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United States District Court Southern District of New York UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION SIPA LIQUIDATION CORPORATION, Case No. 08-01789 (BRL) Plaintiff, (Substantively Consolidated) v. Appeal No.: _______________ BERNARD L. MADOFF INVESTMENT SECURITIES LLC, Defendant. In re: BERNARD L. MADOFF, Debtor. DECLARATION OF SEANNA R. BROWN, ESQ., IN SUPPORT OF THE MEMORANDUM OF LAW OF IRVING H. PICARD, TRUSTEE, IN OPPOSITION TO MOTION FOR LEAVE TO APPEAL I, Seanna R. Brown, Esq., of full age, hereby declare as follows: 1. I am associated with the law firm of Baker & Hostetler LLP, counsel to Irving H. Picard, as trustee (“Trustee”) for the substantively consolidated liquidation proceeding 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”). As an attorney of record, I am fully familiar with this case and the facts set forth herein. I submit this Declaration to place before this Court true and correct copies of documents relevant to the brief of the Trustee submitted in opposition to the motion of Marsha Peshkin, and over 800 other customers of Bernard L. Madoff Investment Securities LLC for leave to appeal the Order Approving Applications for Allowance of Interim Compensation for Services Rendered and Reimbursement of Expenses, dated June 1, 2011 (“Sixth Interim Fee Order”) of the United States Bankruptcy Court for the Southern District of New York (“Bankruptcy Court”), to the extent the Sixth Interim Fee Order granted the sixth application for interim compensation of the Trustee and B&H (“Sixth Fee Application”). 2. Attached hereto as Exhibit A is a true and correct copy of the transcript from the Hearing of August 6, 2009 on the First Applications for Interim Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred by Applicants from December 15, 2008 to April 30, 2009. 3. Attached hereto as Exhibit B is a true and correct copy of the Memorandum Decision and Order issued by the Honorable Judge Daniels, Misc. Matter M-47 (GBD), reported at Securities Investor Protection Corporation v. Bernard L. Madoff Investment Securities LLC, 2010 U.S. Dist. LEXIS 3037 (S.D.N.Y. Jan. 11, 2010), denying the Movants’ motion for leave to appeal the First Interim Fee Order (as defined in the Trustee’s Memorandum). 4. Attached hereto as Exhibit C is a true and correct copy of the transcript from the Hearing of December 17, 2009 on the Second Applications for Interim Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred by Applicants from May 1, 2009 to September 30, 2009. 5. Attached hereto as Exhibit D is a true and correct copy of the transcript from the Hearing of May 5, 2010 on the Third Applications for Interim Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred by Applicants from October 1, 2009 to January 31, 2010. 6. Attached hereto as Exhibit E is a true and correct copy of the Opinion and Order issued by the Honorable Shira A. Sheindlin, Misc. Matter M-47 (SAS), reported at Securities Investor Protection Corporation v. Bernard L. Madoff Investment Securities LLC, 2010 U.S. Dist. LEXIS 81492 (S.D.N.Y. Aug. 6, 2010), denying Movants’ motion for leave to appeal the Third Interim Fee Order (as defined in the Trustee’s Memorandum). 7. Attached hereto as Exhibit F is a true and correct copy of the transcript from the Hearing of September 14, 2010 on the Fourth Applications for Interim Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred by Applicants from February 1, 2010 to May 31, 2010. 8. Attached hereto as Exhibit G is a true and correct copy of the transcript from the Hearing of December 14, 2010 on the Fifth Application for Interim Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred by Applicants from June 1, 2010 to September 31, 2010. 9. Attached hereto as Exhibit H is a true and correct copy of the Trustee’s Reply to Objection to Sixth Application for Interim Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred From October 1, 2010 Through January 31, 2011. 10. Attached hereto as Exhibit I is a true and correct copy of the Trustee’s Motion for an Order Approving an Initial Allocation of Property to the Fund of Customer Property and Authorizing an Interim Distribution to Customers. Pursuant to 28 U.S.C. § 1746, I hereby declare that the foregoing statements made by me are true and correct. