Kirschner v. AQR Funds (AQR Diversified Arbitrage Fund)
| MARC S. KIRSCHNER |
| AQR FUNDS (AQR DIVERSIFIED ARBITRAGE FUND) |
| 1:2020cv04289 |
| June 5, 2020 |
| US District Court for the Southern District of New York |
| Jed S Rakoff |
| Other Statutory Actions |
| 11 U.S.C. § 101 |
| Plaintiff |
Docket Report
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| Filing 26 REPLY MEMORANDUM OF LAW in Support re: (93 in 1:20-md-02941-JSR) MOTION to Dismiss Under the Section 546(e) Securities Safe Harbor on Behalf of Former Director and Officer Defendants. . Document filed by Christopher R. Cade, Dianne Card, Wesley R Card, Gerald C. Crotty, Ira M. Dansky, John D. Demsey, Cynthia DiPietrantonio, Richard L. Dickson, Joseph T. Donnalley, Tami Fersko, Mary Margaret Hastings Georgiades, Ira Martin Dansky Revocable Trust, Matthew H. Kamens, Sidney Kimmel, John T McClain, Robert L. Mettler, James A. Mitarotonda, Jeffrey D. Nuechterlein, Robert and Susan Mettler Family Trust U/A 3/27/06, Robert L. Mettler, Susan T. Mettler, Trustees, Lowell W. Robinson, TELENDOS, LLC, Aida Tejero-Decolli, The Sidney Kimmel Revocable Indenture of Trust, Ann Marie C Wilkins. Filed In Associated Cases: 1:20-md-02941-JSR, 1:20-cv-04287-JSR, 1:20-cv-04289-JSR.(Gordon, Andrew) |
| Filing 25 MEMORANDUM OF LAW in Opposition re: (93 in 1:20-md-02941-JSR) MOTION to Dismiss Under the Section 546(e) Securities Safe Harbor on Behalf of Former Director and Officer Defendants. Plaintiffs' Memorandum of Law in Opposition to Former Director and Officer Defendants' Motion to Dismiss Under 11 U.S.C. 546(e). Document filed by Marc S Kirschner, Wilmington Savings Fund Society, FSB. (Attachments: #1 Appendix 1)Filed In Associated Cases: 1:20-md-02941-JSR et al..(Friedman, Edward) |
| Filing 24 MEMORANDUM OF LAW in Opposition re: (88 in 1:20-md-02941-JSR) MOTION to Dismiss Under the Safe Harbor of 11 U.S.C. 546(e) of Public Shareholder Defendants. Plaintiffs' Memorandum of Law in Opposition to Public Shareholder Defendants' Motion to Dismiss Under 11 U.S.C. 546(e). Document filed by Marc S Kirschner, Wilmington Savings Fund Society, FSB. Filed In Associated Cases: 1:20-md-02941-JSR et al..(Friedman, Edward) |
Filing 23
ORDER: As per Paragraph 5 of the Order dated June 12, 2020, see ECF No. 20, the Clerk of the Court is directed to unseal the complaints, to the extent they are still sealed, in the actions 20-cv-4262, 20-cv-4265, 20-cv-4267, 20-cv-4286, 20-cv-4287, 20-cv-4289, 20-cv-4292, 20-cv-4299, 20-cv-4335, 20- cv-4346, 20-cv-4360, 20-cv-4404, 20-cv-4434, 20-cv-4436, 20-cv-4440, 20-cv-4479, 20-cv-4480, and 20-cv-4569 (but not the complaint in the 20-cv-4433 action) and replace any remaining pseudonyms with the corresponding names of the defendants contained in the captions of the complaints. Plaintiffs' counsel shall cooperate with the Clerk's Office in carrying out this process as promptly as possible. SO ORDERED. (Signed by Judge Jed S. Rakoff on 7/2/2020) Filed In Associated Cases: 1:20-md-02941-JSR et al. (mml)
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Filing 22
ORDER: This Order addresses an additional housekeeping matter that has not been raised before. In the Order dated June 12, 2020, the Court, among other things, stated: "All counsel who had not appeared in an action prior to its transfer, and all counsel in actions filed originally in this district, must enter a notice of appearance in that action and in 20-MD-2941 and, if necessary, apply for admission pro hac vice." ECF No. 20, at 5. To further clarify, an attorney applying for admission pro hac vice should file such a motion in the 20-MD-2941 docket and "spread" the submission to all cases in which the attorney represents a party. The attorney shall be required to pay the pro hac vice fee for the equivalent of only one case. (Signed by Judge Jed S. Rakoff on 7/1/2020) Filed In Associated Cases: 1:20-md-02941-JSR et al. (jwh)
