The D & O Diary : Directors and Officers Liability and Insurance : The D & O Diary : Kevin LaCroix : Securities Laws, Corporate Fraud, D & O Litigation

In a January 12, 2012 opinion that quotes from (and relies upon) former Treasury Secretary Henry Paulson’s credit crisis memoirs, Southern District of New York Judge Richard Holwell granted in part and denied in part the motion to dismiss in the subprime and credit crisis related securities class action lawsuit that investors had filed against General Electric, certain of its directors and officers, and its offering underwriters. A copy of Judge Holwell’s opinion can be found here.

 

Background

As discussed in greater detail here, the plaintiffs first filed their action in March 2009, alleging that the company had failed to disclose information regarding the company’s health and the health of its financial subsidiary, GE Capital, at the height of the financial crisis. As Judge Holwell summarized it, the plaintiffs allege that “during a time when the financial markets were crumbling and companies across the United States were scrambling to disclose their holdings in subprime loans, GE withheld information regarding its substantial holdings in subprime and non-investment grade loans and touted GE as safe in comparison to its competitors, despite the fact that GE was also feeling the impact of the financial crisis.”

 

Specifically, the plaintiffs allege that GE made misstatements about its ability to fund itself through commercial paper; the quality of its loan portfolio; its ability to maintain its dividend; and its projected 2009 profits. The plaintiffs also alleged that GE violated GAAP by improperly recharacterizing certain of its assets from short-term to long term and by maintaining inadequate loan loss reserves. The plaintiffs allege that the defendants made misleading statements on these topics throughout the class period from September 25, 2008 to March 19, 2009, in violation of the Section 10 (b) of the ’34 Act; and in connection with GE’s October 7, 2008 stock offering, in violation of Section 11 of the ’33 Act.

 

Three particular alleged statements on which the plaintiffs sought to rely proved to be particularly important in Judge Holwell’s rulings on the motion to dismiss. First, with respect to the plaintiffs’ allegations regarding the company’s ability to rely on commercial paper as the credit crisis peaked in September 2008, the plaintiffs’ rely on statements in Henry Paulson’s book, On the Brink, in which Paulson states that GE CEO Jeffrey Immelt called Paulson at least twice that month  allegedly to report that the company was finding it very difficult to sell its commercial paper for any term longer than overnight.

 

Second, the plaintiffs’ relied on Immelt’s statements in December 2008 with respect to the company’s $1.24 annual dividend: “What can you count on? You can count on a great dividend,” specifically referencing the $1.24 dividend level. The company later cut its quarterly dividend for the second half of 2009 from 31 cents a quarter to ten cents per quarter.

 

Third, according the plaintiffs, throughout the class period the defendants made statements describing their loan asset portfolio as “very high quality” and using various similar descriptions. The plaintiffs contrasted this with GE’s March 2009 release in which it specified that 42% of GE Capital’s $183 billion in consumer loans were made to non-prime borrowers and at least $145 billion of its $230 billion commercial lending and leasing portfolio consisted of loans to non-investment grade companies.

 

Judge Holwell’s Opinion

In his January 12 opinion, Judge Holwell held that the plaintiffs had adequately alleged falsity as to their allegations about the GE’s ability to access the commercial paper marketplace; as to the quality of its loan asset portfolio (and in particular its exposure to subprime credits); and with respect to the reliability of the company’s annual dividend. He concluded that the plaintiffs had not adequately alleged falsity as to the other allegations.

 

In concluding that the plaintiffs had adequately alleged that Immelt had acted with scienter, Judge Holwell found, in reliance on the statements from Paulson’s book, that the plaintiffs had adequately alleged that Immelt himself made “contradictory statements to Henry Paulson.” With respect to Immelt’s December 2008 statements about the reliability of GE’s dividend, Judge Holwell rejected the competing inference that Immelt made the statements while struggling to come to terms with a rapidly changing environment:

 

Immelt’s categorical statements that investors could “count on” a dividend and that GE was having “no difficulties issuing commercial paper are not the sort of cautious statements one would expect of a CEO attempting to come to grips with the effects of the economic crisis on his company. Instead, it can be argued that Immelt was attempting to convince the public that the economic crisis was not affecting GE too drastically and that they should continue to invest in GE. Of course, a CEO is allowed to convince the public to invest in his company, but not at the expense of providing it with accurate information about the company’s financial health.

 

In concluding that GE’s CFO Keith Sherin acted with scienter with respect to certain statements about the quality of the company’s loan asset portfolio, Judge Holwell essentially said that the plaintiffs had adequately alleged that Sherin should have known the extent to which GE Capital had made extensive loans to lower quality borrowers. Judge Holwell said “it is highly improbable that Sherin, the CFO of a company 50% of whose revenues were derived from financial services in 2008, would not inquire whether his company was exposed to the subprime consumer borrower and its counterpart in the commercial sector.”

 

Significant parts of the plaintiffs’ ’33 Act claims also survived the motion to dismiss, including in particular plaintiffs’ allegations about the company’s ability to access commercial paper and the quality of the company’s loan asset portfolio and its exposure to subprime credits. Judge Holwell found that the plaintiffs’ remaining ’33 Act allegations were insufficient, but his denial of the motion to dismiss with respect to at least some of plaintiffs’ allegations means that the offering underwriter defendants remain in the case.

 

Victor Li’s January 13, 2012 Am Law Litigation Daily article about Judge Holwell’s ruling can be found here.

 

Discussion

At least a part of plaintiffs’ case would have survived the defendants’ motions to dismiss even without the benefit of Henry Paulson’s statements in his book about his September 2008 telephone conversations with Jeffrey Immelt. But Paulson’s account of the conversations clearly had an impact. At a minimum, Judge Holwell referenced the Paulson’s account of the conversations several different times in his opinion.

 

I am not aware of a prior case where the statements of a former cabinet secretary in his or her memoirs has provided even a partial basis for the denial of a motion to dismiss in a securities class action lawsuit. The plaintiffs’ reliance on Paulson’s memoirs has to qualify as one of the more unusual ways that plaintiffs have established (at least for pleading purposes) that there was a difference between what the company was saying publicly and what its officials were saying behind closed doors. (The defendants will of course argue that there was no difference or if there was it is entirely explainable, which of course are arguments they will raise as the case goes forward.)

 

It is interesting to reflect on the sheer fortuity of the fact that Paulson chose to report on those conversations in his book, and that his book was published at a time that allowed the plaintiffs to be able to rely on those statements in their amended complaint. Of course, all of this does mean that as (or perhaps if) the case goes forward, Paulson’s deposition in this case would appear to be inevitable. (Of course, this case is not the only one in which the underlying narrative involved Paulson; Paulson’s conversations with BofA CEO Ken Lewis in December 2008 also play a central role in the securities class action lawsuit arising out of the BofA/Merrill Lynch merger.)

 

It is also interesting to reflect that in the middle of one of the worst financial crises in the country’s history, Immelt could pick up the telephone and call the Treasury Secretary to tell him about the problems his company was having. The CEOs of a vast number of companies were also going through crises at that very moment, but very few of them had the option to call the Treasury Secretary to complain to him about their companies’ problems. It is rather remarkable, even given how large a company GE is, that Immelt had this option. Indeed, given what we know about what else Paulson had on his plate during September 2008 (i.e., avoiding the collapse of the entire  global financial system), it really is kind of astonishing that Immelt could just call him up and that Paulson could take his call.

 

In any event, this case will now be going forward. Given the size and prominence of the company, and the fact that the case has now survived the motion to dismiss, this case has to be added to the list of pending high-profile subprime and credit crisis-cases worth watching. Very few of these cases go to trial; most settle. In this and some of the other high profile credit crisis cases – Citigroup; the BofA/Merrill Lynch merger case; Bear Stearns; AIG – it will be very interesting to see how the likely settlements of these cases will unfold. Without knowing for sure how any one of them ultimately will turn out, there undoubtedly will be some very interesting settlements from among these cases.

 

I have added Judge Holwell’s ruling to my tally of subprime and credit crisis-related lawsuit dismissal motion rulings, which can be accessed here.

 

More About the $40 Million Lehman Brothers Mortgage Backed Securities Settlement: The news that the parties to the Lehman Brothers mortgage-backed securities case had settled the suit for $40 million was announced in November 2011 (refer here). But the complete papers related to the settlement have only just been filed in the court docket. The papers reveal a few interesting details about the settlement.

 

First, the $40 million settlement is to be funded in two ways; $31.7 million of the settlement is to come from the company’s D&O insurance and $8.3 million is to come from Lehman Brothers Holdings itself. As the January 13, 2012 memorandum in support of the plaintiffs’ unopposed motion for preliminary approval of the settlement states, the bankruptcy court supervising the Lehman bankruptcy has approved the release of funds for these purposes.

 

Second, the parties’ settlement stipulation contains in interesting detail about the source of the D&O insurance funds for the settlement. The stipulation states (at page 15) that the $31.7 million insurance contribution to the settlement is to be paid by “certain insurers (‘Insurers’) that issued directors and officers insurance policies to LBHI, for the 2007-2008 and 2008-2009 policy periods.” What is interesting about this statement is that it suggests that the funds for this settlement are coming from two different policy periods.

 

In an earlier post (here), in which I discussed the $90 million settlement of the securities suit involving former Lehman executives, I had determined that the $90 million amount, together with defense expenses and other amounts, exhausted about $200 million of the applicable $250 million insurance tower. Based on that analysis of Lehman’s insurance, I would have assumed that the $31.7 million insurer contribution was drawn from what was left of the $250 million tower.

 

However, the reference in the parties’ settlement stipulation to the two different policy years suggests that a second tower of insurance has been broached and is being drawn upon in payment of losses arising from Lehman’s collapse.

 

In an earlier post (here) about how rapidly defense expenses were eroding Lehman’s D&O insurance, I had determined that during the 2007-08 policy period, Lehman carried a total of $250 million in insurance. I had noted that, though Lehman did not file for bankruptcy until September 2008, the May 2007-May 2008 insurance tower was the one implicated, because the first of the securities class action lawsuits was filed during that policy period and the subsequent matters related back to that initial filing (or so the insurers) argued. I noted that Lehman carried a separate $250 million tower of insurance for the May 2008 to May 2008 policy period, but that up to that point the losses had accumulated only with respect to the earlier of the two insurance programs. When I later analyzed the $90 million settlement on behalf of the directors and officers, I assumed for purposes of analysis that only a single $250 million tower was available for all purposes in connection with the Lehman collapse.

 

The cryptic note in the parties’ settlement stipulation in connection with the $40 million Lehman Brothers mortgage-backed securities settlement suggests, for the first time to my knowledge, that the second tower of insurance had been drawn in and is funding losses attributable to the events surrounding Lehman’s collapse. It would certainly change things (for example, the way that the prior $90 million settlement looks) if there were to be two insurance towers totaling $500 million potentially available in connection with these matters, rather than only a single $250 million tower.

 

If there were to be two towers rather than just one, the losses from the Lehman debacle could wind up being far more costly for the D&O insurance industry than has been assumed (depending of course on how extensive the second tower’s involvement ultimately proves to be). I suspect there are a number of readers out there who may have additional insight on these issues. I welcome additional perspective that any reader may be willing to provide (anonymously if that is the preferred approach).

 

In any event, this settlement is just further corroboration for a point I have long made about the litigation arising out of the subprime meltdown and credit crisis – that is, when all is said and done, this litigation, taken collectively, will prove to have been a massive loss event for the D&O insurance industry.

 

The Totally Awesome Sledding Crow: Here at The D&O Diary, we never, ever waste our time looking at Internet videos of animals doing amusing things. Just the same, we were distracted by this video of a crow that to all appearances is engaged in trying to perfect his snowboarding style. Watch this video carefully. The crow, standing at the apex of a snow covered roof, slides down the incline on a plastic lid. The crow then picks up the lid and tries to slide down another part of the roof. But when that doesn’t work, the crow picks up the lid, returns to the original spot, and slides down the roof again.

 

A scientific discussion of the crow’s behavior can be found in this January 13, 2012 article in The Atlantic (here). While science cautions against ascribing anthropomorphic explanations for animal behavior, I find myself imagining that as the crow is sliding down the roof, he is singing to himself “If everybody had an ocean/across the U.S.A./then everybody’d be surfin’/like Caiforn-Aye-Yay…”

 

 

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Back in February 2007, when investors in New Century Financial Corporation filed a securities class action lawsuit against the company and certain of its directors and officers, there was little reason to suspect at the time that problems at the company represented the leading edge of a looming financial crisis or that the case itself was the first lawsuit in what ultimately grew to become a mountain of subprime and credit crisis-related litigation. But even now, five years later, the litigation wave continues to churn through the system, though we are now mercifully well past the depths of the financial crisis.

 

As reflected below, though many of the cases have now been resolved, many more remain pending, and the likelihood is that the litigation will continue for years to come.

 

In the five years since the first of the credit crisis lawsuits was first filed, there have been nearly 230 subprime and credit crisis related lawsuits filed, including four in 2011. A list of all of the filings can be accessed here. 2008 was the peak year of the financial crisis and also the peak year for credit crisis related lawsuit filings, when there were 102 subprime and credit crisis-related cases filed. After that, the filings began to diminish. There were 62 credit crisis related securities class action lawsuit filings in 2009, and only 23 in 2010. Maintaining a precise count over time has been challenging, as cases have been consolidated, removed, transferred, and so on. The count of 230 lawsuits should be viewed as indicative of the total number of filings, rather than an exact representation. For analytic purposes below, I have used the 230 figure, but it should be kept in mind that all calculations are approximate.  

 

Dismissal Motion Rulings

By my reckoning, about 144 of the cases, or about 63%, have reached the motion to dismiss stage. A list of all dismissal motion rulings can be accessed here. As time has passed it has become increasingly complicated to track the dismissal motion rulings, as well. Several cases have had multiple rulings and there have even been a handful of cases that have made their way up to the appellate courts.

 

For purposes of counting the dismissal motion rulings, I have counted as dismissals all cases in which a dismissal motion was granted, whether or not the dismissal was with prejudice. However, I did not count cases in which the dismissal motion was initially granted but in which the motion was denied on subsequent rehearing. If any part of the plaintiffs’ case survived the dismissal motion, I counted the ruling as a dismissal motion denial, even if the ruling may have resulted in the dismissal of a substantial part of the plaintiffs’ case.

 

One particularly complicated variant that I have tried to factor in my analysis are the rulings in which a dismissal with prejudice was granted as to some but not all the parties. I have tried to factor those rulings out of my analysis here. In addition, I have counted cases in which dismissal motions were reversed on appeal as dismissal motion denials. Finally I have counted summary judgment grants in my tally of dismissals.

 

Using these principals to categorize the dismissal motion rulings, and disregarding the small handful of cases that were voluntarily dismissed and not refilled,  it appears that dismissal motions have been granted in 76 cases, or slightly more than half of the cases in which dismissal motions have been heard (that is, about 52%).

 

Although this dismissal rate is slightly higher than the historical rate of all securities class actions, which runs about 40%, it is important to keep in mind that I have included dismissal without prejudice in the tally.  Some of the dismissed cases may yet survive renewed dismissal motion, as was the case with a number of cases in which dismissal motions were initially granted – for example, the Washington Mutual case (here), the Credit Suisse case (here), the New Century Financial case (here), PMI Group (here), and IndyMac (here). The inclusion of summary judgment grants may also inflate the apparent dismissal rate somewhat as well.

 

In addition, appellate courts proceedings could also affect the dismissal rate calculation. In at least two cases, Nomura Asset Acceptance Corporation (about which refer here) and Blackstone Corporate (here), appellate courts reversed the dismissals granted in the lower courts. There may well be other reversals on appeal, which could affect the dismissal rate calculation, at least marginally. To be sure, the dismissals of a number of other cases has been affirmed on appeal, including the dismissal in the NovaStar Financial case (refer here), Centerline (here);  Impac Mortgage (here); Home Banc Corporation (here); Regions Financial Corp./Trust Preferred Securities (here); Morgan Keegan Asset Management (here); General Electric (here); American Express (here); and Fremont General Corporation (here).

 

Finally, it should be noted that dismissal motions are still yet to be heard in over a third of the subprime and credit crisis-related lawsuits. With further proceedings yet to unfold in many cases and with so many other cases yet to be heard, it would be premature to make any definitive pronouncements about whether or not the subprime and credit crisis cases are being dismissed at a greater rate than securities class action lawsuits generally.

 

40 Settlements and a Trial

So far 40 of the subprime and credit crisis related securities class action lawsuits have settled, representing $4.419 billion in the aggregate. It is interesting to note that of these 40, 23 of the settlements were announced in 2011, representing $2.48 billion total. The pace of settlement quickened considerably in the year just ended, as more of the earlier cases reached the settlement stage. It seems likely that we will see even more settlements in 2012.

 

The average of the settlements so far is about $110 million. However, the largest settlements are pulling this average upward. If the four largest settlements (the $627 Wachovia Preferred Securities settlement, the $624 Countrywide Settlement; the $475 Merrill Lynch settlement and the $415 Lehman Brothers Offering Underwriter settlement) are removed from the calculation, the average drops to about $63 million.

 

Not every case that survives dismissal settles; though it is very rare in the securities class action lawsuit context, some cases still do go to trial. In November 2010, a jury in the Southern District of Florida entered a plaintiffs’ verdict in the securities class action lawsuit filed against BankAtlantic Bancorp and certain of its directors and officers. (It is interesting to note that this case is one of the cases mentioned above in which the dismissal motion was initially granted but was denied on reconsideration.) However, as noted here, in April 2011, Southern District of Florida Judge Ursula Ungaro granted the defendants’ motion to have the jury verdict set aside. The plaintiffs have appealed Judge Ungaro’s ruling to the Eleventh Circuit.

 

Observations

Even if subprime and credit crisis-related dismissal rate may be running ahead of historical norms so far, it seems that the highest profile cases are surviving the dismissal motions. Thus, for example, the dismissal motions were denied in the Lehman Brothers case (about which refer here), in the Bear Stearns case (here), in the BofA/Merrill Lynch merger case (here), as well as in the Citigroup case (here), the AIG case (here) and the Washington Mutual case (here).

 

One particular subset of the cases that presents some particularly interesting issues, and where the plaintiffs lawyers have seen large parts of their cases dismissed, are the cases that have been brought on behalf of mortgage-backed securities investors. From fairly early on these cases, courts have granted the dismissal motions as to specific mortgage-backed securities offerings in which the named plaintiffs had not purchased the securities. A more troublesome standing challenge has arisen in cases in which the courts have held that the named plaintiffs can only represent investors that purchased securities in the same investment tranches, but not investors who purchased securities in other tranches in the same securities offering. Rulings along these lines have been granted in the Washington Mutual mortgage- backed securities case (about which refer here), in the Countrywide Mortgage-Backed securities case (here), and in the J.P. Morgan mortgage-backed securities case (here). These rulings have dramatically narrowed the potential scope of these cases. If the line of analysis were to be followed in other mortgage backed securities cases, it could substantially diminish the potential value of these cases for the plaintiffs.

 

At the same time, during 2011, there were a couple of attention- grabbing settlements of mortgage-backed securities cases. The first of these was the $125 million settlement of the Wells Fargo mortgage backed securities case, which represented the first settlement of any of the mortgage backed securities cases. This settlement was followed in December with the $315 million settlement of the Merrill Lynch mortgage-backed securities case. These settlements demonstrate that the mortgage backed securities cases potentially have substantial value. However, it will be interesting to see how the rulings involve tranche standing described in the preceding paragraph affect these cases going forward.

 

There were a number of other interesting aspects of the subprime and credit crisis securities class action lawsuits that settled in 2011. Among other things, the year’s settlements included the largest settlement yet as part of the wave of litigation, the $627 million settlement in Wachovia Preferred Securities Litigation. The settlements also included the rather unusual resolution in the Wachovia Equity Holders’ action, which settled for $75 million while the case was on appeal from its dismissal in the lower court. This latter settlement underscores the fact that looking at the current dismissal rate of these cases may not reveal everything there is to know about these cases.

 

It is not a mere coincidence that the two cases I noted in the preceding paragraph involve Wachovia, which was acquired in December 2008 by Wells Fargo. In fact, a very large part of the aggregate amount for which the cases have settled so far has come from just two companies, Wells Fargo and Bank of America, due to the two firms’ acquisitions of companies that were at the center of many of the key events in the subprime meltdown and credit crisis.

 

Take Bank of America, for instance. So far, the settlements on BofA’s tab include the $624 Countrywide settlement; the $475 million Merrill Lynch settlement; the $150 million Merrill Lynch bond action settlement; and the$315 million Merrill Lynch mortgage-backed securities settlement. For those of you keeping score at home, that adds up to a cool $1.56 billion, or nearly 30 percent of the aggregate settlement dollars so far.

 

By the same token, Wells Fargo had some large bills to pay, too. The settlements on its tab include the $627 Wachovia Preferred Securities settlement and the $75 million Wachovia equity investors’ settlement mentioned above, as well as the $125 Wells Fargo mortgage backed securities settlement. Those three settlements add up to $827 million.

 

The total of the settlements funded or to be funded by BofA and Wells Fargo collectively add up to $2.38 billion -- or more than half of the aggregate $4.419 billion of subprime and credit crisis-related settlements so far.

 

It is interesting to contrast these mammoth settlements, involving as they do a solvent surviving entity, with the smaller settlements in cases in which the target company did not involve a surviving entity. Even though the Washington Mutual collapse was the largest bank failure in U.S. history, the securities case settled for $208.5 million, of which $103.5 million was contributed on behalf of the underwriter defendants and the company’s auditor. And even though the failure of Lehman Brothers was the central event of the credit crisis, the securities case against the former Lehman executives contributed settled for $90 million. (Separately, the Lehman Brothers offering underwriters agreed to a $417 million settlement.) Obviously both of these settlements are very substantial, but still stand in contrast to the much larger settlements I n which a solvent surviving entity was involved.

 

The WaMu settlement and the Lehman executive settlements do illustrate one critical aspect of the resolution of the subprime and credit crisis-related securities class action lawsuits and that is the importance of D&O insurance to the settlement of many of these cases. Insurance likely was not much of a factor in the larger cases involving BofA and Wells Fargo. D&O insurance was also likely not much of a factor in the $417 million Lehman Brothers offering underwriter settlement. But D&O insurance has been a significant factor in many of the other settlements.

 

For example, the $105 million settlement on behalf of the individual defendants as part of the $208.5 million WaMu settlement was funded entirely by D&O insurance. Similarly the $90 million settlement on behalf of the Lehman executives was funded by D&O insurance (a settlement that largely exhausted the company’s $250 million D&O insurance tower). D&O insurers will contribute $68.25 million of the recent $79 million settlement of the E*Trade case. $30 million of the $37.5 Popular Inc. securities class action settlement is to be funded by D&O insurance, as discussed here. Other important settlements also obviously involve substantial D&O insurer contributions, even if the exact amount is not entirely clear – see here for example with respect to the $68 million MBIA settlement.

 

In other words, D&O insurance has been a critical part of many of these settlements. Taken together these cases have been enormously costly to the D&O insurance industry, particularly when the fact that D&O insurance is also funding a substantial portion of the costs of defending these cases as well. Taking into account that many more cases are yet to be resolved, it is clear that by the time all is said and done, the subprime and credit crisis-related litigation wave taken collectively will prove to have been a major event for the D&O insurance industry. With only a small portion of the cases resolved to date, the ultimate magnitude of the industry’s losses from this event is still yet to be told.

 

SEC Modifies Its Policy – A Little Bit: Many readers may have been surprised as I was to learn on Friday that the SEC no longer would be accepting the “neither admit nor deny” settlements. This aspect of the disputed Citigroup enforcement action has been the subject of heater controversy before Southern District of New York Judge Jed Rakoff (as discussed here).

 

However, the policy modification turns out to amount to substantially less than first appeared. As Alison Frankel explains in a January 6, 2011 post on Thomson Reuters News & Insight (here), the new policy only applies where the enforcement action target has admitted guilt or been convicted in a related criminal action. As Frankel puts it, “in other words, defendants whose guilt has already been established under the higher standard of criminal law can no longer deny civil charges. Which leads, of course, to the question of why it took the SEC 40 years to change such a ridiculous policy.”

 

No matter how you look at it, this change “does not represent a major change in policy,” as one commentator noted on the WSJ.com Law Blog (here). It should have no effect on the pending Citigroup controversy.

 

The Chevron Ecuador Environmental Lawsuit: I confess that I have not been closely following the long-running lawsuit that was filed against Texaco (now part of Chevron) on behalf of Ecuadorians in connection with Texaco’s oil production operations in that country. Over time, the case seemed to represent the absolute embodiment of litigation run amok and I long ago lost interest.

 

Nevertheless, I have to say that I found Patrick Radden Keefe’s January 9, 2012 The New Yorker (here) article about the case entitled  “Reversal of Fortune” in to be absolutely fascinating. The story about the case is full of outsized characters, including in particular the crusading lead plaintiffs’ counsel Steve Donzinger. The tale is worthy of a John Grisham novel. The case, which is no closer to resolution than it has ever been, has taken on a very peculiar life of its own. Though the case does very much represent litigation run amok, the story of the case makes for some very interesting reading.  

 

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E*Trade Financial Corporation has reached an agreement in principle to settle the subprime-related securities class action lawsuit pending against the company and certain of its directors and officers, the company reported in its December 21, 2011 filing on Form 8-K. The agreement calls for the company and its D&O insurance carriers to pay a total of $79 million, of which the company’s portion is approximately $10.75 million. The agreement is subject to court approval.

 

As reflected in greater detail here, the plaintiffs first filed their securities actions against E*Trade in October 2007, alleging that the company had failed to disclose deterioration in its mortgage and home equity loan portfolio. The defendants moved to dismiss, arguing among other things that the company's losses were the result of a "worldwide economic catastrophe" and the plaintiffs' claims were nothing more than "fraud by hindsight."

 

In a May 10, 2010 order (here), Southern District of New York Judge Robert Sweet denied the defendants' motion to dismiss. Judge Sweet rejected the "global meltdown" argument, saying that "because the issue in this action is what the Defendants knew and when they knew it, a securities violation has been adequately alleged." 

With the announcement of the settlement to which the D&O insurers will be contributing about $68.25 million, the E*Trade case becomes the late subrime-related securities class action lawsuit to be settled largely with D&O insurance proceeds. For example, the $90 million Lehman Brothers directors and officers settlement (about which refer here), the $10.5 million Colonial Bank settlement (refer here), and $105 million of the $208.5 million Washington Mutual securities class action lawsuit settlement (refer here).

 

These and many other examples suggest that the subprime and credit crisis-related litigation wave have produced very substantial aggregate losses for the D&O insurance industry, with many more cases yet to be resolved. Even though the litigation wave is about to enter its sixth year, the losses are still accumulating and will do so for some time to come.

 

I have in any event added the E*Trade settlement to my running tally of subprime and credit crisis-related case resolutions, which can be accessed here.

 

‘Tis the Season: In light of the yuletide season that is now upon us, The D&O Diary will be taking a short holiday break for the next few days. The D&O Diary’s normal publication schedule will resume on January 3. To put everyone in the holiday spirit, here is a little Christmas cheer, flash mob style (watch for the dancing security guard). Best wishes for a happy and healthy holiday season to all.  

 

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With the addition of a $417 million settlement involving Lehman Brothers’ offering underwriters, the pending settlements in the Lehman Brothers securities class action lawsuit now total $507 million. Nate Raymond’s December 6, 2011 Am Law Litigation Daily article discussing the underwriters’ settlement can be found here. A copy of the December 2, 2011 settlement stipulation in the underwriter’s settlement can be found here.

 

As discussed at length here, earlier this year the former Lehman executives who were defendants in the securities class action lawsuit reached an agreement to settle the claims against them in the suit for $90 million. The executives’ settlement, if approved, is to be funded entirely with D&O insurance. The plaintiffs’ motion to the court for approval of the settlements can be found here.

 

The motion papers explain that the $417 million settlement with the underwriters was the result of mediation and over six months’ negotiation. The participants in the underwriter settlement include over 40 offering underwriters. The settling underwriters are listed in footnote 2 of the motion papers. The lineup makes for some interesting reading, as it almost reads like a casualty list from the credit crisis. Not only is Lehman Brothers not around any more, but neither are many of its underwriters. Some have been merged out of existence, and among the survivors are many that are only around as a result of the kind of massive government bailout that Lehman alone was forced to do without.

 

The settlement does not include Lehman’s auditor, Ernst & Young. As discussed here, Lehman’s accounting was the subject of sharp criticism in the report of bankruptcy examiner. The examiner referred to the companies now infamous “Repo 105” transactions as “balance sheet manipulation.” The examiner’s report also states that there may be a “colorable claim” against the company’s auditor on the grounds that it "did not meet professional standards" for its "failure to question and challenge improper or inadequate as disclosures."

 

According to the Am Law Litigation Daily article, the settlement also does not include UBS, which according to the article, “is facing different allegations than other underwriters because it underwrote principal protected notes, structured investment products that [the plaintiffs’ claim] were guaranteed regardless of Lehman's bankruptcy.”

 

The stipulation does not state whether or not any portion of the $417 million is to be paid by insurance. I was also not able to find in the settlement stipulation how the amount is to be divided among the participating underwriters.

 

I have in any event added the Lehman underwriters’ settlement to my running tally of subprime and credit crisis-related case resolutions, which can be accessed here.

 

Readers interested in subprime and credit crisis-related securities class action lawsuit settlements will also want to take a look at Alison Frankel’s December 6, 2011 post on Thomson Reuters News & Insight (here) about the recent $315 Merrill Lynch MBS securities class action lawsuit. Frankel read the settlement-related filings very carefully, and she has a number of interesting observations about the methodology for calculating damages in the MBS securities cases, which in turn helps to explain how the parties reached their $315 million settlement.

 

D&O Insurance: Investigative Cost Coverage: As I have frequently noted on this blog, one of the recurring D&O insurance issues is the question of coverage for costs incurred in connection with SEC investigations, particularly with respect to costs before the SEC investigation has become formal.

 

In a November 21, 2011 memo entitled “When is an SEC Investigation a ‘Claim” for Purposes of D&O Coverage?” (here), attorney Joan L. Lewis of the Dickstein Shapiro firm takes a look at these recurring questions, and she compares two recent cases presenting these issues, the Office Depot case (about which refer here) and the MBIA case (refer here).

 

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In an interesting twist on a long –running credit-crisis related securities suit, Wells Fargo has agreed to pay $75 million to settle the Wachovia equity investor securities class action lawsuit, even though their suit had been dismissed at the district court level and was on appeal at the time of the settlement. The parties’ November 21, 2011 notification of the settlement to Southern District of New York Judge Richard Sullivan can be found here. Victor Li’s December 3, 2011 Am Law Litigation Daily article about the settlement can be found here.

 

The settlement relates to litigation brought by former equity shareholders and bondholders of Wachovia Corporation.  The equity securities holders’ and bondholders’ actions arise from  financial disintegration Wachovia experienced between its 2006 purchase of Golden West Financial Corporation and its 2008 merger with Wells Fargo & Company. The allegations are based on the difficulties Wachovia experienced as a result of the Golden West “Pick-A-Pay” mortgage portfolio. Further background regarding the equity securities litigation can be found here and background regarding the bondholders’ litigation can be found here.

 

As discussed here, on March 31, 2011, Southern District of New York Judge Richard Sullivan granted the defendants’ motions to dismiss the equity securities litigation, but he denied the motion to dismiss the bondholders’ action, other than with respect to certain bond offerings in which the plaintiffs had not actually purchased any securities. A copy of Judge Sullivan’s opinion can be found (here),

 

Judge Sullivan granted the defendants’ motions to dismiss the equity securities plaintiffs’ ’34 Act claims, finding that the plaintiffs had not sufficiently alleged scienter. Judge Sullivan concluded that the “more compelling inference” is that “Defendants simply did not anticipate the full extent of the mortgage crisis and the resulting implications for the Pick-A-Pay loan portfolio. Although a colossal blunder with grave consequences for many, such a failure is simply not enough to support a claim for securities fraud.” He added that “bad judgment and poor management are not fraud, even when they lead to the demise of a once venerable financial institution.”

 

Judge Sullivan also granted the defendants’ motion to dismiss the equity securities plaintiffs’ ’33 Act claims, finding that their “scattershot pleadings” failed to “afford proper notice, much less provide facially plausible factual allegations.” He added that he could not conclude “that the relevant offering documents contained material omissions in violation of affirmative disclosure obligations.”

 

Thereafter, the bondholders, whose case survived Judge Sullivan’s dismissal motion rulings, went on to settle their lawsuit for a total of $627 million, which, as discussed here, is the largest settlement to date as part of the subprime and credit crisis-related litigation wave. The settlement amount of $627 million represented two different settlement funds: $590 million on behalf of the Wachovia defendants, including 25 former directors and officers of Wachovia, as well as 72 different financial firms that underwrote bond offerings for Wachovia between 2006 and 2008; and $37 million on behalf of Wachovia’s auditor, KPMG.

 

Meanwhile, the Wachovia equity investors, whose action Judge Sullivan had dismissed, had appealed the dismissal to the Second Circuit. In an apparent move to avoid having the case revived on appeal, Wells Fargo has now agreed to pay $75 million to settle the equity investors’ suit. The case must be remanded from the Second Circuit in order for the settlement to be presented to the district court for approval.

 

As I noted at the time of the $627 million settlement with the Wachovia bondholders, Wachovia’s purchase of Golden West has to be one of the leading candidates for the title of worst deal leading into or as part of the credit crisis-related financial transactions. There is a lot of competition in the worst transaction category, including Bank of America’s purchase of Countrywide. But there is no doubt that the Golden West deal is one of the real stinkers.

 

From the perspective of Wells Fargo, the litigation consequences for the bank from the mortgage meltdown are becoming rather impressive. When you consider this $75 million settlement and he Wachovia defendants’ $590 contribution to the bondholders’ settlement, which came on the heels of the $125 million Wells Fargo mortgage backed securities settlement (about which refer here), it looks like the financial crisis litigation consequences for Wells Fargo have been massive . The bank’s current aggregate settlement costs of $790 million may provide some explanation why it preferred to settle this case than to run the risk that the securityholders might succeed in having the dismissal of their case overturned on appeal.

 

The $75 million Wachovia equity investors’ settlement comes on the heels of the public disclosure of the $315 million Merrill Lynch mortgage-backed securities settlement, which Alison Frankel first reported in a November 18, 2011 article on Thomson Reuters News & Insight (here). Though the fact and amount of the settlement have been public for a couple of weeks, the parties have only just now filed their actual stipulation of settlement, dated December 5, 2011 (here). The $315 Merrill settlement dwarfs Wells Fargo’s earlier $125 million MBS settlement, which has stood as the largest MBS-related settlement so far.

 

In the Merrill Lynch MBS lawsuit, the plaintiffs alleged that the defendants (Merrill Lynch and related Merrill entities; certain other underwriter defendants and certain Merrill officers) had mislead investors who purchased the MBS securities, through statements in the securities’ offering documents that misrepresented the quality of the loans and the adequacy of the collateral within the loan pools.

 

Like Wells Fargo, Merrill and its acquirer Bank of America have also now paid out or at least agreed to pay out an impressive aggregate amount in subprime and credit crisis-related securities lawsuit settlements. As discussed here, Merrill had previously settled the subprime-related securities lawsuit brought by its shareholders for $475 mm, and had also settled the related ERISA lawsuit for $75 million.   Merrill separately settled the subprime-related lawsuit brought by its bondholders for $150 million (refer here). With the addition of the recent $315 MBS settlement, Merrill’s aggregate settlements are now up to $1.015 bb.

 

And to line up everything in its proper category, the $624 million Countrywide settlement, in addition to the $1.015 bb of Merrill settlements, all arguably belong on BofA’s ledger. The Merrill and Countrywide settlements altogether total about $1.639 billion, or fully 40 percent of all of the subprime and credit crisis related lawsuit settlement amounts so far (which total about $3.913 billion). These Merrill and Countrywide settlements plus the Wells Fargo settlements total $2.48 billion, which reresents almost 64% of the aggregate amount of the subprime and credit crisis related lawsuits settlements to date

 

What the Merrill, Countrywide and Wachovia/Wells Fargo settlements have in common, in addition to representing the largest of the subprime and credit crisis related lawsuit settlements, is that in each case the corporate defendant is now part of a financially strong successor in interest. This circumstance contrasts significantly with other subprime and credit crisis cases – like those involving Lehman Brothers and Washington Mutual, for instance – where the corporate defendants are defunct and there is no solvent successor in interest. Securities suits involving these defunct companies have settled for much smaller amounts that those involving solvent companies.

 

I have in any event added the Wachovia equity investors’ settlement and the Merrill MBS settlement to my running tally of subprime and credit crisis-related securities class action lawsuit case resolutions, which can be accessed here.

 

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The rating agencies are not entitled to First Amendment protection for their ratings of securities backed by mortgages originated at defunct Thornburg Mortgage, a federal judge has ruled. In a massive 273-page November 12, 2011 opinion that addresses a number of issues involved with the defendants motions’ to dismiss the securities class action lawsuit filed on behalf of the purchases of the Thornburg Mortgage Pass-Through Certificates, District of New Mexico Judge James Browning held that though the rating agencies’ ratings represent opinion,  the First Amendment does not protect the rating agencies opinion, due to the characteristics of the securities offerings involved.

 

A copy of Judge Browining’s opinion can be found here. Nate Raymond first reported on the opinion in his November 23, 2011 Am Law Litigation Daily article (here).

 

As discussed at greater length here, the plaintiffs first filed their lawsuit in March 2009, alleging that the documents prepared in connection with initial offering of the securities contained material misrepresentations and omissions. The plaintiffs alleged that they did not accurately disclose the practices involved with the origination of the mortgages underlying the securities. The defendants included the investment banking firms involved with the issuance, underwriting and distribution of the securities. The defendants also included a number of individuals who signed the registration statements. The plaintiffs also sued the rating agencies that had provided ratings of the securities in connection with the offerings. The defendants moved to dismiss.

 

In his lengthy November 12 opinion, Judge Browning granted in part and denied in part the defendants’ dismissal motions. With respect to the credit rating agencies, Judge Browning held that the plaintiffs have sufficiently pled allegations about material misrepresentations or omissions with respect to McGraw-Hill Companies and Standard & Poor’s Rating Services, but not against Fitch; Fitch Ratings; Moody’s Corp.; or Moody’s Investor Services.

 

Judge Browning also held that the First Amendment does not bar the plaintiffs’ claims against the rating agency defendants. In holding that the First Amendment does not protect the rating agencies opinions (at pages 228 through 235 of the opinion), Judge Browning among other things determined that the ratings did not address a matter of public concern. In reaching this conclusion, Judge Browning noted that plaintiffs had not alleged that the rating agency defendants “ever published their ratings to the public at large”; to the contrary, the plaintiffs’ alleged the ratings appeared only in the offering documents, which were “specifically targeted institutional investors for the investments.”

 

Judge Browning also noted that “the ratings related to statutory trusts, and not publicly traded companies, which would qualify as public figures.” The ratings “impacted only the limited group of investors who received the offering documents, the Thornburg trusts, and the companies involved with those Thornburg trusts, as opposed to the public at large.” 

 

Judge Browning said that the “general public’s interest in the free flow of advertising” is “distinguishable” from “providing credit ratings in offering documents given to a select group rather than the public at large.”

 

Though Judge Browning concluded that the plaintiffs’ allegations against certain of the rating agency defendants were sufficient to state a claim under New Mexico’s blue sky laws, he also found that the plaintiffs had not met jurisdictional requirement for the statute to apply. He allowed the plaintiffs’ leave to amend their complaint in order to s the show that the securities involved had been sold in the state.

 

Judge Browning is not the first to rule that the rating agencies’ ratings are not protected by the First Amendment, at least under the facts at issue. Indeed, Judge Browning cited and quoted from Judge Shira Scheindlin’s September 2009 in the Cheyne Financial case (about which refer here). In addition, a California state court judge ruled in an action against the rating agencies brought by Calpers that the rating agencies were not entitled to First Amendment protection (refer here).

 

Judge Browning’s opinion may nevertheless represent something of a breakthrough, because it is, according to the plaintiffs’ attorney quoted in the Am Law Litigation Daily article linked above, the first holding in a class action lawsuit that the rating agencies were not entitled to First Amendment protection.

 

But while the ruling may be, as the plaintiffs’ lawyer is quoted as saying the article, “groundbreaking,” this developing body of case law may not control the analysis in many contexts. Like Judge Scheindlin in the Cheyne Financial case, who held that the First Amendment does not apply when a rating agency disseminates ratings to a select group of investors and not the public at large, Judge Browning found it determinative of the issues that the ratings at issue appeared in documents that were distributed only to institutional investors and did not involve publicly traded companies.

 

These rulings still allow the rating agencies room to argue that their ratings are entitled to First Amendment protection where the ratings were distributed to a broader audience, involve publicly traded companies or otherwise involve matters of public interest. But thought the holdings in these cases have limitations, they nevertheless represent a growing body of case law that circumscribes limitations in rating agencies’ assertions of First Amendment defenses. 

 

Am I the Only One Who Worries About What Black Friday Says About Us as a Society?: From the front page of the Cleveland Plain Dealer, Saturday, November 26, 2011: “At Westfield SouthPark mall, police were called to Victoria’s Secret at 4:05 a.m. – five minutes after opening – to what a police report called a ‘riot.’”

 

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When MF Global filed for bankruptcy yesterday, it not only became the eighth largest corporate bankruptcy in U.S. history. It also became the first U.S. company taken down by the troubles afflicting European sovereign debt. How big of a problem all of this represents depends on whether or not you think the MF Global demise reflected a unique set of circumstances or whether it reflects something deeper. Either way, there are some things about MF Global’s collapse that are worth thinking about.

 

First, although MF Global is the first U.S. company claimed by the European Sovereign debt crisis, at least one other company has also been imperiled by these circumstances. MF Global’s bankruptcy comes just three weeks after the bailout and restructuring of Dexia, S.A., the Belgian-French banking institution became was the first casualty of the crisis after writing down the value of the Greek debt it held on its balance sheet.

 

Second, though like Dexia what took down MF Global was its exposure to European sovereign debt, unlike Dexia, MF Global was not exposed to Greek debt. MF Global held the debt of other European countries. Its assets include $6.3 billion of Italian, Spanish, Belgian Portuguese and Irish debt. More than half of the total was Italian. It was the company’s exposure to these debts that led to regulatory scrutiny, downgrades, and margin calls that threatened the company’s liquidity.

 

Third, MF Global is far from the only victim of its demise. Its shareholders likely have lost the full amount of their investment. (Refer here for a run down of affected investors). In addition, there are creditors and others who have suffered a loss as a result of MF Global’s bankruptcy. Among others, investment bank J.C. Flowers reportedly stands to lose about $48 million due to MF Global’s collapse.

 

Fourth, the collapse of both Dexia and MF Global came quickly. Dexia’s crisis came less than three months after European stress tests had found Dexia one of Europe’s safest banks. MF Global’s bankruptcy filing came only about a week after the rating agencies initiated a series of downgrades of MF Global.

 

The speed of these companies’ collapses adds a layer of urgency to asking the question whether or not there are other companies similarly exposed – and as MF Global’s example shows, not just exposed to Greek debt but exposed to any of the troubled economies on the Europe’s periphery. The fact MF Global’s exposure to debt from Italy, one of the world’s largest economies, contributed to its demise is particularly troublesome. For that matter, the list of European countries whose debt could be a problem may not be limited just to the countries whose debt MF Global had on its balance sheet. As this European crisis evolves, there could be other problem counties added to the list.

 

Moreover, in thinking about which companies will have problems from all of this, the inquiry cannot stop just at those companies with exposures to European sovereign debt. There is also the question of which companies are exposed to companies that are exposed to European sovereign debt.

 

It is possible that MF Global’s collapse represents a unique set of circumstances, unlikely to be repeated (particularly given the late developing reports of supposed deficiencies in customer accounts, the discovery of which may have hastened MF Global’s bankruptcy). On the other hand, it is possible there are other companies who may also suddenly be perceived as over exposed to European sovereign debt and that may collapse just as quickly as MF Global did.

 

The uncertainty over how big of a problem all of this represent is not just a difficulty for investors. It also poses a challenge for regulators – according to news reports, regulators may also be investigating MF Global’s collapse and may even face criticism for not acting more quickly.

 

And though the larger problems for the global financial marketplace clearly are of a higher order, it is also worth mentioning here that these issues also pose a challenge for D&O insurance underwriters. As noted above, there is not just the question of whether or not a company is exposed to European sovereign debt. There is also the far more difficult to discern question of whether or not a company is exposed to a company that is exposed to European sovereign debt.  As MF Global’s rapid demise illustrates, these concerns are sufficient to send a company into bankruptcy. My guess is that the events at MF Global sent a chill through all of the offices of D&O underwriters everywhere, particularly (but not exclusively) at those carriers that are active in the financial sector.

 

There is no way to know for sure, but I suspect that before all is said and done, there will be a lot more to be said here on the topic of European sovereign debt risk.

 

Archeologists Uncover Ancient Race in the Great Lakes Region: Remains Of Ancient Race Of Job Creators Found In Rust Belt. Read the story here.

 

This Week in San Diego: This week I will be in San Diego for the PLUS International Conference. I am looking forward to seeing many of you there. If you see me at the conference, I hope you will take the time to say hello, particularly if we have never met before. While I am in San Diego, the pace of blog post publication may slow down. The normal publication schedule will resume next week.

 

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According to data from the American Bankruptcy Institute, the high water market for business bankruptcies during the financial crisis occurred during the second quarter of 2009, when there were 16,014 business bankruptcies. The number of business bankruptcies has declined each quarter since then.  During the second quarter of 2011, there were 12,304 business bankruptcies, representing a decline of about 23% from the quarterly high two years prior.

 

But while the quarterly business bankruptcy filings are down from the credit crisis highs, they still remain at elevated levels. If you compare the 12,304 business bankruptcy filings during the second quarter of 2011 to the quarterly filing levels prior to the fourth quarter of 2008, the 2Q11 filing levels are higher than any quarter since the first quarter of 1998 (when there were 12,410 business bankruptcy filings). So even though the number of bankruptcy filings has declined over the last two years, there are still very significant numbers of businesses filing for bankruptcy.

 

In addition, there are some concerns that we could be in for a new round of increased bankruptcy filings. In an October 10, 2011 Reuters article entitled “New U.S. Bankruptcy Ripples May Emerge in Tough Economy” (here) the authors suggest that “corporate failures may be about to pick up again, with some big-name companies struggling for survival.” Among the factors the authors cite as possible causes for a new round of bankruptcy filings are “the weak economy, lackluster consumer spending, a shaky junk-bond market and increasingly tight lending practices.”

 

The authors also suggest that some companies that managed to get through the last couple of years by restructuring may now have to face the music. The article’s authors note that “confidence in the economy and easy access to debt allowed companies to complete restructurings in 2009 and 2010 with business plans and debt loads that were based on an economic pickup that has now faltered.” These circumstances “could create the potential for trouble at companies that have already restructured once.”

 

An October 26, 2011 article in Corporate Counsel entitled “Bankruptcies Are Down, But the Business Picture Still Isn’t Rosy” (here) sounds many of the same themes. The article’s author notes that while business bankruptcy filings are down, many lenders are burdened with underperforming and nonperforming loans.  Eventually, push will come to shove on these loans.  The article quotes one leading practitioner as saying that activity is up and that 2012 “will be a busy year” and that 2013 and 2014 will be “extraordinarily busy year for restructurings.” In addition there are “huge maturities” coming due in 2014 and 2015. These circumstances could force many companies to seek protection under the bankruptcy laws.

 

The Reuters article linked above identifies a number of high profile companies, including American Airlines and Kodak, that could face bankruptcy filings. The article also references struggling companies in “industries as diverse as shipping, tourism, media, energy and real estate.”

 

Of course whether there actually will be an uptick in business bankruptcy filings remains to be seen.  But the concerns expressed above underscore the vulnerabilities that financially insecure companies may still be facing. Because of the high claims frequency associated with bankruptcy, these vulnerabilities also imply heightened liability exposures as well. Unless and until the financial recovery picks up sufficient steam to provide positive economic momentum even for financially weak companies, these companies will continue to face both the vulnerabilities and liability risks.  

 

Perspective on U.S. Securities Laws:  In an earlier post (here), I noted the dismissal that had been granted in one of the securities class action lawsuits brought against a U.S.-listed Chinese company, North East Petroleum Holdings, Ltd. An October 27, 2011 China Daily article (here) discusses the ruling in the case. The article also contains some interesting commentary from a U.S-based executive of the company.

 

The article quotes Choa Jiang, described as senior vice-president of the company’s New York City office, as saying that as a result of “internal control deficiencies” the company’s CEO, CFO and a director were asked to resign. The company, Chao says, experienced “growing pains” as it made the transition from a private, family-owned business in China to a U.S.-listed company. But, Chao adds, the company “has learned its lesson,” adding that the company is “learning that the laws regulations, operations and culture in the U.S. are different from those in China.” Chao says that “what’s important is that you correct your mistakes, learn from them and move on.” Chao also said that company wants “to encourage other Chinese companies not to lose faith but vigorously defend themselves with the very best professionals.”

 

It seems that a number of Chinese companies will have the opportunity to defend themselves vigorously, as lawsuits against U.S.-based Chinese companies continue to mount. Just in the last several days there have been new securities class actions brought against JinkoSolar Holding Co. (about which refer here) CNInsure (refer here) and China Automotive Systems (refer here), all three U.S. listed Chinese companies. With the addition of these three latest lawsuits, the number of U.S. –listed Chinese companies that have been named in securities class action lawsuits during 2011 now stands at 35. These companies, like North East Petroleum Holdings, also have the opportunity to learn that in the U.S., laws, regulations, operations and culture are different than those in China.

 

That’s Billion With a “B”: Those readers interested in Bank of America’s massive $8.5 billion mortgage put-back settlement will want to read the October 19,  2011 Forbes article about Kathy Patrick, the plaintiffs’ lawyer who negotiated the settlement on behalf of a large group of institutional investors. The article, entitled “Wall Street’s New Nightmare” (here) makes it clear that, as far as Patrick is concerned, the Bank of America settlement is merely round one. Among other things, Patrick states that the institutional investor plaintiffs in the case “did not come together just to deal with Bank of America. They came together because they wanted a comprehensive industry wide strategy and an industry wide solution. They started with Bank of America because they thought they could achieve a template that they could extend to other institutions. “

 

In other words, at least according to Patrick, she is just getting started. Of course there is the small matter of defending the $8.5 billion BofA settlement from the all comers assault it is currently under. 

 

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According to papers filed on September 6, 2008, the parties to the consolidated MBIA securities action pending in the Southern District of New York have agreed to settle the lawsuit for $68 million. The settlement is subject to court approval. As noted below, the settlement has some interesting features.

 

The parties’ stipulation of settlement can be found here and the plaintiffs’ motion for preliminary approval of the settlement can be found here. Nate Raymond’s September 7, 2011 Am Law Litigation Daily article describing the settlement can be found here.  

 

As discussed here, in January 2008, MBIA joined a group of several other bond insurers there were sued in securities class action relating to their alleged failures to disclosure the exposures they had as a result of insurance guarantees they had extended ion mortgage related securities. The lawsuit against MBIA followed the company’s disclosure of the extent of the guarantees the company had extended on collateralized debt obligations. Among other things, the disclosure revealed the extent to which the company had issued insurance on so-called CDOs-squared.

 

As discussed here (scroll down), in March 2010, the Court granted in part and denied in part the defendants’ motion to dismiss. The dismissal motion grants were without prejudice to the plaintiffs’ filing amended pleadings as to the dismissed portions. In April 2010, the plaintiffs amended their complaint (refer here) and the defendants renewed their motions to dismiss. While the motions were pending, the parties began settlement negotiations.

 

In their motion seeking preliminary approval of the settlement, the plaintiffs, in explanation of the amount of the settlement state that

 

In light of MBIA’s financial condition and likelihood that this Action and other litigation against MBIA would substantially deplete Defendants’ insurance coverage, Lead Plaintiff and Lead Counsel also believed that there was a substantial risk that, even if they were successful in establishing liability at trial (and after appeals from any verdict), Defendants would not have been able to pay an amount significantly larger than the Settlement Amount or even as much as the Settlement Amount.

 

Obviously, this statement clearly implies that that at least some portion of the settlement is to be funded with D&O insurance. However, neither the motion papers nor the settlement stipulation specify what portion of the settlement is to be funded by D&O insurance. There is nothing in the filings to indicate whether the D&O insurers’ settlement contribution will deplete the remaining amount of insurance.

 

Without knowing one way or the other whether D&O insurance is to fund the entire amount of this settlement, it is clear that the fact that the D&O policy limits were rapidly eroding was a factor in this settlement and may even have affected the amount of the settlement.

 

This settlement is only the latest in a series of subprime and credit crisis related litigation in which the fact that the remaining limits were rapidly eroding was a factor in the timing and even the amount of the settlement. Other cases where there seems to have been a factor are the recent settlement involving in the Lehman executives (refer here); the recent  Colonial Bank settlement  (refer here); the D&O portion of the WaMu  settlement (refer here); and the New Century Financial settlement (here).

 

As I discussed at length in my recent post about the Lehman executives’ settlement (here) , the rapid depleting o f the D&O limits puts pressure on the plaintiffs to reach a settlement quickly. If they play hardball and hold out for a better settlement or try to holdout by demanding that individuals contribute to the settlement out of their own assets, the plaintiff’s lawyer may manage only to reduce the ultimate recovery as the D&O insurance limits drain away while negotiations drag on. This feature of many of these cases makes many of the subprime and credit crisis-related cases particularly challenging to try to settle, particularly where the defendant company is insolvent or in poor financial condition. This feature may also result in lower settlement amounts in many cases, at least where there is not solvent of financially stable company to fund additional settlement amounts.

 

I have in any event added the MBIA settlement to my list of subprime and credit crisis securities class action lawsuit settlements, which can be accessed here. As discussed here, the subprime-related securities suit against another of the bond insurers, Ambac, settled for a total of $33 million .

 

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In a development that undoubtedly will attract comment and controversy, fourteen former Lehman Brothers executives – including former Lehman Chairman and CEO Dick Fuld (pictured) --have reached an agreement to settle the consolidated securities class action litigation that has been filed against them for $90 million. In a separate development, seventeen former Lehman executives have agreed to settle the separate lawsuit brought against them by the New Jersey Treasury Department Investment Division for $8.25 million.

 

The entire amount of both settlements is to be funded by D&O insurance. The settlements are subject to the consent of the bankruptcy court to lift the stay in bankruptcy to allow the D&O insurers to fund the settlement, as well as to the approval of the respective courts in which the respective settled actions are pending. The executives’ motion for relief from the bankruptcy stay in connection with the equity and debtholders’ action can be found here. The executives’ motion for relief from the bankruptcy stay in connection with the New Jersey action can be found here.

 

Peter Lattman’s August 25, 2011 article on August 25, 2011 article on The New York Times Dealbook blog  describing the motions and the settlements can be found here. Nate Raymond’s August 25, 2011 article on The Am Law Litigation Daily about the settlements can be found here.

 

Securities lawsuits had been filed against Lehman and certain of its directors and officers both before and after its dramatic collapse in September 2008. The cases ultimately were consolidated. On July 27, 2011, Judge Lewis Kaplan largely denied the motions to dismiss in the consolidated securities class action lawsuit, as discussed here.

 

At the time the first of these actions was filed against Lehman in early 2008, Lehman carried an aggregate of $250 million in D&O insurance, consisting of a $20 million primary policy and sixteen layers of excess insurance. A copy of the Lehman primary policy, which is included in the bankruptcy pleadings, can be found here. Further discussion of the details of the Lehman D&O insurance program can be found here.

 

Following Lehman’s bankruptcy filing, and  as the securities cases and other litigated matters went forward, from time to time the parties would appear in bankruptcy court to seek relief from the stay to allow the D&O insurers to fund ongoing defense expenses. As I noted in a prior post (here) anallyzing one of the prior requests from the relief from the stay, the defense costs have been accumulating extraordinarily rapidly.

 

The executives’ motions for relief from the bankruptcy stay for purposes of these settlements show just how rapidly the defense expenses and other items have been eroding the limits. In their motion with respect the $90 million securities class action settlement, the executives explain that they are seeking relief from the stay with respect to the sixth through twelfth level excess insurers in Lehman’s insurance program.

 

Footnote 4 of the motion identifies the excess insurers involved (their policies are also attached to the motion) and also explains that the sixth level excess insurer provide coverage of $25 million in excess of $85 million, and the twelfth level excess insurer provides coverage of $20 million in excess of $180 million. (The equivalent motion with respect to the New Jersey action seeks relief with respect to the sixth and if necessary the seventh level excess insurers, so the $8.25 million New Jersey settlement is assumed to have already eroded the limit for purposes of calculating the limits available for the consolidated securities lawsuit settlement).

 

Taking all of this information into account, and assuming the various stays and approvals are granted, the settlements, together with prior defense expenses and other payments, will erode up to $200 million of the $250 million tower. The two settlements together total $98.25 million.

 

There is nothing in any of the settlement papers to suggest that the individual defendants will contribute to either of these settlements out of their own assets. The settlements do not include the other defendants in the cases; in the securities class action lawsuit, the remaining defendants include Lehman’s offering underwriters, as well as its auditor, E&Y.

 

Discussion

Not only was the Lehman bankruptcy the largest in U.S. history, but the company’s collapse very nearly triggered a global economic catastrophe. The circumstances of its collapse have been the subject of extensive investigation and commentary. The company’s accounting prior to its collapse has also been the subject of intense scrutiny, most notably in the report of the bankruptcy examiner, who, among other things, he called the company’s quarter-end Repo 105 transactions “balance sheet manipulations,” about which refer here. Dick Fuld has become something of a poster child (or at least one of the poster children) for problems on Wall Street that contributed to the economic crisis.

 

Given that context, the fact that the individual defendants apparently are not going to contribute to this settlement is likely to be controversial. Many commentators have already bewailed the fact that cases of this type are settled exclusively with D&O insurance, and without any personal contribution by the alleged wrongdoers. These kinds of concerns will be even more exacerbated here, given the high profile nature of this case and the vilification that has heaped on Fuld and other Lehman executives. 

 

I have no insight into why the settlements were structured the way they were. But I can speculate at least that a major factor driving the timing, size and structure of these settlements was the alarming erosion of the policy limits as defense expense reduced the amount of insurance available with which to try to settle these cases.

