Picard v. Merkin et al

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re: 	:
:
BERNARD L. MADOFF INVESTMENT 	: 	Case No. 08-99000 (SMB)
SECURITIES LLC, 	: 	Adv. Proc. No. 08-01789
: 	SIPA LIQUIDATION
Debtor. 	:
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IRVING H. PICARD, Trustee for the 	:
Liquidation of Bernard L. Madoff 	:
Investment Securities LLC, 	:
:
Plaintiff, 	:
:
‒ against ‒ 	: 	Adv. Proc. No. 09-01182
:
J. EZRA MERKIN, GABRIEL CAPITAL, 	:
L.P., ARIEL FUND LTD., ASCOT 	:
PARTNERS, L.P., ASCOT FUND LTD., 	:
GABRIEL CAPITAL CORPORATION, 	:
:
Defendants. 	:
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MEMORANDUM DECISION DENYING TRUSTEE’S MOTION
FOR ENTRY OF FINAL JUDGMENT PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 54(b) AND CERTIFICATION
FOR DIRECT APPEAL UNDER 28 U.S.C. § 158(d)
A P P E A R A N C E S:
BAKER & HOSTETLER LLP
Attorneys for Plaintiff, Irving H. Picard,
Trustee for the Liquidation of
Bernard L. Madoff Investment Securities LLC
45 Rockefeller Plaza
New York, NY 10111
David J. Sheehan, Esq.
Lan Hoang, Esq.
Brian W. Song, Esq.
Seanna R. Brown, Esq.
Of Counsel
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SECURITIES INVESTOR PROTECTION CORPORATION
805 Fifteenth Street, N.W., Suite 800
Washington, DC 20005
Josephine Wang, Esq.
Kevin H. Bell, Esq.
Lauren T. Attard, Esq.
Of Counsel
DECHERT LLP
Attorneys for Defendants J. Ezra Merkin
& Gabriel Capital Corporation
1095 Avenue of the Americas
New York, NY 10036
Andrew J. Levander, Esq.
Neil A. Steiner, Esq.
Of Counsel
REED SMITH LLP
Attorneys for Bart M. Schwartz, As Receiver of
Defendants Gabriel Capital, L.P. & Ariel Fund Ltd.
599 Lexington Avenue
New York, NY 10022
James C. McCarroll, Esq.
Jordan W. Siev, Esq.
Michael J. Venditto, Esq.
Casey D. Laffey, Esq.
Of Counsel
FULBRIGHT & JAWORSKI LLP
Attorneys for Ralph C. Dawson, as Receiver for
Defendant Ascot Partners, L.P.
666 Fifth Avenue
New York, NY 10103
Judith A. Archer, Esq.
David L. Barrack, Esq.
Jami Mills Vibbert, Esq.
Of Counsel
STUART M. BERNSTEIN
United States Bankruptcy Judge:
In Picard v. Merkin (In re BLMIS), 515 B.R. 117 (Bankr. S.D.N.Y. 2014) (“Merkin
Decision”), the Court dismissed several avoidance claims brought by Irving H. Picard
(“Trustee”), as trustee for the substantively consolidated liquidation of Bernard L. Madoff
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Investment Securities LLC (“BLMIS”) under the Securities Investor Protection Act, 15 U.S.C.
§§ 78aaa, et seq. (“SIPA”) and the estate of Bernard L. Madoff. The basis for dismissal was that
the Trustee had failed to plead that the defendants had actual knowledge of Madoff’s Ponzi
scheme, and accordingly, the “safe harbor” under 11 U.S.C. § 546(e) shielded them from all
avoidance claims other than intentional fraudulent transfer claims under 11 U.S.C. §
548(a)(1)(A). The requirement to plead actual knowledge was imposed by the District Court in
SIPC v. BLMIS (In re BLMIS), No. 12 MC 115 (JSR), 2013 WL 1609154, at *4 (S.D.N.Y. Apr.
15, 2013) (“Actual Knowledge Decision”).
