UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION CORPORATION, Adv. Pro. No (BRL) SIPA Liquidation

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1 BAKER & HOSTETLER LLP Presentment Date: June 29, Rockefeller Plaza Time: 12:00 p.m. New York, NY Telephone: (212) Objections Due: June 29, 2011 Facsimile: (212) Time: 11:00 a.m. David J. Sheehan Oren J. Warshavsky Anjula Garg Adam B. Oppenheim Jennifer M. Walrath Geoffrey A. North Keith R. Murphy Marc S. Skapof Attorneys for Irving H. Picard, Esq., Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION CORPORATION, Plaintiff-Applicant, v. Adv. Pro. No (BRL) SIPA Liquidation (Substantively Consolidated) BERNARD L. MADOFF INVESTMENT SECURITIES LLC, Defendant. In re: BERNARD L. MADOFF, Debtor. IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. No (BRL) Plaintiff, v. HSBC BANK PLC, et al., Defendants.

2 TRUSTEE S MOTION UNDER THE INTER-AMERICAN CONVENTION ON LETTERS ROGATORY AND ADDITIONAL PROTOCOL WITH ANNEX AND RULES 4(f)(1) AND 4(h)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR AN ORDER ISSUING A LETTER OF REQUEST FOR SERVICE ABROAD OF JUDICIAL OR EXTRAJUDICIAL DOCUMENTS ON GEO CURRENCIES LTD. S.A. Under the Inter-American Convention on Letters Rogatory and the Additional Protocol with Annex (collectively, the Inter-American Convention ) and Rules 4(f)(1) and 4(h)(2) of the Federal Rules of Civil Procedure (the Federal Rules ), which apply to this adversary proceeding through Rule 7004(a) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), Irving H. Picard, as trustee ( Trustee ) for the substantively consolidated liquidation of the business of Bernard L. Madoff Investment Securities LLC ( BLMIS ), under the Securities Investor Protection Act ( SIPA ) 78aaa et seq., and the estate of Bernard L. Madoff ( Madoff ), individually (collectively, the Debtor ), by and through his undersigned counsel, respectfully files this motion (the Motion ) requesting that the Court enter an order issuing the attached Request for Service Abroad of Judicial or Extrajudicial Documents Pursuant to the Additional Protocol to the Inter-American Convention on Letters Rogatory ( Letter Rogatory or Letter of Request ) 1 for transmittal to the appropriate judicial authority in Panama for the service of judicial documents on defendant Geo Currencies Ltd. S.A. ( Defendant Geo Currencies ). In support thereof, the Trustee respectfully requests as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this adversary proceeding under 28 U.S.C. 1334(b) and 78eee(b)(2)(A) and (b)(4) of SIPA. This is a core proceeding under 28 U.S.C. 157(b)(2)(A) and (O), and venue is proper in this district under 28 U.S.C The statutory predicates for the relief requested are Bankruptcy Rule 7004(a), 1 The terms letter of request and letter rogatory are used interchangeably to denote a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. See 22 C.F.R (2011); U.S. Department of State, Preparation of Letters Rogatory, (last visited April 7, 2011). 2

3 Federal Rules 4(f)(1) and 4(h)(2), and the Inter-American Convention. 2 BACKGROUND 3. On December 11, 2008 (the Filing Date ), Madoff was arrested by federal agents for violations of the criminal securities laws, including, inter alia, securities fraud, investment adviser fraud, and mail and wire fraud. Contemporaneously, the U.S. Securities and Exchange Commission (the SEC ) brought a proceeding in the United States District Court for the Southern District of New York as SEC v. Bernard L. Madoff Investment Securities LLC et al., No. 08 CV (the District Court Proceeding ), which remains pending. The SEC complaint alleges that Madoff and BLMIS engaged in fraud through BLMIS s investment advisory business. 4. On December 12, 2008, the Honorable Louis L. Stanton entered an order appointing Lee S. Richards, Esq. as receiver for the assets of BLMIS (the Receiver ). 5. On December 15, 2008, pursuant to SIPA 78eee(a)(4)(B), the Securities Investor Protection Corporation ( SIPC ) filed an application in the District Court alleging, inter alia, that BLMIS was not able to meet its obligations to securities customers as they came due and, accordingly, its customers needed the protections afforded by SIPA. On that same date, pursuant to SIPA 78eee(a)(4)(A), the SEC consented to a combination of its own action with SIPC s application. 6. Also on December 15, 2008, Judge Stanton granted SIPC s application and entered an order pursuant to SIPA (the Protective Decree ), which, in pertinent part: (a) appointed the Trustee for the liquidation of the business of BLMIS pursuant to SIPA 78eee(b)(3); 2 Organization of American States, Inter-American Convention on Letters Rogatory, Jan. 30, 1975, O.A.S.T.S. No. 43, Additional Protocol to the Inter-American Convention on Letters Rogatory and Annex, May 8, 1979, O.A.S.T.S. No. 56 [hereinafter Inter-American Convention], available at 36.html. 3

