Irving H. Picard v. P&S Associates et al
| Irving H. Picard |
| Michael Sullivan and P&S Associates |
| Bernard L. Madoff Investment Securities LLC |
| 1:2012cv02317 |
| March 28, 2012 |
| 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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This docket was last retrieved on August 7, 2012. A more recent docket listing may be available from PACER.
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| Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for #13 Consent Order #5 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. filed by Michael Sullivan, P&S Associates, #3 Rule 7.1 Corporate Disclosure Statement filed by Michael Sullivan, P&S Associates, #7 Memorandum of Law in Support of Motion, filed by Michael Sullivan, P&S Associates, #12 Consent Order #8 Notice of Appearance filed by Irving H. Picard, #6 Declaration in Support of Motion, filed by Michael Sullivan, P&S Associates, #15 Order #2 Declaration in Support, filed by Michael Sullivan, P&S Associates, #14 Stipulation and Order #9 Notice of Appearance filed by Irving H. Picard, #10 Notice of Case Assignment/Reassignment, #11 Order, Set Deadlines/Hearings #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5193A, 08-1789 (BRL). filed by Michael Sullivan, P&S Associates, #4 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. filed by Michael Sullivan, P&S Associates were transmitted to the U.S. Court of Appeals. (ft) |
Filing 15
ORDER GRANTING THE MOTION FOR AN ORDER DIRECTING THE CLERK OF COURT TO CORRECT AND/OR SUPPLEMENT THE RECORD ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT granting (docket entry 216 in case no. 12-mc-115) Motion for an Order Directing the Clerk of the Court to Correct and/or Supplement the Record on Appeal to the United States Court of Appeals for the Second Circuit. IT IS ORDERED that the Trustee's motion is granted in its entirety, and the record on appeal is hereby supplemented and/or corrected to include the dockets and papers from all of the Consolidated Matters (collectively, the "Appeal Records"), provided that this Order shall not affect or impair the substantive rights of any of the parties in the Consolidated Matters; and IT IS FURTHER ORDERED that the Clerk of Court is hereby directed promptly to forward to the United States Court of Appeals for the Second Circuit any and all Appeal Records for the Consolidated Matters. (Signed by Judge Jed S. Rakoff on 7/24/2012) (tro)
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Filing 14
STIPULATION AND ORDER: The S&P and P&S Withdrawal Motions are hereby withdrawn and the Clerk of the Court is ordered to close item number one on the dockets of 12 Civ. 2316 and 12 Civ. 2317. ORDERED, that the Roman Withdrawal Motion shall be governed by the briefing and argument schedule set forth herein which the Court previously approved for the S&P and P&S Withdrawal Motions during a chambers conference on April, 23. 2012. ORDERED, that the S&P Defendants and P&S Defendants shall no longer be subject to the Stern Consolidated Briefing Order, the Section 546(e) Consolidated Briefing Order. or the Antecedent Debt Consolidated Briefing Order, and shall hereby be deemed removed from the relevant Exhibits to those orders. ORDERED, that dockets 12 Civ. 2316 and 12 Civ. 2317 are hereby closed, and all matters arising therein are deemed dismissed pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. (Signed by Judge Jed S. Rakoff on 6/26/2012) (ft) Modified on 6/27/2012 (ft).