 

The problem the plaintiffs’ lawyers faced, which is the one that claimants always face in the insolvency context, is that the plaintiffs can always hang tough and hold out for the optimal settlement, but in the meantime the policy proceeds out of which any settlement would have to be funded are rapidly disappearing. These concerns were particularly abrupt here because of the astonishing speed at which the policy limits were disappearing. An added concern for the plaintiffs here is that if they held out too long, they ran the risk that the SEC might suddenly file an enforcement complaint against one or more Lehman executive, or the DoJ might file a criminal action. If either of those things were to have happened, the rapid depletion of policy limits would have leapt into hyperspeed.

 

So to those who say that the plaintiffs’ lawyer here should have demanded a settlement in which the individuals contributed out of their own assets, I say that while that type of settlement might theoretically have been more satisfying at some level, it might not have produced a better result for the class members and other aggrieved parties. Indeed, if the settlement talks had dragged on too much longer, there might soon have been no insurance left at all out of which to settle the case.

 

I am realistic enough to know that not everyone will find this appeal to practicality to be satisfying. There is a lot of emotion associated with the Lehman collapse, and there undoubtedly will be those who will be outraged that Fuld and others are “getting off” here without having to contribute out of their own assets. This notion precedes from a basic sentiment that these executives should be punished. From my perspective, it is the job of the SEC and the DoJ to determine who needs to be punished. If the SEC and the DoJ believe these individuals should be punished in some way, they will pursue the appropriate sort of action. The types of private civil actions that are under discussion here are meant to provide a way to compensate aggrieved parties. That is the purpose of these settlements. Whether or not they are the optimal settlements, they may have been the most economically beneficial and viable settlements available given the rapid depletion of the policy limits.

 

I have in any event added these settlements to my running tally of credit crisis related case resolutions, which can be accessed here.

 

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On August 23, 2011, a three-judge panel of the Second Circuit in an opinion by Judge Barrington D. Parker affirmed the dismissal of the subprime-related securities lawsuit that had been brought against Regional Financial Corporation and certain of its directors and officers. A copy of the Second Circuit’s opinion can be found here.

 

Background

As reflected in greater detail here, the plaintiffs first filed a securities class action lawsuit in the Southern District of New York against Regions on April 1, 2009. The plaintiffs represented investors that had purchased securities in the company’s $345 million April 2008 trust preferred securities offering. The defendants included the company, certain of its directors and officers, its offering underwriters, and its auditor.

 

The plaintiffs alleged that the April 2008 offering documents were false and misleading because they incorporated by reference financial statements that overstated goodwill associated with Regions Financial’s 2006 acquisition of AmSouth and underestimated loan loss reserves associated with the AmSouth’s declining mortgage lending porfolio. Among the financial statements incorporated into the offering documents was the company’s 2007 Form 10-K.

 

The complaint alleged that the company "did not write down any of the massive goodwill" it recorded in its 2007 10-K "despite growing evidence indicating that serious problems existed at the time of the acquisition." The complaint also alleges that Regions "only marginally increased its loan loss reserves" despite "the high risk of loss inherent in its mortgage loan portfolio." The defendants moved to dismiss on the grounds that the plaintiffs had failed to allege any actionable misstatements or omissions.

 

As discussed here, in a May 10, 2010 opinion, Southern District of New York Judge Lewis Kaplan granted the defendants’ motions to dismiss, holding that the statement about goodwill and the loan loss reserves represented opinions that were not actionable because the complaint failed to allege that defendants did not honestly hold those opinions at the time they were expressed. The plaintiffs appealed.

 

The Second Circuit’s Opinion

The Second Circuit affirmed Judge Kaplan’s dismissal of the trust preferred securities investors’ securities lawsuit. With respect to the allegations regarding the statement concerning goodwill, the Second Circuit observed that “as Judge Kaplan correctly recognized, plaintiffs’ allegations regarding goodwill do not involve misstatements or omissions of material fact, but rather a misstatement regarding Regions’ opinions.”

 

In concluding that the plaintiffs had not adequately alleged actionable misstatements regarding misstatements or omissions regarding goodwill, the court said that

 

Plaintiff relies mainly on allegations about adverse market conditions to support the contention that defendants should have reached different conclusions about the amount of and the need to test for goodwill. The complaint does not, however, plausibly allege that defendants did not believe that statements regarding goodwill at the time they made them.

 

The Second Circuit went on to conclude that the plaintiffs’ allegations regarding loan loss reserves “suffer from the same deficiencies as those regarding goodwill.” The court approvingly cited Judge Kaplan’s statement that “determining the adequacy of loan loss reserves is not a matter of objective fact”; rather, loan loss reserves “reflect management’s opinion or judgment about what, if any, portion of amounts due on the loans ultimately might not be collectible.” Because the plaintiff failed to allege that the defendants’ opinions were “both false and not honestly believed when they were made,” the loan loss reserve allegations also fail to state a claim.

 

Discussion

The Second Circuit’s opinion in the Regions case is the latest in a series of decisions in which the appellate courts have affirmed the district court’s dismissals of subprime or credit crisis-related securities class action lawsuits. Earlier example include the NovaStar Financial case (about which refer here), the Centerline Holdings case (refer here),  the Impac Mortgage Holdings case (refer here) and the HomeBanc case (refer here).  At this point, it seems clear the appellate courts are reluctant to setting aside the dismissal motion rulings of the district courts in these cases.

 

What makes the Regions Financial trust preferred securities case noteworthy and even interesting is that the case was dismissed, and the dismissal was affirmed, while related complaints involving many of the same facts have actually survived dismissal motions. In particular and as noted here, in June 2011, Northern District of Alabama Judge Inge Prytz Johnson denied the motions to dismiss in the securities class action lawsuit filed on behalf of Regions Financial’s shareholders.

 

The Northern District of Alabama lawsuit also alleges that the company had failed to recognize the impairment of the goodwill associated with the AmSouth merger. As I discussed in my prior post about Judge Johnson’s ruling, she expressly recognized that Judge Kaplan had previously dismissed the Southern District of New York lawsuit filed on behalf of the trust preferred securities investors. However, she differentiated the allegations in the case in her court based on the plaintiffs’ allegations made based on the statements of confidential witnesses.

 

Judge Johnson concluded that the plaintiffs in the case before her have “pled many facts showing that the defendants had information that did not support defendants’ opinions.” Among other things, she cited the statements of the confidential witnesses “showing how defendants improperly handled and classified loans, defendants were aware of the collapsing commercial real estate in Florida yet continued to push for more growth there, and continued to ignore [internal] reports signaling a negative risk-adjusted bottom line.

 

Judge Johnson concluded that the plaintiffs has sufficiently alleged that the company’s loan loss reserves were false and misleading, citing the testimony of several confidential witnesses that “defendants mishandled loans in order to manipulate their financial reporting numbers.” Because the loan loss reserves impacted the company’s reported income (which was the measure by which the company tested its goodwill), Judge Johnson concluded that the plaintiffs had adequately alleged that the company’s goodwill was “overstated, false and misleading.”

 

On August 23, 2011, Judge Johnson denied the defendants' motion for reconsideration, rejecting the defendants' argument that the Supreme Court's recent decision in the Janus Capital case required a different result. Judge Johnson's August 23 order can be found here.

 

In addition, and as noted here, the plaintiffs in the separate shareholders’ derivative lawsuit filed in Alabama Circuit Court against Regions Financial, as nominal defendant, and certain of its directors and officers, also survived a motion to dismiss. However, it should be noted that the Alabama court was determining only whether or not the requirement for pre-suit demand was excused based on the circumstances alleged.

 

Finally, and just to complete the picture, in March 2010, the motions to dismiss was also denied in the Regions Financial ERISA action, about which refer here.

 

While the differences in the outcome between the New York lawsuit and the other lawsuits can be accounted for based on differences in the claims asserted and the specific matters alleged, there is also a sense in reading through all of these opinions that the outcomes may also be understood based on the respective court’s starting points. As I noted in my prior posts discussing the prior dismissal motions denials, for the other judges, the context matters, but for Judge Kaplan (and now for the Second Circuit) the context is irrelevant. There is also a sense that the more geographically proximate the decisions maker to the locus of the corporate defendant and its woes, the less sympathetic the courts are to the defendants’ position.

 

In any event, I have adjusted my tally of the dismissal motion rulings in subprime-related securities suits to reflect the Second Circuit’s opinion. The tally can be accessed here.

 

Special thanks to Douglas Henkin of the Milbank law firm for providing me with a copy of the Second Circuit’s opinion. Milbank represented the Underwriter defendants before the Second Circuit.

 

Deutsche Bank Subprime-Related Securities Suit Survives Dismissal Motion Ruling: In an August 19, 2011 opinion, here, Southern District of New York Judge Deborah Batts largely denied the motion to dismiss in the subprime-related securities suit filed against Deutsche Bank and certain of its directors and officers.

 

As discussed here, several groups of investors, who had purchased Deutsche shares in a series of offerings during the period 2005 to 2007, filed lawsuits asserting claims that the offering materials contained material misrepresentations and omissions in the associated offering documents. The plaintiffs basically alleged that the bank had misrepresented its exposure to residential mortgage backed securities and collateralized debt obligations. The various cases were later consolidated before Judge Batts and the defendants moved to dismiss.

 

In her August 19 order, Judge Batts granted the motion to dismiss as to stock offering from October 2006. However, Batts left intact claims relating to five other offerings, or gave the plaintiffs a chance to replead their allegations.

 

I have also added the Deutsche Bank decision to my tally of subprime related dismissal motion rulings.

 

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In the latest eye-popping subprime-related securities class action lawsuit settlement, the parties to the National City Corporation securities class action lawsuit have agreed to settle the case for $168 million. The proposed settlement is subject to court approval. The August 8, 2011 press release of the New York Comptroller, acting on behalf of the New York State pension funds as lead plaintiff, can be found here.

 

The settlement papers are not yet available on PACER (indeed, that is the reason I waited for a day to publish a post about this settlement, in the hope that I might be able to run down copies of the papers. No luck so far – should I get my hands on them, I will post them to this site.) Jan Wolfe’s August 9, 2011 Am Law Litigation Daily article describing the settlement can be found here.

 

As detailed here, this case arises out of the financial woes that beset Cleveland-based National City as its portfolio of subprime related mortgages nearly dragged the bank down. In their 249-page consolidated amended complaint (here), the plaintiffs alleged that as the residential real estate market began to collapse in 2007, the bank’s residential mortgage and construction loan portfolio – which allegedly was of much lower quality than the bank had disclosed -- began to deteriorate much more rapidly than the company acknowledged publicly. The plaintiffs alleged further that the bank’s failure to recognize this deterioration rendered the bank’s financial statements and other disclosures materially misleading.

 

National City’s financial difficulties proved so severe that in October 2008, it was acquired at fire sale prices by PNC. The transaction was highly controversial at the time, and not just because it involved a takeover of a landmark Cleveland institution by a bank based in Pittsburgh. As discussed at greater length here, because PNC moved to acquire National City using TARP funds that PNC had only just received and only after TARP funds were withhold from National City.  The PNC acquisition was itself the subject of separate litigation, which was later voluntarily dismissed. PNC’s acquisition of National City means that the likely source of funds for this settlement was PNC itself, to the extent not otherwise funded by D&O insurance – hence my interest in seeing the settlement papers.

 

The parties to the related-ERISA class action previously settled that action for $43 million, as discussed at greater length here.

 

The $168 million National City securities class action lawsuit settlement follows close on the heels of the announcement of the $627 million Wachovia bondholders’ settlement. I have long wondered when the overhang of subprime-related securities class action lawsuit would finally start to work itself off. With these settlements, it seems increasingly likely that the time may now be here.

 

There have been larger settlements announced in connection with the subprime-related securities class action litigation wave, but the National City settlement is still attention-grabbing. Among other things, the National City settlement, if approved, would be the 53rd largest all-time securities class action lawsuit settlement. As was the case with the Wachovia settlement, the National City settlement was not (prior to the settlement) one of the highest profile subprime-related cases. But while these two cases may not have been at the center of the radar screen, these two nine-figure settlements in quick succession undoubtedly have gotten everyone’s attention.

 

The problem for the parties in the remaining subprime cases is that these settlements -- and the recent $125 million settlement in the Wells Fargo mortgage-backed securities cases – create an even more challenging environment in which to try to work out a settlement. The plaintiffs in these other cases undoubtedly will by try to rely on these settlements as a way to try to argue that the price of poker is going up.

 

Here We Are Now, Entertain Us: It may not be quite the same thing without Kurt Cobain, but still this is pretty awesome.

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In what is the largest settlements so far to arise out of the subprime meltdown-related securities class action litigation wave, and apparently the largest settlement ever of a securities suit filed solely under the Securities Act of 1933, the parties to the consolidated Wachovia Preferred Securities and Bond/Note Litigation have collectively agreed to settle the suit for a total of $627 million. The settlement is subject to court approval. The lead plaintiffs’ August 5, 2011 memorandum in support of the motion to approve the settlement can be found here, and the parties’ settlement stipulation can be found here.

 

The settlement amount of $627 million represents two different settlement funds: $590 million on behalf of the Wachovia defendants, including 25 former directors and officers of Wachovia, as well as 72 different financial firms that underwrote bond offerings for Wachovia between 2006 and 2008; and $37 million on behalf of Wachovia’s auditor, KPMG. According to data from Institutional Investor Services, the collective $629 million settlement, if approved, would represent the fourteenth largest securities class action settlement of all times.

 

As impressive as these aggregate numbers are, one ratio may be the most impressive number of all. According to the plaintiffs’ motion for settlement approval, the settlement recoveries “collectively represent roughly 30% to 50% of the reasonably recoverable total damages that Lead Bond/Notes Counsel would have been able to credibly present to a jury.” This percentage recovery represents a far higher figure than is usually the case in securities class action lawsuit settlements. (According to NERA Economic Consulting’s Mid-Year 2011 Securities Litigation Report, the average percentage of investor losses recovered in 2010 securities class action settlements was 2.4%, and only 1% for 2011 settlements through June 30, 2011.)

 

The plaintiffs’ claims related to the financial disintegration that Wachovia experience between its 2006 purchase of Golden West Financial Corporation and Wells Fargo’s 2008 acquisition of Wachovia. Folloing Wachovia’s collapse, securities litigation ensured, filed, on the one hand on behalf of Wachovia’s shareholders (about which refer here) and on the other hand on  behalf of Wachovia’s bond and note holders (about which refer here).

 

In their May 2010 amended consolidated complaint, the lead bond/note plaintiffs alleged that in offering materials related to various Wachovia bond and note offerings, the defendants misrepresented the nature and quality of Wachovia’s mortgage loan portfolio and made  material misstatements regarding the risk profile and quality of the $120 billion pick-a-pay adjustable rate residential mortgage portfolio that Wachovia acquired in the Golden West acquisition.

 

In a lengthy and detailed March 31, 2011 order (about which refer here), Southern District  of New York Judge Richard Sullivan granted the defendants' motions to dismiss the equity securities actions, but he denied the motions to dismiss the bondholders' action, other than with respect to certain bond offerings in which the plaintiffs had not actually purchased any securities.

 

In granting the motions to dismiss the equity securities plaintiffs’ ’34 Act claims, Judge Sullivan held that the plaintiffs had not sufficiently alleged scienter. Judge Sullivan concluded that the “more compelling inference” is that “Defendants simply did not anticipate the full extent of the mortgage crisis and the resulting implications for the Pick-A-Pay loan portfolio. Although a colossal blunder with grave consequences for many, such a failure is simply not enough to support a claim for securities fraud.” He added that “bad judgment and poor management are not fraud, even when they lead to the demise of a once venerable financial institution.”

 

In concluding that the bondholders’ allegations were sufficient when the equity securities plaintiffs’ allegations were not, Judge Sullivan found that the bondholder plaintiffs had adequately alleged misrepresentation in the relevant offering documents with respect to loan to value ratios maintained in the mortgage portfolio and with respect to the alleged manipulation of the appraisal process to produce inflated appraisal values.

 

As I noted at the outset, the Wachovia bondholders’ settlement is the largest securities class action lawsuit settlement so far as part of the subprime and credit crisis-related litigation wave. The $627 collective million settlement amount is slightly larger than the $624 million settlement in the Countrywide case. Interestingly, both the Countrywide and Wachovia settlements included substantial settlement contributions from KPMG -- $37 million in the Wachovia case and $24 million in the Countrywide case. My running tally of the subprime and credit crisis-related settlements can be accessed here.

 

The settlement will now go before Judge Sullivan for approval. The settlement itself does not include any agreement or understanding with respect to the plaintiffs’ attorneys fees, but the settlement papers indicate that the lead plaintiffs’ counsel intends to seek court approval of a fee recovery representing 17.5% of the collective settlement amount – that is, roughly $110 million. (By way of comparison, the fee award approved for lead plaintiffs in the Countywide case was $46.4 million, although I am sure the Wachovia bondholders’ counsel could explain important differences that would make this comparison irrelevant).

 

The settlement papers do not reveal whether or not any portion of the Wachovia bondholders’ settlement is to be funded by insurance, although the released Wachovia parties and the released KPMG parties identified in the settlement stipulation in both cases include the respective entities’ “insurers.” In addition the settlement stipulation funding provisions specify that the Wachovia defendants and the KPMG defendants respectively are obliged to pay “or to cause to be paid” the specified amounts into the escrow account within the specified time.

 

With the addition of the massive Wachovia bondholders’ settlement, the now 26 securities class action lawsuit settlements so far arising out of the subprime and credit crisis-related litigation wave total over $3.1 billion. With scores of cases still pending, the implications for aggregate amount for which all of these cases ultimately will be settled are truly staggering. The interesting thing is that the Wachovia bondholders’ case was not really on the radar screen as one of the big ones out there (compared, say, to the Citigroup,  Lehman Brothers or BofA/Merrill Lynch merger cases). The fact that a below the radar case can result in a settlement of this magnitude is an arresting development, particularly in view of the fact that many of the cases that remain pending are, like this one, filed under the Securities Act of 1933.

 

As impressive as the amount of the Wachovia bondholders’ settlement is, the most ominous aspects of the settlement for other defendants and their insurers is the percentage of investor loss that the settlement represents. If this settlement percentage winds up becoming a point of reference, it could have very serious consequences in connection with attempts to settle the remaining cases.

 

One thing about this settlement is that it does seem to suggest that Wachovia’s purchase of Golden West is a serious candidate for the title of worst deal leading into or as part of the credit crisis-related financial transactions. There is a lot of competition in the worst transaction category, including Bank of America’s purchase of Countrywide. But there is no doubt that the Golden West dealis one of the real stinkers.

 

Speaking of Wells Fargo, the litigation consequences for the bank of the mortgage meltdown are becoming rather breathtaking. The Wachovia defendants’ $590 contribution to this settlement, which presumably is being funded in substantial part if not in whole by Wells Fargo, comes closely on the heels of the recently announced $125 million Wells Fargo mortgage backed securities case (about which refer here)

 

There were a number of interesting items about this settlement out in the blogosphere. Alison Frankel has a nice August 5, 2011 piece on Thomson Reuters News & Insight (here) about the Bernstein LItowitz firm, which is one of the co-lead plaintiffs’ firms in the Wachovia bondholders’ case. Susan Beck’s August 5, 2011 write-up about settlement for the AmLaw Litigation Daily can be found here, and Luke Green’s August 5, 2011 post about the settlement on the ISS Securities Litigation Insight blog can be found here.

 

Special thanks to the Bernstein Litowitz firm for providing me with links to the settlement papers.

 

Dismissal Denied in State Street Subprime Securities Suit: In an August 3, 2011 order (here) in a securities suit against State Street Corporation and involving in part subprime mortgage-related allegations, District of Massachusetts Judge Nancy Gertner denied the defendants’ motion to dismiss.

 

The case, which involves consolidated securities and ERISA class actions, involves allegations that the investors deceived investors in two ways: first that State Street impermissibly charged its clients different exchange rates than the one the bank actually used to execute foreign exchange (“FX”) trades for clients; and that State Street misled investors in the fall of 2008 with statements that debt securities in its investment portfolio and in four specific off-balance sheet commercial paper conduits – collateralized in part by mortgage-backed securities – were of “high quality.”

 

In ruling that the plaintiffs’ allegations about the company’s statements regarding its debt securities were sufficient, Judge Gertner said "it is clear that some of the State Street disclosures simply failed to provide sufficient warning or detail, while others actually obscured as much as they revealed."

 

Nate Raymond’s August 4, 2011 article in the Am Law Litigation Daily about Judge Gertner’s ruling in the State Street case can be found here.

 

I have added the State Street ruling to my running tally of dismissal motion rulings in the subprime related securities cases, which can be accessed here.

 

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The facts and circumstances surrounding Bank of America’s credit crisis-induced acquisition of Merrill Lynch remain among the highest profile and most controversial events during the global financial crisis. In a July 29, 2011 opinion (here), Southern District of New York Judge Kevin Castel granted in part and denied in part the defendants’ renewed motions to dismiss in the consolidated Bank of America securities litigation arising out of BofA’s acquisition of Merrill.

 

Judge Castel’s opinion deals with two of the most controversial aspects of the events surrounding the deal – BofA’s alleged failure during the fourth quarter of 2008 to disclose Merrill’s deteriorating financial condition after the deal was announced but prior to the shareholder vote; and BofA’s alleged  failure to disclose the commitments of key government officials of financial inducements offered to BofA to complete the deal.

 

Background

In mid-September 2008, at the height of the global financial crisis, BofA agreed to acquire Merrill Lynch. In October and November 2008, while shareholder approval of the transaction was pending, Merrill suffered losses of over $15 billion and also took a $2 billion goodwill impairment charge. The Complaint alleges that BofA’s senior officials were aware of these losses as they occurred. The Complaint alleges that the losses were so significant that BofA management discussed terminating the transaction, prior to the December 5, 2008 shareholder vote on the merger, in which BofA shareholders approved the merger.

 

On December 17, 2008, BofA Chariman and CEO Kenneth Lewis called Treasury Secretary Henry Paulson to advise him that BofA was "strongly considering" invoking the “material adverse change” clause in the merger agreement, in order to terminate the deal prior to its scheduled January 1, 2009 close date.  At Paulson’s invitation, Lewis flew to Washington for a face-to-face meeting, at which Paulson and Federal Reserve Board Chair Ben Bernanke urged Lewis not to invoke the MAC clause.

 

In subsequent conversations, Lewis again advised the government officials that BofA intended to invoke the MAC clause. According to the plaintiffs’ allegations, BofA’s board voted on December 21, 2008 to invoke the MAC clause, but on the following day, the Board voted to approve the merger, apparently in part based on Lewis’s statement that he had received verbal assurances from Paulson that BofA would received a capital infusion and a guarantee against losses from risky assets if the merger concluded.

 

On January 16, 2010, BofA disclosed the fourth quarter losses of both BofA and Merrill and also revealed the federal funding package, which included $20 billion in capital and protection against further losses on $118 billion in assets. In following days, news reports revealed that in the days prior to the deal’s close, Merrill employees had been paid massive bonuses. 

 

In response to this news, BofA’s share price declined, and shareholder litigation ensued. The plaintiffs alleged that the defendants misstated and concealed matters related to the Merrill bonuses, the losses that accrued in the Fourth Quarter of 2008 after the merger was announced, and the pressure to consummate the deal from government officials. After the securities and derivative lawsuits were consolidated, the defendants moved to dismiss.

 

In a lengthy August 27, 2010 opinion (about which refer here), Judge Castel denied in part and granted in part the defendants’ motions to dismiss. First, he denied the defendants’ dismissal motions with regard to the plaintiffs’ allegations concerning the disclosures of the Merrill bonuses. Next, he concluded that while the plaintiffs had also alleged that there were materially misleading misrepresentations or omissions about Merrill Lynch’s deteriorating 4Q08 financial condition and about the promised government financial inducements, the plaintiffs had not adequately alleged scienter as to these topics, and so he denied the defendants’ motion to dismiss as to these allegations.

 

Thereafter, the plaintiffs filed a Consolidated Second Amended Class Action Complaint (hereafter, the “complaint”). The amendments in the complaint were primarily intended to address the court’s concerns regarding the scienter allegations. The defendants renewed their motions to dismiss.

 

The July 29 Opinion

In his July 29 ruling, Judge Castel denied the defendant’s dismissal motion as to the allegations surrounding Merrill’s declining 4Q08 financial condition, but granted the dismissal motion as to the allegations about the government bailout. He held that the plaintiffs’ amended complaint adequately alleged scienter as to the Merrill’s financial condition in the fourth quarter of 2008, but did not adequately allege a duty to update prior disclosures  as to the financial support the government officials offered in order to facilitate the deal.

 

In considering the plaintiffs’ amended allegations concerning Merrill’s 4Q08 losses, Judge Castel first found that the plaintiffs’ had not adequately alleged   that the defendants had a “motive” to mislead. The plaintiffs had alleged that BofA CEO Kenneth Lewis wanted to complete the deal to realize a “long-time business goal.” Lewis, the plaintiffs had alleged, was also motivated to complete the deal to keep his position, after Paulson had “bluntly told Lewis that the Federal Reserve would remove BofA’s senior management if it tried to terminate the transaction.” Judge Castel said neither of these “raised a strong inference of scienter” as there is no allegation that Lewis or BofA’s CFO Joe Price “could personally have profited from either the delay or the closure of the Merrill transaction.”

 

However, Judge Castel concluded that, with respect to the BofA’s alleged omissions regarding Merrill’s deteriorating 4Q08 financial condition, that the plaintiffs had adequately alleged “recklessness” as to both Lewis and Price.

 

With respect to Price, Castel concluded based on the plaintiffs’ allegations that the CFO, upon receiving the initial recommendation of the company’s General Counsel that Merrill’s deteriorating results should be disclosed, kept the GC “out of the loop” which “impeded counsel from making a fully informed analysis.’ These allegations are sufficient to infer that upon receiving the GC’s initial discourse recommendation, Price “engaged in ‘conscious recklessness’ amounting to ‘an extreme departure from the standards of ordinary care.’”

 

Castel concluded, based on the plaintiff allegations that Lewis had full information regarding Merrill’s declining results and that, in light of the transaction’s importance and the magnitude of Merrill’s losses, and that Lewis was reckless in failing to seek guidance of BofA’s disclosure obligations, that  the complaint adequately alleges that “Lewis’s inaction on the disclosure issue raises a strong inference of recklessness.”

 

In granting the defendants’ motion to dismiss with plaintiffs’ allegations concerning the financial benefits the government officials had offered, Judge Castel said that the plaintiffs had to show that the defendants had a duty to update prior disclosures when subsequent events rendered prior statements misleading. Judge Castel said that the plaintiffs’ complaint “does not, however, allege which statements were rendered misleading by the non-disclosure of federal financial assistance.” Because the complaint “does not allege which statements were allegedly rendered fraudulent by the defendants’ omissions,” the plaintiffs failed to satisfy the PSLRA’s pleading requirements.

 

Discussion

One of the reasons the BofA/Merrill merger remains so controversial is that, only after the deal closed, the information came out about Merrill’s losses, the governmental financial inducements, and the payment of the Merrill bonuses. The shocked reaction of the financial marketplace reflected in part an expectation that this information should have been disclosed previously to BofA’s shareholders and to the investing public. While the actual facts and circumstances remain a matter of proof, the plaintiffs portray a set of circumstances in which BofA officials were straining to avoid disclosing potentially disruptive information in order to try to preserve the deal – in part because of threats and inducements from senior government officials.

 

But no matter how compelling this version of the events may be, they still have to fit within the analytic framework required in order to state a claim under the federal securities laws. Judge Castel’s careful consideration tests the allegations against this analytic framework. Nevertheless, plaintiffs’ suggestion that it was misleading not to tell BofA shareholders that the deal was competed only because of massive government financial inducements, as well as threats to senior BofA officials, does present its own kind of narrative plausibility.

 

It is probable worth noting that by concluding that the defendants’ had no duty to update prior statements in order to disclose the government financial inducements, Judge Castel avoided the need to get into the questions, which he had addressed in his prior opinion, whether or not the defendants acted with scienter in withholding this information. Indeed, one of the more controversial aspects of Judge Castel’s prior opinion was his conclusion that, in part because the BofA officials had been ordered by the government officials not to disclose the government bailout, they had not acted with scienter in withholding the information. 

 

In any event, plaintiffs have now succeeded in at least two respects in fitting their plausible narrative into the analytic framework required in order to pursue a securities class action lawsuit. The case will now go forward with respect to the claims relating to the alleged failure to disclose the Merrill bonuses and the alleged failure to disclose Merrill’s massive 4Q08 losses. Even without the provocative allegations regarding the actions of the government officials, this will remain an interesting and high-profile case.

 

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In a detailed 106-page opinion dated July 27, 2011 (here), Southern District of New York Judge Lewis Kaplan granted in part and denied in part the defendants’ motions to dismiss in the consolidated Lehman Brothers Securities Litigation. Though Judge Kaplan knocked out certain of the plaintiffs’ allegations, what Judge Kaplan called the “core” of plaintiffs’ allegations remain, particularly with respect the company’s quarter-end Repo 105 transactions.

 

As detailed here, the plaintiffs allege that the defendants made false and misleading statements about Lehman Brothers prior to the company’s September 2008 collapse. The defendants include certain former officers and directors of the company; the company’s auditor; and the company’s offering underwriter. The plaintiffs amended their consolidated complaint following the March 2010 release of the report of the Lehman Brothers bankruptcy examiner (about which refer here), which, described the company’s alleged “balance sheet manipulation,” among other things by using a quarter end accounting device know as “Repo 105.” The defendants moved to dismiss.

 

In his July 27 opinion, Judge Kaplan granted the defendants motion to dismiss s to certain of the plaintiffs’ allegations, finding that the plaintiffs had not adequately alleged misleading falsity, for example, with respect to statements about the company’s use of risk mitigants and with respect to certain aspects of the company’s liquidity.

 

However, Judge Kaplan found that the allegations were sufficient with respect to a number of the plaintiffs’ other allegations, particularly with respect to the company’s use of the Repo 105 transactions; its statements about its net leverage; its statements about its use of stress testing; its statements about risk management; its statements about value at risk; and its statements about concentrations of credit risk.

 

With respect to the Repo 105 transactions, Judge Kaplan said that “repetitive, temporary, and undisclosed reduction of net leverage at the end of each quarter is sufficient to make out a claim.”

 

With respect to the statements that the plaintiffs had sufficiently alleged to be false and misleading, Judge Kaplan found that the plaintiffs had also sufficiently alleged scienter. In finding that the plaintiffs had adequately alleged scienter against the officer defendants in connection with the statements concerning the Repo 105 transactions, Judge Kaplan said:

 

The suggestions that defendants believed that the Repo 105 transactions were permissible in and of themselves and that the financial reporting for them, in and of itself, complied with GAAP does not address the core of plaintiffs’ claims  – that they were used to reduce temporarily and artificially Lehman’s net leverage and paint a misleading picture of the company’s financial position at the end of each quarter. The allegations of that these transactions were used at the end of each reporting period, in amounts that increased as the economic crisis intensified, to affect a financial metric that allegedly was material to investors, credit rating agencies, and analysts supports a strong inference that the Insider Defendants knew or were reckless in not knowing that use of the Repo 105 transactions and the manner in which they were accounted for painted a misleading picture of the company’s finances.

 

Although Judge Kaplan also knocked out many of the allegations against E&Y, the company auditor, Judge Kaplan also found that the amended complaint “adequately alleges that D&Y misrepresented in the 2Q08 that it was ‘not aware of any material modification that should be made to the consolidated financial statements referred to above for them to be in conformity with U.S. generally accepted accounting principles.’”

 

Judge Kaplan’s conclusions as to the sufficiency of the Exchange Act allegations against the individual defendants also extended to the sufficiency of the Securities Act allegations against the Underwriter Defendant.

 

As a result of Judge Kaplan’s rulings, one of the highest profile securities suits filed in the wake of the credit crisis will now go forward. Unsurprisingly, the allegations concerning the Repo 105 transaction had a significant impact on Judge Kaplan’s consideration of the plaintiffs’ claims. While any resolution of this case would be challenging, the difficulty for all concerned is that due to the multiplicity and complexity of the various legal matters arising out of the company’s collapse, the amount of D&O insurance remaining is rapidly declining. Even if the defendants feel strongly that they are wrongly accused, they will have to think hard about whether it is better to try to work a deal while insurance funds remain, or to fight on in the hope of ultimate vindication – preferably before the insurance funds are gone.

 

Nate Raymond’s July 27, 2011 Am Law Litigation Daily article discussing the decision can be found here.

 

I have in any event added the Lehman brothers ruling to my running tally of the subprime meltdown and credit crisis related dismissal motion rulings, which can be accessed here.

 

Special thanks to a loyal reader for providing me with a copy of Judge Kaplan’s ruling.

 

Second Circuit Affirms Dismissal in CBRE Realty Subprime-Related Securities Suit: In another ruling in a subprime-related securities class action lawsuit, on July 26, 2011, the Second Circuit affirmed the district court’s dismissal of the subprime-related securities suit that had been filed against CBRE Realty Finance. The Second Circuit’s opinion can be found here.

 

As discussed here, the plaintiffs had alleged that in connection with company’s September 2006 IPO, the company’s offering documents had not adequately disclosed the risk of default in connection with two Maryland condominium conversion projects known as Triton. In July 2009, the District of Connecticut dismissed the plaintiffs’ claims because the loans were fully collateralized at the time of the IPO. The plaintiffs appealed.

 

In its July 26 opinion, a three-judge panel of the Second Circuit affirmed the district court, but on different grounds. The Second Circuit held that “the alleged misstatements were not material because the value of the transactions composed an immaterial portion of the issuer’s total assets.”

 

I have also added the Second Circuit’s opinion in the CBRE case to my table of credit crisis lawsuit dismissal motion rulings.

 

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In what is as far as I know the first settlement of a securities class action lawsuit brought by mortgage-backed securities investors as part of the subprime and credit crisis-related litigation wave, the parties to the Wells Fargo Mortgage-Backed Certificates securities litigation have agreed to settle the case for $125 million. The lead plaintiffs’ July 6, 2011 motion for preliminary approval can be found here, and the stipulation of settlement can be found here. A July 7, 2011 Bloomberg article describing the settlement can be found here.

 

Bank of America last week announced an $8.5 billion settlement with Countrywide mortgage-backed securities investors, but as discussed here, that settlement involved only the investors’ repurchase claims under the documents governing the securities and expressly did not  resolve investors’ separate claims with respect to the Countrywide mortgage-backed securities under the federal securities laws.

 

As detailed here, purchasers of the mortgage pass-through certificates filed their initial lawsuit in March 2009, asserting claims under Sections 11, 12 and 15 of the Securities Act of 1933 and alleging that the Certificates’ offering documents contained misrepresentations and omissions. The plaintiffs alleged that the documents misstated Wells Fargo’s underwriting processes and loan standards; falsely stated the appraisal value of the underlying mortgaged properties; and misstated the investment quality of the securities, which had been assigned the highest ratings regardless of the lower quality of the underlying mortgages.

 

In an April 22, 2010 order (here), Northern District of California Judge Susan Illston granted in part and denied in part the defendants’ motions to dismiss. She dismissed, for lack of standing, plaintiffs’ claims based relating to 37 out of the 54 referenced offerings in which the named plaintiffs had not purchased securities. She denied the motion to dismiss as to the 17 remaining offerings at issue, holding that the plaintiffs, in reliance on confidential witness testimony, had adequately alleged misrepresentations in connection with the defendants’ underwriting practices, improper appraisal practices, and the process by which the securities obtained their investment ratings. Further discussion of the dismissal motion ruling can be found here.

 

In an October 5, 2010 order (here), Northern District of California Judge Lucy Koh (to whom the case was reassigned) granted the defendants’ motion to dismiss the plaintiffs’ amended Section 12(a)(2) allegations as well as certain other factual allegations. In a separate order (here), Judge Koh granted the motion to dismiss of certain underwriter defendants. The same order also dismissed as untimely the claims pursued by additional plaintiffs as to a total of eleven additional offerings.

 

The final settlement relates to a total of 28 different offerings. The settlement has been reached on behalf of not only Wells Fargo itself and related Wells Fargo entities, but also nine offering underwriters and four individual defendants. The settlement stipulation does not indicate whether or to what extent any of the other defendants are contributing toward the settlement amount. Indeed paragraph 6 of the settlement stipulation expressly states that “other than the obligation of Wells Fargo to cause to be paid [the settlement amount] to the Escrow Agent, no Defendant shall have any obligation to make any payment into the Escrow Account.”

 

There is nothing in the settlement stipulation to suggest, one way or the other, whether or not there is  any to insurance payment or reimbursement for any portion of the settlement amounts. The operative release provisions in the stipulation recites that the release parties shall include the defendants’ “related parties” which are defined to include “insurers and reinsurers,” but there is otherwise no reference in the stipulation to any insurance payment.

 

The Wells Fargo settlement comes close on the heels of the $208.5 million settlement in the WaMu securities suit (about which refer here). But there still have been only 24 settlements out of the over 230 credit crisis-related securities lawsuits filed between 2007 and now. I have long thought that the apparent settlement logjam in the credit crisis securities litigation would eventually break and that the settlements would then quickly start to accumulate. With these two recent substantial settlements, it may be the settlements will now start to quickly pile up.

 

As I mentioned at the outset, this settlement is as far as I know the first settlement of a subprime meltdown or credit crisis-related securities class action lawsuit brought on behalf of investors in mortgage backed securities. There were squadrons of other securities lawsuits filed on behalf of various mortgage backed securities investors, many of which have survived dismissal motions in whole or in part. It may be that we will start to see settlements in the other various mortgage backed securities cases shortly.

 

I have in any event added the $125 million Wells Fargo settlement to my running list of subprime meltdown and credit crisis-related lawsuit resolutions, which can be accessed here.

 

Special thanks to a loyal reader for alerting me to this settlement.

 

Quick Hits: A number of interesting law firm memos have come across our desk in recent days here at The D&O Diary. Here’s a quick list.

 

First, the Lowenstein law firm has issued an interesting July 1, 2011 memorandum discussing the perennial issues involving D&O insurance in the bankruptcy context. The memo, entitled “Navigating the Intersection of Bankruptcy and Insurance,” can be found here.

 

Second, I have had several posts on this site discussing the U.K Bribery Act (most recently here), which became effective July 1, 2011. With respect to possible D&O insurance issues arising in connection with the Act, the Pillsbury law firm published a July 5, 2011 memo entitled “U.K. Bribery Act: Consider Your Directors and Officers Insurance?” (here).

 

Third, readers may recall my recent post discussing the phenomenon of shareholder litigation arising after a negative “say on pay” vote. The Drinker Biddle law firm has a June 2011 memo about these lawsuits, entitled “Lawsuits in the Wake of Say on Pay” (here). The Bingham McCutchen law firm also has a July 7,2011 memo on the same topic, entitled "'Say on Pay': Shareholder 'No' Votes Now Leading to Derivative Actions Challenging Executive Compensation," (here).

 

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The Internet is buzzing over Bank of America’s June 29, 2011announcement (here) of its eye-popping $8.5 billion settlement to resolve “nearly all” of the repurchase claims involving legacy Countrywide-issued residential mortgage-backed securities (RMBS). The company’s press release and accompanying June 29, 2011 filing on form 8-K contain a lot of information about the underlying dispute and the settlement, but the deal has many moving parts and there is a lot to absorb here.

 

From a survey of the settlement documents, it appears that, among other things, the settlement resolves only the investors’ repurchase claims under the documents governing the securities but apparently does not resolve the investors’ separate claims under the federal securities laws, as discussed below.

 

The deal itself involves a settlement with the Bank of New York Mellon as trustee to 530 RMBS trusts having an original principal balance of $424 billion and unpaid principal balance of $221 billion. According to the Wall Street Journal’s account of the deal, the dispute had begun with a demand last October from a law firm representing 22 institutional investors. 

 

The investors had demanded that BofA repurchase mortgages that had been packaged into securities, basing their demand on allegations of   “breaches of representations and warranties contained in the Governing Agreements with respect to the Covered Trusts (including alleged failure to comply with underwriting guidelines (including limitations on underwriting exceptions), to comply with required loan-to-value and debt-to-income ratios, to ensure appropriate appraisals of mortgaged properties, and to verify appropriate owner-occupancy status),  and of the repurchase provisions contained in the Governing Agreements. ”Although the original demand was on behalf only of the 22 investors, the settlement is on behalf of virtually all investors in the trusts.

 

The settlement agreement can be found here. The plaintiffs’ firms press June 29, 2011 press release about the settlement can be found here. The basic framework of the settlement is straightforward – BofA will pay $8.5 billion to settle the claims. But there is more to it than that.

 

First, the settlement requires court approval. The settlement agreement explains that the Trustee will initiate an “Article 77 proceeding” in order to obtain the necessary approval. An article 77 proceeding is an action provided for under the New York Civil Practice Law and Rules, refer here. All costs associated with the Article 77 proceedings are to be borne by BofA. The 8-K specifically warns that given the number of trusts and investors and the complexity of the settlement “it is not possible to predict whether and to what extent challenges will be made to the settlement.”  The settlement is also conditioned on the receipt of tax rulings from the IRS and New York.

 

Second, on its face, the settlement involves a lot more than $8.5 billion. The 8-K says that” in addition to” the $8.5 billion settlement payment, BofA is “obligated to pay attorneys’ fees and costs to the Investor Group’s counsel as well as all fees and expenses incurred by the Trustee in connection with the settlement, including fees and expenses related to obtaining final court approval.” According to the exhibits to the settlement agreement, the plaintiffs’ firm is to receive $85 million in fees and costs.. As Susan Beck points out on the Am Law Litigation Daily, that may only represent one percent of the settlement, but it is still a respectable chunk of change.

 

Third, although the settlement is intended to be broad, there are a number of matters that the settlement does not resolve. For example, the settlement does not cover “a small number” of legacy transactions, including six transactions in which BNY Mellon did not act as Trustee.

 

Perhaps even more interestingly, the settlement does not resolve the investors’ claims under the securities laws. As the 8-K states, “because the settlement is with the Trustee on behalf of the Covered Trusts and releases rights under the governing agreements for the Covered Trusts, the settlement does not release investors’ securities law or fraud claims based upon disclosures made in connection with their decision to purchase, sell or hold securities issued by the trusts.”

 

Specifically, Paragraph 10 of the Settlement Agreement states that “release and waiver in Paragraph 9 does not include any direct claims held by Investors or their clients that do not seek to enforce any rights under the terms of the Governing Agreements but rather are based on disclosures made (or failed to be made) in connection with their decision to purchase, sell, or hold securities issued by any Covered Trust, including claims under the securities or anti-fraud laws of the United States or of any state; provided, however, that the question of the extent to which any payment made or benefit conferred pursuant to this Settlement Agreement may constitute an offset or credit against, or a reduction in the gross amount of, any such claim shall be determined in the action in which such claim is raised, and the Parties reserve all rights with respect to the position they may take on that question in those actions and acknowledge that all other Persons similarly reserve such rights.”

 

Fourth, beyond the $8.5 billion settlement, BofA will also record an additional 2Q11 charge of $5.5 billion additional representations and warranties exposure to non-government sponsored entities “and to a lesser extent GSE exposures.” Despite the sizeable amount of this charge, the 8-K specifies that the amount is not intended to include a variety of other costs, including “potential claims under securities laws.” The 8-K adds that the company is “not able to reasonably estimate the amount of any possible loss” concerning these other matters (including securities claims), noting that “such loss could be material.”

 

The settlement documents do not indicate whether any portion of the settlement will be funded by insurance. Given the nature of the settlement and of the underlying claims, the settlement would not appear to be a matter than would involve D&O insurance. At least one reader has raised the question whether or not the settlement might involve BofA’s E&O insurance. Much would depend on the nature of the coverage the bank has purchased. I welcome readers’ thoughts on the possibility of insurance coverage availability for this type of a settlement.

 

In any event, as massive as the settlement and the separate charge are, they do not and not intended to relate to the investor claims asserted under federal securities laws or state laws. As for those claims, I guess we will all just have to stay tuned…

 

Readers will of course recall that the parties to the securities class action lawsuit brought by shareholders of Countrywide against Countrywide and certain of its directors and officers previously announced a more than $600 million settlement (refer here). There are many other pending suits brought on behalf of investors who purchased Countrywide-issued mortgage backed securities. 

 

UPDATE: There is even more to this deal than I discussed above. If you have read this far, you will really want to take the time to read Susan Beck's excellent detailed analysis of the settlement in the Am Law LItigation Daily,here.

 

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As the worst days of the financial crisis (if not their ill effects) receded into the past, the accompanying credit crisis-related litigation wave appeared to lose its momentum. By late 2010, new credit crisis-related lawsuit filings seemingly had dwindled away. But now at the midpoint of 2011, two new credit crisis related lawsuit have arisen. These new lawsuits raise a number of interesting issues, as discussed below.

 

The Latest Filings

Deutsche Bank: According to their June 21, 2011 press release (here), plaintiffs’ lawyers have filed a securities class action lawsuit in the Southern District of New York against Deutsche Bank and four of its directors and officers. The complaint, which can be found here, purports to be filed on behalf Deutsche Bank common shareholders who purchased their shares between January 3, 2007 and January 16, 2009.

 

The complaint, which alleges that the defendants “concealed the Company’s failure to write down impaired securities containing mortgage-related debt,” asserts that the defendants concealed that:

 

(a) defendants failed to record adequate provisions for losses on the deterioration in mortgage assets and collateralized debt obligations on Deutsche Bank’s books caused by the high amount of non-collectible mortgages included in the Company’s portfolio; (b) Deutsche Bank’s MortgageIT subsidiary was issuing and had issued billions of dollars of mortgage loans which did not comply with stated lending practices, leading to thousands of defaults; (c) Deutsche Bank’s internal controls were inadequate to ensure that losses on residential mortgage-related assets were accounted for properly; and (d) Deutsche Bank had transferred billions of dollars in defaulting, or soon-to-default, mortgages to unwitting investors and government programs due to its disregard of adverse findings by outside consultants.

 

Carlyle Capital Corp.: On June 21, 2011, a plaintiff filed a securities class action complaint in the U.S. District for the District of Columbia against certain individual officers and directors of the now defunct Carlyle Capital Corp. (CCC), its investment manager and related entities. The complaint, which can be found here, purports to be filed on behalf of all those who purchased CCC shares between June 19, 2007 and through March 17, 2008.

 

The complaint alleges that CCC was organized under the laws of Guernsey to profit from the spread between the its portfolio of residential mortgage-backed securities (RMBS)and the cost of financing those assets through short term repurchase agreements and other forms of financing. Its principal place of business was in Washington, D.C. The complaint alleges that the entity was a “house of cards” because it was committed to acquiring “volatile, risk-securities that could only be purchased using massive borrowing with the securities purchased serving as collateral.” The company’s RMBS portfolio deteriorated during 2007, even prior to the company’s July 2007 IPO on Euronext. The complaint alleges that the deterioration and the liquidly issues associated with the companies repo agreement financing were not disclosed to investors.

 

The complaint alleges that following the offering, the defendants continued to misrepresent the company’s financial condition, particularly with respect to its RMBS portfolio. Despite the deteriorating market for RMBS, CCG continued to acquire additional RMBS. The complaint alleges that as the marketplace nearly reached a “meltdown” in August 2007, the company did not recognize its portfolio losses. In early 2008, a cascade of margin calls forced the company’s managers to put the company into liquidation under the authority of the Royal Court of Guernsey.

 

Discussion

These two cases have more in common than just the fact that they both related (each in their own way) to the global financial crisis. First, they both involve entities organized under the laws of non-U.S. jurisdictions. Second, the complaints were first filed well after the end of the purported class period. In each of these two cases, these case attributes may present some interesting challenges for the plaintiffs.

 

Deutsche Bank is of course a domiciled in Germany. However, the company’s Global Registered Shares are listed on the NYSE. Its shares also trade on the Frankfurt Stock Exchange. The complaint purports to represent all investors that purchased the company’s common shares during the class period. The complaint does not explicitly restrict its class to those investors that purchased their shares on the NYSE, but the question undoubtedly will arise under Morrison v. National Australia Bank whether the relief available under the U.S. securities laws will extend to those who purchased their shares outside the U.S.

 

Though CCC had its principle place of business in Washington, D.C., CCC was organized under laws of Guernsey and its shared traded on the Euronext Exchange. Euronext is based in Amsterdam and has affiliates in Belgium, France, Netherlands, Portugal and the U.K. The defendants undoubtedly will seek to argue, in reliance on Morrison v. National Australia Bank, that because the transactions in which the purported class of investors purchased their shares took place outside the U.S., their alleged injuries are not cognizable under the U.S. securities laws.

 

The plaintiff in the CCC case, no doubt anticipating this argument, alleges in his complaint that since April 2007 Euronext has been owned by the NYSE; that most of the alleged misconduct too place in the U.S.; that a substantial majority of the CCC shares were owned by U.S. residents, and that U.S. investors “with typical brokerage accounts” access Euronext shares the same as they would NYSE or NASDAQ shares. These considerations notwithstanding, the question under Morrison is where the “transaction “ took place, and in light of the post-Morrison case law, the CCC plaintiff may face significant challenges overcoming the defendants’ Morrison-based motion to dismiss. The defendants undoubtedly will argue that Morrison expressly rejected the very kind of “conduct and effects” arguments on which the plaintiff apparently intends to rely.

 

The belated nature of both of these cases also presents some rather interesting issues. The Deutsche Bank case was filed about two and a half years after then end of the purported class period. The CCC complaint is even more belated, having first been filed more than three years after the class period cut off.

 

The timing of the Deutsche Bank complaint may have to do with the timing of the U.S. Department of Justice’s recently announced suit against the bank related to the its  alleged misrepresentations about its mortgage loans. The recently filed class action complaint, specifically references the DOJ action and the May 4, 2011 Wall Street Journal article about the DOJ complaint. The securities class action complaint appears to have followed in the wake of and in reaction to the filing of the DOJ complaint. But while the timing of the filing of the class action complaint may be understood as related to the timing of the DOJ complaint, the plaintiffs should anticipate that the defendants’ dismissal motion will include a motion to dismiss the case on statute of limitations grounds.

 

The CCC plaintiff’s complaint expressly anticipates the likelihood of a statute of limitations dismissal motion. The complaint contains numerous paragraphs raising the delays that the Liquidation authority faced in trying to investigate the causes of CCC’s collapse. The complaint alleges that the defendants and other related Carlyle parties “undertook deliberate and affirmative steps to conceal… facts sufficient to apprise Plaintiff and the Class of the existence of potential claims against the Defendants.” The complaint cites purported statements of the Liquidator that the defendants “repeatedly obstructed their efforts” to obtain CCG’s books and records.

 

On July 7, 2010 the Liquidators commenced a civil action against the defendants in multiple jurisdictions, asserting that the defendants breached their fiduciary duties to CCC. The plaintiff alleges that the defendants’ “fraud was effectively and indefinitely concealed from the public at least until July 7, 2010.”

 

It remains to be seen whether the CCC plaintiff’s fraudulent concealment argument will prove sufficient to overcome statute of limitations concerns. But the belated nature of these cases and the presence of the statute of limitations concerns underscore why the credit crisis-related litigation wave has largely petered out, and why we are unlikely to see very many more credit crisis-related lawsuits. Even if these cases manage to overcome the statute of limitations hurdle, any other potential case that has not yet been filed will facing even more daunting timeliness problems.

 

It is interesting to note how both of these cases embody filing trends that seemed to have completely played out some time ago, or at least to have dwindled out. As I noted at the outset, both of these cases are credit crisis-related, a litigation trend that seemed to have mostly played out a year ago. But these cases are “flashes from the past” in other ways as well. They are both “belated” cases, in that they were filed more than a year after their purported class period cutoff. There were a host of “belated” cases in late 2009 and early 2010 (about which refer here), but the belated cases flings seemed to have gone away some time ago.

 

And both cases involved companies organized under the laws of non-U.S. jurisdictions, and whose shares trade in whole or in part on exchanges located outside the U.S. In the wake of the U.S. Supreme Court’s June 2010 Morrison v. National Australia Bank case, there was widespread speculation that filing of securities class action lawsuits in the U.S. against non-U.S. companies would become a thing of the past. Of course, lawsuits against foreign companies whose shares trade on the U.S. exchanges have continued, and that may explain the Deutsche Bank suit. The CCC case seems to be another matter.

 

It really is interesting that, notwithstanding Morrison, how many of the 2011 securities class action lawsuit filings involve non-U.S. companies. About 33 of the approximately 109 (roughly 30%) securities class action lawsuits filed so far during 2011 involve non-U.S. companies, compared to 15.9 percent during all of 2010. To be sure, a large part of the 2011 filings involve U.S.-listed Chinese companies. But regardless of the reason, the fact is that contrary to expectations, one year after the Morrison decision, the securities class action lawsuit filings against non-U.S. companies as a percentage of all filings has actually increased.

 

In any event because of the issues that these two recent cases present, they will interesting to follow. It will also be interesting to see if there are any more credit crisis related lawsuit filings ahead. I have in any event added these two cases to my running list of credit crisis-related lawsuit filings, which can be accessed here.

 

Final Notes:  Although the credit crisis related litigation wave largely played out early in 2010, a trickle of credit crisis-related cases has continued to come in. In fact the two cases above actually bring the number of credit crisis-related cases so far in 2011 to at least four (categorization issues of course always come into these kinds of analyses, but by my categorization there have been at least four, others may categorize and therefore count differently). The prior two 2011 credit crisis-related cases are the Bank of America foreclosure documentation case (refer here) and the United Western Bancorp case (refer here).

 

And finally, these two cases are not the only “belated” cases filed so far in 2011. By my count, there have been at least five “belated” cases far this year, counting these two. The other three belated cases are Frontpoint Partners (here), Oilsands Quest (here) and Elan Corp. (here)

 

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I am on the ground in Palo Alto this week at the annual Stanford Law School Directors’ College, where the opening speaker on Sunday night was SEC Commissioner Troy Paredes, whose presentation was in the form of a dialog with Stanford Law Professor and former SEC Commissioner Joseph Grundfest. The format lent itself to give and take and produced some interesting comments from both Paredes and Grundfest.

 

Much of the discussion was devoted to issues surrounding the Dodd-Frank whistleblower provisions. Paredes explained that he had voted against the adoption of the recently release SEC whistleblower rules (about which refer here) because of his “central concern” about “what the rules would do for internal compliance processes.” Because of the rules’ incentives, “when faced with a choice,” the whistleblower’s “rational financial interest will lead him to bypass the internal process.” (Parades’s comments in this respect echo the formal statement he made at the time he voted against the adoption of the rules. His statement can be found here.)

 

But Paredes added, now that we have the rules, rather than “throwing our hands up,” we should do what we can to “increase the chances that the whistleblower will report the information to the company,” which can best be accomplished by establishing a culture where “individuals feel it will be meaningful if you report problems to the company.” Of course, businesses can do the most by “reducing the chances that there will be something to blow the whistle about.”

 

Parades acknowledge that the likely influx of whistleblower reports to the agency will put pressure on the agency to “make sure that we have the people, processes and technology” so that when the information comes in, we “put it to good use.” He expressed his concern that if the agency falls short, it could “erode” the agency’s “legitimacy” and its “credibility.”

 

The challenge of course is that the SEC must accomplish this in the context of all of its other responsibilities, and at a time when the government generally is facing budget pressure, and while the agency is accommodating other increased responsibilities under the Dodd Frank Act.

 

In response to a question from the audience about what reforms he would have preferred in order to address the problems that came to light in the wake of the financial crisis, Paredes said that “to the extent the cause of the crisis was inadequate capital and liquidity….that’s where the change should have taken place.”

 

Grundfest had his own comments on the reform that followed the financial crisis. He said that many of the reforms presume that the problems arose because the regulators” lacked authority,” which Grundfest said is “false.” The problem is not one of authority but of “competence.” The real problem is that in many instances the regulators didn’t know what to do with the information available to them. The SEC’s specific problem is that it has “too many lawyers” and what the agency needs is a different “skill mix” to be able to process the information it receives.

 

In commenting on the government’s general competence issues, Grundfest added that the problem is that the U.S. government is “the world’s largest insurance company with the world’s largest military,” and the U.S.’s government insurance systems “have nothing to do with the way a rational insurance company would run its business.”

 

More notes about the conference will follow tomorrow. I must say that, Stanford University is a truly beautiful, impressive place.

 

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In an unpublished per curiam opinion dated May 24, 2011, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s dismissal of the credit crisis-related securities class action lawsuit pending against certain former officers of the bankrupt mortgage REIT, HomeBanc. A copy of the Eleventh Circuit’s opinion can be found here.

 

Background

HomeBanc was an Atlanta-based real estate investment trust in the business of investing in and originating residential mortgage loans. In their consolidated amended complaint, the plaintiffs alleged that prior to the company’s August 9, 2007 bankruptcy the defendants projected an "overly rosy picture" of the company’s finances, and misrepresented the company’s underwriting practices, loan loss reserve model, and other aspects of the company’s lending and mortgage investment operations. The plaintiffs alleged that the company "loosened its underwriting standards and policies in response to slowing loan originations and shifted from its stated focus on conservative risk management to attempting to profit by selling poor quality loans." The defendants moved to dismiss.

 

As discussed here (scroll down), on April 13, 2010, Northern District of Georgia Judge Timothy Batten granted the defendants’ motion to dismiss. Judge Batten agreed with the defendants’ position that "the bulk of the statements upon which Plaintiff relies fail to satisfy the ...standards for materiality." Among other things he found that the complaint "makes conclusory allegations of falsity without establishing contrary true facts." He also said that the complaint is "rife with forward-looking statements made by HomeBanc that were accompanied by meaningful risk disclosures."

 

Judge Batten also concluded that the plaintiff "has failed to allege sufficient facts to demonstrate a cogent and compelling inference of scienter," noting that "the complaint cites differences of opinion, conjecture and innuendo in an attempt to make the Defendants’ behavior look suspicious, but it conspicuously omits any facts that would require one to rule out an innocent explanation for the alleged behavior." Judge Batten also held that the plaintiff had not sufficiently pled loss causation. The plaintiffs appealed.

 

The May 24 Decision

In their May 24 per curiam opinion, a three judge panel of the Eleventh Circuit affirmed the district court. The panel agreed with the district court that the plaintiffs’ amended complaint’s scienter allegations were not sufficient to meet the pleading requirements of the PSLRA. The panel stated that

 

Although the Complaint alleges that the appellees expressed mistaken confidence in HomeBanc’s financial well-being and furthermore engaged in business practices that contributed to HomeBanc’s demise, the facts alleged do not give rise to a strong inference that appellees knew that their statements were fraudulent or were reckless in light of actual knowledge.

