united states district court southern district of new … · {00226752;2 } united states district...

{00226752;2 }

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ARTHUR MENALDI, Individually and on

Behalf of All Others Similarly Situated,

Plaintiff(s),

v.

OCH-ZIFF CAPITAL MANAGEMENT

GROUP LLC, DANIEL S. OCH, JOEL M.

FRANK, and MICHAEL COHEN,

Defendants.

No.: 14-CV-03251-JPO

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR

LEAVE TO AMEND THE COMPLAINT TO RENEW CLAIMS AGAINST

DEFENDANT MICHAEL COHEN

Case 1:14-cv-03251-JPO Document 87 Filed 01/07/17 of 26

{00226752;2 } i

TABLE OF CONTENTS

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

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

Commencement and Prosecution of this Action ................................................................. 3

The Court’s February 17, 2016 Order................................................................................. 4

The SEC-DOJ Settlements .................................................................................................. 5

The Second Amended Complaint ....................................................................................... 8

ARGUMENT .................................................................................................................................. 9

I. LEAVE TO AMEND TO RENEW CLAIMS AGAINST COHEN SHOULD BE

GRANTED ......................................................................................................................... 9

A. Legal Standard ........................................................................................................ 9

B. Plaintiffs’ Amendment Is Based On Discovery Of New Evidence ...................... 11

C. The Amendment Is Not Futile .............................................................................. 13

D. Cohen Will Not Suffer Undue Prejudice If Leave to Amend Is Granted ............. 17

i. The cost of conducting discovery and preparing for trial will not unduly

prejudice Cohen ........................................................................................ 18

ii. Amending the SAC to re-assert claims against Cohen will not significantly

delay the resolution of the case. ................................................................ 19

CONCLUSION ............................................................................................................................. 20


{00226752;2 } ii

TABLE OF AUTHORITIES

Page(s)

Cases

Acito v. IMCERA Grp.,

47 F.3d 47 (2d Cir. 1995)...........................................................................................................9

Affiliated FM Insurance Co. v. Liberty Mechanical Contractors,

Inc., No. 12 Civ. 5160, 2013 WL 4526246 (S.D.N.Y. Aug. 27, 2013) ...................................12

Agerbrink v. Model Serv. LLC,

155 F. Supp. 3d 448 (S.D.N.Y. 2016)................................................................................18, 19

Ballard v. Parkstone Energy, LLC,

2008 WL 4298572 (S.D.N.Y. 2008) ........................................................................................17

Blakely v. Wells.,

209 Fed. Appx. 18 (2d Cir. 2006) ............................................................................................10

BNP Paribas Mortg. Corp. v. Bank of Am., N.A.

886 F.Supp. 2d 257 (S.D.N.Y. 2012).......................................................................................10

Burgee v. Patrick,

No. 91-CIV-3023 (MJL), 1996 WL 227819 (S.D.N.Y. May 3, 1996) ....................................18

Circle Line Sightseeing Yachts, Inc. v. Circle Line-Statute of Liberty Ferry, Inc.,

No. 01 Civ. 9788, 2003 WL 253094 (S.D.N.Y. Feb. 4, 2003) ................................................13

Donnelly Garment Co. v. Int’l Ladies Garment Workers’ Union,

47 F. Supp. 61 (W.D. Mo. 1941) .............................................................................................10

Duling v. Gristede’s Operating Corp.,

265 F.R.D. 91 (S.D.N.Y.2010) ................................................................................................12

Foman v. Davis,

371 U.S. 178 (1962) .............................................................................................................9, 17

Ho Myung Moolsan Co., Ltd. v. Manitou Mineral Water, Inc.,

665 F.Supp.2d 239 (S.D.N.Y. 2009)........................................................................................13

IBEW Local Union No. 58 Pension Trust Fund & Annuity Fund v. Royal Bank of

Scotland Grp., PLC,

783 F.3d 383 (2d Cir. 2015).................................................................................................9, 13


{00226752;2 } iii

In re Bernard L. Madoff Inv. Sec. LLC,

560 B.R. 208 (Bankr. S.D.N.Y. 2016) ...............................................................................10, 17

In re Facebook, Inc., IPO Sec. & Derivative Litig.,

986 F.Supp.2d 428 (S.D.N.Y. 2013)..................................................................................10, 11

In re Galena Biopharma, Inc. Sec. Litig.,

117 F. Supp. 3d 1145 (D. Or. 2015) ........................................................................................16

In re Osage Exploration Co.,

104 F.R.D. 45 (S.D.N.Y. 1984) ...............................................................................................17

In re Winstar Commc’ns.,

No. 01 CV 3014(GBD), 2006 U.S. Dist. LEXIS 7618 (S.D.N.Y. Feb. 27,

2006) ..........................................................................................................................................9

Kassner v. 2d Ave. Delicatessen, Inc.,

496 F.3d 229 (2d Cir. 2007).....................................................................................................10

Luce v. Edelstein,

802 F.2d 49 (2d Cir. 1986).......................................................................................................10

Margel v. E.G.L. Gem Lab Ltd., No. 04 Civ. 1514(PAC) (HBP), 2010 WL 445192

(S.D.N.Y. Feb. 8, 2010) ...........................................................................................................11

Monahan v. New York City Dep’t of Corr.,

214 F.3d 275 (2d Cir. 2000).....................................................................................................17

Morin v. Trupin,

835 F. Supp. 126 (S.D.N.Y. 1993) ..........................................................................................11

Ohio Cas. Ins. Co. v. Transcontinental Ins. Co.,

No 05-6432 BSJ RLE, 2006 WL 1540540 (S.D.N.Y. May 31, 2006) ....................................10

Olsen v. Pratt & Whitney Aircraft,

136 F.3d 273 (2d Cir. 1998).....................................................................................................10

Pall Corp. v. Cuno Inc.,

681F.Supp.2d 258, 2010 WL 301954 (E.D.N.Y. Jan.20, 2010) ..............................................11

Phillips v. Kidder, Peabody & Co.,

No. 87- Civ. 4936 (DLC), 1994 WL 570072 (S.D.N.Y. Oct. 13, 1994) .................................11

