Last year, as the Madoff litigation landscape was beginning to take shape, burned investors homed in on the so-called “feeder funds” that funneled billions to Bernard Madoff’s investment fund. Chief among the targets: funds managed by Fairfield Greenwich. In April, a trio of plaintiffs firms — Boies, Schiller & Flexner, Wolf Popper and Lovell Stewart Halebian — filed an amended complaint in Manhattan federal district court, accusing Fairfield and its co-founders, Walter Noel Jr., Jeffrey Tucker and Andrés Piedrahita, of committing fraud by passing along $7 billion of their investors’ money to Madoff.
Two days before Christmas, the defendants — many of them represented by Simpson Thacher & Bartlett — answered the allegations with two motions to dismiss the plaintiffs’ complaint. The defense briefs and underlying affidavits and exhibits are here and here.
Fairfield Greenwich’s principal argument seems to be that the Fairfield defendants were also duped by Madoff and that they, too, lost money. “It is understandable that investors are exploring all possible avenues to recover their losses,” attorneys for the Greenwich defendants wrote. “But this defectively framed and pled action, which seeks to hold the FG defendants responsible for losses caused by a fraud they neither participated in nor had knowledge of — and that thousands of others, including investors, intermediaries, advisors, banks, auditors, and regulators failed to uncover — is not the proper means to achieve that goal.”
In addition, the defendants list a variety of technical shortcomings in the amended complaint, claiming, for example, that plaintiffs lack standing for some claims and fail to meet pleading requirements for others. The defendants are hoping Judge Victor Marrero not only dismisses the case, but also declines to give the plaintiffs an opportunity to re-plead.
Simpson Thacher partners Mark Cunha, Michael Chepiga, and Peter Kazanoff represent the Fairfield funds. Attorneys for other defendants include Andrew Levander of Dechert (Piedrahita); Glenn Kurtz of White & Case (Noel); Marc Kasowitz of Kasowitz Benson Torres & Friedman (Tucker); and Mark Goodman of Debevoise & Plimpton (Fairfield chief risk officer Amit Vijayvergiya).
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.