09-01161-smb Doc 167 Filed 02/18/15 Entered 02/18/15 15:00 ... · this Declaration to submit, for the Court’s convenience and ease of reference, a true and correct copy of the following

Baker & Hostetler LLP 45 Rockefeller Plaza New York, NY 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201

Attorneys for Irving H. Picard, Trustee for the substantively consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the estate of Bernard L. Madoff

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

SECURITIES INVESTOR PROTECTION CORPORATION, No. 08-01789 (SMB) Plaintiff-Applicant, SIPA LIQUIDATION v. (Substantively Consolidated) BERNARD L. MADOFF INVESTMENT SECURITIES LLC,

Defendant.

In re:

BERNARD L. MADOFF,

Debtor.

IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC,

Plaintiff, Adv. Pro. No. 09-1161 (SMB)

v.

FEDERICO CERETTI, et al.,

Defendants.

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DECLARATION OF GONZALO S. ZEBALLOS, ESQ. IN SUPPORT OF TRUSTEE’S OPPOSITION TO FIM DEFENDANTS’

MOTION FOR SANCTIONS AGAINST THE TRUSTEE AND HIS COUNSEL

Gonzalo S. Zeballos, Esq. hereby declares as follows:

1. I am a member of the Bar of the State of New York and this Court, and I am a

partner at Baker & Hostetler LLP, attorneys for plaintiff Irving H. Picard, as trustee for the

substantively consolidated liquidation of the business of Bernard L. Madoff Investment

Securities LLC under the Securities Investor Protection Act, 15 U.S.C. §§ 78aaa, et seq., and

the estate of Bernard L. Madoff.

2. I am fully familiar with the facts set forth herein based either upon my own

personal knowledge or upon information conveyed to me that I believe to be true. I make

this Declaration to submit, for the Court’s convenience and ease of reference, a true and

correct copy of the following documents:

A. Attached hereto as Ex. A is a true and correct copy of a letter dated May 5, 2014 from Jodi A. Kleinick, Esq. of Paul Hasting LLP to me.

B. Attached hereto as Ex. B is a true and correct copy of a letter dated May 6, 2014 from John J. Burke, Esq. to Ms. Kleinick.

C. Attached hereto as Ex. C is a true and correct copy of a letter dated August 21, 2014 from Ms. Kleinick to Hon. Stuart M. Bernstein.

D. Attached hereto as Ex. D is a true and correct copy of a letter dated August 25, 2014 from me to Ms. Kleinick, with exhibits thereto.

E. Attached hereto as Ex. E is a true and correct copy of a letter dated September 2, 2014 from Ms. Kleinick to me.

F. Attached hereto as Ex. F is a true and correct copy of a letter dated September 9, 2014 from me to Ms. Kleinick.

G. Attached hereto as Ex. G is a true and correct copy of a letter dated October 29, 2014 from Ms. Kleinick to David J. Sheehan, Esq., Mr. Burke, and me, with exhibits thereto.


H. Attached hereto as Ex. H is a true and correct copy of a letter dated October 29, 2014 from me to Ms. Kleinick.

I. Attached hereto as Ex. I is a true and correct copy of a letter dated October 30, 2014 from Ms. Kleinick to Mr. Sheehan, Mr. Burke, and me.

J. Attached hereto as Ex. J is a true and correct copy of an e-mail dated October 31, 2014 from me to Ms. Kleinick, Mr. Burke, and Mr. Sheehan.

K. Attached hereto as Ex. K is a true and correct copy of an e-mail dated October 31, 2014 from Ms. Kleinick to Mr. Sheehan, Mr. Burke, and me.

L. Attached hereto as Ex. L is a true and correct copy of an e-mail dated October 31, 2014 from me to Ms. Kleinick, Mr. Sheehan, Mr. Burke, and Geraldine E. Ponto, Esq.

M. Attached hereto as Ex. M is a true and correct copy of an e-mail dated October 31, 2014 from Ms. Kleinick to Mr. Sheehan, Mr. Burke, Ms. Ponto, and me.

N. Attached hereto as Ex. N is a true and correct copy of an e-mail dated November 3, 2014 from Ms. Kleinick to Mr. Sheehan, Mr. Burke, Ms. Ponto, and me.

O. Attached hereto as Ex. O is a true and correct copy of an e-mail dated November 3, 2014 from me to Ms. Kleinick, Mr. Sheehan, Ms. Ponto and Mr. Burke.

P. Attached hereto as Ex. P is a true and correct copy of an e-mail dated November 3, 2014 from Ms. Kleinick to Mr. Sheehan, Mr. Burke, Ms. Ponto, and me.

Q. Attached hereto as Ex. Q are true and correct copies of excerpts from the November 19, 2014 Status Conference.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing

statements made by me are true and correct.

Dated: February 18, 2015 New York, New York

/s/ Gonzalo S. Zeballos Gonzalo S. Zeballos


EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

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EXHIBIT J

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EXHIBIT K

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EXHIBIT L

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EXHIBIT M

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EXHIBIT N

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EXHIBIT Q

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1 UNITED STATES BANKRUPTCY COURT

2 SOUTHERN DISTRICT OF NEW YORK

3 Case No. 08-99000-smb

4 Adversary No. 08-01789-smb

5 Adversary No. 09-01161-smb

6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

7 In the Matter of:

8 SECURITIES INVESTOR PROTECTION CORPORATION,

9 Plaintiff

10 v.