Randolph-Rand Corp. v. Tidy Handbags, Inc.,

96 Civ. 1829 (LMM) (DF), 2001 U.S. Dist. LEXIS 17625, 2001 WL 1286989

(S.D.N.Y. Oct. 24, 2001) .........................................................................................................17


{00226752;2 } iv

Richardson Greenshields Securities, Inc. v. Lau,

825 F.2d 647 (2d Cir.1987)......................................................................................................11

S.E.C. v. DCI Telecommunications, Inc.,

207 F.R.D. 32 (S.D.N.Y. 2002) ...............................................................................................19

Sec. & Exch. Comm’n v. Penn,

No. 14-CV-0581 (VEC), 2016 WL 7413518 (S.D.N.Y. Dec. 21, 2016). In the

MTD Order, the Court .............................................................................................................13

Sec. & Exch. Comm’n v. Zouvas,

No. 316CV0998CABDHB, 2016 WL 6834028 (S.D. Cal. Nov. 21, 2016) ............................16

Soroof Trading Dev. Co. v. GE Microgen, Inc.,

283 F.R.D. 142 (S.D.N.Y. 2012) .............................................................................................18

State Teachers Retirement Bd. v. Fluor Corp.,

654 F.2d 843 (2d Cir. 1981).....................................................................................................18

United States v. Cont’l III. Nat’l Bank & Tr. Co.,

889 F.2d 1248 (2d Cir. 1989)...................................................................................................18

Valentini v. Citigroup, Inc.,

No. 11 Civ. 1355, 2013 WL 4407065 (S.D.N.Y. Aug. 16, 2013) ...........................................12

W. Va. Pipe Trades Health & Welfare Fund v. Medtronic, Inc.,

No. 15-3468, 2016 U.S. App. LEXIS 23353 (8th Cir. Dec. 28, 2016) ................................2, 15

Zomba Recording Corp. v. MP3.com, Inc.,

No. 00 Civ. 6831(JSR), 2001 WL 770926 (S.D.N.Y. July 10, 2001) .....................................12

Rules

Fed. R. Civ. P. 15 ................................................................................................................... passim

Fed. R. Civ. P. 16(b) ......................................................................................................................10

Other Authorities

Wright & Miller, 6 Fed. Prac. & Proc. Civ. § 1473 (3d ed.) .........................................................10


{00226752;2 } 1

Lead Plaintiffs Ralph Langstadt and Julie Lemond (collectively, “Plaintiffs”) hereby

move pursuant to Fed. R. Civ. P. 15 and this Court’s December 21, 2016 Order (Dkt. 85) to

amend the Complaint1 to renew claims against defendant Michael Cohen (“Cohen”).

PRELIMINARY STATEMENT

This is the quintessential case where justice requires leave to amend the pleading.

Newly-discovered evidence, which only came to light as a result of the Securities and Exchange

Commission (“SEC”) and U.S. Department of Justice (“DOJ”)’s recent announcement of the

resolution of a five-year examination of non-public Company documents and witnesses (the

“SEC-DOJ Investigation”), incontrovertibly proves that from 2005 through 2015, Defendants2

profited from a massive bribery scheme to secure advantageous business opportunities

throughout Africa in violation of the Foreign Corrupt Practices Act (“FCPA”). The SEC and

DOJ’s bombshell announcement also revealed Defendants’ efforts to derail regulators by

withholding incriminating information, while simultaneously concealing from investors the

existence of the SEC-DOJ Investigation and the substantial likelihood that the outcome would

materially impact OZM’s business and prospects.

On October 13, 2016, just two weeks after the SEC and DOJ disclosures, Plaintiffs

informed Defendants OZM, Och, and Frank that they intended to amend the Consolidated

Amended Class Action Complaint (“CAC”) (Dkt. 17) to assert new claims, revive dismissed

claims, and expand the bases of liability for violation of the securities laws. These defendants –

all of whom have either admitted the facts alleged in the DOJ’s Deferred Prosecution Agreement

(the “DPA”) or consented to the entry of the SEC’s Cease-and-Desist Order (the “SEC Order”) –

1 The “Complaint” or “SAC” refers to the Second Amended Complaint, which was filed under

seal and in redacted form on November 18, 2016 (Dkt. 76).

2 “Defendants” refers to Och-Ziff Capital Management, LLC (“OZM” or the “Company”),

Daniel S. Och (“Och”), Joel M. Frank (“Frank”), and Michael Cohen (“Cohen”), collectively.


{00226752;2 } 2

stipulated to allow Plaintiffs to file the Consolidated Second Amended Class Action Complaint

(the “SAC”). In contrast, defendant Cohen, who OZM has admitted was a primary architect of

the corrupt transactions and who deliberately attempted to thwart a government investigation by

falsifying documents, now requests that the SAC’s allegations and claims against him be

stricken, because inter alia, amendment as to him would be futile.

Cohen’s assertion is baseless and should be rejected. As set forth herein, the SAC, which

incorporates the new facts learned from the SEC-DOJ Investigation, adequately pleads Cohen’s

liability for securities fraud under Section 10(b) and Rule 10b-5(a) and (c) based on his

commission of multiple illegal and deceptive acts, which affected the market for OZM’s

securities during the Class Period. See, e.g., W. Va. Pipe Trades Health & Welfare Fund v.

Medtronic, Inc., No. 15-3468, 2016 U.S. App. LEXIS 23353 (8th Cir. Dec. 28, 2016).

Specifically, the SAC alleges in detail that Cohen was responsible for orchestrating payments to

“fixers,” which he knew were used to pay bribes to foreign officials in exchange for business;

that this conduct persisted through 2015, generated “long-term deal flow, and artificially inflated

OZM’s revenues during the Class Period; that Cohen not only disregarded legal and compliance

functions he was responsible for enforcing, but falsified and withheld information so that

Defendants could perpetuate their wrongful conduct during the Class Period; and finally, that

Cohen obstructed the SEC-DOJ Investigation, thereby enabling Defendants to conceal the true

extent of regulatory risk the Company faced during the Class Period.

