Atlantica Holdings, Inc. et al v. Sovereign Wealth Fund Samruk-Kazyna JSC
| Atlantica Holdings, Inc., Baltica Investment Holding, Inc., Blu Funds, Inc., Allan Kiblisky, Anthony Kiblisky and Jacques Gliksberg |
| Sovereign Wealth Fund Samruk-Kazyna JSC |
| 1:2012cv08852 |
| December 5, 2012 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Jesse M. Furman |
| Securities/Commodities |
| 15 U.S.C. ยง 77 Securities Fraud |
| Plaintiff |
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Filing
267
CLERK'S JUDGMENT re: 266 Memorandum & Opinion in favor of BTA Bank JSC, Sovereign Wealth Fund Samruk-Kazyna JSC against Atlantica Holdings, Inc., Baltica Investment Holding, Inc., Blu Funds, Inc. It is hereby ORDERED, ADJUDGED AND DECREE D: That for the reasons stated in the Court's Opinion and Order dated August 5, 2020, Defendants are entitled to summary judgment with respect to Plaintiffs claims under Section I 0(b) and Rule l 0b-5. It follows that they are also entitled t o summary judgment with respect to Plaintiffs' controlling-person liability claims under Section 20(a). See, e.g., First Jersey Sec., Inc., l 01 F.3d at 1472 ("In order to establish a prima facic case of [under Section 20(a)], a plaintif f must show a primary violation.... "). Accordingly, Defendants' motion for summary judgment is GRANTED, and Plaintiffs' motion for partial summary judgment is DENIED. In addition, Defendants' motion to strike the Hrycay reply declaration is GRANTED in part. All other motions are DENIED as moot. One housekeeping matter remains: By letter-motions, both Plaintiffs and Defendants sought to file certain documents under seal. See ECF Nos. 213, 220, 243. The Court granted the letter-motions temporarily, pending its decision on the underlying motions. It is well established that filings that are "relevant to the performance of the judicial function and useful in the judicial process" arc considered "judic ial documents" to which a presumption in favor of public access attaches. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Moreover, the mere fact that information is subject to a confidentiality agreement between litigan ts is not a valid basis to overcome that presumption. See, e.g., United States v. Wells Fargo Bank N.A., No. 12-CV-7527 (JMF), 2015 WL 3999074, at *4 (S.D.N.Y. June 30, 2015) (citing cases). Thus, any party that believes any materials currently und er seal should remain under seal or be redacted is ORDERED to show cause in writing, no later than two weeks from the date of the Opinion and Order, why doing so would be consistent with the presumption in favor of public access. If, by that deadl ine, no party contends that any particular documents should remain under seal or in redacted form, then the parties shall promptly file such documents publicly on ECF; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/6/2020) (Attachments: # 1 Right to Appeal) (km)
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Filing
266
OPINION AND ORDER re: (215 in 1:12-cv-08852-JMF) CROSS MOTION for Summary Judgment and Pre-Judgment Attachment. filed by Blu Funds, Inc., Baltica Investment Holding, Inc., Atlantica Holdings, Inc., (200 in 1:12-cv-08852-JMF) JOINT MOTION in Limine by Defendants BTA Bank JSC and Sovereign Wealth Fund Samruk-Kazyna JSC To Exclude Testimony of Michael R. Clark. filed by Sovereign Wealth Fund Samruk-Kazyna JSC, (203 in 1:12-cv-08852-JMF) JOINT MOTION in Limine b y Defendants BTA Bank JSC and Sovereign Wealth Fund Samruk-Kazyna JSC To Exclude Testimony of William Hrycay. filed by Sovereign Wealth Fund Samruk-Kazyna JSC, (237 in 1:12-cv-08852-JMF) JOINT MOTION to Strike The Declaration Of William P. Hrycay. filed by Sovereign Wealth Fund Samruk-Kazyna JSC, BTA Bank JSC, (206 in 1:12-cv-08852-JMF) JOINT MOTION for Summary Judgment by Defendants BTA Bank, JSC and Sovereign Wealth Fund Samruk-Kazyna, JSC. filed by BTA Bank JSC, (197 in 1:12-cv-08852-JMF) JOINT MOTION in Limine by Defendants BTA Bank JSC and Sovereign Wealth Fund Samruk-Kazyna JSC To Exclude Testimony of Vikram Kapoor. filed by Sovereign Wealth Fund Samruk-Kazyna JSC, (221 in 1:12-cv-08852- JMF) MOTION in Limine by Plaintiffs to Exclude The Reports and Testimony of Defendants' Purported Experts. filed by Blu Funds, Inc., Baltica Investment Holding, Inc., Atlantica Holdings, Inc.. For the foregoing reasons, D efendants are entitled to summary judgment with respect to Plaintiffs claims under Section 10(b) and Rule 10b-5. It follows that they are also entitled to summary judgment with respect to Plaintiffs' controlling-person liability claims under Section 20(a). See, e.g., First Jersey Sec., Inc., 101 F.3d at 1472 ("In order to establish a prima facie case of [under Section 20(a)], a plaintiff must show a primary violation...."). Accordingly, Defendants' motion for summary j udgment is GRANTED, and Plaintiffs' motion for partial summary judgment is DENIED. In addition, Defendants' motion to strike the Hrycay reply declaration is GRANTED in part. All other motions are DENIED as moot. One housekeeping matter r emains: By letter-motions, both Plaintiffs and Defendants sought to file certain documents under seal. See ECF Nos. 213, 220, 243. The Court granted the letter-motions temporarily, pending its decision on the underlying motions. It is well establi shed that filings that are "relevant to the performance of the judicial function and useful in the judicial process" are considered "judicial documents" to which a presumption in favor of public access attaches. Lugosch v. Pyr amid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Moreover, the mere fact that information is subject to a confidentiality agreement between litigants is not a valid basis to overcome that presumption. See, e.g., United States v. Wells Fargo Bank N.A., No. 12-CV-7527 (JMF), 2015 WL 3999074, at *4 (S.D.N.Y. June 30, 2015) (citing cases). Thus, any party that believes any materials currently under seal should remain under seal or be redacted is ORDERED to show cause in writing, no lat er than two weeks from the date of this Opinion and Order, why doing so would be consistent with the presumption in favor of public access. If, by that deadline, no party contends that any particular documents should remain under seal or in redact ed form, then the parties shall promptly file such documents publicly on ECF. The Clerk of Court is directed to terminate ECF Nos. 197, 200, 203, 206, 215, 221, and 237 and to close the case. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/5/2020) (ks) Transmission to Orders and Judgments Clerk for processing.