The Trustee now seeks the entry of a final judgment dismissing the avoidance claims
under Rule 54(b) of the Federal Rules of Civil Procedure (the “54(b) Judgment”), and the
certification of the 54(b) Judgment for direct appeal to the United States Court of Appeals for the
Second Circuit pursuant to 28 U.S.C. § 158(d) (the “Motion”). (See Trustee’s Memorandum of
Law in Support of Motion to Direct Entry of Final Judgment Under Federal Rule of Civil
Procedure 54(b) and to Certify Judgment for Immediate Appeal Under 28 U.S.C. § 158(d), dated
Sept. 5, 2014 (ECF Doc. # 227 1 ).) The Motion is opposed by J. Ezra Merkin (“Merkin”) and
Gabriel Capital Corporation (“GCC,” and collectively with Merkin, the “Merkin Defendants”)
and Gabriel Capital, L.P. (“Gabriel”), Ariel Fund Ltd. (“Ariel”) and Ascot Partners, L.P.
(“Ascot,” and collectively with Gabriel and Ariel, the “Fund Defendants”). For the reasons that
follow, the Motion is denied.
1 	Entries on the docket of this adversary proceeding Picard v. Merkin (In re BLMIS), No. 09-01182 (SMB)
will be denoted as “ECF Doc. # __.”
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BACKGROUND
The Trustee commenced this adversary proceeding on May 7, 2009 to avoid and recover
initial and subsequent transfers made to the Merkin Defendants and the Fund Defendants under
the fraudulent conveyance provisions of the New York Debtor & Creditor Law (“NYDCL”), §§
270, et seq. and the fraudulent transfer provisions of Bankruptcy Code § 548. (See Complaint,
dated May 7, 2009 (ECF Doc. # 1).) His Third Amended Complaint, dated Aug. 30, 2013
(“TAC”), included thirteen counts or claims for relief. Count One sought to avoid and recover
preferential transfers to Ascot; Counts Two and Three, respectively, alleged claims against the
Fund Defendants to avoid and recover intentional fraudulent transfers under 11 U.S.C. §
548(a)(1)(A) and constructive fraudulent transfers under 11 U.S.C. § 548(a)(1)(B) made within
two years of the December 11, 2008 filing date (the “Filing Date”); and Counts Four through
Eight asserted claims to avoid and recover intentional and constructive fraudulent transfers under
the NYDCL against the Fund Defendants made within six years of the Filing Date. Each Count
also sought to disallow any claims filed by the Fund Defendants pursuant to 11 U.S.C. § 502(d).2
Counts Nine and Ten were directly related to the avoidance claims alleged in the previous
Counts. Count Nine asserted claims for subsequent transfer liability against the Merkin
Defendants, the Fund Defendants and Ascot Fund under 11 U.S.C. § 550(a)(2). The subsequent
transfer claims depended on the Trustee’s ability to avoid the initial transfers that were the
subject of Counts One through Eight. Count Ten asserted liability against Merkin as the general
2 	It is unclear whether the defendant Ascot Fund Limited (“Ascot Fund”), which has not opposed the Motion,
is a defendant on Counts Four through Eight. It is included in the definition of “Defendant Funds,” (TAC at ¶ 3),
but Counts Four through Eight are directed at the “Defendants.” In contrast, Count Nine, the claim to recover
subsequent transfers, specifically names each Defendant Fund as well as the Merkin Defendants. (TAC at ¶ 383.)
Furthermore, Ascot Fund did not receive any distributions directly from BLMIS after an unspecified date December
2002, (see TAC, Ex. B, at 3), and the six year reach-back period commenced on December 11, 2002.
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partner of Ascot and Gabriel. Thus, it sought a judgment against Merkin based on the initial and
subsequent transfers received by Ascot and Gabriel as alleged in Counts One through Nine.
