Irving H. Picard v. Dahme Family Bypass Testamentary Trust dated 10/27/76 et al
| Irving H. Picard |
| Trust C under the Revocable Trust for Community Property and Separate Property of Robert L. Dahme and Delores K. Dahme, Dahme Family Bypass Testamentary Trust dated, Montecito Bank & Trust, Michael Dahme, Cheryl K. Tomchin and Cynthia A. Delles |
| Bernard L. Madoff Investment Securities LLC |
| 1:2012cv02781 |
| April 10, 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 14
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 13
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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| Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for (6 in 1:12-cv-02782-JSR, 7 in 1:12-cv-02789-JSR, 10 in 1:12-cv-02790-JSR, 10 in 1:12-cv-02784-JSR, 6 in 1:12-cv-02781-JSR, 6 in 1:12-cv-02780-JSR, 6 in 1:12-cv-02783-JSR, 10 in 1:12-cv-02786-JSR, 7 in 1:12-cv-02788-JSR) Consent Order, (5 in 1:12-cv-02790-JSR) Joinder, filed by Jenny W. Schlesinger, (9 in 1:12-cv-02783-JSR, 9 in 1:12-cv-02783-JSR, 13 in 1:12-cv-02784-JSR, 13 in 1:12-cv-02784-JSR, 8 in 1:12-cv-02789-JSR, 8 in 1:12-cv-02789-JSR, 9 in 1:12-cv-02788-JSR, 9 in 1:12-cv-02788-JSR, 13 in 1:12-cv-02786-JSR, 13 in 1:12-cv-02786-JSR, 11 in 1:12-cv-02790-JSR, 11 in 1:12-cv-02790-JSR) Order, Set Deadlines/Hearings, (7 in 1:12-cv-02782-JSR, 7 in 1:12-cv-02782-JSR, 7 in 1:12-cv-02780-JSR, 7 in 1:12-cv-02780-JSR, 7 in 1:12-cv-02781-JSR, 7 in 1:12-cv-02781-JSR) Order, Set Deadlines/Hearings, (4 in 1:12-cv-02790-JSR) Response to Motion, filed by Jenny W. Schlesinger, (15 in 1:12-cv-02786-JSR, 11 in 1:12-cv-02783-JSR, 11 in 1:12-cv-02788-JSR, 15 in 1:12-cv-02784-JSR, 14 in 1:12-cv-02790-JSR, 11 in 1:12-cv-02789-JSR) Order, (2 in 1:12-cv-02789-JSR) Memorandum of Law in Support filed by Lisa Liebmann, (12 in 1:12-cv-02790-JSR) Notice of Change of Address filed by Jenny W. Schlesinger, (8 in 1:12-cv-02790-JSR) Notice of Change of Address filed by Jenny W. Schlesinger, (7 in 1:12-cv-02786-JSR) Notice of Case Assignment/Reassignment, (5 in 1:12-cv-02781-JSR) Notice of Appearance filed by Irving H. Picard, (4 in 1:12-cv-02788-JSR) Notice of Case Assignment/Reassignment, (7 in 1:12-cv-02790-JSR) Notice of Appearance filed by Irving H. Picard, (3 in 1:12-cv-02781-JSR) Memorandum of Law in Support filed by Cynthia A. Delles, Cheryl K. Tomchin, (9 in 1:12-cv-02786-JSR) MOTION for Daniel D. Prichard to Appear Pro Hac Vice. filed by Michael Leeds, Margaret and Richard Lipmanson Foundation, The Leeds Partnership, Gregory Jobin Leeds, Kaleidoscope Foundation, Gerard Leeds, Jennifer Leeds, Liselotte Leeds, Richard Leeds, Daniel Leeds, (2 in 1:12-cv-02786-JSR) Memorandum of Law in Support, filed by Michael Leeds, Margaret and Richard Lipmanson Foundation, The Leeds Partnership, Gregory Jobin Leeds, Kaleidoscope Foundation, Gerard Leeds, Jennifer Leeds, Daniel Leeds, Richard Leeds, Liselotte Leeds, (2 in 1:12-cv-02790-JSR) Memorandum of Law in Support filed by Estate of Ruth Schlesinger, Marcia Schlesinger Roiff, (3 in 1:12-cv-02788-JSR) Declaration in Opposition filed by Mark A. Freeman, Francine Freeman, MAF Associates LLC, (3 in 1:12-cv-02780-JSR) Memorandum of Law in Support filed by Stephen H. Stern, (10 in 1:12-cv-02781-JSR, 10 in 1:12-cv-02780-JSR) Order, (4 in 1:12-cv-02782-JSR) Notice of Appearance filed by Irving H. Picard, (12 in 1:12-cv-02784-JSR) Order on Motion to Appear Pro Hac Vice, (11 in 1:12-cv-02782-JSR, 11 in 1:12-cv-02781-JSR, 11 in 1:12-cv-02780-JSR) Order, (2 in 