Adv. Pro. No. 08-01789 (BRL)
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Case 1:11-cv-03605-JSR Document 89 Filed 01/26/12 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re: Adv. Pro. No. 08-01789 (BRL) BERNARD L. MADOFF INVESTMENT SIPA LIQUIDATION SECURITIES LLC, Debtor, (Substantively Consolidated) IRVING H. PICARD, Trustee for the Liquidation of Adv. Pro. No. 10-05287 (BRL) Bernard L. Madoff Investment Securities LLC, Plaintiff, v. 11 Civ. 03605 (JSR) (HBP) SAUL B. KATZ, et al., Defendants. DECLARATION OF DAVID J. SHEEHAN IN SUPPORT OF TRUSTEE’S MOTION FOR PARTIAL SUMMARY JUDGMENT BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, New York 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 Bernard L. Madoff Case 1:11-cv-03605-JSR Document 89 Filed 01/26/12 Page 2 of 3 I, David J. Sheehan, declare pursuant to 28 U.S.C. § 1746, that the following is true: 1. I am an attorney at the firm of Baker & Hostetler LLP and counsel to Irving H. Picard, Trustee for the substantively consolidated liquidation of the business of Bernard L. Madoff Investment Securities LLC (“BLMIS”) under the Securities Investor Protection Act (“SIPA”), 15 U.S.C. §§ 78aaa et seq., and the estate of Bernard L. Madoff (“Madoff”). 2. I submit this Declaration in support of the Trustee’s motion for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure. 3. Attached hereto as Ex. 1 is a true and correct copy of the defendants’ Answer, dated October 11, 2011. Answer, Picard v. Katz, et al., No. 11 Civ. 3605 (S.D.N.Y. Oct. 11, 2011) (JSR), ECF No. 48. 4. Attached hereto as Ex. 2 is a true and correct copy of the Plea Hearing Transcript of Bernard L. Madoff, dated March 12, 2009. Plea Hr’g Tr. (“Madoff Plea”), United States v. Madoff, No. 09 Cr. 213 (S.D.N.Y. Mar. 12, 2009) (DC), ECF No. 57. 5. Attached hereto as Ex. 3 is a true and correct copy of the Sentencing Transcript of Bernard L. Madoff, dated June 29, 2009. Sentencing Tr., United States v. Madoff, No. 09 Cr. 213 (S.D.N.Y. June 29, 2009) (DC), ECF No. 103. 6. Attached hereto as Ex. 4 is a true and correct copy of the Plea Hearing Transcript of Frank DiPascali, Jr., dated August 11, 2009. Plea Hr’g Tr. (“DiPascali Plea”), United States v. DiPascali, No. 09 Cr. 764 (S.D.N.Y. Aug. 11, 2009) (RJS), ECF No. 11. 7. Attached hereto as Ex. 5 is a true and correct copy of the Plea Hearing Transcript of David G. Friehling, dated November 3, 2009. Plea Hr’g Tr. (“Friehling Plea”), United States v. Friehling, No. 09 Cr. 700 (S.D.N.Y. Nov. 3, 2009) (AKH). 1 Case 1:11-cv-03605-JSR Document 89 Filed 01/26/12 Page 3 of 3 8. Attached hereto as Ex. 6 is a true and correct copy of the Plea Hearing Transcript of Eric S. Lipkin, dated June 6, 2011. Plea Hr’g Tr. (“Lipkin Plea”), United States v. Lipkin, No. 10 Cr. 228 (S.D.N.Y. June 6, 2011) (LTS), ECF No. 148. 9. Attached hereto as Ex. 7 is a true and correct copy of the Plea Hearing Transcript of David Kugel, dated November 21, 2011. Plea Hr’g Tr. (“Kugel Plea”), United States v. Kugel, No. 10 Cr. 228 (S.D.N.Y. Nov. 21, 2011) (LTS), ECF No. 188. 10. Attached hereto as Ex. 8 is a true and correct copy of the Plea Hearing Transcript of Enrica Cotellessa-Pitz, dated December 19, 2011. Plea Hr’g Tr. (“Cotellessa-Pitz Plea”), United States v. Cotellessa-Pitz, No. 10 Cr. 228 (S.D.N.Y. Dec. 19, 2011) (LTS). I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York January 26, 2012 /s/ David J. Sheehan David. J. Sheehan 2 Case 1:11-cv-03605-JSR Document 89-1 Filed 01/26/12 Page 1 of 258 Exhibit 1 CaseCase 1:11-cv-03605-JSR 1:11-cv-03605-JSR Document Document 89-1 48 Filed Filed 10/11/11 01/26/12 Page Page 1 2 of of 257 258 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------- x : IRVING H. PICARD, : : Plaintiff, : : 11-CV-03605 (JSR) - against - : : SAUL B. KATZ, et al., : : Defendants. : : ----------------------------------- x ANSWER CaseCase 1:11-cv-03605-JSR 1:11-cv-03605-JSR Document Document 89-1 48 Filed Filed 10/11/11 01/26/12 Page Page 2 3 of of 257 258 Each of the Defendants in the above-captioned matter (“Defendants”), by and through their undersigned