case 1:09-cv-04471-tpg document 60 filed 11/07/12 ... - gcg

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK ANDREA BARRON, on behalf of herself and all others similarly situated, Plaintiff,

v.

ROMAN IGOLNIKOV, SHELDON S. GORDON, MATTHEW STADTMAUER, UNION BANCAIRE PRIVÉE, UNION BANCAIRE PRIVÉE ASSET MANAGEMENT LLC, UBPI HOLDINGS, INC., DANIEL DE PICCIOTTO, MICHAEL DE PICCIOTTO, GUY DE PICCIOTTO, and CHRISTOPHE BERNARD, Defendants.

Civil Action No. 09-CV-4471 (TPG)

ECF Case

DECLARATION OF GERALD H. SILK IN SUPPORT OF (A) PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION

SETTLEMENT AND APPROVAL OF PLAN OF ALLOCATION AND (B) PLAINTIFF’S COUNSEL’S MOTION FOR AN AWARD OF

ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES

GERALD H. SILK declares as follows:

1. I am a member of the law firm of Bernstein Litowitz Berger & Grossmann LLP

(“BLB&G” or “Plaintiff’s Counsel”). BLB&G is counsel to plaintiff Andrea Barron

(“Plaintiff”), and the Settlement Class in the above-captioned class action (the “Action”). I have

Case 1:09-cv-04471-TPG Document 60 Filed 11/07/12 of 29

2

personal knowledge of the matters set forth herein based on my participation in the prosecution

and settlement of the Action.1

2. I respectfully submit this Declaration in support of Plaintiff’s motion for final

approval of the proposed settlement (the “Settlement”) that will resolve the claims asserted in

this Action on behalf of a class of all persons and entities who held limited partnership interests

in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby (the “Settlement

Class”).2 The Court preliminarily approved the Settlement, certified the Settlement Class for

purposes of the Settlement only, and set the date for the Settlement Hearing in its Order

Preliminarily Approving Proposed Settlement and Providing for Notice dated October 1, 2012

(ECF No. 55) (the “Preliminary Approval Order”).3

3. I also respectfully submit this Declaration in support of Plaintiff’s Counsel’s

motion for an award of attorneys’ fees and reimbursement of litigation expenses (the “Fee and

Expense Application”).

I. TERMS OF THE SETTLEMENT AND NOTICE

4. Plaintiff has succeeded in obtaining a recovery of $6,900,000 in cash (the

“Settlement Amount”) from Defendants, which has been deposited into an interest-bearing

1 Unless otherwise noted, capitalized terms have the meanings ascribed to them in the Stipulation and Agreement of Settlement dated September 12, 2012 (the “Stipulation”) previously filed with the Court (ECF No. 52-1). 2 As discussed below, excluded from the Settlement Class are (a) certain persons and entities affiliated with the Defendants that are excluded from the class by definition, (b) persons and entities that previously submitted a release of claims concerning Selectinvest ARV LP’s investment in Ascot Partners L.P. (the “Ascot Fund”), and (c) persons and entities excluded from the Settlement Class pursuant to request. 3 The Court initially entered a version of the Preliminary Approval Order on September 28, 2012 (ECF No. 54). The Court entered the current, amended version of the Preliminary Approval Order on October 1, 2012 (ECF No. 55), scheduling the Settlement Hearing for December 12, 2012 at 4:30 p.m.


3

escrow account (the “Settlement Fund”) for the benefit of the Settlement Class. As set forth in

the Stipulation, in exchange for payment of the Settlement Amount, the proposed Settlement will

release all claims asserted by Settlement Class Members in the Action.

5. The Settlement provides a very positive outcome to the litigation for Settlement

Class Members, particularly in light of the significant risks of the litigation. Based on

information obtained from Defendants concerning the total losses suffered by Settlement Class

Members in connection with Selectinvest ARV LP’s investment in the Ascot Fund, the $6.9

million Settlement Amount obtained represents approximately 20% of those losses.

6. This recovery for the benefit of the Settlement Class is a particularly

extraordinary achievement, in light of the fact that the Action had been dismissed in its entirety

and with prejudice by this Court in 2010. At the time the Settlement was achieved, there was a

very significant risk that there would be no recovery at all in the Action. On March 10, 2010,

this Court dismissed the Complaint in its entirety on the grounds that the claims were preempted

by both the Securities Litigation Uniform Standards Act (“SLUSA”), 15 U.S.C. §§ 78bb(f),

77p(b) and New York State’s Martin Act, N.Y. Gen. Bus. Law §§ 352 et seq. Plaintiff was

pursuing an appeal of that dismissal before the Court of Appeals for the Second Circuit, (which

was fully briefed and heard by March 1, 2011), but Plaintiff and Plaintiff’s Counsel recognized

the significant risk that the Court’s dismissal could have been sustained on appeal, in which case

the Action would be terminated without any recovery. Even if the Court of Appeals had

reversed the dismissal, in part or in whole, Plaintiff and Plaintiff’s Counsel believed they would

still face substantial risks after remand, including risks in establishing jurisdiction over the

foreign defendants and establishing that Defendants were grossly negligent, a requirement for

liability under the Selectinvest ARV LP partnership agreement. In light of these substantial


4

risks, Plaintiff and Plaintiff’s Counsel believe that the proposed Settlement is a very positive

result for Settlement Class Members and in the best interests of the Settlement Class.

7. At the time the Settlement was agreed to, Plaintiff and Plaintiff’s Counsel had a

clear understanding of the strengths and weaknesses of the case. Plaintiff’s Counsel had: (a)

conducted a thorough investigation of the claims asserted in the Complaint, including

researching UBP’s partnership agreements, public filings and press releases, and numerous news

stories related to Bernard L. Madoff (“Madoff”), the Ascot Fund and Defendants’ role in

investments with Madoff, as well as interviewing former employees of Defendants regarding the

allegations set forth in the Complaint; (b) conducted extensive legal analysis of Plaintiff’s and

the class’s claims against Defendants; (c) drafted the Complaint based on this investigation and

analysis; (d) opposed Defendants’ motions to dismiss; (e) researched, prepared and argued

Plaintiff’s appeal of the Dismissal Order before the Second Circuit; and (f) engaged in lengthy,

arm’s-length settlement discussions with Defendants to achieve the Settlement.

8. The terms of the Settlement are set forth in the Stipulation and are summarized in

the Notice of (I) Pendency of Class Action and Proposed Settlement, (II) Settlement Fairness

Hearing, and (III) Motion for Attorneys’ Fees and Reimbursement of Litigation Expenses

Addressed to Identified Settlement Class Members (the “Settlement Notice”). On October 11,

2012, the Settlement Notice, the Claim Form and Release (“Claim Form”) and a cover letter to

Settlement Class Members (collectively, the “Claim Packet”) were mailed by The Garden City

Group, Inc. (“GCG”), the Claims Administrator in the Action, to Settlement Class Members,

pursuant to the Court’s Preliminary Approval Order. See Affidavit of Jose C. Fraga Regarding

(A) Mailing of Notices; (B) Publication of the Summary Notice; and (C) Report on Requests for

Exclusion Received to Date (“Fraga Aff.”), attached hereto as Exhibit 1, at ¶¶ 2-4.


5

9. In addition, on October 24, 2012, the Summary Notice of (I) Pendency of Class

Action and Proposed Settlement, (II) Settlement Fairness Hearing, and (III) Motion for

Attorneys’ Fees and Reimbursement of Litigation Expenses (the “Summary Notice”) was

published in the international edition of The Wall Street Journal and transmitted over the PR

Newswire. Id. at ¶ 8. GCG also posted information regarding the Settlement on the website

page established for the Action, www.gcginc.com/cases/barron-ubp, including downloadable

copies of the Settlement Notice, Claim Form, and the Stipulation. Id. at ¶ 10.4 Plaintiff’s papers

in support of her motion for final approval of the Settlement and Plaintiff’s Counsel’s papers in

support of its motion for an award of attorneys’ fees and reimbursement of expenses are also

being posted on that website page.

10. The Settlement Notice advised all recipients of, among other things: (a) the

definition of the Settlement Class; (b) a summary of the terms of the Settlement and the releases

to be provided in connection with the Settlement; (c) Settlement Class Members’ right to exclude

themselves from the Settlement Class; (d) Settlement Class Members’ right to object to any

aspect of the Settlement, the Plan of Allocation, or the Fee and Expense Application; and (e) the

manner for submitting a Claim Form in order to be eligible for a payment from the proceeds of

the Settlement.

11. The Court-ordered deadline for filing objections to the Settlement, the Plan of

Allocation or the Fee and Expense Application, or for requesting exclusion from the Settlement

Class, is November 21, 2012. To date, Plaintiff’s Counsel has not received any objections and

no requests for exclusion have been submitted. Plaintiff will address any objections and requests

4 Copies of the Settlement Notice and Claim Form were also made available on Plaintiff’s Counsel’s website, www.blbglaw.com.


6

for exclusion that may be received in reply papers to be filed on December 5, 2012, as provided

for in the Preliminary Approval Order.

12. In addition, pursuant to the Preliminary Approval Order, on October 11, 2012,

GCG mailed copies of a Notice of Ineligibility (the “Barred Excluded Persons Notice”) and the

Settlement Notice to all Barred Excluded Persons. See Fraga Aff. at ¶¶ 5-7. The Barred

Excluded Persons are persons or entities who were identified by Defendants as having held

limited partnership interests in Selectinvest ARV LP as of December 11, 2008 but who

Defendants have represented had executed a release of claims, which include the claims covered

by this Action, against UBPAM and/or one or more of the other Released Defendant Persons

concerning Selectinvest ARV LP's investments in the Ascot Fund (an “Ascot Prior Release”).

Additionally, pursuant to the Preliminary Approval Order, Defendants were required to mail a

Notice of Discontinuance to investors in certain of the Other Funds who had previously received

a written communication from Defendants apprising them of the pendency of this Action,

informing them of the Settlement and that only Settlement Class Members will be eligible for

payment under the Settlement and will be releasing claims under the Settlement, if it is approved.

13. At the Settlement Hearing scheduled for December 12, 2012, the Parties will

request that the Court enter a judgment approving the terms of the Settlement and the Stipulation

as fair, reasonable and adequate. If the Settlement is approved, upon the Effective Date of the

Settlement, the claims asserted on behalf of the Settlement Class in the Action shall be released

as to all Defendants and other Released Defendant Persons, subject to the terms of the

Stipulation. In addition, following the Effective Date of the Settlement, the Parties will stipulate

to the dismissal of Plaintiff’s appeal from this Court’s Opinion dated March 10, 2010 (ECF No.

48) and the clerk’s judgment dated March 15, 2010 (ECF No. 49) granting Defendants’ motions


7

to dismiss and dismissing the Action in its entirety (collectively, the “Dismissal Order”) and the

Dismissal Order shall thereafter also remain in effect as a final judgment of the Court.

14. For the reasons set forth below, Plaintiff and Plaintiff’s Counsel respectfully

submit that the terms of the Settlement are fair, reasonable and adequate in all respects and,

pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, should be approved by the Court.

15. For creating this substantial benefit for the Settlement Class, Plaintiff’s Counsel

seeks a fee of 30% of the Settlement Fund, plus reimbursement of litigation expenses in the

amount of $56,076.56. Plaintiff’s Counsel’s request, which is consistent with the retainer

agreement negotiated with Plaintiff and her advisors, has been approved by Plaintiff, and is

within the reasonable range of fees typically awarded in class actions in this and other Circuits.

The requested fee is also reasonable when viewed in light of the time expended by Plaintiff’s

Counsel in prosecuting the Action, as it represents a multiplier of only 1.78 on Plaintiff’s

Counsel’s lodestar of $1,162,463.75, which is at the low end of the range found reasonable and

appropriate in this and other Circuits.

II. HISTORY OF THE ACTION AND THE ALLEGATIONS OF THE COMPLAINT

A. Background

16. Defendant Union Bancaire Privée, UBP SA (“UBP”) and certain of its

subsidiaries and affiliates including Defendants Union Bancaire Privée Asset Management LLC

(“UBPAM”) and UBPI Holdings, Inc. (“UBPIH”), offered or managed a series of investment

funds, including the UBP Funds (defined below). Individual Defendants Roman Igolnikov,

Sheldon S. Gordon, Matthew Stadtmauer, Daniel de Picciotto, Michael de Picciotto, Guy de

Picciotto, and Christophe Bernard were officers of UBP and/or UBPAM. As alleged in the

Complaint, Defendants caused a material amount of the investment capital of the UBP Funds to


8

be invested with the Ascot Fund or other “feeder” funds, which in turn invested in Bernard L.

Madoff Investment Securities LLC (“BMIS”), an investment advisory service founded by

Madoff. On December 11, 2008, Madoff was arrested by federal authorities for operating a

massive Ponzi scheme, and Madoff and BMIS were charged with securities fraud.

Subsequently, the UBP Funds’ positions in the Ascot Fund were written down to zero.

B. Plaintiff’s Counsel’s Investigation

17. Prior to the filing of the Complaint in this Action, Plaintiff’s Counsel conducted a

thorough investigation of the claims asserted including analyzing the terms of the Selectinvest

ARV LP partnership agreement; researching and obtaining as much information as possible

about the other UBP Funds and their respective agreements; reviewing Defendants’ public filings

and press releases and numerous news stories related to Madoff, the Ascot Fund and Defendants’

role in the investments with Madoff and other public information; conducting investigative

interviews with former employees of Defendants UBP and UBPAM; and undertaking a detailed

legal analysis of the potential claims against Defendants and their potential defenses.

C. The Complaint

18. On May 8, 2009, Plaintiff, an investor in Selectinvest ARV LP, filed the Class

Action Complaint (the “Complaint”) asserting claims for breach of fiduciary duty, gross

negligence and unjust enrichment against Defendants on behalf of a putative class of persons and

entities who acquired and/or held limited partnership interests or other investment interests in

Selectinvest ARV LP or ten other UBP Funds as of December 11, 2008 and were damaged thereby

(the “Putative Litigation Class”). The other funds included in the Complaint were Selectinvest

ARV II Ltd., Selectinvest ABF Ltd., UBP Multi-Strategy Alpha Fund, DINVEST – Total Return,

DINVEST – Concentrated Opportunities, DINVEST – Select I, DINVEST – Select II, DINVEST


9

– Select III, DINVEST – Concentrated Opportunities III Equity, and TrendSquare I (collectively,

the “Other Funds” and with Selectinvest ARV LP, the “UBP Funds”).

19. The Complaint alleges that Defendants mismanaged the UBP Funds by investing a

portion of the assets of each of the UBP Funds with certain “feeder” hedge funds, including the

Ascot Fund, which in turn placed their assets solely or primarily under management with BMIS.

The Complaint alleges that Defendants breached their fiduciary obligations to the Putative

Litigation Class, or aided and abetted in breaches of fiduciary duty, by failing to perform adequate

due diligence into BMIS and failing to monitor the UBP Funds’ investments with BMIS; that

Defendants were grossly negligent in their management and monitoring of the Putative Litigation

Class’s investments; and that UBP and UBPAM were unjustly enriched because they reaped

substantial fees and other pecuniary benefits based on the purported value of the portions of the

UBP Funds’ holdings invested with Madoff, which were, in fact, worthless and fictitious.

D. The Motions to Dismiss and Motion to Consolidate

20. On June 1, 2009, Defendants UBPAM, Igolnikov, Gordon, and Stadtmauer filed a

motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6) on the grounds that (a) the Action was preempted by SLUSA; (b) the Action was

preempted by the Martin Act; (c) Plaintiff lacked standing to assert claims on behalf of investors

in the Other Funds; and (d) Plaintiff’s claims were barred by provisions of the limited

partnership agreement of Selectinvest ARV LP. ECF Nos. 12-14. On June 9, 2009, Defendant

UBP filed a motion to quash service of process pursuant to Federal Rule of Civil Procedure

12(b)(5) or, in the alternative, to dismiss the Action pursuant to Rules 12(b)(1) and 12(b)(6).

ECF Nos. 17-18. UBP asserted that it had not been properly served under the Hague Convention

and it joined in the other Defendants’ arguments for dismissal under Rules 12(b)(1) and 12(b)(6).


10

21. On June 18, 2009, Plaintiff filed her memorandum of law in opposition to

Defendants’ motions to dismiss. ECF No. 25. The extensively researched memorandum

prepared by Plaintiff’s Counsel argued (a) that SLUSA was inapplicable because the investments

of members of the Putative Litigation Class were not “covered securities” under the statute and

that the case involved duties owed by an investment manager to its clients rather than

misstatements in connection with a “covered security”; (b) that the scope of Martin Act

preemption is limited to claims for securities fraud and deception, therefore, Plaintiff’s common

law claims – based on alleged breaches of duty and gross negligence – were not preempted; (c)

that Plaintiff had standing to represent all absent members of the Putative Litigation Class; and

(d) that the Complaint adequately alleged gross negligence.

22. On June 29, 2009, Defendants UBP, UBPAM, Igolnikov, Gordon, and

Stadtmauer submitted their reply memorandum in further support of their motions to dismiss.

ECF No. 29. On July 6, 2009 and July 13, 2009, Defendant Michael de Picciotto and Defendants

Daniel de Picciotto, Guy de Picciotto, and Christophe Bernard filed their respective motions to

dismiss pursuant to Rules 12(b)(1) and 12(b)(6), joining in the previously filed motions to

dismiss. ECF Nos. 31, 40.

23. On July 9, 2009, Plaintiff filed a motion for appointment of Plaintiff’s Counsel as

counsel for the Putative Litigation Class on an interim basis pursuant to Federal Rule of Civil

Procedure 23(g)(3) and consolidating the case captioned Farrell, et al. v. Union Bancaire Privée,

at al., 09 Civ. 6043 (S.D.N.Y.) and all other related actions pursuant to Federal Rule of Civil

Procedure 42(a). ECF Nos. 35-37. On July 27, 2009, Defendants filed their opposition to

Plaintiff’s motion to designate interim class counsel and consolidate related cases. ECF No. 44.


