Educational Session. Hedge fund litigation

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1 Educational Session Hedge fund litigation

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3 EDUCATIONAL SESSION CURRICULUM VITAE David Allison 3-4 South Square London, UK David is a barrister practising at 3-4 South Square in London. He specialises in corporate restructuring and insolvency; banking and financial services; and general commercial and business litigation. His recent cases include Madoff, Nortel, Lehman Brothers (including Perpetual Trustee Company Ltd v (1) Bank of New York (2) Lehman Brothers Special Financing Ltd [2009] EWHC 1912 (Ch)), Stanford International Bank, Woolworths, Entertainment UK, McCarthy & Stone, Landsbanki, General Motors, Metronet, Orion SIV, Golden Key SIV, Cheyne SIV, Eurosail CDO, Cattles, Northern Rock, TXU, Courts, Schefenacker, Swissair, IPOC, and Philadelphia Alternative Asset Fund. David has an extensive overseas practice which includes Cayman, BVI and Dubai (appearing in the first trial to come before the DIFC Courts). David acted as counsel in the SV Special Situations Fund Ltd v Headstart Class F Holdings Ltd which addresses the rights of a redeeming investor in a BVI hedge fund. Ross McDonough Campbells Cayman Islands rmcdonough@campbells.com.ky J. Ross McDonough was born in Scotland in He graduated with an Ll.B and Diploma in Legal Practice from the University of Glasgow before qualifying as a Solicitor in Scotland in 1986 and as a Solicitor in England in 1989 where he joined Wilde Sapte, a leading firm in the City of London working in its banking litigation department. He was admitted as an Attorney-at-Law in the Cayman Islands in Ross specializes in all aspects of commercial litigation with particular emphasis on hedge and mutual fund litigation, liquidations, bankruptcies and receiverships, asset tracing claims, confidentiality matters, trust litigation and enforcement of foreign judgments. He has appeared as lead Counsel in numerous reported cases before the Grand Court, Court of Appeal and Privy Council. Ross has also been instructed as an expert witness in Cayman Law in a number of proceedings before courts in other jurisdictions and is an active member of the Association of Business Recovery Professionals R3, the Insolvency Lawyers Association, COMBAR and INSOL. Ross was recently named Insolvency and Restructuring lawyer of the year for the Cayman Islands for 2009 in a poll conducted by World Finance Magazine.

4 EDUCATIONAL SESSION David K. Momborquette Schulte Roth & Zabel LLP New York, USA David Momborquette is a partner in the litigation group at Schulte Roth & Zabel LLP. His areas of concentration are complex commercial litigation, including securities law, regulatory and corporate disputes, trademark, copyright and other commercial disputes. He provides counsel and advice, as well as effective courtroom representation, to a variety of financial services industry clients, including investment funds, with respect to insider trading issues (including SEC and NASD investigations) and questions relating to corporate governance, fiduciary duty, market manipulation and other security law and regulatory issues. A 1990 graduate of Boston University School of Law, where he was an editor of the Law Review, David has written extensively on securities regulation and speaks regularly on regulatory compliance and enforcement issues. Chief Justice Anthony Smellie Grand Court of the Cayman Islands Cayman Islands Place of Birth: Jamaica; Naturalized British Citizen (Caymanian Status); LLB Hons. (U.W.I.) 1975; CLE: post graduate professional qualification, Commonwealth Caribbean; Attorney-at-law, Jamaica; Clerk of the Courts, Westmoreland, Jamaica, ; Crown Counsel and Assistant Director of Public Prosecution, Jamaica ; Associate Lecturer, Norman Manley Law School; ; Alumnus, International Development Law Institute, Rome, Italy; Diploma in Development & Finance Law; 1988; Principal Crown Counsel and Solicitor General, Cayman Islands, ; Team member Financial Action Task Force - mutual evaluation of United States Legal and Financial Anti-money Laundering Regimes, 1996; Appointed one of Her Majesty s Counsel, August 1991; Attorney General Cayman Islands (Acting), January 1992 November 1992; Judge of the Grand Court of the Cayman Islands, January 1993 June 1998; Appointed Chief Justice of the Cayman Islands since June 1998; Mutual Legal Assistance Authority (Cayman - United States MLAT) since 1993; Honorary Bencher, Grays Inn, London, England; Honorary Fellow Institute of Advanced Legal Studies (University of London); Patron: Commonwealth Law Journal, Oxford University Press; Alumnus, London Business School (Executive Education Programme); Member Insolvency Practitioners International (INSOL); Honorary Doctor of Laws (Liverpool) 2006.

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7 Hedge fund litigation David K. Momborquette Schulte Roth & Zabel LLP Conflicting Provisions General Rules Of Contract Interpretation Apply To Resolve Inconsistencies In A Fund's Documents Contemporaneous Writings General vs. Specific Provisions Ambiguity/Silence Fiduciary Duties 1

8 Inflated NAV: Clawback Cases To what extent can a trustee or similar representative "claw back" payments made as part of a Ponzi or similar fraudulent scheme? Legal sources under U.S. law Section 548 U.S. Bankruptcy Code State fraudulent transfer law State common law claims Bayou case Fictitious profits vs. payment of principal Inflated NAV: Clawback Cases Defenses Good faith defense Statute of limitations In pari delicto Venue/Choice of law Legitimacy of the trades 2

9 Inflated NAV: Claims against service providers What claims may lie against service providers when NAVs have been inflated by fraudulent management? State fiduciary law State common law Contact and tort claims Federal and state fraudulent transfer law Who can you sue? Investment manager Administrator Attorneys and accountants Prime brokers Directors of offshore funds Indemnity issues? 3

10 INSOL International Cayman Islands One Day Seminar CLAIMS BY SERVICE PROVIDERS FOR AN INDEMNITY IN THE LIQUIDATION OF THE FUND DAVID ALLISON 3-4 SOUTH SQUARE Claims of Service Providers for an Indemnity (1) Genesis of the indemnity claims: frequently due to US litigation against service providers Basis for the indemnity claims Directors: articles of the fund; directors service agreement Fund administrator: administration agreement Importance of issue for investors in the Fund: ranking of indemnity claims against claims of redeeming investors 1

11 Claims of Service Providers for an Indemnity (2) Task for a liquidator of a Fund when considering a claim for an indemnity: Acts in a quasi-judicial capacity Takes into account all relevant information which is available Must conduct a careful analysis of the provisions alleged to confer the right to an indemnity Consider any conflict between the indemnity provisions relied upon and the terms of the Offering Memorandum Claims of Service Providers for an Indemnity (3) Content of the indemnity provision: Clauses often provide an indemnity save in the case of fraud, wilful default or gross negligence : meaning of gross negligence Whether the exceptions to the right of indemnity can be further restricted (i.e. is there an irreducible core of obligations): Armitage v Nurse [1998] Ch 241; Re Beacon Hill; section 232 of the Companies Act

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