counsel, hereby states his, her, or its Answer and Defenses to the amended complaint (“Complaint”), dated March 18, 2011, as follows: GENERAL RESPONSE Each Defendant hereby answers the Complaint in its entirety, notwithstanding that the Court’s September 27, 2011 opinion and order dismissed nine of the Complaint’s eleven counts and rendered many of the Complaint’s allegations irrelevant. With respect to the table of contents, headings, subheadings, unnumbered paragraphs, appendices, exhibits, and requests for relief following paragraph 1402 of the Complaint, no response to such material is required. To the extent any response is required, any such averments are denied. Any allegation in the Complaint not specifically admitted is denied. Unless otherwise defined, all capitalized terms have the same meaning as in the Complaint. SPECIFIC RESPONSES 1. Deny, except aver that each of the Defendants is one of the thousands of victims of Madoff’s massive Ponzi scheme, and also deny footnote 1. 2. Deny. 3. Deny, except admit that Sterling is a closely-held family business and that various Sterling Partners and related entities are involved in real estate, professional baseball, and private equity businesses, including ownership of the New York Mets baseball franchise. 2 CaseCase 1:11-cv-03605-JSR 1:11-cv-03605-JSR Document Document 89-1 48 Filed Filed 10/11/11 01/26/12 Page Page 3 4 of of 257 258 4. Deny, except admit that approximately 483 1KW BLMIS accounts were opened by various individuals and entities, some of which are Sterling Partners and/or Sterling-related entities, over the course of twenty-five years, and that Sterling Partner Arthur Friedman provided administrative assistance with respect to the majority of the 1KW BLMIS accounts. 5. Deny. 6. Deny. 7. Deny. 8. Deny, except admit that debt of various Sterling-related entities was restructured following revelation of Madoff’s fraud. 9. Deny. 10. Deny. (a) Deny. (b) Deny. (c) Deny. (d) Deny. (e) Deny. 3 CaseCase 1:11-cv-03605-JSR 1:11-cv-03605-JSR Document Document 89-1 48 Filed Filed 10/11/11 01/26/12 Page Page 4 5 of of 257 258 (f) Deny. (g) Deny. (h) Deny. 11. Deny. 12. Deny. 13. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the Complaint for the proceeding’s purported purpose. 14. Admit, except deny that this adversary proceeding is now proceeding before the Bankruptcy Court because the reference has been withdrawn. 15. Admit. 16. Admit. 17. Admit. 18. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the SEC complaint against BLMIS and Madoff for its content, and footnote 2 alleges conclusions of law to which no response is required. 19. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the December 12, 2008 order for its content. 4 CaseCase 1:11-cv-03605-JSR 1:11-cv-03605-JSR Document Document 89-1 48 Filed Filed 10/11/11 01/26/12 Page Page 5 6 of of 257 258 20. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the referenced SIPC application for its content. 21. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the December 15, 2008 Protective Decree for its content. (a) Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the December 15, 2008 Protective Decree for its content. (b) Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the December 15, 2008 Protective Decree for its content. (c) Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the December 15, 2008 Protective Decree for its content. 22. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except refer to the referenced orders for their content. 23. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except admit, upon information and belief, that Madoff entered a guilty plea and refer to the transcript of his allocution for its content. 5 CaseCase 1:11-cv-03605-JSR 1:11-cv-03605-JSR Document Document 89-1 48 Filed Filed 10/11/11 01/26/12 Page Page 6 7 of of 257 258 24. Lack knowledge or information sufficient to form a belief as to the truth of the allegations, except admit, upon information and belief, that DiPascali entered a guilty plea and refer to the transcript of his allocution for its content.