 

Rather the stronger inference is that appellees simply failed to predict the eventual collapse of the housing and subprime market, and, as a result, were ill-prepared to respond when the markets crashed. Indeed, as the district court explained “[t]he Complaint cites differences of opinion, conjecture and innuendo in an attempt to make [appellees’] behavior look suspicious, but it conspicuously omits any facts that would require one to rule out an innocent explanation for the alleged behavior.” Moreover, the public disclosures identified in the Complaint are replete with myriad warnings and other cautionary statements, which significantly undermines any inference that appellees intended to mislead HomeBanc’s investors.

 

Discussion

The Eleventh Circuit’s opinion in the HomeBanc case is the latest in a series of decisions in which the appellate courts have affirmed the district court’s dismissals of subprime or credit crisis-related securities class action lawsuits. Earlier example include the NovaStar Financial case (about which refer here), the Centerline Holdings case (refer here) and the Impac Mortgage Holdings case (refer here). At this point, it seems clear the appellate courts are reluctant to setting aside the dismissal motion rulings of the district courts in these cases.

 

However, there has been at least one exception to the pattern of appellate rulings; as discussed here, in connection with the Nomura Subprime Securities Suit, the First Circuit affirmed in part and reversed in part the lower court’s dismissal of the case. With the Eleventh Circuit’s affirmance in the HomeBanc case, the Nomura decision remains the only appellate ruling remains the only appellate ruling in which the lower court’s dismissal was not affirmed, even if the ruling reversed the lower court in that case only in part.

 

The Eleventh Circuit’s designation of its HomeBanc decision as “not for publication” compels me to return to one of my recurring gripes. In this day of universal Internet availability of all appellate rulings, isn’t the notion that any opinion is “not for publication” rather illusory, not to say anachronistic? Not only that, but the Eleventh Circuit cannot bar participants from referencing the case, as Federal Rule of Appellate Procedure 32.1 expressly provides that courts may not "prohibit or restrict" the citation to appellate opinions by designating them as, for example, "not for publication." So why bother designating an opinion as not for publication?

 

I have also always worried about what the “not for publication” designation implies. It sort of sounds like, well, here’s our ruling, but we really don’t want anybody to see it. Or maybe, here it is, we really don’t think of much of it, this opinion really doesn’t represent our best work. What are the parties to think of the fact that the appellate panel doesn’t think an opinion is worthy of publication—that their dispute wasn’t sufficient to command the effort required to produce a published opinion?  I think the very idea that an appellate court would designate an opinion as not for publication is a poor practice and sends the wrong messages.

 

I have in any event updated my running tally of subprime and credit crisis-related securities lawsuit case resolutions to reflect the Eleventh Circuit’s opinion in the HomeBanc case. My tally can be accessed here.

 

Special thanks to a loyal reader for alerting me to the Eleventh Circuit’s opinion.

 

More Litigation Following a “Say on Pay” No Vote: Yet another shareholder lawsuit has been filed following a “no” vote from shareholders on executive compensation. As reported here, at the company’s May 10, 2011 shareholder meeting, holders of a majority of shares of Hercules Offshore Corporation voted against the advisory executive compensation resolution. And then, according to press reports, on June 13, 2011, plaintiffs purporting to act of behalf of the company filed a shareholders’ derivative suit in Texas state court against the company’s board alleging breach of fiduciary duty.

 

As I have previously noted (here and here), one of the follow on effects of the advisory say on pay vote required by the Dodd-Frank Act has been the outbreak of investor litigation following a ‘no” vote of shareholders on the executive compensation resolution. Though the number of companies whose executive compensation resolutions have been voted down by shareholder is still relatively small, a relatively high number of companies receiving negative votes have been hit with the follow on shareholder suits.

 

Speakers’ Corner: Next week I will be attending the Stanford Law School Directors’ College in Palo Alto California. I will also be speaking on the topic of “Indemnification and D&O Insurance” on a panel with my friends Priya Cherian Huskins of Woodruff-Sawyer and Anthony Tatulli of Chartis. If it works out as planned, I hope to be publishing blog posts about the conference while I am there. Information about the conference can be found here.

 

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In a decision that largely turned on detailed confidential witness statements, on June 7, 2011, Northern District of Alabama Judge Inge Prytz Johnson denied the motions to dismiss in the Regions Financial Corporation subprime-related securities lawsuit. This ruling is the latest of a series of decisions involving the company. The June7 ruling can be found here.

 

Background

As detailed here, this case arose following the company’s January 20, 2009 announcement that it was taking a goodwill impairment of nearly $6 billion related to the company’s November 2006 purchase of AmSouth Bancorporation. As the plaintiffs later alleged, even though Regions acquired AmSouth, with a year former AmSouth executives were running the combined company. The AmSouth loan portfolio was heavily weighted toward Florida real estate.

 

The plaintiffs allege that the company and its senior officials were well aware of the deteriorating conditions in the Florida real estate market, but they failed to recognize the non-performing loans in the company’s portfolio. As a result, the defendants “repeatedly, yet falsely, claimed that the $6 billion in goodwill associated with the AmSouth acquisition was unimpaired. “

 

But by January 2009, “the collapsing real estate market proved more devastating than even defendants’ fraud could conceal,” and on January 20, 2009, “defendants were forced to finally announce a huge increase in loan loss reserves , and a colossal $6 billion writedown of goodwill.” The company’s share price declined and litigation ensured. The defendants moved to dismiss.

 

The June 7 Opinion

Judge Johnson’s June 7 Opinion denying the defendants’ motions to dismiss relied heavily on the statements of confidential witnesses cited in the amended complaint. Her opinion recites this testimony at length. Among other things, one confidential witness reports that senor bank officials changed the status of nonaccrual loans at month or quarter end, but that following the month or quarter end, the numbers would be switched back, the delay done with the purpose of “making the numbers.” Another confidential witness stated  that the company did not properly classify nonperforming loans as nonaccruing assets in a timely manner.

 

The plaintiffs also relied on confidential witness statements to establish that “defendants were kept aware of this process through both the reporting structure and periodic reports.” The confidential witness cited specific detailed reports senior managers were regularly given.

 

Another confidential witness statedthat the Federal Reserve has opened an investigation into the company’s classification of loans as “non-accrual,” and that the Company’s Audit Committee is now in the process of conducting its own investigation, and has hired an outside law firm to investigate.

 

In denying the denying the defendants’ motions to dismiss, Judge Johnson differentiated the plaintiffs’ allegations from those involved in a separate case relating to Regions’ alleged delay in recognizing the impairment of the AmSouth transaction goodwill, in which Southern District of New York Judge Lewis Kaplan had granted the motion of the defendants in that case to dismiss the complaint.

 

By contrast to the allegations in that case, Judge Johnson said, the plaintiffs in this case have “pled many facts showing that the defendants had information that did not support defendants’ opinions.” Among other things, she cited the statements of the confidential witnesses “showing how defendants improperly handled and classified loans, defendants were aware of the collapsing commercial real estate in Florida yet continued to push for more growth there, and continued to ignore [internal] reports signaling a negative risk-adjusted bottom line.

 

Judge Johnson concluded that the plaintiffs has sufficiently alleged that the company’s loan loss reserves were false and misleading, citing the testimony of several confidential witnesses that “defendants mishandled loans in order to manipulate their financial reporting numbers.” Because the loan loss reserves impacted the company’s reported income (which was the measure by which the company tested its goodwill), Judge Johnson concluded that the plaintiffs had adequately alleged that the company’s goodwill was “overstate, false and misleading.”

 

Judge Johnson also relied on the confidential witnesses’ statements in concluding that the plaintiffs had adequately alleged scienter. Taking the fact that the defendants had compensation tied to company performance as one possible motive to be considered, Judge Johnson also noted that the defendants “had access to reports showing the true state of affairs regarding Regions’ loans and the deteriorating markets, particularly in Florida.”

 

Judge Johnson also found that the defendants’ “significant and sudden increase in loan loss reserves along with its $6 million goodwill write-down, considered collectively with all allegations, supports a strong inference of scienter.”  Judge Johnson added that “coupled with allegations of defendants’ knowledge of the scheme to manipulate classifications of loans, it was apparent to defendants that the financials were inaccurate long before their adjustment in January 2009.”

 

Discussion

Securities plaintiffs have been uniformly successful in attempting to rely on confidential witness statements  in order to try to meet the PSLRA’s pleading requirements This case is a notable example where use of confidential witness statements was successful. The success depended on a number of factors. The witnesses’ statements was detailed and specific. More importantly, Judge Johnson found that the witnesses’ statements  showed that the defendants were aware of the information about which the witnesses testified, in particular about alleged differences between the information cited by the witnesses and what the company was saying publicly.

 

At the same time it seems that the witnesses’ statements  reinforced Judge Johnsons’ predispositions. She clearly found the magnitude of the $6 billion write-down and the January 2009 increase in loan loss reserves to be disturbing, and even suspicious. These factors came together to support her conclusions.

 

The confidential witness statements were  clearly important and  help explain the difference in outcome between her ruling and that of Judge Kaplan in the separate ’33 Act claim that had been brought on behalf of class of investors who had purchased Regions trust preferred securities in a separate securities offering. As noted above, in that case, Judge Kaplan had granted the motion to dismiss. The difference seems to be the allegations based on the statements  of the confidential witnesses.

 

There have been a number of other credit crisis-related lawsuits in which the presence of statements from confidential witnesses seemed to have made a difference in enabling plaintiffs’ claims to survive the initial pleading hurdles. Among these cases are: the Sallie Mae case (refer here); and  the Wells Fargo Mortgage-Backed Securities case (refer here). Indeed, in the Credit Suisse case, which later settled for $70 million dollars, the court found that the information in confidential witness statements cited in the amended complaint was sufficient to permit the plaintiffs’ amended complaint to survive the renewed dismissal motions, after the motion to dismiss the initial complaint had been granted, as discussed here.

 

As I noted in a prior post, here, here have been a number of cases filed against this company in the wake of the AmSouth merger and in light of the problems Regions encountered during the financial crisis. A number of these cases are proceeding, including, as discussed in a prior post, the state court derivative complaint.

 

These cases are part of the huge number of cases that continue to work their way through the system following the financial crisis. I have in any event added the June 7 ruling to my running tally of credit crisis-related dismissal motion rulings, which can be accessed here.

 

Special thanks to a loyal reader for sending along a copy of the June 7 order.

 

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The parties to two of the consolidated subprime-related securities lawsuits pending against Oppenheimer Funds have settled the case for a total of $100 million. This settlement has a number of interesting features, as discussed further below, including in particular aspects of the allocation of the total settlement amount between the two consolidated fund actions. The settlement also leaves the consolidated action filed against yet other Oppenheimer Funds pending.

 

In Spring and Summer 2009, a total of 32 class action lawsuits were filed against a number of the Oppenheimer Funds. These actions were brought by investors who had purchased shares of the Funds that were traceable to offering documents that allegedly contained misrepresentations and omissions. As a general matter, the investors alleged that the Funds had been marketed as representing investments that did not involve undue risk, but that beginning in 2006, the Funds had invested heavily in “risky” investments such as mortgage-backed securities, credit-default swaps and total-return swaps. When the financial crisis hit, these Funds later lost a substantial part of their net asset value.

 

As ultimately organized, the Oppenheimer Funds lawsuits were organized into three consolidated cases involving, respectively, the Oppenheimer Champion Income Fund; the Oppenheimer Core Bond Fund; and the consolidated “Rochester” cases (involving seven other Oppenheimer Funds).Background regarding the Core Bond Fund action can be found here. Background regarding the Oppenheimer Champion Income Fund can be found here. These two cases were consolidated  for discovery purposes. The Rochester cases proceeded independently. Background regarding the Rochester cases can be found here.

 

 The $100 million settlement involves only the Oppenheimer Champion Income Fund action and the Oppenheimer Core Bond Fund action. The consolidated Rochester Funds case is not part of this settlement, which apparently remains pending in the District of Colorado.

 

The $100 million settlement is described in various settlement documents filed with the District of Colorado on or about May 19, 2011. The stipulation of settlement in the Oppenheimer Champion Bond Fund case can be found here. The stipulation of settlement in the Oppenheimer Core Bond Fund case can be found here. The motions to court for preliminary approval of the settlements can be found here and here, respectively.

 

The parties’ settlement-related filings portray an interesting settlement process resulting in a settlement with a number of interesting features.

 

 First of all, the parties were able to reach this settlement while the motions to dismiss were fully briefed and pending, but before there had been any ruling on the motions.

 

Second, the settlement was the result of a protracted settlement mediation process that consumed a number of months. As a result of this process, the parties agreed to the $100 million settlement amount – but the parties were not done yet. They had to further agree on how the $100 million would be split, or allocated, between the Oppenheimer Champion Bond fund case, on the one hand, and the Oppenheimer Core Bond Fund case , on the other hand.

 

The parties entered a separate process for determining the allocation of the $100 million between the two cases. The parties entered a separate mediation process to determine the process, and for purposes of this separate process, the plaintiffs’ Lead Counsel brought in separate, independent counsel to represent each of the two respective Funds. Each side then presented mediation briefs to the mediator. On February 25, 2011, the mediator determined that the appropriate allocation between the two funds would be 47.5 percent for the Core Bond Fund Class and 52.5 percent for the Champion Income Class.

 

As a result of this allocation, the parties stipulated that the $100 million settlement amount is to be allocated between the two cases as follows: $52.5 million to the Champion Income Fund and $47.5 million to the Core Bond Fund class. Each of the two settlements is expressly condition on the approval of the settlement in the other case.

 

The settlement papers say relatively little with respect to the role that insurance may have played in the settlement. The settlement stipulations do specify that the parties to the settlement “understand and agree that any obligation of the Trustee Defendants [I.e., the individuals named as defendants in the suits who had served of trustees of the respective funds] hereunder will be satisfied by insurers or other Defendants and that no portion of the Settlement Amount is to be paid personally by the Trustee Defendants.”

 

There are a number of noteworthy aspects of this settlement. The first is that it was reached before the motions to dismiss had been ruling. Obviously there is no prohibition on settling cases before the dismissal motions rulings, as cases do settle prior to dismissal motion rulings from time to time. But it is relatively unusual, and the size of this settlement before the dismissal motion rulings is also noteworthy.

 

It is also noteworthy that these cases have been settled for a significant amount while the other Oppenheimer Fund cases involving the Rochester funds remain pending and unresolved. Those other cases remain on a different track, apparently, but the settlement does put those unresolved cases in an interesting light.

 

The subprime-related lawsuits against the Oppenheimer funds were only one among several sets of cases filed against mutual fund families or funds raising subprime related allegations. Another of these mutual fund cases, the Schwab Yield Plus case, settled previously for a total of $235 million (about which refer here). Many more of these mutual fund related cases also remain pending. This Oppenheimer Fund settlement put those other mutual fund cases in an interesting light, as well.

 

In any event, I have added the Oppenheimer Fund settlement to my running tally of subprime-related case resolutions, which can be accessed here. According to my data, the $100 million Oppenheimer Funds settlement represents the sixth largest subprime-related securities lawsuit settlement so far. (If the Rochester funds cases were to ultimately settle, the amount of any settlement of those cases would obviously increase Oppenheimer’s aggregate settlement amount.)

 

As I have noted before, many of the subprime-related cases remain pending and eventually they will be resolved. It is worth noting that as the various Oppenheimer cases went forward, they were consolidated in various ways, and it appears that other cases are being resolved on a consolidated basis as well. This consolidation processcould reduce the overall number of case resolutions while potentially increasing the total resolution amounts in connection with any one consolidated case.  

 

Nate Raymond’s May 22, 2011 Am Law Litigation Daily article about this settlement can be found here. The plaintiffs’ attorneys’ press release regarding the settlements can be found here. Special thanks to the readers who sent me information about this settlement.

 

SEC Investigations and D&O Insurance: There are three articles in this week’s National Underwriter that may be of interest to readers of this blog. The articles and their respective links are as follows: “A Newly Assertive SEC, Backed By Whistleblowers, Means Rise in Investigations – And Risks” (here); “As Investigation –Cost Coverage Evolve, Prices on Existing D&O Solutions Drop” (here); “Investigation Edge: Brokers Welcome New ‘Entity’ Product From Chartis” (here).

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In a May 11, 2011 opinion (here), a three-judge panel of the Second Circuit affirmed the dismissal of rating agency defendants in litigation filed under the Securities Act of 1933 and involving mortgage-related securities issues by Lehman Brothers and IndyMac and the Residential Asset Securitization Trust (RUST). The Second Circuit affirmed the District Court’s rulings that the credit rating agencies could not be held liable under Section 11 of the ’33 Act as “underwriters” – even if they helped structure the securities at issue.

 

The plaintiffs were purchasers of mortgage backed securities. The plaintiffs generally alleged that the originators of the loans that backed the securities failed to comply with the general loan underwriting guidelines described in the offering documents. The plaintiffs allege that the rating agencies determined the composition of the loans in the mortgage pool that the instruments securitized. The plaintiffs also allege that the credit enhancements supporting the loans were insufficient to support the investment ratings the rating agencies gave the securities.

 

The plaintiffs premised their securities liability claims against the rating agencies based on their argument that the rating agencies were "underwriters" within the meaning of Section 11 of the ’33 Act. The plaintiffs based their theory that the rating agencies were "underwriters" on the argument that the "underwriter" liability extends to those "who engaged in steps necessary for the distribution." Plaintiffs argued that because the rating agencies structured the certificates at issue to achieve the desired ratings, that had performed a necessary predicated for the securities’ distribution in the market, and therefore they should be liable as underwriters.

 

In separate rulings on February 1 and February 17, 2010, Southern District of New York Lewis Kaplan granted the rating agency defendants’ motions to dismiss in the Lehman Brothers Mortgage Backed Securities lawsuit, as discussed here and here. Judge Kaplan relied on his ruling s in the Lehman Brothers case to granting the rating agency defendants’ dismissal motions in the IndyMac and RUST cases.  The plaintiffs’ appealed. Because the separate cases raised similar issues, the appeals were consolidated before the Second Circuit.

 

The Second Circuit affirmed Judge Kaplan’s ruling that the rating agencies cannot be held liable as “underwriters” under the ’33 Act. The Second Circuit said that:

 

The plain language of the statute limits liability to persons who participate in the purchase, offer, or sale of securities for distribution. While such participants may be indirect as well as direct, the statute does not reach further to identify as underwriters persons who provide services that facilitate a securities offering but who do not themselves participate in the statutorily specified distribution-related activities.

 

The Second Circuit also affirmed the lower court rulings that the Rating Agencies were not subject to “control person” liability under Section 15. Finally, the appellate court concluded that the district court did not abuse its discretion in denying plaintiffs’ leave to amend their pleadings.

 

The Second Circuit’s ruling not only is fatal for the claims of the plaintiffs in these cases with respect to the rating agencies, but also in the many other cases where other plaintiffs had raised similar claims. To be sure, these claims had not been faring particularly well in the district courts, as most other district courts were following Judge Kaplan’s district court ruling in the Lehman Brothers case. But now with the Second Circuit’s opinion these claims seem to have received what may be their final blow.

 

It is worth noting, however, that investors have filed lawsuits relating to subprime investments against the rating agencies on other theories. For example, in one case, discussed here, CalPERS had sued the rating agencies in connection with the agencies’ ratings on certain investment vehicles, asserting claims of negligence and negligent interference with prospective economic advantage. In the Cheyne Financial case (discussed here), the plaintiff investors had asserted a variety of common law claims against the rating agencies, including common law fraud and misrepresentation. These claims based on other theories will not be affected by the Second Circuit’s ruling.

 

What remains to be seen is whether the subprime mortgage-backed securities investors will prevail against the rating agencies on any theory.

 

Nate Raymond’s May 11, 2011 Am Law Litigation Daily article about the Second Circuit’s decision can be found here.

 

Is It Really Time to Head Out?: I know things have been challenging for securities class action plaintiffs’ lawyers. A string of Supreme Court decisions has made it lot tougher for them to pursue their claims and the cumulative impact of various legislative reforms have made it more difficult for the plaintiffs’ claims to survive the preliminary motions. But has it gotten so bad that it is time to pull up stakes to try to pursue shareholder claims in another country? Apparently so, at least judging from the actions of Michael Spencer, a securities class action plaintiffs’ attorney for the Milberg firm in New York.

 

According to a May 10, 2011 article in The (Toronto) Globe and Mail entitled “Top U.S. Class Action Lawyer Coming to Canada” (here), Spencer, who was lead plaintiffs’ counsel in the Vivendi securities trial, has been completing all of the requirements for being admitted to the Ontario bar, with the goal of practicing law there. He apparently intends to set up his Canadian practice with the Toronto law firm of Kim Orr Barristers. P.C.

 

The article explains that Spencer’s move is due to the years of tightening down on securities class actions in the U.S. (particularly in light of the U.S. Supreme Court’s decision in Morrison v. National Australia Bank). By contrast, court’s applying Ontario’s securities laws have recently certified a global class (in the Imax case, for example). The article quotes Spencer as saying “Simply put, Canada presents a great opportunity.”

 

I have recognized that the cumulative impact of the Supreme Court’s recent decisions had made life tougher for the plaintiffs’ bar. But I had not thought that things had reached a point that litigation prospects looked more promising outside the United States. The fact that we have reached the point that litigation prospects look brighter in Canada than in the United States represents a watershed development of some kind. I wonder how the Canadians feel about that…

 

I note for the record the Spencer has been a guest blogger on this site; his guest post can be found here.

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Over the last few days, there have been a series of rulings in high-profile lawsuits arising out of the subprime meltdown and credit crisis. As discussed below, just in the past week there were dismissal motion rulings in cases involving Freddie Mac, Wachovia/Wells Fargo, and AIG. Though some or all of the claims in these cases were dismissed in whole or in part, the plaintiffs have managed to live at least for another day (if only just barely in the Freddie Mac case). At the same time,  in the AIG ERISA case, the case largely survived the dismissal motion.

 

Freddie Mac: On March 30, 2011, Southern District of New York Judge John Keenan granted without prejudice the defendants’ motion to dismiss in the Federal Home Loan Mortgage Corp. (Freddie Mac) subprime-related securities class action lawsuit. A copy of the March 30 order can be found here.

 

Freddie Mac is of course one of the government sponsored entities that was at the center of the residential mortgage crisis in 2008. On September 7, 2008, it was placed in the hands of a conservator. In August 2008, shortly before the company entered conservatorship, the company’s public shareholders filed a securities class action lawsuit against the company and certain of its directors and officers, as discussed in greater detail here.

 

The plaintiffs alleged that in various public statements the defendants had made three types of misrepresentations or omissions: (1) about the company’s exposure to “non-prime mortgage loans”; (2) about its capital adequacy; and (3) about the strength of its due diligence and quality control mechanisms. The defendants moved to dismiss.

 

In finding that the alleged misrepresentations about the company’s exposure to subprime mortgages were insufficient, Judge Keenan found that “the Amended Complaint does not explain why Freddie Mac’s disclosures in its November 2007 Financial Reports … were insufficient to convey the truth that Freddie Mac was dealing in non-conforming mortgages to the public.” He added that “Plaintiffs present no theory at all about why Freddie Mac’s disclosures would not be understood by the reasonable investor and thus part of the ‘total mix’ of information that determined its share price.”  

 

Judge Keenan also found that the alleged misrepresentations regarding the company’s capital adequacy were also insufficient. He observed that “in a volatile economic, political and regulatory environment like the one that existed in the summer and early fall of 2008, with even Freddie Mac’s primary regulator being replaced, Plaintiffs must show more to plausibly claim that Freddie Mac’s statements were made without any basis in fact. “ However, he concluded that “Plaintiff has not adequately pleaded sufficient facts giving rise to a strong inference that Freddie Mac’s statements about its capital adequacy or its hope that it would continue to function were made with intent to defraud or without factual basis.”

 

With respect to the alleged misrepresentations regarding the company’s internal controls and processes, Judge Keenan found that “there are simply no facts in the Amended Complaint from which one could reasonably infer a causal link between Freddie Mac’s statements about its underwriting standards and internal controls and any loss suffered by purchasers of its equity securities during the Class Period.” He added that “considering that the price of Freddie Mac’s stock was clearly linked to the ‘marketwide phenomenon’ of the housing price collapse, there is decreased probability that Plaintiffs’ losses were caused by fraud.”

 

Judge Keenan granted the motions to dismiss without prejudice and allowed the plaintiffs’ 60 days in which to file a Second Amended Complaint.

 

An April 1, 2011 Bloomberg article about Judge Keenan’s decision in the Freddie Mac case can be found here.

 

Wachovia/Wells Fargo: On March 31, 2011, Southern District of New York Judge Richard Sullivan issued his rulings on the motions to dismiss in the consolidated securities litigation that had been filed on behalf former equity shareholders and bondholders of Wachovia Corporation. In a lengthy and detailed opinion (here), Judge Sullivan granted the defendants’ motions to dismiss the equity securities litigation, but he denied the motion to dismiss the bondholders’ action, other than with respect to certain bond offerings in which the plaintiffs had not actually purchased any securities.

 

As Judge Sullivan wrote in summarizing the various plaintiffs’ allegations, “all claims arise from the financial disintegration Wachovia experienced between its 2006 purchase of Golden West Financial Corporation and its 2008 merger with Wells Fargo & Company.” In essence, the complaint is based on the difficulties Wachovia experienced as a result of the Golden West “Pick-A-Pay” mortgage portfolio. Further background regarding the equity securities litigation can be found here and background regarding the bondholders’ litigation can be found here.

 

Judge Sullivan granted the defendants’ motions to dismiss the equity securities plaintiffs’ ’34 Act claims, finding that the plaintiffs had not sufficiently alleged scienter. Judge Sullivan concluded that the “more compelling inference” is that “Defendants simply did not anticipate the full extent of the mortgage crisis and the resulting implications for the Pick-A-Pay loan portfolio. Although a colossal blunder with grave consequences for many, such a failure is simply not enough to support a claim for securities fraud.” He added that “bad judgment and poor management are not fraud, even when they lead to the demise of a once venerable financial institution.”

 

Judge Sullivan also granted the defendants’ motion to dismiss the equity securities plaintiffs’ ’33 Act claims, finding that their “scattershot pleadings” failed to “afford proper notice, much less provide facially plausible factual allegations.” He added that he could not conclude “that the relevant offering documents contained material omissions in violation of affirmative disclosure obligations.”

 

However, Judge Sullivan denied the defendants’ motions to dismiss the bondholders’ ’33 Act claims (other than with respect to the offerings in which the plaintiffs had not purchased shares, with respect to which the motion was granted). In concluding that the bondholders’ allegations were sufficient when the equity securities plaintiffs’ allegations were not, Judge Sullivan found that the bondholder plaintiffs had adequately alleged misrepresentation in the relevant offering documents with respect to loan to value rations maintained in the mortgage portfolio and with respect to the alleged manipulation of the appraisal process to produce inflated appraisal values.

 

On the strength of these alleged misrepresentations in the offering documents, Judge Sullivan also denied defendant KPMG’s motion to dismiss the bondholders’ 33 Act claims.

 

Susan Beck’s April 1, 2011 Am Law Litigation Daily detailed article about Judge Sullivan’s ruling can be found here.

 

AIG ERISA Action: In a March 31, 2011 order (here) in the AIG subprime-related ERISA action, Southern District of New York Judge Laura Taylor Swain, denied the defendants’ motion to dismiss, other than with respect to plan organized on behalf of Puerto Rico employees with respect to which the motion was granted on the ground that because none of the name plaintiffs participated in that plan, they lacked standing to pursue those claims.

 

The plaintiffs are participants or beneficiaries in I two AIG plans, the AIG Incentive Savings Plan and the American General Agents’ & Managers’ Thrift Plan between June 15, 2007 and the present. Each plan offered participants a menu of investment options, one of which was the AIG Stock Fund, which invested in AIG stock.

 

The plaintiffs alleged that the defendant plan fiduciaries breached the duty of prudence by continuing to offer the AIG Stock Fund as an investment option, even when they knew or should have known that AIG stock was no longer a suitable and appropriate investment. The plaintiffs further alleged that the defendants failed to disclose to fellow fiduciaries nonpublic information that was need to protect the interests of the Plans. The plaintiffs also alleged that the defendant fiduciaries failed to monitor the investments and failed to provide complete and accurate information regarding AIG’s mismanagement and improper business practices.

 

Judge Swain rejected all of the grounds on which the defendants’ sought to dismiss the allegations asserted on behalf of participants and beneficiaries of the AIG Incentive Saving Plan and the American Genera Agents’ and Managers’ Thrift Plan. Judge Swain held that Plaintiffs had sufficiently alleged that had there been an investigation triggered by  the “warning signs” regarding problems in AIG’s Financial Products Unit, “it would have demonstrated that AIG stock had become an imprudent investment.”

 

Judge Swain also found that the Plaintiffs “have adequately alleged that Defendants failed to disclose the true extent of the risk facing AIG as a result of its financial decisions and the decline of the residential housing market, and that Defendants affirmatively misrepresented the strength and extent of the processes AIG had in place to mitigate this risk.”

 

Finally, she found that the plaintiffs “have sufficiently alleged that AIG and the director defendants were aware of the increasingly risky financial position maintained by AIG, material weaknesses in AIG’s financial health and the potential impending erosion of the value of AIG’s stock.”

 

An April 1, 2011 Bloomberg article about Judge Swain’s rulings can be found here.

 

I have in any event added these  rulings to my running tally of subprime-related lawsuit dismissal motion rulings, which can be found here.

 

Discussion

It has been quite a while since the subprime and credit crisis litigation wave first started in early 2007. Yet many of the cases are still working their way through the system. The cases discussed above involve some of the highest profile participants in many of the events surrounding the credit crisis. One thing that is striking, at least about the Freddie Mac and the Wachovia cases, is the extent to which the courts seemed influenced by the comprehensiveness of the credit crisis. It seems that in the context of a global economic crisis – particularly one that caught so many by surprise – the courts continue to be skeptical of fraud claims, absent concrete support for the allegations.

 

These rulings suggest that the barrier to overcome the initial judicial skepticism may be substantial. Indeed, the plaintiffs in the Wachovia case failed to overcome the court’s concerns despite having assembled 50 confidential witnesses, and despite the fact that the aggregate market cap drop on which the equity shareholders was approximately $109 billion.

 

On the other hand, the hurdle the plaintiffs must overcome is not insurmountable. The Wachovia bondholders’ Section 11 claims are going  forward. And even the plaintiffs in the Freddie Mac case will have at least another chance to replead to try to overcome the initial pleading hurdles.

 

Judge Swain’s ruling in the AIG ERISA case seemed more receptive. But it is worth keeping in mind that ERISA plaintiffs do not face the same heightened pleading standards that securities lawsuit plaintiffs face under the PSLRA. Perhaps even more significantly, the ERISA plaintiffs do not have to plead scienter.

 

In any event, all three of these cases will be worth watching as they continue to work their way through the system.

 

Special thanks to the loyal readers who provided me with copies of these rulings.

 

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In a March 29, 2011 order (here), Southern District of New York Judge Jed Rakoff granted the defendants’ motions to dismiss a pair of subprime-related derivative lawsuits that had been brought against certain directors and officers of Merrill Lynch. Because the plaintiffs -- former shareholders of Merrill Lynch who became BofA shareholders at the time of BofA’s January 2009 acquisition of Merrill—asserted their claims in the capacities as BofA shareholders, both lawsuits represented so-called double derivative suits. A copy of Judge Rakoff’s March 29 ruling can be found here.

 

Judge Rakoff granted the motions to dismiss because he concluded that the plaintiffs had failed to show that BofA’s board was” so involved in the underlying wrongdoing alleged in the derivative complaint that it could not impartially consider a demand to pursue claims against the Merrill officers and directors.”

 

Both lawsuits sought to assert claims against the defendants for the “unprecedented losses” Merrill had experienced “as a result of its aggressive investment in collateralized debt obligations.” A detailed review of the underlying facts can be found here. In an earlier ruling, Judge Rakoff had previously ruled that the plaintiffs lacked standing to assert derivative claims on Merrill’s behalf because they were no longer Merrill shareholders. His prior ruling was without prejudice to their refilling their claims in their capacities as BofA shareholders.

 

The plaintiffs refilled their complaints seeking to compel BofA’s board to force its Merrill subsidiary to bring claims against certain Merrill directors and officers in connection with Merrill’s reckless investments. The key difference in the two actions is that in the first action (referred to as the “Derivative Action”), the plaintiffs allege that they are not required to bring a demand that BofA’s board bring the action against the Merrill officials, whereas in the second action (the “Lambrecht Action”), the plaintiffs had presented a demand which the BofA board had refused.

 

Judge Rakoff concluded that both actions should be dismissed, noting that

 

The Court does not take this step lightly, for the allegations of the complaint, if true, describe the kind of risky behavior by high-ranking financiers that helped created the economic crisis from which so many Americans continue to suffer. But a derivative action is brought for the benefit of the company, and nothing here alleged in the complaints raises a reason to doubt that the board of the relevant company, BofA, was at all times fairly positioned to determine whether bringing an action against Merrill’s former directors and officers was in the company’s interests.

 

With respect to the Derivative Action, Judge Rakoff specifically concluded that the plaintiffs had “failed to make a legally adequate showing” that the BofA board was so involved in the underlying wrongdoing “that it could not impartially consider a demand to pursue claims against the Merrill officers and directors.”

 

With respect to the Lambrecht Action, Judger Rakoff concluded that the plaintiffs had “failed to carry the considerable burden of showing that the BofA’s Board’s decision not to bring a lawsuit against the Merrill officers and directors was made in bad faith or was based on an unreasonable investigation.”  

 

Discussion

Some time ago, as discussed here, Merrill Lynch settled for $475 million dollars the related securities class action lawsuit that had been filed on behalf of Merrill’s shareholder. Merrill also at the same time agreed to settle the related ERISA liability suit for an additional $75 million. In addition, Merrill agreed to settle the related securities suit that had been brought by its bondholders for $150 million, as discussed here. These settlements represent $700 million in aggregate.

 

However, Merrill and its successor in interest BofA declined to settle the related derivative litigation, and Judge Rakoff’s decision dismissing the derivative litigation appears to vindicate that decision.

 

Judge Rakoff’s ruling is interesting if for no other reason that the unusual posture of the double derivative suit, where the demand to pursue the claims against the former directors and officers of a subsidiary must be directed against the board of the parent company.

 

The ruling is also interesting because it illustrates just how difficult it is to overcome the initial pleading hurdles in a derivative suit. Judge Rakoff concluded that the initial pleading requirements had not been satisfied notwithstanding allegations that Judge Rakoff himself said “describe the kind of risky behavior by high-ranking financiers that helped create the economic crisis from which so many Americans continue to suffer. “ The clear implication is that even allegations of egregious behavior will not suffice if the demand requirements have not been satisfied or proved inapplicable.

 

Judge Rakoff’s analysis of the BofA board’s rejection of the Lambrecht plaintiffs’ suit demand is particularly interesting. In reviewing the substance of the reasons the BofA board gave for rejecting the demand, Judge Rakoff noted that the rejection letter the board had sent “belies plaintiff’s assertions” that the rejection was cursory and the letter itself mere boilerplate. In support of this conclusion, he noted that the board had reasoned that taking up the litigation as the Lambrecht plaintiffs demanded would have undermined Merrill’s defenses in the securities litigation and in the ERISA litigation. The letter also reflected the board’s conclusion that the cost of the urged litigation might well any benefit that might reasonably be expected. These types of considerations often are present when these types of demands are presented to boards, and Judge Rakoff’s analysis seems to confirm that it these kinds of considerations are appropriate for boards to take into account in rejecting litigation demands.

 

Finally, Judge Rakoff rejected the plaintiffs suggestions that the response letter irself showed that consideration of the litigation demand was cursory, noting that” there is no prescribed procedure a board must follow in responding to a demand letter.”

 

I have in any event added the ruling to my running tally of subprime-related dismissal motions rulings, which can be accessed here.

 

Nate Raymond's March 29, 2011 Am Law Litigation Daily article about Judge Rakoff's decision can be found here.

 

Special thanks to the securities litigation group at Skadden for forwarding me a copy of Judge Rakoff’s ruling. Skadden represented Bank of America and Merrill Lynch in the two derivative suits.

 

An International D&O Resource. I know from conversations with readers that one issue of recurring concern is finding resources on which to rely in connection with the non-U.S. exposures of directors and officers. With that concern in mind, I am pleased to link here to the recently completed paper by my friend Perry Granof. The paper, which is entitled “The Top 10 Non-US-Jurisdictions Based Upon Maturity and Activity” (here) analyzes the ten non-U.S. jurisdictions that Perry believes have the most evolved systems with respect to the liabilities of directors and officers. The list also includes three ‘up-and-coming” jurisdictions, as well.

 

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In resolution of a securities case that at one time had actually been dismissed and that even after being revived was substantially narrowed based on the U.S. Supreme Court’s Morrison decision, the parties to the Credit Suisse subprime-related securities class action lawsuit have reached a settlement by which the company has agreed to pay the plaintiff class $70 million. A copy of the parties’ March 10, 2010 settlement agreement can be found here. The settlement is subject to court approval.

 

As reported in greater detail here, the plaintiffs filed their initial complaint in this action in April 2008. The plaintiffs alleged that the defendants had made material misrepresentations about the company’s asset valuation system, its internal controls (which allegedly allowed unauthorized placement of high risk mortgage-backed assets in client accounts), and its own exposure to losses related to subprime mortgages. Credit Suisse is domiciled in Switzerland. Its shares trade on several securities exchanges outside the U.S. and its ADRs trade on the NYSE.

 

In an October 5, 2009 order (here), Southern District of New York Judge Victor Marrero granted the defendants’ motion to dismiss, having concluded based on pre-Morrison standards that the court lacked subject matter jurisdiction over the claims of claimants who reside outside the U.S. and who had purchased their shares on foreign exchanges (so-called f-cubed claimants). The complaint had not identified the domicile of some other named plaintiffs, but Judge Marrero dismissed their claims as well.

 

Thereafter, the plaintiffs amended their complaint and the defendants renewed their motions to dismiss. As discussed here, on February 11, 2010, Judge Marrero held that the plaintiffs’ amended complaint was sufficient to overcome the initial defects and he allowed the case to go forward as to plaintiff shareholders who had purchased Credit Suisse ADRs on the NYSE and as to U.S.-based shareholders who had purchased Credit Suisse shares on the Swiss Stock Exchange. However, he also ruled that the court lacked jurisdiction over the claims of plaintiffs that resided outside the U.S. and that had purchased their shares outside the U.S.

 

In June 2010, the U.S. Supreme Court issued its opinion in Morrison v. National Australia Bank case. The defendants in the Credit Suisse case moved to dismiss the claims by Americans who bought their Credit Suisse shares on the Swiss exchange – that is, the so-called "f-squared" claims. In a July 27, 2010 opinion, Judge Marrero ruled that Morrison also precludes the f-squared claims. As discussed here, Judge Marrero was the first to hold that under Morrison applied to preclude f-squared as well as f-cubed claims.

 

The parties then initiated a mediation process that resulted in the settlement agreement filed with the court on March 10.

　

The settlement agreement has a number of interesting features. First, the settlement agreement specifies that following the settlement’s preliminary approval Credit Suisse "and/or its insurers" will cause the payment of the $70 million settlement fund to the escrow agent. The settlement agreement itself does not specify how much of the settlement ultimately is to be borne by Credit Suisse’s insurers. The use of the word "or" in the phrase "or its insurers" suggests that the insurers contribution could possibly be as much as the entire $70 million, but there is simply no way to tell for sure from the face of the settlement document. However, the clear suggestion is that at least some portion of the settlement is to be paid by Credit Suisse’s insurers.

　

Second, even though Judge Marrero dismissed out the Americans who bought their Credit Suisse shares on the Swiss exchange, the proposed settlement class consists not only of all purchasers who acquired Credit Suisse ADRs on the U.S. Exchange, but also "all U.S. Residents who purchased [Credit Suisse] securities on the Swiss Stock Exchange during the class period." Clearly, plaintiffs counsel was not prepared to concede – at least for settlement purposes – that Judge Marrero’s ruling on this issue was correct.

　

However, it appears that the Judge Marrero’s ruling dismissing out the f-squared claimants was taken into account in the settlement. The Americans who bought Credit Suisse shares on the Swiss exchange will enjoy only a limited recover compared to the ADR purchasers. 90% of the net settlement amount is to go to settlement class members who purchased ADRs on the NYSE, and 10% is to go to the U.S. shareholders who purchased common shares on the Swiss exchange. (ADR holders will receive $1.38 per share and the U.S. shareholders will or 13 cents a share..)

　

As Alison Frankel points out in her March 11, 2011 Am Law Litigation Daily article about the Credit Suisse settlement (here), the settlement split between the ADR holders and the U.S. common shareholders is similar to the settlement split in the recent $125 million Satyam settlement (about which refer here) in which the ADS holders were to receive $1.38 a share and common shareholders were to receive 6 cents a share.

　

Third, although the settlement agreement itself does not specify the amount of plaintiffs’ attorneys’ fees, the accompanying settlement papers discloses that the plaintiffs’ counsel intends to move the court and seek attorneys’ fees "not to exceed 27-1/2 percent of the settlement proceeds" plus $350,000 in expenses. If the plaintiffs’ counsel were to receive the full 27.5 percent amount, that would translate into a fee award of $19.25 million.

　

Beyond its specific features, the settlement is also interesting for what it represents. For starters, it is represents one of the few settlements so far of the more that 230 subprime and credit crisis-related securities class action lawsuits that accumulated during the period 2007 to 2010. By my count, the Credit Suisse settlement represents only the 19^th settlement of a credit crisis securities suit overall and only the second such settlement so far in 2011.

　

As Cornerstone Research discussed in its recently released study of 2010 securities class action lawsuit settlements (refer here), the credit crisis cases have "settled at a slower rate than traditional cases." Though many of these cases have been dismissed, others have survived dismissal motions. (And some, like the Credit Suisse case itself, were initially dismissed but survived renewed dismissal motions.) As I have noted elsewhere there is a backlog of unresolved credit crisis lawsuits. Though these cases are in many instances still working their way through the system, more of these cases will be moving toward settlement in the months ahead.

 

The size of the Credit Suisse settlement is also noteworthy. The $70 million settlement amount makes the case the fifth largest credit crisis securities suit settlement so far. Many of the credit crisis lawsuit settlements have been large – the Cornerstone study shows that the average and median credit crisis settlements have run substantially higher than the average and median settlements of securities suits generally. The suggestion is that the aggregate costs of all of these settlements could represent a very substantial figure, a possibility that, among other things, could have important implications for the D&O insurance industry.

 

Break in the Action: The D&O Diary’s publication schedule will be intermittent for the next two weeks. The normal publication schedule will resume on March 28, 2011.　

　

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The filing of new subprime meltdown and credit crisis-related securities suits dwindled as 2010 progressed, which some commentators interpreted to suggest that the litigation filing phenomenon might finally have run its course. But though we have now begun the fifth year since the first subprime-related securities suit arrived in February 2007, it appears the process may not yet have played itself out, as the first subprime mortgage and credit crisis related lawsuit of 2011 was filed last week.

 

Moreover, as discussed further below, the early 2011 securities suit filings have reflected the continuation of other prior year’s filings trends as well.

 

The latest credit crisis lawsuit filing grows out of the foreclosure documentation debacle that came to light late last year.

 

According to their February 2, 2011 press release (here), plaintiffs’ lawyers have filed a securities class action lawsuit in the Southern District of New York against Bank of America Corporation and certain of its directors and officers alleging that "concealed defects in the recording of mortgages and improprieties with respect to the preparation of foreclosure paperwork that harmed BofA’s investors when BofA had to temporarily discontinue foreclosures and admit to the problems it was experiencing."

 

According to the press release, the complaint (which can be found here) alleges that

 

(a) BofA did not have adequate personnel to process the huge numbers of foreclosed loans in its portfolio; (b) BofA had not properly recorded many of its mortgages when originated or acquired, which would severely complicate the foreclosure process if it became necessary; (c) defendants failed to maintain proper internal controls related to processing of foreclosures; (d) BofA’s failure to properly process both mortgages and foreclosures would impair the ability of BofA to dispose of bad loans; and (e) BofA had engaged in a practice known internally as "dollar rolling" to remove billions of dollars of debt from its balance sheet over the prior years.

 

The BofA lawsuit is the second securities class action lawsuit to arise in the wake of the foreclosure documentation brouhaha. The first, filed in November 2010, involved Lender Processing Services, which related to alleged disclosure violations relating, among other things, to the company’s alleged use of "robo-signers." Background on the Lender Processing Services case can be found here.

 

I have added the new BofA lawsuit to my list of subprime and credit crisis related securities class action lawsuits, which can be accessed here. David Bario’s February 3, 2011 Am Law Litigation Daily article about the BofA suit can be found here.

 

Chinese Take-Out: The credit crisis litigation wave is not the only litigation trend from prior years that appears to have carried over into early 2011. As I first noted here, one of the trends that developed in the second half of 2010 was a rash of filings involving Chinese domiciled companies. Some commentators speculated in their year end litigation overviews that this development would prove to be a short-lived phenomenon, but at least so far, the filing trend appears to have continued into the first few weeks of the New Year.

 

Just last Friday, February 4, 2011, there were two new securities class action lawsuits filing involving Chinese-domiciled companies.

 

First, according to their February 4, 2011 press release (here), plaintiffs’ lawyers have filed a securities suit in the Southern District of New York against China MediaExpress. The relatively short complaint, which can be found here, alleges that the company’s share price declined after a pair of analyst reports in late January and early February raised questions about the accuracy of many of the Company’s statements and the quality of the company’s earnings.

 

Second, according to their February 4, 2011 press release (here), plaintiffs’ lawyers have initiated a securities class action lawsuit in the Southern District of New York against China Valves Technology and certain of its directors and officers. The complaint, which can be found here, alleges that the company misrepresented the nature of its February 2010 acquisition of China-based Able Delight Valve Company, and also misrepresented Able Delight’s financial condition and circumstances. According to the complaint, the company later disclosed that the Able Delight acquisition was a related party-transaction, the Able Delight was a money losing operation, and that Able Delight is the target of a corruption investigation.

 

The China Valves complaint, like the China MediaExpress complaint, makes extensive references to the reports of securities analysis, who apparently are closely scrutinizing Chinese companies with U.S. listings.

 

The January 11, 2011 Citron Research report quoted in the China Valves case stated, among other things with respect to the Able Delight transaction, "it is almost as if China Valves was trying to break a record with how many securities laws can be broken with a single transaction," characterizing the company’s transaction-related omissions as a "4-in-1 disclosure failure." (The China MediaExpress complaint also cited a research report issued by an analyst from Citron Research.)

 

Nor are these two cases the first of the year involving a Chinese company. As reflected here, on January 12, 2011, plaintiffs’ lawyers filed a securities class action lawsuit in the Central District of California against Tongxin International Ltd. and certain of its directors and officers. Although technically Tongxin is organized in the British Virgin Islands, it operates as a trucking manufacturing company based in China. Like the China Valves case, the Tonxin complaint (which can be found here) also alleges supposed misrepresentation and omissions with respect to a related-party transaction.

 

Some might argue that it is making too much to generalize from the three filings, but the fact is that these cases bear a strong resemblance to ten cases filed in 2010 against Chinese companies. Moreover, there have been relatively few new securities cases filed this year, so these three cases represent roughly one-fifth of all the securities class action lawsuits filed so far this year.

 

In other words, it sure looks like the wave of cases against Chinese companies has continued undiminished into the New Year. With securities analysts apparently highly motivated to ferret out Chinese companies reporting deficiencies, plaintiffs’ lawyers apparently will not lack for further grist for the litigation mill.

 

Even if the 2011 securities class action lawuits filings overall are off to a slow start, the filings so far suggest that prior years’ trends remain at work and are driving many of the new securities suits so far this year.

 

Health Disclosures, Leadership and Legacies: Following Apple’s January 18, 2011 announcement that its CEO, Steve Jobs, would be taking his third health-related leave of absence from the company’s helm, an energetic debate arose on the question of how much a public company must disclose about the medical condition of a key official.

 

I had occasion to reflect on the circumstances and questions surrounding Steve Jobs’ health-related disclosures while reading University of Wisconsin history professor John Milton Cooper, Jr’s excellent one-volume biography of Woodrow Wilson.

 

In October 1919, while traveling the country to try to drum up public support for The League of Nations, Wilson suffered a debilitating stroke. Just a few days later, while recuperating at the White House, he suffered a dangerous prostate infection that according to Cooper left Wilson "near death." Though he emerged from these twin ordeals, Wilson was left weakened, and arguably incapacitated.

 

Notwithstanding the seriousness of Wilson’s condition, the information disclosed publicly about his condition was carefully measured and consistently "vague" and "upbeat." Over the ensuing weeks and months, Wilson would struggle to recover, but he never considered resigning. His Vice President, Thomas R. Marshall, fearful of appearing as if he were plotting some kind of a coup, resolutely stayed in the background.

 

Cooper’s biography overall presents a balanced but unquestionably favorable impression of Wilson. However, with respect to Wilson’s condition in the wake of the medical crises, Cooper’s assessment is harsh. He noted that "the psychological effects of the stroke were … striking" as Wilson’s "emotions were unbalanced and his judgment was warped." Though in the past Wilson had been able to "offset his driving determination, combativeness and overweening self-confidence with detachment, reflection and self-criticism," those compensating behaviors were now "largely gone." Worse, Cooper noted, "his denial of his illness and limitations was starting to border on delusion."

 

The most disturbing thing about Wilson’s condition, however, is that the American people were largely kept in the dark, as was most of official Washington. With the benefit of hindsight and the passage of nearly a century’s time, it seems unbelievable how little of Wilson’s incapacity was disclosed.

 

Though both their conditions and the particulars of their circumstances arguably are entirely different, I still think there may be lessons for Jobs and for Apple from the circumstances surrounding Wilson’s incapacity.

 

The first is how harsh the judgment of history is on the decision to withhold information from the American people about Wilson’s condition. Cooper, an unquestionably favorable biographer, can barely restrain his outrage over the insufficiency of the disclosure about Wilson’s condition. Admittedly, part of Cooper’s outrage is due to the fact that the mistaken picture given of Wilson’s health allowed his wife Edith to exercise a complete gatekeeper role over the President, and practically speaking to determine Presidential policy and action. But even allowing for this historically astonishing aspect of Wilson’s situation, the fact remains that the history’s judgment surrounding the disclosure questions are unforgiving.

 

The second is that the decisions and disclosures surrounding Wilson’s health unquestionably undermined Wilson’s legacy. Cooper’s biography makes a persuasive case that, until his illness, Wilson was an effective President. Cooper also seems to suggest that without the troublesome months after Wilson’s illness, Wilson could well be remembered as a great President. Instead, the turmoil and conflict that followed his illness cast a cloud over Wilson’s entire Presidency. Had he accepted his incapacity and stepped aside when he was no longer able to govern, Wilson’s legacy might have been preserved. But that would have required him to acknowledge – to himself, and more importantly, to the American people – that he was no longer fit for office.

 

There are obvious and important differences between these two circumstances. Jobs, by contrast to Wilson, has been willing to take several leaves of absence from his position. Yet even in the latest announcement, there was an apparently deliberate suggestion that despite everything Jobs is somehow still in control – thus, the company’s January 18 release expressly stated that Jobs will "remain involved in major strategic decisions during [his] leave of absence." Maybe his condition allows him to remain involved, but there is a sense of Jobs struggling to remain in charge.

 

But the questions that surround Apple’s announcement relate less to Jobs’ determination to remain involved than they do the limited information about Jobs’ medical condition and capacity. Since Jobs medical challenges first emerged in 2003, Apple has maintained the same consistently restrained approach toward medical disclosures. The company’s approach may meet applicable legal standards, and, from the perspective of Jobs’s privacy, may be completely understandable. But I wonder if the company might take a different approach if it were to consider the disclosure questions in light of the way it might all look in retrospect, with the benefit of hindsight and after the passage of time.

 

I know that many readers may find my attempt to draw parallels between Wilson’s circumstances and what has recently happened to Steve Jobs to be more than a stretch. There is no doubt that the differences between the circumstances arguably are more important than the similarities. Nevertheless, I still think there are lessons that can be drawn from the way that history has judged the nondisclosures surrounding Wilson’s health.

 

Admittedly, my effort to frame the analysis in terms of the earlier time period may reflect a personal predilection more than anything else. I confess that I have long been fascinated with the sequence of events that followed after the end of World War I. There are a number of first-rate books on the subject. One I have read several times is Margaret Macmillan’s Paris 1919: Six Months That Changed the World, which not only details the deep problems associated with Wilson’s personal involvement in the negotiations of the Treaty of Versailles, but also documents how the peace negotiations left indelible marks throughout the world and to this very day, in places as far flung as Iraq, Palestine, the Balkans and the Far East.

 

The story of the troublesome events surrounding Edith’s Wilson’s caretaker role during Wilson’s illnesses is well told in Phyllis Lee Levin’s book, Edith and Woodrow: The White House Years.　

　

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According to Popular, Inc.’s January 27, 2011 press release (here), the Puerto Rican bank holding company has reached an agreement in principle to settle the subprime related securities lawsuit pending against the company, as well as in the related ERISA lawsuit. The securities suit has settled for $37.5 million, and the ERISA suit has settled for $8.2 million. The settlement is subject to court approval.

　

The plaintiffs’ complaint focused on the company’s accounting for a deferred tax asset. In the three years preceding the beginning of the class period (which went from January 24, 2009 to February 2009), the company had recorded tax loss carry forwards that totaled over $1 billion, largely as a result of the company’s U.S. subprime and other lending operations. The benefit of these deferred tax assets could only be realized if the company experienced sufficient U.S.-based gains within 20 years.

　

To offset the possibility the company might not fully realize the value of the deferred tax assets, accounting rules require reporting companies to take a valuation allowance, but the company recorded no material valuation allowance of this asset until late 2008. The company ultimately recorded an allowance for the full value of the asset. Following the announcement of this action, the company’s share price fell substantially.

　

The plaintiffs allege that the increasing, multiyear U.S.-based operating losses prevented it from anticipating sufficient taxable income to realize the full value of the deferred tax asset prior to the expiration of the 20-year period, yet failed to take a valuation reserve because doing so would have lowered the bank’s risk-based capital ratio below regulatory requirements. The financial picture the company’s treatment of the asset portrayed allowed the company to raise over $300 million in a May 2008 offering.

 

As discussed here, on August 2, 2010, District of Puerto Rico Judge Gustavo Gelpi granted in part and denied in part the defendants’ motion to dismiss.

 

According to the company’s press release, "management expects" that approximately $30 million of the $37.5 million securities class action settlement and all of the $8.2 million ERISA settlement will be funded by insurance. The parties expect to submit a joint motion for preliminary approval of the settlements within 45 days.

 

The press release also notes that the company has not yet reached settlement of the separate but related derivative lawsuit. As discussed here, on August 11, 2010, District of Puerto Rico Judge Jay Garcia-Gregory denied in part and granted in part the defendants’ motion to dismiss the derivative lawsuit.

 

Finally, the press release states that the company is aware of a separate lawsuit filed by individual claimants on January 18, 2011 but that the company has not yet been served.

 

The Popular securities lawsuit settlement is the first of subprime-related securities class action lawsuit settlement of the year. As I noted here, and as Cornerstone Research also noted in it recently released year-end securities litigation, the subprime-related securities suits have been taking longer to resolve than have securities cases generally.

 

Indeed, even though more than 220 securities class action lawsuits were filed between 2007 and 2010 as part of the subprime and credit crisis-related securities litigation wave, only 18 of the cases have settled so far, including the Popular settlement. My guess is that though the Popular settlement is first one this year, there will be many more before year end.

 

The Popular case is also the first subprime-related securities settlement involving a commercial bank. During the subprime-related litigation wave, a host of troubled and failed banks have been sued. A number of those cases have been dismissed, but others, like the Popular case have not been dismissed. Unlike many of the banks involved in these lawsuits, Popular’s banking operations remain functional, so the resolution of this case may have relatively little to say about the cases involving failed banks.

 

I have in any event added both settlements to my running tally of subprime and credit crisis-related case resolutions, which can be accessed here.

 

The Financial Crisis Inquiry Commission Report: On January 27, 2011, the Financial Crisis Inquiry Commission released its report, concluding that the 2008 Financial Crisis was an avoidable disaster caused by both private and public sector failings, including corporate mismanagement and excessive risk-taking on Wall Street and widespread failures in government regulation designed to preserve the safety and soundness of our financial system.

 

The report itself can be found here, and the report’s conclusion, as well as the two dissents filed on behalf of a total of four commissioners, can be found here

 

The Commission was established as part of the Fraud Enforcement and Recovery Act passed by Congress and signed by the President in May 2009. The Commission’s purpose was to "examine the causes, domestic and global, of the current financial and economic crisis in the United States."

 

I must confess that due to the fact that the report weights in at 633 pages, I have not yet had a chance to read the entire report. I will say, based on the parts I have read so far, that whomever is responsible for the authorial voice in the report has definite literary pretensions.

　

Thus, for example, in alluding to the report’s conclusion that the Federal Reserve had failed to adequately supervise subprime mortgage lending, the report rhetorically asks "What else could one expect on a highway where there were neither speed limits nor neatly painted lines?" And of the financial institutions’ recklessly willingness to take on risk, the report says "Like Icarus, they never feared flying ever closer to the sun." And in describing the sheer extent of blameworthiness, the report says "To paraphrase Shakespeare, the fault lies not in the stars, but in us."

 

Maybe the prose is not too high-falutin for a governmental Commission report, but the problem with the use of that kind of language is that it runs the risk of coming off like the work of, say, an over-wrought blogger. (Not that there are any of those around here.)

 

The Commission itself was intended to be bipartisan, but it would be difficult to try to characterize the report as bipartisan, owing to the fact that the only four Republicans on the Commission dissented from the report. The Commission’s inability to reach a consensus, at a minimum, dilutes the report’s persuasiveness, as it now appears more like an expression or a mere point of view, rather than a set of definitive findings.

 

While I intend to try to read the entire report at some point, I have to say that I find it odd that we are being given this report only now, half a year after Congress enacted its massive financial reform legislation. Am I the only one that thinks that the sequencing might have been improved if the reform legislation were only taken up after the Commission issued its report?

 

The one thing I think everyone should know is that the Commission’s website has a separate Resources page, here, that is stuffed with all sorts of useful and interesting graphics, reports, and fact sheets, as well as a glossary of terms and even a searchable document archive. A note on the webpage advises that the Commission will soon be adding to the page an interactive timeline, audio files, interview notes, as well as other materials gathered in the course of the investigation. The graphics library alone is well worth the time to visit the site.

　

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In recent days, I have published a series of posts with analysis of and commentary on recent trends in securities class action litigation. As part of this continuing series of posts, I thought it would be useful to include commentary from the plaintiffs’ perspective. With that in mind, I reached out to Max Berger at the Bernstein Litowitz Berger & Grossman firm, and Max graciously agreed to participate in an interview for this blog in the form of a Q&A exchange.

