`
`BEFORE THE UNITED STATES
`JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
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` MDL Docket # 3076
`
`
`IN RE: FTX CRYPTOCURRENCY
`EXCHANGE COLLAPSE
`LITIGATION
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`REPLY BRIEF IN FURTHER SUPPORT OF MOTION FOR TRANSFER OF ACTIONS
`TO THE SOUTHERN DISTRICT OF FLORIDA, PURSUANT TO 28 U.S.C. § 1407
`FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS
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`Petitioners file this Reply in further support of their Motion to Transfer and Consolidate
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`all Related Actions (the Insiders,1 Brand Ambassadors and Influencers,2 Professional Servicers3
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`and Financiers4) all stemming from the collapse of FTX, to the Southern District of Florida.
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`BACKGROUND
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`Since Petitioners initially moved for consolidation on February 10, 2023, several notable
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`changes have occurred in circumstances surrounding the FTX collapse.
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`First, after many weeks of attempting service, 17 of the 18 FTX Defendants have now all
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`been served in the Garrison (first-filed) matter and The Honorable K. Michael Moore today
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`granted an extension until April 17, 2023, to serve Defendant Shaquille O’Neil (after Petitioners
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`presented evidence he has been evading service) and ordered a Scheduling Conference be held at
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`the earlier of 20 days after Mr. O’Neil’s service or May 8, 2023.
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`1 Defendants Bankman-Fried, Trabucco, Ellison, Singh, Wang, and Friedberg.
`2 Defendants Brady, Bundchen, Curry, Golden State Warriors, O’Neal, Haslem, Ortiz, Lawrence,
`Ohtani, Osaka, David, O’Leary, Paffrath, Stephan, Jikh, Singh, Jung, Lefebvre, Nash, Armstrong,
`Kullberg, and Creators Agency, LLC.
`3 Defendants Armanino, LLP, Prager Metis CPAs, LLC, Fenwick & West LLP.
`4 Defendants Silvergate Bank, Silvergate Capital Corporation, Sequoia Capital Operations, LLC,
`Paradigm Operations LP, Signature Bank, Deltec Bank and Trust Company Limited, Farmington
`State Bank d/b/a Moonstone Bank, Temasek Holdings (Private) Limited, Softbank Vision Fund
`(AIV M2) L.P., Ribbit Capital, L.P., Altimeter Capital Management, LP, Multicoin Capital
`Management LLC, Tiger Global Management, LLC, Sino Global Capital Limited, Softbank
`Group Corp., Thoma Bravo, LP, Alan J. Lane.
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`Case FLS/1:23-cv-20700 Document 21 Filed 03/17/23 Page 2 of 11
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`Second, the legal landscape has expanded. Additional cases from the same underlying
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`nexus of facts have been filed (in the Southern District of Florida, against the FTX Influencers)
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`and additional previously-filed cases have been tagged for potential inclusion in this MDL. All
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`such currently pending cases are reflected, on the updated Schedule of Actions, attached hereto as
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`Exhibit A (the “Related Actions”). The Defendants in those cases fall into four broad groups:
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`Insiders, Brand Ambassadors, Professional Services, and Financiers5.
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`Third, two main Financier Defendants have ceased operations. On March 8, 2023,
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`Silvergate Bank announced that it would wind down operations and liquidate. On March 12, 2023,
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`the New York State Department of Financial Services closed Signature Bank, and the Federal
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`Deposit Insurance Corporation was appointed receiver. See Dkt. 57 at 2-4.