11 BERNARD L. MADOFF INVESTMENT SECUR.,

12 Defendant

13 - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

14 In the Matter of:

15 PICARD,

16 Plaintiff

17 v.

18 KINGATE GLOBAL FUND, LTD. ET AL,

19 Defendants

20 - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

21 U.S. Bankruptcy Court

22 One Bowling Green

23 New York, New York

24 November 19, 2014

25 9:59 AM

Page 1

VERITEXT REPORTING COMPANY212-267-6868 www.veritext.com 516-608-2400


1 MS. KLEINICK: Which we were trying to avoid.

2 THE COURT: I understand.

3 MS. KLEINICK: But the fact is, is that as of

4 today, we've given the trustee three separate declarations:

5 one from my client saying it's never had an account at BBH

6 and the account is actually a MeesPierson account; a sworn

7 declaration from MeesPierson telling the trustee that the

8 account is its account at BBH; and a third declaration from

9 BBH itself, the bank, saying my client has never had an

10 account at BBH. A this point, it is unethical for the

11 trustee's counsel to take the position that they can use

12 that allegation in the context of the upcoming

13 extraterritoriality briefing in order to try to force us

14 into discovery to trial and as an arrow in their quiver. It

15 is unfathomable that we have to be here now in an attempt to

16 try and resolve this in a judicially efficient way without

17 wasting the Court's resources or my client's resources.

18 THE COURT: What would you -- when you walk out of

19 here today, what relief is it that you would like?

20 MS. KLEINICK: Well, either -- if Your Honor is

21 not willing to strike the allegation under its inherent --

22 THE COURT: I don't have a motion before me. How

23 can I strike anything?

24 MS. KLEINICK: Well, you have the declarations.

25 THE COURT: I don't have a motion for them and --

Page 37



1 MS. KLEINICK: Sua sponte -- the law is sua

2 sponte, Your Honor can strike the allegation under the

3 Court's inherent powers. You don't need a motion to do

4 that.

5 THE COURT: I got it. Let me hear from the

6 trustee.

7 MS. KLEINICK: But if Your Honor is not willing to

8 do that, what we'd like is a briefing schedule for our

9 sanctions motion.

10 MS. PONTO: Your Honor, I was interested to hear

11 what the status conference sought to achieve today. There

12 has been six months of correspondence back and forth. At

13 the time we filed this complaint in March of this year, that

14 allegation was made. That allegation also was made three

15 years ago in the third amended complaint.

16 THE COURT: Okay, but now she says she's given you

17 proof that shows it's not correct. Forget about what you

18 knew or didn't know --

19 MS. PONTO: Your Honor, on the face of the --

20 again, this dispute is focused on one allegation in our very

21 fulsome complaint against one particular defendant, FIM

22 Limited. While Paul Hastings may represent several

23 defendants, it is only as against FIM Limited. The premise

24 of this status conference through the correspondence that we

25 submitted is the extraterritoriality issue, which -- and

Page 38



1 can't grant any relief. This is more like a venting session

2 than an application for relief. I guess you can make a

3 motion for summary judgment. They'll ask for discovery

4 because I assume, they're saying they haven't had the

5 opportunity to take discovery of the affiants. They will

6 show me a document and I'll decide whether or not there's a

7 question of fact. In terms of sanctions, you can -- I mean,

8 I guess you can make the sanctions motion.

9 MS. KLEINICK: Your Honor, Judge Rakoff made very

10 clear in his decision --

11 THE COURT: Please don't argue the merits of this

12 to me. You have proceeded improperly. If you want relief,

13 make a motion and they'll respond, and then there are rules

14 on how the motion is decided. It is entirely improper to

15 write a letter and request relief by letter of the type of

16 relief you're seeking, okay?

17 MS. KLEINICK: Okay. Your Honor, can we have a

18 return date for the sanctions motion then?

19 THE COURT: My courtroom deputy is out today. You

20 can call her tomorrow and get a return date. Okay.

21 MS. KLEINICK: Thank you.

22 MS. PONTO: Thank you, Your Honor.

23 THE COURT: Thank you.

24 (Proceedings concluded at 10:42 a.m.)

25

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1 C E R T I F I C A T I O N

2

3 I, Jamie Gallagher, certify that the foregoing transcript is

4 a true and accurate record of the proceedings.

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Veritext

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330 Old Country Road

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Suite 300

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Mineola, NY 11501

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Date: November 20, 2014

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Jamie GallagherDigitally signed by Jamie Gallagher DN: cn=Jamie Gallagher, o=Veritext, ou, [email protected], c=US Date: 2014.11.20 16:53:34 -05'00'


Documents

09-01161-smb Doc 167 Filed 02/18/15 Entered 02/18/15 15:00 ... · this Declaration to submit, for the Court’s convenience and ease of reference, a true and correct copy of the following