 

By way of background, Bernstein Litowitz is one of the country’s leading plaintiffs’ class action law firms. Max is a partner in the firm and is also head of the firm's litigation practice. He prosecutes class and individual actions on behalf of the firm’s clients. He and his firm have been involved in some of the highest profile securities class action lawsuits in recent years. Max has indicated with an asterisk in the text of his answers below some of the cases in which his firm has been involved. My questions to Max appear in italics, and his answers appear as indented text (Please note that Max's portion of the content also includes the indented text following his final answer.)

 

Q.: What do you think were the most important securities litigation trends or developments in 2010?

 

A.: There are several trends we have seen throughout 2010 that are really continuations of developments from prior years. Central among those, from our perspective representing institutional investors as plaintiffs in these cases, is that the challenges investors face in successfully prosecuting federal securities claims continue to grow. On virtually every element of our clients’ claims, including scienter, loss causation, class certification and standing, we have seen the hurdles increase as a result of court decisions adverse to investors. One notable exception is the statute of limitations, an issue where the Supreme Court provided a favorable ruling this year in Merck.* Of course, that ruling was influenced by the heightened requirements for pleading scienter in a securities fraud action that make it virtually impossible for an investor to assert a claim of fraud until there is clear evidence of fraudulent intent.

 

While the obstacles to bringing and prosecuting securities cases have dramatically increased, we have seen the scope of the wrongdoing become exponentially larger. Investors have obtained several large recoveries, even as restatements by public companies have declined. Subprime litigation – by which I refer to the full panoply of cases tied to high-risk lending, mortgage securitization and sales of mortgage-backed securities in the last five or six years – remains front and center. The scope and egregiousness of a number of those cases has prompted significant private institutions that have not previously engaged in securities litigation to file claims, and it will be interesting to see whether the involvement of such institutions in these types of cases is a trend that continues. The recent warnings from the FDIC about the financial condition of many midsized banks, coupled with the initiation of securities class actions against several regional banks at the end of 2010, suggests that investors have not yet learned the full truth about the reckless lending and loan management practices of the banks in which they have invested.

 

Finally, toward the end of 2010, we began to see a resurgence of merger and acquisition activity. For investors in public companies, that trend underscores a need to increase vigilance over the terms of these transactions to ensure that shareholders’ interests are being protected. Indeed, there has been an increase in transactional litigation, and we do expect that trend to increase along with the number of significant deals projected in 2011.

 

Q.: What impact do you think the Dodd-Frank whistleblower provisions will have on private securities litigation? Are there other aspects of the Dodd-Frank Act that you think will have an important impact on securities litigation?

 

A.: In our experience, the whistleblower provisions of Dodd-Frank have not yet had a significant impact on private litigation. As in cases outside the securities arena, there are very high hurdles faced by whistleblowers when they decide to take on a former employer. They risk becoming pariahs in self-protecting industries and often imperil their current employment and future employment prospects. Nonetheless, other significant recoveries that whistleblowers have helped obtain – such as in the recent GlaxoSmithKline case, in which a whistleblower who helped the government recover billions of dollars, stands to recover nearly $100 million for herself – may incentivize whistleblowers to take advantage of the protections afforded by Dodd-Frank. In light of the important role that whistleblowers can play in PSLRA litigation, where plaintiffs need to satisfy exacting pleading requirements without access to formal discovery, these provisions of Dodd-Frank certainly have the potential to be very significant if they lead to more witnesses coming forward and providing the kind of information that plaintiffs need to plead sustainable securities fraud claims.

 

The Dodd-Frank whistleblower provisions, of course, mark a return to the steps taken in the wake of the last round of major corporate scandals at the start of the last decade. Those cases led to Sarbanes-Oxley which included its own whistleblower provisions – provisions which, in our experience, did little to encourage whistleblowers to come forward or to discourage corporate misconduct. We hope that Dodd-Frank will prove more effective, though we are still awaiting significant clarification and rule-making on many of its central provisions.

 

Q.: I have heard you say that you think the settlement in the Pfizer derivative suit represents an important development and may serve as a model for future settlements in derivative cases. What is it about the settlement that you think is important?

 

A.: The resolution in Pfizer is unique in many respects. That case involved allegations of systemic and widespread violations of the drug marketing laws that were not being controlled by Pfizer’s board and senior executives, who also rewarded employees that engaged in these practices with bonuses and allowed retaliation against employees who were trying to stop them. These unlawful marketing activities were responsible for Pfizer paying the largest fine in United States history. Our derivative suit accused the board and officers of breaching their fiduciary duties to Pfizer shareholders. Our challenge was not to just return dollars to Pfizer from these individuals because it would have hardly affected their corporate behavior. We wanted to effect long-lasting institutional change at Pfizer to prevent this conduct from occurring in the future.

 

In crafting the settlement, our objective was to implement a true prophylactic protection for Pfizer shareholders going forward – something with teeth that would prevent the recurrence of conduct that, as we alleged, certain defendants engaged in repeatedly. We also wanted to provide a template for other companies engaged in similar behavior.

 

To achieve that result, we worked with a renowned corporate governance expert – Professor Jeffrey N. Gordon from Columbia Law School – to address our core allegations and concerns. 　The settlement requires the defendants to create a new regulatory board committee with a broad mandate to oversee Pfizer’s drug marketing practices for at least five years.　 Significantly, this committee will have the power to order its own studies and investigations, and can retain independent experts.　 To carry out this mandate, the new committee has access to its own funding – under the terms of the settlement, the defendants’ insurance carriers agreed to pay $75 million into a fund that will be exclusively used to pay for the committee’s work and attorneys’ fees awarded by the court.　 The agreement to provide that funding is one of the most remarkable aspects of this settlement, and it is one that we view as a critical element, if the committee is to be both independent and effective. The settlement also requires the board’s compensation committee to review Pfizer’s compensation policies for employees and consultants with the new regulatory committee to make sure those policies are consistent with compliance requirements, and to discuss possible clawbacks from employees who directly supervise illegal practices in the future.　 The settlement also requires the creation of an ombudsman program to give Pfizer employees a way to alert the company about potential illegal practices and improper pressure from supervisors without fear of retaliation. Incidentally, the fact that we included this ombudsman provision may say something about our view of the whistleblower protections provided by Dodd-Frank, discussed above. Finally, the Committee is to be chaired by an independent director and regular reports of the Committee’s work are required to be made to the full board and the shareholders. The Committee and its structure have been embraced by two former SEC Chairs, Harvey Pitt and Richard Breeden.

 

While Pfizer is not the first case in which the defendants agreed to implement corporate governance reforms as a component of a settlement, we feel that the mechanisms provided for in this settlement will make it the most effective reform of corporate governance achieved through shareholder derivative litigation, paralleling the reforms implemented at Texaco in the wake of the landmark employee discrimination action against that company.*

 

Q.: Many of the subprime and credit crisis-related securities cases are now working their way through the system. Some have been dismissed while others have survived the preliminary motions. Are there any generalizations that can be drawn from the rulings in these cases so far? Can you make any generalizations about the settlements so far in these cases?

 

A.: Our perspective is that, as the courts and the public have become more sophisticated about the subprime mortgage collapse and the ensuing financial crisis, there is increasing recognition of the fact that the bursting of the housing bubble and the economic meltdown were not the result of some unpredictable tsunami. Rather, many of the companies that have been the subject of securities actions contributed to the bubble and subsequent collapse. For example, Judge Buchwald’s recent decision sustaining fraud claims against Ambac and its officers described the defendants’ claims that they were simply the victims of the financial collapse—an argument that has been made repeatedly and which we have seen in a number of our cases—as being "premised on a convenient confusion of cause and effect." According to Judge Buchwald, in that case, if the plaintiffs’ allegations were true, "Ambac [was] an active participant in the collapse of their own business, and of the financial markets in general, rather than merely a passive victim."*

 

Similarly, while some observers responded to the collapse of Lehman Brothers as an unforeseeable result of a credit crisis driven by the housing market, the report of the bankruptcy examiner has made clear that Lehman and its auditor violated basic accounting rules to manipulate Lehman’s balance sheet.* In the subprime and related litigations where plaintiffs are able to marshal these kinds of facts demonstrating that the financial crisis, rather than some force of nature, was in many ways the result of widespread misconduct by corporations and individuals, courts are receptive to investors’ claims that are based on that misconduct. Accordingly, we are seeing fewer dismissals in what we consider to be meritorious cases as well as larger recoveries in many of these cases. The fact that Bank of America agreed to pay almost $3 billion to Fannie Mae and Freddie Mac is a good recent example. Even though some have questioned the amount of that settlement, it does show that these claims have teeth.

 

The only generalization one can really make about the subprime and credit-crisis related securities actions is that they are no different from other securities actions: generally, we are seeing cases dismissed where the plaintiffs cannot muster the evidence required to meet the heightened requirements of pleading scienter or where loss causation cannot be established, while most well-pleaded cases are moving forward and often resulting in significant recoveries as in New Century* (particularly given that, like New Century, many of the issuers at the heart of the subprime fiasco are now bankrupt). That said, as with other securities litigation, we have seen some dismissals of cases that we consider meritorious, but those situations do not appear unique to the subprime arena.

　

Q.: What impact has the U.S. Supreme Court’s opinion in Morrison v. National Australia Bank had on securities litigation? How has it changed your firm’s approach to cases involving foreign domiciled companies? Is your firm considering alternative approaches on behalf of foreign claimants, such as pursuing claims in courts outside the U.S.?

 

A.: There is no question that Morrison has had, and will continue to have, a significant impact on investors and on the function of the capital markets more broadly. Through that decision, the Supreme Court has largely denied investors—including U.S. investors who purchase securities abroad—the protections of the federal securities laws, regardless of the extent to which foreign companies engaged in misconduct within the United States. There are a number of what we consider to be very significant cases, where the claims of fraud have real merit, in which U.S. investors may be left with no practical recourse. We will need to see how investors, plaintiffs’ counsel and the courts respond in the coming years, and whether Congress, in turn, takes steps to correct this narrowing of the federal securities laws.

 

Many of the institutions we represent are considering different avenues to protect themselves. In the Toyota securities litigation,* for example, the Maryland State Retirement and Pension System as Lead Plaintiff has asserted claims under Japanese law on behalf of investors who purchased Toyota shares on the Tokyo exchange, in addition to the Exchange Act claims asserted on behalf of purchasers of Toyota securities on the New York exchange. It is also possible that Morrison will lead to an increase in foreign litigation, as well as individual domestic actions brought under state law, which was not impacted by the Supreme Court’s ruling in Morrison. The recent Fortis filing in the Netherlands certainly indicates that U.S. and foreign investors are open to considering litigation outside of the U.S., but whether investors will find the same protections in foreign litigation that they have found here remains to be seen. Many significant cases that are subject to Morrison are still working their way through the District Courts and we will see what other strategies investors pursue in response to Morrison as those courts, and the appellate courts, render guidance interpreting the Supreme Court’s decision.

 

Q.: If you were a D&O underwriter, what would you be interested in knowing about a company that you were underwriting? What do you think the most important risk indicators would be?

 

A.: My focus would be on the company’s leadership and the corporate governance structure that is in place. Are the directors independent and are critical board committees comprised of independent directors? Most importantly, are a majority of the directors on the compensation, compliance and audit committees independent? It is critical that directors have relevant industry experience. While service on other corporate boards may bring relevant experience, I would also be wary of directors who are concurrently serving on multiple boards. Finally, with regard to management, I would examine the compensation structure. Is executive compensation tied to performance? If so, are the metrics being used objective or subject to manipulation? And significantly, are executives being rewarded for achieving long-term objectives rather than short-term goals? As we have seen repeatedly, incentivizing executives to achieve near-term benchmarks for growth or performance can create a motivation to manipulate results to achieve compensation goals, whereas long-term incentives can bring the interests of management in line with the objectives of the company’s shareholders.

 

Q.: There have been a lot of changes in the environment surrounding securities litigation in recent years, all the way from important court decisions to changes in the plaintiffs’ bar. What do you think the most important changes have been and why?

 

A.: The principal changes we have seen over the past 15 years have been the legislative and judicial actions to raise imposing hurdles to prosecuting securities cases, particularly as class actions. Those hurdles have dramatically raised the bar for effective prosecution and private enforcement. As a result, these cases have become much more expensive and problematic. I am not the first to observe that in many securities cases, the evidence that must be marshaled in order to survive a motion to dismiss is more than what you would need to get some other cases past summary judgment, and that requires a significant investment of time and resources in cases that may not be sustained. This, in turn, has resulted in a culling of the herd of law firms prosecuting these cases. In many ways, I feel we have also seen the plaintiffs’ bar rise to meet these challenges and the level of practice among the plaintiffs’ firms is far more sophisticated than it was before the PSLRA. Frankly, firms unable to rise to meet these challenges cannot succeed under the regime that has been implemented since 1995.

 

Whether as a result of that increased sophistication, the heightened hurdles to advancing beyond the pleading stage, the nature and scope of the cases we are seeing or some combination of those elements, we are certainly seeing higher recoveries in the cases that are being prosecuted. And not only higher absolute recoveries, but a better percentage of investor losses being recovered in the cases that we consider meritorious. In WorldCom, for example, bond purchasers received $0.65 on the dollar; in Cendant, the recovery was $0.60 on the dollar; in Refco, about $0.50 on the dollar.*

 

Finally, private enforcement of the securities laws is now more important than ever because regulatory recoveries have been wholly inadequate to compensate investors victimized by fraud.

 

Q.: What do you think are the most important trends or developments to watch as we head into 2011?

 

In the coming year, the U.S. Supreme Court—which has in the recent past exhibited an unusual interest in securities fraud actions—will be considering several cases that have the potential to reshape a significant area of our practice. Several commentators have noted that business interests have found a receptive ear on the Roberts’ Court, and have been quite assertive in gaining that audience. Two cases the Court recently agreed to hear regarding the standards for class certification under Rule 23 of the Federal Rules of Civil Procedure—Wal-Mart v. Dukes, which examines the standards for class certification in an employment discrimination action, and Erica P. John Fund v. Halliburton, whichlooks at whether and to what extent investors will be required to demonstrate loss causation at the class certification stage—exemplify such an effort. I believe the decisions in these cases have the potential to profoundly impact the ability of not only investors—but also workers, consumers, patients and employees—to hold corporate wrongdoers accountable in court.

 

The Supreme Court also recently heard arguments addressing the appropriate standards for measuring materiality of information that executives are required to disclose to investors in Matrixx Initiatives v. Siracusano—a question that has ramifications not only for the pharmaceutical and biotechnology industries, which have been the subject of a number of significant decisions in recent years, but potentially for virtually every securities fraud action. The court is also considering another case in which the liability of "behind-the-scenes" defendants—by which I mean third parties that are alleged to have a role in carrying out a fraud, even though the allegedly false and misleading statements cannot be readily attributed to them. Specifically, in Janus Capital Group v. First Derivative Traders,the Court is consideringwhether claims under Section 10(b) can be asserted against a subsidiary mutual fund advisor entity that is alleged to have orchestrated the fraud, even though its parent mutual fund actually made the false and misleading statements. While I believe the circumstances of this case may be unique to the mutual fund industry, the Court certainly has the opportunity to set forth a broad rule of law even if it could narrowly decide the question under the specific facts before it.

 

Another important development for investors to focus on during the coming year will be the ongoing implementation of the Dodd-Frank financial reform legislation. In one recent report, Securities and Exchange Commission officials complained that the agency lacked the proper funding to undertake the significant new responsibilities it was assigned under Dodd-Frank, and had in fact shifted resources used to fund ordinary expenditures—such as the hiring of expert witnesses—to other programs in order to meet its new obligations under the legislation. The perception of how successful the SEC is in fulfilling its mission under Dodd-Frank will likely impact how Congress and the courts view the role of private enforcement of the securities laws, as well as the extent to which investors have been given the proper legal tools to hold wrongdoers accountable.

　***********

Finally, in all honesty, anyone interested in securities litigation trends and developments should read your blog, which is always objective, incisive and very intelligently written. Congratulations, Kevin, and thank you for keeping us all so well informed!

　_________________

*In the interests of full disclosure, I note that Bernstein Litowitz Berger & Grossmann LLP serves or has served as lead or co-lead counsel in a number of the above-referenced cases, including Merck, Pfizer, Texaco, Ambac, Lehman Brothers, New Century, Toyota, WorldCom, Cendant and Refco.

 

Many thanks to Max for his willingness to participate in this exchange.

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In a gigantic 398-page opinion dated January 19, 2011, Southern District of New York Judge Robert Sweet has denied the defendants’ motion to dismiss in the securities class action lawsuit filed in connection with the collapse of Bear Stearns. He did however grant defendants’ motions to dismiss the related shareholders’ derivative lawsuit and ERISA class action lawsuits. A copy of Judge Sweet’s January 19 opinion can be found here.

 

Background

 

As detailed here and here, investors first filed a securities class action lawsuit against Bear Stearns and certain of its directors and officers in March 2008 in the wake of the company’s collapse and sale to JP Morgan. As amended the plaintiffs’ complaint also names the company’s outside auditor, Deloitte & Touche, LLP, as a defendant.

 

 

In their massive consolidated amended complaint (here) , the securities class action plaintiffs allege that in a series of statements during the class period, the defendants made material misrepresentations or omissions with regard to the company’s exposure to subprime mortgages; with respect to the performance of and valuations in connectionwith one of its hedge funds; with respect to the company’s liquidity; with respect to the company’s risk management and valuation practices. The company is alleged to have inflated its reported financial results and financial condition, among other things due to use of inappropriate models to value the company’s subprime-mortgage related assets. Deloitte is alleged to have knowingly and recklessly offered materially misleading opinions about the company’s accuracy.

 

 

A separate shareholders’ derivative action was also filed, as was an ERISA class action lawsuit, which were consolidated with the securities class action lawsuit. The defendants in the various actions moved to dismiss.

 

 

The January 19 Opinion

 

In a detailed analysis dozens of pages in length, Judge Sweet rejected the defendants’ contention that the plaintiffs’ allegations of materially misleading statements were insufficient.

Judge Sweet also held that the plaintiffs adequately pled scienter. While he concluded that the individual defendants’ trading in their shares of company stock were not sufficient to establish motive and opportunity to violate the securities laws, he nevertheless found that plaintiffs allegations were sufficient to establish a strong inference of conscious misbehavior and recklessness. 

 

 

In concluding that the plaintiffs had adequately alleged scienter, Judge Sweet noted, among other things, that

 

 

the Securities Complaint has alleged that the Bear Stearns Defendants willfully or recklessly disregarded warnings from the SEC regarding Bear Stearns’ risk and valuation models which allegedly were designed to give falsely optimistic accounts of the Company’s risk and finances during the Class Period. The Securities Complaint also alleges that the Bear Stearns Defendants improperly delaying taking the hedge fund collateral, thus intentionally or recklessly avoiding the revelation of losses and the consequent negative effect. These allegations are sufficient to create a strong inference of scienter.

 

 

Judge Sweet expressly rejected the defendants’ allegation that the plaintiffs’ allegations represented mere fraud-by-hindsight, noting that “the adverse consequences of Bear Stearns’ disclosures relating to its exposure to declines in the housing market, and the adverse impact of those circumstances on the Company’s business going forward, are alleged to have been entirely foreseeable to Defendants at all relevant times.”

 

 

In rejecting the fraud-by-hindsight contention, Judge Sweet also cited with approval from the February 2010 dismissal motion ruling in the Ambac subprime securities lawsuit, in which Judge Naomi Reice Buchwald had noted that the conduct alleged, if true “make the defendants an active participant in the collapse of their own business, and of the financial markets in general, rather than a mere passive victim.” Judge Sweet added that “the same logic applies here, where Defendants’ alleged misconduct was integral to the decline of Bear Stearns, and the financial markets with it.”

 

 

Judge Sweet also held that the plaintiffs had adequately alleged loss causation, stating that:

 

 

The Company’s failure to maintain effective internal controls, its substantially lax risk management standards, and its failure to report is 2006-2007 financial statements in accordance with GAAP not only were material. but also triggered foreseeable and grave consequences for the Company. The financial reporting that was presented in violation of GAAP conveyed the impression that the Company was more profitable, better capitalized, and would have better access to liquidity than was actually the case. The price of Bear Stearns’ securities during the Class Period was affected by those omissions and allegedly false statements and was inflated artificially as a result thereof. Thus, the precipitous declines in value of the securities purchased by the Class were a direct, foreseeable, and proximate result of the corrective disclosures of the truth with respect to Defendants’ allegedly false and misleading statements.

 

 

Judge Sweet also rejected Deloitte’s motion to dismiss, holding that the securities complaint adequately alleged the firm’s recklessness, “if not actual knowledge, based on its awareness of red flags and its duty to investigate.” Judge Sweet held that the plaintiffs had adequately alleged scienter as to Deloitte, observing that “the facts underlying the alleged accounting violations with respect to the valuation models and fair value measurements, the hedge funds and the inference from the events of the collapse establish the failure to consider the red flags and constitute adequate allegation of reckless disregard sufficient to establish scienter.”

 

 

While Judge Sweet entirely denied the securities class action defendants’ motion to dismiss, he granted the defendants’ motions to dismiss the consolidated shareholders’ derivative suit. The derivative suit was essentially a “double derivative” suit brought on behalf of shareholders of JP Morgan, alleging misconduct on the part of various Bear Stearns defendants. Judge Sweet agreed with the defendants’ contention that the plaintiff lacked standing to assert the double derivative allegations because the plaintiff no longer holds Bear Stearns shares and does not sufficiently allege harm to JP Morgan. Judge Sweet also found that the plaintiff had not adequately alleged demand futility. He also concluded that certain of the plaintiff’s claims were barred by the doctrines of res judicata and collateral estoppel.

 

 

Finally, Judge Sweet granted the motion to dismiss the ERISA class action complaint, holding that the plaintiffs’ allegations were not sufficient to overcome the applicable presumption of prudence and failed to establish improper conflicts of interest.

 

 

Discussion

 

In a recent post I noted that whatever may be the overall track record for plaintiffs in the securities lawsuits arising out of the subprime meltdown and credit crisis, the plaintiffs are showing a consistent record of success in this highest profile cases. The Bear Stearns case my be one of the highest profile cases of all, because, as Judge Sweet noted at the outset of his opinion, the Bear Stearns collapse “was an early and major event in the turmoil that has affected the financial markets and the national and world economies.”

 

 

Not only is the outcome of the dismissal motions in the Bear Stearns case entirely consistent with the prior outcomes in other high profile cases, but Judge Sweet’s rulings were made in reliance on the opinions in many of those other cases, including in particular AIG (refer here) and Fannie Mae (refer here).

 

 

One prior ruling on which Judge Sweet particularly relied is Judge Naomi Reice Buchwald’s dismissal motion denial in the Ambac Financial case, about which I previously commented here. I noted the significance at the time of Judge Buchwald’s holding that the general financial collapse is no defense to securities fraud if the defendants allegedly caused their own and the financial system’s collapse. I continue to believe this analysis may be influential in other pending cases, as it was here in the Bear Stearns case.

 

In any event, the Bear Stearns case joins the growing list of high-profile subprime meltdown and credit crisis cases in which the dismissal motions have been denied, including Citigroup (refer here), AIG (here), Countrywide (here), Fannie Mae (here), Washington Mutual (here), New Century Financial (here), Sallie Mae (here) and Bank of America (here).

 

It is entirely possible that JP Morgan anticipated the possibiltiy of this development at the time it acquired Bear Stearns; according to press reports at the time, in connection with the acquisition, JP Morgan set aside $6 billion to cover anticipated litigation costs (among other things). 

 

I have in any event added the Bear Stearns decision to my running tally of subprime and credit crisis-related lawsuit dismissal motion rulings, which can be accessed here. (Note that I have separately tallied Judge Sweet’s rulings on the securities class action, derivative and ERISA lawsuits.)

 

 

David Bario’s January 24, 2011 Am Law Litigation Daily article about the Bear Stearns opinion can be found here.

 

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As a result of the First Circuit’s January 20, 2011 opinion, the plaintiffs in the Nomura Asset Acceptance Corporation mortgage-backed securities lawsuit have managed to revive a slender portion of their case, albeit on a rather precarious basis. The First Circuit otherwise affirmed the lower court’s dismissal of the remainder of their case.

 

The First Circuit’s opinion could be influential in other mortgage-backed securities suits, particularly on questions surrounding the standing of claimants to assert claims based on offerings in which they did not purchase securities.

 

The First Circuit’s January 20 opinion can be found here.

 

Background

As discussed here, purchasers of mortgage pass-through certificates filed this action in March 2008 against Nomura Asset Acceptance Corporation, certain of its directors and officers, the eight mortgage trusts that had issued the certificates, and the offering underwriters who had supported the 2005 and 2006 public offerings of the certificates.

 

On September 30, 2009, District of Massachusetts Judge Richard G.Stearns granted the defendants’ motions to dismiss, as discussed here. Judge Stearns held that the plaintiffs lacked standing to assert claims in connection with the six out of the eight offerings in which the named plaintiffs had not purchased certificates. Judge Stearns found that the plaintiffs had not adequately pled claims with respect to the two remaining offerings.

　

With respect to the plaintiffs’ allegations concerning the mortgage originators’ underwriting standards, Judge Stearns found that the offering documents contain a "fusillade of cautionary statements" that "abound with warnings about the potential perils." Judge Stearns noted that plaintiffs’ contention that they were not "on notice" of those perils "begs credulity."

 

The plaintiffs appealed.

 

The January 20 Opinion

In a January 20 opinion written by Judge Michael Boudin for a three judge panel, the First Circuit affirmed Judge Stearns’ dismissal except with respect to the plaintiffs’ allegations concerning the mortgage originators’ underwriting practices.

 

With respect to the standing issue, the plaintiffs had argued that the class action vehicle affords a proper basis for representative plaintiffs to assert claims for a broad class of claimants, and that the eight mortgage-backed offerings were sufficiently linked by the common shelf registrations statement on which the certificate issuer relied.

　

In rejecting these assertions and concluding that the named plaintiffs lacked standing in the six offerings in which they themselves had not purchased securities, the First Circuit stated:

 

In our case, as in others involving mortgage-backed securities, the necessary identify of issues and alignment of incentives is not present so far as the claims involve sales of certificates in the six trusts. Each trust is backed by loans from a different mix of banks; no named plaintiff has a significant interest in establishing wrongdoing by the particular group of banks that financed a trsut from which the named plaintiffs made no purchases. Thus, the claims related to the six trusts from which the named plaintiffs never purchased securities were properly dismissed, as were the six trusts and defendants connected to nly those six trusts.

 

The First Circuit also noted that "the named plaintiffs have no stake in establishing liability as to misconduct involving the sales of those certificates."

 

The First Circuit then turned to the sufficiency of plaintiffs’ allegations of securities law violations. The First Circuit had little trouble affirming the district court’s dismissal with respect to the plaintiffs’ allegations concerning mortgage appraiser practices and concerning the offering documents statement of the rating agencies ratings.

 

However, the First Circuit reached a different conclusion with respect to the plaintiffs allegations that, contrary to representations in the offering documents, the originators of the mortgages underlying the certificates "routinely violated" lending guidelines and instead simply approved as many loans as possible.

 

The First Circuit acknowledged the district court’s conclusion that the offering documents contained warnings about the mortgage originators’ practices, but disagreed with the district court’s conclusion that these warnings precluded a possible finding of liability. (The First Circuit omitted to mention that the district court had found that the offering documents contain a "fusillade of cautionary statements" and that it "begs credulity" that the plaintiffs were not put on notice of these concerns.)

 

The First Circuit, by contrast to the district court found that "plaintiffs’ allegations of wholesale abandonment may not be proved, but – if accepted at this stage – it is enough to defeat dismissal." The First Circuit found that "the specific allegations" as to the mortgage originator’s practices "offer enough basis to warrant some initial discovery aimed at these precise allegations."

 

Having granted the plaintiffs a revival of at least one category of their claims, the First Circuit made it clear that the revived claims may have only a precarious lease on life. The First Circuit added with respect to these claims that the district court is "free to limit discovery stringently and to revisit the adequacy of the allegations thereafter and even before possible motions summary judgment."

　

Discussion

A recurring question in many of these mortgage-backed securities suits had been the question whether or not a named plaintiff that bought securities in one offering initiated pursuant to a shelf registration statement can assert claims based on other offering based on the same shelf registration, even if the named plaintiffs bought no securities in the other offerings.

 

In general, the district courts have been holding that the plaintiffs lack standing at least as to the offerings in which they did not purchase securities, but the question has continued to arise.

 

As the first Court of Appeals ruling on this question as part of the current wave of subprime-related litigation, the First Circuit’s conclusion on the standing issues is likely to be highly influential even outside of the First Circuit, and indeed could just about put an end to the issue.

 

The First Circuit’s reversal with respect to the plaintiffs’ allegations concerning the mortgage originators’ underwriting practices is interesting, if for no reason than the rather stark difference in perceptions of the plaintiffs’ allegations at the district court level and at the appellate court level. Whereas, the district court found that the suggestion that investors were not put on notice of the alleged practices "begs credulity," the appellate court, while providing relatively little explanation for its different conclusion, found that the allegations at least merited some discovery.

 

Perhaps the one way that the First Circuit’s differing conclusion may be understood is by reference to many other district court opinions in mortgage-backed securities cases in which the courts have concluded that allegations that the mortgage originators "systematically disregarded" stated underwriting guidelines are sufficient to state a claim. The First Circuit did not refer to these other court’s conclusion, but its holding shares a common thread with these other courts’ decisions.

 

And so the plaintiffs in this case have (just) managed to live for another day – at least as to two of the eight offerings, and at least one of the three categories of alleged misrepresentations. Whether this new lease on life in the end will be sufficient for the plaintiffs remains to be seen. The First Circuit issued an engraved invitation for the district court on remand to afford the plaintiffs only the most circumscribed discovery and also to revisit the adequacy of the plaintiffs’ claims – "even before summary judgment," whatever that may have been meant to suggest.

 

I have in any event modified my running tally of the subprime and credit crisis lawsuit dismissal motions to reflect the First Circuit’s limited reversal of the district court’s dismissal in this case. The dismissal motion register can be accessed here.

 

The First Circuit’s reversal, however limited, does at least serves as a reminder that it may be dangerous to jump to too many conclusions about how plaintiffs are faring in the subprime and credit crisis related cases. There are still many more cases to be heard, and, as this case shows, there is always the possibility that further proceedings may alter or even undo prior results.

 

It is probably worth noting that the First Circuit’s opinion in the Nomura case represents the forth appellate ruling so far as part of the litigation wave arising out of the subprime meltdown and credit crisis-related litigation wave. As discussed in my recent status update on the credit crisis litigation, appellate courts have affirmed the dismissals of at least three subprime securities suits: NovaStar Financial (here), Centerline (here) and Impac Mortgage (here). The Nomura case represents the first appellate decision that did not result in a complete affirmance of the lower court’s ruling of dismissal.

 

Special thanks to a loyal reader for providing me with a copy of the First Circuit’s opinion in the Nomura case.

 

Law Firm Memo Round-Up: From this week’s mailbag, here is a brief register of several law firm memos. First, a January 11, 2011 memo from the Vinson & Elkins law firm presents a brief update of the current state of play regarding ERISA stock drop cases. Second, the 2011 Edition of "Corporate Governance and Securities law: A Public Company Handbook" from the Curtis, Mallet-Prevost, Colt & Mosle law firm can be found here. Finally, the Shearman & Sterling law firm’s January 2011 memo entitled "FCPA Digest: Recent Trends and Patterns in the Enforcement of the Foreign Corrupt Practices Act" can be found here.

 

As Israel is to Louisiana, Nigeria is to Alabama: And Yemen is to Vermont, at least according to an absolutely fascinating map published this past week in The Economist magazine that matches each U.S. state with a country whose GDP most closely resembles that particular state’s GDP. Ohio’s economy is comparable, for example to Belgium’s, while New York’s is equivalent to that of Australia, and Virginia’s is comparable to Poland. Even the District of Columbia is the equivalent of Kuwait.

 

The comparisons are interesting, but the larger message is that every single U.S. state has an economy as big as that of some countries, so collectively the United States economy is huge.

.

The map also affords interesting comparisons by population.. If you click on the blue "Population" box, the map displays the country whose population size is equivalent to each state – Oklahoma is comparable to Congo-Brazzaville, Virginia is equivalent to Burundi, Idaho is equivalent to Guinea-Bissau, Wyoming is equivalent to the Solomon Islands, Colorado is equivalent to Eritrea, and so on.Absolutely fascinating.

　

A Moviegoer’s Comment: This past Saturday night after a viewing of the film "The King’s Speech," the audience in the east side Cleveland movie theater where my wife and I were watching the film broke into applause. Now, I enjoyed the film and I appreciated the actors’ fine performances. But exactly to whom or to what was the audience showing its appreciation? Am I the only one that finds applauding for a movie a little odd?

 

Admittedly, it is unusual for me to have seen this movie, or any movie, in a theater. Our viewing of "The King’s Speech" marked the first time that my wife and I had gone to the movies, just the two of us, since we saw "The Madness of King George" about sixteen years ago. Without intending, we seem to have limited our range of moviegoing exclusively to films portraying British monarchs named George that have disabilities constraining their abilities to fulfill their kingly duties. This is, shall we say, a rather limited genre. .

 

I don’t know if there is such an Oscar, but if there were an award for best adaptation of classical music for dramatic effect, "The King’s Speech" would be a clear winner. The film’s use of the first portion of the Second Movement from Beethoven’s Seventh Symphony during the dramatic moment that Colin Firth as King George VI finally delivered his "speech" was brilliant. The movie ends with an excerpt from Beethoven’s Emperor Concerto, which is a nice touch, as well.

 

In appreciation for the movie’s use of music, here is video with an interesting graphic depiction of the Second Movement from Beethoven’s 7^th.　

　

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In a January 12, 2010 opinion (here) in a subprime-related securities suit involving Goldman Sachs-issued mortgage pass-through certificates, Southern District of New York Judge Harold Baer, Jr. granted the rating agency defendants’ motion to dismiss on the grounds that they are not "underwriters" under Section 11, but denied the Goldman Sachs defendants’ motion to dismiss, at least as to the securities offerings in which the plaintiffs had actually purchased shares.

 

Although Judge Baer’s closely follows other decisions in similar cases, it also diverges from other recent decisions in certain respects, including a recent decision in a separate case in the same courthouse involving other Goldman Sachs-issued mortgage pass through certificates.

 

Background

Goldman Sachs and related entities sold over $2.6 billion in mortgage pass-through certificates in three offerings from three issuing trusts between February 2, 2006 and March 28, 2006. The credit rating agencies assigned AAA ratings or their equivalent to the certificates. The named plaintiff in the case purchased securities in only one of the three trusts.

 

The plaintiffs filed their initial securities class action complaint February 6, 2009. The plaintiffs alleged that the originators of the mortgages underlying the certificates had "systematically disregarded" their own underwriting standards in originating the mortgages, contrary to the representations about the originators’ underwriting practices in the offering documents.

 

The defendants moved to dismiss.

 

The January 12 Opinion

The plaintiffs had named the credit rating agency as defendants and sought to hold them liable on the theory that, as a result of the involvement in structuring the securities, the credit rating agencies had acted as "underwriters" within the meaning of Section 11 of the Securities Act of 1933.

 

In rejecting this theory, Judge Baer observed that:

 

While the Rating Agency Defendants may have played a significant role in the ability of other defendants to market the securities at issue, and if we were writing on a clean slate, their liability might be presumed, the fact is we are not writing on a clean slate and, for the moment at least, the law insulates them from exposure under section 11 and they must be dismissed.

 

Judge Baer similarly had little trouble granting the defendants’ motions to dismiss the plaintiffs’ claims as to the two of the three securities offerings in which the plaintiffs had not purchased any securities. Referring to many other cases in which plaintiffs were held to lack standing under similar securities, Judge Baer said "I concur with these well reasoned and common-sense opinions that Plaintiff needs to show an injury connected with the offerings it challenges as misleading, and therefore Plaintiff’s claims with regard to Certificates they did not purchase …are dismissed for lack of standing."

 

However, Judge Baer rejected the Goldman defendants’ bid to have the plaintiffs’ remaining claims dismissed.

 

First, Judge Baer rejected the defendants’ bid to have the claims dismissed on statute of limitations ground. Specifically, he rejected that defendants’ contention that the plaintiffs had been put on ""inquiry notice" of possible misrepresentations more than a year before the plaintiffs filed their suit.

 

Judge Baer found that neither the December 2007 ratings downgrade of the securities nor generalized press coverage about problems with loan originators’ underwriting practices were sufficient to put the plaintiffs on inquiry notice, because this information did not "directly relate" to the misrepresentations that the plaintiffs alleged in this lawsuit.

 

Second, Judge Baer rejected the defendants’ argument that the plaintiffs had not suffered any cognizable loss, noting that "here, plaintiff alleges that it purchased the Certificates at par value of $99.99 and later sold the Certificates, before it filed this action, at a par value of $16.15. Section 11 does not require Plaintiff to allege more."

 

Finally, Judge Baer rejected the defendants’ argument that the plaintiffs had not alleged any action misrepresentation, noting that the plaintiffs had alleged that the mortgage originators "systematically disregarded" their supposed underwriting standards, and therefore the offering documents "did not put investors on notice as to the underwriting practices that the loan originators were using, and therefore obscured the actual level of risk faced by investors who purchased the Certificates."

 

Discussion

Several aspects of Judge Baer’s opinion closely track other rulings in similar cases. For example, his ruling that the rating agencies are not "underwriters" within the meaning of Section 11 follows a growing line of decisions reaching the same conclusion, including Judge Kaplan’s ruling in the Lehman Brothers case (about which refer here).

 

Similarly, his ruling that the plaintiff lacked standing to assert claims based on offerings in which it had not purchased shares is consistent with rulings in many other subprime-related cases, in which the plaintiffs in those cases were similarly found to lack standing to assert claims based on shares they had not purchased (about which, refer for example, here).

 

In addition, his ruling that the plaintiffs had alleged actionable misrepresentations based on the mortgage originators’ alleged "systematic disregard" of their underwriting practices is consistent with rulings in other mortgage-backed securities lawsuits in which plaintiffs were found to have adequately asserted claims of misrepresentation based on similar allegations that the mortgage originators had "systematically disregarded" the stated underwriting standards (about which refer here).

 

However, Judge Baer’s decision arguably diverges from other recent rulings, including even one recent ruling in a case involving similar Goldman-Sachs issued mortgage pass-through certificates.

 

Thus, an October 14, 2010 ruling in a case involving Goldman Sachs mortgage pass through certificates issued in 2007 (in offerings subsequent to the offerings at issue in the case before Judge Baer), by Southern District of New York Judge Miriam Cedarbaum held that the plaintiffs in that case had failed to allege "cognizable injury" under Section 11, by contrast to Judge Baer’s ruling that the plaintiffs in this case had adequately alleged cognizable injury.

 

The difference in the two rulings may be understood by an important difference between the two plaintiffs’ circumstances. In Judge Baer’s case, the named plaintiffs had actually sold the securities at issue at a steep loss. By contrast, Judge Cedarbaum found in that the plaintiffs in the case before her could only assert that they would lose money in a hypothetical sale of their securities. She found that it was not sufficient for the plaintiffs’ to allege injury based on an alleged hypothetical price on the secondary market at the time of the suit, without alleging that a secondary market actually exists. She found that the plaintiffs had failed to allege any facts regarding the actual market price.

 

There is a certain ironic tension between the two lawsuits, as the sale alleged in the lawsuit before Judge Baer showed what Judge Cederbaum had said the plaintiffs’ allegations in her case lacked – clearly, the sale in the case before Judge Baer showed there was some form of a functioning market for securities of this type, and that securities in that market were trading at a steep discount.

 

Judge Baer’s statute of limitations ruling also diverges somewhat from Judge Paul Crotty’s ruling just a few days ago in the subprime-related securities suit involving Barclays (about which refer here). In the Barclays case, Judge Crotty granted the defendants’ motion to dismiss on statute of limitations grounds based on his conclusion, contrary to Judge Baer’s ruling in this case, that the plaintiffs had been put on inquiry notice.

 

The difference in outcome between the two rulings may be understood by the specific event that Judge Crotty found to have put the plaintiffs in that case on inquiry notice, which was a Trading Update that Barclays itself had issued and that he found to have contained revelations about the very circumstances on which the plaintiffs were basing their allegations in that case. By contrast, in the case before Judge Baer, the communications on which the defendants sought to rely to show that the plaintiffs were on inquiry notice were not issued by Goldman Sachs and did not, according to Judge Baer, "relate directly" to the alleged misrepresentations.

 

While Judge Baer’s various rulings in this case substantially narrowed the plaintiffs’ claims, the plaintiffs’ ’33 Act allegations against the Goldman defendants survived, at least as to the securities in which the plaintiffs had invested, which stands in significant contrast to the claims of the plaintiffs in the other Goldman-related case before Judge Cedarbaum and to the claims of the plaintiffs in the Barclays case.

 

I have in any event added Judge Baer’s ruling to my running tally of subprime-related securities lawsuit dismissal motions rulings, which can be accessed here.

 

Alison Frankel’s January 14, 2011 Am Law Litigation Daily article about Judge Baer’s ruling can be found here.

 

Interview with Bill Lerach: If you have not yet seen Nathan Koppel’s January 14, 2011 interview of Bill Lerach on the WSJ.com Law Blog, you will definitely want to take a few minutes to read the item, which can be found here. Lerach has a number of interesting observations about his time in prison and in a half way house, as well as about his present circumstances.

 

My review of the recent biography of Lerach can be found here. Lerach also recently wrote a guest post on this blog, which can be found here.

 

A Contrary California Opinion on the Triggers of Excess Coverage: In an number of recent rulings, including a California case involving Qualcomm, several courts have held that the payment obligations of excess D&O insurers are not triggered if the underlying insurance is not exhausted by payment of loss, even if the policyholder funded the gap out of its own resources.

 

However, as discussed in a January 14, 2011 memorandum from the Wiley Rein law firm (here), the California Court of Appeal, declining to follow the Qualcomm decision , held that an excess insurer's coverage obligation was triggered even though the underlying insurers had settled for less than their policy limits.　The outcome of the case turns in large part on the nature of the settlement of the underlying claim and rather arcane distinctions between "horizontal exhaustion" and "vertical exhaustion." The Wiley Rein memo does an admirable job explaining relevant circumstances and the sense of the court’s analysis.

 

A Few Words of Support for Those Struggling With New Year’s Resolutions: The January 15, 2011 Wall Street Journal had a somewhat snarky front-page article about how health clubs are jammed up with "pudgy" newcomers trying to keep up with their New Year’s resolutions, making life unpleasant for the regulars.

 

I have observed this same phenomenon in many gyms and health clubs in many different parts of the country over the years, including also the club to which I currently belong. There is no doubt that for the first few weeks of January every year, health clubs are notably more crowded and notably less pleasant, and problems do arise when newcomers violate unwritten rules of protocol.

 

However, I think the Wall Street Journal article is both unfair to the newcomers and omits the one critical piece of information that every newcomer needs to know.

 

The unfairness comes from the fact that the newcomers just want to get into shape and it is not their fault that out of simple unfamiliarity they don’t know the unwritten rules. The whole reason they are there is that they want to do something about the fact that they haven’t been spending enough time in the gym. If they have paid their fees, they are every bit as much entitled to the precious gym space as the regulars are. I have always found that a bit of patience and a friendly word of encouragement takes care of most situations arising from newcomers’ unfamiliarity with the expectations of other users.

 

The one critical piece of information the newcomers need to know is that the New Year’s crush only lasts a few days. By Martin Luther King Day, most of the hubbub has died down, and by February 1, everything is back to normal. The sad part is that the reason everything is back to normal is that almost all of the newcomers have become discouraged and deterred from coming back..

 

If I had one word of advice for the newcomers, it would be to postpone their New Year’s fitness resolve until February 1. Then the newcomers will find the gym a much more relaxed and less crowded place, and the newcomers might not be as discouraged and might even have a better shot of sticking with their resolution.

 

If you are one of the many who decided this New Year’s to try to get back into shape, please just stick with it for a few more days – within a week or two, the gym will not be nearly as crowded, and you will find it much more pleasant to complete your work out. The first two weeks of the year is the worst possible period to be trying to start a new fitness regime. For the remaining 50 weeks of the year, it will not be as challenging to fulfill your resolution. So hang in there.

 

Year End 2010 Securities Litigation Overview: On Friday January 21, 2011, at 11:00 am EST, I will be participating in a free webinar on the topic "Year End 2010 Securities Litigation Overview," sponsored by the insurance information firm, Advisen. Other panelists participating in the webinar include David Bradford of Advisen, Kevin Mattesich of the Kaufman Dolowich law firm, as well as an insurance company underwriter and a member of the plaintiffs’ bar. Further information about the webinar, including registration instructions, can be found here.
 

　

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In a January 11, 2011 ruling that for the first time extends the U.S. Supreme Court’s decision in Morrison v. National Australia Bank to claims under the Securities Act of 1933, and that for the first time rejects the "U.S. listing" theory by which plaintiffs in many cases had hoped to contain Morrison, Southern District of New York Judge Deborah Batts granted defendants’ motions to dismiss in the RBS subprime-related securities class action lawsuit. A copy of the opinion can be found here.

 

The ruling does not relate to the claims of investors who had purchased RBS preferred shares, which claims will proceed.

　

Background

The near failure and British government bailout of RBS was one of the highest profile features of the global financial crisis. RBS’s collapse follow a series of massive asset write-downs that occurred at RBS due to the companies substantial holdings in subprime and other mortgage-backed assets and as a result of the company’s disastrous October 2007 acquisition of 38% of ABN Amro.

 

In April 2008 the company announced a $11.6 billion write down of subprime assets, following which it launched a $23.7 billion Rights Issue, which was the largest in European history. The company was forced in January 2009 to report a loss of $41.3 billion, following which the price of its shares collapsed.

 

As reflected here, RBS investors launched a number of securities class action lawsuits. The plaintiffs’ consolidated amended complaint (here) presents four categories of claims:

 

(1) claims under Section 10(b) of the Securities Exchange Act of 1934 on behalf of purchasers of RBS ordinary (common) shares;

 

(2) claims under the Securities Act of 1933 on behalf of purchasers of RBS preferred shares;

 

(3) claims under the Securities Act of 1933 on behalf of those who tendered ABN Amro share in exchange for ordinary RBS shares; and

 

(4) claims under the ’33 Act on behalf of those who purchased RBS ordinary shares in the Rights Issue.

 

After the Supreme Court issued the Morrison ruling, the defendants’ moved to dismiss with respect to categories 1, 3 and 4. The defendants did not move to dismiss in reliance on Morrison with respect to the RBS preferred shares, and so the category 2 claims were not before the court in connection with the motion on which Judge Batts ruled on January 11.

 

As discussed at greater length here, the Supreme Court had held in Morrison that the ambit of Section 10(b) of the ’34 Act is to be determined according to a "transaction" test. The court said that Section 10(b) only to the purchase or sale of a security on a U.S. exchange or a domestic transaction in any other security.

 

The January 11 Ruling

The ’34 Act Claims Regarding RBS Ordinary Shares: RBS’s ordinary shares are listed on the London and Amsterdam stock exchanges. The defendants moved to dismiss in reliance on Morrison, contending that the amended complaint does not allege that RBS ordinary shares were purchased or sold on a U.S. exchange or that the ordinary shares were otherwise purchased in the U.S.

 

The plaintiffs opposed this motion on two ground: first, because RBS ADRs are listed on the NYSE, RBS shares are "listed" in the U.S. and therefore the ’34 Act applies to all transactions in RBS shares regardless of location; and second, because the named plaintiffs (two U.S.-based pension funds) are located in the U.S. and made their purchase from the U.S., the transaction took place in the U.S.

 

Judge Batts rejected the plaintiffs’ "listing" theory, stating

 

The idea that a foreign company is subject to a U.S. securities laws everywhere it conducts foreign transactions merely because it has ‘listed’ some securities in the United States is simply contrary to the spirit of Morrison. Plaintiffs seize on specific language without at all considering, or properly presenting, the context….The Court makes clear its concern is on the true territorial location where the purchase or sale was executed and the particular securities exchange laws that governed the transaction…. Plaintiffs’ interpretation would be utterly inconsistent with the notion of avoiding the regulation of foreign exchanges. (Citations omitted).

 

Judge Batts also observed in a footnote that the plaintiffs argument was also "badly undercut" by the fact that in the Morrison case itself, the National Australia Bank had ADRs that trade on the NYSE.

 

In rejecting plaintiffs’ argument that their own U.S. residence and U.S.-based decision to invest in the U.S. was sufficient to subject their transaction to the U.S. securities laws, Judge Batts said that this investor-specific, fact-specific approach "is exactly the type of analysis that Morrison seeks to prevent," adding that the Morrison court did not reject the "conduct and effects" test "to replace it with another difficult-to-employ, fact intensive case."

 

The defendants apparently conceded that the Exchange Act might reach RBS ADRs trading on the NYSE, but because the named plaintiffs had not purchased RBSs ADRs, Judge Batts held the named plaintiffs lacked standing to bring ADR claims. Because all claims relating to ordinary RBS shares were dismissed and because the two named plaintiffs lacked standing to assert the remaining claims, the two named plaintiffs were dismissed from the action. (A separate named plaintiff remains in the case with respect to the preferred RBS share claims, which remain pending.)

 

The ’33 Act Claims Relating to the ABN Amro Share Exchange: The defendants moved to dismiss the ABN Amro Share Exchange Claims on the ground the ordinary shares issued in the Share Exchange Offer were listed on foreign exchanges not U.S. exchanges. Judge Batts granted this motion, noting that the complaint is "void of any allegations that the purchase of RBS ordinary shares pursuant to the Exchange Offer actually took place in the United States." She affirmatively citing Morrison for the holding that the Securities Act "does not include ‘sales that occur outside the United States.’"

 

The ’33 Act Rights Issue Claim: Judge Batts also granted the defendants motion to dimiss the ’33 Act Rights Issue claim, holding that Morrison is "dispositive" of the Rights Issue claim "as no U.S. public offering is present and the Rights Issue did not involve a domestic securities transaction."

 

Discussion

It seems like each successive lower court application of Morrison represents further proof of the decision’s sweeping reach. Judge Batts’ rulings in the RBS case may represent one of the most significant applications of Morrison yet, because along the way she rejected a couple of the theories on which plaintiffs in this and other cases had hope to try to contain Morrison – particularly the plaintiffs’ argument that a company’s U.S. listing subjects all transaction in the company’s shares regardless of where it takes place to the U.S. securities laws.

 

Plaintiffs in a number of pending cased involving foreign domiciled companies have urged the same "domestic listing" theory. Tthe plaintiffs in the Vivendi case, eager to preserve the value of the jury verdict they obtained, have presented much the same argument in that case. Indeed, one of the plaintiffs’ counsel in the Vivendi case, Michael Spencer of the Milberg law firm, had detailed these contentions in a guest post on this blog (here).

　

This "listing" theory has been the subject of much spirited commentary, including a subsequent guest post on this blog by University of Minnesota law professor Richard Painter (here). George T. Conway III of the Wachtell Lipton law firm – who briefed and argued the Morrison case for the defendant bank –described the "listing" argument as "Completely nuts, N-U-T-S."

 

Out of respect for my friends in the plaintiffs’ bar I will allow the possibility that the debate on the "listing" theory may not yet be over. However, Judge Batts’ rejection of the theory in this case, and in particular the ease with which she rejected the theory, suggests that plaintiffs may face significant difficulty in persuading other courts to accept the theory. At a minimum, Judge Batts’ rejection of the "listing" theory is distinctly unhelpful to the Vivendi plaintiffs and could represent an ominous threat to their efforts to try to preserve the value of their jury verdict in that case.

 

Judge Batts’ ruling is also significant with respect to her affirmative holding that Morrison applies to claims under the ’33 Act as well as to claims under the ’34 Act. Morrison itself only ruled on claimants’ claims under Section 10(b) of the ’34 Act. I had speculated just the other day, when discussing the Barclays related subprime case, that defendants in other cases would likely try to argue that Morrison applied to ’33 Act claims. As far as I know, Judge Batts’ ruling in the RBS case is the first to hold that Morrison does apply to ’33 Act claims.

 

There is one other element of significance in Judge Batts’ comments about RBS’s ADRs, and in particular what she did not say about the ADRs. Judge Batts did not conclude, as did Southern District of New York Judge Richard Berman in the Societe Generale case that under Morrison even ADR transactions on a U.S. exchange are outside the ambit of the ’34 Act (about which refer here).

 

To the contrary, she seemed to accept (perhaps because the defendants in the RBS case apparently conceded as much) that the ’34 Act does reach ADR transactions in the U.S. Indeed, it seems apparent that had there been a named plaintiff in the RBS case with sufficient standing to assert RBS ADR claims, she would have been prepared to allow those claims to go forward (at least for purposes of the motions to dismiss under Morrison).

 

My final observations have to do with the fact that this is a subprime-related securities class action lawsuit. At one level, Judge Batts’ rulings are inconsistent with my recent observation that the highest profile subprime-related securities suits seem to be going forward. The RBS case definitely qualifies high profile. To be sure, the preferred securities claimants’ claims are going forward, at least to the next found of dismissal motions, but the other claims on behalf of the many RBS ordinary shareholders are not going forward (at least not in the U.S.)

 

The RBS case is the exception to the generalization about the highest profile subprime cases because it runs smack into the other generalization I recently noted about subprime cases, namely that Morrison is being relied on to try to dismiss the many subprime cases that have been filed against foreign domiciled companies.

 

The interesting question is whether the disappointed RBS claimants, like the disappointed investors who with claims against Fortis (the other participant in the disastrous ABN Amro transaction) whose U.S. claims were also dismissed by a U.S. court, will now seek to pursue their claims against the RBS defendants in a non-U.S. jurisdiction.

 

I have in any event added the RBS ruling to my running tally of subprime-related securities class action lawsuit rulings, which can be accessed here.

 

Special thanks to George Conway of the Wachtell Lipton firm for providing me with a copy of the January 11 ruling.　

　

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The first subprime-related securities class action lawsuit was filed in February 2007, and so the subprime and credit crisis-related litigation wave will soon enter its fifth year. With the anniversary date just ahead, it seems like an appropriate time to step back for an updated interim status update. I have set out below a numerical overview of the case filings and case resolutions so far, followed by some observations about how the cases are developing.

 

New Case Filings

Though the depths of the financial crisis is now mercifully receding further into the past, credit crisis-related cases still continued to arrive during 2010, albeit in significantly diminished numbers.

 

As I noted in my overview of the 2010 securities class action lawsuit filings (here), the credit crisis cases were a significant part of all filings during the years 2008 (when there were 102 credit crisis-related lawsuit filings) and 2009 (62).

 

By contrast during 2010, there were only 23 new credit crisis-related securities lawsuits, representing about 13% percent of the total. Of these 23 new credit crisis cases, only nine of these cases were filed in the year’s second half, and only one was filed after August 2010. The subprime and credit crisis litigation wave, it seems, is winding down.

 

One factor complicating efforts to continue to track the filings is that over time it has become increasingly difficult to maintain definitional clarity about what exactly constitutes a subprime or credit crisis-related case. For that reason, published reports of the number of subprime and credit crisis securities suits vary. But the various reports generally agree that there are about 230 securities class action lawsuits have been filed since the beginning of the subprime litigation wave. For statistical simplicity, I have used the number 230 for analytical purposes in this post.

 

Dismissal Motion Rulings

Since the very first of these cases moved through the preliminary motions, I have tried to track the dismissal motions rulings. My running tally can be accessed here. As the number of rulings have accumulated it has become increasingly challenging to meaningfully sort out the rulings, but some generalizations are possible.

 

Not counting the handful of cases that have been voluntarily dismissed and not refiled, there have been dismissal motion rulings in a total of 106 of the cases, or about 46% of all of the subprime and credit crisis-related securities class action lawsuits lawsuits. (The counting gets a little complicated because some cases have had multiple rulings, and others have had only partial rulings).

　

For purposes of determining how the dismissal motions have been running, I have counted as dismissals all cases in which dismissal motions have been granted, regardless of whether the dismissal was with or without prejudice, but not counting as dismissals those cases where the dismissal motion was initially granted without prejudice and then subsequent dismissal motions were denied on rehearing. I count a case in which any part of the plaintiff’s claims survive as a dismissal motion denial, even though the motion may have been granted in substantial part.

 

Using these principles to categorize the various dismissal motion rulings, it appears that dismissal motion rulings have been granted in 53 cases, or half of all dismissal motion rulings so far. Of these 53 dismissals, 39 were granted with prejudice and 14 were granted without prejudice. In addition to these 53 dismissals, there were an additional seven cases in which dismissal motions were initially granted without prejudice but in which renewed motions to dismiss were subsequently denied.

 

Dismissal motions have been denied, in whole or in part, in 53 of the cases.

 

Based on the dismissal motions that have been heard so far, the dismissal rate on these cases is running at 50% compared to historical dismissal rates of securities class action lawsuits of about 40%.

 

Before jumping to any conclusions about the subprime lawsuit dismissal rate compared to more typical dismissal rates, it should be recalled that I have included in the subprime lawsuit dismissal rate even cases that were dismissed without prejudice. Some of these cases may yet survive renewed dismissal motions, as have several other subprime and credit crisis cases that were initially dismissed but that ultimately survived. Some prominent examples of these cases include the Washington Mutual case (refer here), the BankAtlantic case (here), the PMI Group case (here), and the Credit Suisse case (here).

 

It is also important to note that dismissal motions still have not yet been heard in over half of the subprime and credit crisis-related cases. It is entirely possible that the dismissal motions were ruled upon more quickly in many of the least meritorious cases, and that as other cases move toward ruling on the preliminary motions the dismissal rate move revert toward historical norms.

 

One final note about the dismissal motion rulings is that appellate courts have affirmed the dismissals of at least three cases: NovaStar Financial (here), Centerline (here) and Impac Mortgage (here).

 

Settlements (and a Trial)

So far, 17 of the subprime and credit crisis-related securities class action lawsuits have settled, representing aggregate settlement amounts of $1.930 billion. The average settlement amount is $113.54 million.

 

These settlement figures are substantially inflated by a few larger settlements. Indeed, just three settlements account for $1.335 billion of the aggregate settlement amount – Countrywide ($624 million), Merrill Lynch ($475 million) and Charles Schwab YieldPlus ($235 million). If these three jumbo settlements are removed from the calculation, the average settlement drops to $42.51 million – still a very large number but not quite as astonishingly large.