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`Should the Panel grant this Petition and bring all related FTX cases together within this
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`MDL, Petitioners submit the Transferee Court may implement separate tranches (if necessary) to
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`avoid burdening the Related Actions with the Silvergate Bank and Signature Bank closure-related
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`issues. See, e.g., In re January 2021 Short Squeeze Trading Litig., S.D. Fla. Case No. 1:21-md-
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`02989 (The Honorable Chief Judge Cecelia M. Altonaga) (implementing tranches with separate
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`controlling complaints). Alternatively, should the Panel find including these Defendants in
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`liquidation would not advance the objectives of § 1407, Petitioners support excluding these
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`Financier Defendants from the MDL. See In re W. Elec. Co., Inc. Semiconductor Pat. Litig., 415
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`5 Defendants Silvergate Bank, Silvergate Capital Corporation, Sequoia Capital Operations, LLC,
`Paradigm Operations LP, Signature Bank, Deltec Bank and Trust Company Limited, Farmington
`State Bank d/b/a Moonstone Bank, Temasek Holdings (Private) Limited, Softbank Vision Fund
`(AIV M2) L.P., Ribbit Capital, L.P., Altimeter Capital Management, LP, Multicoin Capital
`Management LLC, Tiger Global Management, LLC, Sino Global Capital Limited, Softbank Group
`Corp., Thoma Bravo, LP, Alan J. Lane.
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`2
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`Case FLS/1:23-cv-20700 Document 21 Filed 03/17/23 Page 3 of 11
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`F. Supp. 378, 380 (J.P.M.L. 1976) (excluding certain actions from consolidated pretrial
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`proceedings to best promote efficiency).
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`ARGUMENT
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`I.
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`THE RELATED ACTIONS, OR IN THE ALTERNATIVE, INSIDER AND
`BRAND AMBASSADOR ACTIONS, WARRANT CONSOLIDATION.
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`Pursuant to 28 U.S.C. § 1407(a), the JPML may transfer and consolidate cases where: (1)
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`the cases “involv[e] one or more common questions of fact;” (2) transfer and consolidation or
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`coordination will further “the convenience of parties and witnesses;” and (3) transfer and
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`consolidation or coordination “will promote the just and efficient conduct of [the] actions.”
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`A. The Related Actions Involve Common Questions of Fact.
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`At issue in the Related Actions is the common question of whether FTX’s business
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`practices guided from Miami, Florida, and those of related individuals and entities (insiders,
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`celebrities, and accountants) that promoted the platform and the unregistered securities it offered
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`and sold, were fraudulent, deceptive, or misleading. The few parties opposing centralization argue
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`that the fraud and deception is only generally relevant to the issues in each case and that most of
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`the facts and legal issues are unique. See, e.g., ECF No. 56, at p. 10. This argument ignores,
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`however, the fact that FTX’s alleged fraudulent and deceptive business practices trigger the entire
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`litigation and, to some extent at least, condition the various plaintiffs’ right to recover in all the
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`actions.
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`The nature and quantum of proof of the alleged fraud and deception necessarily depends
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`on and varies with the legal theory of each case. Certainly, not all proof will be common to all
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`actions. For example, the liability of the accountant defendants in the Lam cases may very well
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`turn on operative facts not distinctly relevant to the claims against the Brand Ambassadors in the
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`Garrison cases. Even so, it cannot reasonably be said that the alleged underlying fraud and
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`3
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`deception is entirely irrelevant or non-essential to the establishment of each of the stated cases. To
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`the contrary, the allegations as drafted speak loudly; the facts of the fraud and deception are
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`consistently pleaded in each of the complaints filed in the Related Actions.
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`While the facts surrounding each defendant’s participation in the fraud may vary between
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`defendants, they will share substantial background questions of fact concerning its nature and
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`extent. This strong overlap is sufficient to require these cases to be assigned to one judge for
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`coordinated pretrial proceedings. See In re Penn Central Securities litigation, 322 F. Supp. 1021,
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`1022–23 (J.P.M.L. 1971) (“Although the extent of the factual overlap is not certain, it is sufficient
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`to require these bond cases to be assigned with the other cases for pretrial purposes.”).6
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`B. Centralization Will promote the Just and Efficient Conduct of the Related
`Actions and Will Be More Convenient for the Parties and Witnesses.