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| Filing 21 MOTION for Joinder to Join the Former Director and Officer Defendants Motion to Dismiss and the Public Shareholder Defendants Motion to Dismiss. Document filed by Nicola Guarna, Robert Rodriguez, Robert Rodriguez.Filed In Associated Cases: 1:20-md-02941-JSR et al..(Brennan, Travis) |
| >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. (142 in 1:20-cv-04346-JSR, 116 in 1:20-cv-04436-JSR, 76 in 1:20-cv-04286-JSR, 48 in 1:20-cv-04287-JSR, 68 in 1:20-md-02941-JSR, 79 in 1:20-cv-04292-JSR, 151 in 1:20-cv-04335-JSR, 96 in 1:20-cv-04262-JSR, 97 in 1:20-cv-04569-JSR) MOTION for Cliff C. Gardner to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-20465400. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. Filed In Associated Cases: 1:20-md-02941-JSR et al.(wb) |
| Filing 20 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by AQR Funds (AQR Diversified Arbitrage Fund), AQR Absolute Return Master Account, L.P., AQR DELTA Master Account, L.P., AQR DELTA Sapphire Fund, L.P., AQR DELTA XN Master Account, L.P. (Two Greenwich Plaza 3rd Fl. Greenwich, CT 06830 ), AQR Funds-AQR Multi-Strategy Alternative Fund, CNH Master Account, L.P., CNH Opportunisitic Premium Offshore Fund, L.P., AQR Absolute Return Master Account, L.P., AQR DELTA Master Account, L.P., AQR DELTA XN Master Account, L.P., AQR Funds (AQR Multi-Strategy Alternative Fund, CNH Opportunistic Premium Offshore Fund, L.P., CNH Master Account, L.P., AQR DELTA Sapphire fund, L.P..Filed In Associated Cases: 1:20-md-02941-JSR, 1:20-cv-04289-JSR, 1:20-cv-04434-JSR.(Anker, Philip) |
| Filing 19 NOTICE OF APPEARANCE by Danielle Elizabeth Tepper on behalf of ABC, Marc S Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, ABC, Marc S Kirschner, Marc S. Kirschner, Marc S. Kirschner, Mark S. Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, Marc S Kirschner. Filed In Associated Cases: 1:20-md-02941-JSR et al..(Tepper, Danielle) |
| Filing 18 NOTICE OF APPEARANCE by Priyanka Kishore Wityk on behalf of ABC, Marc S Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, ABC, Marc S Kirschner, Marc S. Kirschner, Marc S Kirschner, Marc S. Kirschner, Mark S. Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, Wilmington Savings Fund Society, FSB. Filed In Associated Cases: 1:20-md-02941-JSR et al..(Wityk, Priyanka) |
| Filing 17 NOTICE OF APPEARANCE by Shenghao Stan Chiueh on behalf of ABC, Marc S Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, ABC, Marc S Kirschner, Marc S. Kirschner, Marc S Kirschner, Marc S. Kirschner, Mark S. Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, Wilmington Savings Fund Society, FSB. Filed In Associated Cases: 1:20-md-02941-JSR et al..(Chiueh, Shenghao) |
| Filing 16 NOTICE OF APPEARANCE by Jeffrey Carl Fourmaux on behalf of ABC, Marc S Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, ABC, Marc S Kirschner, Marc S. Kirschner, Marc S Kirschner, Marc S. Kirschner, Mark S. Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, Wilmington Savings Fund Society, FSB. Filed In Associated Cases: 1:20-md-02941-JSR et al..(Fourmaux, Jeffrey) |
| Filing 15 NOTICE OF APPEARANCE by Andrew W. Goldwater on behalf of Marc S Kirschner, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Wilmington Savings Fund Society, FSB, Marc S Kirschner, Marc S Kirschner, Marc S. Kirschner, Marc S. Kirschner, Mark S. Kirschner, Wilmington Savings Fund Society, FSB, Marc S Kirschner, Marc S Kirschner, Wilmington Savings Fund Society, FSB. Filed In Associated Cases: 1:20-md-02941-JSR et al..(Goldwater, Andrew) |
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Filing 14
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Jed S. Rakoff on 6/22/2020) (va)
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| Filing 13 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 6/12/2020 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...Filed In Associated Cases: 1:20-md-02941-JSR et al..(McGuirk, Kelly) |