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: June 29, 2011 Respectfully submitted, /s/ Seanna R. Brown Seanna R. Brown (SB-5203) BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, New York 10111 Tel: 212.589.4200 Fax: 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 EXHIBIT A 1 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------x In the Matter of Case No. 1-08-01789 SIPC V. MADOFF, Debtor. ---------------------------------x August 6, 2009 United States Custom House One Bowling Green New York, New York 10004 In Re First Application for Interim Professional Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses Incurred for Baker & Hostetler LLP, et al. B E F O R E: HON. BURTON R. LIFLAND, U.S. Bankruptcy Judge VERITEXT REPORTING COMPANY 212-267-6868 516-608-2400 2 1 A P P E A R A N C E S: 2 3 4 BAKER HOSTETLER, LLP 5 Attorneys for Irving H. Picard, SIPA Trustee 6 45 Rockefeller Plaza 7 New York, New York 10017 8 BY: MARC E. HIRSCHFIELD, ESQ. 9 -and- 10 DAVID J. SHEEHAN, ESQ. 11 -and- 12 ALISSA M. NANN, ESQ. 13 -and- 14 IRVING H. PICARD, BLMIS Trustee 15 16 17 18 MILBERG LLP 19 Attorneys for Unofficial 20 Committee of Customers 21 One Pennsylvania Plaza 22 New York, New York 10119 23 BY: MATTHEW GLUCK, ESQ. 24 -and- 25 JONATHAN M. LANDERS, ESQ. VERITEXT REPORTING COMPANY 212-267-6868 516-608-2400 3 1 2 A P P E A R A N C E S: (Continued) 3 4 PHILLIPS NIZER, LLP 5 Attorneys for The Peskins and Maureen Ebel 6 666 Fifth Avenue 7 New York, New York 10103 8 BY: HELEN DAVIS CHAITMAN, ESQ. 9 10 WINDELS MARK LANE & MITTENDORF, LLP 11 Attorneys for Alan Nisselson Chapter 7 Trustee 12 156 West 56th Street 13 New York, New York 10019 14 BY: ALAN NISSELSON, ESQ. 15 -and- 16 REGINA GRIFFIN, ESQ. 17 18 SECURITIES INVESTOR PROTECTION CORPORATION 19 805 15th Street, Suite 800 20 Washington, D.C. 20005 21 BY: KEVIN H. BELL, ESQ. 22 23 24 25 VERITEXT REPORTING COMPANY 212-267-6868 516-608-2400 4 1 PROCEEDINGS 2 THE COURT: SIPC v Madoff. 3 With respect to the timing of the hearing, 4 I understand there was a fairly long line outside and that 5 is why we were delayed. It seems to be no deed becomes 6 unpunished because I could have expected the courtroom to 7 be filled up, which it did not. 8 MR. SHEEHAN: Good morning, Your Honor. 9 THE COURT: Good morning, Mr. Sheehan. 10 MR. SHEEHAN: David Sheehan from Baker 11 Hostetler, on behalf of the Irving Picard as Trustee. 12 We have before Your Honor this morning a 13 number of applications. As is the normal course we would 14 deal with those that are unopposed and uncontested first. 15 THE COURT: Certainly. 16 MR. SHEEHAN: At this point we would like 17 to introduce Alissa Nann from our office. 18 MS. NANN: Good morning, Your Honor. 19 Alissa Nann, on behalf of the trustee. 20 Your Honor, we have this morning the 21 Trustee's fourth motion for an extension of time by which 22 the Trustee may assume or reject certain contracts or 23 leases. 24 Your Honor, we were last before you on this 25 issue on July 7, at which time you entered an order VERITEXT REPORTING COMPANY 212-267-6868 516-608-2400 5 1 extending the deadline to assume or reject to July 31. We 2 filed the instant motion on July 24th, and a bridge order 3 was entered by Your Honor on the 27th which extended the 4 deadline for the assumption or rejection of certain 5 contracts through today's hearing date. 6 At we explained to the Court the last time 7 we were before Your Honor, this extension motion is made 8 based upon a request by a Serge Trading (phonetic), who is 9 the purchaser of the Debtor's market-making business. 10 They were still in negotiation with Verizon 11 for certain contracts providing phone and internet 12 services, and those are the only contracts to which the 13 extension will apply. They were told they are very close 14 to coming to a deal with Verizon, and as we also reported 15 to the Court the last time, Serge will be paying the cost 16 of the service through the date of the extension, which we 17 will extend through the 31st and will be covering any 18 confidential and legal expenses relating to the motion. 19 We have not received any objection to the 20 motion, and we would ask that it be granted. 21 THE COURT: Are they making payments in 22 accordance with the basic contract price? 23 MS.
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