08-01789-smb Doc 18015 Filed 09/21/18 Entered 09/21/18 17 ......4 Madoff’s deposition took place...

Baker & Hostetler LLP 45 Rockefeller Plaza New York, New York 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 David J. Sheehan Stacey A. Bell Nicholas J. Cremona Attorneys for Irving H. Picard, Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Estate of Bernard L. Madoff

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

SECURITIES INVESTOR PROTECTION CORPORATION,

Plaintiff-Applicant,

v.

BERNARD L. MADOFF INVESTMENT SECURITIES LLC,

Defendant.

Adv. Pro. No. 08-01789 (SMB)

SIPA LIQUIDATION

(Substantively Consolidated)

In re:

BERNARD L. MADOFF,

Debtor.

IRVING H. PICARD, Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff,

Plaintiff,

v.

DEFENDANTS IN ADVERSARY PROCEEDINGS LISTED ON EXHIBIT A ATTACHED HERETO,

Defendants.

Adv. Pro. Nos. listed on Exhibit A Attached Hereto

MEMORANDUM OF LAW IN SUPPORT OF TRUSTEE’S MOTION

FOR LIMITED ADDITIONAL DISCOVERY BASED ON PRIOR ORDERS AUTHORIZING DEPOSITION OF BERNARD L. MADOFF

08-01789-smb Doc 18015 Filed 09/21/18 Entered 09/21/18 17:50:47 Main Document Pg 1 of 36

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TABLE OF CONTENTS

Page PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................3

Burdens and Evidence Adduced to Date in the Good Faith Actions ...........3

The Madoff Deposition ................................................................................7

1. Madoff Day 1 Deposition Order ......................................................7

2. Madoff Day 2 Deposition Order ......................................................8

3. Madoff Testimony Requiring Further Discovery ..........................10

The Current Motion ...................................................................................16

1. 92 Cases that Participated In Madoff’s Deposition .......................17

2. 55 Cases that Did Not Participate in Madoff’s Deposition............19

3. Relief Requested ............................................................................20

ARGUMENT .................................................................................................................................21

1. Limited Additional Discovery Should be Permitted Under Any Standard............21

The Madoff Deposition Orders Permit This Limited Additional Discovery to Rebut Madoff’s Testimony ..................................................21

Federal Rule of Civil Procedure 26(b)(2) ..................................................23

Federal Rule of Civil Procedure 16 ...........................................................25

2. Leave of Court Under Rule 30(a)(2) Should Be Granted To Depose the Three Incarcerated Witnesses ...........................................................................................26

3. The Trustee Will Produce Documents to the Defendants and Amend His Initial Disclosures ..................................................................................................27

4. Supplemented Expert Disclosures and Additional Experts ...................................28

CONCLUSION ..............................................................................................................................31


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TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. Collins, No. 01-Civ. 2437(PAC), 2010 WL 1141158 (S.D.N.Y. Mar. 24, 2010) ...............................6, 7

Bear, Stearns Sec. Corp. v. Gredd (In re Manhattan Inv. Fund Ltd.), 397 B.R. 1 (S.D.N.Y. 2007) ...................................................................................................3, 4

In re Bernard L. Madoff Inv. Sec., 654 F.3d 229 (2d Cir. 2011).............................................................................................4, 5, 23

Callari v. Blackman Plumbing Supply, Inc., No. CV 11-3655 (ADS) (AKT), 2016 WL 1273237 (E.D.N.Y. Mar. 31, 2016) .....................25

Christian Bros. High Sch. Endowment v. Bayou No Leverage Fund, LLC (In re Bayou Grp., LLC), 439 B.R. 284 (S.D.N.Y. 2010) ...........................................................................................3, 4, 5

Coene v. 3M Co., 303 F.R.D. 32 (W.D.N.Y. 2014) ..............................................................................................28

Donell v. Kowell, 533 F.3d 762 (9th Cir. 2008) .................................................................................................6, 7

Gray v. Town of Darien, 927 F.2d 69 (2d Cir. 1991).......................................................................................................25

Grochowski v. Phoenix Constr., 318 F.3d 80 (2d Cir. 2003).......................................................................................................25

Houghtaling v. Tirado-Montes, No. 8:03-CV-2733-T-30EAJ, 2008 WL 2385511 (M.D. Fla. June 9, 2008) ...........................26

Houlihan v. Invacare Corp., No. CV 2004-4286(NGG)(MDG), 2006 WL 1455469 (E.D.N.Y. May 24, 2006) ........................................................................................................................................29

Janvey v. Brown, 767 F.3d 430 (5th Cir. 2014) .....................................................................................................6

Jeannite v. City of N.Y. Dep’t of Bldgs., No. 09 Civ. 2464 (DAB), 2010 WL 2542050 (S.D.N.Y. June 21, 2010) ................................25

Krawec v. Kiewit Constructors Inc., No. 11-cv-0123 (LAP), 2013 WL 1104414 (S.D.N.Y. Mar. 1, 2013) .....................................25


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Lopez v. Ramos, No. 11-cv-07790 (NSR), 2013 WL 6912692 (S.D.N.Y. Dec. 30, 2013) .................................25

Miller v. Harding, No. CIV A 97-11235-WGY, 1998 WL 892702 (D. Mass. Dec. 11, 1998), aff’d, 248 F.3d 1127 (1st Cir. 2000) ..........................................................................................6

Miller v. Wulf, 84 F. Supp. 3d 1266 (D. Utah 2015), aff’d, 632 F. App’x 937 (10th Cir. 2015) .......................6

Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15 Civ. 0293 (LTS)(JCF), 2016 WL 3906712 (S.D.N.Y. July 14, 2016) .........................24

Noffsinger v. Valspar Corp., No. 09 C 916, 2012 WL 5948929 (N.D.Ill. Nov. 27, 2012) ....................................................28

OmniSource Corp. v. Heat Wave Metal Processing, Inc., 5:13–CV–772–D, 2015 WL 3452918 (E.D.N.C. May 29, 2015) ............................................28

Picard v. Greiff, 476 B.R. 715 (S.D.N.Y. 2012) ...............................................................................................4, 5

Picard v. Merkin (In re BLMIS), No. 11 MC 0012(KMW), 2011 WL 3897970 (S.D.N.Y. Aug. 31, 2011) .................................3

Picard v. Merkin (In re Madoff), 581 B.R. 370 (Bankr. S.D.N.Y. 2017) .......................................................................................5

S.E.C. v. Boock, No. 09 Civ. 8261 (DLC), 2011 WL 3792819 (S.D.N.Y. Aug. 25, 2011) ................................28

S.E.C. v. McGinnis, No. 5:14-cv-00006, 2018 WL 1633592 (D. Vt. Apr. 3, 2018) ................................................30

S.W. v. City of New York, No. CV 2009-1777 (ENV)(MDG), 2011 WL 3038776 (E.D.N.Y. July 25, 2011) ..................................................................................................................................29, 30

Scholes v. Lehman, 56 F. 3d 750 (7th Cir. 1995) ..................................................................................................6, 7

Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec. (In re BLMIS), 531 B.R. 439 (Bankr. S.D.N.Y. 2015) .......................................................................................3

Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (In re Madoff Sec.), 499 B.R. 416 (S.D.N.Y. 2013) ...........................................................................................1, 2, 5


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In re Slatkin, 525 F. 3d 805 (9th Cir. 2008) ....................................................................................................6

State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14 Civ. 9792 (WHP)(JCF), 2015 WL 7871037 (S.D.N.Y. Dec. 3, 2015), aff’d, 2016 WL 4530890 (S.D.N.Y. Mar. 24, 2016)................................................................24

Statutes

Securities Investor Protection Act, 15 U.S.C. §§ 78aaa et seq. .......................................................1

SIPA § 78fff-2(b) .............................................................................................................................7

SIPA § 78lll(4) .................................................................................................................................7

SIPA § 78lll(11) ...............................................................................................................................7

Rules

Fed. R. Civ. P. 16 .....................................................................................................................24, 25

Fed. R. Civ. P. 26 ................................................................................................................... passim

Fed. R. Civ. P. 30 ...........................................................................................................................26


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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., (“SIPA”) and the Chapter 7 estate of Bernard L.

Madoff (“Madoff”) (collectively, “Debtor”), respectfully submits this memorandum of law in

support of the Trustee’s motion for an order authorizing limited additional discovery arising out

of the Madoff deposition. The Trustee also submits the declaration of David J. Sheehan

(“Sheehan Decl.”) in support of this motion.

PRELIMINARY STATEMENT

In 2016, seven years after Madoff pleaded guilty to running the BLMIS Ponzi scheme,

and six years after being named in complaints to recover fictitious profits transferred by BLMIS,

certain defendants in good faith cases belatedly sought Madoff’s testimony regarding the extent

of his Ponzi scheme. They sought this testimony despite the fact that Madoff and twelve former

BLMIS employees either pled guilty or were convicted for their roles in the Ponzi scheme.

Although the good faith cases were in various stages of discovery, all defendants still in

discovery at the time of the request (and some whose discovery had already closed) were

permitted to participate in Madoff’s deposition. Defendants in 92 cases did so.1 The orders

authorizing Madoff’s deposition specifically contemplated potential additional discovery to

address or to rebut Madoff’s testimony.2 And, at various hearings regarding Madoff’s

1 Initially, 95 cases participated in Madoff’s deposition; 92 of those cases remain pending. 2 See Sheehan Decl. Ex. 1, Order Authorizing the Dep. of Bernard L. Madoff dated Sept. 29, 2016, Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, Adv. Pro. No. 08-01789 (SMB) (Bankr. S.D.N.Y.) ECF No. 14213 (“Madoff Day 1 Deposition Order”); Sheehan Decl. Ex. 2, Order Authorizing the Continued Dep. of Bernard L. Madoff on Day Two Topics dated Sept. 11, 2017, ECF No. 16625 (“Madoff Day 2 Deposition Order,” together with the Madoff Day 1 Deposition Order, the “Madoff Deposition Orders”). Unless otherwise noted, the ECF references contained herein refer to Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, Adv. Pro. No. 08-01789 (SMB) (Bankr. S.D.N.Y.).


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deposition, the Trustee, certain defense counsel, and the Court repeatedly addressed that a “fraud

proceeding” (encompassing additional discovery) would be established.3

Following Madoff’s deposition,4 and consistent with the parties’ expectations, the Trustee

filed a motion seeking an omnibus proceeding to address the extent and scope of Madoff’s Ponzi

scheme.5 The motion sought to consolidate all good faith cases (whether they participated in

Madoff’s deposition or not) for discovery and proceedings on this issue. On July 25, 2018, the

Court adjourned the motion indefinitely, and directed the Trustee to move on a more limited

basis for further discovery based on Madoff’s testimony.

Notwithstanding Madoff’s obvious credibility issues, by this motion, the Trustee seeks—

only in those cases that participated in Madoff’s deposition—limited additional fact discovery to

rebut certain issues raised in Madoff’s deposition. Specifically, the Trustee seeks to depose:

(1) six of the many former BLMIS employees—Annette Bongiorno, Daniel Bonventre, Enrica

Cotellessa-Pitz, Joann “Jodi” Crupi, David Kugel, and Joann Sala—likely to have knowledge on

the issues about which Madoff testified; and (2) FBI Special Agent Keith Kelly (retired) or,

alternatively, Theodore Cacioppi (the “FBI Special Agent”), with respect to the memorialization

of Madoff’s statements in the Federal Bureau of Investigation Form FD-302 dated December 18,

2008 (“302 Statement”). Three of the six former BLMIS employees referenced above are

incarcerated and, thus, only available to testify via depositions authorized by this Court.

3 See, e.g., Hr’g Tr. of May 31, 2017 at 21:1-9, 29-32, ECF No. 16192. 4 Madoff’s deposition took place over five days: December 20, 2016, April 26, 2017, April 27, 2017, November 8, 2017, and November 9, 2017. 5 See Motion and Supporting Memorandum of Law For An Order Establishing Omnibus Proceeding For The Purpose of Determining The Existence, Duration, and Scope of the Ponzi Scheme at BLMIS. ECF No. 17284.


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For those cases that participated in Madoff’s deposition where expert reports already

were served (25 of 92 cases), the Trustee intends to supplement those reports to address new

issues raised by Madoff’s deposition, and disclose two additional experts to address issues raised

by Madoff about the purported convertible arbitrage strategy and the IBM computer systems,

including the AS/400 system used by BLMIS.

Consistent with his discovery practices to date, the Trustee will add to E-Data Room 1

any additional documents considered by his experts in connection with the supplemental or new

reports, based on issues raised by Madoff, as well as other documents he may use during any

permitted fact depositions of the former BLMIS employees identified above. To streamline the

process, the Trustee will also produce these documents directly to the defendants that

participated in Madoff’s deposition.

This limited additional discovery was contemplated by the Madoff Deposition Orders, is

consistent with the Federal Rules of Civil Procedure, and will allow the parties to address issues

raised by Madoff’s deposition.

BACKGROUND

Burdens and Evidence Adduced to Date in the Good Faith Actions

As plaintiff, the Trustee has the burden of proof on his claims. Under section

548(a)(1)(A), the Trustee’s prima facie case consists of showing: (1) that BLMIS made a transfer

to a defendant with actual fraudulent intent within the two-year period; and (2) the amount that

defendant owes to the estate for that transfer. Actual fraudulent intent can be shown through

direct evidence (e.g., an allocution by the principal that he was conducting a fraudulent scheme)

or circumstantial evidence (e.g., by showing “badges of fraud”).6 A third option that overlaps

6 Bear, Stearns Sec. Corp. v. Gredd (In re Manhattan Inv. Fund Ltd.), 397 B.R. 1, 8 (S.D.N.Y. 2007); Christian Bros. High Sch. Endowment v. Bayou No Leverage Fund, LLC (In re Bayou Grp., LLC), 439


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direct and circumstantial evidence of intent is showing the debtor engaged in a Ponzi scheme.7

As for the amounts owed to the estate, because Madoff engaged in a Ponzi scheme, the Trustee

nets deposits and withdrawals to determine the amount of fictitious profits a defendant received

in the two-year period prior to BLMIS’s collapse.8

In support of his prima facie case, the Trustee typically proffers the following expert

reports:

Matthew Greenblatt of FTI Consulting, Inc. provides a global expert report dated November 15, 2012 establishing the methodology used for the “Principal Balance Calculation” (i.e., net equity) for all BLMIS accounts and a case-specific expert report applying the Principal Balance Calculation methodology to the BLMIS account(s) at issue in a particular adversary proceeding;

Lisa Collura of FTI Consulting, Inc. provides an expert report (i) reconciling the cash deposit and withdrawal transactions on Investment Advisory Business (the “IA Business”) customer statements to IA Business bank accounts for certain periods and (ii) tracing the transfers of funds to the defendant(s) in a particular case; and

Bruce Dubinsky of Duff & Phelps provides a global expert report, dated August 20, 2013, on the fraud and insolvency at BLMIS.

In further support of his prima facie case, the Trustee will proffer the plea allocutions of

Madoff, Frank DiPascali, David Kugel, Irwin Lipkin, Enrica Cotellessa-Pitz, and David

Friehling. The Trustee will also proffer testimony offered in the criminal trial of five former

BLMIS employees, styled as United States v. O’Hara, 10-CR-228 (LTS), (the “Criminal Trial”),

including that of Frank DiPascali, who is deceased, and of any other unavailable witnesses. At

B.R. 284, 307 (S.D.N.Y. 2010) (“Bayou IV”); Picard v. Merkin (In re BLMIS), No. 11 MC 0012 (KMW), 2011 WL 3897970, at *4 (S.D.N.Y. Aug. 31, 2011); Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. (In re BLMIS), 531 B.R. 439, 471 (Bankr. S.D.N.Y. 2015) (“Omnibus Good Faith Decision”). 7 Bear, Stearns Sec. Corp., 397 B.R. at 8; Bayou IV, 439 B.R. at 304–05; Omnibus Good Faith Decision, 531 B.R. at 471. 8 Picard v. Greiff, 476 B.R. 715, 729 (S.D.N.Y. 2012) (“[I]f the amount transferred to the defendant exceeds the amount invested, the Trustee may recover these net profits from that defendant to the extent that such monies were transferred to that defendant in the two years prior to Madoff Securities’ filing for bankruptcy.”); see also In re Bernard L. Madoff Inv. Sec., 654 F.3d 229, 238–39 (2d Cir. 2011).