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`The parties opposing centralization argue that it will not be more convenient to the parties
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`because it would likely impose onerous, unnecessary burdens on parties with little commonality
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`across the various cases. Actually, the Related Actions present a prime example of the need which
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`gave rise to enactment of §1407. Absent transfer and consolidation, there inevitably would be
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`repetitious depositions of scores of witnesses, examinations of thousands of documents, and other
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`myriad duplications of pretrial proceedings, resulting in a massive, needless waste of time and
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`effort for numerous parties, witnesses, attorneys and judges involved. That waste would be
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`6 The singular FTX Fraud—a massive conspiracy where all defendants in the Related Actions
`played their own role in a unified, common backdrop—differs from products liability cases like In
`re Watson Fentanyl, 883 F. Supp. 2d 1350 (J.P.M.L. 2012), where the Panel only consolidated
`actions brought against one manufacturer of Fentanyl patches and declined to consolidate as to
`competing manufacturers who utilized different manufacturing processes, or patent litigation like
`In re Genetic Techs. Ltd. (%2C179) Pat. Litig., 883 F. Supp. 2d 1337 (J.P.M.L. 2012), where each
`case involved separate alleged instances of patent infringement by different defendants and patent
`litigation was largely an expedited proceeding requiring little, if any, judicial intervention.
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`4
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`exceptionally serious here, due to the unusually complex issues raised. Centralization will also
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`serve the salutary purposes of forestalling conflicting rulings and streamlining pretrial procedure.
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`An equally compelling reason for centralization is the potential for conflicting, inconsistent
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`class determinations by courts in different jurisdictions. See In re Equity Funding Corp. of America
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`Securities Litigation, 375 F. Supp. 1378, 1385–86 (J.P.M.L. 1973) (“We have consistently held
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`that transfer of actions under Section 1407 is appropriate, if not necessary, where the possibility
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`for conflicting, inconsistent class determinations by courts of coordinate jurisdiction exists.”).
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`Except for the Norris and Lucky D cases, each of the other Related Cases contains Rule 23 class
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`allegations based upon FTX’s fraudulent and misleading business practices. The transferee court,
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`with all claims and all parties before it, will have a clear picture of the scope and complexity of
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`the litigation, essential to making class determinations. In re Equity Funding Corp. of America
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`Securities Litigation, 375 F. Supp. at 1386 (“Because of the potential if not likely conflict of class
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`action determinations, we think this litigation should be assigned to a single judge with the sole
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`responsibility for making the class action determinations ‘as soon as practicable. . . .’”).
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`Further, centralization in the Southern District of Florida will serve the convenience of the
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`parties and witnesses and promote the just and efficient conduct of the litigation. That district
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`encompasses Miami, Florida, FTX’s headquarters. See In re M3Power Razor Sys. Mktg. & Sales
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`Pracs. Litig., 398 F. Supp. 2d 1363, 1365 (J.P.M.L. 2005) (“We are persuaded that the District of
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`Massachusetts is an appropriate transferee forum for this litigation. [It] is a likely source of relevant
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`documents and witnesses inasmuch as Gillete’s headquarters are located there.”). Three of the
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`Related Actions, including Garrison, the first-filed action in the country, and Norris, the most
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`procedurally advanced, are already pending there before The Honorable K. Michael Moore. And
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`several of the other judges in the Southern District of Florida have similar experience handling
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`5
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`multi district litigation and highly sophisticated matters. Thus, centralization in this forum would
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`permit the Panel to affect the §1407 assignment to an experienced transferee judge who can steer
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`this litigation on a steady and expeditious course.
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`C. Consolidation and Other Informal Solutions are Insufficient.
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`Defendants contend that the Panel should not centralize this litigation because there are
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`alternatives to centralization “that offer the benefit of efficiency without imposing the burdens of
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`centralization.” [ECF No. 56, at p. 20]. However, the potential consolidation that Defendants
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`suggest of the Norris and Garrison cases in Florida, and Lam cases in California is insufficient to
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`address the risk of duplicative proceedings and inconsistent rulings.