As a result of a series of decisions by the District Court identified in the Merkin Decision,
the Trustee’s ability to avoid and recover preferential and fraudulent transfers is limited by 11
U.S.C. § 546(e). The latter provides in pertinent part that “the trustee may not avoid a transfer
that is a … settlement payment … made by or to (or for the benefit of) a stockbroker [or]
financial institution … or that is a transfer made by or to (or for the benefit of) a … stockbroker
[or] financial institution … in connection with a securities contract,” but expressly excepts actual
fraudulent transfer claims from its protection. The Merkin Decision summarized the District
Court rulings as follows:
The Trustee’s ability to avoid and recover transfers has been limited by several
decisions issued by the District Court. In light of the “safe harbor” provision of
Bankruptcy Code § 546(e), the Trustee can only avoid and recover intentional
fraudulent transfers under Bankruptcy Code § 548(a)(1)(A) that were made within
two years of the filing date. See Picard v. Greiff, 476 B.R. 715, 718 (S.D.N.Y.
2012); Picard v. Katz, 462 B.R. 447, 452 (S.D.N.Y. 2011) (“Katz”). If, however,
an initial (or subsequent) transferee had actual knowledge of Madoff’s Ponzi
scheme, he cannot avail himself of the § 546(e) safe harbor, and the Trustee can
avoid and recover preferences and actual and constructive fraudulent transfers to
the full extent permitted by state and federal bankruptcy law. See SIPC v. BLMIS,
No. 12 Misc. 115 (JSR), 2013 WL 1609154, at *6 (S.D.N.Y. Apr. 15, 2013)
(“Cohmad”).
. . . .
[I]n order to meet his burden under Counts One through Eight, the Trustee must
plead and prove that BLMIS made an avoidable transfer and the transferee had
actual knowledge of Madoff's scheme. If the TAC does not plead actual
knowledge, the Trustee can still recover intentional fraudulent transfers pursuant
to Bankruptcy Code § 548(a)(1) under Count Two if he can plead and prove that
the Remaining Funds willfully blinded themselves to the fact that Madoff was
conducting a Ponzi scheme. See Good Faith Decision, 2014 WL 1651952, at *4;
Katz, 462 B.R. at 454, 455–56.
Merkin Decision, 515 B.R. at 138-39.
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The Merkin Decision concluded that the TAC had failed to allege that Merkin, and hence
the Defendant Funds, had actual knowledge of Madoff’s Ponzi scheme, 515 B.R. at 141, but also
concluded that the TAC adequately alleged that Merkin willfully blinded himself to the fraud.
Id. at 141-46. Consequently, the Court dismissed Count One and Counts Three through Eight
(collectively, the “Dismissed Claims”) but declined to dismiss Count Two. The Court also
denied the motion to dismiss Counts Nine and Ten.3
The Motion
The Motion, ostensibly directed at the Merkin Decision, actually seeks review of Judge
Rakoff’s Actual Knowledge Decision in the Court of Appeals. At oral argument, the Trustee’s
counsel stated that the Trustee could not seek leave to appeal Judge Rakoff’s interlocutory order
at the time because he had prevailed; the District Court concluded that the Trustee had
adequately pleaded actual knowledge on the part of the principal Cohmad defendants. Actual
Knowledge Decision, 2013 WL 1609154, at *5-6. For this reason, the Motion seeks the entry of
a final judgment as to the Dismissed Claims pursuant to Federal Rule of Civil Procedure 54(b)
and the certification for direct appeal of the 54(b) Judgment to the Second Circuit Court of
Appeals under 28 U.S.C. § 158(d). According to the Trustee, the entry of the 54(b) Judgment
and the certification will provide the opportunity for the Court of Appeals to identify the correct
standard governing the application of the § 546(e) safe harbor and permit the trial of all
avoidance claims at one time. In addition, there are many other pending adversary proceedings
3 	The Court also dismissed Counts Eleven and Twelve, but the Trustee does not seek to include these
dismissed counts in the 54(b) Judgment.
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brought against similarly-situated defendants.4 Accordingly, the Second Circuit’s delineation of
the correct standard for pleading and proving the applicability of the § 546(e) safe harbor will
promote the efficient administration of these many other suits within the BLMIS liquidation.5
The Fund Defendants object to the Motion. (See Memorandum of Law of Bart M.