11

On August 3, 2009, Plaintiff submitted a reply memorandum of law and declaration in support of

the motion. ECF Nos. 45, 46.

24. On March 10, 2010, the Court issued an Opinion granting the motions to dismiss,

dismissing the Action in its entirety on the grounds that Plaintiff’s claims were precluded by

SLUSA and were preempted by New York’s Martin Act. ECF No. 48. The Judgment granting

Defendants’ motions to dismiss was entered by the Clerk of the Court on March 15, 2010. ECF

No. 49. The Court did not rule on Plaintiff’s motion to designate interim class counsel and

consolidate related actions and the Putative Litigation Class was never certified by the Court.

E. Plaintiff’s Appeal to the Second Circuit

25. On April 13, 2010, Plaintiff filed a Notice of Appeal of the Dismissal Order to the

United States Court of Appeals for the Second Circuit.

26. On August 6, 2010, Plaintiff filed her appellant’s brief in the Second Circuit.

Plaintiff argued that SLUSA did not apply to bar a state-law class action in which Defendants

were not alleged to have made any false statements in connection with covered securities and

that the Martin Act should not be interpreted to preempt common law claims by private

individuals that do not allege deceitful practices in the sale of securities. Prior to filing her brief,

Plaintiff’s Counsel contacted Andrew Cuomo, the Attorney General of the State of New York at

that time, and requested that the Attorney General file an amicus curiae brief regarding the scope

of the Martin Act. Plaintiff’s Counsel and a member of the Office of the Attorney General had

several communications regarding the potential amicus curiae brief. On August 13, 2010, the

Attorney General for the State of New York did file an amicus curiae brief, providing further

support for Plaintiff’s appeal of the Court’s opinion with respect to Martin Act preemption.

27. On December 2, 2010, Defendants filed their appellees’ brief, addressing the

Martin Act and SLUSA grounds for dismissal, and also arguing that there is no subject matter


12

jurisdiction over the claims of investors in the UBP Funds other than Selectinvest ARV LP

because Plaintiff lacked standing to bring those claims, an issue not addressed by this Court in its

decision on the motions to dismiss. On January 7, 2011, Plaintiff filed her reply brief on the

appeal. Pursuant to Federal Rule of Appellate Procedure 28(j), between January 25, 2011 and

June 2, 2011, Plaintiff’s Counsel filed four letters citing and explaining recent supplemental

authorities in support of her appeal or responding to Defendants’ letters citing supplemental

authorities that they contended supported their positions. On March 1, 2011, the Second Circuit

heard oral argument on Plaintiff’s appeal of the Dismissal Order.

28. On December 20, 2011, the New York State Court of Appeals issued an opinion

in Assured Guaranty (UK) Ltd. v. J.P. Morgan Inv. Mgmt. Inc., No. 227 (N.Y. Dec. 20, 2011)

definitively establishing that New York’s Martin Act does not preempt common law claims. On

that same day, Plaintiff’s Counsel filed a Rule 28(j) letter informing the Second Circuit of that

opinion, and Defendants’ Counsel filed a Rule 28(j) letter agreeing with Plaintiff that Assured

Guaranty removed the Martin Act preemption issue from the case. However, the issue of

SLUSA preemption and subject-matter jurisdiction as grounds for dismissal remained very

significant risks for Plaintiff on appeal.

29. The appeal was under consideration by the Second Circuit at the time the

agreement in principle to settle was reached on February 27, 2012.

III. SUMMARY OF THE MAJOR RISKS FACED BY PLAINTIFF IN THE ACTION

30. At the time the agreement in principle to settle the Action was reached, Plaintiff

and Plaintiff’s Counsel had a clear understanding of the strengths and weaknesses of Plaintiff’s

position. Indeed, by that time, the Action had been dismissed on the merits and the Parties had

fully briefed and argued the appeal of that decision. If Plaintiff did not prevail on the appeal, she


13

would not even have the opportunity to present her case to the trier of fact. If Plaintiff did

prevail on appeal, Plaintiff and Plaintiff’s Counsel recognized that they still faced very

significant risks as to whether they would ultimately be able to prove liability, notwithstanding

the fact that they believe that the claims asserted against Defendants have merit.

31. As a threshold matter, obtaining a reversal of this Court’s Dismissal Order by the

Second Circuit was far from certain. While the ruling by the New York State Court of Appeals

with respect to the scope of the Martin Act (see paragraph 28 above) removed one possible basis

for affirmance, Defendants’ arguments with respect to SLUSA preemption and lack of subject

matter jurisdiction still posed significant risks. Affirmance on the ground of SLUSA preemption

would have terminated the Action in its entirety with prejudice. Even if Plaintiff prevailed on

her SLUSA argument, if the Second Circuit agreed with Defendants’ argument that Plaintiff

lacked standing to pursue claims on behalf of investors in the Other Funds, the claims of those

investors would not go forward in the Action.

32. As noted above, Plaintiff and Plaintiff’s Counsel recognized that, even if the

Second Circuit reversed the dismissal of the Complaint, and remanded the case to this Court,

there were still significant risks to surviving another round of motions to dismiss and to

establishing liability after remand.

33. For example, Plaintiff recognized the risk that, on another round of motions to

dismiss, Defendants could assert that the Court lacked jurisdiction over the foreign defendants.

If Plaintiff failed to establish jurisdiction over these defendants – UBP and certain of the

Individual Defendants – the Action could not have proceeded against these defendants and there

would have been no possibility of any recovery from them.


14

34. Additionally, Plaintiff faced the very high threshold of first having to sufficiently

allege, at a minimum, that Defendants were grossly negligent and then the further hurdle of

proving at least gross negligence at trial. In their motions to dismiss, Defendants had argued that

all of Plaintiff’s claims must be dismissed unless she could establish that Defendants’ actions

constituted fraud, willful misconduct or gross negligence (as opposed to simple negligence),

citing an exculpation provision in the limited partnership agreement purportedly governing

Selectinvest ARV LP, the fund in which Plaintiff invested. Plaintiff argued that the Complaint

adequately pled gross negligence, but the Court did not reach this issue in its March 10, 2010

opinion. Plaintiff and Plaintiff’s Counsel recognized that, if the Action were remanded,

Defendants would likely renew this argument in another motion to dismiss. Even if Plaintiff’s

remanded claims survived with respect to the adequacy of the pleading, Plaintiff still would face

the burden of proving at least gross negligence at trial in order to establish liability.

35. As set forth herein, the risks faced by all Putative Class Members were

significant. However, as noted, the risks faced with respect to claims brought on behalf of

investors in UBP Funds other than Selectinvest ARV LP (the “Other Funds”) were far greater

because they faced the additional challenge by Defendants that there was no subject matter

jurisdiction with respect their claims because Plaintiff could not demonstrate that she sustained

any personal injury in connection with funds in which she did not invest. While Plaintiff

proffered legal support for her contention that she could represent these investors, Defendants

were able to present precedent to the contrary. There was a substantial risk that had to be

acknowledged that Plaintiff would not prevail on this issue. Additionally, claims brought on

behalf of investors in the Other Funds may also have been subject to other jurisdictional defenses

because, based on information that Plaintiff and Plaintiff’s Counsel were able to obtain, many or


15

most of the Other Funds consisted largely of foreign investors, were managed by foreign entities,

and the investment interests in these Other Funds were not publicly traded in the United States.

36. Finally, there was also a risk that, even if Plaintiff ultimately prevailed, any

recovery would not be obtained until possibly years in the future after the case was fully litigated

and the amount of the recovery for members of the Settlement Class could be smaller than the

Settlement Amount.

IV. THE NEGOTIATION OF THE SETTLEMENT

37. As noted above, the Settlement is the result of intensive, arm’s-length, and

substantive negotiations. Counsel for Plaintiff and Defendants, recognizing the respective risks

they faced, explored the possibility of reaching a negotiated settlement over an extended period

of time. Following oral argument in the Second Circuit, and following the New York Court of

Appeals Assured Guaranty opinion mooting the issue of Martin Act preemption, these

negotiations intensified. In early 2012, counsel for Plaintiff and Defendants met to discuss the

litigation risks and potential avenues for settlement.

38. After extensive settlement negotiations and while Plaintiff’s appeal was still under

consideration by the Second Circuit, on February 27, 2012, the Parties reached an agreement in

principle to settle.

39. On February 27, 2012, the Parties filed with the Second Circuit a stipulation to

suspend Plaintiff’s appeal without prejudice pursuant to Local Appellate Rule 42.1, and to

remand the Action to this Court for the sole purpose of providing this Court with jurisdiction to

review the proposed Settlement, without prejudice to Plaintiff’s right to reinstate her appeal if the

Settlement does not become final for any reason. On February 29, 2012, the Parties sent a joint

letter to the Court requesting an indicative ruling that the Court would adjudicate the Parties’

motion for approval of the proposed Settlement upon remand of the Action to the Court by the


16

Second Circuit. The Parties’ request was granted by the Court on March 2, 2012. On March 6,

2012, the Parties filed with the Second Circuit their joint notice of the Court’s indicative ruling

to adjudicate the motion for approval of the Settlement and their motion for limited remand of

the Action to the Court. On March 9, 2012, the Second Circuit granted the motion for limited

remand of the Action to the Court.

40. After reaching the agreement in principle, the Parties continued to vigorously

negotiate the final terms of the Settlement through the drafting of the Stipulation and other

settlement papers, including the language of the notices to Settlement Class Members and other

affected persons and entities.

41. The Settlement achieved, which provides for a cash payment of $6.9 million for

the Settlement Class, provides a very positive outcome to the litigation for Settlement Class

Members, particularly in light of the significant risks of the litigation. Based on information

obtained from Defendants concerning the total losses suffered by Settlement Class Members in

connection with Selectinvest ARV LP’s investment in the Ascot Fund, the Settlement Amount

achieved represents approximately 20% of those losses. Plaintiff also negotiated to ensure that

the Settlement would not preclude Settlement Class Members from sharing in any funds that may

be received by the UBP Funds on account of the Ascot Fund’s investment in BMIS (see

Stipulation ¶ 7), for example, through any distribution from a bankruptcy trustee or government

restitution funds that might occur.

42. The Settlement only provides benefits for and will only be binding on Settlement

Class Members. As noted above, the claims of Putative Class Members who were not investors

in Selectinvest ARV LP faced additional dispositive risks not implicated with respect to

investors in Selectinvest ARV LP, including the significant risks of dismissal on appeal or on


17

remand as a result of a ruling that Plaintiff lacked standing to assert their claims. Plaintiff and

Plaintiff’s Counsel sought to protect the interests of all Putative Class Members through the

negotiations and, under the circumstances, they believed that the best result achievable was to (a)

reach the substantial Settlement for the benefit of Settlement Class Members (who did not face

the additional substantial risks) and (b) ensure that the Settlement would not compromise the

rights or claims of other members of the Putative Litigation Class. Accordingly, the Settlement

releases claims only of Settlement Class Members and has no binding effect on members of the

Putative Litigation Class who are not members of the Settlement Class. Additionally, through

negotiations, Plaintiff’s Counsel obtained Defendants’ agreement to provide notice of the

discontinuance of the Action to those investors in Other Funds whom they had previously

notified of the pendency of the Action, and who, as a result, might have been relying on the

existence of this Action to protect their rights.

43. The negotiations continued for several months and concluded with the signing and

submission to the Court of the Stipulation on September 12, 2012. On October 1, 2012, the Court

preliminarily approved the Settlement, authorized the dissemination of notices, and scheduled the

Settlement Hearing to consider whether to grant final approval to the Settlement.

44. In light of the risks posed in this Action, the amount of the Settlement and the

certainty and immediacy of recovery to the Settlement Class, and the expense and length of the

proceedings on any remand that would be necessary to pursue the claims against Defendants

(including through another possible motion to dismiss, motion for class certification, motion for

summary judgment, trial and appeals), Plaintiff and Plaintiff’s Counsel believe that the proposed

Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class.


18

V. PROVISION OF NOTICE OF SETTLEMENT TO SETTLEMENT CLASS MEMBERS AND OTHER PERSONS AND ENTITIES

45. The Preliminary Approval Order required that notice be disseminated to the

Settlement Class; set November 21, 2012 as the deadline for Settlement Class Members to

submit objections to the Settlement, the Plan of Allocation or the Fee and Expense Application,

or to request exclusion from the Settlement Class; and set a final approval hearing date of

December 12, 2012.

46. Pursuant to the Preliminary Approval Order, Plaintiff’s Counsel instructed GCG,

the Court-approved Claims Administrator for the Settlement, to disseminate copies of the

Settlement Notice and Claim Form to Settlement Class Members by mail, to publish the

Summary Notice in accordance with the Preliminary Approval Order, and to set up a telephone

line for handling inquiries from Settlement Class Members. The Settlement Notice contains the

definition of the Settlement Class; a summary of the terms of the Settlement; the terms of the

proposed Plan of Allocation; and a description of Settlement Class Members’ rights to

participate in the Settlement, to object to the Settlement, the Plan of Allocation and/or the Fee

and Expense Application, or to exclude themselves from the Settlement Class. The Settlement

Notice also informs Settlement Class Members of Plaintiff’s Counsel’s intention to apply for an

award of attorneys’ fees in the amount of 30% of the Settlement Fund and for reimbursement of

litigation expenses in an amount not to exceed $80,000. See Settlement Notice (included in

Exhibit A to the Fraga Aff.), at ¶¶ 3, 55.

47. As provided by the Stipulation, Defendants provided Plaintiff’s Counsel with two

lists of names and addresses that they represented reflected the names and last known addresses

of (a) all Settlement Class Members, i.e., investors in Selectinvest ARV LP as of December 11,

2008 who had not previously submitted a release of claims concerning Selectinvest ARV LP’s


19

investment in the Ascot Fund; and (b) all Barred Excluded Persons, i.e., investors in Selectinvest

ARV LP as of December 11, 2008 who Defendants’ represented had previously submitted a

release of claims concerning Selectinvest ARV LP’s investment in the Ascot Fund. These lists

were forwarded to GCG by Plaintiff’s Counsel.

48. On October 11, 2012, GCG disseminated copies of the Claim Packet to all 184

persons and entities identified as Settlement Class Members. See Fraga Aff. at ¶¶ 3-4.

49. On October 24, 2012, in accordance with the Preliminary Approval Order, GCG

caused the Summary Notice to the published in the international edition of The Wall Street

Journal and transmitted over the PR Newswire. See Fraga Aff. at ¶ 8. GCG also established a

page on its website dedicated to the Settlement, www.gcginc.com/cases/barron-ubp, to provide

information about the Settlement as well as downloadable copies of the Settlement Notice, Claim

Form, and Stipulation. See Fraga Aff. at ¶ 10. The Settlement Notice and Claim Form were also

made available on Plaintiff’s Counsel’s website, www.blbglaw.com.

50. The Court-ordered deadline for Settlement Class Members to file objections to the

Settlement, the Plan of Allocation or the Fee and Expense Application or to request exclusion

from the Settlement Class is November 21, 2012. To date, no requests for exclusion from the

Settlement Class have been received, and not a single Settlement Class Member has objected to

the Settlement, the Plan of Allocation, or the Fee and Expense Application. Plaintiff will address

any requests for exclusion and any objections that may be received in reply papers as provided

for in the Preliminary Approval Order.

51. In addition, pursuant to the Preliminary Approval Order, on October 11, 2012,

GCG mailed copies of the Barred Excluded Persons Notice and Settlement Notice to all 272

persons or entities identified as Barred Excluded Persons. See Fraga Aff. at ¶¶ 6-7. The Barred


20

Excluded Persons Notice informed the Barred Excluded Persons of their exclusion from the

Settlement Class and the fact that, therefore, they were not eligible for payment under the

proposed Settlement and they would not be bound by any judgment in the Action. The notice

also advised the Barred Excluded Persons that if they had any questions regarding the notice,

they should contact Plaintiff’s Counsel at the address or phone number provided in the notice. In

response to the mailing of Barred Excluded Person Notices, only one communication has been

received questioning whether that entity was properly excluded. Defendants’ Counsel has

informed Plaintiff’s Counsel that they mailed a copy of the prior executed release in response to

this inquiry and that, to date, there have been no further communications regarding the inquiry.

VI. PLAN OF ALLOCATION

52. Pursuant to the Preliminary Approval Order, and as set forth in the Settlement

Notice, all Settlement Class Members who want to participate in the distribution of the

Settlement Fund must submit a valid Claim Form postmarked no later than January 14, 2013. As

provided in the Settlement Notice, after deducting all Taxes, administrative costs, and the

attorneys’ fees and reimbursement of litigation expenses as may be awarded by the Court, the

balance of the Settlement Fund (the “Net Settlement Fund”) will be distributed according to the

plan of allocation approved by the Court.

53. The plan of allocation proposed by Plaintiff and Plaintiff’s Counsel (the “Plan of

Allocation”) is set forth on page 6 of the Notice. If approved, the Plan of Allocation will govern

how the Net Settlement Fund will be distributed among Authorized Claimants.5 The proposed

Plan of Allocation is designed to achieve an equitable and rational distribution of the Net

5 An “Authorized Claimant” is a Settlement Class Member who submits a properly executed Claim Form to the Claims Administrator, in accordance with the requirements established by the Court, that is approved for payment from the Net Settlement Fund.


21

Settlement Fund, but is not a formal damage analysis and the calculations made pursuant to the

Plan of Allocation are not intended to be estimates of, nor indicative of, the amounts that

Settlement Class Members might have been able to recover after a trial.