4 (b) appointed Baker & Hostetler LLP as counsel to the Trustee pursuant to SIPA 78eee(b)(3); 78eee(b)(4); and (c) removed the case to this Bankruptcy Court pursuant to SIPA (d) removed the Receiver for BLMIS. 7. By orders dated December 23, 2008 and February 4, 2009, respectively, the Bankruptcy Court approved the Trustee s bond and found that the Trustee was a disinterested person. Accordingly, the Trustee is duly qualified to serve and act on behalf of the estate of BLMIS. 8. By virtue of his appointment under SIPA, the Trustee has the responsibility to recover and pay out Customer Property 3 to BLMIS customers, assess claims, and liquidate any other assets of BLMIS for the benefit of the estate and its creditors. The Trustee is in the process of marshalling BLMIS s assets, but such assets will not be sufficient to fully reimburse BLMIS s customers for the billions of dollars they invested through BLMIS. Consequently, the Trustee must use his broad authority as expressed and intended by both SIPA and the Bankruptcy Code to pursue recovery for BLMIS accountholders. 9. In connection with his efforts to recoup billions of dollars of Customer Property, on July 15, 2009, the Trustee filed the Complaint in this action against Alpha Prime Fund Limited ( Alpha Prime ), HSBC Bank plc ( HSBC Bank ), and HSBC Securities Services (Luxembourg) S.A. ( HSSL ). Alpha Prime, an investment fund organized under Bermuda law, maintained a customer account with BLMIS and withdrew millions of dollars from that account. HSBC Bank served as the payee bank for all of the investment funds and entities organized under domestic and/or foreign law for the purpose of investing in BLMIS (the Feeder Funds ), 3 SIPA 78lll(4) defines Customer Property as cash and securities... at any time received, acquired, or held by or for the account of a debtor from or for the securities accounts of a customer, and the proceeds of any such property transferred by the debtor, including property unlawfully converted. 4

5 deposited all monies by the Feeder Funds with BLMIS, and withdrew all monies from BLMIS for the Feeder Funds. HSSL served as sub-custodian and sub-administrator to Alpha Prime, and engaged BLMIS to act as its sub-custodian for Alpha Prime. The Trustee initially filed suit against Alpha Prime, HSBC Bank, and HSSL in order to recover all avoidable transfers. 10. On December 5, 2010, the Trustee filed an amended complaint including new allegations and causes of action against Alpha Prime, HSBC Bank, and HSSL, as well as claims against fifty-seven additional defendants (the Alpha Prime Amended Complaint ). 11. The Trustee named as additional defendants the individuals who created and managed the Feeder Funds and entities for the purpose of investing in BLMIS ( Individual Defendants ); the Feeder Funds; companies that managed and advised the Feeder Funds ( Management Defendants ); companies that owned interests in the Feeder Funds ( Beneficial Owners ); companies that structured financial products that directed hundreds of millions of dollars into Madoff s Ponzi scheme through the Feeder Funds ( Madoff Structured Products ); and affiliates and subsidiaries of HSBC that provided custodian and sub-custodian services and/or administrator and sub-administrator services to the Feeder Funds, marketed various Feeder Funds, transferred all monies between BLMIS and the Feeder Funds, and created and marketed the Madoff Structured Products ( HSBC Defendants ) (collectively, the Additional Defendants ). Alpha Prime, HSBC Bank, HSSL, and the Additional Defendants received hundreds of millions of dollars in transfers from BLMIS, fees and/or disbursements to which they were not entitled and which are composed, in part, of Customer Property (collectively, the Defendants ). 12. In accordance with Bankruptcy Rule 7004(e), the Clerk of the Bankruptcy Court issued a Second Amended Summons and Notice of Pretrial Conference in an Adversary Proceeding (the Summons ) on March 23, Pursuant to an Order of this Court dated March 10, 2011, the Summons is valid for an 18-month period for service on the Defendants. 5