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the Criminal Trial, for example, Mr. DiPascali testified at length about the timing, nature, and

extent of the Ponzi scheme, as well as about BLMIS’s purported purchase of Treasury bills, the

BLMIS computer systems, and various other elements of the Ponzi scheme.

The Court has recognized that the foregoing evidence meets the prima facie burden, thus

shifting the burden to the defendants to rebut the Trustee’s evidence.9

Because good faith is not an issue in these cases, under 548(a)(1)(A), defendants’

affirmative defense under section 548(c) is only for value. Numerous courts, including decisions

that operate here as law of the case, hold that a defendant does not give value for receipt of

fictitious profits.10 Thus, the only means for a given defendant to potentially reduce his or her

liability here is to attack the use of “netting” to calculate the fictitious profits owed by: (1)

rebutting the evidence that BLMIS was engaged in a Ponzi scheme, which could result in the

argument that “netting” is inappropriate; or (2) establishing that the Ponzi scheme began at a

later date, which starts the “netting” calculation at a later point in time (giving defendants a

larger “principal” balance to draw against for the subsequent withdrawals, potentially reducing

the amounts of their fictitious profits).11

9 Picard v. Goldenberg (In re Madoff), Adv. Pro. No. 10-04946 (SMB), 2018 WL 3078149, at *4 (Bankr. S.D.N.Y. June 20, 2018); see Picard v. Merkin (In re Madoff), 581 B.R. 370, 375, 385 (Bankr. S.D.N.Y. 2017); Hr’g Tr. of July 25, 2018 at 63:10–17, ECF No. 17877. 10 Greiff, 476 B.R. at 725; Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, (In re Madoff Sec.), 499 B.R. 416, 425–26 (S.D.N.Y. 2013); Omnibus Good Faith Decision, 531 B.R. at 471; Picard v. Cohen, Adv. Pro. No. 10-04311 (SMB), 2016 WL 1695296, at *5 (Bankr. S.D.N.Y. Apr. 25, 2016), adopted, No. 16 Civ. 05513 (LTS) (S.D.N.Y. Feb. 24, 2017); Bayou IV, 439 B.R. at 337 (“[V]irtually every court to address the question has held unflinchingly that to the extent that investors have received payments in excess of the amounts they have invested, those payments are voidable as fraudulent transfers.” (emphasis added) (internal quotations omitted)). Picard v. Lowrey (In re Madoff), Adv. Pro. No. 08-01789 (SMB), 2018 WL 1442312, at *5 (Bankr. S.D.N.Y. Mar. 22, 2018), as corrected (Mar. 26, 2018), appeal docketed, No. 18-05381 (S.D.N.Y. June 14, 2018). 11 In connection with Madoff’s deposition, the Trustee submitted a declaration from Matthew Greenblatt showing that the amount of fictitious profits sought by the Trustee from most defendants remained unaffected by beginning the “netting” calculation in 1992, the year Madoff stated in his allocution and deposition that the Ponzi scheme began. Decl. of Matthew B. Greenblatt at 7, Aug. 19, 2016, ECF No.


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In an attempt to controvert the admissions, plea allocutions, convictions, expert opinions,

well-developed facts, and established legal precedent that BLMIS was running a Ponzi scheme,

defendants argue that because BLMIS also had business units (a proprietary trading desk and a

market making business) that engaged in actual securities trading—a fact not in dispute—its IA

Business could not have been a Ponzi scheme. Numerous courts, however, have found that a

Ponzi schemer’s legitimate operations in no way preclude a finding that the company operated a

Ponzi scheme.12

Defendants also claim that, if Madoff engaged in any actual securities transactions for the

accounts at issue, they should receive “credit” for those transactions, thereby reducing their

liability on a transaction-by-transaction basis. A body of case law, derived from the very first

Ponzi scheme case, Brown v. Cunningham, precludes giving credit for individual transactions in

a fraudulent scheme because “equity is equality.”13 Courts have held that whether actual trades

occurred in a Ponzi scheme is immaterial, “flatly rejecting” investors’ claims regarding

legitimate trading profits.14 This is because permitting one investor to keep a profit from

“legitimate” trades in a Ponzi scheme may be fair vis-à-vis the schemer, but not fair to the other

13904. Since that time, the defendants’ challenges to the Ponzi scheme have extended beyond the issue of the 1992 start date of the scheme. 12 See, e.g. Donell v. Kowell, 533 F.3d 762, 777 (9th Cir. 2008); Miller v. Wulf, 84 F. Supp. 3d 1266, 1272–73 (D. Utah 2015), aff’d, 632 F. App’x 937 (10th Cir. 2015) (finding “Ponzi schemes sometimes use legitimate operations to attract investors, but the existence of that legitimate business does not preclude a finding that the company operated a Ponzi scheme.”); Scholes v. Lehman, 56 F. 3d 750, 752 (7th Cir. 1995); In re Slatkin, 525 F. 3d 805, 815 (9th Cir. 2008). 13 265 U.S. 1, 13 (1924). 14 Miller v. Harding, No. CIV A 97-11235-WGY, 1998 WL 892702, at *8 (D. Mass. Dec. 11, 1998), aff’d, 248 F.3d 1127 (1st Cir. 2000); Armstrong v. Collins, No. 01-Civ. 2437(PAC), 2010 WL 1141158, at *23 (S.D.N.Y. Mar. 24, 2010) (holding that legitimate trading activity did not defeat a finding of a Ponzi scheme, “even if [the debtor] made some legal trade . . . any stock transactions were merely tools and artifices used by [the debtor] in furtherance of his Ponzi scheme”); see also Janvey v. Brown, 767 F.3d 430, 440–41 (5th Cir. 2014) (rejecting investors’ claims to profits on certificates of deposit).


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investors who lost money.15 Thus, even where a company engages in some legitimate trades for

an investor’s account,16 investors must be treated equally through netting.17

From 2010 until 2016, defendants generally offered no facts or expert opinions to rebut

the Trustee’s prima facie case.

The Madoff Deposition

1. Madoff Day 1 Deposition Order

In July 2016, Helen Chaitman of Chaitman LLP sought to depose Madoff in her

remaining cases. After several other defendants joined in that request, the Court instituted a

process allowing any remaining good faith defendants whose fact discovery was still open in

their cases to participate in Madoff’s deposition. At that time, the Trustee flagged the obvious

credibility issues of Madoff’s post-plea testimony, including the possibility that he might change

15 Scholes, 56 F.3d at 757–58 (“[An investor] should not be permitted to benefit from a fraud at their expense merely because he was not himself to blame for the fraud.”); Armstrong, 2010 WL 1141158, at *23 (citing Scholes, 56 F.3d at 757). 16 In addition to arguing that BLMIS purchased securities in the form of Treasury bills for their account, defendants also argue that BLMIS purchased Treasury bills with commingled customer money as a general matter, and as such, each account is somehow entitled to the credit from the profits generated by those transactions. But under SIPA, customers are entitled to the cash or securities in the customer’s account. SIPA § 78fff-2(b); see also SIPA § 78lll(11) (defining “net equity” as the amount owed to the customer by the broker minus the amount owed to the broker by the customer). Dividends or interest earned by the broker on short-term investments as part of a cash management strategy would constitute property of the debtor, not customer property under SIPA. And where there is a shortfall of customer property due to the debtor’s theft, as there is here, that property of the debtor stolen from customer property and its proceeds are allocated to the fund of customer property for distribution to customers on net equity claims). SIPA § 78lll(4). As of the end of December 2008, the JPMorgan Chase ’703 bank account, the primary bank account for the IA Business, (the “703 Bank Account”) had a balance of approximately $229 million, including interest earned on BLMIS’s short-term investments. Those amounts were allocated to the fund of customer property and distributed to customers with allowed net equity claims. There is no basis under SIPA (or bankruptcy law) to retroactively “credit” these amounts to particular customers where those profits were not earned in those customer accounts. 17 See, e.g., Donell, 533 F.3d at 777.


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his story or contradict other former BLMIS employees regarding the timing and extent of the

BLMIS fraud.18 It was contemplated that rebuttal testimony might be necessary.19

The Madoff Day 1 Deposition Order listed the topics on which Madoff could be

questioned concerning the timing and extent of the fraud at BLMIS, and provided that the parties

had the right to move the Court for further discovery based upon Madoff’s testimony. Paragraph

L of the Madoff Day 1 Deposition Order extended fact discovery for the limited purpose of

deposing Madoff, and permitted parties to seek additional discovery based on Madoff’s

testimony independent of the individual case management orders. “Day 1” lasted three days:

December 20, 2016, April 26, 2017 and April 27, 2017.

In May 2017, Chaitman LLP proffered: (i) an expert report from William Feingold,

challenging certain conclusions on BLMIS’s convertible arbitrage strategy reached by the

Trustee’s expert, Bruce Dubinsky; and (ii) a declaration from Steven Maslow, a former Bear

Stearns employee, averring that Bear Stearns engaged in trading with BLMIS from 1985-1999.

Chaitman LLP also issued subpoenas to 27 former BLMIS traders.20 To date, no other fact or

expert witnesses have been proffered on the Ponzi issues.

2. Madoff Day 2 Deposition Order

After “Day 1” concluded, the parties agreed to the permissible “Day 2” topics after notice

and a hearing.21 Certain defendants who had not previously opted into Madoff’s deposition now

18 See Trustee’s Resp. to Defs.’ Reqs. to Depose Bernard L. Madoff at 4–5, 7, Aug. 19, 2016, ECF No. 13902. 19 See id. at 1, 7 (“no supplemental or follow-up discovery should be permitted, other than by the Trustee to address or rebut statements that Madoff may make at such deposition”); see also Hr’g Tr. of Aug. 24, 2016 Hr’g at 21:6–11, ECF No. 13967. 20 One of the subpoenaed witnesses is David Kugel, whose testimony the Trustee also seeks in this motion. 21 See Madoff Day 2 Deposition Order at 3–4.


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sought to participate, even those with closed discovery—in some instances, for up to a year—in

their cases.22 Nevertheless, the Trustee agreed to permit those parties to participate in Day 2 of

the Madoff deposition so that all cases would be on the same track.23 The Madoff Day 2

Deposition Order included language identical to Paragraph L of the Madoff Day 1 Deposition

Order, extending fact discovery for the limited purpose of deposing Madoff, and permitting

parties to seek additional discovery based on Madoff’s testimony independent of the individual

case management orders.24

While the parties were negotiating the Madoff Day 2 Deposition Order, Ms. Chaitman

was separately addressing with the Trustee her request for a uniform date to serve rebuttal expert

reports in her cases. On August 10, 2017, this Court entered an order (the “Chaitman Discovery

Order”) holding fact discovery deadlines in abeyance in certain of Chaitman LLP’s cases until

after Madoff’s deposition concluded.25 The Chaitman Discovery Order further provided that the

Court would set expert disclosure and discovery deadlines after the completion of Madoff’s

deposition.26

“Day 2” of Madoff’s deposition occurred on November 8, 2017 and November 9, 2017.

This Court confirmed at the July 25, 2018 hearing that Day 2 of Madoff’s deposition was

completed.27

22 Obj. Ltr. from Chaitman at 1, Aug. 10, 2017, ECF No. 16495. 23 See Madoff Day 2 Deposition Order at 3. 24 Id. ¶ L. 25 Sheehan Decl. Ex. 3, Stipulation and Order, Aug. 10, 2017, ECF No. 16494. 26 The Chaitman Discovery Order applies to all cases that were represented by Chaitman LLP on August 10, 2017 regardless of whether they have since obtained new counsel. For example, while Chaitman LLP withdrew as counsel on September 5, 2018 in three of the affected cases: Picard v. Leonard J. Oguss Trust (Adv. Pro. No. 10-5116), Picard v. Janet Jaffe (Adv. Pro. No. 10-4798) and Picard v. Jaffe Family Inv. P’ship (Adv. Pro. No. 10-4655), these cases are still subject to the Chaitman Discovery Order. 27 Hr’g Tr. July 25, 2018 at 17:13–14.


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3. Madoff Testimony Requiring Further Discovery

Madoff testified about six broad issues that the Trustee should be permitted to rebut

through limited fact witness depositions and additional expert disclosures: (1) the start date of the

fraud; (2) the convertible arbitrage trading strategy; (3) any actual securities and/or directed

trading in individual accounts; (4) management of customer cash at BLMIS; (5) Treasury bill

transactions; and (6) the IBM computer systems at BLMIS.

During his deposition, Madoff identified a number of former BLMIS employees with

relevant knowledge on these six topics. By this motion, the Trustee seeks to depose six long-

time employees that Madoff identified: Bongiorno, Bonventre, Cotellessa-Pitz, Crupi, Kugel,

and Sala. Briefly, these employees worked for BLMIS in the following capacities:

Annette Bongiorno: She worked at BLMIS from 1968 to December 2008 in different roles, mainly focused on the investment advisory customer accounts that did not purport to invest in the so-called split-strike conversion strategy, including inputting trading information for these customer accounts and serving as the main point of contact for many BLMIS customers.

Daniel Bonventre: He worked at BLMIS from 1968 to December 2008. He worked as the director of operations for BLMIS, with responsibilities related to financial reporting, issuing trading reports, borrowing, and cash management, including reconciling the primary bank account used to maintain investment advisory customer funds.

Enrica Cotellessa-Pitz: She worked at BLMIS from 1978 to December 2008. She started in the back office and later served as controller of BLMIS. As such, she had responsibilities related to BLMIS’s financial reporting and accounting, trading reports, BLMIS’s bank accounts, borrowing practices, and cash management.

Joann Crupi: She worked at BLMIS from 1983 until December 2008. She oversaw the activity in the investment advisory customer accounts and monitored activity in the bank accounts used to house investment advisory customer funds.

David Kugel: He worked at BLMIS from the early 1970s until December 2008. He was a trader in the firm’s market making and proprietary trading business, specializing in convertible arbitrage trading. Kugel supplied post trading information to be used in fabricating reported trades in investment advisory customer accounts.


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Joann Sala: She worked at BLMIS from August 1983 until 1998. She reported to Annette Bongiorno, and was responsible for the investment advisory customer accounts that purported to use a convertible arbitrage strategy and also regularly corresponded with investment advisory customers.

a) Fraud Start Date

Mere days after Madoff’s arrest, on December 18, 2008, the FBI memorialized Madoff’s

proffer session with the Government in the 302 Statement wherein Madoff admitted that he

“began engaging in fraud in earnest in the 1970s.” At his deposition, Madoff was confronted

with his 302 Statement, and in direct contradiction of this statement, Madoff testified that his

Ponzi scheme began in approximately 1992. But Madoff also testified that he fraudulently

issued backdated trades prior to 1992, pointing to Bongiorno as the person with knowledge of

that element of his fraud.28 The Trustee seeks to depose the six former BLMIS employees,

Bongiorno, Bonventre, Cotellessa-Pitz, Crupi, Kugel, and Sala who have knowledge regarding

BLMIS operations prior to 1992. Their testimony may rebut Madoff’s assertion that BLMIS was

not conducting a Ponzi scheme until 1992. Deposing the FBI Special Agent will undermine the

credibility of Madoff’s deposition testimony as to the scope, timing, and extent of his Ponzi

scheme by providing testimony about Madoff’s statements to the Government immediately

following his arrest.

b) Convertible Arbitrage

From at least the late 1970s through as late as 1998, BLMIS purportedly engaged in a

convertible arbitrage strategy as reflected on the IA Business customer statements.

Madoff testified in broad terms that the convertible arbitrage strategy was not part of the

Ponzi scheme, and defendants have relied on that testimony to advance the argument that the

28 Sheehan Decl. Ex. 4, Tr. of Dec. 20, 2016 Dep. of Bernard L. Madoff at 28:18–33:6 (“Dec. 20, 2016 Madoff Tr.”); Sheehan Decl. Ex. 5, Tr. of Apr. 26, 2017 Dep. of Bernard L. Madoff at 10:6–25 (“Apr. 26, 2017 Madoff Tr.”).


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convertible arbitrage transactions on their statements actually occurred. The Trustee seeks to

depose five of the six employees (Bongiorno, Bonventre, Crupi, Kugel, and Sala) on this topic.