54. The proposed Plan of Allocation will allocate the Net Settlement Fund among

Authorized Claimants on a pro rata basis based on the amount of their equity investment in

Selectinvest ARV LP as of November 1, 2008, as provided to Plaintiff’s Counsel by Defendants

(the “Investment Amount”).6 Specifically, each Authorized Claimant will receive a pro rata

payment from the Net Settlement Fund which shall be the Authorized Claimant’s Investment

Amount divided by the total of the Investment Amounts of all Authorized Claimants, multiplied

by the total amount in the Net Settlement Fund. A Claim Amount Table, attached to the

Settlement Notice as Exhibit 1, sets forth each Identified Settlement Class Member’s Investment

Amount as provided by Defendants. To preserve Settlement Class Members’ confidentiality,

Settlement Class Members are identified in the Claim Amount Table only by a unique

identification number.7 Enclosed with the Settlement Notice and Claim Form was a letter

informing the Settlement Class Member of his, her or its unique identification number.

55. As set forth in the Notice, Settlement Class Members have the right to challenge

the Investment Amount provided by Defendants if they believe it is incorrect.

56. Because the extent of a Settlement Class Member’s injuries from the claims

alleged in this Action and released in this Settlement is directly proportional to the amount of his,

6 November 1, 2008 was the date as of which Selectinvest ARV LP wrote down its position in the Ascot Fund to zero. 7 The Claim Amount Table also provides, for information purposes only, an amount, calculated by Defendants, representing each Identified Settlement Class Member’s pro rata portion of Selectinvest ARV LP’s total exposure to the Ascot Fund as of November 1, 2008 (the “Loss Amount”).


22

her or its investment in Selectinvest AV LP, Plaintiff’s Counsel believe that the proposed Plan of

Allocation (which provides for a pro rata distribution based on Investment Amount) provides a

fair and equitable method of allocating the Net Settlement Fund among Settlement Class

Members. Accordingly, Plaintiff’s Counsel respectfully submits that the proposed Plan of

Allocation is fair and reasonable and should be approved.

VII. THE FEE APPLICATION

57. Plaintiff’s Counsel is making an application for a fee award of 30% of the

Settlement Fund (i.e., 30% of the $6,900,000 Settlement Amount and 30% of any interest earned

on the Settlement Amount until the time of payment) (the “Fee Application”). As discussed

below, the requested fee represents a multiplier of approximately 1.78 on Plaintiff’s Counsel’s

lodestar of $1,162,463.75. Plaintiff’s Counsel also requests reimbursement from the Settlement

Fund of the litigation expenses it incurred in connection with the prosecution of the Action in the

amount of $56,076.56, which is below the $80,000 maximum expense amount that Settlement

Class Members were advised could be sought. See Settlement Notice (included in Exhibit A to

Fraga Aff.) at ¶¶ 3, 55. The legal authorities supporting the requested fees and expenses are set

forth in Plaintiff’s Counsel’s separate memorandum of law submitted herewith. The primary

factual bases for the requested fees and expenses are summarized below.

A. Plaintiff Supports the Fee Application

58. Plaintiff, a sophisticated individual investor with a substantial financial stake in

the Action, negotiated a retainer agreement with Plaintiff’s Counsel at the outset of the litigation.

Under the terms of that agreement, Plaintiff’s Counsel is allowed to apply for attorneys’ fees in

the amount of 30% of the recovery. Plaintiff has evaluated the Fee Application and believes the

requested fees are fair and reasonable. Plaintiff – who individually and through her

representatives was substantially involved in the prosecution of the action and negotiation of the


23

Settlement – considered the substantial recovery obtained, particularly in light of the risks of

litigation, and the skill and efforts of Plaintiff’s Counsel, and endorses Plaintiff’s Counsel’s

application for an award of attorneys’ fees constituting 30% of the Settlement Fund.

B. The Work and Experience of Counsel

59. Attached hereto as Exhibit 2 is a summary indicating the amount of time spent by

attorneys and professional support staff employees of BLB&G who were involved in this Action,

and the lodestar calculation based on their current billing rates. The hourly rates for attorneys

and paraprofessionals included in the schedule are commensurate with the hourly rates charged

by lawyers and paraprofessionals performing similar services in New York, New York. For

personnel who are no longer employed by BLB&G, the lodestar calculation is based upon the

billing rates for such personnel in his or her final year of employment with the firm. The hourly

rates for the attorneys and professional support staff included in Exhibit 2 are the same as the

regular current rates charged for their services in non-contingent matters and/or which have been

accepted by courts in other class action or shareholder litigation. The schedule was prepared

from contemporaneous daily time records regularly prepared and maintained by BLB&G, which

are available at the request of the Court. As set forth in Exhibit 2, the total number of hours

expended on this Action by BLB&G from its inception is 2,190 for a total lodestar of

$1,162,463.75. These figures exclude time spent on Plaintiff’s Counsel’s motion for an award of

attorneys’ fees and reimbursement of expenses. Under the lodestar approach, the requested fee

equal to 30% of the Settlement Fund or $2,070,000 plus interest, results in a multiple of about

1.78 on Plaintiff’s Counsel’s lodestar.

60. Plaintiff’s Counsel is experienced in prosecuting class actions, and worked

diligently and efficiently in prosecuting the Action. BLB&G, as demonstrated by the firm


24

resume attached hereto as Exhibit 3, has substantial experience in pursuing class actions on

behalf of investors and has a long and successful track record in such cases.

C. Standing and Caliber of Defendants’ Counsel

61. The quality of the work performed by Plaintiff’s Counsel in attaining the

Settlement should also be evaluated in light of the quality of the opposition. Defendants were

represented by Wachtell, Lipton, Rosen & Katz, one of the country’s most prominent and able

law firms, which vigorously represented its clients. In the face of this experienced, formidable,

and well-financed opposition, Plaintiff’s Counsel was nonetheless able to persuade the

Defendants to settle the case on terms favorable to the Settlement Class.

D. The Risks of Litigation and the Need to Ensure the Availability of Competent Counsel in High-Risk Contingent Cases

62. This prosecution was undertaken by Plaintiff’s Counsel entirely on a contingent-

fee basis. The risks assumed by Plaintiff’s Counsel in bringing these claims to a successful

conclusion are described above. Those risks are also relevant to an award of attorneys’ fees.

Here, the risks assumed by Plaintiff’s Counsel, and the time and expenses incurred without any

payment, were substantial, and are described in detail above.

63. From the outset, Plaintiff’s Counsel understood that it was embarking on a

complex, expensive and lengthy litigation with no guarantee of ever being compensated for the

substantial investment of time and money the case would require. In undertaking that

responsibility, Plaintiff’s Counsel was obligated to ensure that sufficient resources were

dedicated to the prosecution of the Action, and that funds were available to compensate staff and

to cover the considerable litigation costs that a case such as this requires. With an average lag

time of several years for these cases to conclude, the financial burden on contingent-fee counsel

is far greater than on a firm that is paid on an ongoing basis. Indeed, Plaintiff’s Counsel has


25

received no compensation during the course of the Action and has incurred over $56,000 in

litigation expenses in prosecuting the Action.

64. Plaintiff’s Counsel also bore the risk that no recovery would be achieved. As

discussed herein, from the outset, this case presented multiple risks and uncertainties that could

have prevented any recovery whatsoever. Despite the most vigorous and competent of efforts,

success in contingent-fee litigation, such as this, is never assured.

65. Plaintiff’s Counsel knows from experience that the commencement of a class

action does not guarantee a settlement. To the contrary, it takes hard work and diligence by

skilled counsel to develop the facts and theories that are needed to obtain a recovery in such

cases and to induce sophisticated defendants to engage in serious settlement negotiations at

meaningful levels.

66. Moreover, courts have repeatedly recognized that it is in the public interest to

provide appropriate incentives for experienced and able counsel to bring actions on behalf of

classes of injured persons. If this important public policy is to be carried out, the courts should

award fees that adequately compensate plaintiffs’ counsel, taking into account the risks

undertaken in prosecuting a class action.

67. Plaintiff’s Counsel’s extensive and persistent efforts in the face of substantial

risks and uncertainties have resulted in a significant recovery for the benefit of the Settlement

Class. In circumstances such as these, and in consideration of Plaintiff’s Counsel’s hard work

and the excellent result achieved, the requested fee of 30% of the Settlement Fund is reasonable

and should be approved.

E. The Reaction of the Settlement Class to the Fee Application

68. The Settlement Notice was mailed to all Settlement Class Members as identified

by Defendants advising them of the amount of attorneys’ fees that Plaintiff’s Counsel would


26

request and that reimbursement of litigation expenses in an amount not to exceed $80,000 would

also be requested. See Fraga Aff. at ¶¶ 6-7; Settlement Notice (in Exhibit A thereto) at ¶¶ 3, 55.

Additionally, on October 24, 2012, the Summary Notice was published in The Wall Street

Journal and transmitted over the PR Newswire. See Fraga Aff. at ¶ 8. The Settlement

documents have also been available on the settlement website page maintained by GCG, id. at

¶ 10, and on Plaintiff’s Counsel’s website. While the deadline set by the Court for Settlement

Class Members to object to the requested fees and expenses has not yet passed, to date we are

not aware of a single objection by any Settlement Class Member.

VIII. REIMBURSEMENT OF THE REQUESTED LITIGATION EXPENSES IS FAIR AND REASONABLE

69. Plaintiff’s Counsel seeks reimbursement from the Settlement Fund of $56,076.56

in litigation expenses reasonably and actually incurred by Plaintiff’s Counsel in connection with

commencing, prosecuting and resolving the claims against the Defendants.

70. From the beginning of the case, Plaintiff’s Counsel was aware that it might not

recover any of its expenses, and, at the very least, would not recover anything until the Action

was successfully resolved. Plaintiff’s Counsel also understood that, even assuming that the case

was ultimately successful, reimbursement for expenses would not compensate it for the lost use

of the funds advanced by it to prosecute the Action. Thus, Plaintiff’s Counsel was motivated to,

and did, take significant steps to minimize expenses whenever practicable without jeopardizing

the vigorous and efficient prosecution of the case.

71. As set forth in the schedule attached hereto as Exhibit 4, Plaintiff’s Counsel has

incurred a total of $56,076.56 in unreimbursed litigation expenses in connection with the

prosecution of the Action. These expenses are reflected on the books and records maintained by

Plaintiff’s Counsel, which are prepared from expense vouchers, check records and other source


27

materials, and are an accurate record of the expenses incurred. These expense items are billed

separately by Plaintiff’s Counsel, and such charges are not duplicated in Plaintiff’s Counsel’s

billing rates. The expenses were reasonable and necessary to the prosecution of this Action, and

are the type of expenses that counsel typically incur in complex litigation, and for which counsel

are typically reimbursed when the litigation gives rise to a common fund.

72. One large component of the litigation expenses was for online legal and factual

research. Plaintiff’s Counsel spent significant time researching the law pertaining to the claims

and defenses asserted, including SLUSA and Martin Act preemption and issues pertaining to

standing, in connection with preparing the Complaint, responding to Defendants’ motions to

dismiss and on appeal to the Second Circuit. In addition to researching these complex areas of

law, Plaintiff’s Counsel necessarily spent considerable time and expense performing factual

research. Plaintiff’s Counsel’s factual research included out-of-pocket investigatory costs

associated with identifying and locating foreign Defendants, and identifying and locating

witnesses and former employees of Defendants, using a variety of online fee-charging databases

and service providers. The charges for on-line research amounted to $41,462.95, or

approximately 74% of the litigation costs incurred.

73. Another significant component of the litigation expenses were the costs of

effecting service of process on Defendants. The foreign Defendants, including UBP, would not

accept service of process through their New York attorneys or through UBPAM, UBP’s United

States-based subsidiary, requiring Plaintiff to employ the costly methods of service on foreign

parties set forth under the Hague Convention. The total cost of effecting service of process on

Defendants was $6,693.50, or approximately 12% of the total litigation expenses incurred.


28

74. The other expenses for which Plaintiff’s Counsel seeks reimbursement are the

types of expenses that are necessarily incurred in litigation and routinely charged to clients billed

by the hour. These expenses include, among others, court fees, copying costs, long distance

telephone and facsimile charges, postage and delivery expenses and overtime expenses.

75. All of the litigation expenses incurred, which total $56,076.56, were necessary to

the successful prosecution and resolution of the claims against the Defendants and have been

approved by Plaintiff. In addition, the Settlement Notice apprised potential Settlement Class

Members that Plaintiff’s Counsel would be seeking reimbursement of expenses in an amount not

to exceed $80,000, and, to date, no objection has been raised as to Plaintiff’s Counsel’s request

for reimbursement of litigation expenses.

76. In view of the complex nature of the Action, the expenses incurred were

reasonable and necessary to pursue the interests of the Settlement Class. Accordingly, Plaintiff’s

Counsel respectfully submits that the expenses it incurred should be reimbursed in full from the

Settlement Fund.

IX. CONCLUSION

77. In view of the significant recovery to the Settlement Class, the substantial risks in

this Action, the complexity of the case and the arm’s-length settlement negotiations, Plaintiff’s

Counsel respectfully submits that the Settlement should be approved as fair, reasonable and

adequate and that the proposed Plan of Allocation should be approved as fair and reasonable. In

light of the foregoing factors, the substantial efforts of Plaintiff’s Counsel, the quality of work

performed, the contingent nature of the fee and the risks of litigation, and the standing and

experience of Plaintiff’s Counsel, Plaintiff’s Counsel also respectfully submits that a fee in the

amount of 30% of the Settlement Fund should be awarded, and that Plaintiff’s Counsel’s

litigation expenses in the amount of $56,076.56 should be reimbursed in full.


29

I declare, under penalty of perjury, that the foregoing facts are true and correct.

Executed on November 7, 2012.

s/ Gerald H. Silk Gerald H. Silk

#680394


Exhibit 1

Case 1:09-cv-04471-TPG Document 60-1 Filed 11/07/12 Page 1 of 47

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

ANDREA BARRON, on behalf of herself and all others similarly situated, Plaintiff,

v.

ROMAN IGOLNIKOV, SHELDON S. GORDON, MATTHEW STADTMAUER, UNION BANCAIRE PRIVÉE, UNION BANCAIRE PRIVÉE ASSET MANAGEMENT LLC, UBPI HOLDINGS, INC., DANIEL DE PICCIOTTO, MICHAEL DE PICCIOTTO, GUY DE PICCIOTTO, and CHRISTOPHE BERNARD, Defendants.

Civil Action No. 09-CV-4471 (TPG)

ECF Case

AFFIDAVIT OF JOSE C. FRAGA REGARDING (A) MAILING OF NOTICES, (B) PUBLICATION OF THE SUMMARY NOTICE, AND

(C) REPORT ON REQUESTS FOR EXCLUSION RECEIVED TO DATE STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU )

JOSE C. FRAGA, being duly sworn, deposes and says:

1. I am a Senior Director of Operations for The Garden City Group, Inc. (“GCG”).

Pursuant to the Court’s Order Preliminarily Approving Proposed Settlement and Providing for

Notice, entered October 1, 2012 (“Preliminary Approval Order”), GCG was authorized to act as


2

the Claims Administrator in connection with the Settlement of the above-captioned action.1 I

have personal knowledge of the facts stated herein.

MAILING OF THE CLAIM PACKET

2. Pursuant to the Preliminary Approval Order, GCG was responsible for mailing to

each Identified Settlement Class Member, the following documents: (a) the Notice of (I)

Pendency of Class Action and Proposed Settlement, (II) Settlement Fairness Hearing, and (III)

Motion for Attorneys’ Fees and Reimbursement of Litigation Expenses Addressed to Identified

Settlement Class Members (the “Settlement Notice”), (b) the Claim Form and Release (the

“Claim Form”), and (c) a personalized cover letter to Settlement Class Members (the “Cover

Letter”). The Notice, Claim Form and Cover Letter are collectively referred to herein as the

“Claim Packet.”

3. In connection with the mailing of the Claim Packet, GCG received from

Plaintiff’s Counsel an Excel file designated as a list of Settlement Class Members that contained

184 names and addresses as well as an associated identification number for each such person or

entity. Using the information contained in the Excel file, GCG created an individualized Claim

Packet for each Settlement Class Member listed, including the Settlement Notice, an

individualized Claim Form with certain fields already filled in, and the Cover Letter.

4. On October 11, 2012, GCG mailed each of the 184 listed Settlement Class

Members his, her or its individualized Claim Packet. A copy of the form of the Claim Packet

mailed to each of the Settlement Class Members is attached hereto as Exhibit A.

1 All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement dated September 12, 2012 (the “Stipulation”).


3

MAILING OF THE BARRED EXCLUDED PERSON’S PACKET

5. Pursuant to the Preliminary Approval Order, GCG was also responsible for

mailing to each Barred Excluded Person, the following documents: (a) the Notice of Ineligibility

(the “Barred Excluded Persons Notice”) and (b) a copy of the Settlement Notice, for

informational purposes only (collectively, the “Barred Excluded Persons’ Packet”).

6. In connection with the mailing of the Barred Excluded Persons’ Packet, GCG

received from Plaintiff’s Counsel an Excel file designated as a list of Barred Excluded Persons

that contained 275 names and addresses.

7. On October 11, 2012, GCG mailed the Barred Excluded Persons’ Packet to 272 of

the listed Barred Excluded Persons using the information contained in the Excel file provided by

Plaintiff’s Counsel.2 A copy of the form of the Barred Excluded Persons’ Packet mailed to each

of the Barred Excluded Persons is attached hereto as Exhibit B.

PUBLICATION OF THE SUMMARY NOTICE

8. Pursuant to the Preliminary Approval Order, GCG Communications, the media

division of GCG, caused the Summary Notice of (I) Pendency of Class Action and Proposed

Settlement, (II) Settlement Fairness Hearing, and (III) Motion for Attorneys’ Fees and

Reimbursement of Litigation Expenses (the “Summary Notice”) to be published once in the

international edition of The Wall Street Journal and transmitted once over the PR Newswire.

