FILED

FOR PUBLICATION NOV 13 2009

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MERRILL LYNCH, PIERCE, No. 09-15573

FENNER AND SMITH,

INCORPORATED, a corporation D.C. No. 1:00-cv-00595-MLR organized and existing under the laws of the State of Delaware with its principal place of business in New York, New York,

ORDER

Plaintiff - Appellee,

v.

ARELMA, INC., a corporation organized and existing under the laws of Panama with a permanent address at Ave. Justo Alosemena y Calle 41 Este, No. 40-59 Pte al Colegio Immeculada, Panama 1.Rep.de Panama, and a mailing address at c/o Suntrust Invenstment Co.S.A., ru deJargonnant 2, P.O. Box 76, 1211 Geneva 6, Switzerland; PHILIPPINE NATIONAL

BANK,

Defendants - Appellants,

THE ESTATE OF ROGER ROXAS,

receiver, Felix Dacanay; GOLDEN BUDHA CORPORATION, a corporation organized and existing under the laws of the State of Georgia, with a registered office at 710 West page 2

First Street, Blue Ridge, Georgia 30513, and a mailing address at 260 Carrollton St., Buchanan, GA 30113; MARIANO

J. PIMENTEL, on behalf of himself and

all other persons similarly situated,

Defendants - Appellees,

and

SUNTRUST INVESTMENT CO., S.A.,

a corporation organized and existing under the laws of Switzerland with an address at rue de Jargonnant 2, P.O. Box 76, 1211 Geneva 6, Switzerland; ENC CORPORATION, a corporation organized and existing under the laws of the State of Maryland, with an address at 232 Paula Lynn Drive, Silver Spring,

MD,

Defendants.

Before: KOZINSKI, Chief Judge, D.W. NELSON and WARDLAW, Circuit Judges.

In 1972, Ferdinand Marcos, then the President of the Republic of the

Philippines, deposited approximately $2 million with Merrill Lynch in New York

City. That money sat in a Merrill Lynch account for the next thirty-odd years,

growing to approximately $33.8 million worth of cash and securities. By 2000, a page 3

number of claimants to Marcos’s estate had come knocking, so Merrill Lynch filed

an interpleader to determine who should get the money. That action ended up in

the District of Hawaii before the same judge who had presided over a multibillion-

dollar class action against Marcos for human rights abuses. As part of the

interpleader, Merrill Lynch transferred the $33.8 million worth of assets into a

court registry in September of 2000.

In 2004, the district judge held that the class action plaintiffs, now

represented by Jerry Pimentel, were entitled to the assets. With the consent of the

interpleader parties, the Merrill Lynch assets were then transferred into a

settlement account that had been established for the benefit of the class; this

account was also under the court’s control. Eventually, the Supreme Court

ordered the interpleader dismissed because the Philippine government could not be

joined as a party. Republic of Phil. v. Pimentel, 128 S. Ct. 2180, 2194 (2008).

On remand from the Supreme Court, some of the parties requested an

accounting “showing which funds should stay [in the class account] and which

funds should be transferred” back to Merrill Lynch. On October 23, 2008, the

court issued a minute order stating that the accounting was complete and that

“[t]he current balance for the Merrill Lynch account . . . is $34,689,631.27.” The

order was accompanied by a half-page “accounting” of the assets’ management page 4

during their eight years under the court’s control. The accounting is filled with

cryptic notations such as “4,944,268.28” for “OTHER DISBURSEMENTS” and

“118,745,095.36” for “TOTAL SALES.” This curious statement plainly fails to

account for all transactions involving the assets during the eight years they were

held in the clerk of court’s custody. It does not identify any earnings attributable

to interest or dividends; it does not itemize gains or losses, or the prices of any

securities bought or sold; it does not list specific transactions such as sales of

securities or transfers of funds, who authorized any such transactions or the

reasons therefor. It doesn’t give the reader even a basic understanding of the path

by which $33.8 million worth of assets deposited in September of 2000 came to be

worth $34.7 million today.