1:12-cv-02783-JSR) Declaration in Support filed by David Ivan Lustig, (4 in 1:12-cv-02781-JSR) Notice of Appearance filed by Irving H. Picard, (5 in 1:12-cv-02789-JSR) Notice of Appearance filed by Irving H. Picard, (1 in 1:12-cv-02788-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5235A, 08-1789 (BRL). filed by Mark A. Freeman, Francine Freeman, MAF Associates LLC, (10 in 1:12-cv-02783-JSR, 10 in 1:12-cv-02782-JSR, 10 in 1:12-cv-02788-JSR) Order, (9 in 1:12-cv-02784-JSR) MOTION for Daniel D. Prichard to Appear Pro Hac Vice. filed by Liselotte J. Leeds Lifetime Trust, Liselotte Leeds, (5 in 1:12-cv-02782-JSR) Notice of Appearance filed by Irving H. Picard, (8 in 1:12-cv-02781-JSR) Notice of Case Assignment/Reassignment, (5 in 1:12-cv-02786-JSR) Notice of Appearance filed by Irving H. Picard, (3 in 1:12-cv-02789-JSR) Notice of Case Assignment/Reassignment, (7 in 1:12-cv-02784-JSR) Notice of Case Assignment/Reassignment, (9 in 1:12-cv-02790-JSR) Notice of Case Assignment/Reassignment, (6 in 1:12-cv-02789-JSR) Notice of Appearance filed by Lisa Liebmann, (6 in 1:12-cv-02790-JSR) Notice of Appearance filed by Irving H. Picard, (9 in 1:12-cv-02780-JSR, 9 in 1:12-cv-02781-JSR) Order, (1 in 1:12-cv-02790-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5018A, 08-1789 (BRL). filed by Estate of Ruth Schlesinger, Marcia Schlesinger Roiff, (5 in 1:12-cv-02783-JSR) Notice of Appearance filed by Irving H. Picard, (2 in 1:12-cv-02781-JSR) Declaration in Support filed by Cynthia A. Delles, Cheryl K. Tomchin, (10 in 1:12-cv-02789-JSR, 13 in 1:12-cv-02790-JSR) Order, (5 in 1:12-cv-02780-JSR) Notice of Appearance filed by Irving H. Picard, (2 in 1:12-cv-02780-JSR) Declaration in Support filed by Stephen H. Stern, (1 in 1:12-cv-02781-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5163A, 08-1789 (BRL). filed by Cynthia A. Delles, Cheryl K. Tomchin, (6 in 1:12-cv-02786-JSR) Notice of Appearance filed by Irving H. Picard, (8 in 1:12-cv-02782-JSR) Notice of Case Assignment/Reassignment, (2 in 1:12-cv-02782-JSR) Declaration in Support filed by The Lustig Family 1990 Trust, David I. Lustig, (9 in 1:12-cv-02789-JSR, 9 in 1:12-cv-02789-JSR) Order, Set Deadlines/Hearings, (2 in 1:12-cv-02788-JSR) Memorandum of Law in Support filed by Mark A. Freeman, Francine Freeman, MAF Associates LLC, (8 in 1:12-cv-02788-JSR, 8 in 1:12-cv-02783-JSR, 9 in 1:12-cv-02782-JSR) Order, (8 in 1:12-cv-02786-JSR) MOTION for Michael DeWayne Hays to Appear Pro Hac Vice. filed by Michael Leeds, Margaret and Richard Lipmanson Foundation, The Leeds Partnership, Gregory Jobin Leeds, Kaleidoscope Foundation, Gerard Leeds, Jennifer Leeds, Daniel Leeds, Richard Leeds, Liselotte Leeds, (3 in 1:12-cv-02784-JSR) Declaration in Support, filed by Liselotte J. Leeds Lifetime Trust, Liselotte Leeds, (1 in 1:12-cv-02786-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5444A, 08-1789 (BRL).MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5444A, 08-1789 (BRL). filed by Michael Leeds, Margaret and Richard Lipmanson Foundation, The Leeds Partnership, Gregory Jobin Leeds, Kaleidoscope Foundation, Gerard Leeds, Jennifer Leeds, Daniel Leeds, Richard Leeds, Liselotte Leeds, (4 in 1:12-cv-02786-JSR) Rule 7.1 Corporate Disclosure Statement, filed by Michael Leeds, Margaret and Richard Lipmanson Foundation, The Leeds Partnership, Gregory Jobin Leeds, Kaleidoscope Foundation, Gerard Leeds, Jennifer Leeds, Daniel Leeds, Richard Leeds, Liselotte Leeds, (5 in 1:12-cv-02788-JSR) Notice of Appearance filed by Irving H. Picard, (1 in 