Irving H. Picard v. Peter B. Madoff et al
| Irving H. Picard |
| Shana D. Madoff, Estate of Mark D. Madoff, Andrew H. Madoff, Deborah Madoff and Peter B. Madoff |
| Bernard L. Madoff Investment Securities LLC |
| 1:2012cv02752 |
| April 9, 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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Filing 9
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 8
OPINION & ORDER: #102762 In sum, the Court follows other courts in this District, as well as its own prior precedent, in concluding that, though Stern precludes the Bankruptcy Court from finally deciding avoidance actions (unless, possibly, the Trustee has sought to disallow a claim to the estate under 502(d)), the Bankruptcy Court nonetheless has the power to hear the matter in the first instance and recommend proposed findings of fact and conclusions of law. The Court further declines to withdraw the reference of these cases to the Bankruptcy Court "for cause shown" before the Bankruptcy Court has issued appropriate findings of fact and conclusions of law. Except to the extent provided in other orders, the Court directs that what remains of the adversary proceedings listed in Exhibits A and C of item number four on the docket of 12 Misc. 115 be returned to the Bankruptcy Court for further proceedings consistent with this Opinion and Order. SO ORDERED. (Signed by Judge Jed S. Rakoff on 1/4/2013) ***Docketed pursuant to entry docketed in 12mc115 on 6/7/2013.*** (tro)
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Filing 6
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 5 NOTICE OF APPEARANCE by Nicholas J. Cremona on behalf of Irving H. Picard (Cremona, Nicholas) |
| Filing 4 NOTICE OF APPEARANCE by Oren J. Warshavsky on behalf of Irving H. Picard (Warshavsky, Oren) |
| Filing 3 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-03775-JSR. Notice of Assignment to follow. (pgu) |
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Filing 7
ORDER: IT IS HEREBY ORDERED AS FOLLOWS: The reference of the Adversary Proceedings is withdrawn from the Bankruptcy Court, in part, to this Court for the limited purpose of deciding the following issues (the "Withdrawn Stem Issues") set forth within this Order. The Trustee and SIPC are deemed to have raised, in response to all pending motions for withdrawal of the reference based on the Withdrawn Stem Issues, all arguments previously raised by either or both of them in opposition to all such motions granted by the Prior Stem Withdrawal Rulings, and such objections or arguments are deemed to be overruled, solely with respect to the Withdrawn Stem Issues, for the reasons stated in the Prior Stem 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. The Stem Withdrawal Defendants shall file one consolidated opening brief, not to exceed forty (40) pages, addressing the Withdrawn Stem Issues on or before May 3, 2012. The Trustee and SIPC shall each file an opposition brief, not to exceed forty (40) pages each, addressing the Withdrawn Stem Issues on or before May 25, 2012. The Stem Withdrawal Defendants shall file one consolidated reply brief, not to exceed twenty (20) pages, on or before June 11, 2012. The Court will hold oral argument concerning the Withdrawn Stem Issues on June 18, 2012, at 2:00 p.m. (the "Hearing Date"). On or before June 11, 2012, the Stem Withdrawal 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 the Adversary Proceedings listed on Exhibits A and/or C, 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 Stem Issues) raised in the Adversary Proceedings by the Stem Withdrawal Defendants, all of which are preserved, as further set in this Order. (Signed by Judge Jed S. Rakoff on 4/13/2012) ***Docketed pursuant to Order docketed in case no. 12mc115 on 6/7/2013.***(tro)
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| Mailed notice re: Case Designated ECF, Mail Letter of Notification to Bankruptcy Court, #2 Memorandum of Law in Support, #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1503A, 08-1789 (BRL)., Case Referred as Possibly Related/Similar 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: 09-1503A (BRL).) with the U.S.D.C. - S.D.N.Y. and the assignment of S.D.N.Y. Case Number: 12-cv-2752. (pgu) |
| Filing 2 MEMORANDUM OF LAW in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1503A, 08-1789 (BRL).. Document filed by Deborah Madoff. (bkar) |
| Filing 1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 09-1503A, 08-1789 (BRL).Document filed by Deborah Madoff.(bkar) |
| Case Designated ECF. (bkar) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 11-cv-3775. (bkar) |
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