At this stage of the proceedings, these allegations are more than sufficient to establish

that good cause exists and that amendment would not be futile. Given the liberal thrust of Fed.

R. Civ. P. 15 and the lack of any delay, bad faith, or dilatory motive, amendment should be

permitted. Moreover, defendant Cohen – who remains a central figure in this litigation and who


{00226752;2 } 3

will be required to participate in discovery and eventually testify at trial – will not be unduly

prejudiced if the SAC’s claims stand and he is made to account for his conduct. Plaintiffs

therefore respectfully request that the SAC remain the operative pleading and the claims against

Cohen be allowed to proceed.

BACKGROUND

Commencement and Prosecution of this Action

Plaintiffs commenced this Action on May 5, 2015 following the revelation that for over

three years, Defendants failed to disclose an ongoing criminal and civil investigation (the “SEC-

DOJ Investigation”) concerning a widespread bribery scheme in violation of the Foreign Corrupt

Practices Act (the “FCPA”). Specifically, as set forth in the Consolidated Amended Class

Action Complaint (“the CAC”) (Dkt. 17), Plaintiffs alleged that Defendants OZM, Och, and

Frank violated Sections 10(b) and Rule 10b-5 of the Securities Exchange Act by making false

and misleading statements and omissions concerning the Company’s illegal and corrupt business

practices and the pendency of the SEC-DOJ Investigation related thereto. See, e.g., CAC ¶¶ 3-

10, 77-108. Plaintiffs further alleged that all Defendants, including defendant Cohen, violated

Section 10(b) and Rule 10b-5(a) and (c) by engaging in a fraudulent and deceptive scheme that

violated the FCPA and triggered the SEC-DOJ Investigation, thereby exposing the Company to

civil and criminal prosecution. CAC ¶¶ 139-149. The CAC also asserted Section 20(a) control

person liability claims against all of the Individual Defendants, including Cohen. CAC ¶¶ 151-5.

Based on then-available information gathered from public sources, the CAC contained

detailed allegations regarding transactions in Libya, the DRC, and Zimbabwe (collectively, the

“African Transactions”), which involved, inter alia, the payment of millions of dollars to senior

foreign government officials, either directly or through intermediaries known as “fixers,” in


{00226752;2 } 4

exchange for access to extremely profitable investment opportunities – all of which were

orchestrated by defendant Cohen and known to Defendants. CAC ¶¶ 44-75.

On March 16, 2015, Defendants OZM, Och, and Frank moved to dismiss the CAC on the

grounds that, inter alia, Defendants had no duty to disclose uncharged, illegal conduct and

likewise, had no duty to disclose an ongoing regulatory inquiry. (Dkt. 23). Defendant Cohen

separately moved to dismiss on the grounds that he was not the maker of any misstatements or

omissions and had not engaged in any deceptive act during the Class Period. (Dkt. 26).

Defendant Cohen also contended that the CAC failed to adequately plead that he acted with

scienter either in connection with any disclosures or with execution of any of the FCPA-violating

African Transactions.

The Court’s February 17, 2016 Order

On February 17, 2016, the Court granted in part and denied in part Defendants’ motions

to dismiss (the “MTD Order”). (Dkt. 39). With respect to falsity, the Court dismissed alleged

misstatements and omissions related to Plaintiffs’ claims that Defendants violated the FCPA,

holding that “Plaintiffs have not stated a plausible claim that Och-Ziff violated any law.” MTD

Order at 11-12. The Court also concluded that the CAC failed to adequately allege “a

connection between the illegal conduct and the misleading statements” consistent with the

requirements articulated in other district court cases. MTD Order at 16. However, the Court

affirmed the CAC’s allegations that Defendants’ statements concerning regulatory proceedings

were false and misleading, holding that in light of the SEC-DOJ Investigation, Defendants “did

not speak in an accurate and correct manner.” MTD Order at 21 (citations omitted). For the

same reasons, the Court also held that Defendants omitted facts concerning the likely impact of

the SEC-DOJ Investigation, which would have been material to investors. Id.


{00226752;2 } 5

With respect to potential violations under Rule 10b-5(a) and (c), the Court dismissed

Plaintiffs’ scheme liability claim as to all Defendants, including Cohen. The Court held that

even if Plaintiffs had plausibly violations of the FCPA, “given the timeline alleged in the

Complaint, those legal violations would have occurred years before the putative class period.

The Complaint thus fails to explain how ‘the proscribed schemes or acts [were] done in

connection with the purchase or sale of any security.” MTD Order at 24. The Court also held

that “to the extent that Plaintiffs allege a scheme to misrepresent Och-Ziff in SEC filings,

Plaintiffs’ claim fails because they have not identified any ‘deceptive act’ apart from the alleged

misrepresentation.” Id. Because scheme liability was the primary claim asserted against Cohen,

the Court also dismissed the Section 20(a) claim against him.

Defendants moved for reconsideration of the MTD Order on March 2, 2016. (Dkt. 40).

On May 6, 2016, the Court denied Defendants’ motion for reconsideration. (Dkt. 56). On May

11, 2016, the Court issued a Civil Case Management Plan and Scheduling Order (Dkt. No. 57).

Thereafter, the parties propounded and responded to written discovery requests. Plaintiffs filed

their motion for class certification on August 9, 2016. (Dkt. No. 61).

The SEC-DOJ Settlements

On September 29, 2016, after Plaintiffs’ opening brief was filed and class discovery was

underway, the SEC and DOJ simultaneously announced that that the SEC-DOJ Investigation had

been resolved, with OZM admitting its role in African bribery conspiracies and agreeing to pay a

$213 million criminal fine and approximately $200 million in civil penalties.3 An OZM wholly-

3 See U.S. Department of Justice Press Release, September 29, 2016, “Och-Ziff Capital

Management Admits to Role in Africa Bribery Conspiracies and Agrees to Pay $213 Million

Criminal Fine” (the “DOJ Press Release”), available at: https://www.justice.gov/opa/pr/och-ziff-

capital-management-admits-role-africa-bribery-conspiracies-and-agrees-pay-213; see also

Securities and Exchange Commission Press Release, September 29, 2016, “Och-Ziff Hedge


https://www.justice.gov/opa/pr/och-ziff-capital-management-admits-role-africa-bribery-conspiracies-and-agrees-pay-213

https://www.justice.gov/opa/pr/och-ziff-capital-management-admits-role-africa-bribery-conspiracies-and-agrees-pay-213

{00226752;2 } 6

owned subsidiary, OZ Africa Management GP LLC (“OZ Africa”), entered a guilty plea to a

one-count information charging the company with conspiracy to violate the anti-bribery

provisions of the FCPA. See DOJ Press Release at 2. In addition, Defendant Och agreed to pay

nearly $2.2 million to settle SEC charges that he caused certain violations of the FCPA. See

SEC Press Release. Defendant Frank also agreed to settle SEC charges against him with a

penalty to be assessed at a future date. Id.