Attached hereto as Exhibit C is the affidavit of Albert Fox, for the publisher of The Wall Street

Journal, attesting to the publication of the Summary Notice in that paper on October 24, 2012.

Attached hereto as Exhibit D is a confirmation report for the PR Newswire, attesting to the

issuance of the Summary Notice over that wire service on October 24, 2012. 2 Three names were included in both the Excel file designated as the list of Settlement Class Members and the Excel file designated as the list of Barred Excluded Persons. The Barred Excluded Persons’ Packet was not mailed to these three entities.


4

TELEPHONE HELPLINE

9. Since October 11, 2012, GCG has provided a toll-free help-line (1-800-231-1815)

to accommodate Settlement Class Members and other persons who have questions about the

Settlement. The telephone help-line routes callers to a customer service representative during

business hours.

WEBSITE PAGE

10. GCG established and is maintaining a page on its website dedicated to the

Settlement (www.gcginc.com/cases/barron-ubp) to assist Settlement Class Members. The

website page lists the exclusion, objection, and claim filing deadlines, as well as the date and

time of the Court’s Settlement Hearing. Copies of the Settlement Notice, Claim Form,

Preliminary Approval Order and Stipulation, are available for downloading on the settlement

website page. The website page for the Settlement became operational on or about October 11,

2012, and is accessible 24 hours a day, 7 days a week.

REQUESTS FOR EXCLUSION

11. The Settlement Notice informed Settlement Class Members that requests for

exclusion are to be mailed or otherwise delivered, addressed to Barron v. Igolnikov,

EXCLUSIONS, c/o GCG, P.O. Box 9349, Dublin, OH 43017-4249, such that they are received

by GCG no later than November 21, 2012. The Settlement Notice also sets forth the information

that must be included in each request for exclusion. GCG has been monitoring all mail delivered

to that Post Office Box. As of November 5, 2012, GCG has not received any requests for

exclusion. GCG will submit a supplemental affidavit after the November 21, 2012 deadline for

requesting exclusion that addresses any requests for exclusion that may be received.

I declare under penalty of perjury under the laws of the United States of America that the


foregoing is true and correct.

Executed in Lake Success, New York on November 6, 201 2.

JENNIFER JORDAN Notary Public. State of New Y.ork

No. 01J06231986 Qualified In Sutfolt COUnty I'(

eommtsaion ExpireS Dee. 13. 20_...-

5


EXHIBIT A


111111111111111111111111111111111111111111111111111111111111111111111111111

PLEASE READ THIS LETTER AND THE ACCOMPANYING COURT- AUTHORIZED NOTICE CAREFULLY. THIS IS NOT A SOLICITATION.

ID Number:

111111111111111111111111111111111111111111111111111111111111111111111111111

October 11, 2012

Re: Barron v. lqolnikov eta/.. Civil Action No. 09-CV-4471 (TPG)

Dear Settlement Class Member:

Based on records maintained by Union Bancaire Privee Asset Management LLC ("UBPAM"), it has been determined that you are a member of the Settlement Class in the above-referenced class action (the "Action") .1 The Action concerned claims that UBPAM and other Defendants mismanaged Selectinvest ARV LP and other funds by investing a portion of their assets with certain "feeder" hedge funds, including Ascot Partners L.P. (the "Ascot Fund"), which in turn placed their assets solely or primarily under management vvith Bernard L. Madoff Investment

Securities LLC.

As a member of the Settlement Class, you are entitled to receive a distribution from the $6.9 million Settlement achieved in the Action, if it is approved by the Court. Enclosed with this letter are the Court-ordered Notice of (I) Pendency of Class Action and Proposed Settlement, (II) Settlement Fairness Hearing, and (Ill) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Settlement Notice") and the Claim Form and Release (the "Claim Form"), which describe the Action, the terms of the Settlement, and important rights that you have with respect to the proposed Settlement. Please read these documents carefully.

Receipt of a Distribution: In order to receive a payment from the proceeds of the Settlement, if it is approved, you need only complete

and sign the enclosed Claim Form and submit it to the Claims Administrator at the address indicated on the Claim Form, postmarked no later than January 14, 2013. You are not required to collect or submit any account statements or similar evidentiary materials to support your Claim.

The amount of your distribution will be based on the amount provided by Defendants as your equity investment in Selectinvest ARV LP as of November 1, 2008 (the "Investment Amount"). A full explanation of the proposed Plan of Allocation of the proceeds of the Settlement is set forth at paragraphs 41 - 49 of the Settlement Notice.

Attached as Exhibit 1 to the Settlement Notice is a "Claim Amount Table" setting forth for each Settlement Class Member: (i) his, her or its Investment Amount, and (ii) for informational purposes only, the amount, calculated by Defendants, that represents, based on the Settlement

Class Member's Investment Amount, his, her or its pro rata portion of Selectinvest ARV LP's total exposure to the Ascot Fund as of November 1, 2008 (the "Loss Amount"). To preserve the confidentiality of Settlement Class Members, they are identified in the Claim Amount Table only by a unique Identification Number. The Identification Number that you have been assigned is

Investment Amount Challenge: If you believe that your Investment Amount as set forth on the Claim Amount Table is incorrect, you may submit an Investment Amount Challenge. If you vvish to submit such a challenge, you must do so in accordance with the terms set forth in paragraphs 44 and 45 of the Settlement Notice and the instructions set forth in the Claim Form. Any Investment Amount Challenge must be postmarked no later than January 14, 2013.

If, after revievving the accompanying Settlement Notice and Claim Form, you have any questions regarding the Settlement, please

contact the undersigned. Very truly yours,

Gerald H. Silk, Esq. Lauren A. McMillen, Esq. Bernstein Litowitz Berger

& Grossmann LLP 1285 Avenue of the Americas New York, NY 10019 (800) 380-8496

Counsel for Plaintiff and the Settlement Class

1 The "Settlement Class" consists of all persons and entities who held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby, other than certain persons and entities who are excluded from the class by definition.


THIS PAGE INTENTIONALLY LEFT BLANK


• MUST BE POSTMARKED

ON OR BEFORE January 14, 2013

• IGO • lllllllllllllllllllllllllllllllllllllllllllllmlllllllllllllllll

Barron v. lgolnikov c/o The Garden City Group, Inc.

P.O, Box 9349 Dublin, OH 43017-4249

1-800-231-1815 www.gcginc.comfcaseslbarron-ubp

Claim Number:

Control Number:

CLAIM FORM AND RELEASE

TtfiS CLAIM FORM AND RELEASE MUST BE MAILED TO THE ADDRESS ABOVE AND POSTMARKED NO LATER THAN JANUARY 14,2013.

TABLE OF CONTENTS PAGE#

PART 1- CONTACT INFORMATION .......................................................................................................... 1 PART II- GENERAL INSTRUCTI.ON.S ....................................................................................................... 2 PART Ill- INVESTMENT AMOUNT ASSIGNED ....................................................................................... 3 PART IV -INVESTMENT AMOUNT CHALLENGE ...................................................................................... 3 PART V- RELEASE, CERTIFICATION AND SIGNATURE ....................................................................... 4

PART I -CONTACT INFORMATION

If your name and/or address as set forth above is incorrect, please provide updated or correct information here:

Last Name First Name

Company/Entity Name (if Settlement Class Member is not an individual)

Address Line 1

Address Line 2 (If Applicable)

City State Zip Code Foreign Country

~--------~1 ~~----~ Please also provide the following contact information:

Contact Name (if Settlement Class Member is not individual)

Telephone Number Alternate Telephone Number (Not required)

Email Address (Not required, but if you provide an email address, you authorize the Claims Administrator to use it in providing you with information relevant to this claim.)

• •


• • 2 11111111111111111111111111111111111111111111111111111111111111111 •

PART II- GENERAL INSTRUCTIONS

A. This Claim Form and Release ("Claim Form") must be executed by the Settlement Class Member or by an authorized representative or representatives of the Settlement Class Member who has (or have) the authority to bind the Settlement Class Member to this Claim Form.

B. It is important that you read and understand the Notice of (I) Pendency of Class Action and Proposed Settlement, (II) Settlement Fairness Hearing, and (Ill) Motion for Attorneys' Fees and Reimbursement of Litigation Expenses (the "Settlement Notice") that accompanies this Claim Form, including the Plan of Allocation set forth in the Settlement Notice. The Settlement Notice describes the proposed Settlement, how Settlement Class Members are affected by the Settlement, and the manner in which the Net Settlement Fund will be distributed if the Settlement and Plan of Allocation are approved by the Court. The Settlement Notice also contains the definitions of many of the defined terms (which are indicated by initial capital letters) used in this Claim Form. By signing and submitting this Claim Form, you will be certifying that you have read and understand the Settlement Notice, including the terms of the releases described therein and provided for herein.

C. TO RECEIVE A DISTRIBUTION IN THE SETILEMENT, YOU MUST MAIL A COMPLETED AND SIGNED CLAIM FORM TOTHECLAIMSADMINISTRATOR BY FIRST-CLASS MAIL, POSTAGE PREPAID, POSTMARKED NO LATER THAN JANUARY 14,2013, ADDRESSED AS FOLLOWS:

Barron v. Jgolnikov c/o The Garden City Group, Inc.

Claims Administrator P.O. Box 9349

Dublin, OH 43017-4249

If you fail to submit a timely, properly addressed, and completed Claim Form, your claim may be rejected and you may be precluded from receiving -any proceeds from the Settlement.

D. IF YOU ARE NOT A SETILEMENT CLASS MEMBER OR IF YOU FILE A REQUEST FOR EXCLUSION FROM THE SETILEMENT CLASS, YOU SHOULD NOT SUBMIT A CLAIM FORM. YOU MAY NOT, DIRECTLY OR INDIRECTLY, PARTICIPATE IN THE SETTLEMENT IF YOU SUBMIT A VALID REQUEST FOR EXCLUSION.

E. Settlement Class Members will be bound by the terms of any judgments or orders entered in the Action, WHETHER OR NOT A CLAIM FORM IS SUBMITIED, unless they submit a valid request for exclusion from the Settlement Class. As described in the Settlement Notice, the Judgment will release and enjoin the filing or continued prosecution of the Released Plaintiff Claims against the Released Defendant Persons.

F. Any authorized representative executing this Claim Form on behalf of a Settlement Class Member must (a) state on the signature page in Part V below the capacity in which he or she is acting; and (b) submit written documentation with this Claim Form evidencing his or her current authority to execute this document on behalf of the Settlement Class Member.

G. Your "Investment Amount" under the Plan of Allocation (which will be used to determine your pro rata share of the Settlement proceeds) has been provided by Defendants. If you do not dispute the "Investment Amount" set forth in Part Ill below, then you are not required to submit any account statements or other materials with this Claim Form to establish the amount of your claim under the Settlement. If, however, you wish to challenge the calculation of your "Investment Amount" (i.e. , your equity investment in Selectinvest ARV LP as of November 1, 2008) , please check the box in Part IV below and follow the instructions in Part IV for submitting an Investment Amount Challenge. Regardless of whether you submit an Investment Amount Challenge or not, if you submit a signed Claim Form, you are agreeing to stay in the Settlement Class. The only way to exclude yourself from the Settlement Class is by following the instructions set forth in paragraph 61 of the Settlement Notice.

• QUESTIONS? CALL 1-800-231-1815 TOLL FREE OR VISIT WVVVV. GCGINC.COM/CASES/BARRON-UBP •


• • 3 11111111111111111111111111111111111111111111111111111111111111111 •

PART Ill -INVESTMENT AMOUNT ASSIGNED

The "Investment Amount" calculated for you that has been provided by Defendants is set forth below. (The Investment Amount is also set forth next to your ID Number on the Claim Amount Table attached as Exhibit 1 to the Settlement Notice.)

Investment Amount

$

If you do not dispute the "Investment Amount" calculated for you as set forth above, please go directly to Part V below.

PART IV- INVESTMENT AMOUNT CHALLENGE

If you wish to challenge the calculation of your "Investment Amount" as set forth above, you must check I I I I this box and follow the procedures set forth below:

Procedures for Filing an Investment Amount Challenge: If you believe that your Investment Amount as set forth above and on the Claim Amount Table is incorrect, you may challenge this amount by submitting evidence in support of your position that your Investment Amount was incorrectly calculated. If you wish to challenge the calculation of your Investment Amount, you must submit an Investment Amount Challenge by following each of the steps below:

1. Insert in the box below what you believe is the correct "Investment Amount," which is your equity investment in Selectinvest ARV LP as of November 1, 2008. (See paragraph 41 of the Settlement Notice.)

(Claimed) Investment Amount

2. Submit a short statement briefly explaining the factual basis for your calculation of your claimed Investment Amount, together with copies of documents (such as account statements provided to you by UBP, UBPAM or Selectinvest ARV LP or any supporting affidavits) sufficient to demonstrate that the proposed revised figure under Item 1 above reflects the correct amount for your "Investment Amount. " DO NOT SEND ORIG INAL DOCUMENTS AND PLEASE DO NOT USE HIGHLIGHTER ON ANY DOCUMENTS THAT YOU SUBM IT. Please keep a copy of all documents that you send to the Claims Administrator. INVESTMENT AMOUNT CHALLENGES SUBMITTED WITHOUT SUPPORTING DOCUMENTATION MAY BE SUM MARILY REJECTED.

The Claims Administrator and Plaintiff's Counsel will review your Investment Amount Challenge and the documentation submitted in support thereof, and wil l notify you whether (or to what extent) the Investment Amount Challenge has been accepted. If your Investment Amount Challenge is rejected or is not accepted in full and the parties and you are not able to resolve the Investment Amount Challenge, you may, if you wish to pursue the challenge, ask that the dispute be submitted to the Court for resolution. Note: By submitting an Investment Amount Cha llenge, you will be swearing to the genuineness of the documents submitted with this Claim Form in support of the Investment Amount Chal lenge, subject to penalties of perjury under any applicable state or federal laws. The submission of forged or fraudulent documentation will result in the rejection of your claim and may subject you to civil liability or criminal prosecution.

• QUESTIO NS? CA LL 1-800-231-1815 TOLL FREE OR VI SIT \IIMJW.GCG INC.COM/CASES/BARRON-UBP •


• • 4 11111111111111111111111111111111111111111111111111111111111111111 •

PART V- RELEASE, CERTIFICATION AND SIGNATURE

Release of Claims: I (we) hereby acknowledge, that as of the Effective Date of the Settlement, pursuant to the terms set forth in the Stipulation, I (we) shall have and be deemed to have released, waived, discharged, and dismissed each and every Released Plaintiff Claim, and shall forever be enjoined from prosecuting any or all Released Plaintiff Claims, against any Released Defendant Person .

CERTIFICATION:

By signing and submitting this document, each Settlement Class Member (or Claimant) certifies, as follows:

1. I am a Settlement Class Member or I am authorized to execute this Claim Form on behalf of the Settlement Class Member, and have submitted w ritten documentation evidencing my authority to do so;

2. I have read and understand the contents of the Settlement Notice and this Claim Form, including the releases prov ided for in the Settlement;

3. I have not submitted a request for exclusion from the Settlement Class; 4. I submit to the jurisdiction of the Court with respect to the claim and for purposes of enforcing the releases set forth herein; 5. I agree to furnish such additional information with respect to this Claim Form as Plaintiff's Counsel, the Claims Administrator or the

Court may require; 6. I waive the right to trial by jury, to the extent it exists, and agree to the Court's summary disposition of the determination of the validity

of the claim made by this Claim Form; 7. I acknowledge that I will be bound by and subject to the terms of any judgment that may be entered in the Action; 8. I am NOT subject to backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code

because (a) I am exempt from backup withholding or (b) I have not been notified by the IRS that I am subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified me that I am no longer subject to backup withholding. If the IRS has notified you that you are subject to backup withholding , please strike out the language in the preceding sentence indicating that you are not subject to backup withholding in the certification above;

9. Unless I have checked the box in Part IV above (Investment Amount Challenge), I do not dispute the calculation of my Investment Amount as set forth in Part Ill above; and

10. [Applicable only if you are submitting an Investment Amount Challenge] I swear or affirm, subject to penalties of perjury under applicable state and federal laws, that the documentation submitted in support of any Investment Amount Challenge consist of true and correct copies of legitimate documents, and that the Investment Amount Challenge has not been submitted for any fraudulent purpose.

SIGNATURE:

UNDER THE PENALTIES OF PERJURY, I 0NE) CERTIFY THAT ALL OF THE INFORMATION PROVIDED BY ME (US) ON THI S FORM IS TRUE, CORRECT, AND COMPLETE, AND THAT THE DOCUMENTS SUBMITTED HEREWITH ARE TRUE AND CORRECT COPIES OF WHAT THEY PURPORT TO BE.

Signature of Settlement Class Member Date

Print name here

S ignature of Settlement Class Member (Joint Claimant) Date

Print name here

If the Settlement Class Member is other than an individual, or is not the person completing this form, the following also must be provided:

Signature of Authorized Representative Date

Print name here

Capacity of Authorized Representative (e.g. , Trustee, General Partner, Corporate Officer, Custodian, etc.)

•

Please provide written documentation with this Claim Form evidencing your current authority to execute this document on behalf of the Settlement Class Member.

QUESTIONS? CALL 1-800-231-1815 TO LL FRE=E OR VISIT 1/1/VWoJ.GCGINC.COM/CASES/BARRO N-UBP •


•

•

• 5 11111111111111111111111111111111111111111111111111111111111111111 •

THIS PROOF OF CLAIM MUST BE POSTMARKED NO LATER THAN JANUARY 14, 2013, AND MUST BE MAILED TO:

Barron v. lgolnikov c/o The Garden City Group, Inc.