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`Actions still would be proceeding independently in the Northern District of California, the
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`Southern District of Florida, the District of New Jersey, and the Southern District of New York.
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`There are significant efficiencies to be gained, for both the parties and the judicial system, by
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`having only one court become acquainted with and oversee the complex and novel issues involved
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`here. See In re Bear Creek Techs., Inc., (‘722) Patent Litig., 858 F.Supp.2d 1375, 1379-80
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`(J.P.M.L 2012) (“[C]entralization offers substantial savings in terms of judicial economy by
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`having a single judge become acquainted with the complex patented technology and construing
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`the patent in a consistent fashion (as opposed to having six judges separately decide such issues).”).
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`Further, the possibility of using the “first filed” rule to stay subsequently filed, similar actions, or
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`transfer motions and voluntary dismissals in favor of one district, remains far too speculative for
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`the Court to conclude that they offer a reasonable alternative for addressing the multidistrict
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`character of this litigation. See In re Taasera Licensing, LLC, Patent Litigation, MDL No. 3042,
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`2022 WL 3134132, at *1 (JUD. PANEL. MULTI. LIT. Aug. 3, 2022) (“[T]he outcome of the
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`6
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`pending motions to dismiss and/or to transfer remains too uncertain for us to conclude that they
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`offer a reasonable prospect of eliminating the multidistrict character of this litigation.”).
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`II.
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`THE RELATED CASES SHOULD BE TRANSFERRED TO THE SOUTHERN
`DISTRICT OF FLORIDA.
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`The Southern District of Florida is a proper choice for the transferee district and presents
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`several unique advantages. The first-filed Garrison action is pending there,7 as well as the most
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`advanced Norris action. See, e.g., Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir.
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`2005) (“[T]here is a strong presumption across the federal circuits that favors the forum of the
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`first-filed suit under the first-filed rule.”); Zampa v. JUUL Labs, Inc., No. 18-25005-CIV, 2019
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`WL 1777730, at *4 (S.D. Fla. Apr. 23, 2019) (transferring to forum “given the advanced
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`procedural posture of the consolidated action” pending there); see also In re Cutter Lab’ys, Inc.
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`“Braunwald-Cutter” Aortic Heart Valve Prod. Liab. Litig., 465 F. Supp. 1295, 1296 (J.P.M.L.
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`1979) (finding “preferable forum” was where the most “advanced” actions were pending,
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`although “many relevant witnesses and documents” were in other fora).
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`Both cases are materially more advanced than the new cases pending in the Northern
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`District of California, where a recent motion for consolidation and for interim lead counsel was
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`denied as premature, because many Defendants had yet to be served and none had responded to
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`the motion.8 See, e.g., Lam, 3:22-cv-07336-JSC, ECF No. 28. Norris was removed from Florida
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`7 Contrary to claims in one Opposition Brief, Dkt. 61 at 3–4, Garrison was the first matter filed,
`on November 15, 2022, in the Southern District of Florida. Kavuri v. Bankman-Fried et al., 22-
`cv-23817 (S.D. Fla.), followed on November 21, 2022, and Podalsky et al. v. Bankman-Fried et
`al., 22-cv-23983 (S.D. Fla.), on December 7, 2022. After Plaintiffs informally consolidated the
`suits through an amended complaint, Judge Bloom transferred Podalsky to Judge Moore, who
`consolidated it for all purposes with Garrison, which remained open and pending on his docket.
`See Podalsky, ECF No. 7 (“[Garrison] and [Podalsky] have common questions of fact and
`consolidation is appropriate. . . Plaintiff shall file an amended complaint in [Garrison by December
`16, 2022.]”). Plaintiffs complied, and Garrison remains the first-filed, lead action on Exhibit A.
`8 Of the 18 Defendants in Garrison, only O’Neal, who is evading service, remains unserved.
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`7
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`state court and has a motion for remand fully briefed and pending, as well as a motion for partial
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`summary judgment that is ready to be renewed and promptly litigated once a forum is determined.