The Deferred Prosecution Agreement entered into by OZM (the “DPA”) filed by the DOJ

that same day contained new, previously-unknown facts uncovered by regulatory authorities in

the course of their five-year investigation of the Company, which had never before been publicly

disclosed.4 Based on the government’s investigation, it was revealed that Defendants’ bribery

scheme extended throughout Africa, involving payments of millions of dollars to government

officials in Libya, the Democratic Republic of the Congo (“DRC”), Guinea, Chad, and Niger.

Specifically, referring to defendant Cohen as “Och-Ziff Employee 3,” the DPA details the

following illegal conduct by defendant Cohen:

Between 2005 and 2015, OZM, through defendant Cohen, formed a joint venture

with a partner in the DRC knowing that OZM’s funds would be used to pay

substantial sums of money to DRC officials to secure investment opportunities in the

DRC mining sector. As a result, defendant Cohen “secured long-term deal flow for

[OZM] in the DRC mining sector,” which continued to generate revenue for the

Company throughout the Class Period, including a profit of over $91 million from

transfers made to OZM by its DRC partner in 2012 and 2013. DPA ¶¶ 20, 63.

Fund Settles FCPA Charges” (the “SEC Press Release”), available at:

https://www.sec.gov/news/pressrelease/2016-203.html.

4 The Deferred Prosecution Agreement (“DPA”) is annexed as Exhibit B to the SAC.


https://www.sec.gov/news/pressrelease/2016-203.html

{00226752;2 } 7

Between 2007 and 2010, defendant Cohen coordinated payment of a $3.75 million

“finder’s fee” to a Libyan intermediary, knowing that a portion of the fee would be

paid to foreign officials in return for influencing the Libyan Investment Authority

(“LIA”) to make a $300 million investment in OZM hedge funds. As a result of these

corrupt payments, OZM secured the LIA investment and approximately $100 million

in pecuniary gain. DPA ¶ 21.

Defendant Cohen failed to adequately enforce internal policies and controls, ignoring

the results of an audit that revealed corruption by a Gabonese consultant in

connection with certain uranium concessions, in which OZM continued to hold and

renew licenses through 2012, yielding approximately $30 million in fees related to

these investments. DPA ¶ 100.

The Cease-and-Desist Order entered by the SEC (the “SEC Order”)5 similarly exposes

defendant Cohen’s corrupt participation in Defendants’ fraud. Shockingly, the SEC Order

details a self-dealing transaction in which defendant Cohen extended an $18 million personal

loan to a Libyan agent and then caused another entity to make a $20 million investment, which

funds were redirected to Cohen to satisfy the outstanding obligation. SEC Order ¶¶ 87-88.

According to the SEC Order, in 2012, after the SEC-DOJ Investigation was initiated, Cohen

sought to conceal his self-dealing by creating a false document regarding this transaction. SEC

Order ¶ 89. Indeed, active concealment was part and parcel of Defendants’ fraudulent scheme:

the DPA specifically cited Defendants’ efforts to obstruct government regulators by failing to

produce responsive documents and withholding information until regulators made further

demands as a basis for denying additional cooperation credit under the Sentencing Guidelines.

5 The SEC Order is annexed as Exhibit A to the SAC.


{00226752;2 } 8

DPA ¶ 4. Moreover, Defendant Cohen still faces prosecution in connection with his role in the

bribery scheme.

To reiterate, the announcement of the SEC and DOJ’s findings was the first time that

investors learned the full extent of Defendants’ fraudulent scheme to violate the FCPA, obstruct

a government investigation, and conceal the substantial likelihood that the SEC-DOJ

Investigation would materially impact the Company’s business and operations.

The Second Amended Complaint

On October 14, 2016, Plaintiffs and Defendants OZM, Och, and Frank entered into a

Stipulation, which was “so ordered” by the Court, in which Defendants OZM, Och, and Frank

agreed to allow Plaintiffs to amend the CAC based on the new information learned in connection

with SEC-DOJ Settlements, as well as information learned in discovery. (Dkt. 71). The parties

also agreed to stay briefing on Plaintiffs’ Motion for Class Certification.

The Second Amended Complaint (“SAC”), filed November 18, 2016, among other

things, added new allegations concerning Defendants’ FCPA violations and concealment of the

SEC-DOJ Investigation, and expanded the bases for liability against all Defendants based upon

violations of Generally Accepted Accounting Principles and failure to implement and enforce

adequate internal controls.

The SAC also revived the scheme liability and control person liability claims against

defendant Cohen. In particular, the SAC now alleges that, inter alia: (1) Cohen was directly

involved in the payment of illegal bribes to various foreign officials in order to secure business

opportunities in several countries in Africa (e.g., SAC ¶¶ 21, 24, 58-91, 165); (2) Defendants

profited during the Class Period from the transactions orchestrated by Cohen (e.g., SAC ¶¶ 12,

52-55, 125, 166); (3) Cohen engaged in self-dealing transactions, thereby personally profiting

from the fraudulent scheme (e.g., SAC ¶ 233); and (4) Cohen attempted to conceal his role in the


{00226752;2 } 9

bribery scheme and obstruct the SEC-DOJ Investigation by, among other things, falsifying

documents evidencing his knowledge and participation in wrongdoing (e.g., SAC ¶¶ 62-67, 93,

234). The SAC alleges that as a result of Defendants’ deceptive acts, including Cohen’s, the

price of OZM’s securities remained artificially inflated throughout the Class Period. SAC ¶¶ 3,

7, 11-12, 48-49, 241-255, 270, 274-7.