Claims Administrator P. 0 . Box 9349

Dublin, OH 43017-4249

A Claim Form rece1ved by the Claims Administrator shall be deemed to have been submitted when posted, if mailed by January 14, 2013 and if a postmark is indicated on the envelope and it is mailed by first-class mail and addressed in accordance with the above instructions. In all other cases, a Claim Form shall be deemed to have been submitted when actually received by the Claims Administrator.

REMINDER CHECKLIST

1. Please be sure that the above release and certification has been signed by the Settlement Class Member(s) or an authorized representative or representatives.

2. Please do not highlight any portion of this Claim Form or supporting documentation if an Investment Amount Challenge is made.

3. Keep for your own records copies of the completed Claim Form and any supporting documentation if an Investment Amount Challenge is made.

4. The Claims Administrator will acknowledge receipt of your Claim Form by mail, within 60 days. Your Claim Form is not deemed filed until you receive an acknowledgement postcard . If you do not receive an acknowledgement postcard within 60 days, please call the Claims Administrator toll free at 1-800-231-1815.

5. If the address identified in Part I above changes in the future, please send the Claims Administrator written notification of the new address.

6. Remember that to submit a valid claim you DO NOT need to attach copies of ANY documentation in support of the pre-calculated Investment Amount as set forth in Part Ill above and on the Claim Amount Table next to your ID Number, unless you wish to dispute the calculation of your Investment Amount. However, if you wish to dispute your pre-calculated Investment Amount, you must follow the procedures and submit copies of the additional documentation set forth in Part IV above. In such event, submit only copies of the supporting documentation. Orig inal documents cannot be returned to you by the Claims Administrator.

7. If you have any questions or concerns regarding the Claim Form, you may contact the Claims Administrator, The Garden City Group, Inc., at the above address or by toll-free phone at 1-800-231-1815.

QUESTIONS? CALL 1-800-231-1815 TOLL FREE OR VISIT WWW.GCGINC.COM/CASES/BARRON-UBP •


•


QUESTIONS? CALL 1-800-231-1 815 TOLL FREE OR V ISIT WVVW.GCGINC.COM/CASES/BARRON-UBP •



ANDREA BARRON, on behalf of herself and all others similarly situated,

Plaintiff,

V.

ROMAN IGOLNIKOV, SHELDON S. GORDON, MATTHEW STADTMAUER, UNION BANCAIRE PRIVEE, UNION BANCAIRE PRIVEE ASSET MANAGEMENT LLC, UBPI HOLDINGS, INC., DANIEL DE PICCIOTTO, MICHAEL DE PICCIOTTO, GUY DE

Civil Action No. 09-CV-4471 (TPG) ECF Case

PI CCI OTTO, and CHRISTOPHE BERNARD,

Defendants

NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT, (II) SETTLEMENT FAIRNESS HEARING, AND (Ill) MOTION

FOR ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES ADDRESSED TO IDENTIFIED SETTLEMENT CLASS MEMBERS

A Federal Court authorized this Notice. This is not a solicitation from a Iawver.

NOTICE OF PENDENCY OF CLASS AcTION: Please be advised that you are being sent this notice to inform you of the pendency of this class action litigation (the "Action") in the United States District Court for the Southern District of New York (the "Court") because you have been identified by Defendants as a member of the Settlement Class (as defined in paragraph 22 below). As such, your rights will be affected by the pendency and the proposed Settlement of the Action. 1

NOTICE OF SETTLEMENT: Please also be advised that plaintiff Andrea Barron ("Plaintiff"), on behalf of herself and the Settlement Class (defined in 1[22 below), has reached a proposed settlement of the Action with defendants Union Bancaire Privee, UBP SA ("UBP"), Union Bancaire Privee Asset Management LLC ("UBPAM"), UBPI Holdings, Inc. ("UBPIH"), Roman lgolnikov, Sheldon S. Gordon, Matthew Stadtmauer, Daniel de Picciotto, Michael de Picciotto, Guy de Picciotto, and Christophe Bernard (collectively, the "Defendants") for a total of $6,900,000 in cash that, if approved, vvll resolve all claims in the Action of all persons and entities who held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby, except for certain excluded persons and entities as set forth in paragraph 22 below.

PLEASE READ THIS NOTICE CAREFULLY. This Notice explains important rights you have with respect to the proposed Settlement, including what you have to do to receive a cash payment from the Settlement. Your legal rights will be affected whether or not you act.

1. Description of the Action and Class: This Notice relates to a proposed settlement of claims in a class action lavvsuit alleging that Defendants mismanaged Selectinvest ARV LP and other funds offered or managed by UBP or its affiliates and subsidiaries (the "UBP Funds") by investing a portion of the collective assets of each of the UBP Funds with certain "feeder" hedge funds, including Ascot Partners L.P. (the "Ascot Fund"), which in turn placed their assets solely or primarily under management vvith Bernard L. Madoff Investment Securities LLC, an investment advisory service founded by Bernard L. Madoff. The proposed Settlement, if approved by the Court, will settle claims of all persons and entities V'vtlo held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby except for: (a) certain persons and entities affiliated with the Dele ndants that are excluded from the class by definition (see paragraph 23 below), (b) persons and entities that previously submitted a release of claims concerning Selectinvest ARV LP's investment in the Ascot Fund (see paragraph 24 below), and (c) persons and entities that validly elect to exclude themselves from the class (see paragraphs 61 to 63 below) (the "Settlement Class").

2. The Settlement Consideration: Subject to Court approval, and as described more fully below, Plaintiff, on behalf of herself and the other members of the Settlement Class, has agreed to settle all claims asserted against Defendants in the Action by Settlement Class Members in exchange for a settlement payment of $6,900,000 in cash (the "Settlement Amount") to be deposited into an escrow account. The Settlement Amount together with any interest earned thereon V'vtlile on deposit in the escrow account is referred to as the "Settlement Fund". The "Net Settlement Fund" (the Settlement Fund less Taxes, Notice and Administration Costs, and any attorneys' fees and Litigation Expenses a\fvarded by the Court) will be distributed in accordance with a plan of allocation that must be approved by the Court, and which will determine how the Net Settlement Fund shall be allocated among members of the Settlement Class. The proposed plan of allocation (the "Plan of Allocation") is set forth on pages 6 - 7 below. Defendants are not obligated to pay Plaintiff or any other Settlement Class Member any amount over and above the Settlement Amount in connection vvith the Settlement

3. Application for Attorneys' Fees and Expenses: Plaintiff's Counsel, Bernstein Litovvitz Berger & Grossmann LLP, which has been prosecuting the Action on a V'vtlolly contingent basis since its inception in 2009, has not received any payment of attorneys' fees for its representation of the class, and has advanced the funds to pay expenses necessarily incurred to prosecute the Action. Plaintiff's Counsel vvll apply to the Court for (a) an award of attorneys' fees from the Settlement Fund in the amount of 30% of the Settlement Fund; and (b) reimbursement of Litigation Expenses paid or incurred in connection vvith prosecuting and settling the Action, in an amount not to exceed $80,000, to be paid from the Settlement Fund.

1 All capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings provided in the Stipulation and Agreement of Settlement dated September 12, 2012 (the "Stipulation"), which is available on the website page established for the Settlement at www. qc qi n c . com/cases/barron-u bp .


4. Identification of Attorneys' Representatives: Plaintiff and the Settlement Class are represented by Gerald H. Silk, Esq. and Lauren A. McMillen, Esq., of Bernstein Litowitz Berger & Grossmann LLP. Any questions regarding the Settlement should be directed to Ms. McMillen at Bernstein Litowitz Berger & Grossmann LLP, 1285 Avenue of the Americas, New York, NY 10019, (800) 380-8496, [email protected].

5. Reasons ·for the Settlement: Plaintiffs principal reason for entering into the Settlement is the substantial cash benefit payable to the Settlement Class now, vvithout further risk or the delays inherent in further litigation. The cash benefit under the Settlement must be considered against the significant risk that no recovery at all might be achieved through the litigation. In the absence of the Settlement, the risk of no recovery in the Action was substantial because the Action had been dismissed vvith prejudice by the Court in March 2010. Even if Plaintiff had succeeded in reversing the dismissal on appeal, there would be additional risks of sustaining the claims through contested motions, at trial and on further appeals, a process that could last several years. For Defendants, who deny all allegations of wrongdoing or liability whatsoever, the principal reason for entering into the Settlement is to eliminate the expense, risks, and uncertainty of further litigation.

YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT

REMAIN A MEMBER OF THE This is the only way for you to get a payment from the Settlement. If you remain in the SETTLEMENT CLASS AND SUBMIT A Settlement Class, you will be bound by the Settlement as approved by the Court and you CLAIM FORM POSTMARKED NO vvill give up any Released Plaintiff Claims (as defined in ,-r 51 belov0 that you have against LATER THAN JANUARY 14, 2013 Defendants and the other Released Defendant Persons (defined in ,-r 52 below); so, if you

remain in the Settlement Class, it is in your interest to submit a Claim Form (which is included vvith this Notice) 2

EXCLUDE YOURSELF FROM THE If you exclude yourself from the Settlement Class, you will not get any payment from the SETTLEMENT CLASS BY SUBMITTING Settlement Fund. This is the only option that allows you to ever be or remain part of any A WRITTEN REQUEST FOR other lawsuit against any of the Defendants or the other Released Defendant Persons EXCLUSION SO THAT IT IS RECEIVED concerning the Released Plaintiff Claims. NO LATER THAN NOVEMBER 21,2012.

OBJECT TO THE SETTLEMENT BY If you do not like the proposed Settlement, the proposed Plan of Allocation, or the request SUBMITTING A WRITTEN OBJECTION for attorneys' fees and reimbursement of expenses, you may write to the Court and SO THAT IT IS RECEIVED NO LATER explain why you do not like them. You cannot object to the Settlement, the Plan of THAN NOVEMBER 21, 2012. Allocation , or the fee and expense request if you exclude yourself from the Settlement

Class.

GO TO THE HEARING ON DECEMBER Filing a written objection and notice of intention to appear by November 21, 2012 allows 12, 2012 AT 4:30 P.M., AND FILE A you to speak in Court about the fairness of the proposed Settlement, the Plan of NOTICE OF INTENTION TO APPEAR SO Allocation, or the request for attorneys' fees and reimbursement of expenses. If you THAT IT IS RECEIVED NO LATER THAN submit a written objection, you may (but do not have to) attend the hearing and speak to NOVEMBER 21, 2012. the Court about your objection.

DO NOTHING. If you do not submit a Claim Form by January 14, 2013, you will not receive any payment from the Settlement Fund. You will , however, remain a member of the Settlement Class, which means that you give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action.

WHAT THIS NOTICE CONTAINS

Why Did I GetThis Notice? . . . . . . .. . . . .. .. . . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . ..... .... .. ... ..... .. ... .. ... ... .......... ......... .. ... .. ..... ... . Page 3 What Is This Case About? What Has Happened So Far? .. .. ...... ....... ........ ................ ........ ........ ...... ........... .... ........... ...... ........... .. .... Page 3 How Do I Know If I Am Affected By The Settlement?. . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . .. . . . . .. . . . . . . . .. . . . . . .. . . . . ... . . ... .................. Page 4 What Are Plaintiff's Reasons For The Settlement? . .. .. .... ...... . . .. ... ....... ... ..... . . .. ... ... .... . . .. ... ....... . .. Page 4 What Might Happen If There Were No Settlement?... ... ..... ........ .. .... .... .. ... ... ....... .... .... .... ... .... ... .... . ... ....... .......... Page 5 How Much Will My Payment Be? . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . .. .. . .. .. .. .. .. .. .. .. .......... .......... Page 5 What Rights Am I Giving Up By Remaining In The Settlement Class? ... ........ ..... .. ........ ....... .. ......... .... ... .... ... ....... ... .... ...... ... ...... .... .. Page 7 What Payment Are The Attorneys For The Settlement Class Seeking? How Will The Lawyers Be Paid? ..... .. .. ...... ....... .. ........ ...... Page 7 How Do I Participate In The Settlement? What Do I Need To Do?.. ............ ............ .. .................. .. Page 8 What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself?.. .. ..... ........... ... .... .... .. Page 8 When And Where Will the Court Decide Whether To Approve The Settlement? Do I Have To Come To The Hearing?

May I Speak AtThe Hearing If I Don't Like The Settlement? .... ... ..... .. ...... .... .... .......... .............. ..... .... ......... ........... .......... .. Page 8 Can I See The Court File? Whom Should I Contact If I Have Questions? ...... .. .... .... ... .... .. ...... ... ...... .. ...... ....... .. ...... ... ...... .. ...... ... .... Page 9

2 PLEASE NOTE: Unlike many other class action sett lements, In this Action each Settlement Class Member's "Investment Amount" and "Loss Amount" have been determined by Defendants based on their records. See "Proposed Plan of Allocation," on page 6 below. Accordingly, you are not required to collect or submit any investment records, account statements or similar evidentiary materials with your Claim Form to establish the amount of your claim under this Settlement. In the event that you wish to obtain a payment from the Settlement, but believe that your Investment Amount set forth in Exhibit 1 to this Notice has been incorrectly calculated , you have the right to challenge the Investment Amount ascribed to you but such challenge must be made in accordan ce with th e provisions of paragraphs 44 and 45 below.

2


WHY DID I GET THIS NOTICE?

6. This Notice is being sent to you pursuant to an Order of the United States District Court for the Southern District of New York (the "Court") because you have been identified by Defendants as a member of the Settlement Class, i.e., a person or entity who held a limited partnership interest in Selectinvest ARV LP as of December 11, 2008 who has not previously executed a release of claims concerning Selectinvest ARV LP's investments in the Ascot Fund. The Court has directed us to send you this Notice because, as a Settlement Class Member, you have a right to know about your options before the Court rules on the proposed Settlement of this case. Additionally, you have the right to understand how a class action la\J\/Suit generally affects your legal rights. If the Court approves the Settlement, a claims administrator selected by Plaintiff and approved by the Court vvill make payments to Settlement Class Members who submit valid Claim Forms pursuant to the Settlement after any objections and appeals are resolved.

7. In a class action la\J\/Suit, one or more plaintiffs, commonly called "named" or "lead" plaintiffs, sue on behalf of all persons or entities that have similar claims, commonly known as "the class" or "the class members." In this Action, Andrea Barron is the named Plaintiff, and she is represented in the Action by Plaintiff's Counsel. A class action is a type of la\J\/Suit in which the claims of a number of persons or entities are resolved together in one proceeding, thus providing class members vvith both consistency and efficiency. Once the class is certified, the Court must resolve all issues on behalf of the class members, except for any persons or entities that choose to exclude themselves from the class. (For more information on excluding yourself from the Settlement Class, please read 'What If I Do Not WantTo Be A Member OfThe Settlement Class? How Do I Exclude Myself?," on page 8 below.)

8. The Court in charge of this case is the United States District Court for the Southern District of New York, and the case is knov;n as Barron v. lgolnikov eta/., Civil Action No. 09-CV-4471 (TPG). The Judge presiding over this case is The Honorable Thomas P. Griesa, United States District Judge. The person who is suing is called the Plaintiff, and the companies and individuals she is suing are called the Defendants. If the Settlement is approved, it will resolve all claims of Settlement Class Members against the Defendants in the Action.

9. This Notice explains the la\J\/Suit, the Settlement, your legal rights, V'vtlat benefits are available to you, and how to get them. The purpose of this Notice is to inform you of the existence of this case, that it is a class action, and to explain how you are affected and how you may exclude yourself from the Settlement Class if you wish to do so. The Notice is also being sent to inform you of the terms of the proposed Settlement, and of a hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the proposed Settlement, the proposed Plan of Allocation, and the motion by Plaintiff's Counsel for an award of attorneys' fees and reimbursement of Litigation Expenses (the "Settlement Hearing").

10. The Settlement Hearing \Mil be held on December 12, 2012 at 4:30p.m., before The Honorable Thomas P. Griesa in Courtroom 268 of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007-1312, to determine:

(a) whether the proposed Settlement is fair, reasonable, and adequate and should be approved by the Court; (b) whether the Released Plaintiff Claims against Defendants and the other Released Defendant Persons should be settled and

released as set forth in the Stipulation; (c) whether the proposed Plan of Allocation is fair and reasonable and should be approved by the Court; and (d) whether Plaintiff's Counsel's request for an award of attorneys' fees and reimbursement of Litigation Expenses should be

approved by the Court.

11. The proposed Settlement will only resolve the claims of Settlement Class Members and only Settlement Class Members vvill be eligible for compensation under the Settlement, if it is approved. Investors in any of the Other Funds (listed in paragraph 13 below) V'vtlo V\lere not investors in Selectinvest ARV LP are not included in the Settlement Class, their claims, if any, against Defendants are not released pursuant to the Settlement, and they vvill not be eligible for compensation under the Settlement.

12. This Notice does not express any opinion by the Court concerning the merits of any claim in the Action, and the Court still has to decide W1ether to approve the Settlement and the Plan of Allocation. If the Court approves the Settlement, payments to Authorized Claimants vvill be made after any appeals are resolved, and after the completion of all claims processing. Please be patient.

WHAT IS THIS CASE ABOUT? WHAT HAS HAPPENED SO FAR?

13. On May 8, 2009, Plaintiff, an investor in Selectinvest ARV LP, filed the Class Action Complaint (the "Complaint") asserting claims of breach of fiduciary duty, gross negligence and unjust enrichment against Defendants on behalf of a putative class of persons and entities V'vtlo acquired and/or held limited partnership interests or other investment interests in Selectinvest ARV LP or ten other UBP Funds as of December 11, 2008 and were damaged thereby (the "Putative Litigation Class"). The other funds included in the Complaint were Selectinvest ARV II Ltd., Selectinvest ABF Ltd., UBP Multi-Strategy Alpha Fund, DINVEST - Total Return, DINVEST- Concentrated Opportunities, DINVEST- Select I, DINVEST- Select II, DINVEST- Select Ill, DINVEST- Concentrated Opportunities Ill Equity, and TrendSquare I (collectively, the "Other Funds" and with Selectinvest ARV LP, the "UBP Funds").