| Filing 12 TRANSCRIPT of Proceedings re: CONFERNECE held on 6/12/2020 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Jennifer Thun, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/13/2020. Redacted Transcript Deadline set for 7/23/2020. Release of Transcript Restriction set for 9/21/2020.Filed In Associated Cases: 1:20-md-02941-JSR et al..(McGuirk, Kelly) |
| Filing 11 SUMMONS RETURNED EXECUTED Summons and Complaint served. AQR Funds (AQR Diversified Arbitrage Fund) served on 6/15/2020, answer due 7/6/2020. Document filed by Marc S. Kirschner..(Lack, Robert) |
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Filing 10
ORDER: Upon further consideration of the issues discussed during the telephonic conference held earlier today at 2:00 p.m., see Transcript dated June 12, 2020, the Court sets the following schedule for certain pretrial proceedings in these consolidated actions, and resolves various housekeeping matters in the following manner. 1. By Orders dated June 4, 2020 and June 9, 2020, the Court consolidated 15 cases under the MDL docket 20-MD-2941 for all pre-trial purposes. See 20-MD-2941, ECF Nos. 2, 3. The following four additional related actions are hereby consolidated with all 15 other actions under the MDL docket 20-MD-2941 for all pretrial purposes: Kirschner, et al. v. Robeco Capital Growth Funds - Robeco BP US Premium Equities, No. 20-cv-4479, Kirschner, et al. v. Schwab Capital Trust, No. 20-cv-4480, Kirschner v. Advisors Series Trust (Kellner Merger Fund), et al., No. 20-cv-4433, and Kirschner v. Voya Russell Small Cap Index Portfolio, et al., No. 20-cv-4434. 2. The Court hereby adopts the following (partial) Case Management Plan. (a) Briefs on any anticipated motions to dismiss must be filed on the following bifurcated schedule: (First Round) For any motion to dismiss relating to 546(e) of the Bankruptcy Code, briefs must be filed on the following schedule: (a) moving papers due June 29, 2020; (b) answering papers due July 27, 2020; and (c) reply papers due August 3, 2020. Oral argument on these motions shall be held on August 13, 2020, at 10:00 a.m. The Court will issue its decision on these motions in writing by no later than August 27, 2020. (Second Round) As to any action not dismissed after the First Round, any motion to dismiss on any other ground must be briefed on the following schedule: (a) moving papers due September 7, 2020; (b) answering papers due October 5, 2020; and (c) reply papers due October 12, 2020. Oral argument on the Second Round of motions will be held on October 21, 2020 at 2:00 p.m. The Court will issue its decision on these motions in writing by no later than November 4, 2020. (b) After plaintiffs' counsel serves those defendants who have not yet been served (which, based on plaintiffs' counsel's representation, the Court expects to be completed by no later than June 19, 2020), plaintiffs' counsel should promptly advise counsel for those defendants that the instant Order and schedule will apply to those defendants as well. If any of these defendants has any objection to that determination, their counsel, along with plaintiffs' counsel, must convene a joint telephonic conference with Chambers pursuant to Rules 1 and 2 of the Court's Individual Rules of Practice by no later than June 26, 2020. (c) These consolidated actions are not stayed after today, and any and all stays entered by district judges in the actions transferred from other districts are hereby lifted. Document discovery and interrogatories pursuant to Rule 33.3(a) of the Local Civil Rules of the Southern District of New York may commence whenever the parties wish, provided that all such document and interrogatory discovery must be completed by November 4, 2020. In its order of November 4 (see above), the Court will set a schedule for deposition discovery and any summary judgment motion practice. 