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`In addition to the work that Plaintiffs’ Counsel in Garrison and Norris have done to
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`advance those matters on the merits, (unlike the work done by counsel in the in California actions,
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`which primarily related to their efforts to seek interim lead counsel status), they have also (1)
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`been in communication with Bankman-Fried’s attorneys, who accepted service of the Garrison
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`complaint; (2) been in communication with the prosecutors in the Southern District of New York
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`regarding coordinating these proceedings; (3) been in communication and preliminary settlement
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`discussions with certain FTX Insiders; (4) served discovery in Norris, including third party
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`subpoenas, on common merits issues; (5) begun coordinating a Joint Scheduling Conference with
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`Defendants; and (6) brought this Petition to coordinate all civil litigation, now spread across the
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`country, arising from the collapse of FTX in an orderly and efficient manner.
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`Finally, despite multiple Defendants and theories, FTX is the common nexus amongst all
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`cases, and its headquarters, the Southern District of Florida, remains a logical choice. Regardless
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`of the chosen location, many parties will undoubtedly have to travel at times, but modern
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`technology and transportation has all but negated any geographic preference resulting therefrom.9
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`Moreover, “since the parties and witnesses usually do not personally participate in pretrial
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`conferences or hearings, it is unlikely that [the Defendants] or any of [the] witnesses will ever
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`have to travel to the transferee forum. And, in any event, their depositions will probably occur in
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`proximity to where they reside.” In re Radiation Incident at Washington, D. C. on Apr. 5, 1974,
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`9 See Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 259 (11th Cir. 1996) (holding that “modern
`methods of transportation and communication” “significantly” reduced any burden occasioned by
`litigating outside of Michigan) (citations and quotation marks omitted); R & R Games, Inc. v.
`Fundex Games, Ltd., No. 8:12-CV-01957-T-27, 2013 WL 784397, at *5 (M.D. Fla. Mar. 1, 2013).
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`8
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`400 F. Supp. 1404, 1406 (J.P.M.L. 1975); see also In re Phenylpropanolamine (PPA) Products
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`Liab. Litig., 173 F. Supp. 2d 1377, 1379 (J.P.M.L. 2001) (“[S]ince Section 1407 transfer is for
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`pretrial proceedings only, there is usually no need for the parties and witnesses to travel to the
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`transferee district for depositions or otherwise. Furthermore, the judicious use of liaison counsel,
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`lead counsel and committees of counsel will eliminate the need for most counsel ever to travel to
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`the transferee district.”) (internal citations omitted). And all cases pending in the Northern District
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`of California have been related by the Court. See Lam, Case No. 3:22-cv-07336-JSC, ECF No.
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`28.
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`Likewise, Federal courts are adept at handling claims that arise under the laws of other
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`jurisdictions, so the existence of both Florida and California state law claims need not sway the
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`Panel’s choice. Fruitstone v. Spartan Race Inc., 464 F. Supp. 3d 1268, 1284 (S.D. Fla. 2020). No
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`Respondent mentions how the comparative docket statistics favor Florida, given the Northern
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`District of California’s significantly heavier caseload. MDLs are sent to districts that “(i) [are]
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`not currently overtaxed with other multidistrict dockets, and (ii) possess[] the necessary resources
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`to be able to devote the substantial time and effort to pretrial matters that [a] complex docket is
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`likely to require.” In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 173 F. Supp. 2d at 1380.
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`While the Northern District of California currently has 17 MDLs pending, “covering what
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`appears to be thousands of individual cases,” [ECF No. 61, at 19], the Southern District of Florida
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`only has 9, many of which are smaller MDLs or are in the process of winding down.10 In addition
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`to all other factors favoring Florida, it is “the best forum” for this MDL because it has the
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`available time and resources to manage the litigation, particularly when, as explained in
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`10 Pending MDLs By District as of February 16, 2023, JPML.USCOURTS.GOV,
`https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-February-
`16-2023.pdf.