1:12-cv-02783-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-4554A, 08-1789 (BRL). filed by David Ivan Lustig, (3 in 1:12-cv-02790-JSR) Declaration in Support, filed by Estate of Ruth Schlesinger, Marcia Schlesinger Roiff, (14 in 1:12-cv-02784-JSR, 14 in 1:12-cv-02784-JSR) Order, Set Hearings, (3 in 1:12-cv-02783-JSR) Memorandum of Law in Support filed by David Ivan Lustig, (1 in 1:12-cv-02782-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-4417A, 08-1789 (BRL). filed by The Lustig Family 1990 Trust, David I. Lustig, (7 in 1:12-cv-02783-JSR) Notice of Case Assignment/Reassignment, (1 in 1:12-cv-02784-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5179A, 08-1789 (BRL). filed by Liselotte J. Leeds Lifetime Trust, Liselotte Leeds, (11 in 1:12-cv-02784-JSR) Order on Motion to Appear Pro Hac Vice, (11 in 1:12-cv-02786-JSR) Order on Motion to Appear Pro Hac Vice, (8 in 1:12-cv-02780-JSR) Notice of Case Assignment/Reassignment, (8 in 1:12-cv-02784-JSR) MOTION for Michael DeWayne Hays to Appear Pro Hac Vice. filed by Liselotte J. Leeds Lifetime Trust, Liselotte Leeds, (5 in 1:12-cv-02784-JSR) Notice of Appearance filed by Irving H. Picard, (6 in 1:12-cv-02788-JSR) Notice of Appearance filed by Irving H. Picard, (1 in 1:12-cv-02780-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-4569A, 08-1789 (BRL). filed by Stephen H. Stern, (12 in 1:12-cv-02786-JSR) Order Admitting Attorney Pro Hac Vice, (4 in 1:12-cv-02784-JSR) Rule 7.1 Corporate Disclosure Statement filed by Liselotte J. Leeds Lifetime Trust, Liselotte Leeds, (4 in 1:12-cv-02780-JSR) Notice of Appearance filed by Irving H. Picard, (3 in 1:12-cv-02782-JSR) Memorandum of Law in Support filed by The Lustig Family 1990 Trust, David I. Lustig, (4 in 1:12-cv-02789-JSR) Notice of Appearance filed by Irving H. Picard, (6 in 1:12-cv-02784-JSR) Notice of Appearance filed by Irving H. Picard, (14 in 1:12-cv-02786-JSR) Order on Motion to Appear Pro Hac Vice, (4 in 1:12-cv-02783-JSR) Notice of Appearance filed by Irving H. Picard, (3 in 1:12-cv-02786-JSR) Declaration in Support,, filed by Michael Leeds, Margaret and Richard Lipmanson Foundation, The Leeds Partnership, Gregory Jobin Leeds, Kaleidoscope Foundation, Gerard Leeds, Jennifer Leeds, Daniel Leeds, Richard Leeds, Liselotte Leeds, (1 in 1:12-cv-02789-JSR) MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5207A, 08-1789 (BRL). filed by Lisa Liebmann, (2 in 1:12-cv-02784-JSR) Memorandum of Law in Support filed by Liselotte J. Leeds Lifetime Trust, Liselotte Leeds were transmitted to the U.S. Court of Appeals. (tro) |
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Filing 11
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 10
ORDER: BASED ON THE FOREGOING, IT IS HEREBY ORDERED AS FOLLOWS: The Prior Administrative Order is hereby amended and superseded by this Order and the Adversary Proceedings listed on Exhibit A are incorporated by reference herein: The motions to withdraw the reference in the Adversary Proceedings identified on Exhibit B hereto are governed by the Consolidated Briefing Orders and Permissive Withdrawal Orders and shall be resolved through the common briefing ordered therein; The motions to withdraw the reference in the Adversary Proceedings identified on Exhibit C hereto, which raised permissive withdrawal arguments that were previously deferred by prior orders of this Court, are governed by the Permissive Withdrawal Orders and, for the reasons stated therein, the Court regards the permissive withdrawal arguments made in