3. To the extent that the parties anticipate seeking confidential treatment for any discovery in this case, they must jointly submit a proposed protective order, substantially in compliance with Judge Rakoff's model protective order, by no later than June 22, 2020. To the extent that there are any conflicts between the confidentiality order to be entered into by the Court on or about June 22, 2020 and the confidentiality order, as amended, entered into by the Bankruptcy Court for the Southern District of New York in In re: Nine West Holdings, Inc., No. 18-10947 (SCC), ECF Nos. 972, 1471, and 1544 (Bankr. S.D.N.Y.), this Courts order will supersede the Bankruptcy Court's order. (If any party deems it necessary and so advises the Court, the Court will withdraw the reference in the aforesaid bankruptcy for the limited purpose of modifying that court's protective order.) 4. Two recently filed actions -- Kirschner v. Advisors Series Trust (Kellner Merger Fund), et al., No. 20-cv-4433, and Kirschner v. Voya Russell Small Cap Index Portfolio, et al., No. 20-cv-4434 -- were filed under seal at the request of plaintiffs' counsel. Plaintiffs' counsel has now advised the Court that 20-cv-4434 no longer needs to be kept under seal. Accordingly, the Clerk of the Court is hereby directed to unseal that action forthwith. As to the other action, the relevant parties are hereby directed to promptly consult with one another to see if this sealing should be lifted. In any event, the Court's present intention, unless convinced otherwise, is to unseal this remaining action on or shortly after June 22, 2020. 5. Inasmuch as it has been represented to the Court that the parties have now resolved the issues that had previously existed concerning the confidentiality of some documents (other than the 20-cv-4433 action referred to in #4) previously filed with the Court under seal, the Clerk of the Court is directed to unseal all such documents and to replace any remaining pseudonyms with the corresponding names of the defendants contained in the captions of the complaints. Plaintiffs' counsel shall cooperate with the Clerk's Office in carrying out this process as promptly as possible. 6. In accord with Rule 2.1(c) of the Procedure of the United States Judicial Panel on Multidistrict Litigation, all counsel who appeared in any of the actions prior to their transfer to this district may continue to represent his or her client and such client need not obtain local counsel. In addition, such counsel need not enter a notice of appearance, provided that they have entered one prior to the transfer, and need not apply for admission pro hac vice. 7. All counsel who had not appeared in an action prior to its transfer, and all counsel in actions filed originally in this district, must enter a notice of appearance in that action and in 20-MD-2941 and, if necessary, apply for admission pro hac vice, as further set forth in this Order. 10. Plaintiffs' unopposed pending motions to dismiss without prejudice Kirschner v. Card, et al., No. 20-cv-4360, and Wilmington Savings Fund Society, FSB v. Card, et al., No. 20-cv-4404, as duplicative of actions earlier commenced by the same plaintiff's against the same defendants and others, are hereby granted. SO ORDERED. (Motions due by 9/7/2020, Responses due by 10/5/2020, Replies due by 10/12/2020. Service due by 6/19/2020. Oral Argument set for 8/13/2020 at 10:00 AM before Judge Jed S. Rakoff. Oral Argument set for 10/21/2020 at 02:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 6/12/2020) Filed In Associated Cases: 1:20-md-02941-JSR et al. (mml)
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Filing 9
