1

12-816-cv

Marsha Peshkin v. Jeanne Levy-Church, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 21st 4 day of December, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 GUIDO CALABRESI,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 In re: Bernard L. Madoff Investment

14 Securities, LLC

15 -------------------------------------

16 MARSHA PESHKIN, 

17 Plaintiff-Appellant,

18

19 -v.- 12-816-cv

20

21 JEANNE LEVY-CHURCH; FRANCIS N. LEVY;

22 and IRVING H. PICARD, Trustee for the

23 Liquidation of Bernard L. Madoff

24 Investment Securities LLC, 

25 Defendants-Appellees.

26 - - - - - - - - - - - - - - - - - - - -X

27
2

1 FOR APPELLANT: Helen Davis Chaitman, Becker &

2 Poliakoff, LLP, New York, New

3 York.

4

5 FOR APPELLEES JEANNE

6 LEVY-CHURCH AND FRANCIS

7 N. LEVY:

8

9

10

11

12 FOR APPELLEE IRVING H.

13 PICARD:

14

Cary Bruce Lerman, (Dereck J.

Kaufman, Melinda Eades Lemoine,

Carl Holliday Moor, Fred Anthony

Rowley on the brief), Munger,

Tolles & Olson LLP, Los Angeles,

California.

David J. Sheehan, (Seanna R.

Brown, on the brief), Baker &

Hostetler LLP, New York, New

York.

15

16 Appeal from a judgment of the United States District

17 Court for the Southern District of New York (Batts, J.).

18

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20 AND DECREED that the judgment of the district court be

21 AFFIRMED. 

22

23 This is an appeal from a decision of the United States

24 District Court for the Southern District of New York (Batts,

25 J.) affirming the Bankruptcy Court’s (Lifland, J.) denial of

26 a motion under Federal Rule of Civil Procedure 60(b) in

27 proceedings related to the Bernard Madoff fraud. Marsha

28 Peshkin and a large group of other Madoff customers (“the

29 Customers”) moved to vacate the approval of a settlement

30 between the Trustee of the bankruptcy estate of Bernard L.

31 Madoff Investment Securities, LLP (“BLMIS”) and the heirs of

32 Norman Levy, a large customer of BLMIS. The Customers argue

33 that the Trustee failed to disclose $100 billion of relevant

34 transactions between Levy and BLMIS before seeking approval

35 of the settlement. We assume the parties’ familiarity with

36 the underlying facts, the procedural history, and the issues

37 presented for review.

38

39 We review a denial of a Rule 60(b) motion for abuse of

40 discretion. See Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir.

41 2009). “A district court would necessarily abuse its

42 discretion if it based its ruling on an erroneous view of

43 the law or on a clearly erroneous assessment of the

44 evidence.” Transaero, Inc. v. La Fuerza Aerea Boliviana,

45 162 F.3d 724, 729 (2d Cir. 1998) (internal quotation marks
3

1 omitted). “A motion for relief from judgment is generally

2 not favored and is properly granted only upon a showing of

3 exceptional circumstances.” United States v. Int’l Broth.

4 of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). “We look

5 through the district court to the bankruptcy court’s

6 decision.” In re DBSD N. Am., Inc., 634 F.3d 79, 94 (2d

7 Cir. 2011). We therefore “must review the bankruptcy

8 court’s findings of fact and conclusions of law

9 independently.” In re Vebeliunas, 332 F.3d 85, 90 (2d Cir.

10 2003).

11

12 1. The Customers cannot obtain relief under Rule

13 60(b)(2) because the Customers have not shown that the new

14 evidence was of “‘such importance that it probably would

15 have changed the outcome.’” Int’l Broth. of Teamsters, 247

16 F.3d at 392 (quoting United States v. IBT, 179 F.R.D. 444,

17 447 (S.D.N.Y.1998)). Because the $100 billion worth of

18 transactions were offsetting, they could not have altered

19 the possible exposure to liability of the Levy Heirs. 

20 Further, the alleged $2 billion margin loan is premised

21 entirely on financial statements that this Court has already

22 deemed fictitious. See In re Bernard L. Madoff Inv. Secs.

23 LLC, 654 F.3d 229, 234 (2d Cir. 2011). 

24

25 2. As to the Rule 60(b)(3) motion, the $100 billion

26 offsetting transactions are irrelevant to the Levy Heirs’

27 total exposure and the existence of the $2 billion margin

28 loan is speculative at best. The Customers therefore failed

29 to show “clear and convincing evidence of material

30 misrepresentations.” Fleming v. N.Y. Univ., 865 F.2d 478,

31 484 (2d Cir. 1989).

32

33 3. Rule 60(b)(6) is unavailable if, as here, the

34 motion is “premised on one of the grounds for relief

35 enumerated in clauses (b)(1) through (b)(5).” Liljeberg v.

36 Health Services Acquisition Corp., 486 U.S. 847, 863 (1988).

37

38 For the foregoing reasons, we hereby AFFIRM the

39 judgment of the district court.

40

41

42 FOR THE COURT:

43 CATHERINE O’HAGAN WOLFE, CLERK

44