Schwartz, as Receiver for Defendants Ariel Fund Limited and Gabriel Capital, L.P., and Ralph
C. Dawson, as Receiver for Defendant Ascot Partners, L.P., in Opposition to Trustee’s Motion to
Direct Entry of Final Judgment Under Fed. R. Civ. P. 54(b) and to Certify Judgment for
Immediate Appeal Under 28 U.S.C. § 158(d), dated Sept. 12, 2014 (ECF Doc. # 231).) They
contend that the Bankruptcy Court lacks jurisdiction to enter a final judgment on the Dismissed
Claims, and the Trustee has failed to satisfy the requirement for certification under Rule 54(b).
They also oppose certification for direct appeal to the Second Circuit, arguing that the relevant
rulings in the Actual Knowledge Decision were based on well-settled rules of statutory
construction, do not involve matters of public importance, and will not materially advance the
progress of the case.
The Merkin Defendants also oppose the Motion, and join in the Fund Defendants’
objection. (See Memorandum of Law of Defendants J. Ezra Merkin and Gabriel Capital
Corporation in Opposition to Trustee’s Motion to Direct Entry of Final Judgment Under Federal
4 	At the request of the Court, the Trustee provided a list of adversary proceedings against defendants who
could seek to dismiss the complaint based on the Trustee’s failure to plead actual knowledge. The Trustee identified
103 adversary proceedings involving 608 defendants. (See Letter, dated Oct. 6, 2014 (ECF Doc. # 237).)
5 	The Securities Investor Protection Corporation (“SIPC”) also filed a brief supporting the Motion echoing
much of the Trustee’s arguments. (See Brief of the Securities Investor Protection Corporation in Support of the
Trustee’s Motion to Direct Entry of Final Judgment and to Certify Judgment for Immediate Appeal, dated Sept. 5,
2014 (ECF No. #228).)
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Rule of Civil Procedure 54(b) and to Certify Judgment for Immediate Appeal Under 28 U.S.C. §
158(d), dated Sept. 12, 2014 (ECF Doc. # 230).) Among other things, they contend that they are
not defendants on the Dismissed Claims, i.e., they are not initial transferees, but their rights as
alleged subsequent transferees and Merkin’s rights as general partner will be affected by an
appeal as to which they are not parties.
DISCUSSION
Federal Civil Rule 54(b), made applicable to this adversary proceeding through Rule
7054 of the Federal Rules of Bankruptcy Procedure, states in pertinent part as follows:
When an action presents more than one claim for relief—whether as a
claim, counterclaim, crossclaim, or third-party claim—or multiple parties
are involved, the court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.
FED. R. CIV. P. 54(b) (emphasis added). 6
A party seeking certification must satisfy three criteria: (1) the pleading must allege
multiple claims or multiple parties must be present, (2) at least one claim or the rights and
6 	As a threshold matter, the Bankruptcy Court has jurisdiction to enter a final judgment dismissing the
Dismissed Claims as to the Fund Defendants. Each filed a customer claim with the Trustee, and the Dismissed
Claims seek, inter alia, to disallow their claims under 11 U.S.C. § 502(d). The Dismissed Claims implicate the
claims allowance process, and a creditor who files a proof of claim submits himself to the Court’s jurisdiction over
the claims allowance process. See Gulf States Exploration Co. v. Manville Forest Prods. Corp. (In re Manville
Forest Prods. Corp.), 896 F.2d 1384, 1389 (2d Cir. 1990) (creditor’s filed claim “submitted itself to the equitable
power of the bankruptcy court to disallow its claim”). The filing of a customer claim in a SIPA proceeding has the
same jurisdictional effect. Picard v. Stahl, 443 B.R. 295, 310 (Bankr. S.D.N.Y. 2011) (citing Keller v. Blinder (In re
Blinder Robinson & Co., Inc.), 135 B.R. 892, 896–97 (D.Col.1991)), aff’d No. 11 Civ. 2392 (AKH), 2011 WL
7975167 (S.D.N.Y. Dec. 15, 2011), aff’d, 512 F. App’x. 18 (2d Cir. 2013). Moreover, the Court has the authority to
finally determine all issues required to be decided as part of the claims allowance process. See Stern v. Marshall,
131 S.Ct. 2594, 2618 (2011) (“Congress may not bypass Article III simply because a proceeding may have some
bearing on a bankruptcy case; the question is whether the action at issue stems from the bankruptcy itself or would
necessarily be resolved in the claims allowance process.”).
