     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
 4       New York, on the 21st 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


                                                  1
 1   FOR APPELLANT:             Helen Davis Chaitman, Becker &
 2                              Poliakoff, LLP, New York, New
 3                              York.
 4
 5   FOR APPELLEES JEANNE       Cary Bruce Lerman, (Dereck J.
 6   LEVY-CHURCH AND FRANCIS    Kaufman, Melinda Eades Lemoine,
 7   N. LEVY:                   Carl Holliday Moor, Fred Anthony
 8                              Rowley on the brief), Munger,
 9                              Tolles & Olson LLP, Los Angeles,
10                              California.
11
12   FOR APPELLEE IRVING H.     David J. Sheehan, (Seanna R.
                                Brown, on the brief), Baker &
13   PICARD:
                                Hostetler LLP, New York, New
14                              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

                                  2
 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




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