Irving H. Picard v. Jay Gaines & Co., Inc. Profit Sharing Plan et al
| Irving H. Picard |
| Sherry Gaines and Jay Gaines & Co., Inc. Profit Sharing Plan |
| Jay Gaines |
| Bernard L. Madoff Investment Securities LLC |
| 1:2012cv02370 |
| March 30, 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 |
| Defendant |
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Filing 9
ORDER denying #1 Motion to Withdraw Bankruptcy Reference. On July 10, 2014, the Court issued an Order directing counsel to parties with individual issues not addressed by the Court's decisions in the consolidated withdrawals to inform the Court by letter by July 18, 2014. See ECF No. 552. The Court received several such letters and addressed the issues they raised in separate Orders. Any remaining motions to withdraw the reference are hereby denied and all the adversary proceedings are returned to the Bankruptcy Court. The Clerk of Court is directed to close all the civil cases seeking to withdraw the reference related to this matter. (Signed by Judge Jed S. Rakoff on 8/1/2014) (mro)
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| Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for #6 Consent Order #2 Notice of Change of Address, filed by Jay Gaines & Co., Inc. Profit Sharing Plan, Sherry Gaines, Jay Gaines, #7 Consent Order #3 Notice of Appearance filed by Irving H. Picard, #4 Notice of Appearance filed by Irving H. Picard, #8 Order, #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5301A, 08-1789 (BRL).MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5301A, 08-1789 (BRL). filed by Jay Gaines & Co., Inc. Profit Sharing Plan, Sherry Gaines, Jay Gaines, #5 Notice of Case Assignment/Reassignment were transmitted to the U.S. Court of Appeals. (ft) |
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Filing 8
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 7
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 6
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 5 NOTICE OF CASE ASSIGNMENT to Judge Jed S. Rakoff. Judge Unassigned is no longer assigned to the case. (pgu) |
| Magistrate Judge Henry B. Pitman is so designated. (pgu) |
| CASE ACCEPTED AS RELATED. Create association to 1:11-cv-03605-JSR. Notice of Assignment to follow. (pgu) |
| Filing 4 NOTICE OF APPEARANCE by Nicholas J. Cremona on behalf of Irving H. Picard (Cremona, Nicholas) |
| Filing 3 NOTICE OF APPEARANCE by Oren J. Warshavsky on behalf of Irving H. Picard (Warshavsky, Oren) |
| Filing 2 NOTICE OF CHANGE OF ADDRESS by George Robert Hirsch on behalf of Jay Gaines, Sherry Gaines, Jay Gaines & Co., Inc. Profit Sharing Plan. New Address: Sills Cummis & Gross, PC, One Riverfront Plaza, Newark, New Jersey, USA 07102, 973-643-7000. (Hirsch, George) |
| 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: 10-5301A (BRL).) with the U.S.D.C. - S.D.N.Y. and the assignment of S.D.N.Y. Case Number: 12-cv-2370. (pgu) |
| Mailed notice re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5301A, 08-1789 (BRL).MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5301A, 08-1789 (BRL)., Case Referred as Possibly Related/Similar, Case Designated ECF, Mail Letter of Notification to Bankruptcy Court, to the attorney(s) of record. (pgu) |
| Filing 1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5301A, 08-1789 (BRL).Document filed by Jay Gaines, Sherry Gaines, Jay Gaines & Co., Inc. Profit Sharing Plan. (Attachments: #1 Memorandum of Law in Support, #2 Declaration in Support)(bkar) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 11-cv-3605. (bkar) |
| Case Designated ECF. (bkar) |
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