Madoff acknowledged that Bonventre was the BLMIS employee with knowledge about internal

trading reports including those showing convertible arbitrage trades29 and certain entries related

to convertible arbitrage trading reported on IA Business customer statements.30 Madoff also

testified that Bongiorno and Crupi were involved in the process of “moving” convertible

arbitrage trades to customer accounts.31 Sala’s prior testimony in the Profit Withdrawal

proceeding, as well as Bongiorno’s and Kugel’s Criminal Trial testimony, demonstrate that

Sala’s duties at BLMIS included working on convertible arbitrage accounts. Kugel testified at

the Criminal Trial regarding his direct role in fabricating convertible arbitrage trades.32

c) Actual Securities Trading and Directed Trading

In addition to the convertible arbitrage trading, defendants claim other transactions on

their customer statements were similarly real based on Madoff’s testimony that he engaged in

what he called “directed” trading for specific defendants (namely, certain of the accounts at issue

in adversary proceedings 10-04362 and 10-04400).33 But Madoff provided contradictory

testimony, testifying that BLMIS engaged in discretionary trading for its customers and as a rule

29 Apr. 26, 2017 Madoff Tr. at 49:20–50:6; Sheehan Decl. Ex. 6, Tr. of Apr. 27, 2017 Dep. of Bernard L. Madoff at 243:6–244:18 (“Apr. 27, 2017 Madoff Tr.”); Sheehan Decl. Ex. 8, Tr. of Nov. 9, 2017 Dep. of Bernard L. Madoff at 504:12–21, 674:21–675:20 (“Nov. 9, 2017 Madoff Tr.”). 30 Apr. 27, 2017 Madoff Tr. at 242:6–244:18; see also id. at 247:9–21. 31 Apr. 26, 2017 Madoff Tr. at 84:9–17; see also Nov. 9, 2017 Madoff Tr. at 559:19–560:12. 32 Madoff attempted to discredit Kugel’s testimony that the Ponzi started during the convertible arbitrage period, claiming that Kugel would not know about whether the IA Business customer convertible arbitrage trading was legitimate. Apr. 26, 2017 Madoff Tr. at 84:9–19. 33 Sheehan Decl. Ex. 7, Tr. of Nov. 8, 2017 Dep. of Bernard L. Madoff at 400:1–401:15, 466:24–469:22 (“Nov. 8, 2017 Madoff Tr.”).


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did not carry out specific, directed transactions for individual customer accounts.34 Again,

former BLMIS employees Bongiorno, Bonventre, Cotellessa-Pitz, and Crupi would have direct

knowledge of BLMIS operations and whether BLMIS executed customer-directed trades.

d) Cash Management: Solvency, Banking Records, Financial Reporting, and Loans

During his deposition, Madoff attempted to cloud the record on whether and for what

time periods BLMIS was insolvent, an issue relevant to the Trustee’s Ponzi proof.35 At his April

2017 deposition, Madoff broadly claimed his business was solvent until 2002.36 But when

confronted with the fact that he was $64 billion short of funds for his customers (the IA Business

had less than $230 million in the 703 Bank Account in December 2008), Madoff agreed this

shortfall accumulated over time from at least the early 1990s. Madoff testified that

approximately $12 billion was paid out in 2008, and that the $64 billion shortfall accumulated

over time from 1992 through 2008.37

Former BLMIS employees Bonventre, Cotellessa-Pitz, and Crupi were primarily

responsible for the management of customer cash and handled issues related to the firm’s

solvency on a day-to-day basis, including BLMIS’s banking practices, loans, and financial

reporting. Their depositions will clarify Madoff’s broad assertions regarding BLMIS’s cash

management and solvency.

34 Apr. 26, 2017 Madoff Tr. 26:24–27:15; see also Nov. 9, 2017 Madoff Tr. at 619:15–620:10. 35 Bayou IV, 439 B.R. at 305-07 (recognizing that insolvency of a debtor is an element of a Ponzi scheme). 36 Apr. 26, 2017 Madoff Tr. at 20:8–21:4. 37 Id. at 132:17–134:4.


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e) The Role of Treasuries in the IA Business Customer Accounts

At his March 2009 plea allocution, Madoff testified he would “be out of the market

intermittently, investing client funds during these periods in United States Government-issued

securities, such as United States Treasury bills . . . In fact, I never made those investments I

promised clients, who believed they were invested with me in the split strike conversion

strategy.”38 At his December 2016 deposition, Madoff testified that he would put incoming

customer funds into Treasury bills to the extent he was not using them to pay out redemptions.39

He agreed with defense counsel’s framing that the customer money earned “whatever the

Treasury bill rate was,” but he conceded that “there [were not] enough Treasury bills to cover all

of the liabilities.”40 Madoff testified that he bought Treasury bills to protect customers, but also

testified that the purpose for putting money in Treasury bills was a cash management tool.

Defendants have used Madoff’s testimony on his purported Treasury bill purchases to

argue that BLMIS satisfied customer redemptions with profits generated by the actual purchase

of Treasury bills. Consequently, they argue, the BLMIS fraud was “far less extensive” than

previously believed and “lack[ed] a number of the significant characteristic [sic] of a Ponzi

scheme.”41 They have also argued that BLMIS purchased Treasury bills for their specific

accounts.

38 See Plea Allocution of Bernard Madoff at 26:16–18, United States v. Madoff, No. 09 Cr. 213 (DC) (S.D.N.Y. Mar. 12, 2009). 39 Dec. 20, 2016 Madoff Tr. at 162:5–24. 40 Id. at 162:10–163:2. 41 Participating Customers’ Resp. to Trustee’s Opp’n to Notice of Req. to Depose Bernard L. Madoff on Second Day Dep. Topics at 3, June 27, 2017, ECF No. 16252.


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Former BLMIS employees Bonventre, Cotellessa-Pitz, and Crupi were involved in the

day-to-day process of BLMIS cash management and should have knowledge about how Treasury

bills were used at BLMIS.

f) IBM AS/400 Computer Systems

Madoff testified that the IBM AS/400 computer system and predecessor computer

systems of the IA Business were used to backdate trades prior to 199242 and that the system

generated reports for trades that did not occur.43 He also testified that this system was not linked

to outside sources for trading, such as market tools or Bloomberg.44

In discussing specific BLMIS reports, Madoff stated that documents showing legitimate

trading activity for his proprietary and market making business units—such as trading ledgers

and stock records—would be generated daily and that they would be “run through computers.”45

For reports run for the IA Business, Madoff could not answer whether any report would show

customer convertible bond trading on a daily basis and he testified that these trades were

typically only shown on IA Business documents.46 Even though Madoff could testify to no

actual link between his market making business and IA Business computer systems or reported

trading, defendants claim that BLMIS reports generated for the IA Business show legitimate

securities trading carried out on their behalf.47 Former BLMIS employees Bongiorno,

Bonventre, Cotellessa-Pitz, Crupi, and Sala have knowledge about the BLMIS computer systems

42 Apr. 26, 2017 Madoff Tr. at 13:6–14:21. 43 Id. at 50:7–14. 44 Id. at 13:2–24, 49:20–50:6. 45 Id. at 47:13–48:22, 49:5–19; Nov. 9, 2017 Madoff Tr. at 559:4–560:12. 46 Apr. 26, 2017 Madoff Tr. at 50:7–17. 47 Defs.’ Memo. in Further Supp. of Their Req. to Depose Bernard L. Madoff on Day Two Dep. Topics at 17–18, June 26, 2017, ECF No. 16236.


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and reports generated. The Trustee will also identify a computer expert to testify about how

IBM AS/400 machines were used by BLMIS and whether they were capable of generating

trading activity for the IA Business.

The Current Motion

The Trustee filed over one thousand good faith cases, and of those, 147 remain.48 Of the

remaining cases, 92 participated in Madoff’s deposition (the “Madoff Deposition Cases”),49 and

those 92 cases are the subject of this motion. For those cases, the Trustee seeks to: (i) conduct

limited additional fact discovery to the extent fact discovery is closed pursuant to the case

management order deadlines; and (ii) supplement the Trustee’s expert reports, and disclose two

additional experts, where expert reports have already been served.

The remaining 55 cases did not participate in Madoff’s deposition.50 Thus, the Trustee is

not seeking any further fact discovery in those cases in this motion, and the deadlines in each

individual case management order determine whether further fact discovery is permitted.

Total Number of Cases 147

Participated in Madoff’s Deposition 92

Did Not Participate in Madoff’s Deposition 55

48 These cases are listed on Exhibit A. 49 These cases are listed on Exhibit B. 50 These cases are listed on Exhibit C.


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1. 92 Cases that Participated In Madoff’s Deposition

The 92 Madoff Deposition Cases fall into three categories: (i) 33 cases where fact

discovery is still open; (ii) 59 cases where fact discovery had closed under operative case

management orders; and (iii) of the 59 cases, 25 cases in which expert reports have been served.

(i) 33 Cases with Open Fact Discovery51

In the 33 cases where fact discovery is open, one is open by virtue of its case

management order,52 and 32 have open fact discovery based on the Chaitman Discovery Order.

As discussed in Section B.2, supra, the Chaitman Discovery Order stayed all discovery

deadlines—including fact discovery deadlines— as of its entry on August 10, 2017.53 In 32

cases represented by Chaitman LLP, fact discovery was still open as of August 10, 2017, and

those fact discovery deadlines were therefore “held in abeyance” until new deadlines could be

determined by this Court following Madoff’s deposition.54

For each of these cases, the Trustee intends to engage in fact discovery to rebut or clarify

issues raised by Madoff’s testimony, as described below, without further leave of court. By way

of this motion, the Trustee seeks to set a uniform fact discovery schedule to engage in such

discovery for each of these 33 cases.

51 These cases are listed on Exhibit D. 52 Picard v. Neil Reger Profit Sharing Keogh, et al., Adv. Pro. No. 10-05384 (Bankr. S.D.N.Y. July 17, 2018), ECF No. 71. The current fact discovery deadline in this case is October 26, 2018. See id. ¶ 2. 53 Chaitman Discovery Order ¶ 2 (“Until further addressed by the Court, all other deadlines in the operative case management notices for the Applicable Chaitman Cases are hereby held in abeyance.”). 54 Indeed, the parties have been operating in accordance with the Chaitman Discovery Order, issuing and responding to discovery requests long after the case management order deadlines for fact discovery had passed. See, e.g., Picard v. DiFazio, Adv. Pro. No. 10-04823.


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(ii) 59 Cases Where Fact Discovery Had Closed Under Operative Case Management Orders55

Under the operative case management orders and the Chaitman Discovery Order, fact

discovery deadlines have passed in 59 cases that participated in Madoff’s deposition. These

cases are nonetheless entitled to additional fact discovery because of the Madoff Deposition

Orders. See Section 1.A, infra. Pursuant to this motion, the Trustee seeks to engage in limited

additional fact discovery, and to set the same fact discovery schedule as the Madoff Deposition

Cases with open fact discovery.

For all the Madoff Deposition Cases, the Trustee seeks testimony from six former

BLMIS employees—Bongiorno, Bonventre, Cotellessa-Pitz, Crupi, Kugel, and Sala—and the

FBI Special Agent. Should the Court permit these depositions to go forward, the Trustee will

also place into E-Data Room 1 and produce to defendants the documents he may show these

witnesses, to the extent they are not already in E-Data Room 1. In addition to the six former

employees to be deposed, the Trustee will also amend his initial disclosures under Rule

26(a)(1)(A)(i) and (ii) to include any other former BLMIS employee witnesses with relevant

knowledge of the issues raised by Madoff and provide certain indices detailing the documents

and information in the Trustee’s possession.

(iii) 25 Cases with Served Expert Reports56

The Trustee has served expert reports in 25 of the Madoff Deposition Cases;57 expert

reports have not yet been served in the remaining 67 Madoff Deposition Cases. Of the 25 cases,

11 cases are governed by the Chaitman Discovery Order which provides that, with respect to

55 These cases are listed on Exhibit E. 56 These cases are listed on Exhibit F. 57 These cases are part of the 59 Madoff Deposition Cases with closed fact discovery.


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certain cases where defendants are represented by Chaitman LLP, the Court will set expert

deadlines for “any party” following the completion of Madoff’s deposition.58 Since the expert

disclosure dates remain open under the Chaitman Discovery Order, the Trustee does not need

further leave of Court to serve supplemental expert reports and the additional expert reports in

those cases.

In the remaining 14 of the 25 cases, the Trustee will also supplement the previously

served expert reports of Bruce Dubinsky and Lisa Collura, as required by Rule 26. By way of

this motion, the Trustee seeks permission to serve two additional expert reports in those 14 cases

to address issues arising out of Madoff’s deposition. The Trustee also seeks to set a uniform date

for expert disclosures in all 25 cases where expert reports have already been served.

For the remaining 67 of the Madoff Deposition Cases in which expert reports have not

been served (pursuant to case management orders or the Chaitman Discovery Order),59 the

Trustee intends to serve the same expert reports and may do so without leave of Court.60

2. 55 Cases that Did Not Participate in Madoff’s Deposition

The 55 cases that did not participate in Madoff’s deposition cannot offer or rely on his

testimony to support their defenses. Thus, these 55 cases are not the subject of this motion, and

therefore are not impacted by the relief sought herein. For the subset of these cases where fact

and expert disclosure dates have already passed, these defendants proffered no fact or expert

58 See Exhibit F. 59 Sixty-four of these cases involved defendants represented by Chaitman LLP wherein the exchange of expert reports was suspended based on the Chaitman Discovery Order. 60 As noted earlier, of the 147 remaining good faith actions, 55 cases did not participate in Madoff’s deposition. Fact discovery is still open in 16 of these cases, and, expert reports have not yet been served in 33. The Trustee will conduct fact discovery consistent with the applicable case management order deadlines, and also intends to serve the same expert reports (as set forth above) in these cases and may do so without leave of Court.


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witnesses during their disclosure periods. As such, the record in those cases is closed and they

are trial ready, subject to pre-trial conferences and applicable orders of this court.

3. Relief Requested

Based on the foregoing, the Trustee requests the following relief for fact discovery in the

Madoff Deposition Cases:

Case Categories Relief Requested

33 Cases with Open Fact Discovery

Uniform Discovery Schedule

59 Cases Where Fact Discovery Had Closed under CMOs

Leave to Conduct Limited Fact Discovery

Uniform Discovery Schedule

The Trustee requests the following relief in connection with expert disclosures in the

Madoff Deposition Cases:

Case Categories Relief Requested

11 Chaitman Cases with Served Expert Reports

Uniform Discovery Schedule for Service of Supplemental and Additional Reports

14 Non-Chaitman Cases with

Served Expert Reports

Leave to Serve Additional Reports

Uniform Discovery Schedule for Service of Supplemental and Additional Reports

67 Cases Without Served Expert Reports

Uniform Discovery Schedule for Expert Disclosures

The Trustee requests that the Court grant ninety days for the Trustee to depose the six

BLMIS witnesses and the FBI Special Agent. The Trustee requests ninety days because three of

the six witnesses are incarcerated, and their depositions require extensive coordination with the


21

Bureau of Prisons. Subpoenaing an FBI agent also takes longer than subpoenaing a more

traditional fact witness.61

Following the ninety day period for the limited additional fact discovery sought herein,

the Trustee requests that the Court provide the parties ninety days to disclose new experts

(including experts on convertible arbitrage and IBM computer systems), to supplement prior

expert disclosures in the 25 Madoff Deposition Cases in which expert reports have been served,

and to serve expert reports in cases in which reports have not yet been served. Thus, within one-

hundred and eighty days of the Court granting the relief requested herein, the remainder of the

Trustee’s good faith cases will be ripe for summary disposition or trial.

ARGUMENT

1. Limited Additional Discovery Should be Permitted Under Any Standard

The Madoff Deposition Orders Permit This Limited Additional Discovery to Rebut Madoff’s Testimony

This motion seeks limited depositions based on Madoff’s testimony where his testimony

is not credible, incomplete, unresolved, or inconsistent and other fact witnesses are well-

positioned to testify. Each category of limited testimony outlined above relates to the scope and

extent of the Ponzi scheme at BLMIS. The Trustee has carefully chosen this limited group of

witnesses to avoid duplicative testimony and streamline the remaining fact discovery in these

cases. Each of the witnesses from whom testimony is sought has information directly bearing on

these limited areas.

61 The Trustee has issued a Touhy request for testimony and documents from the FBI in the 17 good faith cases where discovery remains open, per those cases’ individual case management orders. Should this Court grant the relief sought herein, the Trustee will further serve the subpoena to include additional cases.