6 13. The Trustee has not yet served the Summons and Complaint on Defendant Geo Currencies, an entity registered in Panama. RELIEF REQUESTED AND SUMMARY OF REASONS THEREFOR 14. Federal Rules 4(f) and 4(h)(2), which apply to this adversary proceeding through Bankruptcy Rule 7004(a), collectively govern service of process upon corporations located in foreign countries. Federal Rule 4(h)(2) requires service on foreign corporations in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(c)(i). The applicable subdivision of Rule 4(f) is 4(f)(1), which allows for service by any internationally agreed means of service that is reasonably calculated to given notice[.] Panama is a party to the Inter-American Convention, 4 which provides for service of process by a Letter of Request (as defined, supra). 15. Service under the Inter-American Convention requires that this Court sign and seal the Letter of Request, which must then be transmitted to the designated U.S. Central Authority under the Inter-American Convention, 5 who must also sign the Letter of Request before transmitting it to the Central Authority in Panama. Once the Central Authority in Panama receives the Letter of Request, it shall transmit same to the appropriate court for processing in accordance with local law. 16. Although this method is time-consuming, service effectuated pursuant to the Letter of Request will necessarily comport with Panamanian and American law. The Trustee, therefore, seeks to effectuate service upon Defendant Geo Currencies pursuant to the Inter- American Convention and Federal Rules 4(f)(1) and 4(h)(2). 17. Accordingly, the Trustee respectfully requests the entry of an order directing that 4 Inter-American Convention, supra note 2. 5 Process Forwarding International ( PFI ) has been contracted by the U.S. Department of Justice to act as the designated Central Authority in the United States for the Inter-American Convention. See U.S Department of State, Service of Judicial Documents Abroad, (last visited April 7, 2011). 6

7 the Letter of Request (a form of which is attached hereto) be signed and issued under the seal of the Court so that it, along with the judicial documents to be served, may be sent via the appropriate governmental channels to a judicial authority in Panama for service upon Defendant Geo Currencies. The documents to be served include the following: (a) (b) Amended Complaint, dated December 5, 2010, with relevant exhibits; Second Summons and Notice of Pretrial Conference in an Adversary Proceeding, dated March 23, 2011; (c) Order Extending the Time for Proper Service of a Summons and the Time for Foreign Defendants to Serve an Answer Under Rules 7004(E) and 7012(A) of the Federal Rules of Bankruptcy Procedure, dated March 10, 2011; (d) Order Granting Trustee s Motion to Establish Procedures for Serving Complaints and Exhibits Filed Under Seal, dated February 17, 2011; and (e) Protective Order and Exhibit A, dated February 16, A proposed order and the Letter of Request are attached to this motion. NOTICE In accordance with Bankruptcy Rule 2002; Bankruptcy Rule 9036, as amended by General Order M-399, dated May 17, 2010; and Federal Rule 5, as made applicable to this motion by Bankruptcy Rule 7005, notice of this Motion will be provided by U.S. mail, postage prepaid; international courier; or to (i) all parties that have filed a notice of appearance in this adversary proceeding; (ii) SIPC; (iii) the SEC; (iv) the Internal Revenue Service; (v) the United States Attorney for the Southern District of New York; and (vi) the Defendants. WHEREFORE, the Trustee respectfully requests that this Court enter an order, substantially in the form of the proposed order attached hereto, issuing the Letter of Request 6 Three copies of the Service Documents will be submitted with the Letter of Request to the appropriate governmental authorities. 7

8 seeking the service of process on Defendant Geo Currencies. WHEREFORE, the Trustee respectfully requests that the Court (a) enter an order substantially in the form attached hereto, granting the relief requested herein; or (b) grant such other and further relief to the Trustee as the Court deems proper. Dated: New York, New York June 13, 2011 Respectfully Submitted, BAKER & HOSTETLER LLP By: /s/ Oren J. Warshavsky Baker & Hostetler LLP 45 Rockefeller Plaza New York, NY Telephone: (212) Facsimile: (212) David J. Sheehan Oren J. Warshavsky Anjula Garg Adam B. Oppenheim Jennifer M. Walrath Geoffrey A. North Keith Murphy Marc S. Skapof Attorneys for Irving H. Picard, Esq. Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC And Bernard L. Madoff 8

9 BAKER & HOSTETLER LLP Presentment Date: June 29, Rockefeller Plaza Time: 12:00 p.m. New York, NY Telephone: (212) Objections Due: June 29, 2011 Facsimile: (212) Time: 11:00 a.m. David J. Sheehan Oren J. Warshavsky Anjula Garg Adam B. Oppenheim Jennifer M. Walrath Geoffrey A. North Keith R. Murphy Marc S. Skapof Attorneys for Irving H. Picard, Esq., Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION CORPORATION, Plaintiff-Applicant, v. Adv. Pro. No (BRL) SIPA Liquidation (Substantively Consolidated) BERNARD L. MADOFF INVESTMENT SECURITIES LLC, Defendant. In re: BERNARD L. MADOFF, Debtor. IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. No (BRL) Plaintiff, v. HSBC BANK PLC, et al., Defendants.