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Filing 13
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) (rjm)
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Filing 12
CONSENT ORDER GRANTING CERTIFICATION PURSUANT TO FED. R. CIV. P. 54(b) FOR ENTRY OF FINAL JUDGMENT DISMISSING CERTAIN CLAIMS AND ACTIONS: THE COURT THEREFORE FINDS, CONCLUDES AND ORDERS AS FOLLOWS: The reference is deemed withdrawn from the Bankruptcy Court in each of the Eligible Actions for the limited purpose of deciding whether Section 546( e) of the Bankruptcy Code applies, limiting the Trustee's ability to avoid transfers. The entry of final judgment dismissing the Dismissed Claims ("Rule 54(b) Judgment") in the Decided Actions, the Withdrawn 546( e) Actions and the Eligible Actions pursuant to Fed. R. Civ. P. 54(b) is appropriate. To permit entry of final judgment under Fed. R. Civ. P. 54(b), there must be multiple claims or multiple parties, at least one claim finally decided within the meaning of 28 U.S.c. 1291, and an express determination that there is no just reason for delay. In re AirCrash at Belle Harbor, N.Y., 490 F.3d 99, 108-09 (2d Cir. 2007). The Rule 54(b) Judgment to be entered will finally decide and ultimately dispose of at least one claim and, in many instances, multiple claims, asserted by the Trustee in each of the Decided Actions and the Withdrawn 546(e) Actions and, to the extent that they do not opt-out of the Rule 54(b) Judgment pursuant to this Order, the Eligible Actions. See Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1 (1980). By reason of the Court's determination that Section 546( e) applies to the Dismissed Claims, any counts in each complaint or amended complaint that seeks avoidance of constructive fraudulent transfers pursuant to Section 548 (a)(1)(B) of the Bankruptcy Code, avoidance of actual or constructive fraudulent conveyances pursuant to state avoidance statutes incorporated through Section 544 of the Bankruptcy Code, and/or avoidance of preferences pursuant to Section 547 of the Bankruptcy Code, are finally determined and dismissed against the Trustee. The Trustee's remaining claims are limited only to those that are proceeding under Sections 548(a)(l)(A) and 550(a) of the Bankruptcy Code ("Remaining Claims"), and such claims would not be dismissed by reason of a judgment dismissing the Dismissed Claims. The Dismissed Claims and the Remaining Claims are separable, see Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir. 1987), and because of the application of Section 546(e) the Remaining Claims by the Trustee can be decided independently of the Dismissed Claims. See Ginett v. Computer Task Group, 962 F.2d 1085, 1094 (2d Cir. 1992). There is no just reason for delay in the entry of final judgment dismissing the Dismissed Claims. In light of the number of adversary proceedings, claims and defendants affected by dismissal of the Dismissed Claims pursuant to the Order, the interests of sound judicial administration and the realization of judicial efficiencies are served by the entry of such final judgment and the opportunity for an immediate appeal. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997) (entry of judgment on certain claims pursuant to Rule 54(b) avoids potentially expensive and duplicative trials). Because the Rule 54(b) Judgment and the dismissal of the Dismissed Claims affect hundreds of adversary proceedings commenced by the Trustee and hundreds of defendants named in those complaints or amended complaints, an immediate appeal would avoid protracted, expensive and potentially duplicative litigation proceedings, and will facilitate the prompt resolution of the case, thereby providing certainty and helping to streamline the litigation for further proceedings and possible appeals. E.g., Consolidated Edison, Inc. v. Northeast UtiI., 318 F. Supp. 2d 181, 196-97 (S.D.N.Y. 2004); Kramer v. Lockwood Pension Servs., Inc., 653 F. Supp. 2d 354, 397-98 (S.D.N.Y. 2009) (interlocutory appeal appropriate to consider a case of unusual significance "going well beyond run-of-the-mill concerns of parties"); Brown v. Bullock, 294 F.2d 415,417 (2d Cir. 1961) (Friendly, J.) (interlocutory appeal appropriate where the "determination was likely to have precedential value for a large number of other suits" pending in the District Court). The Eligible Actions, Withdrawn 546( e) Actions, and Decided Actions are consolidated under the action captioned Picard v. Ida Fishman Revocable Trust, No. 11-cv-7603 (JSR) (S.D.N.Y.) (the "Fishman Action"), but solely with respect to and for the purposes of entry of judgment on the Dismissed Claims, and not with respect to the