1:10-ap-03800•Irving H. Picard, Trustee for the Liquidation of B v. Fairfield Greenwich Group et al
Irving H. Picard, Trustee for the Liquidation of B v. Fairfield Greenwich Group et al
1:10-ap-03800Nysb8 de abr. de 2021
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: FAIRFIELD SENTRY LIMITED, et al., Debtors in Foreign Proceedings. Chapter 15 Case No. 10-13164 (CGM) Jointly Administered IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, as assignee of Fairfield Sentry Limited, Plaintiff, v. FAIRFIELD GREENWICH GROUP, FAIRFIELD GREENWICH (BERMUDA), LIMITED, FAIRFIELD GREENWICH ADVISORS LLC, FAIRFIELD GREENWICH LIMITED, FAIRFIELD INTERNATIONAL MANAGERS, INC., WALTER NOEL, JR., JEFFREY TUCKER, ANDRÉS PIEDRAHITA, AMIT VIJAYVERGIYA, PHILIP TOUB, and CORINA NOEL PIEDRAHITA, Adv. Pro. No. 10-03800 (CGM) Defendants. FAIRFIELD GREENWICH (BERMUDA), LIMITED, Third-Party Plaintiff, v. FAIRFIELD SENTRY LIMITED (IN LIQUIDATION), Third-Party Defendant. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WHEREAS, Irving H. Picard (the “Trustee”) is the trustee for the liquidation of the business of Bernard L. Madoff Investment Securities LLC (“BLMIS”) under the Securities 10-03800-cgm Doc 162 Filed 04/08/21 Entered 04/08/21 11:09:17 Main Document Pg 1 of 4
2 Investor Protection Act, 15 U.S.C. §§ 78aaa-lll (“SIPA”), and the substantively consolidated estate of Bernard L. Madoff (“Madoff”), and is the assignee of claims from Fairfield Sentry Limited (“Fairfield Sentry”) in the above-captioned adversary proceeding (the “Adversary Proceeding”); WHEREAS, on or about February 22, 2019, the Trustee filed a motion for leave to file a Second Amended Complaint in the Adversary Proceeding on behalf of Fairfield Sentry, alleging claims against defendants Fairfield Greenwich Group, Fairfield Greenwich (Bermuda), Limited (“FG Bermuda”), Fairfield Greenwich Advisors LLC, Fairfield Greenwich Limited (“FG Limited”), Fairfield International Managers, Inc., Walter Noel, Jr., Jeffrey Tucker, Andrés Piedrahita, Amit Vijayvergiya, Philip Toub and Corina Noel Piedrahita (collectively, “Defendants”); WHEREAS, this cause having come before the Court on the motion of Defendants, by and through their counsel, seeking entry of an order granting Defendants’ Motion to Dismiss the Second Amended Complaint (“Defendants’ Motion”); WHEREAS, this Court, having considered the Memorandum of Law in Support of Defendants’ Motion (ECF No. 99); the Declaration of Peter E. Kazanoff in Support of Defendants’ Motion (ECF No. 100) and its accompanying exhibits (ECF No. 100-1 – 100-8); the Trustee’s Memorandum of Law in Opposition to Defendants’ Motion (ECF No. 118); the Declaration of Jonathan A. Forman in Support of the Opposition to Defendants’ Motion (ECF No. 119) and its accompanying exhibits (ECF No. 119-1 – 119-8); the Defendants’ Reply Memorandum of Law in Support of Defendants’ Motion (ECF No. 129); the Trustee’s Supplemental Memorandum of Law in Opposition to Defendants’ Motion (ECF No. 141); the letter to the Honorable Cecelia G. Morris regarding the conflict of law analysis (ECF No. 145); 10-03800-cgm Doc 162 Filed 04/08/21 Entered 04/08/21 11:09:17 Main Document Pg 2 of 4
3 the Defendants’ Supplemental Memorandum of Law in Further Support of Defendants’ Motion (ECF No. 146); and the letter to the Honorable Cecelia G. Morris regarding the choice of law (ECF No. 149); WHEREAS, on February 10, 2021, the Court granted the Trustee’s motion for leave to file the Second Amended Complaint and heard oral argument on Defendants’ Motion; and WHEREAS, on March 25, 2021, the Court issued a Memorandum Decision Denying Defendants’ Motion to Dismiss in Part, ECF No. 161, which is incorporated herein and made a part hereof, NOW, THEREFORE, IT IS HEREBY ORDERED, that 1. As to the First Claim (Breach of Contract against FG Limited under the 2002 Investment Management Agreement), to which the Court applied New York law; the Second Claim (Breach of Contract against FG Bermuda under the 2003 Investment Management Agreement), to which the Court applied Bermuda law; the Third Claim (Breach of Contract against FG Bermuda under the 2004 Investment Management Agreement), to which the Court applied Bermuda law; and the Fifth Claim (Constructive Trust against all Defendants), to which the Court applied British Virgin Islands (“BVI”) law, Defendants’ Motion is DENIED; 2. As to the Fourth Claim (Unjust Enrichment against all Defendants), to which the Court applied BVI law, the Motion to Dismiss is GRANTED as to FG Limited and FG Bermuda; and DENIED as to all other Defendants; and 10-03800-cgm Doc 162 Filed 04/08/21 Entered 04/08/21 11:09:17 Main Document Pg 3 of 4
4 3. The Trustee is permitted to conduct jurisdictional discovery to determine whether general jurisdiction exists over Andres Piedrahita. Dated: April 8, 2021 Poughkeepsie, New York /s/ Cecelia G. Morris _______________________ Hon. Cecelia G. Morris Chief U.S. Bankruptcy Judge 10-03800-cgm Doc 162 Filed 04/08/21 Entered 04/08/21 11:09:17 Main Document Pg 4 of 4
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