 

Only 17 cases have settled even though dismissal motions have been denied in 53 cases. Not only are there but a very few settlements overall, but the settlements are emerging at a very slow rate. Thus for example., during 2010, there were only eight settlements of subprime and credit crisis-related securities class action lawsuits, only two of which were announced after August 1, 2010.

 

It is worth keeping in mind that every now and then there is an occasional case that isn’t dismissed that doesn’t settle either. Not many securities class action lawsuits go to trial, but at least one subprime and credit crisis-related securities lawsuit so far has gone all the way through to a jury verdict.

 

In November 2010, a jury in federal court entered a plaintiffs’ verdict in the subprime-related securities class action lawsuit against BankAtlantic Bancorp and certain of its directors and officers. The jury awarded damages of $2.41/share, which published sources have suggested could be worth as much as $42 million. Interestingly enough, this case was one of those that was initially dismissed but that survived the renewed motion to dismiss.

 

Observations

Even if it is valid to observe that the subprime and credit crisis-related cases are being dismissed more frequently than is generally the case for securities class action lawsuits, it is also clear that the highest profile cases generally are surviving. Among other cases that have survived are those involving Citigroup (refer here), AIG (here), Countrywide (here), Fannie Mae (here), Washington Mutual (here), New Century Financial (here), Sallie Mae (here) and Bank of America (here).

 

In general, it seems that courts have proven to be wary of many allegations of fraud, in light of the global financial crisis. Courts have required specifics in order to allow cases to proceed. Where plaintiffs have been able to show, using internal documents or confidential witness testimony, that there was a mismatch between what a company was telling investors and what its people were saying internally, the cases have been allowed to proceed. Courts have been most receptive to this suggestion in the highest profile cases.

 

Some examples of cases where courts’ skepticism, arising from the extent of the global financial crisis, has been most pronounced have included the Security Capital Assurance case, in which (as discussed here), Southern District of New York Judge Deborah Batts wrote in her March 31, 2010 dismissal motion ruling that "defendants, like so many other institutions floored by the housing market crisis, could not have been expected to anticipate the crisis with the accuracy plaintiffs enjoy in hindsight."

 

Similarly, and as discussed here, in his March 17, 2010 opinion in the CIBC subprime-related securities suit, Southern District of New York Judge William H. Pauley III observed that:

 

The Complaint describes an unprecedented paralysis of the credit market and a global recession. Major financial institutions like Bear Stearns, Merrill Lynch, and Lehman Brothers imploded as a consequence of the financial dislocation. Looking back, a full turn of the wheel would have been appropriate. That CIBC chose an incremental measured response, while erroneous in hindsight, is as plausible an explanation for the losses as an inference of fraud. …CIBC, like so may other institutions, could not have been expected to anticipate the crisis with the accuracy Plaintiff enjoys in hindsight

　

An example of a case in which courts have been persuaded to allow cases to proceed, notwithstanding these kinds of concerns, due to alleged gaps between what was been communicated externally and what allegedly was being said or done internally, is the Citigroup subprime-related securities lawsuit, where Southern District of New York Judge Sidney Stein noted in his November 9, 2010 opinion that the company allegedly was "taking significant steps internally to address increasing risk to its CDO exposure but at the same time it was continuing to mislead investors about the significant risks those assets posed. This incongruity between word and deed establishes a strong inference of scienter."

 

Another case where a court found a similar "incongruity" is the Fannie Mae subprime related securities lawsuit, in which (as discussed here) Judge Paul Crotty said in his September 30, 2010 order denying the defendants’ motion to dismiss as to one part of the plaintiffs’ allegations that certain emails on which the plaintiffs rely showed that "Fannie may have been saying one thing while believing another."

 

One particular type of allegation that has had success in a number of cases involving mortgage originators and against the organizers of mortgage loan pools or trusts is that, contrary to public statements about the underwriting discipline utilized in creating the mortgages, the mortgage originators had "systematically disregarded" their mortgage underwriting guidelines. An example of a case in which this allegation was sufficient to allow a case to survive a dismissal motion is the DLJ Mortgage Capital/ Credit Suisse subprime-related securities lawsuit (about which refer here) in which Southern District of New York Judge Paul Crotty denied the motion to dismiss solely as to plaintiffs’ allegations that the mortgage originator’s alleged ""systematic disregard of the mortgage underwriting guidelines."

 

There have been a number of dismissal motion developments that seem likely to be relevant in other dismissal motion rulings.

 

The first is that the U.S. Supreme Court’s opinion Morrison v. National Australia Bank clearly will be relevant to Section 10(b) cases filed against foreign domiciled companies. In the Morrison case, the Court found that Congress had not intended the ’34 Act to apply extraterritorially and that Section 10(b) applies only to transactions on U.S. exchanges and to domestic transactions in other securities.

 

There have already been rulings in at least two subprime cases in which courts have, in reliance on Morrison, granted motions to dismiss cases pending against non-U.S. companies. As discussed here and here, respectively, the subprime-related securities cases against both Swiss Re and Société Générale were dismissed in reliance on Morrison.

 

Many of the subprime and credit crisis-related securities class action lawsuits involve companies domiciled overseas. It may be anticipated that foreign-domiciled defendants in pending ’34 Act cases will seek to have the cases dismissed, or at least narrowed, in reliance on Morrison, which could affect a number of pending cases.

 

Another dismissal motion ruling that could affect a number of pending cases is Southern District of New York Judge Miriam Goldman Cedarbaum’s October 14, 2010 ruling in the case pertaining to Goldman Sachs-related entities mortgage-backed securities. The court held that the plaintiffs had not alleged "cognizable injury" where they had not alleged that they failed to receive payments due under the securities, but rather they have alleged that their investments have declined in value or are now riskier than when purchased.

　

As far as I am aware, Judge Cederbaum’s ruling is the first in which mortgage-backed investors’ Section 11 claims have been dismissed for lack of cognizable injury based on a failure to allege that payments due under the securities had been terminated or interrupted. There were quite a few of these mortgage-backed securities lawsuits filed during 2008 and 2009, and Judge Cedarbaum’s decision potentially could be quite significant in these other cases, at least where the investors have not alleged that payments due under the instruments have failed.

 

Another recent ruling that may suggest problems that many plaintiffs asserting Section 11 claim may fact is the dismissal on statute of limitations grounds of many of the claims asserted in the Barclays subprime related class action lawsuit (about which refer here). The ruling suggests that the statue of limitations could be a significant issue in many ’33 Act cases, particularly where the referenced offerings may have taken place well before the filing date of the lawsuit.

 

Many of the subprime and credit crisis-related securities lawsuits are yet to reach to the dismissal motion ruling stage. From the comments of many of the judges who have issued rulings, it is clear that the courts are struggling with the complexity and magnitude of these cases..

　

For example, Judge William Pauley noted in denying the motion to dismiss in the Sallie Mae subprime related case that the complaint was a "behemoth" containing "labyrinthine allegations." Similarly, in his dismissal motion ruling in the Citigroup subprime-related securities suit, Judge Stein emphasized length and even the weight of the complaint, noting that it "536 pages long, contains 1,265 paragraphs, and weights six pounds." In his dismissal motion ruling in the Raymond James Financial subprime case, Judge Robert Patterson Jr. bemoaned the amended complaint’s "extreme length," which, he said, represents "an independent ground for dismissal."

 

The courts may feel oppressed by the sheer mass of the plaintiff’s pleadings, but plaintiffs do face formidable obstacles in trying to build complaints sufficient to overcome the initial procedural hurdles. And the fact is that many of these cases are highly complex, implicating as they do the most exotic creations of Wall Street’s fevered imaginations.

 

In addition to daunting the courts, the sheer size and complexity of many of these cases may be delaying case resolutions, including settlement. The relatively small number of settlements of these cases so far may well be a reflection of the complexity of the cases. Despite these challenges, the cases will continue to grind their way through the system. Certainly the remaining cases will move toward the dismissal motion stage. And it seems likely that many more case will move toward settlement. 2011 promises to be a year when many more of these cases are resolved – though this process is also likely to continue for many years to come.

　

U.S. Supreme Court Grants Cert in Halliburton Case: It used to be relatively rare for securities cases to come before the United States Supreme Court. Now it seems that there are two or three important securities cases every term. The Court has already agreed to hear several securities cases during this term. And now the Supreme Court has agreed to hear yet another securities case.

 

As reflected on The 10b-5 Daily blog (here), on January 7, 2011, the Supreme Court granted the petition for writ of certiorari in the Halliburton case out of the Fifth Circuit. The case will address the question whether or not loss causation is a relevant issue at the class certification stage. I hope to have an opportunity to review this development at greater length in a future blog post. In the meantime, The 10b-5 Daily has done a good job linking to all of the relevant materials.

 

The First Bank Closures of 2011: We can all hope that the worst of the current wave of bank failures is behind us, but banks are nevertheless continuing to fail. After taking control of 322 banks between January 1, 2008 and December 31, 2010, this past Friday night the FDIC completed the first two bank closures in 2011 when it took control of banks in Arizona and Florida, as reflected here. We can certainly hope that there will be fewer bank closures overall in 2011, after the 157 bank failures last year (the highest number of bank failures since 1992).

　

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In a January 5, 2011 order, Southern District of New York Judge Paul Crotty granted the defendants’ motions to dismiss the consolidated Barclays Bank subprime-related securities class action lawsuit. A copy of Judge Crotty’s order can be found here. Although Judge Crotty’s order is in many respects just the latest in the series of subprime-related securities lawsuit dismissal motion rulings, there are a number of interesting things about this ruling, as discussed below.

 

Background

Between April 2006 and April 2008, Barclays completed four American Depositary Shares offerings through which it raised total proceeds of $5.45 million. The four offerings were dated April 21, 2006 (the Series 2 offering), September 10, 2007 (the Series 3 offering), November 30, 2007 (the Series 4 offering) and April 8, 2008 (the Series 5 offering).

 

These offerings were presented in reliance on two Shelf Registration statements, dated September 14, 2005 and August 31, 2007, as well as Supplemental Prospectuses dated as of the offering date of each of the four offerings.

 

On November 15, 2007, the company issues an unscheduled "Trading Update" in which it disclosed the company’s exposure to U.S. subprime mortgages and mortgage backed securities. In a series of subsequent disclosures the company disclosed various write-downs of these assets, culminating in significant impairments and write-downs disclosed in its 2008 interim results and 2008 annual report.

 

As detailed here, in March 2009, investors who had purchased securities in one or more of the four offerings filed the first of several securities class action lawsuits against the company, certain of its directors and officers, and its offering underwriters. The lawsuits, which ultimately were consolidated, alleged the offering documents contained materially misrepresentations in violation of the Securities Act of 1933.

 

In the plaintiffs’ consolidated amended complaint (here), the plaintiffs essentially alleged that Barclays had failed to disclose and properly account for the risky real estate business in which it was engaged.

 

Specifically, the plaintiffs alleged that the company had failed to timely and adequately disclose and write down its exposure to risky credit assets; had failed to comply with applicable accounting standards and SEC requirements; and misleadingly assured investors that Barclays’ risk management practices helped the company avoid the worst credit market risks.

 

The defendants moved to dismiss.

 

The January 5 Order

After first ruling that the plaintiffs lacked standing to bring claims under Section 12(a)(2) (because the plaintiffs had not alleged that they had purchased their shares directly from the defendants), Judge Crotty then ruled that the Securities Act claims of the plaintiffs that had purchased their shares in the first three of the four offerings were time barred.

 

Judge Crotty ruled that the Series 2 and Series 3 plaintiffs were on inquiry notice of their claims at least as of the November 15, 2007 Trading Update, which Judge Crotty said disclosed "precisely the information that Lead Plaintiffs claim Barclays should have disclosed earlier." Because these plaintiffs filed their claims more than a year after the Trading Update, Judge Crotty held their claims were untimely.

 

Similarly, Judge Crotty ruled the Series 4 plaintiffs were on inquiry notice of their claims on February 19, 2008, the date Barclays release its 2007 annual results. As the Series 4 plaintiffs also did not file their claims within a year of that release, Judge Crotty held that the Series 4 plaintiffs claims were also time barred.

 

Interestingly, Judge Crotty held that the U.S. Supreme Court’s ruling in Merck (about which refer here) was not controlling on the statute of limitations issues, but he went on to find that even if it did apply that the Merck standard had been satisfied.

 

Judge Crotty did reach the pleading sufficiency of the Series 5 plaintiffs’ allegations. However, Judge Crotty held that the Series 5 plaintiffs’ allegations were insufficient.

 

With respect to the plaintiffs’ allegations regarding the defendants’ alleged failure to timely disclose and write down the impaired real estate assets, he held that the plaintiffs had failed to allege "that Barclays did not truly believe its subjective valuations."

 

With respect to the plaintiffs allegations that Barclays had failed to adequately itemize the company’s mortgage-related assets exposures, Judge Crotty held that the company had not duty to further itemize its mortgage asset exposure.

 

Finally Judge Crotty held that the plaintiffs had not adequately alleged that the defendants’ did not comply with applicable accounting standards or that the company’s disclosures regarding its risk management practices were actionable.

 

Discussion

Even though Judge Crotty’s opinion does not contain any express statements on the subject, the opinion does seem to reflect a subterranean skepticism – Judge Crotty does, in fact, quote prior opinions for the propositions that Section 11 claims many not be pled "with the benefit of 20/20 hindsight" and that "a backward-looking assessment of the infirmities of mortgage-related securities… cannot help plaintiffs’ case."

 

Judge Crotty does not affirmatively state that he things the plaintiffs’ claims represent "misrepresentation by hindsight" allegations, but his reference to these propositions and this overall approach to the plaintiffs’ allegations could be interpreted to suggest that that is his view.

 

Notwithstanding Judge Crotty’s apparent predispositions, there are a number of features about his opinion.

 

First, his ruling on the statute of limitations issues could be instructive in connection with the many other offering-related securities class action lawsuits that have been filed as part of the subprime and credit crisis-related litigation wave. Many of these cases, like this case, were filed in 2009, well after the mortgage meltdown had already unfolded and well after the first of many disclosures about the problems that many companies were having with their mortgage related assets. Judge Crotty’s statute of limitations rulings suggest that many of these cases may fact strict timeliness scrutiny, particularly where the lag between the time of the offering and the initial filing date is the longest.

 

Second, the other things about Judge Crotty’s ruling is that, even though the Series 5 plaintiffs’ claims under the ’33 Act did not depend on scienter allegations, he nevertheless had little apparent difficulty concluding that those plaintiffs’’ allegations were insufficient. That is, many of the other subprime related securities cases that have failed to survive initial dismissal motions have failed due to the insufficiency of the plaintiffs’ scienter allegations. Here, even though the claims the Series 5 plaintiffs asserted did not require them to satisfy scienter requirements, their allegations nevertheless were found to be insufficient.

 

One final observation about this case is that it involves a foreign-domiciled company. This consideration is not mentioned in Judge Crotty’s opinion. I am sure that the possible effect of the Morrison v. National Australia Bank case was not addressed because this case involved only claims under the ’33 Act and Morrison was addressed only the question of extraterritorial application of Section 10(b) under the ’34 Act.

 

Even though Morrison was addressed only to the ’34 Act, it would not surprise me if defendants in a similar case, involving a foreign domiciled defendant, might not try to argue that Morrison’s territorial limitations on the ambit of Section 10(b) are also relevant to claims under the "33 Act. There may be considerations specifically relevant to the ’33 Act that might militate against this argument, but absent some absolutely preclusive consideration, it seems to me that defendants would have an incentive to try to extend Morrison in this type of context. Defendants certainly have not been hesitant to urge the applicability of Morrison in a wide variety of kinds of cases.

 

I have in any event added the Barclays dismissal to my running tally of subprime and credit crisis related lawsuit dismissal motion rulings, which can be accessed here.

 

David Bario’s January 6, 2011 article on Am Law Litigation Daily about the case can be found here.

 

Special thanks to the several readers who sent me copies of the Barclays opinion.

 

Anticipated Developments in Antibribery-Related Litigation Activity and D&O Insurance Coverage: Because of the Dodd-Frank Act’s whistleblower provisions and the coming changes under the UK Bribery Act, there could be significant amounts of antibribery-related enforcement and litigation activity ahead. For that reason, it is a good idea for companies to review their D&O insurance in light of these concerns, as discussed in a January 2011 memo from the Squire Sanders law firm entitled "Directors’ and Officers’ Insurance Policies Should Be Reviewed in Light of Anticipated Increase in Whistleblowing Activity Instigated by Dodd-Frank Act and the UK Bribery Act." (here).

 

The memo contains a number of helpful considerations public companies should take into account in connection with their next D&O insurance renewal.

　

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2010 was an eventful year in the world of D&O liability. Congress passed massive financial reform legislation, the Supreme Court issued landmark decisions in important cases and numerous claims emerged as the litigation landscape continued to evolve. With so much going on, it is a challenge to narrow the year’s events down to just the ten most significant developments.

 

With appropriate humility about the limitations of all year-end inventories, here is my list of the top ten D&O developments of 2010.

 

1. Securities Suits Pick Up in Year’s Second Half: As I detailed in my 2010 securities litigation overview (here), after a filing downturn in the year’s first half, the number of securities lawsuit filing picked up in the last six months of the year. Among other things, as the year progressed, filing activity shifted away from credit crisis-related cases and toward a broader range of other types of cases.

 

Although at least some of the litigation activity in the year’s second half was driven by limited or short term events (as was the case, for example, in the rash of cases filed against for-profit education companies and against Chinese domiciled companies), the shift away from credit crisis cases could suggest that the heightened pace of securities suit filings may continue as we head into 2010.

 

2. The Changing Mix of Corporate and Securities Lawsuits: As insurance information firm Advisen has well documented, the mix of corporate and securities lawsuits has been evolving over the past several years. The most important feature of this changing mix of cases has been the decreasing prevalence of class action securities lawsuits as a percentage of all corporate and securities cases.

 

As the percentage of class action securities lawsuits has declined, other types of lawsuits, particularly breach of fiduciary duty cases, have grown in relative frequency. Many of these breach of fiduciary duty cases are related to mergers and acquisitions activity. Indeed, as I noted in my year-end review of 2010 securities lawsuit filings, even many of the cases that are categorized as securities class action lawsuits involve merger objection cases.

 

　

It is important to keep this changing mix of cases in mind when considering the various year end reports on securities litigation activity. These reports will show that overall 2010 securities class action lawsuit filings are down compared to post-PSLRA averages. However, it would be mistake to conclude that the relatively reduced number of securities class action lawsuits means that claims activity in general is down. To the contrary, overall claims activity is actually up. The mere fact that securities class action lawsuits are down does not mean that fewer companies are being sued or that overall claims exposure has diminished, either for companies or insurers. Rather, what is happening is that the claims exposure is changing, away from securities class action lawsuits and toward other types of claims.

 

This shift away from traditional securities class action lawsuits as a percentage of all claims activity has important implications for the insurance marketplace. The shift toward higher frequency, lower severity type of claims could have a significant impact both on primary and excess carriers. Primary carriers may experience an increase in overall claims frequency, with consequences for their loss experience. Excess carriers, particularly higher excess carriers, may experience relatively fewer claims piercing their layers, possibly producing a positive impact on the excess carriers’ results.

 

　

3. Banks Fail, Lawsuits Loom: 157 banks failed during 2010, the largest annual number of bank failures since 1992. The total number of bank closures since January 1, 2008 is 322. In addition, in the FDIC’s most recent Quarterly Banking Profile (refer here), the FDIC identified 860 banks, or about one out of nine of all banks, as "problem institutions."

 

Given the magnitude of these problems in the banking industry, it is hardly surprising that litigation involving failed and troubled banks is increasingly significant. Indeed, 13 of the 177 securities class action lawsuits filed in 2010 involved failed or troubled banks. In addition, aggrieved investors in failed or troubled privately held banks also filed a variety of other lawsuits, primarily in state courts.

 

It may be anticipated that the FDIC will also actively pursue claims against failed banks’ former directors and officers. However, to date, the FDIC has instituted only two D&O claims as part of the current round of failed banks (refer here and here).

 

It appears that it will only be a matter of time before the FDIC launches further suits against former officials of failed banks. Widely circulated news reports have quoted FDIC officials as saying that the FDIC has authorized civil actions against more than 80 directors and officers of failed banks. In addition, the Wall Street Journal reported in November that the FDIC is conducting fifty criminal investigations against directors, officers and employees of failed banks.

 

While we may hope that the current round of bank failures may begin to wane as we head into 2011, it appears that the failed bank litigation may only just be getting started.

 

4. Credit Crisis Lawsuit Settlements: The Dog that Didn’t Bark This Year: The subprime and credit crisis-related litigation wave will be heading into its fifth year early in 2011. Since 2007, there have been over 230 subprime and credit crisis related securities lawsuits filed. Many of these cases continue to work their way through the system.

 

As some of these cases have survived the preliminary motions, they have moved toward settlement. There were several noteworthy credit crisis related securities class action lawsuit settlements during 2010, including Countrywide ($624 million, refer here), Schwab Yield Plus ($235 million , refer here), and New Century Financial ($124 million, refer here).

 

But while there have been a few noteworthy settlements of these cases this year, the more striking observation is how few of these cases have settled so far, particularly given how far along we are in the subprime and credit crisis litigation wave.

 

By my count, only 17 of the over 230 subprime and credit crisis-related securities class action lawsuit have settled, and only eight of these 17 settlements were announced in 2010. (My list of subprime and credit crisis-related lawsuit resolutions can be accessed here.)

 

NERA Economic Consulting stated in its year-end report on securities litigation that of the approximately 230 credit crisis securities suits, only 8% have settled, 29% have been dismissed, and 63% remain unresolved.

 

Of the 63% of unresolved cases, some of course will wind up being dismissed. But many more will settle, eventually. Given the now long duration of the credit crisis litigation wave, it can be anticipated that there may be many more settlements of these cases in 2011. The likelihood is that D&O insurers’ aggregate claims losses for these claims will mount, perhaps rapidly.

 

The question is whether the materialization of these losses will come as a surprise or has already been fully anticipated in the carriers’ prior years’ loss reserves. This answer to this question could have important implications for the D&O insurers’ 2011 calendar year results.

 

5. Megasettlements of Shareholders’ Derivative Lawsuits Surge: There was a time when the settlement of a shareholder derivative lawsuit involved the payment of little or no money, other than in connection with the payment of the plaintiffs’ attorneys’ fees. However, one of the more striking developments in recent years has been the emergence of jumbo settlements of shareholders derivative lawsuits, in which millions of dollars are paid to or on behalf of the company involved.

 

This emerging trend continued to develop in 2010, with at least two huge shareholder derivative lawsuit settlements: the $90 million AIG/Greenberg settlement (about which refer here) and the $75 million Pfizer settlement (refer here).

 

These 2010 settlements join a growing list of other jumbo derivative settlements in recent years, including the UnitedHealth Group settlement ($900 million, refer here); Oracle ($122 million, refer here); Broadcom ($118 million, refer here); and the first AIG derivative settlement (refer here).

 

The striking thing about these settlements is not only their size, but also the fact that in each case the company involved is solvent. The significance of this fact is that these settlements represent instances in which the companies’ D&O insurance potentially could have been called upon to fund an A Side loss outside of the insolvency context. These kinds of settlements provide concrete evidence of the value to policyholders of Side A insurance protection even outside of the insolvency context, and underscore the importance of added Side A protection in a well-designed D&O insurance program.

 

From the carriers’ perspective, these settlements suggest that Side A losses can mount outside of insolvency. Only the carriers themselves can answer the question whether or not they are actually pricing their Side A products for this loss exposure.

 

One final note about the Pfizer derivative lawsuit settlement concerns the unusual funding mechanism the settlement implemented. In many derivative lawsuit settlements the companies involved agree to institute corporate governance reforms. What was unusual about the Pfizer settlement is that the settlement agreement created a dedicated fund intended to finance the company’s agreed upon governance reforms. If the advance funding of corporate governance reforms were to become a standard feature of derivative lawsuit settlements, the cash cost of derivative settlements could increase substantially. This is a potential development worth watching closely.

 

6. Rare Securities Lawsuit Trials Result in Plaintiffs’ Verdicts: Very few securities class action lawsuits actually go trial. Most are settled or dismissed. But in 2010, two cases made it all the way through to jury verdicts. In January, the jurors in the Vivendi case entered a verdict on behalf of the plaintiffs against the company (about which refer here), and in November, the jurors entered a verdict for the plaintiffs in the BankAtlantic subprime-related securities suit (refer here).

 

In addition to these jury verdicts, in June 2010, the Ninth Circuit issued an opinion overturning the trial court’s post trial ruling in the Apollo Group case, a ruling that had set aside the jury’s $277.5 million jury verdict in that case. Refer here regarding the Ninth Circuit’s opinion in the Apollo Group case.

 

All three of these cases remain subject to further proceedings. The Vivendi case in particular is the subject of significant post-trial motions having to do with the composition of the plaintiffs’ class in the wake of the U.S. Supreme Court’s decision in the Morrison v. National Australia Bank case (about which refer to these prior guest blog posts, here and here. See also item 10, below).

 

The defendants in the Apollo Group case have filed a petition with the U.S. Supreme Court for a writ of certiorari (about which refer here). And the BankAtlantic case has now moved on to post-trial motions, and depending on the motions’ outcome, possible appeal.

 

But while the ultimate outcome of these cases remains to be determined, it is striking that all three of these cases not only involve rare trials, but all three resulted in jury verdicts for the plaintiffs. To be sure, there have also been recent securities lawsuit trials that have resulted in defense verdicts, as was the case for example in the JDS Uniphase trial (about which refer here).

 

According to information compiled by Adam Savett, the Director of Securities Class Actions at the Claims Compensation Bureau, there have now been ten securities class action lawsuit trial post-PSLRA and involving post-PSLRA facts. The scoreboard currently reads: Plaintiffs 6, Defendants 4. The scoreboard is of course subject to revision pending further proceedings. Nevertheless, the juries themselves seem to have been favoring the plaintiffs, a phenomenon that may make plaintiffs’ threats to push a case to trial represent a particularly threatening tactic.

 

7. Assessing Coverage for "Bump Up" Claims: As noted above, a significant and growing number of corporate and securities lawsuits arise out of merger and acquisition activity. Often, the goal of this litigation is to try to increase the transaction consideration. One recurring question is the availability of D&O insurance coverage for amounts paid in settlement of so-called "bump up" claims.

 

In October 2010, the First Circuit entered an opinion in coverage litigation involving Genzyme Corporation, discussing the question of the preclusive effect of a D&O policy’s "bump up" exclusion. The First Circuit overturned the lower court’s decision that had held that the company’s D&O insurance policy did not provide coverage for additional amounts paid to claimants who asserted they did not received adequate consideration in a share exchange.

 

Though the First Circuit reversed the lower court’s holding of noncoverage, the First Circuit did not invalidate the bump up exclusion and agreed that the exclusion precluded entity coverage for bump up amounts.

 

The First Circuit remanded the case to the lower court for further allocation proceedings (that is, because the First Circuit held that the bump up exclusion precluded coverage only under the policy’s entity coverage provision, further proceedings are required to determine whet portion if any of the underlying settlement is allocable to settlement of liabilities of persons insured under other insuring provisions of the policy).

 

Of critical importance is that the First Circuit found that exclusion is enforceable and is effective to preclude coverage according to its terms. The holding clearly will be relevant to questions of coverage in future cases involving settlements of "bump up" claims, at least where the implicated D&O insurance policies include bump up exclusions.

 

8. D&O Insurance Coverage for Informal SEC and Internal Investigations: Among the perennial D&O insurance issues are the questions of coverage for informal SEC investigations and for internal investigations. In either case, the question is whether or not there is a "claim" as required to trigger coverage under the policy.

 

In one of the year’s most noteworthy D&O insurance coverage decisions, Southern District of Florida Judge Kenneth Marra, applying Florida law in a summary judgment ruling in coverage litigation involving Office Depot, held there is no coverage under the company’s D&O insurance policies for either of these categories of expenses.

 

Though the holding in the Office Depot case is direct reflection both of the specific policy language involved and the facts presented, the decision nevertheless could be influential in future claims involving questions of coverage for informal SEC investigations and internal investigations. The Office Depot decision suggests that policy definitions of the terms "Securities Claim" and "Claim" are critical, particularly with respect to the definitional references to "investigations" and "proceedings." Refer here for a more detailed discussion of the case and the decision.

 

The Office Depot ruling is hardly the final word on these issues, but it clearly will loom large in future consideration of questions of coverage for these kinds of expenses. Insurers undoubtedly will seek to rely on the decision to try to preclude coverage for costs incurred in connection with informal SEC investigations and internal investigations.

 

On a related note, a separate court held in the MBIA coverage case that there is coverage under the D&O insurance policy at issue for special litigation committee expenses, as discussed here.　

 

9. Is a Whistle the Sound of the Future?: The massive Dodd Frank Wall Street Reform and Consumer Protection Act of 2010 enacted in July will affect virtually every aspect of our financial system, in ways that may only become clear over time. But among the Act’s innovations that seem likeliest to have a significant litigation impact are the Act’s new whistleblower provisions.

 

The whistleblower provisions include the creation of a new whistleblower bounty pursuant to which persons who first bring securities law violations to the attention of the SEC will receive between 10 percent and 20 percent of any recovery in excess of $1 million.

 

Give the magnitude of the fines paid in many recent SEC enforcement actions, particularly those involving Foreign Corrupt Practices Act violations (about which refer here), the prospective size of potential bounties is enormous. These bounty provisions seem likely to encourage a flood of whistleblower reports to the SEC. This could create an administrative nightmare for the SEC, and the agency is already struggling with funding limitations that may constrain its ability to implement the whistleblower requirements. On the other hand, the SEC, under pressure to rehabilitate its regulatory credentials after its failure to detect the Madoff scheme, will face significant pressure to pursue whistleblower claims.

 

Another 2010 development that seems likely to encourage an entirely different sort of whistleblower activity is the series of WikiLeaks disclosures. The extensive media attention give to the disclosures, as well as the suggestions of WikiLeaks founder Julian Assange that future disclosures will expose corporate misconduct, raise the possibility of that other self-appointed corporate scourges will launch similar guerilla campaigns involving the disclosure of internal corporate communications.

 

These two types of prospective whistleblower risks arguably represent an entirely new level of corporate exposure that could leave companies and their senior officials susceptible to claims of wrongdoing based on public or regulatory disclosures by persons inside the company with access to sensitive information. Indeed, companies and their senior officials could even be susceptible to claims for the alleged failure to implement and maintain sufficient controls to prevent embarrassing or harmful disclosures. Regardless, companies could face the prospect of significant risks involving person inside (or with access to) their own operations.

 

10. Foreign Companies, U.S. Courts: In June 2010, the U.S. Supreme Court issued its long-awaited decision in the Morrison v. National Australia Bank case, holding that Section 10(b) of the Securities Exchange Act of 1934 applies only to transactions taking place on the U.S. securities exchanges, or domestic transactions in other securities.

 

Among other things, the Morrison decision seems to represent the end of so-called "f-cubed" claims, involving foreign claimants who bought their shares in foreign companies on foreign exchanges.

 

Lower courts are now wrestling with Morrison’s implications, including, for example, the question of whether or not Morrison precludes claims under the U.S. securities laws against companies whose American Depositary Receipts trade on U.S. exchanges. (Surprisingly, at least one court has held that case has that effect, as discussed here.) Other courts have struggled to determine what falls within Morrison’s second prong relating to "domestic transactions in other securities." Clearly, there will be much further lower court activity as these kinds of issues are sorted out.

 

In the meantime, one consequence that seemed likely in the wake of Morrison is that there might be fewer (or at least only narrower) cases filed in U.S. courts involving non-U.S. companies. Contrary to expectations, however, there were quite a number of securities cases filed in U.S. courts involving foreign-domiciled companies in 2010, including many filed after the Supreme Court issued its Morrison opinion.

 

As reflected in my recent year-end analysis of 2010 securities lawsuit filings, there were 19 new securities class action lawsuits filed in 2010 involving foreign domiciled companies, representing 10.7% of all 2010 securities lawsuit filings. Of these 19 cases, 12 were filed after the Supreme Court issued its opinion in Morrison.

 

One possibly temporary factor driving many of these filings is the rash of new cases filed against Chinese- domiciled companies. There were ten new lawsuits against Chinese companies in 2010, eight of which were filed post-Morrison. It should be noted that the shares of many of these Chinese companies trade on U.S. exchanges and in fact many of the cases directly relate to the companies’ securities offerings in the U.S., facts which made these companies susceptible to securities lawsuits in this country even under Morrison.

 

The lower courts will continue to interpret and apply Morrison in the months ahead. In the meantime, it seems that lawsuits involving non-U.S. companies will continue to arise, at least where the companies’ shares trade on U.S. exchanges.

 

A Final Note: Readers of this blog post may also be interested in my September 2010 post entitled "What to Watch Now in the World of D&O," which can be found here.

　

Ten Top Ten Lists: Top ten surveys proliferated at year end, and so it seems like a list of ten top ten lists would be the appropriate accompaniment to The D&O Diary’s own top ten list:

The Year’s Top Ten Insurance Coverage Decisions

Top Ten YouTube Videos of 2010

Top Ten Annoying Things British Men Do While Abroad

Top Ten New Species (International Institute for Species Exploration)

Top Ten Goals from the 2010 World Cup

Top Ten TV Commercials of 2010

Top Ten Encyclopedia Britannica Queries 2010

Top Ten Must-Reads in the Law, 2010

Princeton Review Top College Ranking 2010-2011

Time Magazine’s Top Ten of Everything List

　

　

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New York Attorney General Andrew Cuomo’s December 21, 2010 filing of a civil fraud lawsuit against Ernst & Young in connection with the audit firm’s services to Lehman Brothers has captured headlines in business pages around the world. The complaint itself, which can be found here, raises some serious allegations. But the complaint also raises a number of interesting questions, as discussed below. The NYAG’s December 21, 2010 press release about the lawsuit can be found here.

 

The Complaint

The 32-page complaint alleges that between 2001 and September 2008, E&Y "facilitated" Lehman Brothers’ "massive accounting fraud." The complaint alleges that during that period E&Y earned over $150 million in compensation from Lehman, which allegedly was one of E&Y’s largest clients.

 

The complaint alleges that Lehman manipulated its balance sheet through quarter-end sales of billions of dollars of fixed-income securities to European banks, with the express understanding that the Lehman would repurchase the securities days later. Lehman’s use of these transactions, know as Repo 105 transactions, allowed Lehman to mask its balance sheet leverage. The scale of these transactions grew as Lehman’s financial condition deteriorated in 2007 and 2008.

 

The complaint alleges that E&Y was aware of Lehman’s use of these transactions, yet approved Lehman’s use of financial statements that did not disclose the existence of the transactions or their effect on Lehman’s balance sheet. These actions, the complaint alleges, "directly facilitated a major accounting fraud, and helped mislead the public."

 

The complaint alleges that these actions by E&Y violated New York’s Martin Act. The complaint seeks to compel E&Y to repay the fees it earned from Lehman as well as investor damages.

 

Discussion

There are a number of very interesting things about the NYAG’s complaint against E&Y.

 

The first is that the only defendant in the lawsuit is E&Y itself. There are no other individuals or entities names as defendants.

 

On the one hand, it is hardly a surprise that a governmental authority has decided to pursue a regulatory claim against E&Y, in light of the March 2010 report by the Lehman Brothers bankruptcy examiner Anton Valukas (about which refer here). In his report, Valukas had concluded "there are colorable claims" against E&Y for its "failure to question and challenge improper or inadequate disclosures." Given the bankruptcy examiner’s conclusions it seemed probable that there might eventually be some kind of regulatory action taken against E&Y.

 

On the other hand, the bankruptcy examiner’s report not only concluded that there are "colorable claims" against E&Y, but also concluded that there are "colorable claims" against the senior Lehman officials who "oversaw and certified the misleading financial statements," including Lehman’s CEO Richard Fuld and its CFOs, Christopher O’Meara, Erin Callan and Ian Lowitt. Moreover, the NYAG’s complaint expressly refers to other financial executives at Lehman who were involved in the company’s use of the Repo 105 transactions.

 

The NYAG’s complaint does not name any of these individuals as defendants. Indeed, one of the very curious aspects about the NYAG’s complaint is that it is virtually silent about the role or involvement of the most senior Lehman officials in the Repo 105 transaction; the individuals referred to by name in the complaint are by and large not the most senior executives.

 

And just as the complaint names no Lehman executives as defendants, the complaint also names no E&Y-related individuals as defendants. The sole defendant is E&Y itself, even though the individual E&Y audit partners responsible for Lehman’s audit and financial reporting are identified by name in the NYAG complaint. Yet it is the audit firm itself that is named as defendant, not the individuals.

 

The complaint’s firm-level focus is all the more interesting as allegations in the complaint do not seem to suggest that the decision to allow Lehman the accounting treatment it received was made at a firm-wide level or that anyone at E&Y other than the specific individual audit partners were aware of Lehman’s use and reporting of the Repo 105 transactions.

 

Setting aside the question of who been sued, there is also the question of the timing of the filing of this complaint. The complaint was filed by New York’s departing AG, Andrew Cuomo, who is just days away from taking up his duties as New York’s incoming Governor. Of course, it was his deputies and assistants who prepared and filed the complaint, but the timing of their actions means that this case will shortly become the responsibility of the incoming NYAG Eric Schneiderman.

 

Given that the incoming AG will be responsible for the case, it seems odd that he was not allowed control over its filing. On the other hand, under the heading of media relations, it may not be surprising that the outgoing AG wanted to make sure that everybody knew this complaint was filed on his watch.

 

Another question that combines these questions of targets and timing is the question of sequencing. The sequencing issue has two aspects – the first is why the NYAG has proceeded first against E&Y without at the same time or first going against any company officials. The second issue is the question of why the NYAG’s office is proceeding forward in advance of any action by the federal regulators.

 

The NYAG may be proceeding first against E&Y for tactical reasons, as a way to secure a settlement and/or the firm’s cooperation in connection with a later action against the corporate officials. Peter Lattman reported on December 20, 2010 on the Dealbook blog (here) that E&Y and the NYAG’s office have been in settlement negotiations. The complaint may simply represent negotiations in another form.

 

As for the NYAG’s moves ahead of the federal regulators, Lattman speculates that the action may in fact spur the SEC or the DoJ to act – which may or may not have been an intended consequence of the move.

 

But the most interesting question of all is – what will happen next? Will E&Y reach a settlement with the incoming NYAG? Will the NYAG file a separate action against senior Lehman officials? Will the SEC or the DoJ now take action, either against E&Y or former Lehman officials?

 

Whatever else might be said about the NYAG’s complaint, its very presence begs the question why there has yet been no federal regulatory action related to Lehman, a question further highlighted by the bankruptcy examiner’s report. My own view of the reason the federal regulators have not yet acted is that they know all too well that the Lehman collapse is the highest profile event related to the credit crisis.

 

Given that high profile, they know they can’t take any chance that their Lehman-related enforcement actions might fail. The unacceptable consequences (to the federal regulators) of a failed regulatory action are compelling them to build the most durable case they think they can construct before proceeding. I still think it is a question of when, nor if, the federal regulators will initiate their own Lehman-related enforcement actions.

 

Assuming for the sake of argument that the federal regulators will eventually launch their own Lehman action, it will be interesting to see if the federal action will target E&Y. Francine McKenna suggests on her Accounting Watchdog blog on the Forbes website (here), that when it comes to pursuing the accountants, the feds are all too happy to have the NYAG do the "dirty work."

 

For the record, I disagree with the media voices trying to suggest this is the "beginning of the end" of E&Y. This is not a criminal case of the kind that killed Arthur Anderson. This is a civil action. E&Y has taken a massive reputational hit and it likely will  have to pay substantial amounts to extricate itself from this case. But the firm's continued existence is in no danger from this case.

 

Susan Beck has an interesting December 21, 2010 article on the Am Law Litigation Daily (here) about the defenses that E&Y has raised to similar allegations in investor litigation relating to the Lehman collapse.

　

"Year in Review" Webcast: On December 29, 2010 at 1 p.m. I will be participating in a free webcast sponsored by the Securities Docket, entitled "2010 Year in Review: Securities Enforcement, Litigation & Compliance."

　

The panel, which will include Compliance Week editor Matt Kelly, Francine McKenna (re: The Auditors) , Mike Koehler (aka the "FCPA Professor"), Francis Pileggi (Delaware corporate law guru), Tracy Coenen (The Fraud Files), Lyle Roberts (The 10b-5 Daily) and Securities Docket’s Bruce Carton, will look back at 2010′s most significant events and trends in the areas of corporate compliance, auditor issues, the Foreign Corrupt Practices Act, Delaware corporate law, D&O insurance issues, white collar fraud issues, securities class actions and SEC enforcement.

　

For further information and to register, please visit the Securities Docket webinsar webpage, here.

　

Season’s Greetings: Over the next few days, The D&O Diary will be taking a short holiday break. We will resume our normal publication schedule after the New Year. In the meantime, we would like to thank everyone for their support this past year and wish everyone a healthy and happy holiday season.

　

As our final holiday gesture, we would like to share this video (which has quickly gone viral) of the flash-mob-in-the-mall performance of The Hallelujah Chorus from Handel’s Messiah. Apparently the flash mob performance of this work has become quite the phenomenon this holiday season, to the point that a Sacramento choir’s December 20, 2010 attempt to stage its own flash mob scene resulted in a mall’s closure, as reported here.

　

Fortunately, the performance in this video reflects a more peaceful scene. Happy Holidays.

　

　

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In its December 15, 2010 filing of Form 8-K (here), Ambac Financial Group announced that it had entered a memorandum of understanding to settle the subprime-related securities class action lawsuits pending against the company and certain of its directors and officers for a payment of $27.1 million, of which $24.6 million is to be paid by the company’s D&O insurers.

 

UPDATE: An informed source advises that in addition to the settlement on behalf of Ambac and its directors and officers, the plaintiffs in this case also entered a separate $5.9 million settlement with Ambac's offering underwriters, bringing the total value of this settlement to $33 million.

 

The settlement is interesting in and of itself, but it is also interesting for the perspective it provides on the mountain of remaining unresolved subprime and credit crisis-related securities suits, as discussed below.

 

As discussed in greater detail here, in January 2008 Ambac and certain of its directors and officers were sued in a series of securities class action lawsuits filed in the Southern District of New York. These actions were later consolidated. The plaintiffs’ consolidated amended class action complaint can be found here. Further background regarding the case can be found here.

 

The plaintiffs’ allegations in the case largely related to the company’s provision of insurance coverage for collateralized debt obligations. The plaintiffs allege, among other things, that the defendants failed to disclose that the company lacked internal controls sufficient to ensure that the company’s standards for underwriting CDOs were adequate, and that the company had a far greater exposure to CDO-related losses and defaults than the company had previously disclosed.

 

In addition to the consolidated securities case, a separate securities suit was filed in December 2008 in the Southern District of New York against Ambac and certain of its directors and officers on behalf of invertors in the company’s Structured Repackaged Asset-Backed Trust Securities (STRATS), as reflected here. The STRATS lawsuit, which proceeded separately from the consolidated case, alleged that the defendants had issued false and misleading statements concerning Ambac’s financial results and operations.

 

On February 22, 2010, Southern District of New York Naomi Reice Buchwald granted in part and denied in part the defendants’ motion to dismiss in the consolidated securities case.

 

As I noted in a prior post discussing the dismissal motion ruling (here), Judge Buchwald’s decision was particularly noteworthy for her rejection of defendants’ attempts to argue that the company’s woes were not the result of fraud but rather were the result of the global financial meltdown; among other things, she stated that "the conduct that plaintiffs’ allege, if true, would make Ambac an active participant in the collapse of their own business, and of the financial markets in general, rather than merely a passive victim."

　

According to the company’s recent 8-K, the $27.1 million would resolve both the consolidated case and the STRATS lawsuit. As noted above, $24.6 million of the settlement is to be paid by the company’s D&O insurers, and the remaining $2.5 million is to be paid by Ambac. The settlement is subject to a number of conditions, including court approval.

 

This settlement is interesting because it would resolve one of the higher profile subprime cases, after a portion of the case survived a dismissal motion.

 

But the more interesting thing to me about this settlement is the fact that it has happened at all, or at least that it has happened now. My point is that even though about 230 subprime and credit crisis-related lawsuits have been filed since February 2007, very few of these cases have yet settled, even among the many cases that have survived motions to dismiss.

 

By my count, even taking the Ambac settlement into account, there still have been only 17 settlements of the subprime and credit crisis related securities class action lawsuits. (My list of the subprime and credit crisis-related securities lawsuit case resolutions can be accessed here.) To be sure, those settlements represent an aggregate amount of settlements of over $1.925 billion (although that impressive figure is largely a reflection of just four settlements – Countrywide, Merrill Lynch, Merrill Lynch Bond, and Schwab Yield Plus – which account for about $1.5 billion of the total.)

 

Regardless of the aggregate dollars involved in the 17 settlements to date, those settlements represent only a small part of the overall number of cases that have been filed. Moreover the subprime and credit crisis-related litigation wave will soon enter its fifth year, so you would start to think that more of these cases would be settled. Nevertheless, only eight subprime and credit crisis-related securities class action lawsuits have settled so far in 2010.

 

According to statistics the NERA Economic Consulting reported earlier this week in its 2010 study of securities class action lawsuits, of the 230 cases that NERA has identified as credit crisis-related, "only 8% have settled, 29% have been dismissed, and 63% remain unresolved."

 

Of course, a certain number of those 63% of all cases that are unresolved were filed fairly recently, and you wouldn’t expect those later filed cases to yet be near settlement. (NERA reported that there were 31 new credit crisis-related cases filed during 2010.) But many of these cases are now several years old.

 

These older unresolved cases, or at least those that survive dismissal motions, will eventually start moving toward settlement. (Relatively few will actually make it to trial, although the BankAtlantic credit crisis-related securities suit, in which the jury recently returned a plaintiffs’ verdict, is the rare case that did head to trial.)

 

I am going to go out on a limb here and predict that in 2011, there will be many more settlements of subprime and credit crisis-related securities cases than there were in 2010. We may soon get to the point that a settlement of the size of Ambac’s will no longer be particularly noteworthy. But we are not there yet.

 

As these cases move toward settlement, the insurers aggregate claim losses will begin to mount. In that regard it is worth noting that the average settlement of the 17 cases that have settled is over $110 million (although substantially lower if the four mega settlements noted above are disregarded). The implied losses that these 160-170 unresolved subprime cases represent is enormous – and that is not even taking defense costs into account.

 

Yes, not all of the settlement amounts will be paid by insurance. And yes, there will be a substantial number of those cases that will be dismissed. But many will eventually settle and much of the costs of settlement will be borne by the insurers.

 

To the extent that the carriers have adequately reserved for these losses, the settlements will not cause a ripple in the D&O insurance industry. But if the insurers are not adequately reserved for these losses, the resolution of these cases potentially could hit the industry as losses mount.

 

It would be interesting to conduct a survey amongst participants in the D&O insurance industry to find out whether people think that D&O insurers (a) are adequately reserved for these future losses; (b) think they are adequately reserved but will find out in the future they are not adequately reserved; or (c) are not adequately reserved.

 

A Couple of Interesting Law Firm Memos: A lot of law firm memos cross my desk every day, and not all of them are worth reading. But a couple of memos I recently reviewed were of particular interest.

 

First, in a December 9, 2010 memo entitled "Directors’ and Officers’ Liability: Shareholder Derivative Litigation Developments" (here), Joseph McLaughlin of the Simpson Thacher law firm summarized important recent judicial developments in federal and Delaware state court shareholder derivative litigation.

 

Second, in a December 6, 2010 memo entitled "The Board’s Expanded Role in an IPO" (here), David Westenberg of the WilmerHale law firm takes a brief look at the burdens and responsibilities of board of directors of companies that are going public.

 

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The foreclosure paperwork and processing mess has been unfolding on the front pages of the nation’s news papers for several weeks now. While the situation has created a lot of uncertainty, the one thing that seemed probable was that litigation would follow. But while the likelihood for lawsuits seemed high, it did not necessarily follow that there would be D&O claims arising out of the mess.However, at least one D&O claim has now arisen out of the foreclosure muddle.

 

According to their November 23, 2010 press release (here), plaintiffs’ lawyers have filed a securities class action lawsuit in the Middle District of Florida against Lender Processing Services, Inc. and certain of its directors and officers. The complaint, which can be found here, alleges that the defendants failed to disclose that

 

(i) that the Company had engaged in improper and deceptive business practices; (ii) that the Company’s subsidiary Docx had been falsifying documents through the use of robo signers; (iii) that the Company had engaged in improper fee sharing arrangements with foreclosure attorneys and/or law firms, including, but not limited to, undisclosed contractual arrangements for impermissible legal fee splitting, which are camouflaged as various types of fees; (iv) as a result of the Company’s deceptive business practices, the Company reported misleading financial results; and (v) further, as a result of the foregoing, at all relevant times, the Company’s financial outlook lacked a reasonable basis.

 

On October 4, 2010, after the company released a statement responding to what it described as "mischaracterization of its services," the company’s share price declined.

 

It remains to be seen whether or not there will be further securities suits growing out of the foreclosure mess (although I have to say the possibility of additional lawsuits growing out of this situation seems likely.)

 

The one thing that has definitely become clear is that the plaintiffs’ securities bar is riding in the wake of the business headlines. Toyota has a problem with sudden acceleration? Wham, in comes the securities class action lawsuit. Massey Energy has a coal mining catastrophe? Pow, in comes the securities lawsuit. BP suffers a massive oil spill? The next thing that follows is a securities class action claim. The same goes for the disclosures of possible student loan fraud at for-profit education companies, as basically every company in the industry has now been hit was a suit. I am sure if the plaintiffs' lawyers could figure out how to file a securities suit against the North Koreans for launching missles against South Korea on Monday, the would do that too.

 

It has pretty much gotten to the point that the way to determine who will be sued next is simply to read the newspapers. And by that indicator, we can probably expect to see more securities suits arising out of the foreclosure mess.

 

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In the first securities class action jury verdict to arise out the credit crisis, on Thursday November 18, 2010, the jury in the BankAtlantic securities lawsuit in federal court in Miami returned a verdict in the plaintiffs’ favor, finding seven of the statements at issue to have been false, and awarding damages of $2.41 per share. According to sources, this damage measure translates to total damages of as much as $42 million.

 

The case went to the jury last week after more than four weeks of trial, testimony from 13 fact witnesses and one expert witness. The verdict form the jury was required to complete ran to some 53 pages. At the outset of the trial, the lead defense counsel had characterized the claim as a "completely made-up, frivolous claim."

 

In their completed verdict form, the jury found the company and two of the five individual defendants to be liable for seven of the 19 statements at issue. The two defendants held liable are the company’s CEO, James Lavan, and its CFO, Valerie Toalson. All of the statements for which the defendants were found liable had been made in 2007. The completed jury verdict form can be found here.

 

As reflected here, the plaintiffs’ complaint had alleged that the defendants had made misleading statements about the bank’s loan portfolio from October 2006 through October 2007 and had "materially understated reserves for real estate loan losses on its financial statements, and thus materially overstated net income." The plaintiffs alleged that the defendants (the bank holding company and five of its individual directors and officers) had made misleading statements about the quality of the bank’s loan portfolio, the bank’s exposure to loan losses and the bank’s loan loss reserves.

 

As noted here, the plaintiff’s initial complaint had failed to survive the defendants’ motion to dismiss, but the amended complaint survived the defendants’ renewed dismissal motion.

　

According to information compiled by Adam Savett, the Director of Securities Class Actions at the Claims Compensation Bureau, since the enactment of the PSLRA, there had previously been only nine securities class action lawsuits based on post-PSLRA conduct that have actually been tried to a jury verdict. (Another seven cases alleging post-PSLRA conduct went to trial but were compromised or otherwise resolved prior to verdict. An additional eleven securities cases have gone to trial post-PSLRA but involved pre-PSLRA conduct.)

 

In other words, the verdict in the BankAtlantic case represents only the tenth securities class action lawsuit verdict since the enactment of the PLSRA based on post-PSLRA conduct.

　

The current tally (taking into account post-verdict proceedings and reflecting only the current status of post-verdict proceedings) is as follows: Plaintiffs 6, Defendants 4. (The scoreboard is subject to revision pending the outcome of additional proceedings in several of the cases.)

　

With the plaintiffs’ verdict in the BankAtlantic case, the securities class action jury verdict scoreboard (taking into account post-verdict proceedings and reflecting only the current status of post-verdict proceedings) is as follows: Plaintiffs 6, Defendants 4. (The scoreboard is subject to revision pending the outcome of additional proceedings in several of the cases.)

　

The BankAtlantic case will now undoubtedly head into post trial motions, and perhaps even later appeals. As has been shown in the Apollo Group securities class action case (about which refer here), in which there the plaintiffs’ jury’s verdict has been set aside in post trial motions only to have the verdict reinstated on appeal, the verdict itself can effectively wind up as only one stop in a very long procedural grind. Stay tuned for further proceedings.

 

In a statement to The D&O Diary, Matthew Mustokoff, a partner in the Barroway Topaz law firm said "The jury’s verdict vindicates our position from the outset that this was a case with merits and it delivers a message that a financial institution can’t mislead their shareholders about the riskiness of its loans." The Barroway Topaz firm was co-lead counsel for the plaintiff on the case. The other lead attorneys were Andrew Zivitz of the Barroway Topaz firm and Mark Arisohn of the Labaton Sucharow firm.

 

A November 18, 2010 South Florida Business Journal article describing the verdict can be found here.

　

　

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For reasons I am sure they find good and sufficient, Chinese companies have been seeking listings on the U.S. securities exchanges. The Chinese companies (or at least some of them) have also been discovering an added side-effect of a U.S. listing – that is, exposure to a class action lawsuit under the U.S. securities laws.

 

The latest Chinese company to be sued is RINO International Corporation, which has its headquarters in Dalian, in China’s Liaoning province. As reflected in their November 15, 2010 press release (here), plaintiffs’ lawyers have filed a complaint against the company and certain of its directors and officers in the Central District of California.

 

The complaint (which can be found here) alleges that in RINO's SEC filed annual report for fiscal 2009, RINO reported $193 million of revenue, but in the annual report RINO filed for 2009 with the China State Administration for Industry and Commerce, it reported only $11 million of revenue. This discrepancy, "along with other accounting inconsistencies and questionable transactions between RINO and its management, has raised red flags and prompted an internal review."

 

RINO joins a growing list of Chinese companies that have been named as defendants in securities class action lawsuits in the U.S. in 2010. There have been as many as 14 new securities class action lawsuits filed against foreign domiciled in 2010 (out of a total of about 154 new lawsuits filed this year), but seven of the 14 (including the new lawsuit against RINO) involve Chinese companies.

 

The other six Chinese companies to be sued are Fuqi International (about which refer here), China Natural Gas (here), China-Biotics (here), Duoyuan Printing (here), Duoyuan Global Water (here), and China Green Agriculture (here). Interestingly six of the seven have been filed just since the last week of August 2010, all of which of course were filed after the U.S. Supreme Court’s decision in the Morrison case (about which refer here), which seemingly narrowed the range of foreign-domiciled companies U.S. private securities litigation exposure.

 

Taken collectively, these lawsuits could be interpreted to suggest that at least some Chinese companies have experienced some difficulties adapting to the burdens and responsibilities involved with a U.S. listing.

 

But there seems to be more going on here that just that. A review of the basic allegations in these cases suggests a common thread among at least some of the cases. In three of the cases – the ones involving China-Biotics, China Green Agriculture, and RINO – the allegation is that the companies reported different revenue and other financial information to the Chinese authorities than they reported in the SEC filings.

 

One might conjecture on the possible reasons why these companies might have reported different figures to their domestic authorities than they did in their SEC filings. For example, the companies might have been seeking to avoid domestic tax liabilities. (Of course, there is always the possibility that the differences in the reports are attributable to differing reporting conventions, but you would think that it that were the explanation, that would be disclosed in their SEC filings.) These companies’ reporting discrepancies are more than a little bit puzzling, as it seems probable that the differences would be detected, given the public availability of the SEC filings.

 

It probably should be added that while the recent upsurge in new lawsuit filings against Chinese companies is unquestionably noteworthy, this observation should also be put in context. According to news reports, 226 Chinese companies are currently listed on the NYSE, AMEX and NASDAQ. In the context of these 226 Chinese companies whose securities trade in the U.S., the seven securities lawsuits this year involving Chinese companies may appear less significant.

 

Nevertheless, when you have multiple companies domiciled in a single country outside the U.S. being sued in securities class action lawsuits over the course of just a few weeks, the phenomenon seems worthy of note.

 

Indeed, though the number of Chinese listings has continued to surge, questions about the listed companies have also followed, as for example in the August 26, 2010 Barron’s article "Beware This Chinese Export" (here). The Barron’s article particularly warns about Chinese companies that achieve their U.S. listing through a reverse merger with a domestic shell company. Among other things the article notes that:

 

The group has been a minefield of revenue disappointments and earnings restatements. Financial filings the companies make with the Securities and Exchange Commission often diverge from those filed with the Chinese government—by drastic amounts. Investor and analyst visits to corporate facilities in China reveal operations smaller and less impressive than shown in U.S. presentations. The companies too often select auditors who have previously signed off on the financials of companies that turned out to be busts. Some companies' securities filings don't disclose the involvement of promoters in China or the U.S., who …have disquieting track records in the stock market.

 

Similar concerns prompted the PCAOB to issue a July 12, 2010 warning about accounting practices associated with these Chinese companies, particularly those whose U.S. listing originated with a reverse merger. Securities analysts have expressed a certain wariness of these U.S. listed Chinese companies as well.

 

Given these concerns, it probably comes as no surprise that litigation has arisen. The likelihood seems to be that more securities suits involving Chinese companies will follow.

 

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In a November 9, 2010 order (here) in the Citigroup subprime-related securities suit, Southern District of New York Judge Sidney Stein dismissed a host of allegations and a number of individual defendants. However, Judge Stein denied the motion to dismiss as to plaintiffs’ claims regarding Citigroup’s exposure to its CDO portfolio, which Judge Stein described as the plaintiffs’ "principal" allegations.

 

Among the defendants who must answer these allegations are seven individual defendants, including former Citigroup CEO Charles Prince and former Citigroup board member (and former Treasury Secretary) Robert Rubin.

 

As reflected here, plaintiffs first sued Citigroup and certain of its directors and officers in November 2007. In their February 20, 2009 consolidated amended complaint, which named as defendants the company and 14 of its directors and offices, the plaintiffs alleged that the defendants had mislead investors about the company’s financial health and caused them to suffer damages when the truth about Citigroup’s assets were later revealed.