Trustee's claims proceeding under Sections 548(a) (1 )(A) and 550(a) of the Bankruptcy Code. The Court will administer the consolidated proceedings under the following caption: (see order). Counsel for the Trustee, SIPC and the lead counsel in the Decided Actions and the Withdrawn 546(e) Actions shall submit an agreed form of the proposed Rule 54(b) Judgment not later than May 21, 2012. If the parties cannot agree on the form of such judgment, each of the Trustee and SIPC, on one hand, and the group of lead counsel for the Decided Actions and the Withdrawn 546( e) Actions, on the other hand, may submit a proposed form of judgment and the Court will consider and determine the form of Rule 54(b) Judgment to be entered. Neither the Trustee nor SIPC shall tile any notice of appeal until the expiration of the opt-out period set forth. Any defendant in an Eligible Action or a Withdrawn 546(e) Action shall be entitled to opt-out of the procedures established by this Order and to continue to litigate issues related to Section 546( e) in this Court pursuant to a common briefing schedule and procedure to be separately implemented by the Court. The defendant may opt-out by notifying the Trustee in writing that such defendant does not consent to the entry of a Rule 54(b) Judgment. To be effective and binding, such written election must be received by the Trustee and filed with the District Court in the docket of the Fishman Action not later than fourteen (14) days after the date of entry of this Order. For all other purposes, common briefing on Section 546(e) issues will proceed before the District Court pursuant to a separate order of the Court. The defendants in Eligible Actions and Withdrawn 546(e) Actions that do not elect to opt-out under this paragraph shall be deemed to have preserved and made all arguments relating to the application and effect of Section 546( e) of the Bankruptcy Code that were raised in the motions to dismiss in the Decided Actions. (Signed by Judge Jed S. Rakoff on 5/12/2012) (laq)
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Filing 11
ORDER: The reference of the Adversary Proceedings listed in Exhibit A is withdrawn, in part, from the Bankruptcy Court to this Court solely with respect to the Antecedent Debt Defendants for the limited purpose of hearing and determining whether and to what extent (i) transfers made by Madoff Securities that the Trustee seeks to avoid were made in exchange for value, such as antecedent debts that Madoff Securities owed to the Antecedent Debt Defendants at the time of the transfers. The Trustee and SIPC are deemed to have raised, in response to all pending motions for withdrawal of the reference based on the Withdrawn Antecedent Debt Issue, all arguments previously raised by either or both of them in opposition to all such motions granted by the Prior Antecedent Debt Withdrawal Rulings, and such objections or arguments are deemed to be overruled, solely with respect to the Withdrawn Antecedent Debt Issue, for the reasons stated in the Prior Antecedent Debt Withdrawal Rulings. 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. On or before June 25, 2012, the Antecedent Debt Defendants shall file a single consolidated motion to dismiss pursuant to Fed. R. Civ. P. 12 (made applicable to the Adversary Proceeding by Fed. R. Bankr. P. 7012) and a single consolidated supporting memorandum of law, not to exceed fifty (50) pages (together, the "Antecedent Debt Motion to Dismiss"). The Trustee and SIPC shall each file a memorandum of law in opposition to the Antecedent Debt Motion to Dismiss, not to exceed fifty (50) pages each, addressing the Withdrawn Antecedent Debt Issue on or before July 25, 2012. The Antecedent Debt Defendants shall file one consolidated reply brief, not to exceed thirty (30) pages, on or before August 8, 2012. The Court will hold oral argument on the Antecedent Debt Motion to Dismiss on August 20, 2012 at 4:00 p.m. (the "Hearing Date"). On or before August 8, 2012, the Antecedent Debt Defendants shall 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. All communications and documents (including drafts) exchanged between and among any of the defendants in any of the adversary proceedings, 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. This Order is without prejudice to any and all grounds for withdrawal of the reference (other than the Withdrawn Antecedent Debt Issue) raised in the Adversary Proceedings by the Antecedent Debt Defendants and any matter that cannot properly be raised or resolved on a Rule 12 motion, all of which are preserved. Nothing in this Order shall: (a) waive or resolve any issue not specifically