ORDER: The Kimmel and AQR actions are hereby consolidated with other actions under the MDL docket 20-MD-2941 for all pre-trial purposes and are subject to the June 4 Order. Accordingly, among others, counsel for the Kimmel and AQR actions must join the June 12 telephonic conference and may, if they wish, file electronically with the Court such Status Reports as they deem relevant, apprising the Court of where each case stands and what counsel would like to have considered at the June 12 conference, provided such Status Reports are filed no later than June 10, 2020 at 5:00 p.m. (EDT). SO ORDERED. (Telephone Conference set for 6/12/2020 at 02:00 PM before Judge Jed S. Rakoff). (Signed by Judge Jed S. Rakoff on 6/9/2020) Filed In Associated Cases: 1:20-md-02941-JSR, 1:20-cv-04287-JSR, 1:20-cv-04289-JSR (rjm)
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| CONSOLIDATED MDL CASE: Create association to 1:20-md-02941-JSR. (sjo) |
| Filing 8 NOTICE OF APPEARANCE by Robert Joel Lack on behalf of Marc S. Kirschner..(Lack, Robert) |
| Filing 7 ELECTRONIC SUMMONS ISSUED as to AQR Funds (AQR Diversified Arbitrage Fund)..(pc) |
| CASE ACCEPTED AS RELATED. Create association to 1:20-md-02941-JSR. Notice of Assignment to follow. (ad) |
| NOTICE OF CASE REASSIGNMENT to Judge Jed S. Rakoff. Judge Unassigned is no longer assigned to the case. (ad) |
| Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (ad) |
| CASE ACCEPTED AS RELATED. Create association to 1:20-md-02941-JSR. (ad) |
| Filing 6 REQUEST FOR ISSUANCE OF SUMMONS as to AQR Funds (AQR Diversified Arbitrage Fund), re: #1 Complaint. Document filed by Marc S. Kirschner..(Friedman, Edward) |
| Filing 5 STATEMENT OF RELATEDNESS re: that this action be filed as related to 20-md-2941 (JSR). Document filed by Marc S. Kirschner..(Friedman, Edward) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Edward A. Friedman. The party information for the following party/parties has been modified: MARC S. KIRSCHNER; AQR FUNDS (AQR DIVERSIFIED ARBITRAGE FUND). The information for the party/parties has been modified for the following reason/reasons: party name was entered in all caps;. (jgo) |
| ***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Edward A. Friedman. The following case opening statistical information was erroneously selected/entered: County code XX Out of State;. The following correction(s) have been made to your case entry: the County code has been modified to New York;. (jgo) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT RELATED CASE STATEMENT. Notice to attorney Edward A. Friedman to RE-FILE Document No. #3 Statement of Relatedness. The filing is deficient for the following reason(s): the entire related case number must be listed on the docket entry text;. Re-file the document using the event type Statement of Relatedness found under the event list Other Documents - select the correct filer - enter the related case number when prompted - and attach the correct PDF. (jgo) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Unassigned. .(jgo) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Edward A. Friedman to RE-FILE Document No. #4 Request for Issuance of Summons,. The filing is deficient for the following reason(s): the date field on the offical A.O. Summons form was completed by the attorney;. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (jgo) |
| CASE REFERRED TO Judge Jed S. Rakoff as possibly related to 20-md-2941. (jgo) |
| Case Designated ECF. (jgo) |
| Filing 4 FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to AQR Funds (AQR Diversified Arbitrage Fund), re: #1 Complaint. Document filed by MARC S. KIRSCHNER..(Friedman, Edward) Modified on 6/8/2020 (jgo). |
| Filing 3 FILING ERROR - FILING ERROR - STATEMENT OF RELATEDNESS re: that this action be filed as related to MDL 2941. Document filed by MARC S. KIRSCHNER..(Friedman, Edward) Modified on 6/8/2020 (jgo). |
| Filing 2 CIVIL COVER SHEET filed..(Friedman, Edward) |
| Filing 1 COMPLAINT against AQR FUNDS (AQR DIVERSIFIED ARBITRAGE FUND). (Filing Fee $ 400.00, Receipt Number ANYSDC-20125351)Document filed by MARC S. KIRSCHNER..(Friedman, Edward) |
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