Matter of Apex Fund Servs. (US), Inc. v Maffei

Matter of Apex Fund Servs. (US), Inc. v Maffei 2020 NY Slip Op 02739 Decided on May 7, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 7, 2020
Manzanet-Daniels, J.P., Mazzarelli, Gesmer, Moulton, JJ.
11466N 151244/19

[*1] 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.

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 NY3d 32, 34 [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 AD3d 931 [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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 7, 2020

CLERK