 

Judge Stein emphasized the length and weight of the amended complaint, noting that it is "536 pages long, contains 1,265 paragraphs, and weights six pounds." The amended complaint alleges that defendants misled investors about its exposure to what Judge Stein described as a "gallimaufry of financial instruments." However, as Judge Stein noted, the plaintiffs’ "principal grievance" is that Citigroup "did not disclose that it held tens of billions of dollars of super-senior tranche CDOs until November 4, 2007," and that even after that date, until April 2008, the company did not disclose the full extent of its exposure.

　

The basic thrust of the plaintiffs’ CDO-related allegations is that though the company disclosed that it was deeply involved in underwriting CDOs, the company did not disclose that billions of dollars of the CDOs had not been purchased at all but instead had been retained by Citigroup. In November 2007, the company disclosed that it was exposed to super-senior CDO tranches in the amount of $43 billion and that it estimated a write down of $8 to $11 billion of those assets. The plaintiff alleged that this disclosure omitted an additional $10.5 billion worth of holdings that the company had hedged in swap transactions.

 

In his November 9 order, Judge Stein found that the plaintiffs had adequately alleged that Citigroup’s CDO valuations were false between February 2007 and October 2007. In concluding that these statements were made with scienter, Judge Stein noted that the plaintiffs’ claims "concern a series of statements denying or diminishing Citigroup’s CDO exposure and the risks associated with it." These statements, Judge Stein found were "inconsistent with the actions Citigroup was allegedly undertaking between February 2007 and October 2007."

 

Citigroup was, Judge Stein found, "taking significant steps internally to address increasing risk in its CDO exposure but at the same time it was continuing to mislead investors about the significant risk those assets posed. This incongruity between word and deed establishes a strong inference of scienter."

 

Judge Stein then went on to hold that the plaintiffs allegations of scienter against seven of the individual defendants was insufficiently particularized, but that the allegations against the remaining defendants were sufficient, in part because these individuals attended meetings concerning the company’s CDO exposure during the period in question and in part because they were responsible for the company’s SEC filings, and therefore bear responsibility for the statements under the "group pleading doctrine."

 

Judge Stein also found that even the company’s disclosures in November 2007 were materially misleading because they omitted to disclose the additional $10.5 of CDO exposure that the company had hedged. However, Judge Stein concluded that the allegations of individual scienter were only sufficient against the company’s CFO at the time, Gary Crittenden.

 

Judge Stein the concluded that the plaintiffs’ allegations regarding the other financial instruments in the "gallimaufry" of financial assets were insufficient. Judge Stein granted the motion to dismiss the plaintiffs allegations as to all of the financial assets other than the company’s CDO assets.

 

Discussion

Though Judge Stein significantly narrowed the plaintiffs allegations and though he dismissed out seven of the 14 individual defendants, substantial portions of plaintiffs’ complaint survived – and more importantly from the plaintiffs’ perspective, what Judge Stein himself described as the plaintiffs’ "principal" allegations substantially survived dismissal, and the plaintiffs managed to keep some of the higher profile defendants in the case as well.

 

I am sure the plaintiffs in this case would have preferred to keep their other allegations in this case, but with the remaining allegations, the plaintiffs still have a substantial basis on which to proceed. As I have often noted on this blog, the name of the game for the plaintiffs is to survive dismissal and to try to move on to the settlement phase. Of course the defendants may well take a different view, and where this case may ultimate wind up remains to be seen.

 

In the meantime, I do think it is interesting to note that pretty much all of the mega subprime cases – AIG, Countrywide, Fannie Mae, Washington Mutual, New Century Financial – seem to have survived the initial pleading stage, in whole or in part. Thus while there has been considerable discussion (among other places, on this blog) about whether or not the plaintiffs are fairing poorly in the subprime lawsuit dismissal motions, it definitely seems that in the high profile cases, the plaintiffs claims are managing to survive.

 

As noted here, Judge Stein has previously denied in part the motions to dismiss in the separate subprime-related Citigroup bondholders’ action.

 

I have in any event added the Judge Stein’s ruling in the Citigroup case to my running tally of subprime and credit crisis-related dismissal motion rulings, which can be accessed here.

 

Special thanks to a loyal reader for providing me with a copy of the Citigroup ruling.

 

The Latest on the BankAtlantic Securities Class Action Trial: While the rest of us have been going about our daily business, the BankAtlantic Securities Class Action trial has been going forward in federal court in Miami. Now, according to a reliable source, after four weeks of trial, 13 fact witnesses and a damages expert, the lawyers are going to begin delivering their summations today. The case could be going to the jury shortly. The verdict form weighs in at a hefty 53 pages. Stay tuned, we could have a rare securities class action jury trial verdict just ahead.

 

The News from San Antonio: I have arrived in San Antonio for the PLUS International Conference, where I have noticed among other things that the winner of the PLUS1 Award at this year's conferfence will be my good friend and former law partner Gary Dixon of the Troutman Sanders firm. The PLUS1 award is given annually to the person "whose efforts have contributed to the advancement and image of the professional liability industry." No one deserves this award more than Gary, who is one of the lions of our industry. My congratulations to Gary. If you are at the conference this week, I hope you will plan on attending the award ceremony at lunch on Thursday to help congratulate Gary for this honor.

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There is a reason that when class action settlements are announced, they are described as preliminary and subject to final approval – sometimes the settlements fall apart before the case is finally put to rest. That appears be what has happened with the Schwab YieldPlus subprime-related securities class action lawsuit.

 

As discussed here, in April 2010, the parties to the Schwab YieldPlus securities suit announced a preliminary settlement of the plaintiffs’ securities claims. At the time, the settlement did not include plaintiffs’ separate state law claims. In May 2010, Schwab announced the separate settlement of the state law claims. The total value of the agreed settlements was about $235 million.

 

However, in a November 8, 2010 press release (here), Charles Schwab Corporation announced that it had notified the plaintiffs in the case that it was invoking the termination provisions of the settlement agreement and withdrawing from the case.

 

As reflected in the November 8, 2010 notice of withdrawal that Schwab filed with the court, a copy of which can be found here, after the parties initially reached their settlements, the plaintiffs contended that the remained free to pursue certain state law claims on behalf of non-California residents. The specific claims at issue are asserted under the California Business & Professions Code Section 17200.

 

Schwab had contended that the form of judgment agreed upon as part of the settlement had been designed to release all claims. However, in an October 14, 2010 order (here), Northern District of California William Alsup, referring to the Section 17200 claims as "the governance claim," said that "at no time was the governance claim certified for class treatment for anyone residing out of California" and he cited language in the settlement notice that the Section 17200 claims were "not released in the settlement." He concluded that, as a result, the non-California residents’ claims "were never extinguished by the settlement," and "federal securities class members residing outside of California are free to sue under Section 17200."

 

In its motion to withdraw, Schwab commented that it had "agreed to a generous settlement," but only in exchange for "an end to all litigation," adding that "now that Plaintiffs have reneged on the primary consideration Schwab was to receive…Schwab has no choice but to withdraw from the joint motions for final approval."

 

It is hard to tell from the outside exactly what happened here – that is, whether there was some problem or misunderstanding about the way the release was put together, whether the plaintiffs somehow sandbagged the defendants, or if there was just some massive misunderstanding with respect to whether or not all of the Section 17200 claims had been settled.

 

The conclusion that there is no way to tell from the outside what is going on is reinforced by Judge Alsup’s October 14 order. My initial instinct was to be sympathetic with Schwab’s complaint that it had thought it was buying complete repose for its millions, but that clearly is not the conclusion that Judge Alsup reached. All in all, this is a little bit of a head-scratcher.

 

The one thing is clear is that as a result of Judge Alsup’s order, Schwab concluded that it had no choice except to blow up the settlement. Perhaps that will mean the case will now go forward, but of course there is always the possibility that the motion to withdraw was a form of negotiation carried out by other means.

 

I recently noted that it seemed as if not many of the subprime related cases were settling, even though scores of the subprime cases have survived dismissal motions. Well, now there is one fewer subprime cases. Perhaps the Schwab settlement debacle explains why so few other cases have settled – these cases are complex and the settlement efforts are tricky.

 

I have modified my list of subprime and credit crisis related case resolutions, which can be accessed here, to reflect Schwab’s motion to withdraw from the settlement.

 

Pretty Soon You’re Talking About Real Money: It just in August that the lawyers in the Lehman Brother proceedings had approached the bankruptcy court to request the release an additional $35 million from the company’s D&O insurance policies. (My post about the prior request can be found here.) The total amount of insurance that the court has now authorized, including the $35 million, is $70 million.

 

Now the lawyers are back. Only this time the lawyers want more. A lot more.

 

On October 27, 2010, the lawyers for the debtors request a fresh $90 million, which Wayne State Law Professor Peter Henning, writing on the New York Times Dealbook blog (here), interprets to mean that "the government could be closer to ending its civil and criminal investigations and moving ahead with some type of enforcement." A copy of the latest motion can be found here.

 

As Henning explains, Lehman had one $250 million D&O insurance tower for the period May 2007 to May 2008, and a second $250 million insurance tower for the period May 2008 to May 2009. The prior payments were made under the first of these two towers. The prior $35 million was exhausted in part by the settlement of a securities arbitration against Lehman’s former CEO, Richard Fuld. The remainder has gone to defense fees.

 

In their latest motion for relief from the automatic bankruptcy stay, in order to permit the payment of the $90 million, the debtors are requesting the authorization of payments from the fifth, sixth and seventh excess D&O insurers in the 2007-08 tower in the total amount of $55 million, and payments of $35 million from the primary and first level excess insurers in the D&O 2008-09 tower. According to the motion, the primary and first level excess insurers in the 2008-09 towers have "recognized coverage" for certain legal proceedings.

 

Assuming this request will be granted, a total of $135 million out of the $250 million total in the 2007-08 tower will have been released, and now the erosion of the second tower has begun as well. The motion does not explain why the requested amount has ramped up so rapidly from the prior request, but the implications are, as Professor Henning notes, serious. At the time of the prior request I suggested that the lawyers just might succeed in depleting the entire $250 million of the 2007-08 tower. At this rate they may get there even sooner than I previously supposed. And now they are working on the second tower as well. The fees clearly are accumulating more rapidly than the $5 million a month previously supposed.

 

My prior post has an detailed review of the implications of these massive costs.

 

Special thanks to Professor Henning for providing me with a link to his blog post.

　

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In a resolution of one of the longest running subprime-related securities class action lawsuits, the parties to the Toll Brothers subprime securities suit have agreed to settle the case for $25 million. The parties’ stipulation of settlement filed on October 28, 2010 can be found here.

 

The Toll Brothers case was among the first of the subprime-related securities suits when it was first filed in April 2007. As reflected in greater detail here, the plaintiffs allege that between December 9, 2004 and November 8, 2005, the defendants made several misrepresentations relating to the company’s "ability to open new active selling communities at the rate necessary to support its financial projections, traffic in its existing communities, demand for Toll Brothers homes, and the ability to continue its historically strong earnings growth." The Amended Complaint further alleges that despite "adverse developments" the company raised its earning projections, which allegedly inflated the company’s share price, facilitating the defendants’ sale of 14 million of company shares for proceeds of over $617 million.

　

The Amended Complaint also alleges that "within days" of the completion of the insider sales, defendants "shocked investors" in a series of disclosures between August and November 2005 revealing that traffic and sales were declining, as a result of which the company’s share price declined 43% from its class period high.

 

As reflected in greater detail here, in August 2008, the district court denied the defendants’ motion to dismiss. After extensive additional procedural wrangling that included a trip to the Third Circuit, the parties agreed to settle the case during mediation.

 

　

A November 2, Reuters article discussing the settlement can be found here.

 

The interesting thing to me about this development is the simple fact that this case has settled. For whatever reason, there have been very few settlements of the subprime-related securities class action lawsuits, even though we are now will into the fourth year of the subprime litigation wave.

 

By my count, there have still only been 16 settlements of subprime and credit crisis related securities class action lawsuits, even though there have been over 220 subprime related securities class action lawsuits filed since the beginning of the subprime litigation wave in early 2007 and even though scores of cases have survived the initial dismissal motion. I would be very curious to know if any readers out there have any suggestions on why so few of these cases have settled.

 

It is probably worth noting that even though there have been only sixteen settlements of subprime and credit crisis-related securities class action lawsuits, those sixteen settlements total over $1.85 billion dollars (including the $624 million settlement in the Countrywide case).

 

It is also interesting to note that, because the Toll Brothers lawsuit was filed in early 2007, after the beginning of the subprime litigation wave, the lawsuit is counted among the subprime related cases, the class period for the case goes from December 9, 2004 and November 8, 2005 and relates to events and circumstances that allegedly took place well before the subprime meltdown really gained momentum. The lawsuit’s relation back to the earlier time period is reminder that the later problems were in many ways foreshadowed by earlier events.

 

In any event, I have added the Toll Brothers settlement to my running tally of subprime and credit crisis-related settlements and other case resolutions, which can be found here.

 

The Subprime and Credit Crisis-Related Cases Are Still Coming In: While the earliest cases are now finally being resolved, there are still subprime and credit crisis-related cases being filed. The latest case is the lawsuit filed on November 3, 2010 in the Northern District of Florida against The St. Joe Company and certain of its directors and officers.

According to the plaintiffs’ lawyers November 3 press release, the Complaint (a copy of which can be found here) alleges that the defendants failed to disclose that:

 

(1) as the Florida real estate market was in decline, St. Joe was failing to take adequate and required impairments and accounting write-downs on many of its Florida based property developments; (2) as a result, St. Joe’s financial statements materially overvalued the Company’s Florida based property developments; (3) the Company’s financial statements were not prepared in accordance with Generally Accepted Accounting Principles; (4) the Company lacked adequate internal and financial controls; and (5) as a result of the foregoing, the Company’s financial statements were materially false and misleading at all relevant times.

 

The lawsuit follows on the heels of an October 13, 2010 report critical of the company written by hedge fund manager David Einhorn, the President of Greenlight Capital. Einhorn is perhaps best known for his very public bet against Lehman Brothers prior to the firm’s collapse. Einhorn’s report about St. Joe was the subject of a November 3, 2010 Wall Street Journal article (here).

 

My list of all 222 subprime and credit crisis related lawsuits that have been filed since February 2007 can be found here.

 

The Nuts and Bolts of D&O Insurance: I hope all readers have noticed that I have added a reference (with a hyperlink) in the right hand side bar to a single-page index for my multipart series on D&O insurance. Tell a friend.

 

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Among the many cases filed as part of the subprime litigation wave are the numerous cases filed on behalf of holders of mortgage-backed securities against the firms that issued the securities. In many of these cases, the plaintiffs have not alleged that they have failed to receive payments due under the securities, but rather they have alleged that their investments have declined in value or are now riskier than when purchased.

 

As these cases accumulated in 2008 and 2009, observers questioned whether these investors’ claimed harms represented injuries cognizable under the federal securities laws, as I discussed in an earlier post.

 

In an October 14, 2010 decision (here), Southern District of New York Judge Miriam Goldman Cedarbaum held in a case filed on behalf of holders of certain asset-backed certificates issued by Goldman Sachs-related entities that, where the holders had not alleged that they had failed to receive payments due under the certificates, they had failed to allege injuries cognizable under the federal securities laws.

 

The investors had purchased the asset-backed certificates in 2007 offerings. The certificates entitled the holders to monthly distributions of interest, principal or both. The offering documents for the certificates warned investors that the offering underwriters "cannot assure you that a secondary market" for the securities will exist, and "consequently, you may not be able to sell your certificates readily or at prices that will enable you to realize your desired yield."

 

In its amended complaint, the plaintiff did not allege that it had failed to receive the monthly distributions. The harm the plaintiff claimed is that a hypothetical sale in the secondary market at the time of the suit "would have netted, at most, between 35 and 45 cents on the dollar." The plaintiff also claimed that it is exposed to "much more risk than the Offering Documents represented with respect to both the timing and absolute cash flow to be received."

 

In her October 14 ruling, Judge Cedarbaum noted that at a prior hearing she had previously denied the defendants’ motion to dismiss the plaintiffs’ claims based on Section 12 (a) (2) of the ’33 Act. However, she granted the defendants’ motion to dismiss plaintiffs’ Section 11 claims, holding that the plaintiffs alleged injuries were insufficient to state a claim.

 

In rejecting the sufficiency of plaintiff’s argument that that their certificates would have a diminished value in a hypothetical sale, Judge Cedarbaum noted that "the Certificates were issued with the express warning that they might be resalable." She concluded that because the plaintiff "made an investment that it knew might not be liquid, it may not allege injury based upon the hypothetical price of the Certificates on a secondary market at the time of the suit." She noted further that the complaint failed to allege that a secondary market for the certificates "actually exists" and also failed to allege "any facts regarding the actual market price" for the certificates at the time of the suit.

 

Judge Cedarbaum also rejected the sufficiency of the plaintiff’s allegations about the increased risk of diminished cash flow in the future, not that "Section 11 does not permit recovery for increased risk." She said that "to allege an injury cognizable under Section 11," the plaintiff must "allege the actual failure to receive payments due under the Certificates," adding that though the plaintiff has "had three opportunities to amend its complaint, it has never made the allegation."

 

Discussion

As far as I am aware, Judge Cederbaum’s ruling is the first in which mortgage-backed investors’ Section 11 claims have been dismissed for lack of cognizable injury based on a failure to allege that payments due under the securities had been terminated or interrupted. There were quite a few of these mortgage-backed securities lawsuits filed during 2008 and 2009, and Judge Cedarbaum’s decision potentially could be quite significant in these other cases, at least where the investors have not alleged that payments due under the instruments have failed.

 

One aspect of this decision is the presence in these instruments’ offering documents of precautionary language warning about the potential unavailability of a secondary market for the instruments. Investors in instruments with offering documents that lacked this precautionary language may still be able to try to argue establish a cognizable injury based on the diminished resale value of the securities. However, those other claimants would also have to be able to allege that there actually is a secondary market for their securities and will have to allege what the resale price would be in order to allege injury sufficiently.

 

In any event, Judge Cedarbaum’s ruling potentially could be sufficient in many of the other securities suits that mortgage-backed asset investors filed in 2008 and 2009.

 

Special thanks to Doug Henkin of the Milbank Tweed law firm for providing a copy of Judge Cedarbaum’s opinion. Doug is the co-author of a paper I cited in my earlier post raising the question of whether mortgage-backed asset investors would be able to satisfy the requirements under Section 11 to allege a cognizable injury. An updated version of the paper can be found here.

 

I have in any event added Judge Cedarbaum’s ruling to my running tally of subprime and credit crisis related dismissal motion rulings, which can be found here.

 

A Securities Litigator’s Guide to D&O Insurance: Readers of this blog may be interested to know about two articles written by Jack Cinquegrana and John R. Barankiak Jr. of the Choate Hall law firm. The articles, which can be found here, are entitled "A Securities Litigator’s Guide to D&O Insurance," provide a brief overview of D&O insurance basics and also discusses issues that frequently arise concerning payment of defense costs and settlements. The articles are relatively short but contain some interesting observations and comments.

 

Sorry: My blog hosting service experienced a variety of service outages and problems on Monday. Readers may have experienced delays in receiving email notifications and difficulty in accessing the most recently added content. I am assured the problems have been addressed. I apologize for the inconveniences yesterday.

　

　

　

　

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Yet another securities class action lawsuit against a non-U.S. company has been dismissed based on the U.S. Supreme Court decision in Morrison v. National Bank of Australia. In a decision that specifically addresses many of the questions that have been discussed in the wake of Morrison, Southern District of New York Judge John Koeltl, in an October 4, 2010 opinion (here), granted the defendants’ motion to dismiss the Swiss Re subprime-related securities class action lawsuit..

 

Though the case was dismissed, the opinion does suggest some alterative approaches plaintiffs may use to try to avoid Morrison’s preclusive effect.

 

As discussed here, the plaintiffs first sued Swiss Re and certain of its directors and officers in 2008. As Judge Koeltl later put it in his October 4 opinion. "the gist of many of the plaintiffs’ alleged misstatements or omissions is that Swiss Re failed to disclose that it had issued two [credit default swaps, of CDSs] that insured CHF 5.3 billion of assets… It eventually suffered a CHF 1.2 billion loss on these CDS when it suddenly wrote down the value of the CDOs and sub-prime securities that were insured by the CDSs."

 

After the Supreme Court issued its opinion in Morrison, the defendants in this case moved to dismiss, contending that the Exchange Act did not apply to the plaintiffs’ purchases of their Swiss Re securities, which had taken place on a non-U.S. exchange.

 

The plaintiff, Plumbers Union Local No. 12 Pension Fund, argued that Morrison did not preclude their claims, even though the transaction on which they had acquired their shares had taken place on a London-based subsidiary of the Swiss stock exchange. The plaintiffs argued that they had decided to purchase their Swiss Re shares in Chicago, and that the purchase orders were placed electronically by traders located in Chicago. The plaintiffs contended that the purchase occurred when and where an investor places a buy order.

 

Judge Koeltl, citing the several recent decisions, held that the term purchase "cannot bear the expansive construction plaintiffs propose, at least for purposes of Morrison’s transactional test." A contrary ruling, Judge Koeltl said "would require a fact-bound, case-by-case inquiry into when exactly an investor’s purchase order became irrevocable. It would also produce the multiplicity that the Supreme Court directed courts to avoid."

 

Accoringly, Judge Koeltl held that "a purchase order in the United States for a security that is sold on a foreign exchange is insufficient to subject the purchase to the coverage of section 10(b) of the Exchange Act." He acknowledged that there might be "unique circumstances in which an issuer’s conduct takes a sale or purchase outside this rule," but "the mere act of electronically transmitting a purchase order from within the United States is not such a circumstance."

 

Judge Koeltl also expressly rejected the suggestion that merely because the purchaser was domiciled in the U.S., that the U.S. securities laws applied to the transaction, noting that "a purchaser’s citizenship does not affect where a transaction occurs; a foreign resident can make a purchase within the United States, and a United States resident can make a purchase outside the United States.." Where the decision to purchase took place and even the location of the harm are also irrelevant. .

 

Having determined that the U.S. securities laws do not apply to the plaintiffs’ shares, Judge Koeltl then addressed the plaintiffs’ argument that even if they could not assert claims under the U.S. securities laws, they could assert their claims under state common law and the Court would have diversity of citizenship jurisdiction over such claims.

 

The parties had previously stipulated that if the plaintiffs’ claims under section 10(b) where dismissed under Rule 12 (b)(6) for failure to state a claim on which relief could be granted (as opposed to a dismissal under Morrison), the dismissal would also be dispositive of any common law fraud claims.

 

Judge Koeltl then proceeded to address the defendants’ motion to dismiss the section 10(b) claim and granted the motion to dismiss, finding that the plaintiffs had failed adequately to allege that the defendants had made materially or misleading statements. Judge Koeltl also found that the plaintiffs had failed adequately to allege scienter. Based on this determination, he concluded granted the defendants’ motion to dismiss, which was determinative not only of plaintiffs’ section 10(b) claims but also the plaintiffs’ claims for common law fraud.

 

Discussion

There are a number of interesting things about this opinion. The first is the specificity of Judge Koeltl’s analysis about what factors are or are not relevant to the post-Morrison analysis of whether or not the U.S. securities laws apply. His analysis seems to make clear that the location on the exchange on which the transaction took place is going to be determinative, and neither the citizenship nor location of the purchaser is relevant.

 

This view, which is consistent with the growing string of post-Morrison decisions, suggest that the so-called "f-squared" cases (that is, involving claims by U.S. claimants who purchased their shares in a non-U.S. company on a non-U.S. exchange) seem increasingly unlikely to have remain viable post-Morrison.

 

Judge Koeltl’s opinion does not address the more controversial question, raised sua sponte by Judge Berman in his recent opinion in the SocGen case (about which refer here), that under Morrison even the claims of purchasers who acquired ADRs in domestic transactions are precluded. Indeed, Judge Koeltl’s opinion is silent on the question of whether Swiss Re ADRs trade in the U.S.

 

But though Judge Koeltl’s opinion does not address the claims of domestic purchasers of ADRs, his analysis seems to suggest that he would not have gone as far as Judge Berman and concluded that the securities don’t apply to U.S. ADR purchases. First, he states that "Morrison held that a domestic purchase or sale is necessary (and as far as the opinion reveals, sufficient) for section 10b) to apply to a security that is not traded on a domestic exchange" -- which suggests that in Judge Koltl’s view, Morrison does not preclude claims even of domestic ADR purchasers who acquired their shares over the counter, rather than on an exchange.

 

The Swiss Re decision is the latest in a string of rulings suggesting that plaintiffs face significant hurdles in attempting to pursue securities claims against companies domiciled outside the U.S., particularly where the company’s share trade largely outside the U.S. However, the Swiss Re decision does suggest, albeit indirectly, some the ways the plaintiffs may attempt to circumvent these obstacles.

 

Thus, for example, even though Judge Koeltl’s ruling on the defendants’ motion to dismiss resulting in a dismissal of the plaintiffs’ common law claims, there was certainly nothing in his opinion that suggests that plaintiffs could not assert such claims. The fact is that Morrison only applies to claims under the Exchange Act. Although the plaintiffs’ common law claims were dismissed in Swiss Re, the clear suggestion is that in another case, sufficient allegations could survive a dismissal motion, in which circumstance the case would go forward, notwithstanding Morrison.

 

　

A footnote in the Swiss Re case suggests another possibility. In footnote 5, Judge Koeltl observes that "the plaintiffs also noted that they might have a claim under Swiss law, but they have not pursued that avenue." Whether the plaintiffs in fact would have had such a claim under Swiss law and whether the U.S. court would have had an appropriate jurisdictional basis for entertaining such a claim is not addressed in Judge Koeltl’s opinion. But at least the theoretical possibility is posed by the footnote. UPDATE: An October 6, 2010 Law.com article (here) reports that the plaintiff shareholdes in the Toyota securities class action lawsuit have amended their complaint to add allegations of violations of Japanese securities laws, which demonstrates that one way plaintiffs may attempt to circumvent Morrison is by asserting in a U.S. lawsuit alleged violations of the securities laws of the non-U.S. company's home country.

 

Whether plaintiffs’ lawyers might ultimately choose to frame their U.S. claims against foreign companies based on common law or foreign law rights of recovery remains to be seen. But if the present trend of decisions continues, these alternatives may begin to look more attractive.

 

I have in any event added the Swiss Re decision to my running tally of subprime and credit crisis-related lawsuit dismissal motion rulings, which can be accessed here.

 

Special thanks to the several readers who sent me copies of the Swiss Re decision.

 

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As discussed in an earlier post, the BankAtlantic subprime related securities lawsuit is headed to trial. According to an October 5, 2010 Law.com article (here), jury selection in the case will begin this Friday, October 8, 2010, in federal court in Miami.

 

The Law.com article suggests the case has become contentious as it has moved forward. Among other things, the article quotes defense counsel as saying that "I’m offended by this case," which he characterizes as "a completely made-up, frivolous claim." Defense counsel reportedly has moved for sanctions against the plaintiffs’ attorney. (The article does not mention that in connection with the motions for summary judgment, Judge Ursula Ungaro granted summary judgment for plaintiffs on the issue of falsity, as to certain of the allegedly misleading statements, as discussed here.)

 

If the case does proceed to trial it would represent one of one only a very small handful of securities class action lawsuits that have actually made it to trial since the enactment of the PSLRA in 1995.

 

According to information compiled by Adam Savett, the Director of Securities Class Actions at the Claims Compensation Bureau, since the enactment of the PSLRA, there have only been nine securities class action lawsuits based on post-PSLRA conduct that have actually been tried to a jury verdict. Another seven cases alleging post-PSLRA conduct went to trial but were compromised or otherwise resolved prior to verdict. An additional eleven securities cases have gone to trial post-PSLRA but involved pre-PSLRA conduct.

　

In other words, if the BankAtlantic case actually does go forward, it would represent only the 28^th case to go to trial since the enactment of the PLSRA, and only the 17^th case since the enactment of the PSLRA involving post PSLRA conduct to go to trial. If the BankAtlantic case actually goes to verdict, it would represent only the tenth securities class action lawsuit to go to verdict post-PSLRA involving post-PSLRA conduct.

 

For those who are interested to know how the nine post-PSLRA verdicts have turned out, the current tally (taking into account post-verdict proceedings and reflecting only the current status of post-verdict proceedings) is as follows: Plaintiffs 5, Defendants 4. (The scoreboard is subject to revision pending the outcome of additional proceedings in several of the cases.)

　

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There was a flurry of subprime related securities lawsuit dismissal motion activity at the end of last week, and although in some cases the motions were granted and in other instances large parts of the cases were dismissed, in several instances enough of the cases survived for the plaintiffs to tally the rulings in the win column. Among the cases where the plaintiffs retained enough to live for another day were at least one high profile case and another interesting auction rate investor case.

 

Fannie Mae: In a September 30, 2010 order (here), Southern District of New York Judge Paul A. Crotty granted in part and denied in part the defendants’ motions to dismiss the plaintiffs’ ’34 Act claims in the Fannie Mae subprime-related securities class action lawsuit. (In a November 29, 2009 order, here, Judge Crotty had previously granted the defendants’ motions to dismiss the plaintiffs’ claims under the ’33 Act).

 

The plaintiffs’ ’34 Act claims involved three principal allegations: (1) that the defendants had misrepresented Fannie’s exposure to subprime and Alt-A mortgage markets and related risks; (2) that the defendants had misrepresented the quality of Fannie’s internal risk controls (3) that Fannie had filed materially inaccurate financial statements.

 

Judge Crotty granted the defendants’ motions to dismiss both as to the allegations that Fannie had misrepresented its subprime and Alt-A exposure and as to the allegations that Fannie has filed inaccurate financial statements. However, Judge Crotty denied the dismissal motions of the company itself, its CEO and its Chief Risk Officer, with respect to the allegations that the defendants had misrepresented the quality of Fannie’s internal controls.

 

In granting the motions to dismiss as to allegations concerning Fannie’s exposure to subprime and Alt-A mortgages, Judge Crotty ruled that Fannie’s public filings contained cautionary language that warned investors about the risks of Fannie’s subprime and Alt-A investments. He also held that the plaintiffs had failed to explain why the defendants’ statements regarding Fannie’s subprime and Alt-A investments were false. Finally, he held that the plaintiffs had failed to allege that the defendants had acted with scienter in making statements about Fannie’s subprime and Alt-A exposure.

 

In granting the motions to dismiss as to the allegations that Fannie filed inaccurate financial statements, Judge Crotty held that the plaintiffs had not alleged sufficient facts to establish that Fannie’s financial statements were false at the time they were issued. Judge Crotty also noted that Fannie’s regulators had never claimed that Fannie had committed any GAAP violations and had never asked for restatements of any of Fannie’s financial statements for the class period, but at the same time reported repeatedly that Fannie was adequately capitalized.

 

In denying the motions to dismiss as to the plaintiffs’ allegations that the defendants had misrepresented the quality of Fannie’s internal risk controls, Judge Crotty relied heavily upon three emails that had gone between the company’s Chief Risk Officer and its CEO. In these emails, the Chief Risk Officer complained, among other things, that the company "was not even close to having the proper control processes for credit, market and operational risk."

 

Judge Crotty said that these statements "show that Fannie may have been saying one thing while believing another" and are sufficient to survive a motion to dismiss. However, because the plaintiffs had not shown that two of the other individual defendants were aware of the emails, Judge Crotty granted these two defendants’ motions to dismiss, while denying the dismissal motions of the company, its CEO and the Chief Risk Officer.

 

Perrigo Company: As discussed here, the auction rate securities lawsuit filed against Perrrigo and certain of its directors and offices did not involve the usual allegations that an auction rate securities seller had misrepresented the securities in connection with the securities’ sale; rather, Perrigo was an auction rate securities investor, and the plaintiffs, Perrigo shareholders, alleged that the defendants had misrepresented the company’s own investment exposure to auction rate securities.

 

Essentially, the plaintiffs alleged that during a period in 2008 and early 2009, the company failed to write down the value of its auction rate securities investments, and also failed to acknowledge publicly that it has purchased its auction rate securities from Lehman Brothers, and was therefore not going to benefit from the same kind of redemption as had other auction rate securities investors who had purchased their securities from, for example, Merrill Lynch, Citigroup and UBS. On February 3, 2009, the company reported that it had incurred a significant charge related to the write down of the auction rate securities and also revealed the Lehman connection.

 

In his September 30, 2010 order (here) denying the defendants’ motions to dismiss, Southern District of New York Judge Thomas Griesa had that the "plaintiffs argue persuasively that the identical factors that caused Perrigo to drastically write down the value of the ARS on February 3, 2009 – increased credit and liquidity risks – were operative and evident to defendants at the time they issued the November 6, 2008 statements." Judge Griesa also found that the plaintiffs had sufficiently alleged materiality, scienter and loss causation.

 

WaMu Mortgage Pass-Through Certificates: In a September 28, 2010 order (here), Western District of Washington Judge Marsha Pechman granted in part and denied in part the dismissal motions in the securities class action lawsuit that had been brought by investors who had purchased interests in certain Washington Mutual Mortgage Pass-Through Trusts. The defendants in the case included Washington Mutual and certain of its subsidiaries, as well as certain officers of the subsidiaries who had signed the offering documents, and the rating agencies which had provided credit ratings for the investments.

 

Judge Pechman first ruled that the named plaintiffs lacked standing to assert claims with respect to 25 of the 36 offerings at issue because the plaintiffs had not purchased securities in connection with those 25 offerings. In addition, Judge Pechman also dismissed allegations as to three other offerings as time-barred.

 

With respect to the remaining offerings, Judge Pechman found that the plaintiffs had adequately alleged misrepresentation in connection with the offering documents’ statements about the underwriting guidelines used in connection with the origination of the underlying mortgages. She observed that "in essence, Plaintiffs allege the underwriting guidelines ceased to exist," adding that "the absence of underwriting standards could make the identified statements misleading."

 

However, she held that the plaintiffs had not alleged actionable misrepresentations with respect to the offering documents’ statements about appraisals and loan to value ratio, noting that the "allegations on this issue are simply too conclusory." With respect to the alleged failure to disclose the credit ratings alleged conflict of interest, she concluded that "because reasonable investors knew that the rating agencies were paid by the issuers, the alleged misrepresentation is immaterial.

 

Judge Pechman also rejected the defendants’ arguments that the plaintiffs had not adequately alleged economic loss, since the plaintiffs have not alleged that they failed to receive an income stream from the certificates. Judge Pechman said that plaintiffs allegations "give rise to the inference that the value of the security is much less that the purchase price," and the "mere fact that Plaintiffs may have difficulty substantiating the exact nature of their loss in an illiquid market does not necessitate dismissal."

 

Oppenheimer Auction Rate Securities: In a September 29, 2010 order (here), Judge Loretta Preska granted the defendants’ motion to dismiss the auction rate securities lawsuit that had been brought against Oppenheimer Holdings and one of its subsidiaries. The Oppenheimer lawsuit is one of the conventional auction rate securities lawsuits, in that it had been brought by auction rate securities buyers against the firm that sold them the investments.

 

The plaintiffs contend that in connection with their purchase of the securities they had been misled about the nature and safety of the securities as well as the nature and operation of the market for the securities. The plaintiffs allege that as a result of the failure of the auction rate securities market in February 2008, they are stuck holding illiquid securities for which there is no market.

 

In granting the motions to dismiss, Judge Preska found that the plaintiffs had not sufficiently alleged scienter. Specifically, she found that the plaintiffs allegations of motive and opportunity were insufficient and that the alleged circumstantial evidence of scienter were also insufficient.

 

Among other things, Judge Preska found that the inference of scienter that plaintiffs urged "is not at least as strong as the inference that Oppenheimer negligently or carelessly provided insufficient training to its financial advisors and was merely negligent in not detecting and disclosing the imminent market collapse." The "more compelling inference" is that "Oppenheimer did not predict that all broker dealers would withdraw from the ARS market en masse."

 

Countrywide Asset-Backed Certificates Trust: In a mortgage-backed asset securities case that was not brought as a class action, on September 28, 2009 Judge Kevin Castel granted the motion of defendants Countrywide Home Loans and related entities, as well as certain Countrywide directors and officers, brought by two individual investors who had purchased mortgage backed securities from Countrywide. A copy of the order can be found here.

 

The plaintiffs, who had purchased over $540 million of the securities in their initial offerings, alleged that the offering documents contained material misrepresentations regarding the underlying loans, regarding the underwriting guidelines used in connection with the origination of the underlying loans; as well as regarding the selection and servicing of the underlying loans.

 

Judge Castel noted at the outset that this is the unusual case where the plaintiffs acknowledge that they knew that the underlying loans were "risky" and that the borrowers were "credit-blemished," but claim that they were misled because the loans were riskier than they were led to believe.

 

Judge Castle concluded both that the plaintiffs had insufficiently alleged misrepresentation and that the plaintiffs had insufficiently alleged scienter.

 

Discussion

In one sense, these dismissal motion rulings described above just represent a random selection of rulings as the courts continue to grind through the mountain of pending subprime and credit crisis related lawsuits. However I have some observations about this group of rulings.

 

First, though some subprime cases are dismissed outright and there are many other cases where substantial parts of the cases have been knocked out, in a substantial number of these cases the plaintiffs are either prevailing on the dismissal motions or at least managing to scrape out just enough to live to see another day. Thus for example in both the Fannie Mae and WaMu cases discussed above, even though huge parts of the cases were dismissed, enough remains for the plaintiffs to be able to continue to fight and to try to work toward an eventual payday.

 

Second, among the cases surviving in whole or in part are many of the highest profile cases. The Fannie Mae case is just the latest illustration of this, following close on the heels of the dismissal motion survival of the AIG case (refer here) and the Merrill Lynch/BofA merger case (refer here). This follow along with many of the other high profile cases such as the Countrywide, New Century and Washington Mutual. subprime related securities suits. The point is that while many of the subprime cases may have been dismissed along the way, the biggest, highest-profile cases are generally going forward.

 

Third, as the cases grind through, some important issues are being worked out. Thus, for example, as suggested in the Oppenheimer case, courts are now working through the merits of the auction rate securities cases. Up to this point, many of the auction rate securities cases that had been dismissed were based on mootness grounds, based on the defendants’ entry into regulatory settlements that more or less made plaintiffs whole. In Oppenheimer, the court addressed the merits of the plaintiffs’ allegations and found the allegations to be insufficient.

 

The Oppenheimer ruling is not the first auction rate securities lawsuit dismissal on the merits (refer for example here with respect to the Merrill Lynch auction rate securities case) but it does represent another instance suggesting that the plaintiffs in these auction securities cases are not doing particularly well.

 

By contrast, in the Perrigo case, the court found the plaintiffs’ allegations against Perrigo as an auction rate securities investor to be sufficient. The claimants in other cases against auction rate investors have not been as successful – refer for example here with respect to the dismissal motion grant in the securities suit brought against Mind M.T.I. Even though the plaintiffs’ record in these auction rate investor cases may be mixed, the Perrigo case at least shows that plaintiffs are overcoming initial pleading hurdles in at least some of these cases.

 

Finally, and notwithstanding the cases where the plaintiffs did manage to overcome the dismissal motion phase at least in part, there are still a number of cases where the defendants are succeeding in getting the cases dismissed, as evidenced in the Countrywide and Oppenheimer cases discussed above.

 

I have in any event added these decisions to my running tally of subprime and credit crisis-related dismissal motion rulings, which can be accessed here.

 

Many thanks to the several readers who forwarded copies of these decisions to me.

 

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So the U.S. Supreme Court held in Morrison that the investors who purchased their shares of a non-U.S. company on a foreign exchange cannot pursue claims under the Exchange Act, but securityholders who purchased American Depositary Receipts (ADRs) in the U.S. can still seek damages under the Exchange Act, right? Not according to a September 29, 2010 decision by Southern District of New York Judge Richard Berman in the Société Générale subprime-related securities class action lawsuit.

 

The defendants did not even raise the argument, and it may comes as somewhat of a surprise to some observers, but Judge Berman held, applying the U.S. Supreme Court’s decision in Morrison (about which refer here), that not even domestic purchases of SocGen’s ADRs can assert claims under the Exchange Act. As a result, Judge Berman wound up dismissing the entire case, and not just the claims of investors who purchased their SocGen shares on foreign exchanges.

 

As discussed below, if the Exchange Act does not even apply to domestic transactions in ADRs, the question that immediately arises as to who is left that might be able to assert Exchange Act claims against non-U.S. companies. The answer in many cases may be – well, nobody.

 

Background and Decisions

Investors had sued the French bank and certain of its directors and officers in 2008 following the revelations of Jérôme Kerviel 4.9 billion euro trading losses and the bank’s disclosures of its own losses from subprime mortgage related investments.

 

After the Supreme Court issued its opinion in Morrison, the defendants in the SocGen case had moved to dismiss the claims of two the three named plaintiffs. Both of the two were U.S. residents who had purchased their securities outside the U.S. Judge Berman quickly disposed of these claims, ruling (in reliance on, among other post-Morrison cases, the Credit Suisse case and the Alstom decision, about which refer here and here respectively) that the Exchange Act does not reach claims of such so-called "f-squared claimants."

 

Judge Berman didn’t stop there, but went on to consider the applicability of the Exchange Act to the claims of the third named plaintiff, UFCW, which had purchased ADRs over the counter in the United States. Even though the defendants had not even themselves raised the question, Judge Berman decided sua sponte that Morrison precludes UFCW’s claims as well.

 

In reaching this conclusion, Judge Berman said:

 

…even though Defendants do not argue that UFCW’s claims should be dismissed under Morrison, the Court concludes that the Exchange Act is inapplicable to UFCW’s ADR transactions. That is, the Court finds that because "[t]rade in ADRs is considered ‘predominantly a foreign securities transaction,’ Section 10(b) is inapplicable. An ADR ‘represents one or more shares of a foreign stock or a fraction of a share." Accordingly, UFCW’s claims are also dismissed.

 

Discussion

Judge Berman’s decision seemingly does not depend on the fact that UFCW purchased its ADRs over the counter, rather than on an exchange. His logic instead depends on the fact that what UFCW purchased were ADRs, the acquisition of which, he held, represents a fundamentally foreign transaction. -- which appears to suggest that Judge Berman would apply the same analysis even to ADRs purchased on an exchange.

 

It is fair to say that Judge Berman’s ruling is unexpected Not even the defendants in the case saw it coming. I think it also raises several questions.

 

First, Judge Berman’s analysis seems to depend on his rather brief review of what an ADR is and the nature of the transaction involved in a domestic ADR purchase. This seems to me like an issue that would have benefitted from full briefing by all parties. Certainly before any other court chooses whether or not to follow Judge Berman, a comprehensive examination of the relation of the purpose and uses of ADRs would seem to be indicated.

 

Second, and perhaps more importantly, Judge Berman’s analysis of whether or not the Exchange Act applies to UFCW’s ADRs arguably would have benefitted from more detailed consideration of whether the UFCW’s ADR purchases are "domestic transactions in other securities" to which the Exchange Act applies under the second prong of the Morrison standard.

 

Third, Judge Berman’s conclusion seemingly put domestic ADR transactions in an odd category about which it may be asked – which jurisdiction’s laws apply to these transactions if not U.S. law?. Are ADR purchases transactions without a country? (Or to put it in a less contentious frame, what jurisdiction’s securities laws make more sense than those of the U.S. to apply to ADR transactions in the U.S.)?

 

To the extent it is (if ever) conclusively established that the Exchange Act does not even reach domestic ADR transactions, that holding would represent a significant blow to the U.S. securities class action plaintiffs’ bar, as it would eliminate in many instances all or virtually all of the claims that had seemed to be left after Morrison.

 

If domestic purchasers of ADRs cannot assert claims under the Exchange Act, there would be very few if any holders of securities of many foreign domiciled companies who could assert Exchange Act claims. One wonders whether Judge Berman’s holding could spell the end (or virtual elimination) of many of the current securities cases pending against foreign companies – not only cases such as Vivendi, where plaintiffs won a jury verdict on the issue of liability, but also in more recently filed cases such as those initiated against BP and Toyota.

 

Not only would that seem to dramatically narrow, if not eliminate, what claims seemed to remain against foreign domiciled companies in the wake of Morrison, but it could drastically limit opportunities for security holders of non-U.S. companies to file future lawsuits under the Exchange Act.

 

The Morrison decision itself was a surprise, now Judge Berman seems to have compounded that surprise by taking Morrison in a completely unexpected direction. Of course, where it will all lead remains to be seen. I think more will be heard on the issues Judge Berman has raised.

 

I have in any event added the SocGen decision to my running tally of subprime and credit crisis related lawsuit dismissal motion rulings, which can be accessed here.  Special thanks to a loyal reader for supplying a copy of the SocGen decision.

 

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In a September 27, 2010 order (here), Judge Laura Taylor Swain denied the dismissal motions in the subprime-related securities class action lawsuit pending against AIG, certain of its former directors and officers, its accountant and its offering underwriters. Andrew Longstreth’s September 27 Am Law Litigation Daily article about the decision can be found here.

 

AIG, of course, was rescued from collapse only by a massive government bailout. Following the bailout, the company’s share price plummeted and securities class action litigation ensued. As discussed in detail here, the plaintiffs allege that the defendants violated the securities laws through various disclosures and omissions related to the company’s securities lending program and its credit default swap portfolio.

 

Both the credit default swap portfolio and the securities lending program entailed exposures to subprime mortgages. In many instances, the CDSs were placed in connection with securities backed by subprime mortgages. In the securities lending business, the cash received in exchange for the loaned securities was invested in mortgage-backed securities. Additional collateral requirements for these transactions triggered by the subprime mortgage meltdown led to the government bailout. The plaintiffs contend that these exposures were not adequately disclosed. The defendants moved to dismiss.

 

In her September 27 opinion denying the dismissal motions, Judge Swain held that the plaintiffs’ allegations were "adequate to plead material misrepresentations and omissions on the part of AIG," particularly with respect to the company’s exposure through its CDS portfolio to subprime mortgages.

 

Judge Swain rejected the defendants’ contention that the allegedly misleading statements were forward-looking statements protected by the bespeaks caution doctrine, observing that "generic risk disclosures are inadequate to shield defendants from liability for failing to disclose known specific risks" and that "statements of opinion and predictions may be actionable if they are worded as guarantees or supported by specific statements of fact." Judge Swain cited in particular the defendants’ alleged failure to disclose a litany "of hard facts critical to appreciating the magnitude of the risks described."

 

With respect to scienter, Judge Swain, after reciting a list of adverse undisclosed facts and developments allegedly known to defendants, concluded that the plaintiffs had "satisfied their burden of alleging facts giving rise to a strong inference of fraudulent intent," adding that "no opposing inference is more compelling."

 

Finally, Judge Swain also denied the defendants’ motion to dismiss on loss causation grounds. The defendants had argued that AIG’s stock price decline was "attributable to the decline experienced in the stock market generally, and in the financial services sector specifically." Judge Swain found that "the sharp drop in AIG’s stock price in response to certain corrective disclosures, and the relationship between the risks allegedly concealed and the risks that subsequently materialized, are sufficient to overcome the argument at the pleading stages" – although she added that the defendants ultimately may be able to prove that "some or all" of plaintiffs’ losses are "attributable to forces other than AIG."

 

Finally, Judge Swain held that the plaintiffs had standing to assert Section 11 claims, and that the Section 11 claims were timely, because, Judge Swain concluded, the plaintiffs were not on "inquiry notice" of possible misrepresentations until the September 2008 bailout. Judge Swain also denied the motions to dismiss the Section 11 claims against the offering underwriter defendants and AIG’s outside auditor.

 

Discussion

The AIG lawsuit is one of the highest profile cases filed as part of the subprime litigation wave. Given the magnitude and causes of the company’s losses, its near collapse, and the massive size of the government bailout, it may come as no surprise that this particular case managed to get passed the initial pleading hurdles.

 

But now that the case is going forward, the question arises of where the case ultimately will lead given the U.S. taxpayer’s stake in the company. Even if the company’s D&O insurance program is not substantially eroded by defense fees alone, the remaining insurance is unlikely to represent a significant percentage of the claimed losses of the plaintiff class. The underwriter defendants and auditor might be expected (at least by plaintiffs) to contribute substantially toward the case resolution, but the banks’ financial health is not what it once was.

 

All factors considered, especially the political peril associated with a significant taxpayer funded contribution toward settlement, there are certain questions about the ultimate resolution of this case.

 

The dismissal denial in the AIG case, coming close on the heels of the dismissal motion denial in the Sallie Mae case, does serve as a reminder that there are subprime-related lawsuits that are going to survive the initial motions stage, particularly those involving higher profile companies.

 

In any event, I have added the AIG opinion to my running tally of subprime and credit crisis lawsuit dismissal motion rulings, which can be accessed here.

 

Where are the Criminal Prosecutions?: As I noted in a recent post (here), members of Congress are asking why there have been so few criminal prosecutions in the wake of the subprime meltdown. Wayne State Law School Professor Peter Henning has an interesting September 27, 2010 column on the Dealbook blog (here) discussing these issues and presenting his theories on the reasons why there haven’t been more criminal cases.

 

NYSE Corporate Governance Commission Report: In yesterday’s post, the link to the NYSE Corporate Governance Commission’s report was faulty. I have now corrected the link. Readers who wanted the report but were unable to access it due to the faulty link can refer here for a copy of the report. I apologize for the faulty link (now corrected) in yesterday’s post.

 

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In a September 24, 2010 order (here), Southern District of New York William Pauley denied the dismissal motions of Sallie Mae and its former CEO, Albert Lord, but granted the dismissal motion of CFO (and later CEO), Charles Andrews, in the credit crisis-related securities suit against Sallie Mae first filed in 2008. The decision is interesting in a number of respects, particularly concerning scienter issues.

 

Sallie Mae is one of the country’s largest providers of student loans. The complaint, which Judge Pauley described as "a behemoth" containing "labyrinthine allegations," alleges that in a series of statements in 2007, the defendants misled the market about Sallie Mae’s financial performance for the purpose of inflating its share price.

 

Among other things, the company was attempting during this same period to complete a planned merger with J.C. Flowers, an investment firm, in a transaction that ultimately was not consummated and that resulted in separate litigation (later settled) between the company and Flowers.

 

The complaint alleges that during the class period, the company lowered its borrowing criteria to increase its portfolio of lower quality but higher margin private loans; hid defaults by changing its forbearance policy; and inflated profits through inadequate loan loss reserves. The defendants moved to dismiss. My prior post about the lawsuit can be found here.

 

In his September 24 order, Judge Pauley denied the motion to dismiss as to Lord and the company, but he granted the motion to dismissal as to Andrews.

 

Judge Pauley first concluded that the plaintiffs had adequately alleged falsity. The defendants had argued that the plaintiffs had not alleged particularized facts sufficient to establish the falsity of the loan loss reserves. However, Judge Pauley observed, the plaintiffs primary challenge to the accuracy reserves, made in reliance on the testimony of confidential witnesses, was that Sallie Mae had not accurately reported its loan default rate (which in turn led to insufficient loan loss reserves). Judge Pauley held that "given the error in the default rate metric and its impact on Sallie Mae’s other financial reports, such allegations are sufficient to plead falsity."

 

In concluding that the plaintiffs had adequately alleged scienter with respect to Lord and Sallie Mae, Judge Pauley noted three reasons on which plaintiffs relied which, "considered together," are "sufficiently concrete to give rise to an inference" that Lord and Sallie Mae "possessed the intent to defraud shareholders." The three reasons were the Flowers transaction, Lord’s stock sales, and certain equity forward contracts.

 

Judge Pauley found that Lord had financial incentives to try to complete the Flowers transaction, because upon completion of the deal he would have received a $225 million cash payment and been free to exercise options at above market prices. In addition, Judge Pauley found that, in order to keep merger prospects alive, Lord also had an incentive to keep the company’s share price above the trigger in its equity forward contracts, because had the price gone below the trigger, the company would have been required to repurchase about $2.2 billion in shares, which "would have torpedoed the merger and Lord’s payout."

 

Judge Pauley also found that Lord made "unusual" stock sales in February, August and December 2007. The December sales, which took place two days after the Flowers transaction collapsed, and which represented a "liquidation of 97% of his Sallie Mae holdings," were "unusual for a corporate officer by any measure."

 

Lord had offered explanations for his stock sales – the August sales allegedly "were necessary to pay the exercise price of expiring options and associated taxes" and the December sale was "necessary to satisfy a margin call" – but with respect to Lord’s exculpatory explanations, Judge Pauley said "these facts remain in dispute."

 

By contrast, Judge Pauley found that the allegation of scienter as to Andrews were insufficient. Andrews not only had sold no shares but the defendants alleged he had acquired shares.

 

Lord’s incentives to complete the Flowers transaction clearly influence Pauley’s decision. The insider sales alone seem less determinative, as the timing of his sales seemed less than profit maximizing. For example, his December sale, the one he contends was triggered by a margin call, came two days after the Flowers deal collapse). This sale seems inconsistent with the theory that it represented the culmination of a fraudulent scheme.

 

In other words, it was the presence of the unusual and case specific circumstance of the Flowers deal that in large part explains this case’s survival of the dismissal motions.

 

I have in any event added the Sallie Mae case to my running tally of subprime and credit crisis-related dismissal motion rulings, which can be accessed here.

 

Special thanks to a loyal reader for providing a copy of the Sallie Mae opinion.

 

Behemoth and Labyrinth: When Judge Pauley described the plaintiffs’ complaint as a "behemoth," he was invoking a literary reference with rather startling associations. According to Wikepedia, the word "behemoth" first appeared in the book of Job, which says the following about the beast:

15 Behold now the behemoth that I have made with you; he eats grass like cattle.
¹⁶ Behold now his strength is in his loins and his power is in the navel of his belly.
¹⁷ His tail hardens like a cedar; the sinews of his thighs are knit together.
¹⁸ His limbs are as strong as copper, his bones as a load of iron.
¹⁹ His is the first of God's ways; [only] his Maker can draw His sword [against him].
²⁰ For the mountains bear food for him, and all the beasts of the field play there.
²¹ Does he lie under the shadows, in the cover of the reeds and the swamp
²² Do the shadows cover him as his shadow? Do the willows of the brook surround him?
²³ Behold, he plunders the river, and [he] does not harden; he trusts that he will draw the Jordan into his mouth.
²⁴ With His eyes He will take him; with snares He will puncture his nostrils.

  

Judge Pauley also described the plaintiffs’ allegations as "labyrinthine," presuamably in reference to the Labyrinth from Greek mythology. According to Wikipedia (here), the Labyrinth’s elaborate structure was "designed and built by the legendary artificer Daedalus for King Minos of Crete at Knossos. Its function was to hold the Minotaur, a creature that was half man and half bull and was eventually killed by the Athenian hero Theseus. Daedalus had made the Labyrinth so cunningly that he himself could barely escape it after he built it. Theseus was aided by Ariadne, who provided him with a skein of thread, literally the "clew", or "clue", so he could find his way out again."

 

Geez, no wonder the complaint survived the dismissal motion.

　　

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 A lawsuit brought by investors who had purchased securities in three ING Group bond offerings in 2007 and 2008 was largely dismissed in a ruling issued Tuesday, although some allegations regarding the company’s June 2008 offering disclosures did survive.These rulings appeared in a September 14, 2010 order written by Southern District of New York Judge Lewis Kaplan. A copy of his ruling can be found here.

 

As discussed at greater length here, the ING bond investors first filed their action in February 2009. The allegations related to three ING bond offerings, in June 2007, September 2007, and June 2008, respectively, in which the company raised a total of $4.5 billion. The defendants include the company and two affiliated entities and certain of its directors and officers, as well as the offering underwriters.

 

The allegations in the plaintiffs’ complaint, as amended, relate to disclosures in the offering documents concerning ING’s own investments in Alt-A and subprime residential backed mortgages, which the plaintiffs allege were "extremely risky," because material portions of the loan pools on which they were based were comprised of lowest quality mortgages. The defendants moved to dismiss.

 

In his September 14 order, Judge Kaplan addressed each of the three offerings separately, dismissing all of the allegations regarding the June 2007 and September 2007 offerings, and many of the allegations with respect to the June 2008 offering. However, Judge Kaplan denied the motion to dismiss with respect to one part of the allegations concerning the June 2008 offering.

 

First, Judge Kaplan dismissed the allegations regarding the June 2007 offering on the grounds that they were untimely. Essentially, Judge Kaplan held that information contained in the September 2007 offering documents contained "storm warnings" that were sufficient to put the June 2007 bond offering investors on "inquiry notice," and since the plaintiffs first complaint was not filed until February 2009, more than a year later, the claims were untimely.

 

With respect to this ruling, Judge Kaplan added that "the facts placing one on inquiry notice need not detail every aspect of the fraudulent scheme, but only enough in the totality of circumstances to establish a probability of the alleged claim," adding that here, "these disclosures did so."

 

Second, with respect to the September 2007 offering, Judge Kaplan noted that the plaintiffs’ allegations largely relied on industry-wide or market-wide troubles, some of which post-dated the offering. Judge Kaplan said, quoting Twombley, that "absent some factual allegations suggesting that ING assets had been impacted by the general market conditions as the time allegedly misleading statements were made, [the complaint] stops short of the line between possibility and plausibility" that the offering documents were "misleading in a way that required additional disclosures."

 

Third, Judge Kaplan also granted the defendants’ motions to dismiss with regard to the June 2008 offering in many respects, in particular dismissing the allegations that the offering documents failed to disclose certain loan and loan-backed asset impairments, holding that the impairments themselves were immaterial.

 

However, Judge Kaplan denied the motion to dismiss with respect to the plaintiffs’ allegations that the offering documents misleadingly described the company’s mortgage-backed assets as "near prime and of high quality" and that the company was "well insulated from the worst effects of the market turmoil." Judge Kaplan found that the complaint’s allegations "sufficiently allege a connection between the general market conditions and ING’s assets" to "plausibly suggest" that "ING’s assets in June 2008 were ‘extremely risky’ and that could impact the company’s performance."
 

 

The defendants had argued that the statements were immaterial, a question Judge Kaplan described as a "close call." He observed that the offering documents disclosed "in some detail" the risks the assets posed, but he found that these disclosures were sufficiently "undercut" by other statements, as a result of which he could not conclude as a matter of law that a reasonable investor would find the omitted disclosure immaterial.

 

Discussion

Judge Kaplan’s ruling in the ING case is the latest in a series of recent decisions where plaintiffs have suffered full or substantial setbacks in their claims pertaining to the defendant company’s exposures to subprime-mortgage loans and mortgage loan backed assets. Judge Kaplan’s methodical opinion demonstrates that while it is not impossible for plaintiffs to survive dismissal motion in these cases, it is difficult.