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`9
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`Case FLS/1:23-cv-20700 Document 21 Filed 03/17/23 Page 10 of 11
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`Petitioners’ initial Memorandum, ECF No. 1-2 at 12–15, there are Judges well-versed in the
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`issues raised in these actions due to the substantive issues raised before them who are either not
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`currently presiding over any MDLs, are presiding over a smaller MDL, or are in the process of
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`winding down an MDL. See In re: Bank of Am. Wage & Hour Emp. Pracs. Litig., 706 F. Supp.
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`2d 1369, 1372 (J.P.M.L. 2010) (finding “best forum” to be one that “has docket conditions that
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`are significantly more favorable than the other primary contenders for th[e] litigation”).
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`Petitioners do not dispute that any of the Judges referenced in the Parties’ submissions
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`are exceptionally qualified to oversee this MDL. However, the Southern District of Florida is the
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`more appropriate forum for this MDL, particularly considering that, in addition to having the time
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`and resources to preside over this MDL, some of its judges, “through [their] supervision of the []
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`actions now pending there and [the] prior related action[s], ha[ve] already become familiar with
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`the issues involved in this litigation,” including those raised in both the FTX litigation and the
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`similar Voyager Digital Crypto litigation (The Honorable Roy K. Altman), which raises many of
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`the same complex questions surrounding these very similar, unregistered, and largely unregulated
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`cryptocurrency trading platforms, ECF No. 1-2 at 12–15, “and [are] therefore in the best position
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`to supervise it to a just and expeditious conclusion.” In re Multi-Piece Rim Prod. Liab. Litig., 464
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`F. Supp. 969, 975 (J.P.M.L. 1979).11
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request the Panel transfer and consolidate
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`or coordinate all FTX Related Actions to the Southern District of Florida for pretrial purposes.
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`11 See also In re C.H. Robinson Worldwide, Inc., Overtime Pay Litig., 502 F. Supp. 2d 1347, 1348
`(J.P.M.L. 2007) (“the transferee judge to whom we are assigning this litigation has developed a
`familiarity with the issues, parties, and counsel involved in these actions through presiding over
`two related actions for the past five years”).
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`10
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`Case FLS/1:23-cv-20700 Document 21 Filed 03/17/23 Page 11 of 11
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`In re: FTX Cryptocurrency Exchange Collapse Litigation
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`Dated: March 17, 2023
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`Respectfully submitted,
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`
`
`By: /s/ Adam Moskowitz
`Adam M. Moskowitz
`Joseph M. Kaye
`THE MOSKOWITZ LAW FIRM, PLLC
`2 Alhambra Plaza, Suite 601
`Coral Gables, FL 33134
`Telephone: (305) 740-1423
`adam@moskowitz-law.com
`joseph@moskowitz-law.com
`
`By: /s/ David Boies
`David Boies
`Alexander Boies
`Brooke Alexander
`BOIES SCHILLER FLEXNER LLP
`333 Main Street
`Armonk, NY 10504
`Phone: (914) 749–8200
`dboies@bsfllp.com
`aboies@bsfllp.com
`balexander@bsfllp.com
`
`By: /s/ Stephen Neal Zack
`Stephen Neal Zack
`BOIES SCHILLER FLEXNER LLP
`100 SE 2nd St., Suite 2800
`Miami, FL 33131
`Office: 305-539-8400
`szack@bsfllp.com
`
`By: /s/Jose M. Ferrer
`Jose M. Ferrer
`MARK MIGDAL & HAYDEN
`80 S.W. 8th Street, Suite 1999
`Miami, Florida 33130
`Telephone: (305) 374-0440
`jose@markmigdal.com
`eservice@markmigdal.com
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`Co-Counsel for Petitioners, Edwin Garrison,
`Gregg Podalsky, Skyler Lindeen, Alexander
`Chernyavksy, Sunil Kavuri, Gary Gallant, and
`David Nicol
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`11
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