Repex Ventures S.A. ex rel. Cabilly v. Kohn

540 F. App'x 19
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 16, 2013
DocketNos. 12-156-cv, 12-162-cv
StatusPublished
Cited by10 cases

This text of 540 F. App'x 19 (Repex Ventures S.A. ex rel. Cabilly v. Kohn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Repex Ventures S.A. ex rel. Cabilly v. Kohn, 540 F. App'x 19 (2d Cir. 2013).

Opinion

[22]*22SUMMARY ORDER

Plaintiffs-Appellants Dana Trezziova and Seymour Neville Davis appeal from a judgment entered on December 12, 2011, by the United States District Court for the Southern District of New York (Ber-man, ,/.). That judgment granted the defendants’ motions to dismiss Trezziova’s and Davis’s proposed class action complaints on behalf of investors in certain foreign investment funds that placed their investors’ money with Bernard L. Madoff Investment Securities (“Madoff Securities”). The district court dismissed the plaintiffs-appellants’ claims against (1) defendants-appellees JPMorgan Chase & Co. and the Bank of New York Mellon Corporation as precluded by the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. § 78bb(f), and, alternatively, by New York’s Martin Act, N.Y. Gen. Bus. Law §§ 352 ei seq.; (2) defendants-appellees Friehling & Horowitz, Erko, Inc., Windsor IBC, Inc., Info-valeur, Inc., and Eurovaleur, Inc., for failure to serve process under Rule 12(b)(5) of the Federal Rules of Civil Procedure and for failure to prosecute under Rule 41(b); and (3) the remaining defendants on the ground of forum non conveniens. On appeal, appellants contend that the district court’s dismissal of the first two categories of defendants was based on erroneous interpretations of the applicable laws; as to the third, the appellants argue that the district court abused its discretion in granting dismissal for forum non conve-niens because the district court made clearly erroneous findings of fact, failed to give appropriate deference to the plaintiffs’ choice of forum, and improperly dismissed the consolidated cases in favor of two separate fora. Davis also appeals the district court’s refusal to approve the settlement agreement he reached with defendants-appellees HSBC Institutional Trust Services (Ireland) Ltd., HSBC Securities Services (Ireland) Ltd., and HSBC Holdings PLC, and proposed defendant HSBC Bank USA, N.A. We address appellants’ contention with respect to the dismissal of their claims against JP Morgan Chase and the Bank of New York Mellon in an opinion filed simultaneously with this summary order, and we address all other issues raised by this appeal in this summary order. We assume the parties’ familiarity with the relevant facts, the procedural history, and the issues presented for review.

According to the operative complaints in this case, in the mid-1990s defendant-ap-pellee Sonja Kohn founded defendant-ap-pellee Bank Medici AG, which, with others, created various foreign investment vehicles, namely, Thema International Fund pic (“Thema”), an Irish investment fund; Herald Fund SPC-Herald USA Segregated Portfolio One (“Herald SPC”) and Herald (LUX) U.S. Absolute Return Fund (“Herald Lux”), Cayman Islands and Luxembourg funds, respectively; and Primeo Select Fund and Primeo Executive Fund (together, “Primeo”). These funds, which were closed to U.S. investors, invested their assets, unbeknownst to their investors, with Madoff Securities. Although Madoff Securities held itself out as investing in U.S. securities, in December 2008 Madoff Securities was discovered to be a Ponzi scheme. As a result of Madoff Securities’ collapse and its impact on the aforesaid funds, Thema investors and the Herald funds’ investors collectively lost about $3 billion.

In early 2009, Repex Ventures S.A., an investor in Herald Lux, filed a class action in the Southern District of New York on behalf of investors in the various funds created by Sonja Kohn. Other similar suits [23]*23by other feeder fund investors were later filed, and in October 2009, the district court consolidated the related actions for pre-trial purposes and appointed lead plaintiffs for each family of funds. The district court appointed as lead plaintiffs appellant Neville Seymour Davis, a citizen of the United Kingdom and a French resident, for the proposed class of Thema investors; Repex Ventures for the proposed class of investors in the Herald funds; and Schmuel Cabilly for the proposed class of investors in the Primeo funds.1 On February 11, 2010, Davis and Repex filed amended class action complaints, at which point Repex added appellant Dana Trezziova, a resident of the Czech Republic and an investor in Herald (USA), as co-plaintiff.

The Thema and Herald amended complaints raise similar, although not entirely overlapping, claims under federal and state law against the owners of the funds, including Kohn; the funds themselves; the funds’ directors, administrators, custodians, auditors, advisors, and counsel; members of the Madoff family; and the New York-based banks that held Madoff s business accounts. The complaints allege in essence that the various defendants ignored or failed to detect the numerous “red flags” suggesting that Madoff Securities was a fraud.

Around the same time as the instant class actions were filed in the Southern District of New York, Thema, after having entered into liquidation, filed suit through its receiver, along with 61 Thema shareholders, in the Irish High Court against many of the same defendants. Thema sued defendant-appellee HSBC Institutional Trust Services (Ireland) Ltd., The-ma’s custodian, for the full value of the assets reportedly bought and sold for The-ma. The High Court has since consolidated these actions for pretrial proceedings and trial in Ireland. In April 2009, Herald Lux’s liquidator commenced a similar suit in Luxembourg on behalf of the fund and its investors. More than 800 Herald Lux investors, Herald SPC, and Herald SPC investors also filed similar suits in Luxembourg against many of the same defendants under statutory, tort, and other theories.

In April 2011, plaintiffs sought leave to file amended class action complaints to add new allegations and defendants and to modify their claims, and in June 2011 defendants jointly moved to dismiss the complaints. On November 29, 2011, the district court issued an opinion that, for the most part, dismissed the plaintiffs’ claims against all defendants and denied plaintiffs’ motion to amend their complaints.2 In that opinion, the district court dismissed plaintiffs’ claims as follows: (1) the claims against defendants-appellees JPMorgan Chase & Co. and the Bank of New York Mellon were dismissed as precluded by the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. § 78bb(f), and, alternatively, by New York’s Martin Act, N.Y. Gen. Bus. Law §§ 352 et seq.; (2) the claims against [24]*24defendants-appellees Friehling & Horowitz, Erko, Inc., Windsor IBC, Inc., Info-valeur, Inc., and Eurovaleur, Inc., were dismissed for failure to serve and for failure to prosecute; and (8) the claims against the remaining defendants were dismissed on the ground of forum non conve-niens in favor of Ireland, with respect to the Thema action, and Luxembourg, with respect to the Herald and Primeo actions. In light of these dismissals, the district court also found plaintiffs’ motion to amend their respective complaints to be futile and therefore denied the motion.

In October 2010, Davis and the HSBC defendants3 began negotiating a partial settlement of the Thema class’s claims against HSBC as custodian and administrator of the Fund.

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Cite This Page — Counsel Stack

Bluebook (online)
540 F. App'x 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/repex-ventures-sa-ex-rel-cabilly-v-kohn-ca2-2013.