14. The Complaint alleges that Defendants mismanaged the UBP Funds by investing a portion of the collective assets of each of the UBP Funds with certain "feeder" hedge funds, including the Ascot Fund, which in turn placed their assets solely or primarily under management with Bernard L. Madoff Investment Securities LLC ("BMIS"), an investment advisory service founded by Bernard L. Madoff that was, in fact, a massive Ponzi scheme. The Complaint alleges that Defendants were grossly negligent and breached their fiduciary obligations to the Putative Litigation Class by failing to perform adequate due diligence into BMIS and failing to monitor the UBP Funds' investments \Mth BMIS.

15. In June and July of 2009, the Defendants filed motions to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "Motion to Dismiss"). On June 18, 2009, Plaintiff filed her memorandum of law in opposition to the Motion to Dismiss.

3


16. On March 10, 2010, the Court issued an Opinion granting the Motion to Dismiss, dismissing the Action in its entirety on the grounds that Plaintiff's claims were precluded by the Securities Litigation Uniform Standards Act ("SLUSA"), 15 U.S. C. §§ 78bb, 77p, and were preempted by New York's Martin Act, N.Y. Gen. Bus. Law§ 352 et seq. The Judgment granting Defendants' Motion to Dismiss was entered by the Clerk of the Court on March 15, 2010 (the "Dismissal Order"). The Putative Litigation Class was never certified by the Court

17. On April 13, 2010, Plaintiff filed a Notice of Appeal of the Dismissal Order to the United States Court of Appeals for the Second Circuit (the "Second Circuit"). On August 6, 2010, Plaintiff filed her appellant's brief in the Second Circuit; on December 2, 2010, Defendants filed their appellees' brief; and on January 7, 2011, Plaintiff filed her reply brief. On March 1, 2011, the Second Circuit heard oral argument on Plaintiff's appeal of the Dismissal Order. The appeal was under consideration by the appellate court at the time the agreement in principle to settle was reached.

18. On February 27, 2012, the Parties reached an agreement in principle to settle the Action on terms that vvill release the claims of Plaintiff and investors in Selectinvest ARV LP V'vtlo are members of the Settlement Class.

19. On February 27, 2012, the Parties filed with the Second Circuit a stipulation to suspend the appeal vvthout prejudice pursuant to Local Appellate Rule 42.1, and to remand the Action to the Court for the sole purpose of providing the Court vvth jurisdiction to review the proposed Settlement, vvithout prejudice to Plaintiff's right to reinstate the appeal if the Settlement does not become final for any reason. On March 9, 2012, the Second Circuit granted the motion for limited remand of the Action to the Court for purposes of reviewing the proposed Settlement.

20. Follovving further discussions and negotiations, on September 12, 2012 the Parties executed the Stipulation and Agreement of Settlement (the "Stipulation"), setting forth the terms and conditions of the Settlement

21. On October 1, 2012, the Court entered an Order Preliminarily Approving Proposed Settlement and Providing for Notice, V'vtlich preliminarily approved the Settlement, certified the Settlement Class for Settlement purposes only, authorized this Notice of Settlement to be sent to the Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval to the Settlement

HOW DO I KNOW IF I AM AFFECTED BY THE SETTLEMENT?

22. The Settlement Class consists of:

All persons and entities who held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby

Excluded from the Settlement Class are all "Defendant Excluded Persons" (defined in paragraph 23 below) and all "Barred Excluded Persons" (defined in paragraph 24 below).

The Settlement Class also does not include those persons and entities V'vtlo timely request exclusion from the Settlement Class (see 'What If I Do NotWantTo Be A Member OfThe Settlement Class? How Do I Exclude Myself?" on page 8 below).

23. "Defendant Excluded Persons" means: Defendants; the members of each Individual Defendant's Immediate Family; any affiliate or subsidiary of UBP or UPBAM including each of the UBP Funds; the executive officers and directors of UBP; the executive officers and directors of each of UBP's affiliates and subsidiaries (including, but not limited to, UBPAM and each of the UBP Funds); the fund managers of each of the UBP Funds; any entity in which any of the foregoing excluded persons or entities has or had a controlling interest; and the legal representatives, heirs, beneficiaries, successors and assigns of any such excluded person or entity; provided, hoV\Iever, that Defendant Excluded Persons does not include any Defendant and/or any affiliate or subsidiary of any Defendant acting as a nominee, a fiduciary, or an investment vehicle on behalf of any person or entity that is not a Defendant Excluded Person, Barred Excluded Person or person or entity who has been excluded from the Settlement Class pursuant to request, but only to the extent that it is acting as such.

SETTLEMENT CLASS MEMBERS WHO WISH TO PARTICIPATE IN THE DISTRIBUTION OF PROCEEDS FROM THE SETTLEMENT MUST SUBMIT THE CLAIM FORM THAT IS BEING DISTRIBUTED WITH THIS SETTLEMENT NOTICE POSTMARKED NO LATER THAN JANUARY 14,2013.

24. Defendants have identified certain persons and entities V'vtlo held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 but who, according to Defendants, previously executed releases of claims concerning Selectinvest ARV LP's investments in the Ascot Fund. The persons and entities identified by Defendants as having executed prior releases of the claims are referred to as "Barred Excluded Persons". Specifically, "Barred Excluded Persons" means all persons or entities V'vtlo held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and V'vtlo have been designated by Defendants as having executed a release of claims against UBPAM and/or one or more of the other Released Defendant Persons concerning Selectinvest ARV LP's investments in the Ascot Fund.

25. Barred Excluded Persons are not members of the Settlement Class, will not be eligible for any payment under the Settlement, and will not be bound by the Judgment in this Action.

WHAT ARE PLAINTIFF'S REASONS FOR THE SETTLEMENT?

26. Plaintiff and Plaintiff's Counsel believe that the claims asserted against Defendants have merit. However, the claims asserted in the Complaint were dismissed with prejudice by the Court on March 15, 2010. Although the dismissal was appealed to the Court of Appeals for the Second Circuit, Plaintiff and Plaintiff's Counsel recognize that the dismissal could have been sustained, in which case, the Action \J\/Ould be terminated without any recovery.

4


27. Plaintiff and Plaintiff's Counsel also considered that, even if the Court of Appeals reversed the dismissal of the Complaint, and remanded the case to the District Court, the expense and length of reneV\Ied proceedings necessary to pursue the claims against Defendants through another motion to dismiss, motion for class certification, motion for summary judgment, trial and appeals, as well as the difficulties in establishing liability at trial that this Action presented, vvould be extensive. Plaintiff and Plaintiff's Counsel considered the dismissed claims that are currently on appeal, as V\lell as arguments that \J\/Ould be advanced by Defendants in any potentially remanded proceedings, including that Plaintiff vvould be unable to establish that the Court has jurisdiction over the foreign defendants; and that Plaintiff did not sufficiently allege and could not demonstrate that Defendants V\lere grossly negligent, and, therefore, they could not be held liable under the applicable fund partnership agreements.

28. In light of these risks, the amount of the Settlement and the immediacy of recovery to the Settlement Class, Plaintiff and Plaintiff's Counsel believe that the proposed Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class. Plaintiff and Plaintiff's Counsel believe that the Settlement provides a substantial benefit to the Settlement Class, namely $6,900,000 in cash (less the various deductions described in this Settlement Notice), as compared to the risk that the claims in the Action \J\/Ould produce no recovery if the Court's dismissal V\lere sustained on the current appeal or, even if the case V\lere reinstated on the current appeal, if the claims were again dismissed on summary judgment or if there V\lere an adverse determination after trial or on a subsequent appeal. There \fvaS also a risk that, even if Plaintiff ultimately prevailed, any recovery might be smaller than the Settlement Amount and \J\/Ould not be obtained until possibly years in the future after the case \fvaS fully litigated.

29. Defendants have denied the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever. Defendants have agreed to the Settlement solely to eliminate the burden and expense of continued litigation. Accordingly, the Settlement may not be construed as an admission of any Defendant's V'vfongdoing.

WHAT MIGHT HAPPEN IF THERE WERE NO SETTLEMENT?

30. If there V\lere no Settlement and Plaintiff failed to obtain from the Second Circuit a reversal of the dismissal of the Complaint or, even if the Second Circuit reversed the dismissal in some or all respects, and Plaintiff thereafter failed to establish any essential legal or factual element of her claims, then neither Plaintiff nor the other members of the Settlement Class \J\/Ould recover anything from Defendants. Also, if Defendants were successful in proving any of their defenses following a reversal of the dismissal, Settlement Class Members could recover substantially less than the amount provided in the Settlement, or nothing at all.

HOW MUCH WILL MY PAYMENT BE?

31. At this time, it is not possible to state with certainty how much any individual Settlement Class Member may receive from the Settlement

32. Pursuant to the Settlement, UBP and/or UBPAM have agreed to pay or cause to be paid six million nine hundred thousand dollars ($6,900,000) in cash (the "Settlement Amount"). The Settlement Amount will be deposited into an escrow account The Settlement Amount plus any interest earned thereon is referred to as the "Settlement Fund." If the Settlement is approved by the Court and the Effective Date occurs, the "Net Settlement Fund" (that is, the Settlement Fund less (a) all federal, state and local taxes on any income earned by the Settlement Fund and the costs incurred in connection with determining the amount of any such taxes (including the expenses of tax attorneys and accountants); (b) the costs and expenses incurred in connection vvith providing notice to Settlement Class Members and Barred Excluded Persons and administering the Settlement on behalf of Settlement Class Members; and (c) any attorneys' fees and Litigation Expenses awarded by the Court) vvll be distributed to Settlement Class Members as set forth in the proposed plan of allocation (the "Plan of Allocation") or such other plan as the Court may approve.

33. The Net Settlement Fund will not be distributed until the Court has approved a plan of allocation, and the time for any petition for rehearing, appeal or review, whether by certiorari or othervvise, has expired.

34. Neither Defendants nor any other person or entity that paid any portion of the Settlement Amount on their behalf are entitled to get back any portion of the Settlement Fund once the Court's Order or Judgment approving the Settlement becomes F ina I. Defendants shall not have any liability, obligation or responsibility for disbursement of the Net Settlement Fund or the Plan of Allocation.

35. Approval of the Settlement is independent from approval of the plan of allocation. Any determination with respect to the plan of allocation will not affect the Settlement, if approved.

36. Each Settlement Class Member vvishing to receive his, her or its share of the Net Settlement Fund must submit a valid Claim Form postmarked on or before January 14, 2013 to the address set forth in the Claim Form that accompanies this Notice.

37. Unless the Court otherwise orders, any Settlement Class Member that fails to submit a Claim Form postmarked on or before January 14, 2013 shall be fully and forever barred from receiving payments pursuant to the Settlement but will in all other respects remain a Settlement Class Member and be subject to the provisions of the Stipulation, including the terms of any Judgment entered and the releases given. This means that each Settlement Class Member releases the Released Plaintiff Claims (as defined in paragraph 51 below) against the Released Defendant Persons (as defined in paragraph 52 below) and will be enjoined and prohibited from filing, prosecuting, or pursuing any of the Released Plaintiff Claims against any of the Released Defendant Persons regardless of whether or not such Settlement Class Member submits a Claim Form.

38. The Court has reserved jurisdiction to allow, disallow, or adjust on equitable grounds the Claim of any Settlement Class Member.

39. Each Settlement Class Member shall be deemed to have submitted to the jurisdiction of the United States District Court for the Southern District of New York with respect to his, her or its Claim.

5


40. Any Settlement Class Member V'vtlo requests exclusion from the Settlement Class will not be eligible to receive a distribution from the Net Settlement Fund and should not submit a Claim Form.

PROPOSED PLAN OF ALLOCATION

41. Based on information provided by Defendants, Plaintiffs Counsel has assembled the "Claim Amount Table" set forth on Exhibit 1 to this Notice. The Claim Amount Table sets forth (a) the amount of each Settlement Class Member's equity investment in Selectinvest ARV LP as of November 1, 20083

, as provided by Defendants (the "Investment Amount") and (b) an amount, calculated by Defendants, representing each Settlement Class Member's pro rata portion of Selectinvest ARV LP's total exposure to the Ascot Fund as of November 1, 2008 (the "Loss Amount"). To preserve each Settlement Class Member's confidentiality, each Settlement Class Member is identified in the Claim Amount Table only by a unique identification number. Your identification number is indicated in the individualized cover letter that accompanied this Settlement Notice, so that you can review the information applicable to you in the Claim Amount Table.

42. The objective of the Plan of Allocation is to equitably distribute the Settlement proceeds to Settlement Class Members. The Plan of Allocation is not intended to provide estimates of, nor be indicative of, the amounts that Settlement Class Members might have been able to recover after a trial. The Investment Amounts, which have been provided by Defendants, will be used to V\leigh the claims of Authorized Claimants against one another for the purposes of making pro rata allocations of the Net Settlement Fund. 4 The actual amount of the payment received, V'vtlich vvill be a pro rata share of the Net Settlement Fund, will depend upon several factors, including (a) how many Settlement Class Members submit valid Claim Forms, (b) whether there are any successful Investment Amount Challenges, and (c) whether any persons or entities who are not listed on Exhibit 1 are later determined to be Settlement Class Members.

43. The Loss Amounts set forth in the Claim Amount Table are provided for informational purposes as an estimate of the portion of each Settlement Class Member's Investment Amount that was exposed to the Ascot Fund as of November 1, 2008. 5 Loss Amounts are not intended to be estimates of the amounts that vvill be paid pursuant to the Settlement to Authorized Claimants.

44. In the event that you believe that your Investment Amount as set forth on the Claim Amount Table is incorrect, you may challenge the Investment Amount by submitting evidence (such as account statements provided to you by UBP, UBPAM or Selectinvest ARV LP, or supporting affidavits) in support of your position that your Investment Amount was incorrectly calculated. The submission of such a challenge is referred to as an "Investment Amount Challenge."

45. Investment Amount Challenges must be noted in your Claim Form, which must be properly executed and submitted to the Claims Administrator in accordance with the instructions and requirements set forth in the Claim Form, and it must be postmarked no later than January 14, 2013. The Claims Administrator and Plaintiff's Counsel vvill review any Investment Amount Challenges. If the Investment Amount Challenge cannot be resolved by the parties, the challenging Settlement Class Member may, if he, she or it wishes, pursue the challenge by asking that the dispute be submitted to the Court for review.

46. After resolution of any Investment Amount Challenges, each Authorized Claimant will receive a pro rata payment from the Net Settlement Fund which shall be the Authorized Claimant's Investment Amount divided by the total of the Investment Amounts of all Authorized Claimants, multiplied by the total amount in the Net Settlement Fund.

ADDITIONAL PROVISIONS

47. If any funds remain in the Net Settlement Fund because of uncashed distribution checks or other reasons, then, after the Claims Administrator has made reasonable and diligent efforts to have Authorized Claimants cash their distribution checks, any balance remaining in the Net Settlement Fund six (6) months after the initial distribution of such funds shall be redistributed to Authorized Claimants who have cashed their initial distribution and V'vtlo VvOuld receive at least $20 from such redistribution, after payment of any unpaid costs or fees incurred in administering the funds, including for such redistribution. Additional redistributions to Authorized Claimants who have cashed their prior distribution checks and who VvOuld receive at least $20 on such additional redistributions, subject to the conditions previously noted, may occur thereafter if Plaintiff's Counsel, in consultation vvith the Claims Administrator, determines that additional redistribution, after the deduction of any additional fees and expenses that \J\/Ould be incurred with respect to such redistributions, \J\/Ould be cost-effective.

48. Payment pursuant to the Plan of Allocation, or such other plan as may be approved by the Court, shall be conclusive against all Authorized Claimants. No person shall have any claim against Plaintiff, Plaintiff's Counsel, Defendants, Defendants' Counsel or any of the other Released Defendant Persons, or the Claims Administrator or other agent designated by Plaintiff's Counsel arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or further orders of the Court. Plaintiff, Defendants, Defendants' Counsel and the other Released Defendant Persons shall have no responsibility or liability V'vtlatsoever for the investment or distribution of the Settlement Fund, the Net Settlement Fund, the Plan of Allocation, or the determination, administration, or payment of any Claim Form or nonperformance of the Claims Administrator, the payment or withholding of any taxes owed by the Settlement Fund, or any losses incurred in connection therevvith.

3 November 1, 2008 was the date as of which Selectinvest ARV LP wrote down its position in the Ascot Fund to zero. 4 An "Authorized Claimant" is a Settlement Class Member who submits a properly executed Claim Form to the Claims Administrator, in accordance with the requirements set forth in this Settlement Notice that is approved for payment from the Net Settlement Fund. 5 The Loss Amount for each Settlement Class Member was calculated by Defendants in the following manner: each Settlement Class Member's percentage interest in Selectinvest ARV LP was determined by dividing the Settlement Class Member's Investment Amount by the total equity of Selectinvest ARV LP as of November 1, 2008 as set forth in the books and records of Selectinvest ARV LP. That percentage was then multiplied by Selectinvest ARV LP's total exposure to the Ascot Fund as of November 1, 2008 as set forth in the books and records of Selectinvest ARV LP to determine the Settlement Class Member's Loss Amount.

6


49. The Plan of Allocation set forth herein is the plan that is being proposed by Plaintiff and Plaintiff's Counsel to the Court for approval. The Court may approve this plan as proposed or it may modify the Plan of Allocation without further notice to the Class. Any orders regarding a modification of the Plan of Allocation will be posted to the settlement website page, WNVV.qcginc.com/cases/barron-ubp.

WHAT RIGHTS AM I GIVING UP BY REMAINING IN THE SETTLEMENT CLASS?

