united states court of appeals for the second circuit

144 Pages·2013·0.41 MB·English

Case: 12-2557 Document: 99-1 Page: 1 12/20/2012 800043 9

UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of December, two thousand and twelve.

__________________________________________________
In re: BERNARD L. MADOFF INVESTMENT
SECURITIES LLC,
Debtor.
----------------------------------------------------------------------------
IRVING H. PICARD, TRUSTEE FOR THE LIQUIDATION
OF BERNARD L. MADOFF INVESTMENT SECURITIES
LLC,
Plaintiff-Appellant, ORDER
SECURITIES INVESTOR PROTECTION CORPORATION, Docket No. 12-2497
Intervenor-Appellant,
v.
IDA FISHMAN REVOCABLE TRUST, et al.,
Appellees.
__________________________________________________
SECURITIES INVESTOR PROTECTION CORPORATION
and IRVING H. PICARD,
Plaintiffs-Appellants, Docket No. 12-2557
v.
DAVID SILVER, et al.,
Defendants-Appellees.
__________________________________________________
SECURITIES INVESTOR PROTECTION CORPORATION
and IRVING H. PICARD,
Plaintiffs-Appellants, Docket No. 12-3422
v.
DAVID SILVER, et al.,
Defendants-Appellees.
__________________________________________________

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ORDER GRANTING JOINT MOTION BY APPELLANTS AND
CERTAIN DEFENDANTS-APPELLEES FOR CONSOLIDATION
OF APPEALS AND FOR RELATED CASE MANAGEMENT RELIEF

Upon consideration of the joint motion by appellants and various defendants-appellees
for consolidation of the above-referenced appeals pending in this Court, and for related case
management relief in the appeals (the “Motion”), and the Court finding that good cause exists to
grant the requested relief:
The Motion is GRANTED.1 Accordingly:
1. Pursuant to Fed. R. App. P. 3(b)(2), the following cases shall be, and hereby
are, consolidated under No. 12-2557 (the “Consolidated Appeal”): No. 12-2497 (including
No. 12-2500 previously consolidated with it); No. 12-2557 (including No. 12-2616
previously consolidated with it); and No. 12-3422 (including Nos. 12-3440, 12-3582 and
12-3585 previously consolidated with it).
2. The briefing schedule for the Consolidated Appeal should be the schedule
currently set by order of this Court entered in No. 12-2557 on September 6, 2012 (ECF No.
90).
3. The full caption of the Consolidated Appeal shall be as shown on the attached
Exhibit A. The short title of the Consolidated Appeal shall be In re Madoff Securities.
4. All briefs, motions and other papers or pleadings in the appeals subject to this
order shall be filed solely in the docket of the Consolidated Appeal, unless otherwise ordered
by the Court.
5. The cases listed in the attached Exhibit B are consolidated with the
Consolidated Appeal. The defendants listed in those cases are appellees in the Consolidated

1 Capitalized terms not defined in this Order shall have the meanings given in the
Motion.
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Appeal. By this reference to Exhibit B the appellees are added to the docket of the
Consolidated Appeal.
6. The District Court dockets and their contents in the underlying actions may be
utilized to the extent that this Court deems the same to be pertinent and necessary for purposes
of the Consolidated Appeal even if such parts of the record are not included in the appendix,
pursuant to Fed. R. App. P. 30(a)(2).
7. The defendants-appellees listed in Exhibit B (collectively, the "Defendants-
Appellees") may file not more than a total of sixteen briefs in the Consolidated Appeal, and
such briefs are allocated as follows; (a) one brief for each of the four cases listed in Paragraph
5 of the Motion as comprising the Decided Actions for a maximum total of four briefs; (b) one
brief for each of the two cases listed in Paragraph 9 of the Motion as comprising the
Withdrawn 546(e) Actions, for a maximum total of two briefs; and (c) for the Eligible Actions
including the Stipulated Matters listed in Paragraph 14 of the Motion and the Inadvertently
Omitted Actions listed in Paragraph 17 of the Motion, not more than a total of ten briefs
allocated as counsel in those actions may determine. To further the goals of this case
management order Defendants-Appellees shall use reasonable efforts in good faith to avoid
duplication in the submission of briefs. Not later than ten calendar days before the date on
which the appellees’ briefs are required to be filed in the Consolidated Appeal, counsel who
will file briefs allocated to the Eligible Actions (including the Stipulated Matters) and
Inadvertently Omitted Actions shall contact the Clerk of the Court, in writing, to identify
themselves as the filers of such briefs and shall provide their names, addresses and contact
information, and the names of their clients-Defendants.
8. No party’s substantive rights shall be prejudiced by this Order.
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9. To attempt to minimize duplication of filings and to provide for efficient
management of and communications concerning the Consolidated Appeal, the following
attorneys for the defendants-movants shall constitute the initial members of a “Defendants-
Appellees’ Liaison Committee” (“Liaison Committee”):
Carole Neville, Esq.
SNR Denton USA LLP
Attorneys for Defendant-Appellees in the Fishman Action and
in Decided Action Picard v. Hein, et al.