On November 23, 2016, Defendant Cohen filed a letter with the Court requesting that the

SAC’s allegations against him be stricken, because among other things, Plaintiffs failed to file a

separate motion for leave to amend and that, in any event, the proposed amendments were futile.

(Dkt. 80). Following Plaintiffs’ submission of a letter brief in response, this Court entered an

Order directing Plaintiffs to file the instant motion for leave to amend with respect to the SAC’s

renewed claims against Cohen. (Dkt. 85).

ARGUMENT

I. LEAVE TO AMEND TO RENEW CLAIMS AGAINST COHEN SHOULD BE

GRANTED

A. Legal Standard

Federal Rule of Civil Procedure 15(a) provides that “leave to amend shall be freely given

when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Where there is neither a showing of the

movant’s undue delay, bad faith or dilatory motive, nor a showing of undue prejudice to the

opposing party by virtue of allowance of the amendment, leave to amend should be granted.” In

re Winstar Commc’ns., No. 01 CV 3014(GBD), 2006 U.S. Dist. LEXIS 7618, at *4 (S.D.N.Y.

Feb. 27, 2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Acito v. IMCERA Grp., 47

F.3d 47, 55 (2d Cir. 1995) (“Although the decision of whether to allow plaintiffs to amend their

complaint is left to the sound discretion of the district court, there must be good reason to deny

the motion.”). The Second Circuit generally holds that plaintiffs whose complaints are dismissed


{00226752;2 } 10

should typically be given an opportunity to amend. See, e.g., Blakely v. Wells., 209 Fed. Appx.

18 (2d Cir. 2006); Olsen v. Pratt & Whitney Aircraft, 136 F.3d 273, 276 (2d Cir. 1998); Luce v.

Edelstein, 802 F.2d 49, 56 (2d Cir. 1986). Rule 15(a)(2) is “interpreted liberally and an

amendment is normally permitted.” BNP Paribas Mortg. Corp. v. Bank of Am., N.A. 886,

F.Supp. 2d 257, 272 (S.D.N.Y. 2012) (quoting Ohio Cas. Ins. Co. v. Transcontinental Ins. Co.,

No 05-6432 BSJ RLE, 2006 WL 1540540, at *1 (S.D.N.Y. May 31, 2006))).6 In general

“amendments are favored because they ‘tend to facilitate a proper decision on the merits.’ ” In re

Bernard L. Madoff Inv. Sec. LLC, 560 B.R. 208, 221 (Bankr. S.D.N.Y. 2016). Quoting In re

Facebook, Inc., IPO Sec. & Derivative Litig., 986 F.Supp.2d 428, 472 (S.D.N.Y. 2013). Where

the time for amendment of the pleadings set forth in a scheduling order has passed, a party may

obtain modification of the scheduling order and proceed with the amendment “upon a showing of

good cause.” See Fed. R. Civ. P. 16(b); see also Kassner v. 2d Ave. Delicatessen, Inc., 496 F.3d

229, 243 (2d Cir. 2007).

Here, Defendants OZM, Och, and Frank already consented to the filing of the SAC. The

only issue is whether the scheme liability and control person claims against Cohen should be

revived based on the discovery of new evidence. As set forth below, this new evidence

substantiates Plaintiffs’ claims and cures the deficiencies identified by the Court in its earlier

dismissal of Cohen. Because there has been no delay or bad faith, and because Cohen, who

remains a central figure in this Action, cannot demonstrate that he will be unduly prejudiced,

good cause exists to permit Plaintiffs to amend to re-assert claims against Cohen.

6 See also Wright & Miller, 6 Fed. Prac. & Proc. Civ. § 1473 (3d ed.) (“[W]hen any defendant

appears generally in an action, he is deemed to have made an appearance with the knowledge

that amendments are granted liberally and will be allowed and freely given when justice requires

it.”) (quoting Donnelly Garment Co. v. Int’l Ladies Garment Workers’ Union, 47 F. Supp. 61, 63

(W.D. Mo. 1941).


{00226752;2 } 11

B. Plaintiffs’ Amendment Is Based On Discovery Of New Evidence

Plaintiffs’ amendment is based upon the discovery of new evidence that emerged less

than two months before Plaintiffs filed the SAC. In instances where plaintiffs discover new facts

relating to and supporting claims asserted in an earlier pleading, “courts routinely permit

amendment on the basis of this new information.” In re Facebook, Inc., 986 F. Supp. 2d, 28, 472

(S.D.N.Y. 2013) (citing Phillips v. Kidder, Peabody & Co., No. 87- Civ. 4936 (DLC), 1994 WL

570072, at *4 (S.D.N.Y. Oct. 13, 1994) (stating “Courts consistently grant motions to amend

where it appears that the new facts and allegations are developed during discovery, are closely

related to the original claim, and are foreshadowed in earlier pleadings”)); Morin v. Trupin, 835

F. Supp. 126, 129 (S.D.N.Y. 1993) (“The plaintiffs…are granted leave to amend their pleading

to incorporate factual matters obtained through discovery…”). For example, in In re Facebook,

Inc., 986 F. Supp. 2d 472, 472-73, the court permitted plaintiffs to amend their complaint to

include findings in an SEC Order, which was issued after plaintiffs filed their complaint. The

court held that “The SEC Order contains new factual findings, released one month after Plaintiffs

filed their CAC, which are directly relevant to and supportive of Plaintiffs’ claims. There is no

evidence of bad faith as Plaintiffs did not have access to these findings when the CAC was filed,

and Defendants do not allege any prejudice resulting from such an amendment.” Id.

