Opinion
11466N Index 151244/19
05-07-2020
In re APEX FUND SERVICES (US), INC., Petitioner–Respondent, v. Stephen MAFFEI, et al., Respondents–Appellants.
Lowenstein Sandler LLP, New York (Frank T.M. Catalina of counsel), for appellants. Brach Eichler L.L.C., New York (Autumn M. McCourt of counsel), for respondent.
Lowenstein Sandler LLP, New York (Frank T.M. Catalina of counsel), for appellants.
Brach Eichler L.L.C., New York (Autumn M. McCourt of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about April 25, 2019, which granted the petition of Apex Fund Services (US), Inc. (Apex) to quash an out-of-state subpoena served on the United States Securities Exchange Commission (SEC) pursuant to CPLR 3119(e), unanimously affirmed, without costs.
The court providently exercised its discretion in granting Apex's application to quash the subpoena. The information sought is irrelevant to the New Jersey action, as it relates to the SEC's investigation of Apex's handling of investment funds that are not at issue in the New Jersey action (see Matter of Kapon v. Koch, 23 N.Y.3d 32, 34, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] ). Further, quashing the subpoena is justified by the fact that the requested information is subject to some expectation of confidentiality (see 17 CFR 203.5 ["Unless otherwise ordered by the Commission, all formal investigative proceedings shall be non-public"]; compare Technology Multi Sources, S.A. v. Stack Global Holdings, Inc, 44 A.D.3d 931, 845 N.Y.S.2d 357 [2d Dept. 2007] ).
We note that the SEC had previously denied a FOIA request for the same documents on confidentiality grounds. Furthermore, following the grant of this petition, the New Jersey court denied respondents' motion to compel, finding the requested information irrelevant and subject to confidentiality.