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Case 17-2992, Document 1129, 05/21/2018, 2308158, Page1 of 53 Case 17-2992, Document 1129, 05/21/2018, 2308158, Page1 of 53 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT -----------------------------------------------------------X : IN RE: IRVING H. PICARD, TRUSTEE : FOR THE LIQUIDATION OF BERNARD L. : 17-2992(L) MADOFF INVESTMENT SECURITIES LLC : : : -----------------------------------------------------------X DEFENDANTS-APPELLEES’ LIMITED OPPOSITION TO THE TRUSTEE AND SIPC’S JOINT MOTION FOR LEAVE TO FILE A FOREIGN LAW DECLARATION CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 Telephone: (212) 225-2000 Facsimile: (212) 225-3999 Attorneys for HSВC Holdings plc, HSВC Bank plc, HSBC Securities Services (Luxembourg) S.A. (also sued as HSBC Fund Services (Luxembourg) S.A.), HSBC Securities Services (Ireland) Designated Activity Company (sued as HSBC Securities Services (Ireland) Limited), HSBC Securities Services (Bermuda) Limited, HSBC Institutional Trust Services (Ireland) Designated Activity Company (sued as HSBC Institutional Trust Services (Ireland) Limited), HSBC Institutional Trust Services (Bermuda) Limited, HSBC Bank U.S.A., N.A., HSBC Cayman Services Limited (sued as HSBC Bank (Cayman) Limited), HSВC Private Banking Holdings (Suisse) S.A., HSВC Private Bank (Suisse) S.A., HSBC Bank Bermuda Ltd., SICO Limited, Somers Dublin Designated Activity Company, Somers Nominees (Far East) Limited (collectively, the “HSBC Defendants”) Case 17-2992, Document 1129, 05/21/2018, 2308158, Page2 of 53 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 I. THE COURT SHOULD DENY MOVANTS’ ATTEMPT TO EXPAND THE RECORD TO IMPROPERLY SUBMIT NEW EXPERT FOREIGN LAW OPINIONS. ......................................................... 4 A. The circumstances do not warrant supplementing the record below with a foreign law expert’s testimony. ....................................... 4 B. Even if there had been some basis to supplement the record with a foreign law expert, Movants waived their opportunity to do so. ................................................................................................. 6 II. ALLOWING MOVANTS TO SUBMIT THE DECLARATION WOULD UNFAIRLY PREJUDICE DEFENDANTS- APPELLEES. ................................................................................................. 11 III. THE DECLARATION SHOULD IN ANY EVENT BE DISREGARDED AS IRRELEVANT AND UNSUPPORTED. .................. 12 CONCLUSION ........................................................................................................ 17 i Case 17-2992, Document 1129, 05/21/2018, 2308158, Page3 of 53 TABLE OF AUTHORITIES Page(s) Rules and Statutes Fed. R. App. P. 10 ........................................................................................... 4 Fed. R. App. P. 29 ........................................................................................... 9 Fed. R. Civ. P. 1 .............................................................................................. 5 Cases Ancile Inv. Co. v. Archer Daniels Midland Co., 538 F. App’x 19 (2d Cir. 2013) ...................................................................... 5 Bilta (UK) Ltd v. Nazir (No 2), [2016] AC 1 .................................................................................................... 15 Byrne v. Telesector Res. Grp., Inc., 339 F. App’x 13 (2d Cir. 2009) ...................................................................... 11 Carlisle Ventures, Inc. v. Banco Espanol de Credito, S.A., 176 F.3d 601 (2d Cir. 1999) ............................................................................ 5 Curley v. AMR Corp., 153 F.3d 5 (2d Cir. 1998) ................................................................................ 10 Fairfield Sentry Ltd. v. Migani, [2014] UKPC 9 ............................................................................................... 3 Gucci Am., Inc. v. Bank of China, 768 F.3d 122 (2d Cir. 2014) ............................................................................ 13 Huynh v. Chase Manhattan Bank, 465 F.3d 992 (9th Cir. 2006) .......................................................................... 5 Kingate Glob. Fund Ltd. (in liquidation) v. Kingate Mgmt. Ltd., [2015] SC (Bda) 65 Com (Berm.)................................................................... 16 Local 875 I.B.T. Pension Fund v. Pollack, 992 F. Supp. 545 (E.D.N.Y. 1998) ................................................................. 6 ii Case 17-2992, Document 1129, 05/21/2018, 2308158, Page4 of 53 Page(s) Longi v. New York, 363 F. App’x 57 (2d Cir. 2010) ...................................................................... 6 Okoi v. El Al Israel Airlines, 378 F. App’x 9 (2d Cir. 2010) ........................................................................ 