50. If you remain in the Settlement Class, you will be bound by any orders issued by the Court If the Settlement is approved, the Court will enter a judgment (the "Judgment") that will release claims of Settlement Class Members against Defendants. Specifically, the Judgment will provide that, upon the Effective Date of the Settlement, Plaintiff and each of the members of the Settlement Class, on behalf of themselves, their respective heirs, executors, administrators, predecessors, successors, and assigns, shall be deemed by operation of law to have released, waived, discharged, and dismissed each and every Released Plaintiff Cia im (as defined in paragraph 51 below) against any of the Released Defendant Persons (as defined in paragraph 52 below) and shall forever be enjoined from prosecuting any and all Released Plaintiff Claims against any of the Released Defendant Persons. In addition, if the Settlement is approved, following the Effective Date of the Settlement, the parties vvll stipulate to the dismissal of Plaintiff's appeal from the March 15, 2010 Dismissal Order and the Dismissal Order shall thereafter remain in effect as a final judgment of the Court dismissing the claims asserted in the Complaint with prejudice.

51. "Released Plaintiff Claims" means all claims, demands, rights, actions, causes of action, liabilities, damages, losses, obligations, judgments and suits of every nature and description, V'vtlether contingent or absolute, suspected or unsuspected, disclosed or undisclosed, including both knoV'vTl claims and Unknown Claims, V'vtlether arising under federal, state, common or foreign law, whether class or individual in nature, to the fullest extent that the law permits their release in this Action, that Plaintiff or any other Settlement Class Member (a) asserted in the Complaint, or (b) ever had or now has, or may have by reason of, arising out of, relating to or in connection vvith the allegations, facts, events, transactions, acts, occurrences, statements, representations, misrepresentations or omissions, that were set forth or referred to in the Complaint and that relate to a Settlement Class Member's investment in any UBP Fund.

52. "Released Defendant Persons" means Defendants, the UBP Funds, any other investment fund distributed, managed and/or advised by UBP or UBPAM, and each of their respective past or present affiliates, parents, members, and subsidiaries, and each and all of their officers, directors, employees, managers, indirect or direct shareholders, partners, principals, attorneys, agents, insurers, representatives, accountants, predecessors, successors and assigns; and with respect to the Individual Defendants, their respective Immediate Family members, heirs, executors, administrators, and assigns.

53. "Unknown Claims" means any Released Plaintiff Claims which Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Defendant Claims which any Defendant or any other Released Defendant Person does not know or suspect to exist in his, her or its favor at the time of the release of such claims, which, if knoV'vTl by him, her or it, might have affected his, her or its decision(s) vvith respect to the Settlement. With respect to any and all Released Plaintiff Claims and Released Defendant Claims, the Parties stipulate and agree that, upon the Effective Date, Plaintiff and each of the Defendants shall expressly waive, and each of the other Settlement Class Members and each of the other Released Defendant Persons shall be deemed to have waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable or equivalent to California Civil Code §1542, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR

Plaintiff and each of the Defendants acknowledge, and each of the other Settlement Class Members and each of the other Released Defendant Persons shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement

54. The Judgment also will provide that, upon the Effective Date of the Settlement, Defendants and each of the other Released Defendant Persons, on behalf of themselves, their respective heirs, executors, administrators, predecessors, successors, and assigns, shall be deemed by operation of law to have released, waived, discharged, and dismissed any and all claims, demands, rights, actions, causes of action, liabilities, damages, losses, obligations, judgments and suits of every nature and description, V'vtlether contingent or absolute, suspected or unsuspected, disclosed or undisclosed, including both knoV'vTl claims and Unknown Claims, whether arising under federal, state, common or foreign law, that any Defendant or any other Released Defendant Person has or may have arising out of or relating in any way to the institution, prosecution, or settlement of the claims asserted in the Action (except for claims relating to the enforcement of the Settlement), and shall forever be enjoined from prosecuting any or all such claims, against Plaintiff, the other Settlement Class Members, and each of their respective past or present affiliates, parents, members, and subsidiaries, and each and all of their officers, directors, employees, managers, indirect or direct shareholders, partners, principals, attorneys, agents, representatives, accountants, predecessors, successors, and assigns; and with respect to individuals, their respective Immediate Family members, heirs, executors, administrators, and assigns.

WHAT PAYMENT ARE THE ATTORNEYS FOR THE SETTLEMENT CLASS SEEKING? HOW WILL THE LAWYERS BE PAID?

55. Plaintiff's Counsel has not received any payment to date for its services in pursuing claims against the Defendants on behalf of the Settlement Class, nor has Plaintiff's Counsel been reimbursed for any of its out-of-pocket expenses. Before final approval of the Settlement, Plaintiff's Counsel will apply to the Court for an award of attorneys' fees from the Settlement Fund in the amount of 30% of the Settlement Fund. At the same time, Plaintiff's Counsel also intends to apply for the reimbursement of Litigation Expenses

7


not to exceed $80,000, to be paid from the Settlement Fund. The Court will determine the amount of any award of attorneys' fees or reimbursement of Litigation Expenses. Settlement Class Members are not individually responsible for any of Plaintiff's Counsel's attorneys' fees or expenses.

HOW DO I PARTICIPATE IN THE SETTLEMENT? WHAT DO I NEED TO DO?

56. To be eligible for a payment from the proceeds of the Settlement, you must execute and complete a Claim Form and submit it to the Claims Administrator at the address indicated in the Claim Form postmarked no later than January 14, 2013. A Claim Form is included vvith this Notice, or you may obtain one from the website page maintained by the Claims Administrator for the Settlement, V'v\IVW.gcginc.com/cases/barron-ubp, or from Plaintiff's Counsel's website, V'v\IVW.blbglaw.com. You may also request that a Claim Form be mailed to you by calling the Claims Administrator at 1-800-231-1815. If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund.

57. PLEASE NOTE: Your "Investment Amount" has already been determined by Defendants based on their records. See "Proposed Plan of Allocation," above. Accordingly, you are not required to submit any account statements or similar evidentiary materials with your Claim Form to establish the amount of your claim under this Settlement, unless you wish to file an Investment Amount Challenge (in which case you must follow the additional procedures set forth in paragraphs 44 and 45 above).

58. As a Settlement Class Member, you are represented by Plaintiff and Plaintiff's Counsel, unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her notice of appearance on the attorneys listed in the section entitled, 'When And Where Will The Court Decide Whether To Approve The Settlement?," below.

59. If you do not wish to remain a Settlement Class Member, you may exclude yourself from the Settlement Class by following the instructions in the section entitled, 'What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself?" below.

60. If you wish to object to the Settlement, the proposed Plan of Allocation, or Plaintiff's Counsel's motion for attorneys' fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Settlement Class, you may present your objections by follovvng the instructions in the section entitled, 'When And Where Will The Court Decide Whether To Approve The Settlement?," below.

WHAT IF I DO NOT WANT TO BE A MEMBER OF THE SETTLEMENT CLASS? HOW DO I EXCLUDE MYSELF?

61. You will be bound by all determinations and judgments in this la\J\/Suit, including those concerning the Settlement, whether favorable or unfavorable, unless you mail or deliver a written Request for Exclusion from the Settlement Class, addressed to Barron v. lgolnikov, EXCLUSIONS, c/o The Garden City Group, Inc., P.O. Box 9349, Dublin, OH 43017-4249. The exclusion request must be received no later than November 21, 2012. You will not be able to exclude yourself from the Settlement Class after that date. Each Request for Exclusion must (a) state the name, address and telephone number of the person or entity requesting exclusion; (b) state that such person or entity "requests exclusion from the Settlement Class in Barron v. lgolnikov, Civil Action No. 09-CV-4471 (TPG)"; and (c) be signed by the person or entity requesting exclusion or an authorized representative. A Request for Exclusion shall not be effective unless it provides all the information called for in this paragraph and is received vvithin the time stated above, or is otherwise accepted by the Court.

62. Even if you have pending, or later file, another la\J\/Suit, arbitration, or other proceeding relating to any Released Plaintiff Claim against any of the Released Defendant Persons, you must follow these instructions for exclusion if you do not want to be part of the Settlement Class.

63. If you ask to be excluded from the Settlement Class, you vvll not be eligible to receive any payment out of the Net Settlement Fund or any other benefit provided for in the Stipulation.

64. Defendants have the right to terminate the Settlement if valid requests for exclusion are received from Settlement Class Members in an amount that exceeds an amount agreed to by Plaintiff and Defendants. Plaintiff has the right to terminate the Settlement if persons or entities other than those identified as Settlement Class Members by Defendants are determined to be members of the Settlement Class and the aggregate Investment Amount of those persons and entities exceeds an amount agreed to by Plaintiff and Defendants.

WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? DO I HAVE TO COME TO THE HEARING?

MAY I SPEAK AT THE HEARING IF I DON'T LIKE THE SETTLEMENT?

65. Settlement Class Members do not need to attend the Settlement Hearing. The Court will consider any submission made in accordance with the provisions below even if a Settlement Class Member does not attend the hearing. You can participate in the Settlement without attending the Settlement Hearing.

66. The Settlement Hearing will be held on December 12, 2012 at 4:30p.m. before The Honorable Thomas P. Griesa in Courtroom 26B of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007-1312. The Court reserves the right to approve the Settlement and/or the Plan of Allocation at or after the Settlement Hearing without further notice to the members of the Settlement Class.

8


67. Any Settlement Class Member V'vtlo does not request exclusion may object to the proposed Settlement, the proposed Plan of Allocation, or Plaintiff's Counsel's motion for an award of attorneys' fees and reimbursement of Litigation Expenses. Objections must be in VvTiting. Objections must be filed, together vvith copies of all other papers and briefs supporting the objection, vvith the Clerk's Office at the United States District Court for the Southern District of New York at the address set forth below on or before November 21, 2012. The papers must also be served on Plaintiff's Counsel and Defendants' Counsel at the addresses set forth below so that the papers are received by them on or before November 21, 2012.

Clerk's Office

United States District Court For The Southern District Of New York Clerk of the Court Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312

Plaintiff's Counsel

Gerald H. Silk, Esq. Lauren A. McMillen, Esq. Bernstein Litowitz Berger & Grossmann LLP 1285 Avenue of the Americas New York, NY 10019

Defendants' Counsel

Stephen R. DiPrima, Esq. Emil A. Kleinhaus, Esq. Graham W Meli, Esq. Wachtel I, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019

68. Any objection to the Settlement (a) must state the name, address and telephone number of the person or entity objecting and must be signed by the objector; and (b) must contain a statement of his, her or its objection, as V\lell as the specific reasons for each objection, including the legal and evidentiary support that the Settlement Class Member wishes to bring to the Court's attention. You may not object to the Settlement, the Plan of Allocation or the motion for attorneys' fees and reimbursement of expenses if you submit a request for exclusion from the Settlement Class.

69. You may file a Mitten objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection unless you first file and serve a written objection in accordance with the procedures described above, unless the Court orders otherwise.

70. If you \Msh to be heard orally at the hearing regarding the approval of the Settlement, the Plan of Allocation, or Plaintiff's Counsel's request for an award of attorneys' fees and reimbursement of expenses, you must also file a notice of appearance with the Clerk's Office and serve it on Plaintiff's Counsel and Defendants' Counsel at the addresses set forth above so that it is received on or before November 21, 2012. Persons V'vtlo intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing.

71. You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. HoV\Iever, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance vvith the Court and serve it on Plaintiff's Counsel and Defendants' Counsel so that the notice is received on or before November 21, 2012.

72. The Settlement Hearing may be adjourned by the Court without further written notice to the Settlement Class. If you intend to attend the Settlement Hearing, you should confirm the date and time with Plaintiff's Counsel.

73. Unless the Court orders othervvise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation, or Plaintiffs Counsel's request for an award of attorneys' fees and reimbursement of expenses. Settlement Class Members do not need to appear at the hearing or take any other action to indicate their approval.

CAN I SEE THE COURT FILE? WHOM SHOULD I CONTACT IF I HAVE QUESTIONS?

74. This Notice contains only a summary of the terms of the proposed Settlement. For more detailed information about the matters involved in this Action, you are referred to the papers on file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007-1312. Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on the V\lebsite page maintained by the Claims Administrator for this Settlement, V'v\IVW.gcginc.com/cases/barron-ubp. All inquiries concerning this Notice or the Claim Form should be directed to:

Barron v. lgolnikov, c/o The Garden City Group, Inc.

P.O. Box 9349 Dublin, OH 43017-4249

1-800-231-1815

OR Lauren A. McMillen, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP

1285 Avenue of the Americas New York, NY 10019

1-800-380-8496 [email protected]

DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF THE CLERK OF COURT REGARDING THIS NOTICE.

Dated: October 11, 2012

9

By Order of the Clerk of Court United States District Court for the Southern District of New York


EXHIBIT 1

CLAIM AMOUNT TABLE

ID# INVESTMENT

LOSS AMOUNT AMOUNT ID# INVESTMENT

LOSS AMOUNT AMOUNT

1 $ 313,195 $ (15,982) 46 $ 604,593 $ (30,851)

2 $ 2,691,924 $ (137,365) 47 $ 313,191 $ (15,982)

3 $ 923,672 $ (47, 134) 48 $ 1,187,483 $ (60,596)

4 $ 361,277 $ (18,435) 49 $ 1,160,907 $ (59,239)

5 $ 2,163,486 $ (11 0,400) 50 $ 313,191 $ (15,982)

6 $ 6,504,819 $ (331 ,931) 51 $ 483,338 $ (24,664)

7 $ 611,591 $ (31 ,209) 52 $ 985,642 $ (50,296)

8 $ 934,295 $ (47,676) 53 $ 603,677 $ (30,805)

9 $ 6,142,597 $ (313,448) 54 $ 881,968 $ (45,006)

10 $ 324,264 $ (16,547) 55 $ 432,427 $ (22,066)

11 $ 8,113,537 $ (414,022) 56 $ 305,791 $ (15,604)

12 $ 332,862 $ (16,985) 57 $ 907,259 $ (46,296)

13 $ 1,491,315 $ (76, 1 00) 58 $ 1,000,787 $ (51 ,069)

14 $ 364,767 $ (18,614) 59 $ 607,336 $ (30,991)

15 $ 491,075 $ (25,059) 60 $ 607,946 $ (31 ,023)

16 $ 1,491,332 $ (76, 1 00) 61 $ 1,113,213 $ (56,806)

17 $ 486,722 $ (24,837) 62 $ 1,213,686 $ (61 ,933)

18 $ 883,942 $ (45, 1 06) 63 $ 977,164 $ (49,863)

19 $ 1,244,950 $ (63,528) 64 $ 780,177 $ (39,811)

20 $ 604,593 $ (30,851) 65 $ 3,027,716 $ (154,500)

21 $ 1,344,675 $ (68,617) 66 $ 310,480 $ (15,843)

22 $ 779,653 $ (39,785) 67 $ 556,176 $ (28,381)

23 $ 495,094 $ (25,264) 68 $ 611,591 $ (31 ,209)

24 $ 607,336 $ (30,991) 69 $ 902,350 $ (46,046)

25 $ 897,762 $ (45,811) 70 $ 453,169 $ (23, 125)

26 $ 997,189 $ (50,885) 71 $ 943,576 $ (48, 149)

27 $ 511,027 $ (26,077) 72 $ 1,733,007 $ (88,433)

28 $ 889,788 $ (45,405) 73 $ 1,642,826 $ (83,831)

29 $ 607,946 $ (31 ,023) 74 $ 2,055,729 $ (104,901)

30 $ 82,984,287 $ (4,234,566) 75 $ 604,593 $ (30,851)

31 $ 291,307 $ (14,865) 76 $ 855,347 $ (43,647)

32 $ 2,202,194 $ (112,375) 77 $ 703,629 $ (35,905)

33 $ 24,834,112 $ (1 ,267,248) 78 $ 604,795 $ (30,862)

34 $ 66,620,412 $ (3,399,542) 79 $ 1,082,758 $ (55,252)

35 $ 4,436,569 $ (226,392) 80 $ 3,204,410 $ (163,516)

36 $ 607,336 $ (30,991) 81 $ 1,051,184 $ (53,640)

37 $ 606,969 $ (30,973) 82 $ 1,757,576 $ (89,687)

38 $ 23,607,091 $ (1 ,204,635) 83 $ 2,890,556 $ (147,501)

39 $ 759,729 $ (38,768) 84 $ 411,917 $ (21 ,020)

40 $ 464,142 $ (23,684) 85 $ 621,001 $ (31 ,689)

41 $ 518,480 $ (26,457) 86 $ 1,051,451 $ (53,654)

42 $ 2,028,156 $ (1 03,494) 87 $ 564,576 $ (28,809)

43 $ 2,327,778 $ (118,783) 88 $ 502,105 $ (25,622)

44 $ 475,068 $ (24,242) 89 $ 1,588,974 $ (81 ,083)

45 $ 468,285 $ (23,896) 90 $ 620,952 $ (31 ,686)

10


ID# INVESTMENT LOSS AMOUNT AMOUNT ID# INVESTMENT

LOSS AMOUNT AMOUNT

91 $ 344,218 $ (17,565) 139 $ 910,464 $ (46,460)

92 $ 649,591 $ (33, 148) 140 $ 318,128 $ (16,234)

93 $ 332,862 $ (16,985) 141 $ 621,685 $ (31 ,724)

94 $ 407,154 $ (20,776) 142 $ 621,001 $ (31 ,689)

95 $ 459,511 $ (23,448) 143 $ 5,487,441 $ (280,01 6)

96 $ 610,362 $ (31 '146) 144 $ 760,960 $ (38,831)

97 $ 503,221 $ (25,679) 145 $ 519,093 $ (26,489)

98 $ 607,344 $ (30,992) 146 $ 302,295 $ (15,426)

99 $ 450,909 $ (23,009) 147 $ 782,232 $ (39,916)

100 $ 618,457 $ (31 ,559) 148 $ 898,173 $ (45,832)