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The plain language of the Madoff Deposition Orders anticipates that limited discovery

may be required—by any party—to address issues raised by Madoff. The right to seek this

request is categorical and unqualified, and exists regardless of the discovery deadlines in each

adversary proceeding: “Notwithstanding the dates set forth in the case management orders,

counsel for the Trustee . . . ha[s] the right to move the Court for further discovery based upon

Madoff’s testimony.”62

That the Trustee anticipated moving for further testimony once the deposition was over

was well-established. Before the Madoff deposition took place, the Trustee raised the issue that

some discovery would likely be necessary to rebut Madoff’s testimony.63 Between Day 1 and

Day 2 of the Madoff deposition, the Trustee’s counsel reiterated that limited discovery may be

needed following Madoff’s deposition, and even pointed to specific former BLMIS employees

from whom the Trustee planned to seek testimony.64

Permitting this limited discovery in those cases that participated in Madoff’s

deposition—regardless of whether fact discovery was closed—is also consistent with how the

Madoff Deposition Orders have functioned in these cases thus far. In cases where fact discovery

had closed, and defendants failed to opt in to Madoff’s Day 1 deposition but were permitted to

participate in Madoff’s Day 2 deposition, fact discovery was reopened for that purpose.65

62 Madoff Day 1 Deposition Order ¶ L; Madoff Day 2 Deposition Order ¶ L. 63 Hr’g Tr. of Aug. 24, 2016 at 21:6–11. 64 See Hr’g Tr. of May 31, 2017 at 29:6–30:12, ECF No. 16192; Hr’g Tr. of June 29, 2017 at 24:6–15, ECF No. 16332; Mem. of Law in Opp’n to Notices to Depose Bernard L. Madoff on Day 2 Dep. Topics, June 6, 2017, ECF No. 16135; see also Trustee’s Resp. to Defs.’ Reqs. to Depose Bernard L. Madoff, Aug. 19, 2016, ECF No. 13902. 65 See Madoff Day 2 Deposition Order; Obj. Ltr. from Chaitman, Aug. 10, 2017, ECF No. 16495.


23

The Trustee’s request for limited discovery should be evaluated in light of what all

parties anticipated and agreed to in the Madoff Deposition Orders. The parties agreed to extend

fact discovery to depose Madoff and, with consideration by the Court, for certain follow up

discovery into issues that arose as a result of Madoff’s deposition. “A district court has wide

latitude to determine the scope of discovery.” Fireman’s Fund Ins. Co. v. Great American Ins.

Co. of New York, 284 F.R.D. 132, 135 (S.D.N.Y. 2012). Here, defendants seek to rely on

Madoff’s testimony because he has made statements that contradict or call into question the

otherwise clear and consistent factual record. The Trustee’s request for additional discovery is

precisely what was anticipated when Paragraph L was included in the Madoff Deposition Orders.

The Madoff Deposition Orders contemplated the limited discovery requested herein.

Federal Rule of Civil Procedure 26(b)(2)

Notwithstanding the Madoff Deposition Orders, the request also meets the standards of

Federal Rule of Civil Procedure 26(b)(2). Under Rule 26(b)(2), the Court must consider

relevance and the appropriate balance of burden versus the benefit of the additional discovery

sought. The testimony sought is not unreasonable or duplicative, and the benefit of this limited

discovery far outweighs its burden.

Of the many former BLMIS employees likely to have relevant knowledge, the Trustee

seeks to depose only six. By so limiting the request, the Trustee is endeavoring to avoid

duplicative and cumulative testimony. The six employees were at BLMIS for years and have

significant insight into BLMIS’s operations. Madoff himself testified that these individuals are

the appropriate witnesses to provide testimony on issues raised in his deposition. The Trustee

also previously deposed Bongiorno and Sala in the profit withdrawal proceeding and they were


24

knowledgeable witnesses about BLMIS operations and processes.66 The information the Trustee

seeks from these witnesses will be limited and directly relevant. Similarly, the testimony sought

from the FBI Special Agent will be limited to the 302 Statement, which only became available to

the Trustee between Days 1 and 2 of Madoff deposition.

Once the party seeking discovery has demonstrated relevance, “the party resisting

discovery has the burden of showing undue burden or expense.” State Farm Mut. Auto. Ins. Co.

v. Fayda, No. 14 Civ. 9792 (WHP)(JCF), 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015),

aff’d, 2016 WL 4530890 (S.D.N.Y. Mar. 24, 2016).

Defendants cannot complain that they will face undue burden or expense from this

limited additional discovery. Several defendants have sought additional discovery even after

their discovery deadlines had passed, including issuing 27 subpoenas for witness testimony in

late 2017.67 Defendants entered into a stipulation with the Trustee to stay certain discovery

deadlines until Madoff’s deposition was complete.68 Just this past month, certain defendants

requested an additional ten months to review documents.69 There is no prejudice to any party if

the Trustee is allowed to conduct the limited additional discovery bearing on key open issues.

The limited additional testimony sought simply cannot rise to the level of undue burden or

expense. See id.; see also Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No.

15 Civ. 0293 (LTS)(JCF), 2016 WL 3906712, at *3 (S.D.N.Y. July 14, 2016).

66 See Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (In re Madoff), Adv. Pro. No. 09-11893, 2018 WL 3617813, at *5 (Bankr. S.D.N.Y. July 27, 2018). 67 The Trustee has no objection to these depositions going forward in cases that participated in Madoff’s deposition. 68 See Chaitman Discovery Order. 69 See Ltr. Sur-Reply to Trustee’s Mot. from Chaitman, June 23, 2018, ECF No. 17814 (concerning defendants’ request to serve a sur-reply seeking ten months to review additional documents).


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Federal Rule of Civil Procedure 16

As with Rule 26, the Court need not evaluate the Trustee’s request for limited additional

discovery under Rule 16 in light of the governing Madoff Deposition Orders. Nevertheless, even

if the Madoff Deposition Orders did not govern here, the Trustee’s request should be granted

under Rule 16. Courts permit reopening discovery under Rule 16 where the discovery sought is

of a limited, tailored nature. See Krawec v. Kiewit Constructors Inc., No. 11-cv-0123 (LAP),

2013 WL 1104414, at *8 (S.D.N.Y. Mar. 1, 2013) (re-opening discovery despite pending

summary judgment motion, to permit a deposition because limited prejudice and no trial date

set); Callari v. Blackman Plumbing Supply, Inc., No. CV 11-3655 (ADS) (AKT), 2016 WL

1273237 (E.D.N.Y. Mar. 31, 2016) (reopening discovery to allow fact discovery of each opt-in

plaintiff following class action certification).

Rule 16 permits modifying an existing scheduling order based on a showing of good

cause and the diligence of the moving party. Grochowski v. Phoenix Constr., 318 F.3d 80, 86

(2d Cir. 2003); see Gucci Am., Inc. v. Guess?, Inc., 790 F. Supp. 2d 136 (S.D.N.Y. 2011)

(“Reopening discovery after the discovery period has closed requires a showing of good cause.”

(citing Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir. 1991))). Five factors to be considered

to determine whether good cause exists under Rule 16 are: “(1) the imminence of trial; (2)

whether the request is opposed; (3) prejudice to the non-moving party; (4) whether the moving

party foresaw the need for additional discovery, in light of the discovery deadline set by the

court; and (5) whether further discovery is likely to lead to relevant evidence.” Lopez v. Ramos,

No. 11-cv-07790 (NSR), 2013 WL 6912692, at *3 (S.D.N.Y. Dec. 30, 2013) (quoting Jeannite v.

City of N.Y. Dep’t of Bldgs., No. 09 Civ. 2464 (DAB), 2010 WL 2542050, at *2 (S.D.N.Y. June

21, 2010)).


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No trial date has been set in any of the Madoff Deposition Cases. As set forth above, any

possible prejudice to the defendants must be balanced against their desire to use—after the close

of discovery in some cases—Madoff’s testimony to support their defenses. The Trustee did not

know whether additional discovery would be necessary until Madoff was fully deposed. Thus,

this request only became ripe upon the conclusion of Madoff’s deposition, as anticipated by the

Madoff Deposition Orders. The limited discovery sought herein surely will lead to relevant

evidence because even Madoff admits that the former BLMIS employees are likely to have

greater knowledge about the operations of BLMIS than Madoff himself. Thus, under any

standard, the limited discovery should be granted.

2. Leave of Court Under Rule 30(a)(2) Should Be Granted To Depose the Three Incarcerated Witnesses

Just like Madoff himself, three of the former BLMIS employees, Bongiorno, Bonventre,

and Crupi are also incarcerated. A person confined in prison may only be deposed with leave of

the court. Fed. R. Civ. P. 30(a)(2). The Trustee seeks such leave.

In considering whether to grant such leave, the court considers the limitations generally

placed on discovery as set forth in Rule 26(b)(2)(B), which limits discovery in three narrow

circumstances: (1) the deposition requested is unreasonably cumulative or duplicative, or if the

information sought is obtainable from some other more convenient source; (2) the party seeking

the deposition has had ample opportunity to obtain the information sought; or (3) the burden or

expense of the deposition outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2) & 30(a)(2).

Unless a party objecting to a requested deposition can show that the deposition falls into one of

the three circumstances outlined in Rule 26(b)(2), the court should grant leave to depose the

incarcerated witness. See Houghtaling v. Tirado-Montes, No. 8:03-CV-2733-T-30EAJ, 2008


27

WL 2385511, at *1 (M.D. Fla. June 9, 2008); Williams v. Greenlee, 201 F.R.D. 577, 578 (N.D.

Texas 2002). None of the limitations provided in Rule 26(b)(2) apply here.

As set forth above, the depositions of the incarcerated witnesses are not duplicative or

cumulative, and their benefit far outweighs their likely costs. The Trustee therefore requests the

Court issue orders substantially in the form annexed hereto as Exhibits G, H and I.

3. The Trustee Will Produce Documents to the Defendants and Amend His Initial Disclosures

The Trustee will produce to defendants documents considered by the Trustee’s experts in

rendering their supplemental reports and new reports based on Madoff’s testimony, as well as

documents that may be used at the fact depositions of the former BLMIS employees identified

above, to the extent those documents are not already in E-Data Room 1. After the redaction of

personally identifiable information, the Trustee will also add these documents to E-Data Room 1

on a rolling basis.

Although the Trustee does not seek to depose all former BLMIS employees who may

have relevant knowledge, the Trustee will serve amended initial disclosures in all of the Madoff

Deposition Cases to include the six former BLMIS employees that the Trustee seeks to depose

along with the following: Semone Anderson, Angela Celentano, Kevin Fong, Margaret Gavlik,

Haresh Hemrajani, Winifer Jackson, Betty Mazzone, Jerry O’Hara, and George Perez. The

Trustee’s amended initial disclosures under Rule 26(a)(1)(A)(ii) will also attach indices detailing

documents and information in the Trustee’s possession.70

70 These indices have already been provided to defendants represented by Chaitman LLP and McDermott, Will & Emery.


28

4. Supplemented Expert Disclosures and Additional Experts

Because the Trustee served expert reports in some of his cases before Madoff’s

deposition was completed, certain reports—specifically those of Bruce Dubinsky and Lisa

Collura—do not fully address new issues raised by Madoff’s testimony. The Trustee intends to

supplement prior expert reports, and serve expert reports in cases in which expert reports have

not been served. The Trustee also intends to disclose two additional experts respectively on

convertible arbitrage trading practices and the IBM AS/400 computer system.

Federal Rule of Civil Procedure 26(e)(1) requires that expert reports be supplemented “if

the party learns that in some material respect the disclosure or response is incomplete . . . , and if

the additional . . . information has not otherwise been made known to the other parties during the

discovery process or in writing.” Stated alternatively, “[t]he duty to supplement arises when the

expert subsequently learns of information that was previously unknown or unavailable, and the

new information renders the earlier report incomplete or inaccurate.” Coene v. 3M Co., 303

F.R.D. 32, 42 (W.D.N.Y. 2014) (citations omitted). The time for supplementing expert reports is

not limited to the expert discovery period, and it is required virtually any time new information

becomes available after the initial report has been issued. Fed. R. Civ. P. 26(a)(2)(D).

A supplemental report is unquestionably proper under Rule 26 when it is produced in

response to fact discovery that occurs after the issuance of expert reports. See S.E.C. v. Boock,

No. 09 Civ. 8261 (DLC), 2011 WL 3792819, at *11 (S.D.N.Y. Aug. 25, 2011) (supplemental

report issued after close of discovery was proper where additional, court-approved discovery had

taken place, and the supplemental report addressed that additional discovery); Noffsinger v.

Valspar Corp., No. 09 C 916, 2012 WL 5948929, at *4 (N.D. Ill. Nov. 27, 2012) (supplemental

report proper where discovery had been reopened to allow for a second deposition of plaintiff,

and plaintiff changed his original testimony); OmniSource Corp. v. Heat Wave Metal


29

Processing, Inc., 5:13–CV–772–D, 2015 WL 3452918, at *10 (E.D.N.C. May 29, 2015) (“In

light of the substantial amount of new information that [the expert] received after his initial

report and because [expert] relied on some of this new information when formulating his

supplemental opinions, the supplemental report . . . is a true supplement.”) (citations omitted)).

Mr. Dubinsky’s report was issued in 2013. Similarly, Ms. Collura’s report has remained

consistent in its reconciliation of cash transactions and tracing of customer funds from the 703

Bank Account since 2012. The Madoff deposition was first requested in the summer of 2016

and was taken over five days in 2016 and 2017. Defendants participating in Madoff’s deposition

continued—and still continue—to seek additional fact discovery from the Trustee related to the

proof of the Ponzi scheme. The unusual circumstance presented here—where fact discovery

continues during and even beyond the expert disclosure period—militates strongly in favor of

supplementation.

In various meet and confers, defendants have objected to the Trustee supplementing his

expert reports because they say discovery is closed and additional discovery is not permitted.

This position is specious, as defendants clearly seek to use Madoff’s deposition testimony. It

would be inequitable to limit the Trustee to his experts’ historical expert reports but allow

defendants to use Madoff’s testimony in an attempt to contradict these expert reports, or raise

additional issues the experts could not have addressed. And courts generally are loathe to

preclude experts from issuing supplemental reports. See, e.g., Houlihan v. Invacare Corp., No.

CV 2004-4286(NGG)(MDG), 2006 WL 1455469, at *1 (E.D.N.Y. May 24, 2006) (“[C]ourts in

the Second Circuit . . . have generally not ordered preclusion” of supplemental reports); S.W. v.

City of New York, No. CV 2009-1777 (ENV)(MDG), 2011 WL 3038776, at *4 (E.D.N.Y. July

25, 2011) (“exclusion of expert testimony is a drastic remedy” (quotation and citations omitted)).


30

Moreover, supplementation is required to the extent that documents and information not

previously available to the experts at the time their reports were issued later becomes available.

Certain reels of microfilm were recently restored and provided to certain defendants. In addition,

the convictions of five former BLMIS employees became final on January 11, 2017, and the FBI

recently returned over 200 boxes of documents to the Trustee following the close of the Criminal

Trial. And finally, Madoff’s 302 Statement, which was used at Day 2 of his deposition to

confront him with his immediate post-fraud statements as to the Ponzi scheme’s start date, was

obtained from the government on May 17, 2017. Such documents should be analyzed by the

experts as part of the supplementation of their reports. See, e.g., S.W., 2011 WL 3038776, at *4

(where experts’ supplemental reports relied on certain governmental agency documents not

previously produced and were thus “previously unknown or unavailable,” reports were

appropriately issued under 26(e)); S.E.C. v. McGinnis, No. 5:14-cv-00006, 2018 WL 1633592, at

*4 (D. Vt. Apr. 3, 2018) (expert did not know of additional evidence at time of creating original

report and thus documents were “unavailable”).

In addition to supplementing the reports of Mr. Dubinsky and Ms. Collura, the Trustee

also intends to disclose an expert on convertible arbitrage trading practices and an expert on the

IBM computer systems used at BLMIS. As addressed in Section B.3 above, Madoff testified in

his deposition that the convertible arbitrage trades appearing on IA Business customer statements

were not a part of the Ponzi scheme at BLMIS and instead, the product of legitimate trading.71

The Trustee intends to use the testimony of a convertible arbitrage expert to explain two things:

(1) how legitimate convertible arbitrage trading was conducted in the 1980s and (2) how the

books and records of BLMIS illustrate that genuine convertible arbitrage trading was not taking

71 Apr. 26, 2017 Madoff Tr. at 12.


31

place. Similarly, Madoff testified that the IA Business used IBM computer systems in the 1980s

and 1990s when Madoff claimed he engaged in legitimate trading on behalf of his IA Business

customers.72 The Trustee intends to use the testimony of this expert to demonstrate that BLMIS

did not have the capability to conduct trading on behalf of its IA Business customers using this

computer system. Such disclosures would be made within the ninety-day period immediately

following the conclusion of the limited document disclosure and deposition testimony sought

herein.