 

The ING case is interesting in part because of the defendant company itself. Later in 2008, after the offerings that were the basis of this lawsuit, the Dutch government made a capital infusion into ING to the tune of 10 billion euros (about $13 billion). Judge Kaplan’s opinion references the bailout, although he ultimately concluded that the later events had not been alleged to have any connection with the earlier offering document disclosures.

 

Judge Kaplan’s analysis seems to suggest that even though a company may have received a bailout – even a massive bailout – does not mean that claims of securities fraud will not be scrutinized, and a later bailout by itself may mean little with respect to the question whether earlier statements were misleading.

 

It does seem that the dismissal motion rulings in the subprime and credit crisis-related cases are continuing to run against the plaintiffs. To be sure, a portion of the ING case will be going forward, and I know the name of the game for the plaintiffs is just to live for another day. But all but a small part of this case got knocked out, as seems to have been the case in many recent rulings.

 

I have in any event added the ING decision to my running tally of subprime and credit crisis dismissal motion rulings, which can be accessed here. Because the dismissal motion was denied at least in part, I added it to the motions denied table.

 

Special thanks to a loyal reader for providing a copy of the ING ruling.

 

Don't Throw Stones: ING may have the oddest corporate headquarters of any company in the world. The building basically looks like a giant glass and steel baskeball shoe on stilts. It is hard enough to imagine any designer having the sheer audacity to present this thing to a client that presumably paid a lot of money for the design. It is even harder to imagine a room full of people saying,, "That's it! That is exatly the image we were looking for." Perhaps the next project for the team that selected the design was to develop a strategy for getting the bank into U.S. residentail mortgage investments.  

 

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Even though substantial parts of the case have been knocked out, at least one part of the auction rate securities case filed against Raymond James Financial and related entities has survived a renewed dismissal motion, making it the first of the auction rate securities cases to survive the preliminary motions – even if it only did so in limited part.

 

The ruling came in a September 2, 2010 order (here) from Southern District of New York Judge Lewis Kaplan. A September 8, 2010 Bloomberg article by Thom Weidlich about the ruling can be found here.

 

As detailed here, the plaintiffs sued Raymond James and two of its operating subsidiaries alleging that the defendants engaged in a scheme to defraud auction rate securities investors by knowingly misrepresenting the securities as highly liquid investments. The plaintiffs purport to represent investors who purchased the securities between April 8, 2003 and February 13, 2008.

　

As discussed at length in a prior post, in September 2009, Judge Kaplan granted the defendants’ motions to dismiss the plaintiffs’ initial complaint, holding that that the plaintiffs had failed specifically to attribute the allegedly actionable statements to any defendant and to plead with particularity any defendants’ scienter. The dismissal was without prejudice, and the plaintiffs subsequently filed an amended complaint. The defendants renewed their dismissal motions.

 

In his September 2 order, Judge Kaplan granted the defendants’ renewed motions as to all of the plaintiffs’ renewed claims, with one exception. That is, he found that the plaintiffs had adequately alleged both scienter and misrepresentation with respect to part of the Section 10(b) claims against one of Raymond James’ operating units, Raymond James & Associates (RJA). The claims against Raymond James itself and the other operating unit defendant, as well as the other claims against RJA, were otherwise all dismissed.

 

In attempting to allege that RJA had acted with scienter, the plaintiffs had argued that the unit was motivated, following turmoil in the auction rate securities market in 2007, to try to unload its own inventory of the securities, and that in fact it had provided its broker with financial incentives to sell those securities. Judge Kaplan found that these allegations were insufficient to establish scienter prior to November 2007, but "the period November 2007 through February 2008 stands differently."

 

Judge Kaplan said, with respect to that later period, that "given the deterioration of the ARS market that began in August 2007 and RJA’s wish to reduce its own position from November 2007 forward, it is quite reasonable to infer that RJA then had a motive to conceal the ARS liquidity risk from customers to whom it hoped to sell ARS from its own portfolio." Judge Kaplan held that the plaintiffs had adequately alleged scienter as to RJA for the period November 2007 through the end of the class period in February 2008.

 

Judge Kaplan also found that actionable misrepresentations had been made to one of the plaintiffs by an RJA broker. The amended complaint alleged that the broker had told the plaintiff that ARS were safe, liquid investments. However, the amended complaint further alleges that the broker did not tell the plaintiff that the appearance of a liquid market for the securities was only maintained by "extensive and sustained" interventions in the market place by various broker dealers.

 

Judge Kaplan said that "a trier of fact would be entitled to find that it would have been important to a reasonable investor, in deciding whether to buy or sell ARS, that the ARS – supposedly liquid investments – were liquid only because auction brokers routinely intervened in the auctions to ensure their success. Accordingly, RJA was under a duty to disclose this information."

 

Judge Kaplan rejected the plaintiffs’ allegations that the specific alleged misrepresentations made by individual brokers to the named plaintiffs were part of a larger scheme to defraud. As Judge Kaplan noted, other than with respect to the two brokers who interacted with the named plaintiffs, the amended complaint "does not allege any specific statement made to any investor."

 

In the absence of scheme allegations, the claims on behalf of an investor class may prove challenging, as the only supposed misrepresentations that survived the motion to dismiss were made only to one of the named plaintiffs and not to the class the plaintiffs are purporting to represent. Accordingly, the plaintiffs may yet face significant challenges even on the claims that survived, particularly at the class certification stage.

 

Nevertheless, even if narrow, Judge Kaplan’s ruling is noteworthy, as it represents the first occasion in an auction rate securities case in which a court has held that a plaintiff has adequately alleged misrepresentation and scienter.

 

The case against Raymond James may be somewhat distinct from the cases that had been pending against other large investment banks. In many of those cases, the defendant firms had separately entered regulatory settlements for the benefit of many of their auction rate securities investors. These regulatory settlements had served as the basis for dismissal of the auction rate securities cases pending against these banks, including for example the cases pending against UBS (refer here) and Northern Trust (refer here).

 

Raymond James, by contrast to these other firms, had not entered a regulatory settlement involving its investors. Indeed, the firm has been the target of certain high profile criticism (refer here) as a "holdout" for its resistance to entry into a regulatory settlement. Without a regulatory settlement, Raymond James was not able to move for dismissal on the same "absence of recoverable damages" theory as did the defendants in the Northern Trust and UBS cases.

 

I have in any event added the Raymond James decision to my running tally of subprime and credit crisis-related lawsuit dismissal motion rulings, which can be accessed here.

 

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In an August 19, 2010 order (here), Northern District of Georgia Judge Thomas Thrash granted the defendants’ motion to dismiss the subprime-related securities class action lawsuit that had been filed against SunTrust Inc and certain of its directors and officers. The opinion is noteworthy for the harshness of its tone, the comprehensiveness of the dismissal, and for the court’s willingness to consider the larger context of the overall global financial crisis.

 

As reflected in greater detail here, the plaintiffs first filed their action against SunTrust in March 2009. SunTrust is the parent holding company of it wholly-owned banking subsidiary, SunTrust Bank. As reflected in the lead plaintiffs’ amended complaint, the plaintiff alleges that in the second and third quarter of 2008, SunTrust tried to hide the extent of its increase in nonperforming loans by classifying some of these loans as "in-process" loans, which permitted the company to report better financial results.

 

These loans were later reclassified in the fourth quarter of 2008, which cause the company’s nonperforming loans to increase, which in turn, the plaintiff asserts, caused the company’s share price to drop eleven percent in a single day.

 

In reviewing plaintiff’s allegations in his August 19 opinion, Judge Thrash noted that plaintiff "never explicitly alleges facts" that would support its claim of a half billion dollars of misclassified loans, a "figure," Judge Thrash notes, that "seems to be plucked out of thin air."

 

Judge Thrash said that the plaintiff’s "theory" about the misclassification "collapses" in the face of the defendants’ showing that the average daily nonperforming loan balance was greater at the end of each quarter during this period than at the beginning, which, Judge Thrash said, is "entirely consistent with the continuing deterioration of SunTrusts’s loan portfolio over the course of the financial crisis" and is "entirely inconsistent with the Plaintiffs’ theory of large scale misclassification of nonperforming loans at the end of each quarter."

 

Judge Thrash notes that in its opposition to the motions to dismiss, the plaintiff shifted its liability theory from the misclassification allegation to alleged understatement of reserved for nonperforming loans. Judge Thrash found plaintiff’s inadequate loan loss reserve allegations insufficient, noting that "the fact that SunTrust substantially increased its reserves for nonperforming loans in the fourth quarter of 2008 is not evidence of fraudulent accounting practices in earlier periods."

 

"Life," Judge Thrash noted, "is too short to say more about this."

 

Judge Thrash also found that the plaintiff’s scienter allegations were also insufficient. Specifically, Judge Thrash found that the plaintiff’s allegations of intentional wrongdoing, access to information, motive were insufficient to support an inference of scienter. He also found that "competing inferences totally overwhelm any inference of scienter." especially in light of the fact that there were no suspicious stock sales and the totally speculative nature of the supposed benefit the defendants theoretically might have gained from a putative merger.

 

Finally Judge Thrash concluded that the plaintiff had not established loss causation, noting among things that the eleven percent stock price drop on which the plaintiff sought to rely to plead loss causation "occurred during a financial crisis that hit the financial services industry hard." The company’s share prices had already lost two-thirds of its value prior to the supposedly corrective disclosure, and though it fell an additional 11% on the disclosure date, other banks also had significant share price declines that day, some of which were even greater as a matter of percentage than SunTrust’s.

 

Judge Thrash concluded that the complaint’s allegations "cannot support an inference that SunTrust’s misstatements – rather than general market conditions – proximately caused the Plaintiffs’ loss."

 

Although the Opinion does not explicitly state whether or not it is with prejudice, Judge Thrash did not expressly grant plaintiffs leave to amend and in fact entered judgment for the defendants.

 

Special thanks to a loyal reader for providing me with a copy of Judge Thrash’s opinion.

 

I have in any event added the SunTrust decision to my running tally of subprime and credit crisis-related dismissal motion rulings, which can be accessed here.

　

　

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The subprime-related securities lawsuit pending against BankAtlantic Bancorp and certain of its directors and officers is headed to trial on October 6, 2010 in Miami, following the recent summary judgment rulings in the case. Southern District of Florida Judge Ursula Ungaro’s 62-page ruling, issued August 18, 2010, which granted in part and denied in part the parties’ cross-motions for summary judgment, contains a number of interesting features, discussed below.

 

BankAtlantic Bancorp is the publicly traded parent company of Bank Atlantic, a federally chartered bank. As reflected in greater detail here, plaintiffs first filed their securities class action lawsuit in October 2007. Judge Ungaro granted the defendants’ initial motion to dismiss the plaintiffs complaint, but allowed the plaintiffs leave to amend. However, in May 2009, Judge Ungaro denied the defendants’ renewed motions to dismiss after plaintiffs’ their amended complaint.

 

The plaintiffs’ amended complaint basically alleges that the defendants made misleading statements about the credit quality of certain land loans in the bank’s commercial real estate portfolio; failed to follow conservative lending practices as described in its underwriting policies, and therefore its loan portfolio was exposed to a higher level of risk than represented to investors, and misrepresented that BankAtlantic’s loan loss reserves were adequate.

 

Plaintiffs contend that when the truth about the banks loan portfolio was revealed between April and October 2007, the company’s stock price fell and investors were harmed.

 

In her August 18 order, Judge Ungaro addressed the plaintiffs’ motion for partial summary judgment with respect to the falsity of certain July 2007 statements by the company’s former Chairman and CEO, as well as the defendants’ motions for summary judgment as to all of plaintiffs’ claims.

 

Plaintiffs’ conceded that the defendants were entitled to summary judgment as to all claims for the period prior to October 18, 2006 and as to all claims arising from alleged misstatements about loan loss reserves, and accordingly Judge Ungaro granted defendants summary judgment as to those issues.

 

A significant portion of Judge Ungaro’s opinion is focused on defendants’ motion to exclude the testimony of the plaintiffs’ expert on the issues of market efficiency, materiality, loss causation and damages, which Judge Ungaro addressed because she considered the motion relevant to the summary judgment motion.

 

Judge Ungaro largely granted the defendants’motion to exclude the expert’s testimony on the issue of loss causation and materiality, ruling that the expert may testify on only narrow parts of these issues, although she ruled that the expert may testify as to the cause of certain specific aspects of the decline in the company’s share price. Judge Ungaro also excluded certain aspects of the expert’s testimony on damages, but ruled that the testimony will be permitted on other damages issues.

 

With respect to the defendants’ motions for summary judgment on the plaintiffs’ claims, Judge Ungaro held that the "the evidence raises genuine issues of material fact as to whether Defendants’ statements beginning in April of 2007, focusing solely on the credit and repayment problems with [builder land bank, or BLB] loans and omitting mention of the problems the non-BLB land loans were contemporaneously experiencing were misleading."

 

Judge Ungaro also concluded that the defendants were not entitled to summary judgment on the issue of scienter, concluding that the evidence raised genuine issues of fact as to whether the defendants knew their class period statements creased a "an obvious danger of misleading investors" as to "the true credit quality of the land loan portfolio"; as to "the accelerating deterioration of credit quality throughout the land loan portfolio"; and as to the "worsening credit and repayment problems with the BLB loans."

 

Finally, on the issue of loss causation, Judge Ungaro concluded that there were genuine issues of material fact regarding the April 26, 2007 and October 26, 2007 price declines, but not as to the October 29, 2007 price declines.

 

Judge Ungaro then turned to the plaintiffs’ motion for partial summary judgment on to certain statements by the company’s former Chairman and CEO in a July 25, 2007 analyst conference call. In response to a specific question in the call about the Bank’ BLB loans, the Chairman made a number of reassuring statements, including the statement that "the portfolio has always performed extremely well, continues to perform extremely well."

 

In reliance on prior email exchanges in which the Chairman and CEO participated, as well as the testimony of other bank officials, Judge Ungaro concluded that there were not genuine issues of material fact that the July 25, 2007 statements were false when made, and accordingly ruled that the plaintiffs are entitled to summary judgment on this issue.

 

Discussion

This decision is noteworthy if for no other reason it means that (absent intervening events) a trial in this case will commence in just a few short weeks. As most readers of this blog know, trials in securities class action cases are quite rare, and it would be a significant and noteworthy event if this case were to go to trial beginning on or about October 6.

 

The decision is also noteworthy for Judge Ungaro’s detailed explication of the issues on which the plaintiffs’ expert will be permitted to testify. Again, because so few of these cases actually go to trial, there is relatively little judicial authority on questions concerning the issues on which expert testimony will be admitted. The absence of this authority can present a challenge when parties attempt to rely in expert testimony, for example, in connection with settlement negotiations, which can be vexing without knowing whether the expert’s views are relevant in any way. However, because Judge Ungaro’s analysis of these issues is very case and fact specific, her analysis of the expert testimony questions, though interesting, may be of limited value in other cases.

 

But perhaps the most interesting thing about this ruling is Judge Ungaro’s grant of partial summary judgment for the plaintiffs on the issue of falsity. It is relatively rare for any case to get to the point where a decision on this kind of issue is even ripe, and in most cases courts are inclined to leave these kinds of issues to the jury. I actually can’t recall ever having seen a court granting summary judgment in the claimants’ favor on the issue of falsity.

 

The plaintiffs will still have to prove that these false statements were materially misleading, were made with scienter, and cause damages. However, it will be a singular development when the court instructs the jury that the court has already concluded that the statements are false.

 

And so, if this case does go to trial on October 6, it will be interesting to watch, for a number of reasons.

 

I have in any event noted Judge Ungaro’s August 18 order in my running tally of rulings in subprime and credit-crisis related cases, which can be found here.

 

Special thanks to a loyal reader for sending me a copy of Judge Ungaro’s ruling.

 

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Bankruptcy filings overall rose by 20 percent in the twelve-month period ending on June 30, 2010, according to information released on August 17, 2010 by the Administrative Office of the U.S. Courts. Though this filing surge was largely driven by non-business filings, business related filings also remained at elevated levels during the 12 months ended June 30.

 

According to the Administrative Office’s data, there were 59,608 business related bankruptcy filing in the 12 months ending on June 30 this year, compared to 55,021 in the 12 months ending on June 30, 2008, which represents an increase of 8.34%. The 59,608 for the twelve months ending on June 30, 2010 is the highest number of business-related filings for that 12 month period since the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect.

 

The number of business filings for the 12 months ended June 30, 2010, though only slightly greater than the comparable period in 2009, is also over 76% greater than the number during the comparable period in 2008, and almost 150% greater than during the comparable period in 2007.

 

Though the number of business-related filings remained at elevated levels during the 12 month period ended June 30, the number of business-related filings declined during each of the three month periods within that 12 month period. Thus, during the first three months of the 12-month period, there were 15,303 business related filings; in the second three months, there were 15,156 business-related filings; in the third three month period, there were 14,697; and in the final three months, there were 14,452.

 

As reflected in an August 17, 2010 analysis of the bankruptcy filing data by the American Bankruptcy Institute, business filings decreased 4 percent for the six-month period ending June 30, 2010, to 29,059 from the first-half 2009 total of 30,333.

 

Despite this quarter by quarter decrease in business-related bankruptcy filings, the overall number of filings (including non-business related filings) actually increased during the three months ending June 30, 2010, to 422,061, which is the highest for any quarter during fiscal 2010 (which runs October 1, 2009 to September 30, 2010), and the highest for any April-June quarter since the 2005 third quarter filings.

 

Though the news about bankruptcy filings overall is discouraging, the news related to business related bankruptcy filings may be slightly encouraging as there appears to be some suggestion that the worst may be past. However, that positive note should not obscure the fact that, even if the number of filings may be declining on a quarter to quarter basis, the number of business filings still remain at elevated levels compared to periods preceding the current economic crisis.

 

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The New Century Financial securities class action lawsuit – which was the first of the subprime-related securities class action lawsuits when it was filed in February 2007 – has been settled for $124,827,088, subject to court approval. The plaintiffs’ July 30, 2010 unopposed motion for settlement approval can be found here.

 

The settlement actually consists of three separate settlement stipulations and three corresponding settlement funds. Of the total settlement amount, $65,077, 088 will be paid on behalf of the thirteen former New Century directors and officers; $44,650,000 will be paid on behalf of KPMG, New Century’s auditor; and $15 million will be paid on behalf of the offering underwriter defendants.

 

The $65 million to be paid in the class action settlement on behalf of the individual directors and officers is actually part of a larger settlement on the individuals’ behalf. As reflected in the separate director and officer settlement stipulation filed in connection the motion for settlement approval, a total of $91,102,331.51 will be paid in cash by eleven directors’ and officers’ liability insurers (which are listed on page 11 of the stipulation) in order to settle in whole or in part not only the claims against them in the securities class action lawsuits but also the claims pending against some or all of the individuals in proceedings before the SEC, in separate litigation brought against them by other plaintiffs, as well as bankruptcy trustee claims.

 

As reflected at greater length here, plaintiff investors first filed their action against the defendants in February 2007. New Century filed for bankruptcy in April 2007. In March 2008, the New Century bankruptcy examiner filed a report (refer here) finding, among other things, that the company had "engaged in a number of significant improper and imprudent practices related to its loan originations" that "created a ticking time bomb that detonated in 2007." On December 3, 2008, Central District of California Judge Dean Pregerson denied the defendants’ motions to dismiss (refer here).

 

The New Century Financial case was one of the higher profile subprime-related securities class action lawsuits and one of the most prominent in which the motion to dismiss was denied. However, as reflected in my running tally of subprime related case resolutions and settlements (which can be accessed here), it is only the fourth largest subprime securities suit settlement so far, behind the Countrywide settlement ($624 million), the Merrill Lynch settlement ($475 million) and the Merrill Lynch bondholders settlement ($150 million).

 

Unlike those larger settlements, however, in the New Century Financial case there was no viable entity remaining to fund a larger settlement. The size of the insurers’ contribution and the number of insurers involved in the D&O settlement stipulation suggests that the remaining D&O insurance was exhausted to fund the D&O portion of the settlement. These figures also suggest that there were certain constraints on the possible size of the settlement. KPMG’s very sizeable contribution of $44.75 million toward the settlement represents a significantly greater contribution that it paid in the much larger Countrywide settlement ($24 million).

 

I suspect that this was an enormously difficult settlement to pull off. Given the number of parties, the number of proceedings, the number of insurers, and the amount of money at stake, trying to settle this case undoubtedly was challenging, particularly since continuing defense expenses eroded the amount of insurance remaining as the settlement negotiations went forward. I tip my hat to the lawyers involved in bringing this settlement together.

 

The SEC’s separate July 30, 2010 announcement of its settlement of its enforcement action pending against three former New Century directors and officers can be found here. The stipulation of settlement in the class action lawsuit specifies that the portion of the $91 million in insurance funds is to be paid in part on behalf of the three individuals in the SEC proceeding; however, the stipulation specifies that these amounts "shall not be applied towards penalties owed pursuant to" the SEC settlement.

 

Another Subprime Securities Suit Settlement: In addition to the New Century Financial case, the subprime-related securities class action lawsuit involving The PMI Group also recently settled. The company announced in its August 3, 2010 filing on Form 1-Q (here) that on July 13, 2010 the parties agreed to a proposed settlement of $31.25 million, subject to court approval. The settlement is to be funded entirely by The PMI Group's insurers. Background regarding the case can be found here. Like the New Century Financial case, the PMI Group subprime-related securities class action lawsuit had also survived a motion to dismiss, as discussed here.

 

A Different Sort of Insurance Cover: Being an astronaut is a dangerous occupation, and those that climb into space launch vehicles understandably would want life insurance in case the worst were to happen. However, life insurers have proven reluctant to insure astronauts.

 

As reflected in this fascinating post on the UK Insurance blog (here), the interesting way the crews for the Apollo 11 through 16 dealt with this issue was for each crew member to sign specially issued, stamped and marked envelopes, with the idea that were the worst to happen, the value of the "insurance covers" would "sky-rocket" allowing the astronauts’ families to secure financial benefits without formal insurance.

 

Fortunately, none of the missions that used this makeshift form of insurance suffered any fatalities (though Apollo 1 did meet an unfortunate fate and later Space Shuttle Challenger and Columbia missions did suffer terrible disasters). The Apollo missions "insurance covers" were never used and now trade among collectors.

 

Special thanks to loyal reader Chris Areheart for sending along this interesting item.

　

　

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On July 12, 2010, in one of the more high-profile investor actions filed as part of the subprime securities litigation wave, Southern District of New York Judge Sidney Stein substantially denied in part the defendants’ motions to dismiss in the Citigroup Bond Litigation. A copy of the opinion can be found here.

 

As detailed in greater detail here, Citigroup bondholders first filed their suits in September 2008 in connection with 48 different Citigroup bond offerings in which Citigroup raised over $71 billion between May 2006 and August 2008. (The first of these cases was filed in New York state court but later removed to federal court.) The defendants include the company itself and related corporate entities, as well 28 current or former Citigroup directors and officers and nearly eighty investment banks that served as offering underwriters in the bond offerings.

 

The plaintiffs, who purchased bonds in some of the offerings, alleged that the defendants had violated sections 11, 12 and 15 of the Securities Act of 1933 by failed to truthfully and fully disclose in the bond offering documents information concerning the company’s exposure to "toxic mortgage-linked documents."

 

Specifically, the plaintiffs alleged that Citigroup had failed to disclose Citigroup’s exposure to $66 billion worth of CDOs backed by subprime mortgage assets; Citigroup’s exposure to $100 billion in structured investment vehicles backed by subprime mortgage assets; that Citigroup "materially understated reserves" held for residential loan losses; Citigroup’s exposure to $11 billion of auction rate securities; that as result of these exposures, Citigroup was not, contrary to its representations, "well capitalized" and in fact required a massive government bailout.

 

In his July 12 order, Judge Stein first held that the plaintiffs had standing to assert claims in connection with all of the 48 offerings, even though plaintiffs had not purchased bonds in all offerings. Because the offerings were based common shelf registration document containing at least some common information, he found that the plaintiffs have standing to assert claims common to all purchasers.

 

But while he found that the plaintiffs has standing to assert Section 11 claims, he granted the defendants’ motions to dismiss the plaintiffs’ Section 12 for lack of standing, based on the insufficiency of plaintiffs’ allegations about whom the plaintiffs bought their investments from.

 

The centerpiece of the defendants’ dismissal motions was their argument that the plaintiffs had failed to allege any actionable misstatement or omission. Judge Stein found that that the plaintiffs’ had adequately alleged misrepresentation or omission as to Citigroup’s CDO exposure; with respect to plaintiffs’ allegations about Citigroup’s SIV exposure, at least with respect to statements made after those exposures were consolidated on Citigroup’s balance sheet; plaintiffs’ allegations about the adequacy of Citigroup’s residential mortgage loan loss reserves; with respect to Citigroup’s statements about the adequacy of its capitalization; and with respect to Citigroup’s statements that its financials were GAAP compliant.

 

However, Judge Stein also found that the plaintiffs had not sufficiently alleged misrepresentation or omission in connection with their allegations concerning Citigroup’s SIV exposure, at least those made prior to the consolidation of the SIV assets onto Citigroup’s financial statements; and about Citigroup’s exposure to auction rate securities.

 

Thus while a portion of plaintiffs’ claims did not survive defendants’ dismissal motions, a substantial portion of plaintiffs’ case will be going forward.

 

Both because of Citigroup’s prominence and because of the sheer magnitude of dollars involved in this case, this is a high profile decision. Though there is definitely a school of thought that defendants are faring better on the subprime securities cases in general, the plaintiffs are still managing to get some cases past the initial pleading hurdles, particularly in many of the highest profile cases (e.g., Countrywide, New Century, Washington Mutual, etc.).

 

In addition, Judge Stein’s decision in the Citigroup Bondholders case is the latest of several recent rulings in subprime related securities cases in the Southern District of New York that have favored the plaintiffs, including the recent decisions in the Ambac Financial subprime related case (about which refer here) and in the CIT Group subprime related securities case (about which refer here).

 

I have in any event added the July 12 decision in the Citigroup Bondholders’ suit to my running tally of subprime related securities class action lawsuit dismissal motion ruling, which can be accessed here.

 

Andrew Longstreth’s July 12, 2010 Am Law Litigation Daily article about the decision can be found here. A July 12, 2010 Bloomberg article about the decision can be found here.

 

Special thanks to a loyal reader for providing a copy of the opinion.

 

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In the latest appellate decision to affirm the dismissal of a subprime-related securities class action lawsuit, on June 29, 2010, a three-judge panel of the Ninth Circuit issued an opinion (designated "not for publication") affirming the dismissal of the securities suit that had been filed against Impac Mortgage Holdings and certain of its directors and officers.

 

As discussed in greater detail here, investors first filed their suit in August 2007, alleging that contrary to Impac's representations the company’s Alt-A loans were being sold to less creditworthy borrowers, so that the loan portfolio was experiencing the same risks and discounts in securitization as sub-prime mortgages.

 

The plaintiffs alleged further that the defendants deceived investors by representing that Impac’s underwriting guidelines were strict and that its loans were high-quality, which in fact the executives were overriding the underwriting guidelines to originate and purchase poor-quality loans.

 

In a March 9, 2009 order (here), Central District of California Judge Andrew Guilford granted with prejudice the defendants’ motion to dismiss the plaintiffs’ Third Amended Complaint, and the plaintiffs appealed. My prior post about the district court proceedings can be found here.

 

In the Ninth Circuit’s June 29 opinion affirming the district courts dismissal, the panel found that the plaintiffs had "stated insufficient facts to create a strong inference of scienter." The panel found that none of the plaintiffs’ allegations taken individually "describe any underwriting-guideline violations or tie those violations to the class period with the ‘great detail’ required to give rise to a strong inferences of scienter."

 

Taking the plaintiffs allegations as a whole, the panel concluded that "the inference that the defendants intended to deceive investors is still less compelling than a competing inference of non-fraudulent intent." The court went on to observe that "at bottom, a non-fraudulent inference – namely that Impact’s efforts to minimize risk exposure in the mortgage industry came too late to avoid large losses – is more compelling than an inference that Impac’s officers intended to defraud investors by falsely claiming to tighten its underwriting guidelines."

 

The Ninth Circuit’s opinion in the Impac case is the third appellate decision issued in connection with the subprime and credit crisis-related litigation wave, joining the Second Circuit’s decision in the Centerline case (about which refer here) and the Eighth Circuit’s decision in the NovaStar case (about which refer here). In each of these decisions, the appellate courts have affirmed the lower court’s dismissal of the complaint.

 

While three cases represents far too small of a data set to draw any conclusions, at least so far it seems that plaintiffs have not been rewarded for appealing the lower court dismissals.

 

I was somewhat curious about the significance of the fact that the Ninth Circuit’s opinion was designated "not for publication." Although I have never been able to figure out why Courts bother with that sort of thing in this day and age (obviously it is public so why bother with the designation), it is clear that the Ninth Circuit cannot bar participants from referencing the case, as Federal Rule of Appellate Procedure 32.1 expressly provides that courts may not "prohibit or restrict" the citation to appellate opinions by designating them as, for example, "not for publication." So why bother designating an opinion as not for publication?

 

In any event, I have adjusted my running tally of subprime related case dispositions (which can be accessed here) to reflect the appellate decision in the Impac case.

 

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While many courts are showing a greater willingness to grant motions to dismiss in subprime-related securities class action lawsuits, some cases are surviving dismissal motions and others are settling for hundreds of millions of dollars, as a result of which the "watchword is uncertainty until a more consistent and predictable pattern emerges," according to a recent study.

 

In a June 2010 report entitled "Subprime Class Actions Revisited," Jonathan Eisenberg of the Skadden law firm examines 14 new subprime-related securities lawsuit rulings issued during the first five months of 2010. This report updates Eisenberg’s prior analysis of 16 dismissal motion rulings entered in 2009.

 

Eisenberg’s overall conclusions are that "courts are showing more evidence of subprime fatigue and a greater willingness to grant motions to dismiss even in cases that do not require proof of scienter," but while "recent trends have been more favorable for defendants, the results are by no means one-sided, and the final chapters of the subprime class action story have yet to be written."

 

Eisenberg notes that, by contrast to his earlier study, "more than half of the recent dismissals occurred in non-scienter Securities Act claims." Eisenberg also notes that courts continue to dismiss many of the Section 10(b) claims asserted in the subprime securities class action, "principally, but not exclusively, on the ground that the allegations of scienter are inadequate." Court has also found a number of the allegedly fraudulent statements immaterial as a matter of law.

　

With respect to the cases that have survived dismissal motions, the basis "overwhelmingly" are allegations related to "declining underwriting standards." In light of the numbers of cases that have survived the dismissal motions, as well as the significant dollar figures involved in some of the settlements, "while the story in the aggregate is positive for defendants, much risk remains in these cases." Overall, Eisenberg finds that he has "not found a single factor that explains the outcomes across all cases."

 

My running tally, listing (with links) dismissal motions rulings and settlements in all subprime and credit crisis-related lawsuits, can be accessed here. All of the decisions referenced in Eisenberg’s article are listed with links in my tally.

 

One interesting aspect of Eisenberg’s paper is with respect to his discussion of the difficulties plaintiffs face in trying to allege that defendants were "slow to recognize the enormity of the subprime crisis." He recites data from Bloomberg’s tally of subprime-related write downs showing that "less than three-tenths of one percent of the more than $1.75 trillion of global write-downs between 2007 and 2009 occurred prior to the third quarter of 2007." The rest occurred incrementally from the third quarter from the 2009.

 

Eisenberg suggests these data show that Judges "are and should be skeptical of the types of claims that could be made against virtually any financial institution that was late to recognize the damages ultimately inflicted by the subprim tsunami."

 

Special thanks to Jon Eisenberg for providing a copy of his article.

　

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In two different subprime securities suits, courts recently entered ruling with respect to dismissal motions going in opposite directions. In one case, the Second Circuit, in the second appellate ruling so far in connection with the subprime-related litigation wave, affirmed the lower court’s dismissal. In the other case, the district denied defendants’ motions to dismiss. Each may be significant in their own way.

 

The Centerline Holding Case

In a brief, five-page summary opinion issued on June 9, 2010 (here), the Second Circuit affirmed the lower court’s dismissal of the subprime-related securities class action lawsuit that had been filed against Centerline Holding Company and certain of its directors and officers.

 

As discussed here, on January Southern District of New York Judge Schira Scheindlin had dismissed the case without prejudice, finding that the plaintiffs had not sufficiently alleged that the defendants had had acted with scienter. In a August 4, 2009 order, Judge Scheindlin granted the defendants’ renewed motions to dismiss.

 

On appeal, the plaintiffs argued that they had sufficiently alleged the defendants had made material misrepresentations and omissions about the company’s plan to change its business model form one focused on the generation of distributable tax-exempt income to that of an asset manager focused on growth.

 

The Second Circuit affirmed the Judge Scheindlin’s dismissal, noting that "the effort in Plaintiffs’ amended complaint to characterize the Defendants’ class period statements as speaking to the company’s future plans – and this as misleading in light of Defendants’ undisclosed plans for Centerline – fails when the statements are reviewed in their entirety." These statements, the court found, "were not rendered misleading by the Defendants’ omissions."

 

Because the Defendants had not duty to disclose their plans, Plaintiffs’ had not adequately alleged conscious misbehavior or recklessness and "otherwise failed sufficiently to allege scienter."

 

The CIT Group Case

In a June 10, 2010 opinion (here), Judge Barbara Jones denied the defendants’ motion to dismiss in the subprime-related securities suit that had been filed against CIT Group and certain of its directors and officers.

 

As detailed here, the plaintiffs alleged that CIT's public financial statements failed to account for tens of millions of dollars in loans to Silver State Helicopter, which were highly unlikely to be repaid and should have been written off. The plaintiffs also alleged that the company had misrepresented the performance of its subprime home lending and student loan portfolios.

 

Citing at length the recent dismissal motion denial in the Ambac case, Judge Jones concluded that the plaintiffs had adequately pled misrepresentation with respect the company’s deteriorating lending standards, which allegedly conflicted with the company’s public statements. She also concluded that the plaintiffs had adequately alleged actionable misstatements with respect to performance of CIT’s student loan portfolio.

 

Judge Jones also concluded that the plaintiffs had adequately alleged scienter. She found that the plaintiffs had adequately alleged that the defendants "knew about CIT’s lowered lending standards and in some cases affirmatively approve them – while publicly touting the company’s ‘conservative’ and ‘disciplined’ approach." She further noted, in connection with the conclusion that the plaintiffs had adequately alleged scienter, that the complaints adequately alleged that the defendants "learned of the deterioration of CIT’s home loan and student loan portfolios, which making public statements indicating that CIT was outperforming the market and would suffer only minimal losses."

 

Finally Judge Jones found that the ’33 Act plaintiffs’ claims met the pleading requirements to state a claim under Section 11.

 

Discussion

The Second Circuit’s affirmance of the Centerline Holding dismissal represents the second appellate court decision issued in connection with the subprime litigation wave. The first appellate decisions was the Eight Circuit’s September 1, 2009 opinion in the NovaStar Financial case, about which refer here. In NovaStar, the Eighth Circuit also affirmed the lower court’s dismissal.

 

Though coming later than the NovaStar ruling, the Centerline case could perhaps be more noteworthy, simply because such a large percentage of the subprime related cases have been filed in the Southern District of New York (which is located in the Second Circuit).

 

However, because the Second Circuit’s opinion was issued in the form of a summary order, its impact may be limited. By their own terms, summary orders, though they may be cited, "do not have precedential value" according applicable rules of the Second Circuit. Moreover the analysis in the Second Circuit’s opinion is quite limited.

 

Whatever the opinions impact may be on other cases, its greatest significance may have to do with simple scorekeeping – as in, two subprime related securities class action lawsuit appeals, two dismissal affirmances.

 

At the same time however, as the CIT case demonstrates, there are still cases in which the motions to dismiss are being denied. Among the more interesting things to me about the CIT ruling is the court’s reliance on the prior dismissal motion ruling in the Ambac case. I had speculated at the time of that the breadth of the language in the Ambac decision could make the court’s ruling influential. As the CIT decision confirms, the Ambac decision has proven to be influential.

 

I have in any event added these rulings to my running tally of the subprime-related securities class action lawsuit dismissal motion rulings. The tally can be accessed here.

 

Special thanks to a loyal reader for providing me with a copy of the CIT opinion.

　

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Just as the financial crisis itself has gone through various phases, the resulting litigation has also changed and evolved. A June 4, 2010 report entitled "Credit Crisis Litigation Revisited: Litigating the Alphabet Soup of Structured Products" by my friend Faten Sabry, and her colleagues Anmol Sinha, Jesse Mark and Sungi Lee, all of NERA Economic Consulting, takes a detailed look at the credit crisis-related litigation wave, with a particular emphasis on the way that it has developed over time.

 

The focus of the NERA report is credit crisis-related "securities cases," which includes not only state and federal securities class action lawsuits, but also "ERISA claims, shareholder derivative actions, individual state and federal cases, [and] international cases." Thus, the universe of cases that NERA is tracking is considerably broader than the ones I have included in my running tally of subprime and credit crisis-related litigation, which can be accessed here.

 

The Report’s overall conclusion is that "there are conflicting signals about the future of this litigation." On the one hand, new credit crisis-related lawsuit filings have declined and almost half of the preliminary motion decisions to date have been dismissals. On the other hand, "types of allegations, products and defendants have continued to shift, and recent regulatory activity," such as the recent enforcement action against Goldman Sachs, "add to the uncertainty surrounding the direction and focus of the litigation."

 

According to NERA’s tally, there have been a total of 424 of the broad category of credit crisis cases filed since the beginning of 2007, 225 of which are securities class action lawsuits. The most active quarter both for credit crisis cases generally and for securities class action lawsuits specifically was the second quarter of 2008, when there were 48 new cases overall and 38 new securities class action lawsuits. Both overall credit crisis lawsuit filings and securities class action lawsuit filings declined every quarter during 2009.

 

The NERA report observes that there has "been a noticeable shift in the type of defendants as the credit crisis has progressed." Among other things, the incidence of cases involving corporate directors and officers has changed over time. The percentage of credit crisis filings that name directors and officers as defendants decreased between 2007 and 2009. In 2007 70% of the cases included director and officer defendants. The percentage of cases with director and officer defendants declined to 61% in 2008 and 52% in 2009. Early 2010 filings show a slightly increased percentage, with 67% of cases including director and officer defendants.

 

The types of companies involved in the cases have also shifted over time. For example, in 2007, mortgage lenders, home builders and REITs were named as defendants in 47% of filings, but by 2008, the kinds of companies were involved in only 20% of filings. Only 5% of the 2009 filings involved these kinds of companies, and so far none of the 2010 has involved these companies. With this shift away from residential mortgage defendants, the plaintiffs have changed, too, as the claimants have "shifted toward non-primary mortgage market participants."

 

While the percentage of filings against mortgage lenders, home builders, and REITs has declined over time, the percentage of cases naming securities issuers and underwriters has increased, from only 24% and 23% of filings in 2007 and 2008, to 37% of filings in 2009, and 60% so far in 2010.

 

The types of financial products involved in the credit crisis lawsuits have also shifted over time. Because the 2007 lawsuits largely involved lenders, mortgage originators and homebuilders, many of the 2007 suits involve mortgage loans – about 40% of the 2007 cases involved allegations relating to mortgage loans. By contrast only about 7% of 2010 cases involve mortgage loans, but "products such as ABS/MBS, CDOs and CDSs now make up the majority of the recent securities credit crisis lawsuits."

 

Slightly more than a third of the cases overall have either had dismissal motion rulings or been settled. I was a little puzzled by NERA statistics on case dismissals, as their data show that 61% of cases have been dismissed, with or without prejudice, which is considerably higher than my own figures reflect. (Refer here to access my own tallies of subprime and credit lawsuit dismissal motion rulings.)

 

However, NERA’s dismissal figures also include a number of voluntary dismissals. Removing those from the equation reduces the percentage of dismissal grants to 46%. In addition, NERA puts settled cases in a separate category and are counted neither as a dismissal motion denials or grants. Many of the case settlements followed dismissal motion denials, and so NERA’s figures on dismissal motion denials do not reflect those cases. All of these considerations should be taken into account when referring to the NERA data for purposes of determining how parties are faring in disputed dismissal motions.

 

Aggregate settlements to date in these cases total over $2.1 billion, with roughly $1.7 billion in settlements associated with securities class action lawsuit settlements. (My detailed list of subprime and credit crisis-related lawsuit settlements can be accessed here.)

 

Though the settlement numbers so far are impressive, there are clearly many more settlements yet to come, and the aggregate settlement figures are likely to grow. As the NERA report comments in closing, "settlements and judgments will be the next chapter in this story."

 

The NERA report contains a great deal of interesting and useful information and it is worth reading at length and in full. Very special thanks to Dr. Sabry for providing me with a copy of the report.

 

NERA also recently released a separate report entitled "Subprime and Synthetic CDOs: Structure, Risk and Valuation" which intended to provide a "plain English" explanation of many of the complex financial instruments that were involved with the financial crisis. This June 3, 2010 report can be accessed here.

 

My own recent status update on the subprime and credit crisis related litigation can be found here.

 

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The rating agencies have been among the targets in many of the lawsuits filed as part of the subprime-related litigation wave. By and large, the rating agencies have been successful in knocking out these cases in the early stages, particularly the lawsuits seeking to hold them liable as "underwriters" under the federal securities laws.

 

At the same time, there is a small but growing number of cases in which the rating agencies’ preliminary motions have been unsuccessful, and there is a definite sense in which these decisions are building on each other, particularly with respect to the issues surrounding the First Amendment defenses on which the rating agencies are seeking to rely.

 

The latest example of a case where the rating agencies’ preliminary motion on First Amendment grounds have been unsuccessful is the negligence suit that Calpers filed in California state court against the three principal rating agencies.

 

Background

In July 2009, Calpers sued the three main rating agencies in California state court. Calpers alleged that it had invested about $1.3 billion in instruments issued by three structured investment vehicles (SIV). The investments carried the rating agencies highest ratings, which ratings Calpers alleged were "wildly inaccurate." Calpers claims to have lost over $1 billion on the investments.

 

Calpers alleged that it would not have invested in the securities if the securities had not carried the highest investment ratings. Calpers alleged that the rating agencies "did not have a reasonable basis" for giving the SIVs the highest investment ratings.

 

The ratings were flawed, Calpers alleged, because they failed to account for "foreseeable scenarios" and failed to account for the SIVs’ critical risk – that is, that the were highly concentrated in certain types of residential mortgages and residential mortgage backed securities. Calpers also alleged that the rating agencies used "inadequate mathematical and statistical models" and "employed increasingly lax standards" while giving the SIVs the highest ratings, in order to be able to continue to secure business providing ratings for structured financial products.

 

The rating agencies demurred to Calpers’ complaint, asserting that the allegations were legally insufficient. In early May 2010, California (San Francisco County) Superior Court Judge Richard Kramer announced from the bench that he would be overruling the rating agency defendants’ demurrer to Calpers’ negligence claims, but that he was sustaining the demurrers with leave to amend as to Calpers’ allegations of negligent interference with prospective economic advantage. Judge Kramer indicated at the hearing that the reasons for his reasons would appear in a forthcoming opinion.

 

The May 24 Opinion

In an opinion dated May 24, 2010 and filed on June 1, 2010 (and which can be found here), Judge Kramer set out the reasons for his rulings on the rating agency defendants’ demurrers.

 

The most noteworthy aspect of Judge Kramer’s opinion is his statement of the bases on which he rejected the defendants’ argument that they could not be held liable for their ratings opinions because the opinions are protected under the First Amendment. Judge Kaplan said (citing and relying on Judge Shira Sheindlin’s opinion in the Cheyne Financial case, about which refer here):

 

The court rejects Defendants’ arguments that the First Amendment to the United States Constitution preempts Plaintiff’s claims. The right to free speech allows us to give our opinions to things of public concern. The issuance of these SIV ratings is not, however, an issue of public concern. Rather, it is an economic activity designed for a limited target for the purpose of making money. That is not something that should be afforded First Amenment protection and the Defendants are not akin to members of the financial press.

 

Judge Kaplan also rejected the rating agency defendants’ arguments that the plaintiff’s claims are precluded by New York’s Martin Act or by the Credit Rating Agency Defense Act. However, he did find that plaintiff’s claim of negligent interference with prospective economic advantage was legally insufficient, although he allowed plaintiff leave to attempt to replead the claim.

 

Discussion

There have only been a handful of preliminary motion rulings so far that have been unfavorable to the rating agencies. But Judge Kaplan’s opinion in the Calpers case demonstrates that each of these rulings, even though seemingly limited, creates an opportunity for later plaintiffs to try to exploit the rulings in other cases.

 

For example, Judge Kaplan expressly relied on Judge Sheindlin’s September 2009 opinion in the Cheyne Financial case. Judge Sheindlin’s rejection of the rating agencies’ First Amendment defense in that case was by its own terms narrow; she said only that credit rating that is not directed to the public at large, but that is "provided instead to a select group of investors," is not entitled to First Amendment protection.

 

Though Judge Kaplan expressly quoted this narrowing language, his opinion arguable is not as narrow. To be sure, he emphasized that the SIV itself was designed for a "limited target. But he also said that the rating agencies are not the equivalent of the "financial press," and he indicated that the opinions were not entitled to protection where the opinions are not of "public concern." This analysis may or may not be sufficient to bar the First Amendment defense in a public-at-large kind of claim, but it nonetheless does seen to constrain the availability of the defense in a wide variety of circumstances – and a wider variety of circumstances than would the standard in Judge Sheindlin’s case.

 

Whether plaintiffs in other cases will be able to build further on Judge Kaplan’s opinion remains to be seen. It particularly remains to be seen whether Judge Kaplan’s analysis will prove useful in a public-at-large case, as opposed to a "select group of investors" kind of case.

 

Nevertheless the plaintiffs in these cases have shown themselves capable of building on openings in the defense. However, even the plaintiffs that have already survived preliminary motions are all still a very long way from any actual recovery. But surviving the motions to live for another day is the name of the game for plaintiffs in these kinds of cases. The small but growing number of rulings favorable to the plaintiffs seem to offer some reason to suspect that a number of these cases against the rating agencies may yet go forward.

 

Special thank to Henry Turner of the Turner Law Offices for providing me with a copy of Judge Kaplan’s opinion in the Calpers case.

　

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In two separate decisions, two courts issued opinions in cases that each related in different ways to Credit-Based Asset Servicing and Securitization, LLC, also known as C-Bass. As discussed below, Judge Rakoff has issued an opinion substantiating his prior dismissal motion rulings in the C-Bass subprime-related class action securities litigation, and in a separate opinion, Judge Mary McLauglin has dismissed with prejudice the subprime-related ERISA class action involving Radian Group and its investment in C-Bass.

 

The C-Bass Subprime-Related Securities Suit

 

As previously noted here, in a two-page March 31, 2010 order (here), Southern District of New York Judge Jed Rakoff issued an order denying in part and granting in part the defendants’ motions to dismiss in the C-Bass subprime-related securities suit. Judge Rakoff did not issue an opinion detailing his reasons for his rulings at the time. However, on June 1, 2010, Judge Rakoff issued his opinion substantiating his rulings. The opinion can be found here.

 

 

The most noteworthy aspect of Judge Rakoff’s decision is that he granted the rating agency defendants’ motion to dismiss, following Judge Kaplan’s ruling in the Lehman Brothers subprime-related securities suit that the rating agencies cannot be held liable under the ’33 Act as “underwriters.” Andrew Longstreth's June 1, 2010 Am Law Litigation Daily article discussing this aspect of Judge Rakoff's opinion can be found here.

 

 

Judge Rakoff said that similar reasoning requires him to dismiss three defendants (including C-Bass itself) who were merely “sponsors” of the offerings referenced in the plaintiffs’ complaint, as these defendants merely originated the mortgages underlying the securitizations, and therefore did not qualify as statutory underwriters. Judge Rakoff dismissed without prejudice the plaintiffs’ complaints against Merrill Lynch, holding that the specific allegations in the plaintiffs’ complaint were not sufficient to state a Section 11 claim against Merrill as an underwriter.

 

 

As to the defendants who actually were offering underwriters in connection with the offerings in dispute, Judge Rakoff said that the plaintiffs’ allegations that the mortgage originators had, contrary to representations in the offering documents about the originators compliance with underwriting guidelines, were sufficient to state a claim under the ’33 Act.

 

 

However, Judge Rakoff also granted the motion to dismiss plaintiffs’ claims as to 65 of the 84 securities offerings, in which the named plaintiffs had not purchased securities, on the basis of lack of standing.

 

 

One particularly interesting part of Judge Rakoff’s opinion is his ruling rejecting the defendants’ motion to dismiss on statute of limitations grounds. The defendants had argued that the plaintiffs were on inquiry notice prior to December 5, 2007 (that is, more than a year before the first complaint was filed) of their claims, and therefore the plaintiffs’ claims were time-barred.

 

 

In making this argument, the defendants had argued, as paraphrased by Judge Rakoff, that prior to December 2007, “questions about the bona fides of mortgage-backed securities were the subject of news reports, government investigations, public hearings, and civil complaints.” The plaintiffs argued that virtually none of these references referred to the defendants or to the securities at issue. Judge Rakoff said that at most, plausible inferences might be drawn for either side, making the issue inappropriate for resolution at the dismissal motion stage.

 

 

In reaching this ruling, Judge Rakoff expressly referenced the Supreme Court’s recent statute of limitations-related opinion in the Merck case (about which refer here). Judge Rakoff noted that Merck had addressed statutes of limitations issues under the ’34 Act, adding that the Second Circuit had not yet had occasion to determine how Merck might change statute of limitations issues under the ’33 Act.

 

 

However, with respect to Merck, Judge Rakoff noted that the Supreme Court had “rejected arguments of the defendants quite similar to the arguments made by the defendants here,” summarizing the Supreme Court’s ruling in Merck as holding that “a plaintiff would not be barred by the statute of limitations unless a reasonably diligent plaintiff similarly situated would have actually discovered facts showing the violations alleged in the plaintiffs’ complaint.”

 

 

Judge Rakoff’s ruling, though not dependent on the Merck case, is at least consistent with the general view that Merck itself could have a beneficial impact for plaintiffs in other securities class action lawsuits.

 

 

The Radian Group Suprime-Related ERISA Class Action

 

In a May 26, 2010 order (here), Eastern District of Pennsylvania Judge Mary McLaughlin granted with prejudice the defendants’ motion to dismiss in the Radian Group subprime-related ERISA class action.

 

 

The plaintiffs had alleged, on behalf of participants in the Radian Group benefits plan, that the defendants had misled the plan participants about the risks associated with investments in the plan in Radian stock due to Radian’s investment in C-Bass. The plaintiffs claimed that the plan participants were harmed with the value of the plan investments in Radian stock fell in value after Radian announced that its investment in C-Bass was materially impaired.

 

 

Judge McLaughlin had previously granted defendants’ motion to dismiss, without prejudice, and the plaintiffs amended their complaint. In her May 26 opinion, Judge McLaughlin granted the motions with prejudice, finding that the plaintiff has “once again failed to plead a breach of fiduciary duty.”

 

Judge McLaughlin specifically held that the plaintiff’s new allegations “do not demonstrate the inapplicability of the presumption of prudence, nor do they rebut the presumption.” She also found that the plaintiff had failed to state a claim for breach of the duty of disclosure.

 

 

I have added both of these rulings to my running tally of subprime-related litigation dismissal motion rulings, which can be accessed here.

 

 

Fifth Circuit Makes a Hash of the Climate Change Case: As I noted in a prior post, the October 2009 Fifth Circuit opinion in the Comer v. Murphy Oil Co. case, overturning the district court's dismissal of the plaintiffs' climate change related claims, raised the possibiltiy that other climate change cases might follow. However, the Fifth Circuit granted the defendants' petition for rehearing en banc, in the process vacating the October 2008 opinion of the initial Fifth Circuit panel.

 

 

That's when things started to get messy. One by one, different Fifth Circuit judges recused themselves, evenutally reaching the point where there weren't enough judges left to take up the en banc rehearing.

 

 

As discussed in Alison Frankel's June 1, 2010 Am Law Litigation Dailiy article here, the lack of a quorum for en banc review has left the case in a procedural netherword that she aptly describes as "weird."  It seems that the Fifth Circuit has dismissed the appeal, effectively reinstating the ruling of the district court. In its order dismissing the appeal, the Fifth Circuit expressly declined to reinstate the opinion of the three-judge panel. The Fifth Circuit said that there is no rule permitting them to reinstate a vacated opinion.

 

 

(You are excused if you feel a bit confused right now.)

 

 

 

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The subprime and credit crisis-related litigation wave may now be in its fourth year, but lawsuits continue to come in. The latest of these suits – a securities class action lawsuit involving Las Vegas Sands – has a number of interesting features, and it also raises the question whether we may see even further new filings related the credit crisis in the months ahead.

 

On May 24, 2010, plaintiffs’ attorneys filed a securities class action lawsuit in the United States District Court for the District of Nevada against Las Vegas Sands Corp., its Chairman and CEO, Sheldon Adelson, and its former President and COO, William Weidner. The complaint can be found here. A May 24, 2010 Las Vegas Sun article describing the lawsuit can be found here.

 

The complaint alleges that the defendants’ misled investors concerning developments at the company’s Asian casino properties, as well as with respect to the company’s liquidity and the company’s vulnerability to the economic downturn. Specifically, the plaintiffs allege that defendants’ statements during the class period were false and misleading because, according to plaintiffs' lawyers May 25, 2010 press release about the case:

 

(i) increasing competition in Macau was steadily eroding the Company's foothold in the region, which undermined defendants' representations that everything was proceeding according to plan; (ii) the Company was facing a significant liquidity crisis as a result of its ongoing expenditure of capital in Macau and Singapore, which forced the Company to divert funds from other operations to develop its Asian properties; (iii) that the Company, could not, in fact, weather the economic downturn, because the credit markets were drying up and Las Vegas Sands had failed to timely access those markets; and (iv) increasing visitor restrictions in Macau, which defendants represented would not impact the Company as significantly as its competitors, were expected by defendants to have just as devastating an effect on Las Vegas Sands.

 

There are several very interesting things about this new lawsuit. The first is that it follows in the wake of an unsuccessful shareholders’ derivative suit based largely on the same circumstances and similar allegations. The first of these lawsuits was filed in January 2009. A copy of the complaint can be found here. 

 

According to a November 6, 2009 Las Vegas Sun article (here), Clark County (Neb.) District Judge Allan Earl granted the defendants’ motions to dismiss these cases, citing, among other things, Adelson’s investment of over $1 billion of his personal fortune to try to rescue the company. Judge Earl found that the company’s predicament was the result of "reasonable business decisions," that, while risky, and that may have brought the company to the "brink of financial instability," might in the future "provide the economic stability to ensure the future success of the company."

 

Judge Earl also noted that the events played out against a "backdrop" that involved "a deteriorating global economy that struck with such frightening speed and force that it engulfed nearly every major banking, investment and gaming company in the world."

 

The other interesting thing about the new lawsuit, and that might be a direct consequence of the fact that it follows after the unsuccessful derivative suit, is that this case falls in the category of "belated lawsuits." This complaint was filed on May 24, 2010 but the class period is August 1, 2007 to November 6, 2008. In other words, the complaint was filed 18 months after the date of the proposed class period cutoff.

 

As I recently noted (here), belated lawsuit filings, where the filed date is more than a year after the proposed class period cut-off, have been a key component of 2010 securities class action lawsuits. The phenomenon first emerged in mid-2009, but the earliest cases related to nonfinancial companies. The speculation about the emergence of this filing trend has been that up until mid 2009, plaintiffs’ lawyers were preoccupied filing credit crisis lawsuits against financial firms, and a backlog of cases against nonfinancial firms built up.

 

The Las Vegas Sands securities lawsuit seems to represent something different – a belated case that is related to the credit crisis. Of course, Las Vegas Sands is not a financial company, and in that respect the new lawsuit is not inconsistent with the whole belated lawsuit filing phenomenon. But the case and its allegations about the company’s real estate developments, liquidity and funding problems are all related to the credit crisis.

 

For that matter the Las Vegas Sands case is not the first belatedly filed credit crisis-related securities suit in 2010. Cases filed earlier this year against The Hartford Financial Group (refer here) and the Morgan Keegan funds (refer here) each also were first filed more than a year after the proposed class period cutoff date and both reflect subprime meltdown or credit crisis related allegations.

 

The consensus view has been that the subprime and credit crisis-related litigation wave has largely ended, but the fact is that a number of subprime and credit crisis related securities suits have been filed in 2010—as many as 13, by my count. The possibility of further belated filings, relating back to events that unfolded a significant time ago, raises the prospect that there could be even further subprime and credit crisis-related cases yet to come.

 

Bottom line: it may be premature to suggest that the subprime and credit crisis-related litigation wave has ended. It may have quite a bit further to run.

 

I have in any event added the Las Vegas Sands case to my table of subprime and credit crisis-related lawsuit filings, which can be accessed here. I note that the list, which I first began compiling in April 2007, is now 214 cases long. I certainly never foresaw how lengthy or long-lived the list would be when I first began it so long ago.

 

Special thanks to Adam Savett of the Securities Litigation Watch blog for providing a copy of the Las Vegas Sands securities class action complaint.

 

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As the subprime litigation wave evolved in late 2008, among the many cases arising were cases I described at the time as "new wave" subprime-related cases, where the target company’s financial problems were due not to the company’s own exposure to subprime-related assets, but rather due to the company’s exposure to other companies that suffered reverses because of the subprime meltdown.

 

One particular type of these new wave cases involved companies that were sued because of the target companies’ exposure to Lehman Brothers. In a May 17, 2010 order (here), Southern District of New York Judge John G. Koeltl ruled on the motion to dismiss in a case pending against JA Solar Holdings and certain of its directors and offices, in which it was alleged that the company had misrepresented its exposure to Lehman Brothers. In what is as far as I know the first ruling in one of the Lehman exposure cases, Judge Koetltl denied the defendants’ motion to dismiss.

 

As discussed at greater length here, JA Solar was sued in December 2008, after the company announced on November 12, 2008 that it was recording an impairment for the entire principal value of a Note the company had purchased from Lehman Treasury, a Netherlands-based affiliate of Lehman Brothers.

 

In July 2008, JA Solar completed a $400 million financing, following which it purchased a $100 million note from Lehman Treasury with an October 9, 2008 maturity date. The note was supposed to have 100% principal protection and was guaranteed by Lehman Brothers.

 

The plaintiffs alleged that the company made two sets of misrepresentations or omissions about the Note. First, in an August 12, 2008 press release and subsequent conference call, the company and its CFO mentioned that Lehman brothers was managing its cash but did not mention the purchase of the Note, or the nature of the company’s relationship to Lehman as a result of the company’s investment in the Note.

