankruptcy Court - Southern District of New York as notification of filing of Bankruptcy Motion to Withdraw Reference (Case Number: 08-01789 (BRL).) with the U.S.D.C. - S.D.N.Y. and the assignment of S.D.N.Y. Case Number: 11-cv-7256. (rdz) |
| Mailed notice to the attorney(s) of record. (rdz) |
| Filing 4 RULE 7.1 CORPORATE DISCLOSURE STATEMENT.. Document filed by Citi Hedge Fund Services Limited.(Boccuzzi, Carmine) |
| Filing 3 MEMORANDUM OF LAW in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL). Document filed by Citi Hedge Fund Services Limited. (bkar) |
| Filing 2 DECLARATION of Jerilin Buzzetta in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL). Document filed by Citi Hedge Fund Services Limited. (Attachments: #1 Exhibit A - Part 1, #2 Exhibit A - Part 2, #3 Exhibit B)(bkar) |
| Filing 1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1161A, 08-1789 (BRL).Document filed by Citi Hedge Fund Services Limited.(bkar) |
| Case Designated ECF. (bkar) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 11-cv-3605. (bkar) |
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