BAKER & HOSTETLER LLP 45 Rockefeller Plaza
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09-01182-smb Doc 376 Filed 05/10/17 Entered 05/10/17 20:53:31 Main Document Pg 1 of 3 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 the Chapter 7 Estate of Bernard L. Madoff UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION CORPORATION, Adv. Pro. 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, Adv. Pro. No. 09-01182 (SMB) Plaintiff, v. J. EZRA MERKIN, GABRIEL CAPITAL, L.P., ARIEL FUND LTD., ASCOT PARTNERS, L.P., ASCOT FUND LTD., GABRIEL CAPITAL CORPORATION, Defendants. DECLARATION OF LAN HOANG IN SUPPORT OF TRUSTEE’S OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE 09-01182-smb Doc 376 Filed 05/10/17 Entered 05/10/17 20:53:31 Main Document Pg 2 of 3 I, Lan Hoang, declare the following: 1. I am a Partner with the law firm of Baker & Hostetler LLP, counsel to Irving H. Picard, as trustee (“Trustee”) for the substantively consolidated liquidation of Bernard L. Madoff Investment Securities LLC (“BLMIS”) under the Securities Investor Protection Act, 15 U.S.C. § 78aaa et seq., and the chapter 7 estate of Bernard L. Madoff (“Madoff”). 2. I submit this declaration in support of the Trustee’s Memorandum of Law in Opposition to Defendants’ Motion In Limine to Exclude Others’ Purported Suspicions About Madoff Not Expressed to Defendants; Trustee’s Memorandum of Law in Opposition to Defendants’ Motion In Limine to Exclude Testimony of Meaghan Schmidt; Trustee’s Memorandum of Law in Opposition to Defendants’ Motion In Limine to Exclude the Expert Testimony of Amy B. Hirsch; Trustee’s Memorandum of Law in Opposition to Defendants’ Motion In Limine to Exclude the Testimony and Report of Bruce G. Dubinsky; Trustee’s Memorandum of Law in Opposition to Defendants’ Motion In Limine to Exclude the Testimony, Reports, and Declaration of Steve Pomerantz; and Trustee’s Memorandum of Law in Opposition to Defendants’ Motion In Limine to Exclude Testimony and Exhibits Related to Whether Investors Were Misled with Respect to Gabriel Capital, L.P. and Ariel Fund Ltd.’s Exposure to BLMIS. 3. True and correct copies of the following documents are attached: Exhibit 1: Plaintiff’s Supplemental Disclosures dated November 22, 2013. Exhibit 2: Excerpts from the deposition transcript of dated November 22, 2013 (filed under seal). Exhibit 3: Excerpts from the redacted deposition transcript of Noreen Harrington dated October 1, 2013 (redacted). 09-01182-smb Doc 376 Filed 05/10/17 Entered 05/10/17 20:53:31 Main Document Pg 3 of 3 Exhibit 4: Excerpts from the deposition transcript of Jason Orchard dated October 8, 2013. Exhibit 5: Excerpts from the deposition transcript of Joshua Nash dated October 18, 2012. Exhibit 6: Excerpts from the deposition transcript of Tina Surh dated September 18, 2013. Exhibit 7: Excerpts from the deposition transcript of Morris Smith dated March 4, 2014. Exhibit 8: Excerpts from the deposition transcript of Joel Ehrenkranz dated March 20, 2014. Exhibit 9: Expert Report of Dr. Steve Pomerantz with errata dated April 13, 2015. Exhibit 10: Excerpts from the deposition transcript of Dr. Steve Pomerantz dated July 8, 2015. Exhibit 11: Correspondence from Mariel R. Bronen to Brian W. Song dated March 24, 2017. Exhibit 12: Correspondence from Brian W. Song to Sarah O’Connell dated April 6, 2017. I declare under penalty of perjury that the foregoing is true and correct pursuant to 28 U.S.C § 1746(2). Dated: May 10, 2017 New York, New York By: /s/ Lan Hoang Baker & Hostetler LLP 45 Rockefeller Plaza New York, New York 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 Lan Hoang Email: [email protected] 3 09-01182-smb Doc 376-1 Filed 05/10/17 Entered 05/10/17 20:53:31 Exhibit 1 Pg 1 of 8 Exhibit 1 09-01182-smb Doc 376-1 Filed 05/10/17 Entered 05/10/17 20:53:31 Exhibit 1 Pg 2 of 8 Baker & Hostetler LLP 45 Rockefeller Plaza New York, NY 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 David J. Sheehan Email: [email protected] Edward J. Jacobs Email: [email protected] Attorneys for Irving H. Picard, Esq., Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: Adv. Pro. No. 08-01789 (BRL) BERNARD L. MADOFF INVESTMENT SECURITIES LLC, SIPA LIQUIDATION Debtor. (Substantively Consolidated) IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 09-01182 (BRL) Plaintiff, v. J. EZRA MERKIN, GABRIEL CAPITAL, L.P., ARIEL FUND LTD., ASCOT PARTNERS, L.P., ASCOT FUND