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Filing
255
ORDER: In light of the COVID-19 public health crisis, Court personnel are working remotely and have limited access to materials kept in Chambers. Accordingly, the parties are hereby ORDERED, no later than May 15, 2020, to file electronically all materials relating to the pending motions currently filed under seal or in redacted form in the manner described in Section 6 of the updated Electronic Case Filing Rules and Instructions ("ECF Rules"), available at http://nysd.uscourt s.gov/rules/ecf-related-instructions. Because the materials have already been filed publicly in redacted form, the parties need file the materials only once, "as a proposed sealed document in un-redacted form, with the redactions highlighted." ECF Rules § 6.8. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/7/2020) Filed In Associated Cases: 1:12-cv-08852-JMF, 1:13-cv-05790-JMF (ks)
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Filing
122
OPINION AND ORDER. For the reasons stated above, Defendants' motion for reconsideration and renewed motion to dismiss are DENIED. Per the Court's Opinion and Order entered on August 29, 2017 (12-CV-8852, Docket No. 113; 13-CV-5790, Docket N o. 158), the parties shall submit their proposed Joint Pretrial Order and related pretrial materials within thirty days of this Opinion and Order. Further, the parties should promptly meet and confer to discuss settlement and advise the Court if ther e is anything the Court can do to facilitate settlement, such as referral to the assigned Magistrate Judge for settlement purposes or referral to the Court-annexed mediation program. The Clerk of Court is directed to terminate Docket Nos. 107 and 111 in 12-CV-8852, and Docket No. 154 in 13-CV-5790. So ordered. re: (111 in 1:12-cv-08852-JMF) MOTION for Reconsideration of BTA Bank, JSC's Prior Motion To Dismiss filed by BTA Bank JSC, (107 in 1:12-cv-08852-JMF) MOTION to Di smiss Amended Complaint filed by Sovereign Wealth Fund Samruk-Kazyna JSC, (154 in 1:13-cv-05790-JMF) MOTION for Reconsideration of BTA Bank, JSC's Prior Motion To Dismiss filed by BTA Bank JSC. (Signed by Judge Jesse M. Furman on 2/15/2018) Filed In Associated Cases: 1:12-cv-08852-JMF, 1:13-cv-05790-JMF (rjm)
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Filing
113
MEMORANDUM OPINION AND ORDER re: (123 in 1:13-cv-05790-JMF) JOINT MOTION for Summary Judgment and for Judgment on the Pleadings filed by BTA Bank JSC. The Court has considered all of Defendants' arguments and finds that they are without merit. Accordingly, and for the reasons stated above, Defendants' motions for summary judgment and for judgment on the pleadings are DENIED. Three housekeeping matters remain. First, the Court temporarily approved the parti es' requests to file certain materials under seal or in redacted form, indicating that it would decide whether to do so permanently when deciding Defendants' motions. If either party believes that the papers should remain sealed or publ icly filed only in redacted form, it shall file a letter brief, not to exceed five pages and no later than September 12, 2017, addressing the propriety of doing so. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (discussing the presumption in favor of public access). If no party files a brief justifying the maintenance of a particular document in redacted form, the parties shall publicly file un-redacted versions of the document on ECF within two bu siness days. Second, the deadline for the parties to submit their proposed Joint Pretrial Order and related pretrial materials is hereby extended to thirty days after the Court's resolution of Defendants' pending motions to dismiss th e claims brought by Atlantica Holdings, Inc., Baltica Investment Holding, Inc., and Blu Funds, Inc. for lack of subject-matter and personal jurisdiction. See supra note 1. Third, the parties should promptly meet and confer to discuss settlement and advise the Court if there is anything the Court can do to facilitate a resolution without trial, such as referral to the assigned Magistrate Judge for settlement purposes or referral to the Court-annexed mediation program. The Clerk of Court is directed to terminate 13-CV-5790, Docket No. 123. (Signed by Judge Jesse M. Furman on 8/29/2017) Filed In Associated Cases: 1:12-cv-08852-JMF, 1:13-cv-05790-JMF(mro)
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Filing
46
MEMORANDUM OPINION AND ORDER re: 36 MOTION for Certificate of Appealability of Court's March 10, 2014 Opinion and Order filed by Sovereign Wealth Fund Samruk-Kazyna JSC. Accordingly, Defendant's motion for a certificate of appealability is GRANTED. The Clerk of Court is directed to terminate Docket No. 36. (Signed by Judge Jesse M. Furman on 5/9/2014) (mro)
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Filing
28
OPINION AND ORDER re: 15 MOTION to Dismiss Amended Complaint. filed by Sovereign Wealth Fund Samruk-Kazyna JSC. For the foregoing reasons, Defendant's motion to dismiss is DENIED in part and GRANTED in part. Specifically, the motion is DENIED except insofar as the Amended Complaint states claims arising out of statements in 2011 or later on behalf of Baltica and the individual Plaintiffs. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/10/2014) (ja)
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