Richard Levy, Jr., Esq. (alternate, David C. Rose, Esq.)
Pryor Cashman LLP
Attorneys for Defendant-Appellees in Decided Action Picard v. Goldman, et al.

Jennifer Young, Esq. (alternate, Matthew Kupilas, Esq.)
Milberg LLP
Attorneys for Defendant-Appellees in Decided Action Picard v. Blumenthal, et al.

Matthew J. Gold, Esq. (alternate, David Parker, Esq.)
Kleinberg, Kaplan, Wolff & Cohen P.C.
Attorneys for Defendant-Appellees in Withdrawn 546(e) Action Picard v. Elins
Family Trust, et al.

Parvin K. Aminolroaya, Esq.
Seeger Weiss LLP
Attorneys for Defendant-Appellees in Withdrawn 546(e) Action Picard v. M&B
Weiss Family L.P., et al.

Elise S. Frejka, Esq.
Kramer, Levin, Naftalis & Frankel LLP
Attorneys for Defendant-Appellees in Eligible Action Picard v.Goldstein

Richard A. Kirby, Esq. (alternate, Laura Clinton, Esq.)
K&L Gates LLP
Attorneys for Defendant-Appellees in Eligible Action Picard v. The Wolfson Trust

Marcy Ressler Harris, Esq. (alternate, Mark Richardson,, Esq.
Schulte Roth & Zabel LLP
Attorneys for Defendant-Appellees in Inadvertently Omitted Actions Picard v.
Blue Star Investors, LLC, et al. and Picard v. HHI Investment Trust, et al.
10. The sole responsibilities of the Liaison Committee shall be to use reasonable
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efforts to facilitate: (a) communications among counsel for the Defendants-Appellees in the
Consolidated Appeal; and (b) the prompt designation of lead counsel for each of the
constituent groups of Decided Actions, Withdrawn 546(e) Actions, Eligible Actions
(including the Stipulated Matters) and Inadvertently Omitted Actions, so as to permit, to the
extent practicable, (i) minimization of the number of notices of appearance to be filed in the
Consolidated Appeal, and (ii) coordination of, and avoidance of duplication in, the filing of
papers in the Consolidated Appeal.
11. The Liaison Committee may, in its reasonable discretion, expand or reduce the
number of members, so long as its members include at least one attorney of record in an
action within each of the four constituent groups of cases identified in Paragraph 10(b) above.
12. For purposes of the Consolidated Appeal, no member of the Liaison
Committee shall be deemed to represent any Defendants-Appellees other than such member’s
own client(s), and the Liaison Committee and its members shall not owe any duties of any
kind either to any Defendants-Appellees other than a member’s own client(s) or to the
attorneys for any Defendants-Appellees.
13. All communications and documents (including, but not limited to, drafts of
motions or briefs) exchanged between and among any of the Defendants-Appellees 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.
14. Notwithstanding anything to the contrary in this Order, no counsel for any
Defendants-Appellees in any Decided Action, Withdrawn 546(e) Action, Eligible Action
including any Stipulated Matter, or Inadvertently Omitted Action, and no pro se party in any
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such action, shall be prohibited from filing papers in the Consolidated Appeal (subject to the
limitation established by this Order on the number of appellees’ briefs permitted to be filed).
For purposes of receiving a document from counsel for a party who has not formally appeared
in the Consolidated Appeal or from a pro se party: (i) such papers shall be submitted to the
Court only through its “e-box” ([email protected]) pursuant to Circuit Local
Rule 25.2, and all such papers shall bear the caption of the Consolidated Appeal; and (ii) any
attorney filing such papers shall comply with the Rules of this Court regarding the admission
of attorneys to practice before it and file a notice of appearance in the Consolidated Appeal at
the same time as the first filing of papers by such attorney in the Consolidated Appeal,
through the Court’s e-box.
15. The Clerk is directed to amend the docket to conform with this Order.

For the Court:

Catherine O’Hagan Wolfe,
Clerk of Court

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EXHIBIT A

Caption for the Consolidated Appeal
Case: 12-2557 Document: 99-1 Page: 8 12/20/2012 800043 9

NO. 12-2557 (L)
12-2497 (CON), 12-2500 (CON), 12-2557 (CON), 12-2616 (CON)
12- 3422 (CON), 12-3440 (CON), 12-3582 (CON) and 12-3585 (CON)
_________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_________________________________________________________________
In Re: Bernard L. Madoff Investment Securities LLC,
Debtor.
____________________________________________________
IRVING H. PICARD, Trustee for the Liquidation of
Bernard L. Madoff Investment Securities LLC,
Plaintiff - Appellant,

SECURITIES INVESTOR PROTECTION CORPORATION,
Statutory Intervenor pursuant to Securities Investor Protection Act,
15 U.S.C. § 78eee(d),
Intervenor - Appellant,
v.
IDA FISHMAN REVOCABLE TRUST,
PAUL S. SHURMAN, in his capacity as co-trustee of the
Ida Fishman Revocable Trust,
WILLIAM SHURMAN, in his capacity as co-trustee of the
Ida Fishman Revocable Trust and as Executor
of the estate of Ida Fishman,