LTD., GABRIEL CAPITAL CORPORATION, Defendants. PLAINTIFF’S SUPPLEMENTAL DISCLOSURES Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure as made applicable to this adversary proceeding by Rule 7026 of the Federal Rules of Bankruptcy Procedure, Irving H. Picard, Esq. (the “Trustee”), as trustee for the liquidation of the business of Bernard L. Madoff 09-01182-smb Doc 376-1 Filed 05/10/17 Entered 05/10/17 20:53:31 Exhibit 1 Pg 3 of 8 Investment Securities LLC (“BLMIS”), under the Securities Investor Protection Act, 15 U.S.C. §§ 78aaa, et seq. (“SIPA”), and the consolidated estate of Bernard L. Madoff (“Madoff”), by and through his counsel Baker & Hostetler LLP, hereby provides the following supplemental disclosures. These disclosures are made without waiver of, and with preservation of the right to raise and/or fully address the following: 1. All issues as to competency, relevancy, materiality, privilege and admissibility of matters disclosed herein, and the subject matter thereof, as evidence for any purpose in this action or subsequent actions; 2. The right to object to any matters disclosed herein, or the subject matter thereof, on any ground, throughout this and/or any other action; 3. The right to object on any ground at any time to a demand or a request for further disclosure of matters identified herein, including, but not limited to the forms of discovery allowed by the Federal Rules of Civil Procedure or other discovery proceedings involving or relating to the subject matter of this controversy; and 4. The right at any time to revise, correct, add to, supplement or clarify any of the disclosures contained herein. To the extent that any matters disclosed by the Trustee herein have been disclosed inadvertently, and such matters otherwise fall within the scope of a privilege, the Trustee shall not be deemed to have waived such privilege as to any such disclosure or the information contained therein. Likewise, the Trustee shall not be deemed to have waived his right to such privilege as to any other matter that may arise during the course of this litigation or any subsequent proceeding. The Trustee’s disclosures represent a good faith effort to identify information called for by Rule 26 of the Federal Rules of Civil Procedure. However, these disclosures should not be construed as constituting all of the facts, evidence, or other information that may exist, or that may eventually be established, in support of the Trustee’s claims that have been and may be 300261137 - 2 - 09-01182-smb Doc 376-1 Filed 05/10/17 Entered 05/10/17 20:53:31 Exhibit 1 Pg 4 of 8 asserted in this action. As the Trustee’s investigation continues he will supplement his disclosures to the extent required by Rule 26(e). A. Rule 26(a)(1)(A)(i). The name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. Upon information and belief, the following individuals, or where deceased, the estates of the individuals, are likely to have discoverable information. Current or last known addresses, where in the possession of the Trustee, will be produced upon request. The Trustee reserves his right to supplement this list as other individuals and/or entities become known, and/or as different subjects become relevant. At the present time, the Trustee provides the following information not otherwise made known through the discovery process or in writing: 1. The following individuals have knowledge concerning: (i) the preservation of BLMIS’s books and records: Paul Takla, Federal Bureau of Investigation, 26 Federal Plaza, 23rd Floor, New York, NY 10278, and (ii) the identification, preservation, and collection of BLMIS’s books and records: Matthew Cohen and Meaghan Schmidt, AlixPartners LLP, 9 West 57th Street, Suite 3420, New York, NY 10019. 2. The following individuals have knowledge concerning the deposits and withdrawals associated with BLMIS customer accounts and the Trustee’s calculation of BLMIS customer net equity: Lisa Collura and Matthew Greenblatt, FTI Consulting, Inc., 3 Times Square, 11th Floor, New York, NY 10036. 3. The following individuals may be relied on by the Trustee as examples of creditors and customers with matured or unmatured unsecured claims against BLMIS that are allowable under § 502 of the Bankruptcy Code or that are not allowable only under § 502(e) of the Bankruptcy Code, and for whom the fraudulent scheme perpetrated by BLMIS was not reasonably discoverable: • Paul A.