Courts have permitted amendments despite the elapse of much longer time intervals than

presented in the instant case. See Margel v. E.G.L. Gem Lab Ltd., No. 04 Civ. 1514(PAC)

(HBP), 2010 WL 445192, at *10 (S.D.N.Y. Feb. 8, 2010) (granting motion to amend despite

delay of at least six months; collecting Second Circuit cases allowing amendments after delays

ranging from two to five years); Pall Corp. v. Cuno Inc., 681F.Supp.2d 258, 2010 WL 301954,

at *5 (E.D.N.Y. Jan.20, 2010) (although the two related cases had been pending for twelve and

six years, no trial date had yet been set); Richardson Greenshields Securities, Inc. v. Lau, 825


{00226752;2 } 12

F.2d 647, 653 n. 6 (2d Cir.1987) (collecting cases where leave to amend granted after delays

ranging from two to five years); Affiliated FM Insurance Co. v. Liberty Mechanical Contractors,

Inc., No. 12 Civ. 5160, 2013 WL 4526246, at *5 (S.D.N.Y. Aug. 27, 2013) (allowing

amendment after nine months despite movant's knowledge of relevant information at time of

initial pleading because party “need not prove that they uncovered new facts or law” to receive

leave to amend); Valentini v. Citigroup, Inc., No. 11 Civ. 1355, 2013 WL 4407065, at *7

(S.D.N.Y. Aug. 16, 2013) (finding delay of eighteen months “insufficient ground to warrant

denial of [ ] motion to amend” where non-moving party “failed to establish bad faith or undue

prejudice”); cf. Duling v. Gristede's Operating Corp., 265 F.R.D. 91, 98 (S.D.N.Y.2010)

(allowing amendment two and one-half years after case began and noting that “even vague or

'thin' reasons [for delay] are sufficient, in the absence of prejudice or bad faith”).; Zomba

Recording Corp. v. MP3.com, Inc., No. 00 Civ. 6831(JSR), 2001 WL 770926, at *1 (S.D.N.Y.

July 10, 2001) (despite “extended delay,” court exercises its discretion to allow amendment in

the absence of prejudice).

The newly-discovered evidence in the SAC is derived from the DPA, the SEC Order, and

related documents in connection with the SEC-DOJ Settlements, which were publicly disclosed

for the first time on September 29, 2016. These facts were not and could not have been

discovered by Plaintiffs prior to September 29, 2016, and Plaintiffs acted promptly to seek to

incorporate this information into their pleading. Indeed, Defendants OZM, Och, and Frank will

file their motion to dismiss the SAC while this motion as to Cohen is still being briefed.

Therefore, Plaintiffs’ good faith effort to incorporate this new information promptly upon

discovery supports allowing the SAC’s claims against Cohen to stand.


{00226752;2 } 13

C. The Amendment Is Not Futile

The SAC re-asserts the scheme liability and control person claims against Cohen, adding

previously-unavailable evidence that addresses the concerns raised by the Court in its prior

dismissal of Cohen. Because the SAC now states plausible claims against Cohen, the

amendment cannot be considered futile. See, e.g., Circle Line Sightseeing Yachts, Inc. v. Circle

Line-Statute of Liberty Ferry, Inc., No. 01 Civ. 9788, 2003 WL 253094, at *1 (S.D.N.Y. Feb. 4,

2003) (“[A] proposed claim may be found futile only where it is clearly frivolous or legally

insufficient on its face.”) (internal quotations omitted); IBEW Local Union No. 58 Pension Trust

Fund & Annuity Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015)

(“Proposed amendments are futile if they would fail to cure prior deficiencies or to state a claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure.”) (internal quotes omitted); Ho

Myung Moolsan Co., Ltd. v. Manitou Mineral Water, Inc., 665 F.Supp.2d 239, 250 (S.D.N.Y.

2009) (holding that the party opposing leave has the burden to demonstrate that the amendment

would be futile).

Specifically, to adequately plead scheme liability under Sections (a) and (c) of Rule 10b-

5, Plaintiffs must allege that Cohen, “in connection with the purchase or sale of a security, (1)

engaged in a manipulative or deceptive act, (2) in furtherance of an alleged scheme to defraud,

and (3) acted with scienter.” Sec. & Exch. Comm'n v. Penn, No. 14-CV-0581 (VEC), 2016 WL

7413518, at *5 (S.D.N.Y. Dec. 21, 2016). In the MTD Order, the Court held that Plaintiffs failed

to plead a scheme liability claim under Section 10(b) and Rule 10b-5(a) and (c), because inter

alia, Plaintiffs failed to plausibly allege that Defendants’ conduct violated the FCPA and that

Defendants’ deceptive scheme affected the price of OZM’s securities during the Class Period.

MTD Order at 24-25. The Court further held that Plaintiffs failed to identify any “deceptive act”

apart from the misrepresentations themselves. Id.


{00226752;2 } 14

The SAC resolves these pleading deficiencies. First, OZM has now admitted that the

underlying FCPA violations occurred and has accepted and acknowledged responsibility for the

acts of Och, Frank, and Cohen as set forth in Statement of Facts attached to the DPA. See DPA ¶

2. OZM also has expressly agreed not to make any statements in this litigation or otherwise that

contradict the DOJ’s findings. Id. at ¶ 22. In particular, the DPA details Defendants’ knowledge

of and participation in a massive bribery scheme and cover-up spanning nearly a decade –

including during the Class Period – that involved corrupt payments to government officials all

over Africa.

Second, based on this evidence, the SAC explains how this deceptive scheme resulted in

the artificial inflation of OZM’s securities during the Class Period. As an initial matter, the DPA

states that the bribery scheme remained ongoing in certain African countries into 2015. See DPA

¶¶ 20, 63; SAC ¶¶ 9, 51. Additionally, because one of the main objectives of the scheme was to

create “long-term deal flow,” Defendants’ illegal business transactions in Africa – even those

that pre-date the Class Period – continued to generate revenues for OZM throughout the Class

Period. See DPA ¶ 20, 63; SAC ¶¶ 51-55. For example, OZM booked $91 million in profits

from mining deals in the DRC in 2012 and 2013, as well as millions in fees from certain uranium

concessions and license renewals through at least 2012, even though Defendants were well aware

that these revenues were the product of illegal and corrupt bribes paid to secure these business

opportunities. See, e.g., DPA ¶¶ 20-21, 100; SAC ¶¶ 55, 99-100. Overall, the SAC alleges that

the illegal pecuniary gains from Defendants’ bribery schemes in the DRC, Libya and Chad,

Niger and Guinea – all of which were personally orchestrated and run by Defendant Cohen –

resulted in $221,933,010 in illegal pecuniary gains, which were reflected on OZM’s financial

statements, rendering them false and misleading. See, e.g. SAC ¶ 125. These revenues kept


{00226752;2 } 15

OZM’s stock price artificially inflated throughout the Class Period, and investors had no way to

know that the Company’s financial results were attributable, in part, to ongoing, illegal conduct.