CONCLUSION

The Trustee respectfully requests that the Court grant the limited discovery and enter the

orders attached to this Motion as Exhibits G-J.

Dated: September 21, 2018 New York, New York

Respectfully submitted, /s/ Stacey A. Bell Baker & Hostetler LLP 45 Rockefeller Plaza New York, New York 10111 Tel: (212) 589–4200 Fax: (212) 589-4201 David J. Sheehan Email: [email protected] Stacey A. Bell Email: [email protected] Nicholas J. Cremona Email: [email protected] Attorneys for Irving H. Picard, Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the Estate of Bernard L. Madoff

72 Apr. 26, 2017 Madoff Tr. at 13:6–14:21.


EXHIBIT A

08-01789-smb Doc 18015-1 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit A - Remaining Good Faith Cases Pg 1 of 4

Exhibit ARemaining Good Faith Actions

APN Case Name Counsel1 10-04289 John Fujiwara, et al. Lax & Neville, LLP2 10-04292 Robert Roman Chaitman LLP3 10-04296 Jeffrey Shankman Pro Se4 10-04302 Joan Roman Chaitman LLP5 10-04305 David Shapiro, et al. Klestadt Winters Jureller Southard & Stevens, LLP6 10-04314 David Shapiro Nominee #3 Klestadt Winters Jureller Southard & Stevens, LLP7 10-04321 Herbert Barbanel, et al. Chaitman LLP8 10-04325 David Shapiro Nominee #2 Klestadt Winters Jureller Southard & Stevens, LLP9 10-04327 Gertrude E. Alpern Revocable Trust, et al. Chaitman LLP

10 10-04328 David Shapiro Nominee Klestadt Winters Jureller Southard & Stevens, LLP11 10-04332 Barry Weisfeld Dentons US LLP12 10-04341 Marden, et al. Pryor Cashman LLP13 10-04343 Patrice Auld, et al. Pryor Cashman LLP14 10-04348 Marden Family Limited Partnership, et al. Pryor Cashman LLP15 10-04352 RAR Entrepreneurial Fund LTD, et al. Chaitman LLPPro Se16 10-04357 James Greiff Dentons US LLP17 10-04361 Harvey L. Werner Revocable Trust, et al. Bernfeld, DeMatteo & Bernfeld, LLP18 10-04362 Sage Associates, et al. McDermott Will & Emery LLP19 10-04367 Benjamin T. Heller Chaitman LLP20 10-04377 Carol Nelson, individually and as joint tenant, et al. Chaitman LLP21 10-04378 DOS BFS Family Partnership II, L.P., et al. Westerman Ball Ederer Miller & Sharfstein LLP22 10-04384 Lanx BM Investments, LLC, et al. Baker & McKenzie LLPFisherBroyles23 10-04390 Michael Mann, et al. Dentons US LLP24 10-04394 Frederic Z. Konigsberg, et al. Bernfeld, DeMatteo & Bernfeld, LLPJohn E. Lawlor25 10-04396 Edith A. Schur Bernfeld, DeMatteo & Bernfeld, LLP26 10-04397 Fern C. Palmer Revocable Trust Dtd 12/31/9, et al. Chaitman LLP27 10-04400 Sage Realty, et al. McDermott Will & Emery LLP28 10-04401 Rose Gindel Trust, et al. Dentons US LLP29 10-04415 The Estate of Barbara Berdon, et al. Dentons US LLP30 10-04417 The Lustig Family 1990 Trust, et al. Binder & Schwartz LLP31 10-04419 Katz Group Limited Partnership, a Wyoming limited partnership, et al. Becker LLC32 10-04428 Estate of Allen Meisels, et al. Chaitman LLP33 10-04429 Gary J. Korn, et al. Golenbock Eiseman Assor Bell & Peskoe, LLP34 10-04438 Estate of Seymour Epstein, et al. Chaitman LLP35 10-04446 Trust Dated 12/6/99 Walter and Eugenie Kissinger, et al. Chaitman LLP36 10-04463 Triangle Diversified Investments, et al. Pro Se37 10-04468 Ken-Wen Family Limited Partnership, et al. Bernfeld, DeMatteo & Bernfeld, LLP38 10-04469 Carol L. Kamenstein, individually and in her capacity as joint tenant Chaitman LLP39 10-04486 The Norma Shapiro Revocable Declaration of Trust Under Agreement Date Dentons US LLP40 10-04487 Robert Weintraub, et al. Chaitman LLP41 10-04489 Marlene Krauss Chaitman LLP42 10-04491 Elaine Dine Living Trust dated 5/12/06, et al. Chaitman LLP43 10-04492 Stuart Leventhal 2001 Irrevocable Trust, et al. Gabor & Marotta LLC44 10-04503 Judd Robbins Chaitman LLP45 10-04517 Radcliff Investments Limited, et al. Clifford Chance U.S. LLP46 10-04525 Susan Schemen Fradin Revocable Agreement of Trust, et al. Willkie Farr & Gallagher LLP47 10-04538 James B. Pinto Revocable Trust U/A dtd 12/1/03, et al. Frejka PLLC48 10-04539 The Gerald and Barbara Keller Family Trust, et al. Chaitman LLP49 10-04541 Kenneth W Perlman, et al. Blank Rome LLPChaitman LLP50 10-04545 Jerome Goodman, et al. Chaitman LLP51 10-04554 David Ivan Lustig Binder & Schwartz LLP52 10-04561 Jeffrey R. Werner 11/1/98 Trust, et al. Bernfeld, DeMatteo & Bernfeld, LLP53 10-04562 Robert F. Ferber Chaitman LLP54 10-04570 Jacob M. Dick Rev Living Trust DTD 4/6/01, et al. Chaitman LLPPro Se55 10-04573 Bruce Leventhal 2001 Irrevocable Trust, et al. Lax & Neville, LLP56 10-04592 Anthony E. Stefanelli DelBello Donnellan Weingarten Wise & Wiederkehr LLP57 10-04610 The Whitman Partnership, et al. Chaitman LLP58 10-04614 Robert S. Whitman Chaitman LLP59 10-04621 Donald A. Benjamin Chaitman LLP60 10-04631 151797 Canada Inc., Judith Pencer, Samuel Pencer, et al. Eiseman, Levine, Lehrhaupt & Kakoyiannis, P.C. 61 10-04644 Russell L. Dusek Chaitman LLP62 10-04648 Peter D. Kamenstein Chaitman LLP63 10-04655 Jaffe Family Investment Partnership, et al. Chaitman LLP



APN Case Name Counsel

64 10-04658 Carol Nelson Chaitman LLP65 10-04667 David Gross, et al. Pro Se66 10-04669 Zieses Investment Partnership, et al. Chaitman LLP67 10-04672 Sidney Cole Dentons US LLP68 10-04702 S&L Partnership, a New York partnership, et al. Dentons US LLP69 10-04709 Andrew M. Goodman Chaitman LLP70 10-04718 The Jordan H. Kart Revocable Trust, et al. Chaitman LLP71 10-04728 Estate of Bruno L. Di Giulian, et al. Chaitman LLP72 10-04740 Robert Hirsch, as an individual, and as joint tenant, et al. Chaitman LLP73 10-04748 Mark Horowitz Chaitman LLP74 10-04749 Philip F. Palmedo Chaitman LLP75 10-04750 Samdia Family L.P., a Delaware Limited Partnership, et al. Lax & Neville, LLP76 10-04752 Kuntzman Family LLC, et al. Chaitman LLP77 10-04753 Carla Ginsburg Chaitman LLP78 10-04762 James M. Goodman Chaitman LLP79 10-04768 Placon2, William R. Cohen, et al. Chaitman LLP80 10-04798 Janet Jaffe, et al. Chaitman LLP81 10-04806 Kenneth M. Kohl, as an individual and as a joint tenant, et al. Chaitman LLP82 10-04809 Edyne Gordon NTC Chaitman LLP83 10-04818 Toby Harwood Chaitman LLP84 10-04823 Frank DiFazio, et al. Chaitman LLP85 10-04826 Boyer Palmer Chaitman LLP86 10-04837 Leslie Ehrlich f/k/a Leslie Harwood , et al. Chaitman LLP87 10-04861 Harold J. Hein Dentons US LLP88 10-04867 Estate of Steven I. Harnick, et al. Chaitman LLP89 10-04878 Lisa Beth Nissenbaum Trust, et al. Chaitman LLP90 10-04882 Laura E. Guggenheimer Cole Dentons US LLP91 10-04885 Trust Fund B U/W Edward F. Seligman F/B/O Nancy Atlas, et al. Winston & Strawn LLP92 10-04889 Estate of Robert Shervyn Savin, et al. Chaitman LLP93 10-04898 Helene Saren-Lawrence Chaitman LLP94 10-04905 Train Klan, a Partnership, et al. Chaitman LLP95 10-04912 Harry Smith Revocable Living Trust, et al. Chaitman LLP96 10-04914 Edyne Gordon Chaitman LLP97 10-04920 Glenhaven Limited, et al. Chaitman LLP98 10-04921 Stanley T. Miller Dentons US LLP99 10-04925 Alvin Gindel Revocable Trust, a Florida trust, et al. Dentons US LLP

100 10-04931 Cantor, et al. Winston & Strawn LLP101 10-04954 Ruth Kahn Lax & Neville, LLP102 10-04956 D. M. Castelli Chaitman LLP103 10-04961 Sylvan Associates LLC f/k/a Sylvan Associates Ltd Partnership, et al. Chaitman LLP104 10-04979 James M. New Trust dtd 3/19/01, et al. Chaitman LLP105 10-04986 Sharon Knee Pro Se106 10-04991 Guiducci Family Limited Partnership, et al. Chaitman LLP107 10-04995 Trust U/Art Fourt O/W/O Israel Wilenitz, et al. Chaitman LLP108 10-05026 Walter Freshman Trust A, a Florida trust, et al. Chaitman LLP109 10-05037 Barbara L. Savin Chaitman LLP110 10-05048 Estate of Armand L. Greenhall, et al. Law Office of Joseph F. KeenanLax & Neville, LLP111 10-05068 D. Stone Industries, Inc. Profit Sharing Plan, et al. Frejka PLLC112 10-05079 Estate of James M. Goodman, et al. Chaitman LLP113 10-05083 The S. James Coppersmith Charitable Remainder Unitrust, et al. Folkenflik & McGerity114 10-05084 Daniel Stone Frejka PLLC115 10-05094 The Estate of Carolyn Miller, et al. Bernfeld, DeMatteo & Bernfeld, LLP116 10-05104 The Gloria Albert Sandler and Maurice Sandler Revocable Living Trust Chaitman LLP117 10-05116 Leonard J. Oguss Trust, et al. Chaitman LLP118 10-05118 Charlotte M. Marden Pryor Cashman LLP119 10-05124 The Lawrence J. Ryan and Theresa R. Ryan Revocable Living Trust, et al. Chaitman LLP120 10-05127 Atwood Management Profit Sharing Plan & Trust, etc., et al. Chaitman LLP121 10-05128 JABA Associates LP, et al. Chaitman LLP122 10-05130 Barbara Kotlikoff Harman Chaitman LLP123 10-05133 Boyer H. Palmer, individually, et al. Chaitman LLP124 10-05144 Estate of Bernard J. Kessel, et al. Rosenberg Feldman Smith LLP125 10-05150 Plafsky Family LLC Retirement Plan, Robert Plafsky, et al. Chaitman LLP126 10-05151 Palmer Family Trust, et al. Chaitman LLP




127 10-05157 The Harnick Brothers Partnership, et al. Chaitman LLP128 10-05168 Bernard Marden Profit Sharing Plan, et al. Pryor Cashman LLP129 10-05169 Fairfield Pagma Associates, et al. Lax & Neville, LLP130 10-05184 Laura Ann Smith Revocable Living Trust, et al. Chaitman LLP131 10-05194 Bruce D. Pergament, et al. Pryor Cashman LLP132 10-05196 Whitman 1990 Trust U/A DTD 4/13/90, et al. Chaitman LLP133 10-05209 Lapin Children LLC Dentons US LLP134 10-05236 Toby T. Hobish, et al. Dentons US LLP135 10-05255 Stefanelli Investors Group, et al. DelBello Donnellan Weingarten Wise & Wiederkehr LLP136 10-05257 Edward A. Zraick, Jr., individually and as joint tenant, et al. Hunton Andrews Kurth LLP137 10-05259 Stanley I. Lehrer, et al. Dentons US LLPPro Se138 10-05285 Joan L. Fisher, both in her indvdl cap, etc., et al. Yeskoo Hogan & Tamlyn LLP139 10-05286 Legacy Capital Ltd., et al. Stevens & Lee P.C.140 10-05312 Doron Tavlin Trust U/A 2/4/91, et al. Chaitman LLP141 10-05377 Richard G. Eaton Chaitman LLP142 10-05380 Srione, LLC, an Idaho limited liability company, et al. Law Offices of Stephen Goldstein

Stillman & Associates143 10-05384 Neil Reger Profit Sharing Keogh, et al. Dentons US LLP144 10-05394 Richard M. Glantz, et al. Law Office of Richard E. Signorelli145 10-05420 Gunther K. Unflat, et al. Chaitman LLP146 10-05435 Keith Schaffer, et al. Chaitman LLP147 10-05439 Avram J. Goldberg, individually and in his capacity as trust officer Pryor Cashman LLP


EXHIBIT B

08-01789-smb Doc 18015-2 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit B - Case Participating in Madoffs Deposition Pg 1 of 3

Exhibit BCases Participating in Madoff’s Deposition

APN Case Name Counsel1 10-04541 Kenneth W Perlman, et al. Blank Rome LLP

Chaitman LLP2 10-04428 Estate of Allen Meisels, et al. Chaitman LLP3 10-04709 Andrew M. Goodman Chaitman LLP4 10-05127 Atwood Management Profit Sharing Plan & Trust, etc., et al. Chaitman LLP5 10-05130 Barbara Kotlikoff Harman Chaitman LLP6 10-05037 Barbara L. Savin Chaitman LLP7 10-04367 Benjamin T. Heller Chaitman LLP8 10-05133 Boyer H. Palmer, individually, et al. Chaitman LLP9 10-04826 Boyer Palmer Chaitman LLP

10 10-04753 Carla Ginsburg Chaitman LLP11 10-04469 Carol L. Kamenstein, individually and in her capacity as joint tenant Chaitman LLP12 10-04956 D. M. Castelli Chaitman LLP13 10-04621 Donald A. Benjamin Chaitman LLP14 10-05312 Doron Tavlin Trust U/A 2/4/91, et al. Chaitman LLP15 10-04914 Edyne Gordon Chaitman LLP16 10-04809 Edyne Gordon NTC Chaitman LLP17 10-04491 Elaine Dine Living Trust dated 5/12/06, et al. Chaitman LLP18 10-04728 Estate of Bruno L. Di Giulian, et al. Chaitman LLP19 10-05079 Estate of James M. Goodman, et al. Chaitman LLP20 10-04889 Estate of Robert Shervyn Savin, et al. Chaitman LLP21 10-04438 Estate of Seymour Epstein, et al. Chaitman LLP22 10-04867 Estate of Steven I. Harnick, et al. Chaitman LLP23 10-04397 Fern C. Palmer Revocable Trust Dtd 12/31/9, et al. Chaitman LLP24 10-04823 Frank DiFazio, et al. Chaitman LLP25 10-04327 Gertrude E. Alpern Revocable Trust, et al. Chaitman LLP26 10-04920 Glenhaven Limited, et al. Chaitman LLP27 10-04991 Guiducci Family Limited Partnership, et al. Chaitman LLP28 10-05420 Gunther K. Unflat, et al. Chaitman LLP29 10-04912 Harry Smith Revocable Living Trust, et al. Chaitman LLP30 10-04321 Herbert Barbanel, et al. Chaitman LLP31 10-05128 JABA Associates LP, et al. Chaitman LLP32 10-04655 Jaffe Family Investment Partnership, et al. Chaitman LLP33 10-04762 James M. Goodman Chaitman LLP34 10-04979 James M. New Trust dtd 3/19/01, et al. Chaitman LLP35 10-04798 Janet Jaffe, et al. Chaitman LLP36 10-04545 Jerome Goodman, et al. Chaitman LLP37 10-04302 Joan Roman Chaitman LLP38 10-04503 Judd Robbins Chaitman LLP39 10-05435 Keith Schaffer, et al. Chaitman LLP40 10-04806 Kenneth M. Kohl, as an individual and as a joint tenant, et al. Chaitman LLP41 10-04752 Kuntzman Family LLC, et al. Chaitman LLP42 10-05184 Laura Ann Smith Revocable Living Trust, et al. Chaitman LLP43 10-05116 Leonard J. Oguss Trust, et al. Chaitman LLP44 10-04837 Leslie Ehrlich f/k/a Leslie Harwood , et al. Chaitman LLP45 10-04878 Lisa Beth Nissenbaum Trust, et al. Chaitman LLP46 10-04748 Mark Horowitz Chaitman LLP47 10-04489 Marlene Krauss Chaitman LLP48 10-05151 Palmer Family Trust, et al. Chaitman LLP49 10-04648 Peter D. Kamenstein Chaitman LLP50 10-04749 Philip F. Palmedo Chaitman LLP51 10-04768 Placon2, William R. Cohen, et al. Chaitman LLP