such motions as subsumed by the consolidated briefing on the issues presented by the Stern Order; Accordingly, the Court will resolve the permissive withdrawal issues raised in the motions to withdraw the reference in the Adversary Proceedings identified on Exhibit C when the Court decides the motion described in the Stern Order; The prior consent orders entered by this Court with respect to the Adversary Proceedings identified on Exhibit C hereto are hereby vacated and superseded by this Order; The resolution of the issues covered by Consolidated Briefing Orders and Permissive Withdrawal Orders shall govern the motions to withdraw the reference pending in the Adversary Proceedings and no further action is required with respect to such motions; Any individual briefing schedules previously established with respect to motions to withdraw the reference pending in the Adversary Proceedings are hereby vacated. (Signed by Judge Jed S. Rakoff on 7/11/2012) (mro)
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| Filing 8 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-06244-JSR. Notice of Assignment to follow. (pgu) |
| Magistrate Judge Henry B. Pitman is so designated. (pgu) |
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Filing 9
ORDER: The motions to withdraw the reference in the Adversary Proceedings identified on Exhibit A hereto are governed by the Consolidated Briefing Order and shall be resolved through the common briefing ordered therein. Any individual briefing schedules previously established with respect to motions to withdraw the reference pending in the Adversary Proceedings are hereby vacated. The resolution of the Consolidated Briefing Issues shall govern the motions to withdraw the reference pending in the Adversary Proceedings and no further action is required with respect to such motions. (Signed by Judge Jed S. Rakoff on 5/15/2012) (jw)
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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) (ft)
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Filing 7
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) (jfe)
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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) |
| Mailed notice re: #2 Declaration in Support, #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5163A, 08-1789 (BRL)., Mail Letter of Notification to Bankruptcy Court, Case Designated ECF, #3 Memorandum of Law in Support, 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: 10-5163A (BRL).) with the U.S.D.C. - S.D.N.Y. and the assignment of S.D.N.Y. Case Number: 12-cv-2781. (pgu) |
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Filing 12
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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| Filing 3 MEMORANDUM OF LAW in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5163A, 08-1789 (BRL).. Document filed by Cynthia A. Delles, Cheryl K. Tomchin. (bkar) |
| Filing 2 DECLARATION of Bryan Ha in Support re: #1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5163A, 08-1789 (BRL).. Document filed by Cynthia A. Delles, Cheryl K. Tomchin. (Attachments: #1 Exhibit A)(bkar) |
| Filing 1 MOTION TO WITHDRAW THE BANKRUPTCY REFERENCE. Bankruptcy Court Case Numbers: 10-5163A, 08-1789 (BRL).Document filed by Cheryl K. Tomchin, Cynthia A. Delles.(bkar) |
| Case Designated ECF. (bkar) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 11-cv-6244. (bkar) |
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