Furthermore, even that part of Cohen’s illegal conduct that occurred prior to the Class

Period is nevertheless “connect[ed] with the purchase or sale of a security” during the Class

Period. The Eighth Circuit’s recent decision in W. Virginia Pipe Trades Health & Welfare Fund

v. Medtronic, Inc., No. 15-3468, 2016 U.S. App. LEXIS 23353, (8th Cir. Dec. 28, 2016)

(“Medtronic”) illustrates this point. In Medtronic, prior to and during the class period,

defendants paid physician authors to manipulate the results of clinical studies for Medtronic’s

products. In addressing scheme liability and the causal connection between the alleged

manipulative conduct and investors’ reliance on defendants’ misrepresentations that artificially

inflated Medtronic’s stock price the Court stated: “[I]n speaking with potential investors,

Medtronic’s CEO specifically emphasized that the company’s products’ strong clinical trial

performance undergirded Medtronic’s competitiveness and sustainability. As a result, taking the

allegations as true, Medtronic’s deceptive conduct directly caused the production of the

information on which the market relied…Medtronic’s alleged manipulative conduct directly

caused the biased clinical trial results that the market relied upon. This alleged causal connection

is sufficient to support a finding of reliance.” Medtronic at *6.

Similarly, here, Defendants’ (and specifically Cohen’s) deceptive conduct not only

artificially inflated, or maintained, the price of OZM stock because the illegal pecuniary gains of

the scheme were reflected on OZM’s financial statements, but also because Defendants’

statements to investors, which effectively denied the existence of the SEC-DOJ Investigation,

artificially inflated or maintained the price of OZM’s stock to such a degree that by the time the

gravity and implications of the SEC-DOJ Investigation became known, OZM’s stock had fallen


{00226752;2 } 16

by nearly 60 percent (SAC ¶¶ 241-253). See also Sec. & Exch. Comm'n v. Zouvas, No.

316CV0998CABDHB, 2016 WL 6834028, at *8 (S.D. Cal. Nov. 21, 2016) (“A fraud that

touches the intrinsic value of a securities and the means of accomplishing the purchase of

securities is sufficiently connected to a securities transaction to bring the fraud within Section

10(b)”); In re Galena Biopharma, Inc. Sec. Litig., 117 F. Supp. 3d 1145, 1198 (D. Or. 2015)

(“Each of the Defendants against whom Claim One is asserted is alleged to have directly

engaged in conduct that resulted in allegedly misleading information being disseminated to the

public and artificially inflating Galena’s stock price.”).

Third, the SAC incorporates extensive allegations about Cohen’s personal involvement

and commission of wrongful and deceptive acts during the Class Period. For example, Cohen

was directly involved in the payment of bribes, otherwise ignored warnings indicating a high risk

of corruption, withheld information from legal and compliance functions, and structured deals

with the purpose and intent of circumventing internal policies and controls. See, e.g., DPA ¶¶

23, 28, 43-46, 65; SAC ¶¶ 62-67, 93. He also engaged in self-dealing transactions to personally

profit from the fraud. See, e.g., SEC Order ¶¶ 86-93; SAC ¶¶ 233-4. Additionally, Cohen’s

active concealment of his knowledge and participation in Defendants’ fraud, including by

falsifying documents related to his self-dealing, initially delayed regulators, thereby extending

the SEC-DOJ Investigation and the Company’s exposure to regulatory risk. See, e.g., SEC Order

¶ 92; DPA ¶ 4; SAC ¶¶ 233-4. These deceptive acts by Cohen go beyond the Company’s

misrepresentations and omissions and served to perpetuate the false impression that OZM’s

business and prospects remained strong throughout the Class Period.


{00226752;2 } 17

The SAC’s allegations as to Cohen are more than adequate to plausibly state claims

against him based on scheme liability. Therefore, at this early stage of the proceedings,

amendment would not be futile.

D. Cohen Will Not Suffer Undue Prejudice If Leave to Amend Is Granted

“The party opposing the motion for leave to amend has the burden of establishing that an

amendment would be prejudicial.” Ballard v. Parkstone Energy, LLC, 2008 WL 4298572, at *5

(S.D.N.Y. 2008). “Prejudice alone [] is insufficient to justify denial of leave to amend; rather the

necessary showing is ‘undue prejudice to the opposing party.” Randolph-Rand Corp. v. Tidy

Handbags, Inc., 96 Civ. 1829 (LMM) (DF), 2001 U.S. Dist. LEXIS 17625, 2001 WL 1286989,

at *3 (S.D.N.Y. Oct. 24, 2001) (quoting Foman, 371 U.S. at 182). In addition, a party opposing

a motion for leave to amend must show actual prejudice, not merely the possibility of prejudice.

In re Bernard L. Madoff Inv. Sec. LLC, 560 B.R. 208, 222–28 (Bankr. S.D.N.Y. 2016).

To establish undue prejudice, Cohen must demonstrate that the amendment would: (i)

require him to expend significant additional resources to conduct discovery and prepare for trial;

(ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a

timely action in another jurisdiction.” Id. “The type of prejudice that warrants denial of leave to

amend is usually such that it puts [the opposing party] at an unfair disadvantage,” such as the

addition of a new claim on the eve of trial. See In re Osage Exploration Co., 104 F.R.D. 45, 49

(S.D.N.Y. 1984); see Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 284 (2d Cir.

2000) (“[W]e will be most hesitant to allow amendment where doing so unfairly surprises the

non-movant and impedes the fair prosecution of the claim.”). Cohen cannot demonstrate

prejudice, let alone undue prejudice, if leave to amend is granted.