10 NOTICE OF PRESENTMENT OF TRUSTEE S MOTION UNDER THE INTER- AMERICAN CONVENTION ON LETTERS ROGATORY AND ADDITIONAL PROTOCOL WITH ANNEX AND RULES 4(f)(1) AND 4(h)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR AN ORDER ISSUING A LETTER OF REQUEST FOR SERVICE ABROAD OF JUDICIAL OR EXTRAJUDICIAL DOCUMENTS ON GEO CURRENCIES LTD. S.A. PLEASE TAKE NOTICE that upon the motion of Irving H. Picard, as trustee (the Trustee ) for the substantively consolidated liquidation of the business of Bernard L. Madoff Investment Securities LLC ( BLMIS ), under the Securities Investor Protection Act ( SIPA ) 78aaa et seq., and the estate of Bernard L. Madoff ( Madoff ), individually (collectively, the Debtor ), the undersigned will present the attached proposed order (the Order ) to the Honorable Burton R. Lifland, United States Bankruptcy Judge, for signature and entry on June 29, 2011, at 12:00 p.m. PLEASE TAKE FURTHER NOTICE that objections, if any, to the proposed Order ( Objections ), shall (i) be in writing; (ii) conform to the Federal Rules of Bankruptcy Procedure, Local Bankruptcy Rules and General Orders; (iii) specify the name of the objecting party and state with specificity the basis of the Objection(s) and the specific grounds therefor; (iv) be filed in accordance with the electronic filing procedures for the United States Bankruptcy Court for the Southern District of New York, with a proof of service, and a courtesy copy delivered to the Chambers of the Honorable Burton R. Lifland, One Bowling Green New York, New York 10004; and (v) be served upon (a) Baker & Hostetler LLP, counsel for the Trustee, 45 Rockefeller Plaza, New York, New York 10111, Attn: David Sheehan and Marc Hirschfield, and (b) the Securities Investor Protection Corporation, 805 Fifteenth Street, NW, Suite 800, Washington, DC 20005, Attn: Kevin H. Bell, Esq., so as to be received no later than 11:00 a.m. on June 29, PLEASE TAKE FURTHER NOTICE that, in the event any Objections are timely served and filed, a hearing may be held before the Honorable Burton R. Lifland, United States

11 Bankruptcy Judge, at a date to be scheduled by the Court, upon such additional notice as the Court may direct. The moving and objecting parties are required to attend the hearing, and failure to attend in person or by counsel may result in relief being granted or denied upon default.

12 PLEASE TAKE FURTHER NOTICE that unless Objections are timely served and filed, the proposed Order may be signed without a hearing. Dated: New York, New York June 13, 2011 Respectfully Submitted, BAKER & HOSTETLER LLP By: /s/ Oren J. Warshavsky Baker & Hostetler LLP 45 Rockefeller Plaza New York, NY Telephone: (212) Facsimile: (212) David J. Sheehan dsheehan@bakerlaw.com Oren J. Warshavsky owarshavsky@bakerlaw.com Anjula Garg agarg@bakerlaw.com Adam B. Oppenheim aoppenheim@bakerlaw.com Jennifer M. Walrath jwalrath@bakerlaw.com Geoffrey A. North gnorth@bakerlaw.com Keith Murphy kmurphy@bakerlaw.com Marc S. Skapof mskapof@bakerlaw.com Attorneys for Irving H. Picard, Esq. Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC And Bernard L. Madoff

13 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION CORPORATION, Plaintiff-Applicant, v. Adv. Pro. No (BRL) SIPA Liquidation (Substantively Consolidated) BERNARD L. MADOFF INVESTMENT SECURITIES LLC, Defendant. In re: BERNARD L. MADOFF, Debtor. IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. No (BRL) Plaintiff, v. HSBC BANK PLC, et al., Defendants. ORDER ISSUING A LETTER OF REQUEST FOR SERVICE ABROAD OF JUDICIAL OR EXTRAJUDICIAL DOCUMENTS ON GEO CURRENCIES LTD. S.A. Upon the motion (the Motion ), dated June 13, 2011, brought by Irving H. Picard, as trustee (the Trustee ) for the substantively consolidated liquidation of the business of Bernard L. Madoff Investment Securities LLC and the estate of Bernard L. Madoff, individually, seeking entry of an order (the Order ) issuing a Letter of Request (as defined in the Motion) to be transmitted, via the appropriate channels, to the applicable court in Panama, and it appearing that due and sufficient notice of the Motion has been given under the circumstances, and it further appearing that the relief sought in the Motion is appropriate based upon the information provided

14 in the Motion and in the record; and it further appearing that this Court has jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 1334(b) and 157(a); and after due deliberation; and sufficient cause appearing therefor; it is hereby ORDERED that the Motion is granted; and it is further ORDERED that the Letter of Request, in the form attached to this Order, shall be signed and sealed by the Court for transmission to the appropriate judicial authority in Panama so that valid service of process may be effectuated upon Defendant Geo Currencies. Dated: New York, New York June, 2011 HONORABLE BURTON R. LIFLAND UNITED STATES BANKRUPTCY JUDGE 2