101 $ 455,061 $ (23,221) 149 $ 538,315 $ (27,469)

102 $ 607,344 $ (30,992) 150 $ 2,002,506 $ (1 02, 185)

103 $ 989,511 $ (50,493) 151 $ 837,063 $ (42,714)

104 $ 3,913,278 $ (199,689) 152 $ 2,656,215 $ (135,543)

105 $ 621,534 $ (31,716) 153 $ 2,085,029 $ (106,396)

106 $ 606,977 $ (30,973) 154 $ 331,988 $ (16,941)

107 $ 3,574,561 $ (182,405) 155 $ 310,512 $ (15,845)

108 $ 3,748,244 $ (191 ,267) 156 $ 764,427 $ (39,008)

109 $ 803,854 $ (41 ,019) 157 $ 2,919,744 $ (148,990)

110 $ 305,775 $ (15,603) 158 $ 3,918,181 $ (199,939)

111 $ 464,385 $ (23,697) 159 $ 841,907 $ (42,961)

112 $ 622, 480 $ (31 ,764) 160 $ 231,150 $ (11 ,795)

113 $ 1,252,788 $ (63,928) 161 $ 744,734 $ (38,003)

114 $ 449,087 $ (22,916) 162 $ 459,073 $ (23,426)

115 $ 487,279 $ (24,865) 163 $ 501 '116 $ (25,571)

116 $ 611,574 $ (31 ,208) 164 $ 324,281 $ (16,548)

117 $ 836,837 $ (42,703) 165 $ 496,769 $ (25,349)

118 $ 1,445,087 $ (73,741) 166 $ 451,490 $ (23,039)

119 $ 311,206 $ (15,880) 167 $ 461 ,943 $ (23,572)

120 $ 451 ,956 $ (23,063) 168 $ 1,013,450 $ (51 ,715)

121 $ 923,287 $ (47,114) 169 $ 386,046 $ (19,699)

122 $ 2,165,563 $ (110,505) 170 $ 828,687 $ (42,287)

123 $ 12,072,431 $ (616,038) 171 $ 622,406 $ (31 ,760)

124 $ 1,335,643 $ (68,156) 172 $ 461,999 $ (23,575)

125 $ 917,446 $ (46,816) 173 $ 332,574 $ (16,971)

126 $ 859,169 $ (43,842) 174 $ 622,399 $ (31 ,760)

127 $ 231 '150 $ (11 ,795) 175 $ 604,593 $ (30,851)

128 $ 917,488 $ (46,818) 176 $ 313,195 $ (15,982)

129 $ 364,405 $ (18,595) 177 $ 890,001 $ (45,415)

130 $ 517,530 $ (26,409) 178 $ 604,659 $ (30,855)

131 $ 459,073 $ (23,426) 179 $ 457,311 $ (23,336)

132 $ 480,690 $ (24,529) 180 $ 2,189,128 $ (111 ,708)

133 $ 475,194 $ (24,248) 181 $ 607,946 $ (31 ,023)

134 $ 478,853 $ (24,435) 182 $ 190,136,600 $ (9,702,391)

135 $ 310,485 $ (15,844) 183 $ 61 ,872,307 $ (3, 157, 253)

136 $ 4,350,712 $ (222,010) 184 $ 30,742,637 $ (1 ,568,752)

137 $ 604,593 $ (30,851) TOTAL $ 6!:12.0~9.445 $ (34,806,535}

138 $ 638,613 $ (32,587)

11


EXHIBITB


lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll

PLEASE READ THIS LETTER CAREFULLY. THIS IS NOT A SOLICITATION

111111111111111111111111111111111111111111111111111111111111111111111111111

Reference Number:

Dear

October 11 , 2012

Re: Barron v. lgolnikov eta/ .. Civil Action No. 09-CV-4471 (TPG)

NOTICE OF INELIGIBILITY

("BARRED EXCLUDED PERSONS NOTICE")

The Settlement Notice accompanying this letter concerns a proposed settlement of the above-referenced class action (the "Action) on behalf of the Settlement Class. 1 The Action concerned claims that Union Bancaire Privee Asset Management LLC ("UBPAM") and other Defendants mismanaged Selectinvest ARV LP and other funds by investing a portion of their assets with certain "feeder" hedge funds, including Ascot Partners L.P. (the "Ascot Fund"), which in turn placed their assets solely or primarily under management with Bernard L. Madoff Investment Securities LLC.

You are being sent this letter to advise you that you have been identified by UBPAM as having executed a prior release of claims concerning Selectinvest ARV LP's investment in the Ascot Fund2 This means that, even though you held a limited partnership inte rest in Selectinvest ARV LP as of December 11 , 2008, you are not a member of the Settlement Class, you are not eligible for any payment under the proposed Settlement and you vvill not be bound by any judgment in the Action. The accompanying Settlement Notice, which is addressed to Settlement Class Members, is being sent to you for information purposes only.

If you have any questions about th is notice, please contact Lauren McMillen of Bernstein Litowitz Berger & Grossmann LLP, Plaintiffs' Counsel, at the address or phone number below.

Very truly yours,

Gerald H. Silk, Esq. Lauren A. McMillen, Esq . Bernstein Litowitz Berger

& Gross mann LLP 1285 Avenue of the Americas New York, NY 10019 (800) 380-8496

Counsel for Plaintiff and the Settlement Class

and Stephen R. DiPrima, Esq. Emil A. Kleinhaus, Esq. Graham W. Meli, Esq. Wachtel!, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019 (212) 403-1 000

Counsel for Defendants

1 The "Settlement Class" consists of all persons and entities who held limited partnership interests in Selectinvest ARV LP as of December 11 , 2008 and were damaged thereby, other than Barred Excluded Persons, as defined in footnote 2 below, and certain other persons and entities who are excluded from the class by definition.

2 The persons and entities who have been identifi ed by Defendants as having executed a prior release of claims again st UBPAM and/or one or more of the other Released Defendant Persons concerning Selectinvest ARV LP's investments in the Ascot Fund are referred to as "Barred Excluded Persons."



ANDREA BARRON, on behalf of herself and all others similarly situated,

Plaintiff,

V.

ROMAN IGOLNIKOV, SHELDON S. GORDON, MATTHEW STADTMAUER, UNION BANCAIRE PRIVEE, UNION BANCAIRE PRIVEE ASSET MANAGEMENT LLC, UBPI HOLDINGS, INC., DANIEL DE PICCIOTTO, MICHAEL DE PICCIOTTO, GUY DE

Civil Action No. 09-CV-4471 (TPG) ECF Case

PI CCI OTTO, and CHRISTOPHE BERNARD,

Defendants

NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT, (II) SETTLEMENT FAIRNESS HEARING, AND (Ill) MOTION

FOR ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES ADDRESSED TO IDENTIFIED SETTLEMENT CLASS MEMBERS

A Federal Court authorized this Notice. This is not a solicitation from a Iawver.

NOTICE OF PENDENCY OF CLASS AcTION: Please be advised that you are being sent this notice to inform you of the pendency of this class action litigation (the "Action") in the United States District Court for the Southern District of New York (the "Court") because you have been identified by Defendants as a member of the Settlement Class (as defined in paragraph 22 below). As such, your rights will be affected by the pendency and the proposed Settlement of the Action. 1

NOTICE OF SETTLEMENT: Please also be advised that plaintiff Andrea Barron ("Plaintiff"), on behalf of herself and the Settlement Class (defined in 1[22 below), has reached a proposed settlement of the Action with defendants Union Bancaire Privee, UBP SA ("UBP"), Union Bancaire Privee Asset Management LLC ("UBPAM"), UBPI Holdings, Inc. ("UBPIH"), Roman lgolnikov, Sheldon S. Gordon, Matthew Stadtmauer, Daniel de Picciotto, Michael de Picciotto, Guy de Picciotto, and Christophe Bernard (collectively, the "Defendants") for a total of $6,900,000 in cash that, if approved, vvll resolve all claims in the Action of all persons and entities who held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby, except for certain excluded persons and entities as set forth in paragraph 22 below.

PLEASE READ THIS NOTICE CAREFULLY. This Notice explains important rights you have with respect to the proposed Settlement, including what you have to do to receive a cash payment from the Settlement. Your legal rights will be affected whether or not you act.

1. Description of the Action and Class: This Notice relates to a proposed settlement of claims in a class action lavvsuit alleging that Defendants mismanaged Selectinvest ARV LP and other funds offered or managed by UBP or its affiliates and subsidiaries (the "UBP Funds") by investing a portion of the collective assets of each of the UBP Funds with certain "feeder" hedge funds, including Ascot Partners L.P. (the "Ascot Fund"), which in turn placed their assets solely or primarily under management vvith Bernard L. Madoff Investment Securities LLC, an investment advisory service founded by Bernard L. Madoff. The proposed Settlement, if approved by the Court, will settle claims of all persons and entities V'vtlo held limited partnership interests in Selectinvest ARV LP as of December 11, 2008 and were damaged thereby except for: (a) certain persons and entities affiliated with the Dele ndants that are excluded from the class by definition (see paragraph 23 below), (b) persons and entities that previously submitted a release of claims concerning Selectinvest ARV LP's investment in the Ascot Fund (see paragraph 24 below), and (c) persons and entities that validly elect to exclude themselves from the class (see paragraphs 61 to 63 below) (the "Settlement Class").

2. The Settlement Consideration: Subject to Court approval, and as described more fully below, Plaintiff, on behalf of herself and the other members of the Settlement Class, has agreed to settle all claims asserted against Defendants in the Action by Settlement Class Members in exchange for a settlement payment of $6,900,000 in cash (the "Settlement Amount") to be deposited into an escrow account. The Settlement Amount together with any interest earned thereon V'vtlile on deposit in the escrow account is referred to as the "Settlement Fund". The "Net Settlement Fund" (the Settlement Fund less Taxes, Notice and Administration Costs, and any attorneys' fees and Litigation Expenses a\fvarded by the Court) will be distributed in accordance with a plan of allocation that must be approved by the Court, and which will determine how the Net Settlement Fund shall be allocated among members of the Settlement Class. The proposed plan of allocation (the "Plan of Allocation") is set forth on pages 6 - 7 below. Defendants are not obligated to pay Plaintiff or any other Settlement Class Member any amount over and above the Settlement Amount in connection vvith the Settlement

3. Application for Attorneys' Fees and Expenses: Plaintiff's Counsel, Bernstein Litovvitz Berger & Grossmann LLP, which has been prosecuting the Action on a V'vtlolly contingent basis since its inception in 2009, has not received any payment of attorneys' fees for its representation of the class, and has advanced the funds to pay expenses necessarily incurred to prosecute the Action. Plaintiff's Counsel vvll apply to the Court for (a) an award of attorneys' fees from the Settlement Fund in the amount of 30% of the Settlement Fund; and (b) reimbursement of Litigation Expenses paid or incurred in connection vvith prosecuting and settling the Action, in an amount not to exceed $80,000, to be paid from the Settlement Fund.

1 All capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings provided in the Stipulation and Agreement of Settlement dated September 12, 2012 (the "Stipulation"), which is available on the website page established for the Settlement at www. qc qi n c . com/cases/barron-u bp .


4. Identification of Attorneys' Representatives: Plaintiff and the Settlement Class are represented by Gerald H. Silk, Esq. and Lauren A. McMillen, Esq., of Bernstein Litowitz Berger & Grossmann LLP. Any questions regarding the Settlement should be directed to Ms. McMillen at Bernstein Litowitz Berger & Grossmann LLP, 1285 AVenue of the Americas, New York, NY 10019, (800) 380-8496, blbg@blbq law.com.

5. Reasons for the Settlement: Plaintiff's principal reason for entering into the Settlement is the substantial cash benefit payable to the Settlement Class now, vvithout further risk or the delays inherent in further litigation. The cash benefit under the Settlement must be considered against the significant risk that no recovery at all might be achieved through the litigation. In the absence of the Settlement, the risk of no recovery in the Action was substantial because the Action had been dismissed vvith prejudice by the Court in March 2010. Even if Plaintiff had succeeded in reversing the dismissal on appeal, there VI/OUid be additional risks of sustaining the claims through contested motions, at trial and on further appeals, a process that could last several years. For Defendants, who deny all allegations of wrongdoing or liability whatsoever, the principal reason for entering into the Settlement is to eliminate the expense, risks, and uncertainty of further litigation .

YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT

REMAIN A MEMBER OF THE This is the only way for you to get a payment from the Settlement. If you remain in the SETTLEMENT CLASS AND SUBMIT A Settlement Class, you will be bound by the Settlement as approved by the Court and you CLAIM FORM POSTMARKED NO vvill give up any Released Plaintiff Claims (as defined in ,-r 51 belov0 that you have against LATER THAN JANUARY 14, 2013 Defendants and the other Released Defendant Persons (defined in ,-r 52 below), so, if you

remain in the Settlement Class, it is in your interest to submit a Claim Form (which is included vvith this Notice) 2

EXCLUDE YOURSELF FROM THE If you exclude yourself from the Settlement Class, you will not get any payment from the SETTLEMENT CLASS BY SUBMITTING Settlement Fund. This is the only option that allows you to ever be or remain part of any A WRITTEN REQUEST FOR other lawsuit against any of the Defendants or the other Released Defendant Persons EXCLUSION SO THAT IT IS RECEIVED concerning the Released Plaintiff Claims. NO LATER THAN NOVEMBER 21, 2012.

OBJECT TO THE SETTLEMENT BY If you do not like the proposed Settlement, the proposed Plan of Allocation, or the request SUBMITTING A WRITTEN OBJECTION for attorneys' fees and reimbursement of expenses, you may write to the Court and SO THAT IT IS RECEIVED NO LATER explain why you do not like them. You cannot object to the Settlement, the Plan of THAN NOVEMBER 21, 2012. Allocation , or the fee and expense request if yoU exclude yourself from the Settlement

Class.

GO TO THE HEARING ON DECEMBER Filing a written objection and notice of intention to appear by November 21, 201 2 allows 12, 2012 AT 4:30 P.M., AND FILE A you to speak in Court about the fairness of the proposed Settlement, the Plan of NOTICE OF INTENTION TO APPEAR SO Allocation, or the request for attorneys' fees and reimbursement of expenses. If you THAT IT IS RECEIVED NO LATER THAN submit a \1\iTitten objection, you may (but do not have to) attend the hearing and speak to NOVEMBER 21, 2012. the Court about your objection.

DO NOTHING. If you do not submit a Claim Form by January 14, 201 3, you vvill not receive any payment from the Settlement Fund. You will , however, remain a member of the Settlement Class, which means that you give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action.

WHAT THIS NOTICE CONTAINS

Why Did I GetThis Notice? . . . .. . . . . . . . . . . . . . . . . . . . ... .... ..... .... ... ... ..... ... ... ........... .... ... ... ..... ... ... Page 3 What Is This Case About? What Has Happened So Far? ..... ... ....... ..... ... ..... ......... ... ....... ..... ... ..... ......... ... ...... ...... ........ ......... ....... ... . Page 3 How Do I Know If I Am Affected By The Settlement? ...... .. .... ... .. .. .. .. .. .. .. ... .... .. .. .. .. .. .. .. ... .. .. .. .. ... .. .. .. .. .. .. ... .. .... .. .. .. .. ... .. .. .. .. .. .. ... .. .. .. .. . Page 4 What Are Plaintiff' s Reasons For The Settlement? .. .. ...... ...... ..... ... ..... ... .. .. .. .... ...... ... .. ... ... .. ... ...... ... ....... ... .. ...... .. ... .. .. .. ... ....... ... .. ..... . Page 4 What Might Happen If There W ere No Settlement? .. ... .. ........ .... .... .... .. ...... .. ... .... .. .. .. .. ... ... .. ... ... ... ... .... .. .. .. .. ... ... .. ... ... ... ... .... .. .. .. .. ..... . Page 5 How Much Will My Payment Be? . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. .. . .. .. . .. ....... ... ......... ..... ... ... .. .... Page 5 What Rights Am I Giving Up By Remaining In The Settlement Class? ... .... .. ...... .. ....... .. .... ..... .. .... ......... .... .. ....... .. .. .. .. ... .......... .. .... .. . Page 7 What Payment Are The Attorneys For The Settlement Class Seeking? How W ill The Lawyers Be Paid? . ....... ....... ........ ........ ... .... Page 7 How Do I Participate In The Settlement? What Do I Need To Do? .. .. ........ .... .... .... .. ...... .. .. ...... ...... .... .... .... .... .... .. .. ...... .......... .. .. ... .. . Page 8 What If I Do Not W ant To Be A Member Of The Settlement Class? How Do I Exclude Myself?.. .. .. .. .. .. ... .. .... Page 8 When And Where Will the Court Decide Whether To Approve The Settlement? Do I Have To Come To The Hearing?

May I Speak AtThe Hearing If I Don't Like The Settlement? .. ...... .... .. ....... .. ...... .. ....... .. ........ ..... .. ...... .. ....... .. .... .. .. ........... ... Page 8 Can I See The Court File? Whom Should I Contact If I Have Questions? . .. .. ... ............... ........ .. ....... ....... ........ ....... ... ....... ....... ... .... Page 9

2 PLEASE NOTE: Unlike many other class action settlements, in this Action each Settlement Class Member's "Investment Amount" and "Loss Amount" have been determined by Defendants based on their records. See "Proposed Plan of Allocation," on page 6 below. Accordingly, you are not required to collect or submit any investment records, account statements or similar evidentiary materials with your Claim Form to establish th e amount of your claim under this Settlement. In the event that you wish to obtain a payment from the Settlement, but believe that your Investment Amount set forth in Exhibit 1 to this Notice has been incorrectly calculated, you have the right to challenge the Investment Amount ascribed to you but such challenge must be made in accordan ce with th e provisions of paragraphs 44 and 45 below.

2