{00226752;2 } 18

i. The cost of conducting discovery and preparing for trial will not unduly

prejudice Cohen

First, courts only consider potential additional discovery to be prejudicial when a party

seeks to amend its pleadings in the later stages of a case. See, e.g., State Teachers Retirement Bd.

v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (reversing denial of leave to amend where “no

trial date had been set by the court,” no party had moved for summary judgment, the amended

claim was “obviously one of the objects of discovery and related closely to the original claim,”

and “the amendment will not involve a great deal of additional discovery”). Here, while the case

is in the discovery stage (subject to the PSLRA discovery stay that Defendants contend should

apply during the pendency of the anticipated motion to dismiss the SAC), it is not at an advanced

stage. Defendants have only produced approximately 5,000 pages of documents, and a motion to

compel is pending, based upon the parties’ disagreement as to the appropriate scope of

discovery. See Dkt 68. Additionally, no depositions have taken place. See, e.g. Agerbrink v.

Model Serv. LLC, 155 F. Supp. 3d 448, 452–56 (S.D.N.Y. 2016) (“Although the parties disagree

on the status of discovery, discovery is still underway, and neither a summary judgment briefing

schedule nor a trial date has been set”).

Second, the fact that Cohen will incur the cost and burden of discovery if amendment is

permitted does not constitute undue prejudice. “The Second Circuit has held that ‘the adverse

party’s burden of undertaking discovery, standing alone, does not suffice to warrant denial of a

motion to amend a pleading.’” Burgee v. Patrick, No. 91-CIV-3023 (MJL), 1996 WL 227819, at

*4 (S.D.N.Y. May 3, 1996) (citations omitted); United States v. Cont’l III. Nat’l Bank & Tr. Co.,

889 F.2d 1248, 1255 (2d Cir. 1989) (adverse party’s burden of investigating new allegations in

amended pleading, including undertaking discovery, does not by itself “suffice to warrant denial

of a motion to amend”). See also, Soroof Trading Dev. Co. v. GE Microgen, Inc., 283 F.R.D.


{00226752;2 } 19

142, 152–53 (S.D.N.Y. 2012) (“To the extent that GE Microgen complains about added time and

cost, “[a]llegations that an amendment will require the expenditure of some additional time,

effort, or money do not constitute undue prejudice.”); Agerbrink v. Model Serv. LLC, 155 F.

Supp. 3d 448, 452–56 (S.D.N.Y. 2016) (“the defendants’ protestations that allowing the

proposed amendment will “impose an undue burden on Defendants” by expanding the scope of

discovery are also insufficient. While some additional discovery will certainly be necessary, the

possibility “that an amendment will require the expenditure of additional time, effort, or money

[does] not constitute ‘undue prejudice.”’); S.E.C. v. DCI Telecommunications, Inc., 207 F.R.D.

32, 34–35 (S.D.N.Y. 2002) (“Prejudice, of course, exists. Additional time, money and effort will

be expended to meet this new charge. Given the state of DCI's existence and the difficulties of

locating files, DCI is disadvantaged. The disadvantage, however, is not so substantial as to

preclude a defense or to bar the amendment.”).

Moreover, as the SEC-DOJ Settlements make clear, Cohen is a key witness in this case,

and still faces potential criminal and civil prosecution by the DOJ and SEC in connection with

his involvement in the bribery scheme. Consequently, he is likely to incur the cost and burden of

discovery in this matter as well as other related actions, including providing testimony at

deposition and trial, whether he is a party or a witness. The potential marginal cost and burden

in terms of discovery and trial presented by the SAC’s revival of claims against Cohen is

therefore insufficient to establish an undue prejudice warranting denial of leave to amend.

ii. Amending the SAC to re-assert claims against Cohen will not significantly

delay the resolution of the case.

Given the current posture of the case, allowing amendment of the SAC to assert claims

against Cohen will not delay the resolution of the Action. As noted, while discovery in the case

is underway, it is not at an advanced stage. Furthermore, the Court has not yet determined if the


{00226752;2 } 20

PSLRA discovery stay halts all discovery, including discovery related to claims that this Court

has already affirmed, while Defendants’ anticipated motion to dismiss the SAC is pending. No

discovery has taken place while that issue remains sub judice.

Moreover, although briefing on the motion to dismiss the SAC is set to begin, the

schedule could easily be adjusted to coordinate submission of a motion to dismiss by Cohen so

that the Court would need to rule on the sufficiency of the SAC’s allegations only once.

Thereafter, assuming the Court sustains the claims asserted in the SAC as to all Defendants, the

Court could enter a new case management order so that the Action can proceed efficiently as to

all parties, including Cohen. Accordingly, allowing the amendment as to Cohen will not result in

any significant delay at this juncture.

Because Cohen cannot demonstrate undue prejudice, and because good cause otherwise

exists, amendment of the SAC to re-assert claims against Cohen should be permitted.

CONCLUSION

For the reasons stated herein and good cause shown, Plaintiffs respectfully request that

the Court issue an Order (i) granting leave to amend the SAC to renew claims against Cohen; (ii)

allowing the SAC to remain the operative pleading; (iii) directing Cohen to answer or otherwise

respond to the SAC; and (iv) granting such other and further relief as the Court may deem just

and proper.

Dated: January 7, 2017

Respectfully submitted,

POMERANTZ LLP

/s/ Michele S. Carino

Jeremy A. Lieberman

Marc I. Gross

Michele S. Carino

600 Third Avenue

New York, New York 10016


{00226752;2 } 21

Telephone: (212) 661-1100

POMERANTZ LLP

Patrick V. Dahlstrom

Ten South LaSalle Street, Suite 3505

Chicago, Illinois 60603

Telephone: (312) 377-1181

THE ROSEN LAW FIRM, P.A.

Laurence Rosen

Sara Fuks

275 Madison Avenue, 34th Floor

New York, New York 10016

Telephone: (212) 686-1060

Facsimile: (212) 202-3827

Lead Counsel for Plaintiffs and the Class


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