2, 4-5 Rana v. Islam, 887 F.3d 118 (2d Cir. 2018) ............................................................................ 4 Sledge v. Kooi, 564 F.3d 105 (2d Cir. 2009) ............................................................................ 6 Torah Soft Ltd. v. Drosnin, 224 F. Supp. 2d 704 (S.D.N.Y. 2002) ............................................................ 6 United States v. Greer, 285 F.3d 158 (2d Cir. 2002) ............................................................................ 8 United States v. Peterson, 812 F.2d 486 (9th Cir. 1987) .......................................................................... 10 United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) .............................................................................. 2, 6, 8 Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000) .............................................................................. 4 Other Authorities Proof of the Law of Foreign Countries: Appellate Review and Subsequent Litigation, 72 Harv. L. Rev. 318 (1958) ......................................................... 12 Restatement (Third) of Foreign Relations Law of the United States § 403 (Am. Law Inst. 1986) ............................................................................ 10 iii Case 17-2992, Document 1129, 05/21/2018, 2308158, Page5 of 53 In accordance with Rule 27(a) of the Federal Rules of Appellate Procedure, Defendants-Appellees1 hereby, for the reasons set forth below, oppose the joint motion (the “Motion”) of appellant Irving H. Picard, the trustee (the “Trustee”) appointed under the Securities Investor Protection Act, 15 U.S.C. §§ 78aaa et seq., for the liquidation of the business of Bernard L. Madoff Investment Securities LLC (“BLMIS”) and intervenor Securities Investor Protection Corporation (“SIPC,” and together with the Trustee, the “Movants”), seeking leave to file a foreign law declaration by Mark Phillips, QC (the “Declaration”) (Dkt. Nos. 1094 and 1093, respectively).2 Defendants-Appellees do not object, however, to Movants’ submission, for the convenience of the Court, of the cases attached to the Declaration. PRELIMINARY STATEMENT In this appeal, Movants seek to reverse the decisions of the District Court (Rakoff, J.) and the Bankruptcy Court (Bernstein, J.) dismissing the Trustee’s claims because the Trustee has no authority under the Bankruptcy Code to pursue them, and because principles of international comity favor dismissal. Those 1 Defendants-Appellees and the relevant actions are set forth on Addendum A hereto. 2 Capitalized terms used but not defined herein have the meanings ascribed to them in Defendants-Appellees’ Brief in Opposition (Dkt. No. 935) (“Defs.’ Br.”). Case 17-2992, Document 1129, 05/21/2018, 2308158, Page6 of 53 decisions were rendered after extensive briefing and ample opportunity for all interested parties to present relevant arguments, authority and testimony. But rather than rely on the voluminous record below, Movants have waited until their reply briefing on appeal to seek to supplement the record through a 45-page argumentative declaration of a purported expert in the laws of the British Virgin Islands (“BVI”), Cayman Islands, and Bermuda. Under Rule 10(a) of the Federal Rules of Appellate Procedure, the Declaration is not properly part of the record on appeal, and this Court “will not enlarge the record on appeal to include evidentiary material not presented to the district court” “[a]bsent extraordinary circumstances” that Movants have not even attempted to argue are presented here. Okoi v. El Al Israel Airlines, 378 F. App’x 9, 11 n.1 (2d Cir. 2010) (denying motion to expand the record) (citing Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975)). Accordingly, the Motion should be denied. Even if there were some legitimate basis to supplement the record below— and there is none—this Circuit’s black-letter law requires that the appellant raise each and every challenge to the lower courts’ decisions in its opening brief. United States v. Yousef, 327 F.3d 56, 115-16 (2d Cir. 2003) (“[This Court] will not consider an argument raised for the first time in a reply brief.”). Here, both the District Court and the Bankruptcy Court explicitly based their decisions, in part, on the proceedings in the BVI, Cayman Islands, and Bermuda, and on the law of those 2 Case 17-2992, Document 1129, 05/21/2018, 2308158, Page7 of 53 jurisdictions, including the Privy Council’s decision in Fairfield Sentry Ltd. v. Migani, [2014] UKPC 9 (“Migani”). Movants recognize these facts. Yet, in their opening briefs, neither the Trustee nor SIPC chose to (i) develop arguments based on BVI, Cayman, or Bermuda law, including Migani,
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