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liabilities of at least one party must be finally decided within the meaning of 28 U.S.C. § 1291,
and (3) the district court must make an express determination that there is no just reason for
delay and direct the clerk to enter judgment. Acumen Re Mgmt. Corp. v. Gen. Sec. Nat’l Ins.
Co., 769 F.3d 135, 140 (2d Cir. 2014); Ginett v. Computer Task Group, Inc., 962 F.2d 1085,
1091 (2d Cir. 1992). “Rule 54(b) certification should only be entered by the district court if the
judgment would dispose of fewer than all of the claims or would dispose of all claims against
fewer than all of the parties.” Shrader v. Granninger, 870 F.2d 874, 878 (2d Cir. 1989)(citing
Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir. 1987), cert. denied, 483 U.S. 1021 (1987)).
Even where the movant has satisfied the first two criteria, the decision to enter final judgment
under Rule 54(b) lies within the sound discretion of the trial court. Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 10 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437
(1956)).
The TAC alleges claims against multiple parties, but the Merkin Decision did not dispose
of all of the claims against at least one party. The Fund Defendants still face liability under
Counts Two, Nine and Thirteen. 	Accordingly, the Trustee must demonstrate that the adversary
proceeding involves multiple claims, and at least one claim was finally decided.
“In a case involving multiple claims, the court should not enter final judgment dismissing
a given claim unless that claim is separable from the claims that survive. See I.L.T.A. Inc. v.
United Airlines, Inc., 739 F.2d 82, 84 (2d Cir.1984). Claims are normally regarded as separable
if they involve at least some different questions of fact and law and could be separately enforced,
[citation omitted], or if “different sorts of relief” are sought and, consequently, the claim for
greater relief would be pressed by the plaintiff even if the other claim were granted.” Cullen,
811 F.2d at 711; accord Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 44 n.6 (1st Cir. 1988)
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(“[T]rue multiplicity of claims—an essential ingredient for a final order within the purview of
Rule 54(b)—does not exist where a plaintiff ‘merely presents alternative theories ... by which the
same set of facts might give rise to a single liability.’”)(quoting Schexnaydre v. Travelers Ins.
Co., 527 F.2d 855, 856 (5th Cir.1976) (per curiam)).
Here, the TAC asserts multiple claims, and the Dismissed Claims are separable and
disparate from the surviving claims. While Counts Two and Three arguably assert a single claim
under different theories to avoid and recover transfers that were made within two years of the
Filing Date (the “Two Year Transfers”), Counts Four through Eight seek to avoid and recover
transfers that were made within six years of the Filing Date (the “Six Year Transfers”).7 There is
overlap between Count Two and Counts Four through Eight because the Six Year Transfers
subsume the Two Year Transfers (as well as the preferential transfer asserted in Count One), (see
TAC at ¶¶ 317-19), but the Six Year Transfers also challenge the transfers made in years three
through six. The latter group of transfers necessarily involves different facts than the Two Year
Transfers and seeks relief beyond the relief sought in connection with the Two Year Transfers.
Thus, it is possible that the Trustee could fail to avoid any of the Two Year Transfers, but still
succeed in avoiding and recovering one or more transfers made in years three through six. In
addition, the surviving equitable subordination claim (Count Thirteen) seeks different relief from
the Dismissed Claims. Accordingly, the TAC asserts multiple claims and the Court has finally
decided at least one claim.
7 	The Six Year Transfer claims are asserted under 11 U.S.C. § 544(b)(1) which permits the Trustee to avoid
any transfer that a creditor holding an allowable unsecured claim could avoid under non-bankruptcy law. The
relevant non-bankruptcy law in this case is the NYDCL. The statute of limitations to avoid a fraudulent conveyance
under New York law is six years. See N.Y.C.P.L.R. § 213 (MC K INNEY 2014).