Exhibit BCases Participating in Madoff’s Deposition

APN Case Name Counsel52 10-05150 Plafsky Family LLC Retirement Plan, Robert Plafsky, et al. Chaitman LLP53 10-05377 Richard G. Eaton Chaitman LLP54 10-04562 Robert F. Ferber Chaitman LLP55 10-04740 Robert Hirsch, as an individual, and as joint tenant, et al. Chaitman LLP56 10-04292 Robert Roman Chaitman LLP57 10-04614 Robert S. Whitman Chaitman LLP58 10-04487 Robert Weintraub, et al. Chaitman LLP59 10-04644 Russell L. Dusek Chaitman LLP60 10-04961 Sylvan Associates LLC f/k/a Sylvan Associates Ltd Partnership, et al. Chaitman LLP61 10-04539 The Gerald and Barbara Keller Family Trust, et al. Chaitman LLP62 10-05104 The Gloria Albert Sandler and Maurice Sandler Revocable Living Trust Chaitman LLP63 10-05157 The Harnick Brothers Partnership, et al. Chaitman LLP64 10-04718 The Jordan H. Kart Revocable Trust, et al. Chaitman LLP65 10-05124 The Lawrence J. Ryan and Theresa R. Ryan Revocable Living Trust, et al. Chaitman LLP66 10-04610 The Whitman Partnership, et al. Chaitman LLP67 10-04818 Toby Harwood Chaitman LLP68 10-04905 Train Klan, a Partnership, et al. Chaitman LLP69 10-04446 Trust Dated 12/6/99 Walter and Eugenie Kissinger, et al. Chaitman LLP70 10-04995 Trust U/Art Fourt O/W/O Israel Wilenitz, et al. Chaitman LLP71 10-05026 Walter Freshman Trust A, a Florida trust, et al. Chaitman LLP72 10-05196 Whitman 1990 Trust U/A DTD 4/13/90, et al. Chaitman LLP73 10-04570 Jacob M. Dick Rev Living Trust DTD 4/6/01, et al. Chaitman LLPPro Se74 10-04352 RAR Entrepreneurial Fund LTD, et al. Chaitman LLPPro Se75 10-04925 Alvin Gindel Revocable Trust, a Florida trust, et al. Dentons US LLP76 10-04332 Barry Weisfeld Dentons US LLP77 10-04861 Harold J. Hein Dentons US LLP78 10-04357 James Greiff Dentons US LLP79 10-05209 Lapin Children LLC Dentons US LLP80 10-04882 Laura E. Guggenheimer Cole Dentons US LLP81 10-05384 Neil Reger Profit Sharing Keogh, et al. Dentons US LLP82 10-04401 Rose Gindel Trust, et al. Dentons US LLP83 10-04702 S&L Partnership, a New York partnership, et al. Dentons US LLP84 10-04672 Sidney Cole Dentons US LLP85 10-04921 Stanley T. Miller Dentons US LLP86 10-04415 The Estate of Barbara Berdon, et al. Dentons US LLP87 10-04486 The Norma Shapiro Revocable Declaration of Trust Under Agreement Date Dentons US LLP88 10-05236 Toby T. Hobish, et al. Dentons US LLP89 10-05257 Edward A. Zraick, Jr., individually and as joint tenant, et al. Hunton Andrews Kurth LLP90 10-04362 Sage Associates, et al. McDermott Will & Emery LLP91 10-04400 Sage Realty, et al. McDermott Will & Emery LLP92 10-04931 Cantor, et al. Winston & Strawn LLP


EXHIBIT C

08-01789-smb Doc 18015-3 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit C - Cases Not Participating in Madoffs Deposition Pg 1 of 2

Exhibit CCases Not Participating in Madoff's Deposition

APN Case Name Counsel1 10-04384 Lanx BM Investments, LLC, et al. Baker & McKenzie LLPFisherBroyles2 10-04419 Katz Group Limited Partnership, a Wyoming limited partnership, et al Becker LLC3 10-04396 Edith A. Schur Bernfeld, DeMatteo & Bernfeld, LLP4 10-04361 Harvey L. Werner Revocable Trust, et al. Bernfeld, DeMatteo & Bernfeld, LLP5 10-04561 Jeffrey R. Werner 11/1/98 Trust, et al. Bernfeld, DeMatteo & Bernfeld, LLP6 10-04468 Ken-Wen Family Limited Partnership, et al. Bernfeld, DeMatteo & Bernfeld, LLP7 10-05094 The Estate of Carolyn Miller, et al. Bernfeld, DeMatteo & Bernfeld, LLP8 10-04394 Frederic Z. Konigsberg, et al. Bernfeld, DeMatteo & Bernfeld, LLPJohn E. Lawlor9 10-04554 David Ivan Lustig Binder & Schwartz LLP

10 10-04417 The Lustig Family 1990 Trust, et al. Binder & Schwartz LLP11 10-04658 Carol Nelson Chaitman LLP12 10-04377 Carol Nelson, individually and as joint tenant, et al. Chaitman LLP13 10-04898 Helene Saren-Lawrence Chaitman LLP14 10-04669 Zieses Investment Partnership, et al. Chaitman LLP15 10-04517 Radcliff Investments Limited, et al. Clifford Chance U.S. LLP16 10-04592 Anthony E. Stefanelli DelBello Donnellan Weingarten Wise & Wiederkehr LLP17 10-05255 Stefanelli Investors Group, et al. DelBello Donnellan Weingarten Wise & Wiederkehr LLP18 10-04390 Michael Mann, et al. Dentons US LLP19 10-05259 Stanley I. Lehrer, et al. Dentons US LLPPro Se20 10-04631 151797 Canada Inc., Judith Pencer, Samuel Pencer, et al. Eiseman, Levine, Lehrhaupt & Kakoyiannis, P.C. 21 10-05083 The S. James Coppersmith Charitable Remainder Unitrust, et al. Folkenflik & McGerity22 10-05068 D. Stone Industries, Inc. Profit Sharing Plan, et al. Frejka PLLC23 10-05084 Daniel Stone Frejka PLLC24 10-04538 James B. Pinto Revocable Trust U/A dtd 12/1/03, et al. Frejka PLLC25 10-04492 Stuart Leventhal 2001 Irrevocable Trust, et al. Gabor & Marotta LLC26 10-04429 Gary J. Korn, et al. Golenbock Eiseman Assor Bell & Peskoe, LLP27 10-04328 David Shapiro Nominee Klestadt Winters Jureller Southard & Stevens, LLP28 10-04325 David Shapiro Nominee #2 Klestadt Winters Jureller Southard & Stevens, LLP29 10-04314 David Shapiro Nominee #3 Klestadt Winters Jureller Southard & Stevens, LLP30 10-04305 David Shapiro, et al. Klestadt Winters Jureller Southard & Stevens, LLP31 10-05048 Estate of Armand L. Greenhall, et al. Law Office of Joseph F. KeenanLax & Neville, LLP32 10-05394 Richard M. Glantz, et al. Law Office of Richard E. Signorelli33 10-05380 Srione, LLC, an Idaho limited liability company, et al. Law Offices of Stephen Goldstein

Stillman & Associates34 10-04573 Bruce Leventhal 2001 Irrevocable Trust, et al. Lax & Neville, LLP35 10-05169 Fairfield Pagma Associates, et al. Lax & Neville, LLP36 10-04289 John Fujiwara, et al. Lax & Neville, LLP37 10-04954 Ruth Kahn Lax & Neville, LLP38 10-04750 Samdia Family L.P., a Delaware Limited Partnership, et al. Lax & Neville, LLP39 10-04667 David Gross, et al. Pro Se40 10-04296 Jeffrey Shankman Pro Se41 10-04986 Sharon Knee Pro Se42 10-04463 Triangle Diversified Investments, et al. Pro Se43 10-05439 Avram J. Goldberg, individually and in his capacity as trust officer Pryor Cashman LLP44 10-05168 Bernard Marden Profit Sharing Plan, et al. Pryor Cashman LLP45 10-05194 Bruce D. Pergament, et al. Pryor Cashman LLP46 10-05118 Charlotte M. Marden Pryor Cashman LLP47 10-04348 Marden Family Limited Partnership, et al. Pryor Cashman LLP48 10-04341 Marden, et al. Pryor Cashman LLP49 10-04343 Patrice Auld, et al. Pryor Cashman LLP50 10-05144 Estate of Bernard J. Kessel, et al. Rosenberg Feldman Smith LLP51 10-05286 Legacy Capital Ltd., et al. Stevens & Lee P.C.52 10-04378 DOS BFS Family Partnership II, L.P., et al. Westerman Ball Ederer Miller & Sharfstein LLP53 10-04525 Susan Schemen Fradin Revocable Agreement of Trust, et al. Willkie Farr & Gallagher LLP54 10-04885 Trust Fund B U/W Edward F. Seligman F/B/O Nancy Atlas, et al. Winston & Strawn LLP55 10-05285 Joan L. Fisher, both in her indvdl cap, etc., et al. Yeskoo Hogan & Tamlyn LLP

08-01789-smb Doc 18015-3 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit C - Cases Not Participating in Madoffs Deposition Pg 2 of 2

EXHIBIT D

08-01789-smb Doc 18015-4 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit D - Cases with Open Fact Discovery Pg 1 of 2

Exhibit DCases With Open Fact Discovery

APN Case Name CounselFact Discovery

Deadline As Per CMO

1 10-05384 Neil Reger Profit Sharing Keogh, et al. Dentons US LLP 10/26/2018

2 10-05124 The Lawrence J. Ryan and Theresa R. Ryan Revocable Living Trust, et al. Chaitman LLP 1/2/20183 10-05435 Keith Schaffer, et al. Chaitman LLP 1/2/20184 10-05151 Palmer Family Trust, et al. Chaitman LLP 12/29/20175 10-04823 Frank DiFazio, et al. Chaitman LLP 12/28/20176 10-04709 Andrew M. Goodman Chaitman LLP 12/22/20177 10-05133 Boyer H. Palmer, individually, et al. Chaitman LLP 12/20/20178 10-04487 Robert Weintraub, et al. Chaitman LLP 12/18/20179 10-04837 Leslie Ehrlich f/k/a Leslie Harwood , et al. Chaitman LLP 12/18/2017

10 10-04798 Janet Jaffe, et al. Chaitman LLP 12/15/201711 10-05196 Whitman 1990 Trust U/A DTD 4/13/90, et al. Chaitman LLP 12/8/201712 10-04397 Fern C. Palmer Revocable Trust Dtd 12/31/9, et al. Chaitman LLP 12/7/201713 10-04826 Boyer Palmer Chaitman LLP 12/6/201714 10-05127 Atwood Management Profit Sharing Plan & Trust, etc., et al. Chaitman LLP 11/30/201715 10-04905 Train Klan, a Partnership, et al. Chaitman LLP 11/28/201716 10-05150 Plafsky Family LLC Retirement Plan, Robert Plafsky, et al. Chaitman LLP 11/17/201717 10-04991 Guiducci Family Limited Partnership, et al. Chaitman LLP 11/9/201718 10-04718 The Jordan H. Kart Revocable Trust, et al. Chaitman LLP 11/6/201719 10-05104 The Gloria Albert Sandler and Maurice Sandler Revocable Living Trust Chaitman LLP 11/3/201720 10-05157 The Harnick Brothers Partnership, et al. Chaitman LLP 11/3/201721 10-04752 Kuntzman Family LLC, et al. Chaitman LLP 10/27/201722 10-04446 Trust Dated 12/6/99 Walter and Eugenie Kissinger, et al. Chaitman LLP 10/23/201723 10-04539 The Gerald and Barbara Keller Family Trust, et al. Chaitman LLP 10/16/201724 10-04438 Estate of Seymour Epstein, et al. Chaitman LLP 10/12/201725 10-04545 Jerome Goodman, et al. Chaitman LLP 10/4/201726 10-04979 James M. New Trust dtd 3/19/01, et al. Chaitman LLP 9/29/201727 10-04961 Sylvan Associates LLC f/k/a Sylvan Associates Ltd Partnership, et al. Chaitman LLP 9/22/201728 10-04762 James M. Goodman Chaitman LLP 9/20/201729 10-04610 The Whitman Partnership, et al. Chaitman LLP 9/19/201730 10-04655 Jaffe Family Investment Partnership, et al. Chaitman LLP 9/14/201731 10-04914 Edyne Gordon Chaitman LLP 9/13/201732 10-05128 JABA Associates LP, et al. Chaitman LLP 9/8/201733 10-04809 Edyne Gordon NTC Chaitman LLP 8/18/2017

Cases Represented by Chaitman LLP

08-01789-smb Doc 18015-4 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit D - Cases with Open Fact Discovery Pg 2 of 2

EXHIBIT E

08-01789-smb Doc 18015-5 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit E - Cases with Closed Fact Discovery with CMOs Pg 1 of 3

Exhibit E Cases with Closed Fact Discovery per CMOs


1 10-04362 Sage Associates, et al. McDermott Will & Emery LLP2 10-04400 Sage Realty, et al. McDermott Will & Emery LLP3 10-04931 Cantor, et al. Winston & Strawn LLP4 10-04541 Kenneth W Perlman, et al. Blank Rome LLPChaitman LLP5 10-04920 Glenhaven Limited, et al. Chaitman LLP6 10-04491 Elaine Dine Living Trust dated 5/12/06, et al. Chaitman LLP7 10-04562 Robert F. Ferber Chaitman LLP8 10-04352 RAR Entrepreneurial Fund LTD, et al. Chaitman LLPPro Se9 10-05184 Laura Ann Smith Revocable Living Trust, et al. Chaitman LLP