raised in the Antecedent Debt Motion to Dismiss; (b) waive or resolve any issue raised or that could be raised by any party other than with respect to the Withdrawn Antecedent Debt Issue, including related issues that cannot be resolved on a motion under Fed. R. Civ. P. 12; or (c) notwithstanding Fed. R. Civ. P. 12(g)(2) or Fed. R. Bankr. P. 7012(g)(2), except as specifically raised in the Antecedent Debt Motion to Dismiss, limit, restrict or impair any defense or argument that has been raised or could be raised by any Antecedent Debt Defendant in a motion to dismiss under Fed. R. Civ. P. 12 or Fed. R. Bankr. P. 7012. Nothing in this Order shall constitute an agreement or consent by any Antecedent Debt 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. 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 Antecedent Debt Issue) 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. The procedures established by this Order, or by further Order of this Court, shall constitute the sole and exclusive procedures for determination of the Withdrawn Antecedent Debt Issue in the Adversary Proceedings (except for any appellate practice resulting from such determination), 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 Antecedent Debt Issue in any of the Adversary Proceedings, this Order supersedes all such schedules solely with respect to the Withdrawn Antecedent Debt Issue. All other provisions as further set forth in this order.( Motions due by 6/25/2012., Responses due by 7/25/2012, Replies due by 8/8/2012., Oral Argument set for 8/20/2012 at 04:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 5/12/2012) (mro)
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| Filing 10 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-03775-JSR. Notice of Assignment to follow. (pgu) |
| Magistrate Judge Henry B. Pitman is so designated. (pgu) |
| 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 MEMORANDUM OF LAW in Support re: #5 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. Memorandum of Law in Support of Defendants Amended Motion to Withdraw the Bankruptcy Reference. Document filed by P&S Associates, Michael Sullivan. (Chaitman, Helen) |
| Filing 6 DECLARATION of Helen Davis Chaitman in Support re: #5 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference.. Document filed by P&S Associates, Michael Sullivan. (Attachments: #1 Exhibit A)(Chaitman, Helen) |
| Filing 5 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. Document filed by P&S Associates, Michael Sullivan.(Chaitman, Helen) |
| Mailed notice re: #2 Declaration in Support, Mail Letter of Notification to Bankruptcy Court, #3 Rule 7.1 Corporate Disclosure Statement, Case Referred as Possibly Related/Similar, Case Designated ECF, #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5193A, 08-1789 (BRL)., #4 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. to the attorney(s) of record. (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: 10-5193A (BRL).) with the U.S.D.C. - S.D.N.Y. and the assignment of S.D.N.Y. Case Number: 12-cv-2317. (pgu) |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Helen Davis Chaitman to RE-FILE Document #4 AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Declaration in Support of Motion and Memorandum of Law in Support of Motion are both found under the event list Replies, Opposition and Supporting Documents. (ldi) |
| Filing 4 FILING ERROR - DEFICIENT DOCKET ENTRY - AMENDED MOTION to Withdraw Reference / Notice of Defendants Amended Motion to Withdraw the Bankruptcy Reference. Document filed by P&S Associates, Michael Sullivan. (Attachments: #1 Declaration of Helen Davis Chaitman in Support of Defendants Amended Motion to Withdraw the Bankruptcy Reference, #2 Exhibit Exhibit A to Declaration, #3 Memorandum of Law in Support of Defendants Amended Motion to Withdraw the Bankruptcy Reference)(Chaitman, Helen) Modified on 4/2/2012 (ldi). |
| Filing 3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by P&S Associates, Michael Sullivan.(Chaitman, Helen) |
| Filing 2 DECLARATION of Helen Chaitman in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5193A, 08-1789 (BRL).. Document filed by P&S Associates, Michael Sullivan. (Attachments: #1 Exhibit A - Part 1, #2 Exhibit A - Part 2, #3 Exhibit A - Part 3, #4 Exhibit A - Part 4)(bkar) |
| Filing 1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5193A, 08-1789 (BRL).Document filed by Michael Sullivan, P&S Associates. (Attachments: #1 Memorandum of Law in Support)(bkar) |
| Case Designated ECF. (bkar) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 11-cv-3775. (bkar) |
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