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This does not end the inquiry. Even where the requirements of separability and disparity
of claims are met, the court should only direct the entry of judgment under Rule 54(b) if it
determines that “there is no just reason for delay.” The decision is committed to the court’s
discretion but certification should not be granted routinely. Cullen, 811 F.2d at 711. There
exists an ‘historic federal policy against piecemeal appeals,’” id. at 710 (quoting Curtiss-Wright
Corp., 446 U.S. at 8 (quoting Sears Roebuck & Co., 351 U.S. at 438)), and “[r]espect for that
goal requires that the court’s power to enter a final judgment before the entire case is concluded,
and thereby permit an aggrieved party to take an immediate appeal, be exercised sparingly.” Id.
“To prevent the ‘waste and futility’ generated by piecemeal appeals . . ., ‘there must be some
danger of hardship or injustice through delay which would be alleviated by immediate
appeal.’” Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir. 1978)(Friendly, J.) (quoting
W. Geophysical Co. v. Bolt Assocs., Inc., 463 F.2d 101, 103 (2d Cir. 1972) (quoting Campbell v.
Westmoreland Farm, Inc., 403 F.2d 939, 942 (2d Cir. 1968)); accord Cullen, 811 F.2d at 711.
Here, several considerations weigh against certification under Rule 54(b). First, the
parties to the Dismissed Claims and subsequent appeal are also parties to the surviving claims.
“It will be a rare case where Rule 54(b) can appropriately be applied when the contestants on
appeal remain, simultaneously, contestants below.” Spiegel, 843 F.2d at 44; accord Brunswick,
582 F.2d at 183 (“This court has indicated on numerous occasions that entry of final judgment
under Rule 54(b) is not to be done lightly, particularly when the action remains pending as to all
parties.”).
Second, entry of the 54(b) Judgment and ensuing appeal may prejudice Merkin and GCC
who were not parties to the Dismissed Claims and would not be parties on the appeal.
Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir. 1976)(per curiam) (“[W]e expressed concern
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lest our determination of some issues involving the defendant against whom the complaint had
been dismissed ‘might result in prejudice to the other defendants who would not have had an
opportunity before us to participate in the determination of those issues.’” (quoting Gumer v.
Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974)). Merkin’s liability as general
partner is derivative of the liability of Gabriel and Ascot for the initial transfers that are the
subject of the Dismissed Claims. Merkin’s and GCC’s liability as subsequent transferees also
depends on the avoidability of the initial transfers. If the Trustee prevails on appeal and the Six
Year Transfers claims are reinstated, Merkin and GCC will be exposed to increased liability.
Third, although the claims in Count Two are separate and distinct from the Dismissed
Claims, they are closely intertwined. Brunswick, 582 F.2d at 183 (where the dismissed and the
surviving claims are closely intertwined, a final judgment under Rule 54(b) should not be
entered). The preferential transfer claim that is the subject of Count One is incorporated into the
Two Year Transfers which, in turn, form part of the Six Year Transfers.
Accordingly, I decline in the exercise of discretion to conclude that there is just reason to
enter the 54(b) Judgment without further delay. As a result, the branch of the Motion seeking to
certify the 54(b) Judgment is denied as moot. 8
8 	Although 28 U.S.C. § 158(d)(2)(A) grants the Court of Appeals jurisdiction to hear appeals from
interlocutory orders of the Bankruptcy Court, OCA, Inc. v. Orthalliance New Image (In re OCA, Inc.), 552 F.3d 413,
418 (5th Cir. 2008); see In re BLMIS, 654 F.3d 229, 234 (2d Cir. 2011) (accepting direct appeal from interlocutory
order of the Bankruptcy Court that adopted the Net Investment Method for computing customer’s net equity but
reserved decision on whether the Net Investment Method should be adjusted for inflation), cert. denied, 133 S. Ct.
25 (2012), the Trustee has not sought leave to appeal this Court’s interlocutory order dismissing the Dismissed
Claims directly to the Court of Appeals.
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The Trustee is directed to submit an order consistent with the Merkin Decision and a
separate order denying the Motion.
Dated: 	New York, New York
December 4, 2014
/s/ Stuart M. Bernstein
STUART M. BERNSTEIN
United States Bankruptcy Judge
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