10 10-05312 Doron Tavlin Trust U/A 2/4/91, et al. Chaitman LLP11 10-04753 Carla Ginsburg Chaitman LLP12 10-04321 Herbert Barbanel, et al. Chaitman LLP13 10-04327 Gertrude E. Alpern Revocable Trust, et al. Chaitman LLP14 10-05116 Leonard J. Oguss Trust, et al. Chaitman LLP15 10-04912 Harry Smith Revocable Living Trust, et al. Chaitman LLP16 10-04292 Robert Roman Chaitman LLP17 10-04302 Joan Roman Chaitman LLP18 10-04644 Russell L. Dusek Chaitman LLP19 10-04469 Carol L. Kamenstein, individually and in her capacity as joint tenant Chaitman LLP20 10-04648 Peter D. Kamenstein Chaitman LLP21 10-04672 Sidney Cole Dentons US LLP22 10-05420 Gunther K. Unflat, et al. Chaitman LLP23 10-04749 Philip F. Palmedo Chaitman LLP24 10-04728 Estate of Bruno L. Di Giulian, et al. Chaitman LLP25 10-04818 Toby Harwood Chaitman LLP26 10-04570 Jacob M. Dick Rev Living Trust DTD 4/6/01, et al. Chaitman LLPPro Se27 10-04332 Barry Weisfeld Dentons US LLP28 10-04889 Estate of Robert Shervyn Savin, et al. Chaitman LLP29 10-05037 Barbara L. Savin Chaitman LLP30 10-04748 Mark Horowitz Chaitman LLP31 10-05209 Lapin Children LLC Dentons US LLP32 10-04401 Rose Gindel Trust, et al. Dentons US LLP33 10-04925 Alvin Gindel Revocable Trust, a Florida trust, et al. Dentons US LLP34 10-05377 Richard G. Eaton Chaitman LLP35 10-04806 Kenneth M. Kohl, as an individual and as a joint tenant, et al. Chaitman LLP36 10-04489 Marlene Krauss Chaitman LLP37 10-05079 Estate of James M. Goodman, et al. Chaitman LLP38 10-05026 Walter Freshman Trust A, a Florida trust, et al. Chaitman LLP39 10-04768 Placon2, William R. Cohen, et al. Chaitman LLP40 10-04995 Trust U/Art Fourt O/W/O Israel Wilenitz, et al. Chaitman LLP41 10-04867 Estate of Steven I. Harnick, et al. Chaitman LLP42 10-04740 Robert Hirsch, as an individual, and as joint tenant, et al. Chaitman LLP43 10-04428 Estate of Allen Meisels, et al. Chaitman LLP44 10-04614 Robert S. Whitman Chaitman LLP45 10-04503 Judd Robbins Chaitman LLP46 10-04956 D. M. Castelli Chaitman LLP47 10-04861 Harold J. Hein Dentons US LLP48 10-04415 The Estate of Barbara Berdon, et al. Dentons US LLP49 10-04367 Benjamin T. Heller Chaitman LLP50 10-04357 James Greiff Dentons US LLP51 10-05236 Toby T. Hobish, et al. Dentons US LLP52 10-04921 Stanley T. Miller Dentons US LLP


Exhibit E Cases with Closed Fact Discovery per CMOs


53 10-05257 Edward A. Zraick, Jr., individually and as joint tenant, et al. Hunton Andrews Kurth LLP54 10-04621 Donald A. Benjamin Chaitman LLP55 10-04702 S&L Partnership, a New York partnership, et al. Dentons US LLP56 10-05130 Barbara Kotlikoff Harman Chaitman LLP57 10-04486 The Norma Shapiro Revocable Declaration of Trust Under Agreement Date Dentons US LLP58 10-04882 Laura E. Guggenheimer Cole Dentons US LLP59 10-04878 Lisa Beth Nissenbaum Trust, et al. Chaitman LLP


EXHIBIT F

08-01789-smb Doc 18015-6 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit F - Cases with Served Expert Reports Pg 1 of 2

Exhibit FCases With Served Expert Reports

APN Case Name Counsel1 10-04428 Estate of Allen Meisels, et al. Chaitman LLP2 10-05130 Barbara Kotlikoff Harman Chaitman LLP3 10-04367 Benjamin T. Heller Chaitman LLP4 10-04956 D. M. Castelli Chaitman LLP5 10-04867 Estate of Steven I. Harnick, et al. Chaitman LLP6 10-04503 Judd Robbins Chaitman LLP7 10-04878 Lisa Beth Nissenbaum Trust, et al. Chaitman LLP8 10-04489 Marlene Krauss Chaitman LLP9 10-04768 Placon2, William R. Cohen, et al. Chaitman LLP

10 10-04740 Robert Hirsch, as an individual, and as joint tenant, et al. Chaitman LLP11 10-04614 Robert S. Whitman Chaitman LLP12 10-04925 Alvin Gindel Revocable Trust, a Florida trust, et al. Dentons US LLP13 10-04332 Barry Weisfeld Dentons US LLP14 10-04861 Harold J. Hein Dentons US LLP15 10-04357 James Greiff Dentons US LLP16 10-05209 Lapin Children LLC Dentons US LLP17 10-04882 Laura E. Guggenheimer Cole Dentons US LLP18 10-04401 Rose Gindel Trust, et al. Dentons US LLP19 10-04702 S&L Partnership, a New York partnership, et al. Dentons US LLP20 10-04672 Sidney Cole Dentons US LLP21 10-04921 Stanley T. Miller Dentons US LLP22 10-04415 The Estate of Barbara Berdon, et al. Dentons US LLP23 10-04486 The Norma Shapiro Revocable Declaration of Trust Under Agreement Date Dentons US LLP24 10-05236 Toby T. Hobish, et al. Dentons US LLP25 10-05257 Edward A. Zraick, Jr., individually and as joint tenant, et al. Hunton Andrews Kurth LLP

08-01789-smb Doc 18015-6 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit F - Cases with Served Expert Reports Pg 2 of 2

EXHIBIT G

08-01789-smb Doc 18015-7 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit G - Bongiorno Rule 30 Order Pg 1 of 7




v.


Defendant.

Adv. Pro. No. 08-01789 (SMB)

SIPA LIQUIDATION


In re:

BERNARD L. MADOFF,

Debtor.


Plaintiff,

v.

DEFENDANTS IN ADVERSARY PROCEEDINGS LISTED ON APPENDIX 1 ATTACHED HERETO,

Defendants.

Adv. Pro. Nos. listed on Appendix 1 Attached Hereto

[PROPOSED] ORDER AUTHORIZING THE DEPOSITION OF FEDERAL PRISONER

ANNETTE BONGIORNO

On September 21, 2018, Irving H. Picard, 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. (“SIPA”), and the estate of

Bernard L. Madoff (“Madoff”) (collectively, “Debtor”), by and through his counsel, filed a

Motion for Limited Additional Discovery Based on Prior Orders Authorizing Deposition of

Bernard L. Madoff (the “Motion”), ECF No. ______. The Motion sought, inter alia, an order


2

pursuant to Federal Rule of Civil Procedure 30(a), applicable to this proceeding under Rule 7030

of the Federal Rules of Bankruptcy Procedure, to depose Ms. Annette Bongiorno.

The Court heard argument on the Trustee’s Motion on October 31, 2018.

For the reasons stated on the record, it is hereby ORDERED that:

1. Ms. Bongiorno’s deposition is authorized;

2. The warden of the Federal Correctional Institution Coleman located in

Sumterville, Florida, is hereby directed to produce Annette Bongiorno, a prisoner with Federal

Bureau of Prisons Register # 96064-004, at the warden’s office or elsewhere within the facility at

a date and time to be determined at the discretion of the warden but not later than January 31,

2019. In accordance with Federal Rule of Civil Procedure 30(b), the deposition will be taken

before a notary public or other person duly authorized by law to administer oaths and will be

recorded by video and/or stenographically;

3. Counsel from the following law firms may attend the deposition of Ms.

Bongiorno: (1) Baker Hostetler LLP, as counsel for the Trustee; and (2) Chaitman LLP, Dentons

US LLP, Winston & Strawn, McDermott, Will & Emery LLP, Hunton Andrews Kurth LLP, and

Blank Rome LLP as counsel for certain defendants (“Participating Defendants’ Counsel,” with

counsel for the Trustee, “Authorized Counsel”). No other appearances are authorized;

4. Except for any counsel that may appear on Ms. Bongiorno’s behalf, only two

attorneys for the Trustee may appear at the deposition; only two attorneys from the Participating

Defendants’ Counsel may appear; no other appearances are authorized;

5. The Trustee’s Counsel shall have the opportunity to commence Ms. Bongiorno’s

examination at deposition, Participating Defendants’ Counsel shall then have the opportunity to

examine Ms. Bongiorno, and the parties then will have the opportunity respectively to conduct


3

any additional re-direct or re-cross examinations as they deem necessary; the Trustee’s counsel

shall be permitted to examine Ms. Bongiorno for a total of seven (7) hours and Participating

Defendants’ Counsel shall be permitted to examine Ms. Bongiorno for a total of seven (7) hours;

no further questioning is authorized without written leave of court;

6. The Court, in its discretion, may impose sanctions on any person or entity that

violates any provision of this Order; and

7. This Court shall retain exclusive jurisdiction over the enforcement,

implementation, and interpretation of this Order.

Dated: New York, New York ____________, 2018

HONORABLE STUART M. BERNSTEIN UNITED STATES BANKRUPTCY JUDGE


APPENDIX 1


Appendix 1Cases Participating in Madoff’s Deposition








EXHIBIT H

08-01789-smb Doc 18015-8 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit H - Bonventre Rule 30 Order Pg 1 of 7

1




v.


Defendant.

Adv. Pro. No. 08-01789 (SMB)

SIPA LIQUIDATION


In re:

BERNARD L. MADOFF,

Debtor.


Plaintiff,

v.


Defendants.


[PROPOSED] ORDER AUTHORIZING THE DEPOSITION OF FEDERAL PRISONER

DANIEL BONVENTRE








2


of the Federal Rules of Bankruptcy Procedure, to depose Mr. Daniel Bonventre.



1. Mr. Bonventre’s deposition is authorized;

2. The warden of the Federal Correctional Institute Shuylkill in Minersville,

Pennsylvania, is hereby directed to produce Daniel Bonventre, a prisoner with Federal Bureau of

Prisons Register # 63156-054, at the warden’s office or elsewhere within the facility at a date

and time to be determined at the discretion of the warden but not later than January 31, 2019. In

accordance with Federal Rule of Civil Procedure 30(b), the deposition will be taken before a

notary public or other person duly authorized by law to administer oaths and will be recorded by

video and/or stenographically;

3. Counsel from the following law firms may attend the deposition of Mr.

Bonventre: (1) Baker Hostetler LLP, as counsel for the Trustee; and (2) Chaitman LLP, Dentons

US LLP, Winston & Strawn, McDermott, Will & Emery LLP, Hunton Andrews Kurth LLP, and

Blank Rome LLP as counsel for certain defendants (“Participating Defendants’ Counsel,” with

counsel for the Trustee, “Authorized Counsel”). No other appearances are authorized;

4. Except for any counsel that may appear on Mr. Bonventre’s behalf, only two

attorneys for the Trustee may appear at the deposition; only two attorneys from the Participating


5. The Trustee’s Counsel shall have the opportunity to commence Mr. Bonventre’s


examine Mr. Bonventre, and the parties then will have the opportunity respectively to conduct


3

any additional re-direct or re-cross examinations as they deem necessary; the Trustee’s counsel

shall be permitted to examine Mr. Bonventre for a total of seven (7) hours and Participating

Defendants’ Counsel shall be permitted to examine Mr. Bonventre for a total of seven (7) hours;

no further questioning is authorized without written leave of court;








APPENDIX 1










EXHIBIT I

08-01789-smb Doc 18015-9 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit I - Crupi Rule 30 Order Pg 1 of 7

4826-8122-3283.1




v.


Defendant.

Adv. Pro. No. 08-01789 (SMB)

SIPA LIQUIDATION


In re:

BERNARD L. MADOFF,

Debtor.


Plaintiff,

v.


Defendants.


[PROPOSED] ORDER AUTHORIZING THE DEPOSITION OF FEDERAL PRISONER JOANN CRUPI








4826-8122-3283.1


of the Federal Rules of Bankruptcy Procedure, to depose Ms. Joann Crupi.



1. Ms. Crupi’s deposition is authorized;

2. The warden of the Federal Prison Camp in Alderson, West Virginia, is hereby

directed to produce Joann Crupi, a prisoner with Federal Bureau of Prisons Register # 64246-

054, at the warden’s office or elsewhere within the facility at a date and time to be determined at

the discretion of the warden but not later than January 31, 2019. In accordance with Federal

Rule of Civil Procedure 30(b), the deposition will be taken before a notary public or other person

duly authorized by law to administer oaths and will be recorded by video and/or

stenographically;

3. Counsel from the following law firms may attend the deposition of Ms. Crupi: (1)

Baker Hostetler LLP, as counsel for the Trustee; and (2) Chaitman LLP, Dentons US LLP,

Winston & Strawn, McDermott, Will & Emery LLP, Hunton Andrews Kurth LLP, and Blank

Rome LLP as counsel for certain defendants (“Participating Defendants’ Counsel,” with counsel

for the Trustee, “Authorized Counsel”). No other appearances are authorized;

4. Except for any counsel that may appear on Ms. Crupi’s behalf, only two attorneys

for the Trustee may appear at the deposition; only two attorneys from the Participating


5. The Trustee’s Counsel shall have the opportunity to commence Ms. Crupi’s


examine Ms. Crupi, and the parties then will have the opportunity respectively to conduct any


4826-8122-3283.1

additional re-direct or re-cross examinations as they deem necessary; the Trustee’s counsel shall

be permitted to examine Ms. Crupi for a total of seven (7) hours and Participating Defendants’

Counsel shall be permitted to examine Ms. Crupi for a total of seven (7) hours; no further

questioning is authorized without written leave of court;








APPENDIX 1










EXHIBIT J

08-01789-smb Doc 18015-10 Filed 09/21/18 Entered 09/21/18 17:50:47 Exhibit J - Main Proposed Order Pg 1 of 8




v.


Defendant.

Adv. Pro. No. 08-01789 (SMB)

SIPA LIQUIDATION


In re:

BERNARD L. MADOFF,

Debtor.


Plaintiff,

v.


Defendants.


[PROPOSED] ORDER APPROVING LIMITED ADDITIONAL DISCOVERY BASED

ON PRIOR ORDERS AUTHORIZING DEPOSITION OF BERNARD L. MADOFF






Bernard L. Madoff (the “Motion”), ECF No. ______. The Motion sought certain discovery

under the Order Authorizing the Deposition of Bernard L. Madoff (ECF No. 14213) and the


2

Order Authorizing the Continued Deposition of Bernard L. Madoff on Day Two Topics (ECF

No. 16625).



1. The deadline to complete fact discovery is hereby extended for ninety days from

the entry of this Order to complete certain limited discovery based on the testimony of Bernard

L. Madoff during his deposition (“Limited Fact Discovery Period”), in all cases set forth in

Appendix 1, notwithstanding any fact discovery deadlines set forth in the applicable case

management orders.

2. During the Limited Fact Discovery Period, the Trustee is permitted to conduct the

following discovery as set forth in his Motion:

a. Depose the three incarcerated witnesses—Annette Bongiorno,

Daniel Bonventre, and Joann Crupi—as provided for in separate

orders entered under Federal Rule of Civil Procedure 30(a),

applicable to this proceeding under Rule 7030 of the Federal Rules

of Bankruptcy Procedure;

b. Depose Enrica Cotellessa-Pitz;

c. Depose David Kugel;

d. Depose Joann Sala;

e. Depose FBI Special Agent Keith Kelly or Theodore Cacioppi; and

f. Disclose and produce documents to defendants that the Trustee

may use during any permitted fact depositions of the former

BLMIS employees identified herein, as well as those documents


3

considered by the Trustee’s experts in connection with the

supplemental or new reports; and

g. Serve amended initial disclosures to (i) include the former BLMIS

employees identified herein along with the following: Semone

Anderson, Angela Celentano, Kevin Fong, Margaret Gavlik,

Haresh Hemrajani, Winifer Jackson, Betty Mazzone, Jerry O’Hara,

and George Perez and (ii) attach indices detailing documents and

information in the Trustee’s possession.

3. Upon the completion of the Limited Fact Discovery Period, discovery is extended

an additional ninety days (or remains open, as the case may be) to complete expert discovery

(“Limited Expert Discovery Period”), in all cases set forth in Appendix 1, notwithstanding any

expert discovery deadlines set forth in the applicable case management orders. During the

Limited Expert Discovery Period, the Trustee is permitted to conduct the following discovery as

set forth in his Motion:

a. Serve the supplemental expert reports of Bruce Dubinsky and Lisa

Collura in each of the 25 cases in which expert reports were

previously served;

b. Serve the same expert reports of Bruce Dubinsky and Lisa Collura

(referenced in 3.a.) in the remaining 67 of the Madoff Deposition

Cases in which expert reports have not been served pursuant to

case management orders or the Chaitman Discovery Order; and


4

c. Serve two additional expert reports, including an expert report on

convertible arbitrage trading and an expert report on BLMIS’s

computer systems in all cases set forth in Appendix 1.