Arelma/PNB requested a more detailed accounting. Pimentel opposed and

also argued that the interest earned on the Merrill Lynch funds while comingled

with the class funds should remain in the settlement account pursuant to a 2004

stipulation by the parties. In February 2009, the District Court refused to provide

an additional accounting and ordered the Clerk of the Court “to return

$34,689,631.27 in cash, without interest, to an account at Merrill Lynch.” The

district court entered final judgment in February 2009 and Arelma/PNB appealed. page 5

After the district court entered its judgment, it convened a post-judgment

hearing in April of 2009 to deliver a further accounting from the bench. This oral

accounting, which provided barely more detail than the written accounting,

contradicted the record on several points.

* * *

1. When disputed assets are deposited into a court’s registry, “the court

holds [them] in trust . . . ‘for the benefit of whomsoever in the end [they] should

be found to belong.’” Baxter v. United Forest Prods. Co., 406 F.2d 1120, 1126

(8th Cir. 1969) (per curiam) (quoting Branch v. United States, 100 U.S. 673, 674

(1879)). Thus, when the court turns over the assets, it must “render an account

that [shows] in detail the items expended and [that shows] when, to whom, and for

what purposes the payments were made so the beneficiaries can make a reasonable

test of the accuracy of the accounts.” Otto v. Niles (In re Niles), 106 F.3d 1456,

1461 n.4 (9th Cir. 1997) (internal quotation marks omitted). When public entities

hold private assets, they must do so transparently so that the parties and the public

will not be concerned that any of the assets have been lost or mishandled.

The accounting provided by the district court plainly fails to satisfy this

obligation. It lacks any of the details necessary to confirm that the Merrill Lynch page 6

assets were properly handled during the eight years that they were under the

court’s control. We therefore remand to the district court with instructions to

provide a full and complete accounting.

2. Contrary to Pimentel’s assertion, the parties did not stipulate that any

interest earned during the post-2004 appellate process would inure to the class

regardless of the case’s ultimate outcome. The stipulation says only that the

“lower court may invest the interpleaded funds during the pendency of the instant

appeals.” We thus apply the “usual and general rule . . . that any interest on an

interpleaded and deposited fund follows the principal and is to be allocated to

those who are ultimately to be the owners of that principal.” Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162–63 (1980) (citing eight cases).

On remand, the district court shall order all interest accrued on the interpleaded

funds returned to Merrill Lynch.

3. Two Supreme Court Justices remarked on the desirability of transferring

this case to a different district judge. Pimentel, 128 S. Ct. at 2196 (Stevens, J.,

concurring in part and dissenting in part) (explaining “that the District Judge

would likely have substantial difficulty in putting out of his or her mind

previously-expressed views” (internal quotation marks omitted)); id. at 2198 page 7

(Souter, J., concurring in part and dissenting in part) (“For reasons given by

Justice Stevens, I would order that any further proceedings in the District Court be

held before a judge fresh to the case.”). The district judge’s handling of the case

on remand confirms the prescience of these views. We therefore remand this case

to the Chief Judge of the District of Hawaii for reassignment to a different district

judge, see United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.

1986) (per curiam), and expedited proceedings in conformity with our order.

REMANDED.

The mandate shall issue forthwith. See Fed. R. App. P. 2; 41(b). page 8

Counsel

Argued by Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, who was joined on the briefs by Kenneth S. Geller and David M. Gossett, Mayer Brown LLP, Washington, DC; Barry A. Smith and Jay R. Ziegler, Buchalter Nemer, Los Angeles, CA; and Bruce L. Lamon and Carol A. Eblen, Goodsill Anderson Quinn & Stifel, Honolulu, HI, for defendants-appellants, Arelma, Inc., et al.

Argued by Robert A. Swift, Kohn, Swift & Graf, P.C., Philadelphia, PA, for defendants-appellees, Pimentel, et al.