Defendants - Appellees.
_________________________________________________________________
On Appeal from the United States District Court
for the Southern District Of New York
_________________________________________________________________
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EXHIBIT B

List of Cases Consolidated by this Order with the "Consolidated Appeal"
Including, Each Defendant-Appellee and Such Party’s Counsel in Each Case
Case: 12-2557 Document: 99-2 Page: 1 12/20/2012 800043 135
EXHIBIT B
Matter Relative to This SDNY Civil Defendant/Appellee Bankruptcy Defendants party to Bankruptcy Proceeding Attorneys for Appellees/Moving Attorneys for Appellees/Moving
Appeal Still Pending Action No. Court APN Defendants Defendants - Email Addresses
Below
1. Picard v. Sperling, et al. 12-cv-00363 GERALD SPERLING, INDIVIDUALLY AND IN HIS CAPACITY AS 10-04627 GERALD SPERLING, INDIVIDUALLY AND IN HIS David B. Bernfeld [email protected];
JOINT TENANT; CAPACITY AS JOINT TENANT; Jeffrey L. Bernfeld [email protected]
SEENA SPERLING, INDIVIDUALLY AND IN HER CAPACITY AS SEENA SPERLING, INDIVIDUALLY AND IN HER Bernfeld, DeMatteo & Bernfeld, LLP [email protected]
JOINT TENANT CAPACITY AS JOINT TENANT 600 Third Avenue, 15th Floor
New York, NY 10016
Telephone: [phone]
Facsimile: [phone]
2. Picard v. Dean L. 12-cv-02794 DEAN L GREENBERG 10-04731 DEAN L GREENBERG Tracy L. Klestadt [email protected]
Greenberg Brendan M. Scott [email protected]
Klestadt & Winters, LLP [email protected]
570 Seventh Avenue, 17th Floor
New York, NY 10018
Telephone: [phone]
________________________
Blake Shepard
Leonard Street and Deinard
150 S. Fifth Street, Suite 2300
Minneapolis, MN 55402
Telephone: [phone]
Facsimile: [phone]
3. Picard v. II Kotzen 11-cv-08744 II KOTZEN COMPANY 10-04784 II KOTZEN COMPANY Daniel M. Glosband [email protected]
Company Christopher Newcomb [email protected]
Larkin M. Morton [email protected]
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Telephone: [phone]
Facsimile: [phone]
4. Picard v. The Melvin N. 11-cv-08894 NORTHERN TRUST, N.A., F/K/A NORTHERN TRUST BANK OF 10-05410 THE MELVIN N. LOCK TRUST; David L. Barrack [email protected]
Lock Trust, et al. FLORIDA N.A., A NATIONAL ASSOCIATION; THE SYLVIA W. LOCK DECLARATION OF TRUST, David A. Rosenzweig [email protected]
THE MELVIN N. LOCK TRUST; DATED APRIL 13, 1982; Fulbright & Jaworski LLP [email protected]
THE SYLVIA W. LOCK DECLARATION OF TRUST, DATED APRIL THE ESTATE OF SYLVIA W. LOCK; 666 Fifth Avenue
13, 1982; NORTHERN TRUST, N.A., F/K/A NORTHERN TRUST New York, NY 10103-3198
THE ESTATE OF SYLVIA W. LOCK; BANK OF FLORIDA N.A., A NATIONAL ASSOCIATION; Telephone: [phone]
____________________________________ LORRAINE LOCK NOSWORTHY; Facsimile: [phone]
AMANDA GOLDBERG SNYDERMAN; ________________________
LORRAINE LOCK NOSWORTHY; JEREMY GOLDBERG;
AMANDA GOLDBERG SNYDERMAN; ELENA ELKIN; Johathon D. Warner
JEREMY GOLDBERG; JOSHUA ELKIN; Warner & Scheuerman
ELENA ELKIN; FREDERICK GOLDBERG; 6 West 18th Street, 10th floor
JOSHUA ELKIN; ALYSSA GOLDBERG; New York, NY 10011
FREDERICK GOLDBERG; MEREDITH GOLDBERG; Telephone: [phone]
ALYSSA GOLDBERG; JOAN ELKIN MADISON;
MEREDITH GOLDBERG; SUSAN SIEGAL;
JOAN ELKIN MADISON; PAMELA W. GOLDBERG;
SUSAN SIEGAL; JAMES NOSWORTHY
PAMELA W. GOLDBERG;
JAMES NOSWORTHY
5. Picard v. 1096-1100 River 11-cv-08684 1096-1100 RIVER ROAD ASSOCIATES LLC; 10-05390 GUARDIAN TRUST FSB (Dismissed); Elise Scherr Frejka [email protected]
Road Associates, LLC, et FRED A. DAIBES LLC; 1096-1100 RIVER ROAD ASSOCIATES LLC; Philip Bentley [email protected]
al. FRED A. DAIBES FRED A. DAIBES LLC; Jason S. Rappaport [email protected]
FRED A. DAIBES Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
November 30, 2012 Page 1 of 135