4. The following deadlines shall govern the Limited Expert Discovery Period:

a. Within 15 days of the expiration of the Limited Fact Discovery

Period, all expert reports (referenced in 3.a., b., or c.) shall be

served, and such reports must comply with the disclosure

requirements under Federal Rule of Civil Procedure 26(a)(2);

b. Within 45 days of service of the reports referenced in 4a., rebuttal

reports may be served;

c. Prior to the expiration of the Limited Expert Discovery Period, any

depositions of disclosed experts must be completed; and

d. Expert witnesses shall be deposed only once;








APPENDIX 1










Baker & Hostetler LLP Hearing Date: October 31, 2018 45 Rockefeller Plaza Time: 10:00 a.m. New York, NY 10111 Objections Due: October 17, 2018 Telephone: (212) 589-4200 Time: 5:00 p.m. Facsimile: (212) 589-4201 David J. Sheehan Stacey A. Bell Nicholas J. Cremona Attorneys for Irving H. Picard, Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the Estate of Bernard L. Madoff UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK



v.


Defendant.

Adv. Pro. No. 08-01789 (SMB)

SIPA LIQUIDATION


In re:

BERNARD L. MADOFF,

Debtor.


Plaintiff,

v.

DEFENDANTS IN ADVERSARY PROCEEDINGS LISTED ON EXHIBIT A1,

Defendants.

Adv. Pro. Nos. listed on Exhibit A

NOTICE OF TRUSTEE’S MOTION

FOR LIMITED ADDITIONAL DISCOVERY BASED ON PRIOR ORDERS AUTHORIZING DEPOSITION OF BERNARD L. MADOFF

1 See Exhibit A, Schedule of Remaining Good Faith Actions, annexed to the Trustee’s Motion.

08-01789-smb Doc 18015-11 Filed 09/21/18 Entered 09/21/18 17:50:47 Notice of Motion Pg 1 of 7

-2-

PLEASE TAKE NOTICE THAT, Irving H. Picard, as 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 (“SIPA”), and the estate of Bernard L.

Madoff (“Madoff”), by and through his undersigned counsel, will move before the Honorable

Stuart M. Bernstein, United States Bankruptcy Judge, at the United States Bankruptcy Court, the

Alexander Hamilton Customs House, One Bowling Green, New York, New York 10004, on

October 31, 2018 at 10:00 a.m., or as soon thereafter as counsel may be heard on Trustee’s

Motion For Limited Additional Discovery Based On Prior Orders Authorizing Deposition Of

Bernard L. Madoff (the “Motion”), as more particularly set forth in the Motion and the

Declaration of David J. Sheehan in Support of the Motion (the “Sheehan Declaration”), annexed

hereto.

PLEASE TAKE FURTHER NOTICE that written objections to the Motion must be

filed with the Clerk of the United States Bankruptcy Court, One Bowling Green, New York,

New York 10004 by no later than 5:00 p.m. on October 17, 2018 (with a courtesy copy

delivered to the Chambers of the Honorable Stuart M. Bernstein) and must be served upon (a)

Baker & Hostetler LLP, 45 Rockefeller Plaza, New York, New York 10111, Attn: David J.

Sheehan and Stacey A. Bell; and (b) Securities Investor Protection Corporation, 1667 K Street,

N.W., Suite 10, Washington, DC 20006 Attn: Kevin Bell. Any objections must specifically state

the interest that the objecting party has in these proceedings and the specific basis of any

objection to the Motion.

PLEASE TAKE FURTHER NOTICE that the Trustee’s reply to the objections filed on

or before October 17, 2018, must be in writing, shall conform to the Bankruptcy Rules and other

applicable rules and orders of this Court, and shall be filed in accordance with General Rule M-

399 and the electronic filing procedures for the United States Bankruptcy Court for the Southern


-3-

District of New York (available at www.nysb.uscourts.gov) by no later than October 24, 2018 at

4:00 p.m.

PLEASE TAKE FURTHER NOTICE that failure to file timely objections may result

in the entry of an order granting the relief requested in the Motion without further notice to any

party or an opportunity to be heard.

Dated: New York, New York September 21, 2018

/s/ Stacey A. Bell Baker & Hostetler LLP 45 Rockefeller Plaza New York, New York 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 David J. Sheehan Email: [email protected] Stacey A. Bell Email: [email protected] Nicholas J. Cremona Email: [email protected] Attorneys for Irving H. Picard, Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the Estate of Bernard L. Madoff


http://www.nysb.uscourts.gov/

mailto:[email protected]



EXHIBIT A



APN Case Name Counsel1 10-04289 John Fujiwara, et al. Lax & Neville, LLP2 10-04292 Robert Roman Chaitman LLP3 10-04296 Jeffrey Shankman Pro Se4 10-04302 Joan Roman Chaitman LLP5 10-04305 David Shapiro, et al. Klestadt Winters Jureller Southard & Stevens, LLP6 10-04314 David Shapiro Nominee #3 Klestadt Winters Jureller Southard & Stevens, LLP7 10-04321 Herbert Barbanel, et al. Chaitman LLP8 10-04325 David Shapiro Nominee #2 Klestadt Winters Jureller Southard & Stevens, LLP9 10-04327 Gertrude E. Alpern Revocable Trust, et al. Chaitman LLP

10 10-04328 David Shapiro Nominee Klestadt Winters Jureller Southard & Stevens, LLP11 10-04332 Barry Weisfeld Dentons US LLP12 10-04341 Marden, et al. Pryor Cashman LLP13 10-04343 Patrice Auld, et al. Pryor Cashman LLP14 10-04348 Marden Family Limited Partnership, et al. Pryor Cashman LLP15 10-04352 RAR Entrepreneurial Fund LTD, et al. Chaitman LLPPro Se16 10-04357 James Greiff Dentons US LLP17 10-04361 Harvey L. Werner Revocable Trust, et al. Bernfeld, DeMatteo & Bernfeld, LLP18 10-04362 Sage Associates, et al. McDermott Will & Emery LLP19 10-04367 Benjamin T. Heller Chaitman LLP20 10-04377 Carol Nelson, individually and as joint tenant, et al. Chaitman LLP21 10-04378 DOS BFS Family Partnership II, L.P., et al. Westerman Ball Ederer Miller & Sharfstein LLP22 10-04384 Lanx BM Investments, LLC, et al. Baker & McKenzie LLPFisherBroyles23 10-04390 Michael Mann, et al. Dentons US LLP24 10-04394 Frederic Z. Konigsberg, et al. Bernfeld, DeMatteo & Bernfeld, LLPJohn E. Lawlor25 10-04396 Edith A. Schur Bernfeld, DeMatteo & Bernfeld, LLP26 10-04397 Fern C. Palmer Revocable Trust Dtd 12/31/9, et al. Chaitman LLP27 10-04400 Sage Realty, et al. McDermott Will & Emery LLP28 10-04401 Rose Gindel Trust, et al. Dentons US LLP29 10-04415 The Estate of Barbara Berdon, et al. Dentons US LLP30 10-04417 The Lustig Family 1990 Trust, et al. Binder & Schwartz LLP31 10-04419 Katz Group Limited Partnership, a Wyoming limited partnership, et al. Becker LLC32 10-04428 Estate of Allen Meisels, et al. Chaitman LLP33 10-04429 Gary J. Korn, et al. Golenbock Eiseman Assor Bell & Peskoe, LLP34 10-04438 Estate of Seymour Epstein, et al. Chaitman LLP35 10-04446 Trust Dated 12/6/99 Walter and Eugenie Kissinger, et al. Chaitman LLP36 10-04463 Triangle Diversified Investments, et al. Pro Se37 10-04468 Ken-Wen Family Limited Partnership, et al. Bernfeld, DeMatteo & Bernfeld, LLP38 10-04469 Carol L. Kamenstein, individually and in her capacity as joint tenant Chaitman LLP39 10-04486 The Norma Shapiro Revocable Declaration of Trust Under Agreement Date Dentons US LLP40 10-04487 Robert Weintraub, et al. Chaitman LLP41 10-04489 Marlene Krauss Chaitman LLP42 10-04491 Elaine Dine Living Trust dated 5/12/06, et al. Chaitman LLP43 10-04492 Stuart Leventhal 2001 Irrevocable Trust, et al. Gabor & Marotta LLC44 10-04503 Judd Robbins Chaitman LLP45 10-04517 Radcliff Investments Limited, et al. Clifford Chance U.S. LLP46 10-04525 Susan Schemen Fradin Revocable Agreement of Trust, et al. Willkie Farr & Gallagher LLP47 10-04538 James B. Pinto Revocable Trust U/A dtd 12/1/03, et al. Frejka PLLC48 10-04539 The Gerald and Barbara Keller Family Trust, et al. Chaitman LLP49 10-04541 Kenneth W Perlman, et al. Blank Rome LLPChaitman LLP50 10-04545 Jerome Goodman, et al. Chaitman LLP51 10-04554 David Ivan Lustig Binder & Schwartz LLP52 10-04561 Jeffrey R. Werner 11/1/98 Trust, et al. Bernfeld, DeMatteo & Bernfeld, LLP53 10-04562 Robert F. Ferber Chaitman LLP54 10-04570 Jacob M. Dick Rev Living Trust DTD 4/6/01, et al. Chaitman LLPPro Se55 10-04573 Bruce Leventhal 2001 Irrevocable Trust, et al. Lax & Neville, LLP56 10-04592 Anthony E. Stefanelli DelBello Donnellan Weingarten Wise & Wiederkehr LLP57 10-04610 The Whitman Partnership, et al. Chaitman LLP58 10-04614 Robert S. Whitman Chaitman LLP59 10-04621 Donald A. Benjamin Chaitman LLP60 10-04631 151797 Canada Inc., Judith Pencer, Samuel Pencer, et al. Eiseman, Levine, Lehrhaupt & Kakoyiannis, P.C. 61 10-04644 Russell L. Dusek Chaitman LLP62 10-04648 Peter D. Kamenstein Chaitman LLP63 10-04655 Jaffe Family Investment Partnership, et al. Chaitman LLP




64 10-04658 Carol Nelson Chaitman LLP65 10-04667 David Gross, et al. Pro Se66 10-04669 Zieses Investment Partnership, et al. Chaitman LLP67 10-04672 Sidney Cole Dentons US LLP68 10-04702 S&L Partnership, a New York partnership, et al. Dentons US LLP69 10-04709 Andrew M. Goodman Chaitman LLP70 10-04718 The Jordan H. Kart Revocable Trust, et al. Chaitman LLP71 10-04728 Estate of Bruno L. Di Giulian, et al. Chaitman LLP72 10-04740 Robert Hirsch, as an individual, and as joint tenant, et al. Chaitman LLP73 10-04748 Mark Horowitz Chaitman LLP74 10-04749 Philip F. Palmedo Chaitman LLP75 10-04750 Samdia Family L.P., a Delaware Limited Partnership, et al. Lax & Neville, LLP76 10-04752 Kuntzman Family LLC, et al. Chaitman LLP77 10-04753 Carla Ginsburg Chaitman LLP78 10-04762 James M. Goodman Chaitman LLP79 10-04768 Placon2, William R. Cohen, et al. Chaitman LLP80 10-04798 Janet Jaffe, et al. Chaitman LLP81 10-04806 Kenneth M. Kohl, as an individual and as a joint tenant, et al. Chaitman LLP82 10-04809 Edyne Gordon NTC Chaitman LLP83 10-04818 Toby Harwood Chaitman LLP84 10-04823 Frank DiFazio, et al. Chaitman LLP85 10-04826 Boyer Palmer Chaitman LLP86 10-04837 Leslie Ehrlich f/k/a Leslie Harwood , et al. Chaitman LLP87 10-04861 Harold J. Hein Dentons US LLP88 10-04867 Estate of Steven I. Harnick, et al. Chaitman LLP89 10-04878 Lisa Beth Nissenbaum Trust, et al. Chaitman LLP90 10-04882 Laura E. Guggenheimer Cole Dentons US LLP91 10-04885 Trust Fund B U/W Edward F. Seligman F/B/O Nancy Atlas, et al. Winston & Strawn LLP92 10-04889 Estate of Robert Shervyn Savin, et al. Chaitman LLP93 10-04898 Helene Saren-Lawrence Chaitman LLP94 10-04905 Train Klan, a Partnership, et al. Chaitman LLP95 10-04912 Harry Smith Revocable Living Trust, et al. Chaitman LLP96 10-04914 Edyne Gordon Chaitman LLP97 10-04920 Glenhaven Limited, et al. Chaitman LLP98 10-04921 Stanley T. Miller Dentons US LLP99 10-04925 Alvin Gindel Revocable Trust, a Florida trust, et al. Dentons US LLP

100 10-04931 Cantor, et al. Winston & Strawn LLP101 10-04954 Ruth Kahn Lax & Neville, LLP102 10-04956 D. M. Castelli Chaitman LLP103 10-04961 Sylvan Associates LLC f/k/a Sylvan Associates Ltd Partnership, et al. Chaitman LLP104 10-04979 James M. New Trust dtd 3/19/01, et al. Chaitman LLP105 10-04986 Sharon Knee Pro Se106 10-04991 Guiducci Family Limited Partnership, et al. Chaitman LLP107 10-04995 Trust U/Art Fourt O/W/O Israel Wilenitz, et al. Chaitman LLP108 10-05026 Walter Freshman Trust A, a Florida trust, et al. Chaitman LLP109 10-05037 Barbara L. Savin Chaitman LLP110 10-05048 Estate of Armand L. Greenhall, et al. Law Office of Joseph F. KeenanLax & Neville, LLP111 10-05068 D. Stone Industries, Inc. Profit Sharing Plan, et al. Frejka PLLC112 10-05079 Estate of James M. Goodman, et al. Chaitman LLP113 10-05083 The S. James Coppersmith Charitable Remainder Unitrust, et al. Folkenflik & McGerity114 10-05084 Daniel Stone Frejka PLLC115 10-05094 The Estate of Carolyn Miller, et al. Bernfeld, DeMatteo & Bernfeld, LLP116 10-05104 The Gloria Albert Sandler and Maurice Sandler Revocable Living Trust Chaitman LLP117 10-05116 Leonard J. Oguss Trust, et al. Chaitman LLP118 10-05118 Charlotte M. Marden Pryor Cashman LLP119 10-05124 The Lawrence J. Ryan and Theresa R. Ryan Revocable Living Trust, et al. Chaitman LLP120 10-05127 Atwood Management Profit Sharing Plan & Trust, etc., et al. Chaitman LLP121 10-05128 JABA Associates LP, et al. Chaitman LLP122 10-05130 Barbara Kotlikoff Harman Chaitman LLP123 10-05133 Boyer H. Palmer, individually, et al. Chaitman LLP124 10-05144 Estate of Bernard J. Kessel, et al. Rosenberg Feldman Smith LLP125 10-05150 Plafsky Family LLC Retirement Plan, Robert Plafsky, et al. Chaitman LLP126 10-05151 Palmer Family Trust, et al. Chaitman LLP




127 10-05157 The Harnick Brothers Partnership, et al. Chaitman LLP128 10-05168 Bernard Marden Profit Sharing Plan, et al. Pryor Cashman LLP129 10-05169 Fairfield Pagma Associates, et al. Lax & Neville, LLP130 10-05184 Laura Ann Smith Revocable Living Trust, et al. Chaitman LLP131 10-05194 Bruce D. Pergament, et al. Pryor Cashman LLP132 10-05196 Whitman 1990 Trust U/A DTD 4/13/90, et al. Chaitman LLP133 10-05209 Lapin Children LLC Dentons US LLP134 10-05236 Toby T. Hobish, et al. Dentons US LLP135 10-05255 Stefanelli Investors Group, et al. DelBello Donnellan Weingarten Wise & Wiederkehr LLP136 10-05257 Edward A. Zraick, Jr., individually and as joint tenant, et al. Hunton Andrews Kurth LLP137 10-05259 Stanley I. Lehrer, et al. Dentons US LLPPro Se138 10-05285 Joan L. Fisher, both in her indvdl cap, etc., et al. Yeskoo Hogan & Tamlyn LLP139 10-05286 Legacy Capital Ltd., et al. Stevens & Lee P.C.140 10-05312 Doron Tavlin Trust U/A 2/4/91, et al. Chaitman LLP141 10-05377 Richard G. Eaton Chaitman LLP142 10-05380 Srione, LLC, an Idaho limited liability company, et al. Law Offices of Stephen Goldstein

Stillman & Associates143 10-05384 Neil Reger Profit Sharing Keogh, et al. Dentons US LLP144 10-05394 Richard M. Glantz, et al. Law Office of Richard E. Signorelli145 10-05420 Gunther K. Unflat, et al. Chaitman LLP146 10-05435 Keith Schaffer, et al. Chaitman LLP147 10-05439 Avram J. Goldberg, individually and in his capacity as trust officer Pryor Cashman LLP


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