 

Second in a September 16, 2008 press release and conference call, on the day following the Lehman bankruptcy, the company disclosed the $100 million Note for the first time, but stressed that the Lehman unit that had issued the Note had not filed for bankruptcy and emphasized that the note was "principal protected." In the subsequent conference call, the company’s CFO stated that the company expected that at the end of the Note’s term "there will be principal and interest returned to us."

 

In the same call, but only in response to analysts’ questioning, the CFO acknowledged that the only recourse if the Lehman affiliate company does not repay the Note was a guarantee by Lehman, which was in bankruptcy.

 

On November 12, 2008, the company recorded a $100 million impairment charge for the value of the Note.

 

The defendants moved to dismiss the complaint, arguing that the company had no duty to disclose the Note in the August communications and that the total information in the September call adequately disclosed the information about the Note and the Lehman guarantee.

 

Judge Koeltl found that the plaintiffs had adequately alleged that in the August conference call the company’s CEO had made a misleading statement about Lehman’s role with the company. He found that the statements misrepresented "how JA Solar’s cash was invested and the truthful nature of JA’s Solar’s relationship with Lehman Brothers."

 

Judge Koeltl also found that the plaintiff had adequately alleged misrepresentations in connection with the September statements. Among other things, the company’s CEO had stressed that the Note has "100% principal protection" without stating that "any possible protection was provided solely by the bankrupt Lehman Brothers." Judge Koeltl added that "it is difficult to understand how JA Solar could have assured investors that the Note was fully protected when the only protection was provided by a company in bankruptcy."

 

Judge Koeltl rejected the defendants’ arguments that, in response to the analysts’ questions, the CFO had clarified the full effect of the Lehman Brothers bankruptcy. Judge Koeltl said that whether the statements effectively counterbalanced the prior statements is a factual question "that cannot be resolved in a motion to dismiss," adding that the plaintiffs "have pleaded sufficient facts at this stage to call in to question whether Mr. Lui’s statements cleansed the allegedly misleading statements. "

 

Finally Judge Koeltl found that the plaintiffs had adequately alleged scienter, finding that the plaintiffs had adequately alleged that the defendants knew in August that "JA Solar had not simply engaged Lehman Brothers to manage its cash, but rather than JA Solar had purchased the $100 million Note" which was guaranteed by Lehman from a Lehman affiliate. He also found the defendants knew "in spite of their statements in September 2008 that the Note had 100% principal protection and that they expected the principal and interest to be returned, that Lehman Brothers was the only guarantor of the Note and that Lehman Brothers was, in fact, in bankruptcy."

 

Judge Koeltl found that the defendants’ knowledge of these facts, in contradiction of their public statements, "satisfies the scienter requirement."

 

While a lot might be said about this decision, the overall impression is that Judge Koeltl was persuaded that the company had simply not been candid about its exposure to Lehman Brothers. Of course, it is hard now to recall how tumultuous and uncertain things were in the days in early fall 2008, but alleged facts create the impression that the company was straining to avoid disclosing how exposed it was to Lehman Brothers. Whether the defendants actually believed they would be able to redeem the Note at maturity, notwithstanding Lehman’s bankruptcy, is one issue that will have to be sorted out in this case as it goes forward.

 

I have in any event added the ruling in the JA Solar case to my running tally of subprime-related dismissal motions rulings, which can be accessed here.

 

Special thanks to a loyal reader for providing a copy of the JA Solar opinion.

 

Apologies: My apologies that this blog site was unavailable almost the entire day on May 17, 2010. Once again my hosting service, LexBlog, experienced server problems that managed to take the entire site offline for an extended period of time. I apologize to anyone inconvenienced by this hosting service failure.

 

 

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As the various subprime-related securities lawsuits have reached the motion to dismiss stage, some of the rulings have gone for the defendants and other have gone for plaintiff. Regions Financial Corporation experienced one of each kind of ruling in two separate cases involving allegations about the goodwill the company carried on its balance sheet as a result of its November 2006 acquisition of AmSouth.

 

As discussed below, the motion to dismiss was denied in the Alabama state court derivative suit, but the motion to dismiss was granted in the securities class action lawsuit pending in the Southern District of New York.

 

Regions Shareholders’ Derivative Lawsuit (Alabama)

Background

Plaintiffs filed their shareholders’ derivative complaint in May 2009 in Alabama (Jefferson County) Circuit Court against Regions, as nominal defendant, and certain current and former members of Regions’ board of directors. The complaint asserts claims against the company defendants for breach of fiduciary duty, corporate waste, and abuse of control. (The complaint asserts separate claims against the company’s offering underwriters and auditing firm for aiding and abetting and breach of professional duties).

 

The complaint’s allegations pertain to the company’s November 2006 $10 billion purchase of AmSouth and the alleged falsification of the company’s public statements and disclosure documents both during and following the transaction. The complaint principally focuses on the company’s disclosures between the time of the merger and the company’s January 2009 write down of over $6 billion of goodwill. Throughout that period, and despite the deteriorating real estate market, the merger allegedly was touted as a success, notwithstanding Regions’ acquisition of AmSouth’s exposure to the Florida real estate market.

 

According to the complaint in June 2008 the SEC questioned the company’s determination in its 2007 10-K that its goodwill balance was not impaired. Analysts also began to question this issue as well, but it was not until January 2009 that the company, as the Alabama court later put it "wrote down its goodwill and admitted that the value of its loan portfolio was billions less that [sic] what had been reported." The plaintiff alleges that the defendants knew of the true financial situation and misrepresented or concealed those facts.

 

The company defendants moved to dismiss on the grounds that the plaintiff had failed to make a pre-suit demand that the company itself bring the claims. The plaintiff countered that demand was excused.

 

The May 6 Ruling

In a May 6, 2010 order (here), Circuit Court Judge Robert S. Vance, Jr., applying Delaware substantive law and Alabama procedural requirements largely denied the defendants’ motions to dismiss, finding that the plaintiffs "have met their burden, at least at to the extent needed to establish demand futility at this point."

 

Judge Vance noted the widespread deterioration of the Florida real estate market, and also reviewed the duties of the board, particularly its audit committee, to consider critical financial issues such as goodwill impairment. Judge Vance noted that:

 

Given these duties along with the well-known and heavily publicized deterioration of the real estate market (especially in Florida) and the corresponding collapse in the credit market, and the letter received from the S.E.C. in June 2008, the members of the audit committee can fairly be said to confront a substantial likelihood of liability as a result of Regions’ failure to advise its shareholders prior to January 2009 that its financial situation was threatened.

 

Judge Vance also denied (in reliance on the Citigroup derivative lawsuit case) defendants’ motions to dismiss the plaintiffs claims for waste "to the extent that corporate waste allegations pertain to compensation issues specifically authorized by the directors."

 

However, Judge Vance found that the plaintiffs had failed to show enough to maintain claims based on an alleged failure to oversee Regions’ subsidiary, Morgan Keegan, holding that the plaintiffs "fail to show in what particular ways the Regions’ board has consciously failed to oversee the operations of its subsidiary."

 

Southern District of New York Securities Class Action Lawsuit

Background

As reflected in greater detail here, the plaintiffs first filed a securities class action lawsuit in the Southern District of New York against Regions on April 1, 2009. The plaintiffs represented investors that had purchased securities in the company’s $345 million April 2008 trust preferred securities offering. The defendants included the company, certain of its directors and officers, its offering underwriters, and its auditor.

 

The plaintiffs alleged that the April 2008 offering documents were false and misleading because they incorporated by reference financial statements that overstated goodwill and underestimated loan loss reserves. Among the financial statements incorporated into the offering documents was the company’s 2007 Form 10-K.

 

The complaint alleged that the company "did not write down any of the massive goodwill" it recorded in its 2007 10-K "despite growing evidence indicating that serious problems existed at the time of the acquisition." The complaint also alleges that Regions "only marginally increased its loan loss reserves" despite "the high risk of loss inherent in its mortgage loan portfolio."

 

The defendants moved to dismiss on the grounds that the plaintiffs had failed to allege any actionable misstatements or omissions.

 

The May 10 Ruling.

In his May 10, 2010 opinion (here), Southern District of New York Judge Lewis Kaplan granted the defendants’ motions to dismiss.

 

With respect to the plaintiff’s allegations regarding goodwill, Judge Kaplan concluded that "in the absence of particularized allegations that management believed that the goodwill figure was materially overstated, the amended complaint is insufficient as a matter of law."

 

In reaching this conclusion, Judge Kaplan noted that the goodwill was intended to reflect the excess of the acquisition price over the fair value of AmSouth’s assets at the time of the acquisition. He noted that the value of AmSouth’s loan portfolio "was not a matter of objective fact," as its loan assets were not traded on an efficient market, adding "nor has plaintiff pointed to any other objective standard of value." Given the lack of "any objective or readily determinable value," the question of the falsity of the goodwill presented in the offering documents is not a question of whether or not the value was wrong in some empirical sense, but whether or not the offering documents actually reflected management’s "honest opinion." Because the complaint did not allege that the goodwill did not reflect management’s opinion, the complaint’s allegations regarding goodwill were insufficient as a matter of law.

 

Even though the SEC’s June 2008 inquiry letter came two months after the April 2008 securities offering, Judge Kaplan expressly addressed the letter’ implications He noted that the SEC did not question the validity of Regions’ goodwill balance, but rather asked only for Regions to disclose how it determined that the goodwill balance was not impaired. Regions had responded that the goodwill reflected the fact that a potential buyer would offer a control premium for the business franchise. The SEC had replied that it had no further comments. Judge Kaplan concluded that the exchange with the SEC did not support an inference that Regions was aware that its goodwill was impaired at the time its alleged misstatements.

 

Judge Kaplan reached a similar conclusion with respect to the alleged insufficiency of Regions’ loan loss reserves, noting that the loan loss reserves are not a matter of objective fact, but rather were statements of opinion. He noted that the complaint is "devoid of any allegation that the defendants did not truly hold those opinions at the time they were made public."

 

Discussion

The difference in outcome of these two dismissal motion rulings is largely a reflection of the fact that the two courts were engaged in significantly different exercises. The Alabama court was determining only whether or not the requirement for pre-suit demand was excused based on the circumstances alleged.

 

Judge Kaplan was not only examining the legal sufficiency of the allegations, but he was also considering whether or not the complaint met the specific legal requirements for the specific claims alleged.

 

But the difference between these two opinions reflects more than the difference in the precise questions before the respective courts.

 

The two opinions also reflect strongly different starting points. Judge Vance in the Alabama case took it as a given that the residential real estate marketplace was rapidly deteriorating during the relevant time period, and that the deterioration was a relevant consideration. Judge Vance also considered the SEC’s letter relevant to whether or not the company’s financial statements were misleading due to the company’s delay in recognizing the impairment of the goodwill.

 

Judge Kaplan’s analysis seems to suggest that that these external considerations were irrelevant, and the only consideration was whether or not the offering documents accurately reflected management’s opinion about goodwill.

 

Judge Vance was, of course, concerned with a broader period of time and a broader range of communications than was Judge Kaplan. And unlike the plaintiffs in the securities fraud lawsuit before Judge Kaplan, the plaintiffs in the derivative lawsuit had expressly alleged knowing or reckless misrepresentation. Because the claims before Judge Kaplan were asserted under the ’33 Act, the plaintiffs in that case had not alleged knowing or reckless misrepresentation.

 

Accordingly, it might be asserted that the differences between the two opinions are simply a reflection of the differences in the facts alleged and the substantive difference in the claims asserted. That assertion might even be true. However, I find it very hard in reading these two opinions not to conclude that these opinions are best explained by the differences in the two Judge’s starting points. For Judge Vance, it was all about the external context. For Judge Kaplan, the context is irrelevant.

 

Just to round out the picture here, it is worth noting that in a March 9, 2010 order (here), Western District of Tennessee Judge Samuel H. Mays, Jr. denied the motion to dismiss in the Regions Financial subprime-related ERISA class action lawsuit. On the one hand you might say that this is yet another decision relating to the same set of circumstances, but it could also be argued that the ERISA plaintiffs have alleged a substantially broader array of misrepresentations. At a minimum, you can say that the dismissal motion rulings in the subprime-related cases involving Regions Financial Corp. are basically all over the map.

 

Once final note is that Judge Vance’s ruling may be significant due to the fact that it is a higher-profile subprime related derivative suit in which the complaint survived the initial motions to dismiss. This outcome stands in contrast to prior rulings in subprime-related derivative suits – for example, in the Citigroup derivative lawsuit (about which refer here) and AIG derivative lawsuit (refer here). Based on these rulings, a perception has been growing the plaintiffs are struggling in these cases.

 

Judge Vance’s holding that demand in this case is excused is a potentially significant holding, although its impact is likely to be limited both due to the somewhat case specific facts (including in particular the SEC’s June 2008 letter inquiry), and due to the fact that the ruling is the product of an Alabama state court applying Delaware law. These factors may restrict the impact of the case.

 

Nevertheless the May 6 order does represent an example where plaintiffs were able to overcome the challenging initial hurdles involved in shareholders’ derivative litigation.

 

I have in any event added the two Regions-related rulings to my running tally of subprime-related dismissal motions rulings, which can be accessed here.

 

Special thanks to several loyal readers for providing me with copies of the various Regions Financial rulings. .

 

E*Trade Subprime Securities Suit Dismissal Motion Ruling Denied: And speaking of subprime-related securities lawsuits in which the dismissal motions were denied, in another order dated May 10, 2010 (here), Southern District of New York Judge Robert Sweet denied the defendants' motion to dismiss in the subprime related securities suit pending against E*Trade and certain of its directors and officers.

 

As reflected in greater detail here, the plaintiffs had first filed their securities actions against E*Trade in October 2007, alleging that the company had failed to disclose deterioration in its mortgage and home equity loan portfolio. The defendants moved to dismiss, arguing among other things that the company's losses were the result of a "worldwide economic catastrophe" and the plaintiffs' claims were nothing more than "fraud by hindsight."

 

In denying the defendants' arguments, Judge Sweet rejected this "global meltdown" arguments saying that "because the issue in this action is what the Defendants knew and when they knew it, a securities violation has been adequately alleged." 

 

Andrew Longstreth's May 12, 2010 Am Law Litigation Daily article about the dismisal motion ruling in the E*Trade case can be found here. I have also added the E*Trade ruling to my running tally of subprime lawsuit dismissal motion rulings.

 

 

 

Reflection: Judge Vance is the eldest son of Robert Smith Vance, who served as a United States District Circuit Judge, first in the Fifth Circuit and later in the Eleventh Circuit. The elder Judge Vance is one of the few federal judges to be assassinated as a result of his judicial service. Judge Vance was killed by a mail bomb in 1989. Prosecutors later concluded that the bomb had been sent by a convicted criminal upset because the Eleventh Circuit had refused to expunge the conviction.

 

In memory of Judge Vance, the name of federal building and courthouse in Birmingham, Alabama as been changed to the Robert S. Vance Federal Building and United States Courthouse.

 

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In a April 26, 2010 opinion (here) that could have significant implications for motions to dismiss in the many subprime-related securities actions pending against the rating agencies, Southern District of New York Judge Schira Scheindlin rejected the arguments of Moody’s and S&P that the action investors in the Rhinebridge structured investment vehicle (SIV) should be dismissed because the investors’ losses were caused the global credit crisis rather than those firms’ investment ratings.

 

Background

The investor plaintiffs had filed a putative class action lawsuit for common law fraud in connection with the collapse of Rhinebridge. The action was brought against IKB Deutsche Industriebank AG and related entities; the rating agency defendants, including Moody’s and S&P; and certain individuals. (If IKB’s name sounds familiar, that is because it was one of the principal buyers in the now infamous Abacus transaction at the heart of the SEC’s action against Goldman Sachs.)

 

The plaintiffs contend that the defendants fraudulently misrepresented the value of Rhinbridge and its Senior Notes. These misrepresentations took the form of the high credit ratings assigned to the Notes. The Notes’ triple A ratings allegedly conveyed to investors that they were highly credit worthy and exceptionally strong, but also allegedly concealed that Rhinebridge’s portfolio actually consisted of toxic assets that were heavily concentrated in the structured finance and subprime mortgage industries. The Notes were downgraded in October, Rhinebridge entered receivership and the investors lost million of dollars.

 

S&P and Moody’s moved to dismiss on the grounds that plaintiffs allegations were insufficient to demonstrate loss causation, in that they failed to account for the global liquidity crisis that began in the summer of 2007.

 

The April 26 Opinion

Judge Scheindlin rejected the defendant rating agencies’ loss causation argument, observing that "to hold that plaintiffs failed to plead loss causation solely because the credit crisis occurred contemporaneously with Rhinebridge’s collapse would place too much weight on one single factor and would permit S&P and Moody’s to blame the asset-backed securities industry when the their alleged conduct plausibly caused at least some portion of plaintiffs’ losses."

 

She added that "even if the existence of the credit crisis—standing alone – could be enough to defeat a plaintiffs’ pleading of loss causation, it is not apparent that the credit crisis was the sole cause of Rhinebridge’s collapse."

 

Judge Scheindlin also noted that "S&P and Moody’s may yet prevail at a later stage in this case," adding that "if defendants ultimately prove that plaintiffs’ losses were, in fact, cause entirely by an intervening event, then defendants will prevail either at summary judgment or at trial."

 

Judge Scheidlin declined to find, as plaintiff had urged, that the rating agencies were "one of the major causes" of the global financial crisis. She observed that:

 

Blame for the financial crisis can be, and had been, spread globally – from the financial sector’s increasingly complex financial products, to mortgage originators, to the government’s loosened regulatory practices and its failure to respond to the collapse and substantial weakening of multiple financial powerhouses. While the Rating Agencies’ actions may have been a "substantial factor" causing the loss, that is not tantamount to labeling their conduct a "major cause" of the global financial crisis.

 

Discussion

While numerous subprime and credit crisis-related lawsuits have been filed against the rating agencies have been filed and are slowly working their way through the courts, the fundamental questions of whether and under what circumstances the rating agencies might be held liable to investors are yet to be worked out.

 

Even before those basic liability issues can be addressed, the threshold pleading issues still have to be sorted out. Judge Scheindlin emphatically did not hold that the rating agencies can be liable. However, her April 26 opinion does represent a strong signal that the rating agencies will not get off the hook merely because there was a larger financial crisis beyond the rating agencies’ actions in connection with the specific transactions.

 

To put everything under the heading of the credit crisis, Judge Scheindlin held, would be to permit the rating agencies to "blame the asset-backed securities industry when the alleged conduct plausibly caused at least some proportion of plaintiffs’ losses."

 

So it remains to be seen whether the rating agencies may be held liable. But Judge Scheindlin’s opinion suggests that the rating agencies will not be able to get the cases against them dismissed on the simple theory that the credit crisis and not their rating actions caused investor losses, where plaintiffs have plausibly alleged that the rating agencies cause some proportion of the losses.

 

This holding potentially removes at least one threshold barrier to the question of ultimate liability, at least for purposes of the pleading stages, and reduces the extent to which the rating agencies may be able to rely on the "coincidence" of the global credit crisis as an out from the cases against them.

 

For my discussion of Judge Scheindlin’s opinion in a separate subprime lawsuit against the rating agencies in which, on the facts alleged, she held that the rating agencies were not entitled to dismissal on the grounds that their ratings were protected by the First Amendment, refer here.

 

The WSJ.com Law Blog’s post on Judge Scheindlin’s opinion can be found here. Andrew Longstreth’s April 27, 2010 Am Law Litigation Daily article about the decision can be found here. .

　　

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The SEC’s high-profile enforcement action against Goldman Sachs and one of its investment bankers may or may not revitalize the waning subprime and credit crisis-related litigation wave, but it has at least sparked an outbreak of follow on civil litigation against Goldman Sachs.

 

According to their April 26, 2010 press release (here), plaintiffs’ lawyers have filed a securities class action lawsuit in the Southern District of New York against Goldman and certain of its directors and officers. According to the press release, the complaint (which can be found here) alleges that the defendants failed to disclose that:

 

(i) the Company had, in violation of applicable law, not fully disclosed the facts and circumstances concerning the formation and sale of the ABACUS 2007-AC1 deal to investors such that it had engaged in misleading conduct; (ii) the Company had, in fact, bet against its clients and constructed collateralized debt obligations that were likely, if not designed, to fail; and (ii) the Company had received a Wells Notice from the SEC about the ABACUS transaction but failed to inform shareholders of this fact.

 

The complaint further alleges that April 16, 2010, Goldman was sued by the SEC "for making materially misleading statements and omissions in connection" with ABACUS 2007-AC1. Following this announcement, Goldman’s stock price fell $24.05, declining from $184.27 per share on April 15, 2010 to close at $160.70 per share on April 16, 2010.

 

A key issue in this new lawsuit will be Goldman's alleged failure to disclosure the existence of the Wells Notice. Which of course begs the question of whether or not Goldman had any obligation to disclosure the existence of the Wells Notice. There is no bright line rule on this issue, it is a question of materiality. But as Michelle Leder points out on the Footnoted blog (here), lost of other companies do routinely disclose Wells Notices. A post on the Westlaw Business Currents blog (here) is very much to the same effect, that is, that whether or not Wells Notice disclosure is requrired, many companies do disclose Wells Notices.

 

The securities class action lawsuit filing follows close on the heels of the filing late last week of two separate New York state court shareholders’ derivative lawsuits against Goldman, as nominal defendant, and certain of its directors and officers. According to April 23, 2010 press reports (refer here), the complaints allege that:

 

　

The individual defendants engaged in a systematic failure to exercise oversight of the company's 23 Abacus transactions, which were completed over a three and half year period. As a direct and legal result of the individual defendants' wrongful conduct, Goldman Sachs has been significantly and materially damaged, faces billions of dollars of liability, has incurred and will continue to incur millions of dollars of expense in defending claims against the SEC and investors, and has suffered serious damage to its reputation and image.

 

The same press reports also quote a leading plaintiffs’ securities class action attorney as saying that "I suspect every major pension fund in America" is considering suing Goldman Sachs "over the conduct that occurred."

 

I have added the new Goldman lawsuit to my running list of subprime and credit crisis-related securities class action lawsuits, which can be accessed here. SInce I first began compiling the list almost exactly four years ago, there have been a total of 210 subprime and credit crisis-related securities suits filed, of which eight have been filed so far this year.

 

A WSJ.com Law Blog post about the Goldman securities class action lawsuit can be found here. Bloomberg’s article about the lawsuit can be found here.

 

More About Goldman Sachs and D&O Claims: An April 26, 2010 National Underwriter article by Susanne Sclafane entitled "Long-Awaited SEC Action Emphasizes Need for More D&O Cover, Lawyer Says" (here) presents a lengthy discussion of the possible D&O claims implications from the recent SEC action against Goldman Sachs, as well as any follow on private litigation. The article also contains an extensive summary of the recent Advisen conference call regarding first quarter securities litigation trends.

 

As for the question of potential insurance coverage for the SEC’s claims and for other claims that filed against Goldman Sachs, an April 26, 2010 Business Insurance article by Roberto Ceniceros entitled "Goldman Legal Woes Could Hit Insurers" (here) explores the issues that could affect the availability of coverage under Goldman’s D&O insurance program. An April 24, 2010 Bloomberg article on the same topic can be found here.

 

The April 26, 2010 issue of Business Insurance also has an article by Zack Phillips entitled "Subprime Rulings Favor Defendants" (here), discussing recent trends in subprime and credit crisis lawsuit dismissal motion rulings.

 

Developments on the D&O Claims Front: In Chubb’s April 22, 2010 quarterly earnings conference call (a transcript of which can be found here), Chubb Vice-Chairman John Degnan had the following to say about D&O claims trends:

 

　

I am particularly pleased about developments in two areas I want to mention specifically, the frequency of non-credit crisis security class action claims and the recent rulings in credit crisis derivative actions.

 

For the second straight quarter, even as the number of new credit crisis security class actions virtually disappeared we did not see a corresponding increase in the number of non-credit crisis class actions. So for those observers who have speculated that there was a substantial number of backlog claims waiting to be filed, the evidence so far doesn’t support that. And, the two year statute of limitations is already a bar to actions in which the triggering event, typically a corrective disclosure took place in 2007 and early 2008, the years in which that presumed backlog would have been building.

 

In addition, we’re encouraged by the continuing relatively high dismissal rate in the first quarter of derivative actions which might otherwise trigger our side A coverages. Unlike the stock option back dating claims which were heavily weighted towards derivative actions, credit crisis claims have been predominately securities class actions. However, in connection with the credit crisis derivative claims which have been brought, we are seeing the allocation of well established legal protections governing mismanagement allocations and the defendants are having great, in some cases even unexpected success in defending those claims.

 

For example, in the recent decision involving AIG’s credit crisis woes, the court has made it clear that they will not engage in second guessing managements’ legitimate business decisions regardless of how badly those decisions played out. So, although some observers have asserted that credit crisis derivative claims have the potential to impact side A coverages, we are not currently seeing an increased level of exposure as a result of them.

 

Ordinarily I would not include on this blog anything as insurer-specific as a single company’s earnings conference call transcript, and I do not intend to comment on Chubb’s quarterly results here. I included this selection from the conference call transcript because I have a couple of thoughts about Mr. Degnan’s claims trend observations.

 

I should emphasize at the outset that in adding my comments that I mean no disrespect to Mr. Degnan, for whom I have nothing but the highest admiration and respect. Moreover, I fully recognize that Mr. Degnan’s comments were made in reference to his own company’s experience, rather than as a general matter. But with respect to more general trends, I do have a few observations.

 

There is no doubt that securities class action lawsuit filings were down during the first quarter as has been noted elsewhere. However, by my count there have been eight securities class action lawsuits filed so far in 2010 (out of about 40 lawsuit total YTD) in which the filing date was more than a year after the proposed class period cutoff. That 20% of all filings YTD were belated suggests to me that the belatedness of securities lawsuit filing, which first became pronounced in the second half of 2009, has continued into 2010. My earlier post about belated 2010 securities lawsuit filings can be found here.

 

I agree with Mr. Degnan that so far the credit crisis-related derivative suits have not gone particularly well for the plaintiffs. But as for the potential risks for the Side A product line in general as a result of derivative litigation activity, it is important to note that when derivative cases survive the initial pleading hurdles, they are increasingly costly to settle, and when they do settle, increasingly they are producing Side A losses.

 

The best illustration of this latter point is the $118 million settlement in the Broadcom options backdating derivative lawsuit, to which Excess Side A insurers contributed $40 million. Admittedly, the Broadcom settlement was not credit crisis related but it still represents a very significant development. (Perhaps Mr. Degnan can be forgiven for neglecting to mention the case, however, since his company is one of the few D&O insurers that did not participate in the Broadcom’s Side A tower.)

 

In any event, the most significant risk to the Side A product line is from insolvency related claims, not derivative claims. In the current economic environment, bankruptcy related claims remain a significant threat.

 

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The conventional view is that plaintiffs may be faring poorly in many of the subprime-related cases. However, plaintiffs have in fact been doing relatively better in ’33 Act claims brought by purchasers of mortgage-backed securities. A recent ruling in the Wells Fargo Mortgage-Backed Certificates Litigation, in which a significant number of plaintiffs’ claims survived the defendants’ motions to dismiss, continues this trend of relatively favorable rulings in these cases. In addition, as also discussed below, the plaintiffs in the Lincoln National subprime related ERISA class action also recently survived dismissal motions.

 

Wells Fargo Mortage-Backed Certificates: In an April 22, 2010 order (here), Northern District of California Judge Susan Illston granted in part and denied in part the defendants motions to dismiss in the subprime-related Wells Fargo Mortgage-Backed Certificates securities class action lawsuit.

 

Purchasers of the mortgage pass-through certificates had filed their lawsuit in March 2009, alleging that the offering documents contained misrepresentations and omissions. The plaintiffs alleged that the documents misstated Wells Fargo’s underwriting processes and loan standards; falsely stated the appraisal value of the underlying mortgaged properties; and misstated the investment quality of the securities, which had been assigned the highest ratings regardless of the lower quality of the underlying mortgages.

 

In her April 22, 2010 order, Judge Illston granted the defendants motions to dismiss, for lack of standing, plaintiffs’ claims based relating to 37 out of the 54 referenced offerings in which the named plaintiffs had not purchased securities. She also granted the rating agency defendants’ motions to dismiss the plaintiffs’ claims against them, holding (in reliance on Judge Lewis Kaplan’s February 1, 2010 ruling in the Lehman Brothers case) that the rating agencies were not underwriters within the meaning of the ’33 Act.

 

As to the 17 offerings in which the plaintiffs had purchased securities, Judge Illston denied the remaining defendants’ motions to dismiss, holding that the plaintiffs, in reliance on confidential witness testimony, had adequately alleged misrepresentations in connection with the defendants’ underwriting practices, improper appraisal practices, and the process by which the securities obtained their investment ratings.

 

One particularly interesting part of Judge Illston’s opinion related to the defendants’ motions to dismiss the plaintiffs’ claims based on the statute of limitations. Plaintiffs first filed their complaint in March 2009. In order to avoid the statute, the plaintiff claims would "have to have accrued no earlier than March 27, 2008 to be timely." The defendants argued that due to widespread press coverage the plaintiffs were put on inquiry notice of problems involving mortgage-backed securities well before March 2008. Judge Illston found these arguments "unpersuasive" noting that the news articles on which the defendants relied "give rise to competing inferences."

　

Lincoln National ERISA Class Action: In an April 20, 2010 order (here), Eastern District of Pennsylvania Judge Anita Brody denied the defendants’ motions to dismiss the subprime related ERISA lawsuit that had been brought on behalf of two Lincoln National benefit plans.

 

During 2008 and 2009, Lincoln National had sustained heavy losses in its investment portfolio because of investments in mortgage-backed securities, structured investment products, and other derivative securities, including collateralized debt obligations. As the company sustained these investment losses, its share price declined substantially. The plaintiff alleged that because the defendants knew or should have known of the company’s exposure to investment losses, it was imprudent to continue to invest plan assets in the company’s stock. The plaintiff also alleged that the defendants’ failure to disclose the company’s exposure to investment losses prevented the plan participants from making informed investment decisions.

 

The defendants moved to dismiss, arguing first that because the plans were Employee Stock Ownership Plans, the plan fiduciaries are entitled to a presumption of prudence for the decision to invest in employer securities. The plaintiff argued that the presumption was inapplicable because the plan fiduciaries had discretion whether to offer the company stock as an investment options. The court found that the plaintiff had alleged sufficient facts to overcome the presumption, citing the alleged precipitous decline in the company’s stock, the defendants’ knowledge of the impending collapse and the defendants’ conflicted status.

 

In reaching this conclusion, Judge Brody noted that the complaint contains "specific allegations explaining why Defendants knew or should have known that the value of the LNC common stock would seriously deteriorate." She specifically referred to the complaint’s allegations that "Defendants knew or should have known of the Company’s exposure to losses in its investment portfolio due to declines in subprime and Alt-A residential mortgage-backed securities, the Company’s exposure to losses in its investment portfolio due to equity investments in troubled markets, and the Company’s exposure to decreasing capital levels."

 

In denying the motion to dismiss on this ground, Judge Brody commented that the plaintiff "faces a heavy burden going forward" as the "presumption of prudence is a difficult standard to overcome." She noted that the complaint "alleges sufficiently dire circumstances that might cause a prudent plan fiduciary to discontinue" the investment option in company stock.

 

Judge Brody also found that the plaintiff had adequately alleged claims that the documents distributed to plan participants contained materially misleading statements. However Judge Brody granted the defendants’ motion to dismiss on the plaintiff’s failure to disclose claim, holding that the plan documents "adequately informed plan participants about the risk inherent in investing solely in employer securities."

 

Discussion

The court’s holding in the Wells Fargo case is largely consistent with other recent dismissal motion rulings in ’33 Act claims involving mortgage-backed securities. It now seems to be fairly well established that plaintiffs are not going to be allowed to assert claims in connection with offerings in which they did not purchase securities. However, dismissal motions apparently will be denied where the plaintiffs have alleged that offering document statements about mortgage originating practices were misleading, at least when the plaintiffs allege in reliance on confidential witness testimony that the mortgage originator systematically disregarded its underwriting guidelines.

 

The statute of limitations issue in the Wells Fargo case is interesting. Judge Illston’s holding that the plaintiffs had not been put on inquiry notice in March 2008 raises the interesting question of when prospective plaintiffs were put on inquiry notice. At some point during 2008, as the financial markets deteriorated and then nearly collapsed, mortgage-backed securities investors clearly were on inquiry notice about possible problems in the mortgage securitization industry. Perhaps another case will narrow down that 2008 inquiry notice date. At a minimum by September 2008 when Lehman Brother collapsed and AIG had to be bailed out, the cat was clearly out of the bag.

 

The practical reality that there is some date during 2008 when the plaintiffs undeniably were on inquiry notice provides at least one explanation why the number of new subprime-related securities class action lawsuit filings began to decline. Clearly, the plaintiffs’ lawyers have no interest in brining claims that will likely be found to be time barred. Of course, as time goes on, the dates on which the toxic offerings took place recedes further and further into the past, and so that is one reason why, notwithstanding the dramatic recent allegations in the SEC’s enforcement action against Goldman Sachs may unlikely to generate a wave of new subprime related securities suits.

 

There is one interesting side note in the SEC’s complaint against Goldman Sachs that is tangentially related here. The SEC alleges that as Paulson company representative and ACA, the portfolio selection manager, worked out which securities would be included in the Abacus CDO, the Paulson representative deleted eight mortgage backed securities that had been issued by Wells Fargo. The SEC’s complaint alleges in paragraph 34 that "Wells Fargo was generally perceived as one of the higher-quality subprime loan originators."

 

It is probably cold consolation to the investors in the Wells Fargo securities that Wells Fargo’s mortgages were then perceived as sufficiently durable that Paulson didn’t want securities backed by those mortgages in his "built to fail" CDO. The money those investors lost on their investment hurt them every bit as badly as the money that investors in other securities lost hurt them. It is probably some measure of how widespread the subprime meltdown was that even securities perceived as stronger still produced significant losses for their investors.

 

As for the Lincoln National decision, this is the latest in a series of subprime-related ERISA class action lawsuit dismissal motion rulings suggesting that ERISA claims may be more likely to survive dismissal motion rulings. The most extreme example of this is in connection with NovaStar Financial, where the securities class action lawsuit was dismissed (and indeed the dismissal was affirmed by the Eighth Circuit), yet the NovaStar ERISA lawsuit survived the dismissal motion. At one level this is hardly surprising since ERISA plaintiffs, unlike securities plaintiffs, do not have to allege scienter, among other things.

 

The Lincoln National case does represent an interesting example of a lawsuit against a company not for its involvement as a mortgage industry participant or a mortgage securitization producer, but rather as a mortgage backed security investor. When losses are sufficiently widespread, the lawsuits go in every direction. Though Lincoln National is among the defendants in this ERISA case, it could well be a claimant in other mortgage-backed securities lawsuits, owing to the losses in its investment portfolio.

 

I have in any event added these two decisions to my running tally of subprime-related lawsuit dismissal motion rulings, which can be accessed here.　

 

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In the largest subprime-related securities suit settlement to date, Countrywide Financial has reached an agreement to pay $600 million to settle the securities class action pending against the company and certain of its directors and officers, according to an April 23, 2010 article by Gabe Friedman in The Daily Journal (here, subscription required). The settlement reportedly is still confidential and is also subject to the approval of several pension boards.

 

The settlement agreement would include the release several top Countrywide executives, including former CEO Angelo Mozillo.

 

The settlement is also subject to court approval; however, the agreement reportedly was the product of mediation before U.S. District Judge Howard Matz, and accordingly it seems unlikely that it would be set aside by the court, assuming it ultimately is approved by all parties.

 

The consolidated securities class action lawsuit against Countrywide is pending before Central District of California Judge Mariana R. Pfaelzer. In a massive December 1, 2008 opinion, about which refer here, Judge Pfaelzer had denied the defendants’ motion to dismiss. The Countrywide case remains one of the most prominent subprime-related securities cases in which the motions to dismiss were denied.

 

The settlement reportedly only relates to the securities class action lawsuit; the separate California-based shareholders’ derivative lawsuit, which also survived a motion to dismiss (refer here), apparently remains pending. The separate Countrywide ERISA class action lawsuit previously settled for $55 million (refer here).

 

In addition to these actions brought by private litigants, the SEC has also separately filed an enforcement action against former CEO Angelo Mozillo, as well as the company’s former CFO and COO, as discussed here. In addition, a recent report in the Wall Street Journal suggested that a Central District of California grand jury is also looking into the possibility of criminal misconduct at Countrywide.

 

By any measure, this is a very large settlement – should it in fact be finalized. According to the RiskMetrics’ Top 100 Settlements report (here), the $600 million Countrywide settlement would be tied for 13^th largest securities settlement of all times.

 

The $600 million Countrywide settlement is also by far the largest subprime-related securities class action lawsuit settlement, by far eclipsing the $475 million that Merrill Lynch agreed to pay to settle its subprime related securities class action lawsuit (about which refer here).

 

Despite the sheer size of the Countrywide settlement and its relative high ranking on the settlement tables, there may be some who may question the settlement at this dollar figure. Shareholders lost billions of dollars when Countrywide’s stock price plunged before the company’s acquisition by Bank of America. In addition, Angelo Mozillo sold hundreds of millions of dollars in his personal holdings in the company’s stock before the share price began its plunge.

 

As the post mortem on the subprime meltdown has developed, Countrywide has become the preferred example of many of the excesses that preceded the subprime meltdown. Accordingly, there may well be some who question whether $600 million, as big of a number as it is, is "enough."

 

The problem with arguments about what is "enough" is that it immediately begs the question of "compared to what?" Those who contend that it is not "enough" may well point to the magnitude of the investor losses (although clearly not all of the drop in Countrywide’s market capitalization is attributable to the alleged fraud). They may also point out that even just with respect to options backdating, there was at least one securities lawsuit settlement greater than $600 million (the UnitedHealth Group case, which settled for a total $925.5 million, taking all settlements into account).

 

On the other hand, there have only been a dozen cases in the entire history of securities litigation that have settled for more than $600 million and many of those involved companies that were brought down due to criminally fraudulent misconduct (e.g., Enron, WorldCom, Cendant). Other cases just involved criminal misconduct (e.g., Tyco). But WorldCom was acquired, it didn’t go bust and so far there have been no criminal allegations.

 

There may be those who feel so strongly that that the investors’ recovery should have been larger that they may object to the settlement; indeed, there could be those who feel they could do better on their own and who choose therefore to opt-out of the class settlement. As I have detailed elsewhere, even in many of the prior settlements that were larger even than the Countywide settlement, there were significant numbers of individual opt outs and in many cases, the aggregate amount of the opt-outs’ recovery represented a very significant percentage of the class settlement amount.

 

But whatever else may be said, $600 million is a lot of money. The Countrywide settlement comes close on the heels of the $200 million Schwab YieldPlus settlement. The quick succession of these two settlements suggests that the evolution of the subprime litigation wave may have reached a critical point. We may now begin to see other settlements emerge, particular in those cases that have survived dismissal motions.

 

The Countrywide and Schwab settlements, taken together with the $475 Merrill Lynch settlement, represent over $1.2 billion. These few data points suggest that the aggregate costs of resolving all of the subprime and credit crisis related litigation could be staggering.

 

But as impressive as these three settlements are, both individually and collectively, they all share one trait that may make them irrelevant in many cases. That is, in each of these three cases, there was a solvent and relatively strong entity available to fund a significant settlement. (Indeed, by the time the cases settled, the relevant entity with respect to both the Merrill Lynch and Countrywide settlements happened to be Bank of America.)

 

In many other pending cases, the relevant entity has long since folded (e.g., New Century Financial), and other than quickly dwindling insurance proceeds, there may be relatively few sources out of which to fund settlements. These eye-poppingly large settlements may represent nothing so much as what may be possible where there are deep pockets available, but they may not represent relevant reference points for many other cases.

 

In any event, my running tally of the subprime and credit crisis related lawsuit resolutions can be accessed here. However, readers should be aware that I will not be entering the data on the Countywide settlement until I have complete data and a link to a primary source that is not behind a firewall.

 

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In one of the most substantial settlements to date to arise out of the subprime-related securities litigation wave, the parties to the consolidated Schwab YieldPlus securities class action lawsuit have reached an agreement to settle the case for $200 million, according to an April 20, 2010 press release from The Charles Schwab Corporation. The parties’ settlement arises in the wake of several recent summary judgment rulings in the case and in advance of a looming May 10, 2010 trial date.

 

The proposed settlement is subject to definitive agreement and court approval. The settlement also does not include certain state law claims the plaintiffs had asserted, as well as other regulatory claims.

 

The plaintiffs had filed several class action complaints in 2008 that were later consolidated. As reflected in the plaintiffs’ second amended complaint, the plaintiffs alleged that Schwab and related entities, as well as certain Schwab directors and officers, violated federal and state securities laws and other state laws in representations made about Schwab’s YieldPlus Fund, a short-term fixed income mutual fund.

 

Essentially, the plaintiffs alleged that the defendants misled investors when they described the Fund as a safe alternative to cash which had "minimal" risk of a fluctuating share price. The plaintiffs allege that the Fund was not "stable" or "safe" because it was comprised of assets that were riskier than represented. Specifically, the plaintiffs alleged that the assets held by the Fund were of longer duration than represented. The plaintiffs also alleged that the asset allocation disclosures and the description of the Fund’s concentration in illiquid securities were inconsistent with the Fund’s significant and increasing concentration in mortgage-backed securities.

 

The plaintiffs allege that by extending the average duration of the portfolio and by investing in between 46% to 50% of portfolio assets in mortgage-backed securities, the defendants caused the Fund and its shareholders to incur billions of dollars in losses. The complaint alleges that the Fund’s shareholders lost up to 36% of their "supposedly safe cash investment."

 

Northern District of California Judge William Alsup had recently issued a series of orders substantially denying the defendants’ motions for summary judgment. In a March 30, 2010 order (here), Judge Alsup denied the defendants’ motion for summary judgment and granting plaintiffs’ motion for summary judgment as to plaintiffs’ claims under the Investment Company Act of 1940. In an April 8, 2010 order (here), Judge Alsup substantially denied defendants’ motions for summary judgment on ’33 Act disclosure issues and loss causation issues. In a separate April 8, 2010 order (here), Judge Alsup substantially denied the individual defendants’ motion for summary judgment as to the plaintiffs’ Section 12 claims and certain state law claims. Trial in the case had been set to begin on May 10, 2010.

 

In its April 20 press release, the company stated that it increased its contingency reserve relating to the case an additional $172 million pre-tax (beyond the $11 million the company had previously accrued in the wake of the March 30 summary judgment ruling) an amount which is "net of expected insurance coverage."

 

The proposed settlement of the Schwab YieldPlus Fund securities suit is the second largest settlement yet to arise out of the subprime-related securities litigation wave, exceeded only by the massive January 2009 settlement in the Merrill Lynch subprime-related securities lawsuit (about which refer here). In addition, according to reliable sources, this settlement is the fourth largest securities settlement in the Ninth Circuit and the second largest for a noninstitutional lead plaintiff.

 

The size of the settlement undoubtedly is a reflection of the looming trial date and recent adverse summary judgment rulings, as well as the size of the losses claimed by the plaintiff class. While many of these factors are case specific, this settlement could nevertheless potentially cast a significant shadow across the huge number of remaining subprime-related securities lawsuits. The fact that the case involved a mutual fund may also present its own differentiating characteristics, but plaintiffs may nevertheless seek to rely on fact and amount of this settlement in other cases.

 

There has been a certain amount of publicity recently about how the plaintiffs may be faring poorly in the subprime related securities litigation, at least at the motion to dismiss stage. At a minimum, the sheer magnitude of this settlement suggests the enormous stakes that may be involved in the subprime-related securities lawsuits – at least those that survive initial pleading hurdles.

 

I have in any event added the Schwab settlement to my running tally of subprime and credit crisis-related lawsuit case resolutions (including dismissal motion rulings), which can be accessed here.

 

An April 20, 2010 Business Week article discussing the settlement can be found here. A Net Worth Plus blog post about the settlement can be found here.

 

Special thanks to  Reed Kathrein  of the Hagens Berman firm, which is lead plaintiffs' counsel in the YieldPlus lawsuit, for providing me with copies of the summary judgment motion rulings.

　

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The SEC’s blockbuster announcement last Friday of its civil enforcement action against Goldman Sachs and one of its investment bankers rocked the securities markets and made headlines in the financial press around the world. Undoubtedly because of Goldman’s prominence and perhaps also because of the nature of the allegations, the SEC’s action is widely seen as a watershed event.

 

Beyond the implications for Goldman itself, however, the development may be even more significant for what it may portend about possible future actions and claims, both by the SEC and by aggrieved investors. Here are some questions about what may be coming next.

 

Can we Expect Further SEC Enforcement Actions involved Subprime-Related Financial Instruments?:

According a March 29, 2010 CNBC interview with SEC Chairman Mary Shapiro (here), the agency has been working since the subprime meltdown emerged to build up staff with the right skill and experience to pursue financial-crisis related cases. Now that the SEC has staffed up, she advised, we can expect to see more crisis-related enforcement actions. She said, with reference to these actions, "there are more in the pipeline."

 

Indeed, in its April 16, 2010 Litigation Release related to the Goldman Sachs action (here), the SEC specifically said that its "investigation is continuing into the practices of investment banks and others that purchased and securitized pools of subprime mortgages and the resecuritized CDO market with a focus on products structured and marketed in late 2006 and early 2007 as the U.S. housing market was beginning to show signs of distress."

 

There has already been extensive press coverage raising questions some other transactions that may be under scrutiny. Gretchen Morgenson’s December 23, 2009 New York Times article raising questions about many of these transactions, including in particular the so-called Abacus transaction that is at the heart of the SEC’s action against Goldman, refers to numerous other transactions at Goldman and elsewhere where, as in the Abacus transaction, the investment banks created investment securities that were structured so that the banks and others could profit on financial bets that the investments would lose money.

 

There have also been a number of press articles (refer here for example) about Illinois-based hedge fund Magnetar, which sponsored over 30 CDO transactions in late 2006 and early 2007, which the hedge fund itself shorted, allowing it to make significant profits when the underlying mortgages began to default.

 

As the New York Times stated in an article on Sunday, the Goldman Sachs action is the SEC’s "the first big case — but probably not the last." Whether or not there may be more SEC actions relating to the toxic subprime-related transactions remains to be seen, but in the meantime concerned parties seem to be taking defensive measures. By way of illustration, when J.P. Morgan Chase released its first quarter financial results on April 14, 2010 (refer here), the firm disclosed that it "$2.3 billion in additional litigation reserves, including those for mortgage-related matters"

 

It should be noted that further regulatory action may come not just from officials in the U.S. According to press reports (here), German and U.K. government officials are conferring about possible regulatory actions against Goldman, in light of the revelations in the SEC’s complaint against the firm.

 

Finally, it should probably also be noted quite a number of observers have commented that the SEC’s case is far from a slam dunk, and the SEC could face formidable hurdles in attempting to sustain its allegation. The most balanced of these types of commentaries, by Professors Henning and Davidoff, appears in the Dealbook blog (here). An April 18, 2010 Wall Street Journal article (here) raises many of the same questions.

 

Will More Senior Officials Get Dragged In?:

The SEC named 31-year old Fabrice Tourre as a defendant because, the SEC alleged, Tourre was "principally responsible" for the Abacus transaction," having "devised the transaction, prepared the marketing materials and communicated directly investors." He also drew a big bull’s-eye on himself in an email suggesting that he ("the fabulous Fab") is the "only potential survivor" of the coming collapse, standing in the middle of "monstrosities" he had "created without necessarily understanding." (Note to file: It is never a good thing to have a personal email reproduced on the front page of the Wall Street Journal, above the fold.)

 

Tourre, who was 28- years old at the time of the Abacus deal, was not, however, simply off on a personal frolic in putting together this $2 billion transaction. Indeed, "senior level management" of Goldman Sachs is alleged, in paragraph 40 of the SEC’s complaint, to have approved the transaction. The referenced individuals, apparently members of Goldman’s Mortgage Capital Committee, were neither identified by name in the complaint, nor were they named as defendants.

 

Gretchen Morgenson’s April 18, 2010 New York Times article (here) suggests that the SEC may try to use Tourre to "get" more senior officials. Morgenson also suggests that as the subprime market began to unravel in 2007, senior Goldman officials became more directly involved in the firm’s mortgage department. A separate April 19, 2010 New York Times article talking about senior Goldman executives' supervision of and involvement in the mortgage unit can be found here.

 

Susan Beck, in her April 16, 2010 Am Law Litigation Daily article about the SEC’s action against Goldman (here), suggests that perhaps New York Attorney General Andrew Cuomo may "start rooting around and come up with other individuals," noting that Cuomo has had not been afraid to name top executives as defendants in his action against BofA.

 

The pressure the SEC faced from Judge Jed Rakoff in attempting to settle its enforcement action against BofA, among other reasons for its failure to name the specific individuals responsible for the alleged violations, suggests the likelihood that any future SEC enforcement actions will include individuals among those targeted. But the question remains, both with respect to any further regulatory against, whether against Goldman or other financial players, more senior company officials will become involved.

 

Will the SEC’s Action Against Goldman Spawn Further Investor Litigation?:

In an April 17, 2010 post on WSJ.com Law Blog (here), Amir Efrati quotes a leading plaintiffs’ securities class action attorney as saying that "private lawyers are foaming at the mouth" over the prospects of pursuing claims against Goldman. (Presumably, this expression was merely a figure of speech.). An April 17, 2010 Reuters story (here) quote one plaintiffs’ attorney as saying that Goldman investors have already contacted him about pursing actions to recover their losses.

 

These developments also suggest that investors who lost money in other subprime-related investments may be asking whether their transaction involved the same kind of undisclosed conflict of interest as the SEC alleges in the Abacus deal. Indeed, one claimant that has a case pending against Merrill Lynch based on a subprime-backed security has alleged (refer here) that Merrill failed to disclose that it had a relationship with another client that was betting against the investment, similar to what happened at Goldman Sachs.

 

These developments arise just as the long-running subprime and credit crisis-related litigation wave appeared that it might be losing momentum. Many commentators recently have noted the dwindling numbers of new subprime related securities class action lawsuits. Moreover, in an April 8, 2010 Wall Street Journal article entitled "Banks Winning When Investors Sue" (here), Ashby Jones suggested that plaintiffs were faring poorly on dismissal motions in subprime-related securities lawsuits against previously filed against financial firms.

 

In light of popular and press reaction to the SEC’s allegations against Goldman, it is possible that these revelations in the Goldman complaint could revitalize the subprime litigation wave. Indeed, the SEC’s action may be only one of several recent developments that could reinforce a renewed interest in pursuing claims against Wall Street firms. The examiner’s report in the Lehman bankruptcy and the revelations of the Senate subcommittee investigation into the financial crisis could drive a renewed interest in holding financial firms accountable. These accumulating developments could also counterbalance the apparent judicial skepticism of fraud claims raised in the wake of the financial crisis.

 

The bottom line is that the SEC’s enforcement action is a significant event with important implications. How all of this will unfold remains to be seen, but it seems possible in the wake of the SEC’s complaint there could be a cascade of consequences.

 

National Public Radio’s April 16, 2010 "All Thing Considered" report about the SEC's complaint against Goldman Sachs can be found below. The report includes my recorded comments about these developments.

 

Another Surge of Failed Banks: Amidst all of the hoopla surrounding the Goldman Sachs enforcement action you may not have noticed that on Friday, April 16, 2010, after the close of business, the FDIC took control of eight more banks, bringing the year to date total of bank closures to 50. During 2009, when there were a total of 140 failed banks, the FDIC did not close its 50^th bank until July 2, 2009, suggesting that the pace of bank failures is well ahead of last year’s pace.

 

Three of the banks closed on April 16 were based in Florida, bringing the number of 2010 bank closures in that state to nine, the highest for any state this year. Since the beginning of 2008, there have 25 bank failures in Florida. The state with the highest number of bank failures during the period 2008-10 is Georgia with 37, including seven in 2010, the second highest number for any state this year. Other states with the highest numbers of bank failures this year include Washington (5), California (4), and Minnesota (3).

 

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Congressional fact-finding hearings are generally unedifying spectacles, involving as they do the weird rite of ritual public witness humiliation and accomplishing little except the suggestion of troubling questions about the kind of person who manages to get elected to Congress. Some might say that the series of hearings about Wall Street and the Financial Crisis recently launched by the Senate Permanent Subcommittee on Investigations represents no exception to these usual rules about Congressional investigations.

 

Whether or not the hearings accomplish anything of durable value remains to be seen, but at a minimum, public statements accompanying the hearings contain assertions that could provide at least rhetorical aid for plaintiffs in some credit crisis related lawsuits.

 

As reflected in the Subcommittee’s April 12, 2010 press release (here), the Subcommittee will be hosting four hearings in April, the first of which took place this past Tuesday, when former Washington Mutual executive were called to testify. The second session will convene on Friday, April 16.

 

Most press reports about the first hearing focused on the claims by WaMu’s chief executive that the bank was permitted to fail because it was not part of the "inner circle" of financial institutions that were "too clubby to fail." For example, the New York Times’ April 13, 2010 article about the hearings was headlined "Ex-Chief Claims WaMu was Not Treated Fairly" (here).

 

Whatever else you might want to say about the CEO’s statements, they did manage to shift media attention away from the perhaps equally provocative statements the Subcommittee published in advance of the hearing, some of which undoubtedly will make their way into complaints in litigation arising out of the financial crisis.

 

The Subcommittee’s press release not only asserts that "the bank [WaMu] contributed to the financial crisis by making hundreds of billions of dollars in shoddy, high risk mortgage loans, packaging them, and selling them to investors as mortgage backed securities," but it also quotes Subcommittee Chairman and Michigan Senator Carl Levin as saying that WaMu "built a conveyor belt that dumped toxic mortgage assets into the financial system like a polluter dumping poison in a river."

 

A separate Committee document (here) purports to document WaMu lending practices that "created a mortgage time bomb."

 

Contrary to the immediate impression that might be conveyed, the hearings had a purpose other than to provide a forum for high-octane rhetoric (not to mention mixed metaphors). According Levin’s statements in the press release, the hearings are intended to "provide a public record of what went wrong, who should be held accountable, and the ongoing need to protect Main Street from the excesses of Wall Street."

 

The press release does not expressly address the question of "who should be held accountable," but the press release, the initial hearing itself and the committee documents do tend to isolate the Committee’s message, as was captured in the April 13, 2010 Seattle Times article about the hearings entitled "WaMu Execs Saw Warning Signs of Deteriorating Loans" (here).

 

The Committee’s press release suggests a number of ways the Committee faults the bank’s executives for its failure, and even perhaps for damage to the larger economy. First, again quoting Levin, the press release states that "examining how Washington Mutual operated, and what its insiders were saying to each other, begins to open a window into the troubling mortgage lending and securitization practices that took our economy over a cliff." This reference to what "insiders were saying to each other" is the very sentiment that often makes its way into securities class action lawsuit complaints.

 

The press release further targets the company’s management for its "conscious decision to focus on high risk mortgages, because higher risk loans offered greater profits." At the same time, the report claims, internal reports show that the bank’s loans "did not comply with the bank’s own credit requirements, contained fraudulent or erroneous borrower information and suffered from large numbers of early defaults."

 

The company’s management also comes in for criticism in the press release for the company’s compensation practices, which "rewarded loan officers and loan processors for originating large volumes of high risk loans, [and] paid extra to loan officers who overcharged borrowers or added stiff prepayment penalties." The press release dials all of these compensation problems back to management, noting that the company’s compensation system "gave executives millions of dollars even when its high risk lending strategy placed the bank in financial jeopardy."

 

These kinds of assertions undoubtedly could provide at least rhetorical support for investors pursuing claims against the company’s former executives. But there are additional assertions in the press release that could prove useful for claimants in cases filed against the financial institutions that were securitizing the WaMu-originated mortgages into mortgage-backed securities. Certainly the allegations about WaMu’s mortgage practices are very much like the supposed "systematic disregard" of underwriting guidelines by mortgage originators that has proven to be a relatively successful allegation in other lawsuits filed against mortgage securitizers (about which refer here).

 

The press release also asserts that "WaMu selected and securitized loans that it had identified as likely to go delinquent, without disclosing its analysis to investors who bought the securities." The press release also states that "an internal 2008 report found that lax controls had allowed loans that had been identified as fraudulent to be sold to investors." Investors who purchased securities collateralized by WaMu mortgages undoubtedly will be aggrieved to hear these kinds of assertions.

 

Whether or not the hearings lead to anything useful is a story yet to be told. However, it does seem that the process is calculated to identify (and even vilify) purported culprits. As my review of the press release suggests, this process may have implications for continuing credit crisis-related litigation, whatever else may happen.

 

In any event, it looks like the cast of culprits will be expanding. According to an April 16, 2010 Wall Street Journal article entitled "Spreading Around the WaMu Blame" (here), further Subcommittee hearings to take place on Friday (April 16) will include testimony that a turf war between banking regulators contributed to WaMu’s collapse. Apparently the report will suggest that the Office of Thrift Supervision failed to follow up on deficiencies and resisted FDIC efforts to be more aggressive.

 

Lerach: Coming Back?: At least according to Ben Halliman in the AmLaw Litigation Daily (here), former securities class action attorney and convicted felon Bill Lerach may have launched his comeback tour. As Halliman notes, Lerach recently sat for an interview in the San Diego Union-Tribune, here.

 

It seems fair to say that Lerach is bloody but unbowed. He remains "very proud of the work we did representing people who were taken advantage of by rich and powerful interests. We recovered substantial sums for these people and, more importantly, gave them a sense that someone in the legal system cared about them." More pointedly, he says that "I would not have done anything differently," noting that the system of paying plaintiffs predated his involvement, yet conceding that "we were wrong to think the ends justified the means."

 

The interviewer did also ask him about the recent book focused on his professional career, "Circle of Greed" (which I reviewed here). Lerach said:

 

The book is very tough on me, and it certainly exposes a lot of my faults and mistakes. I guess we all wish we were perfect but we are not, and when you have two very good investigative reporters comb through 35 years, it comes out with some blemishes for sure. On the other hand, the book presents how hard my law firm worked on behalf of our clients and how much we achieved against extremely powerful and influential interests. So, I can’t complain about the way the book came out even if I might want to change some things.

 

For those who may be interested, my interview of the authors of "Circle of Greed" can be found here.

　

 

PLUS Webinar: On April 22, 2010, at 2:00 P.M. EDT, I will be participating in a free webinar sponsored by the Professional Liability Underwriting Society (PLUS) entitled "D&O Insurance and the Outcome and Timing of Securities Class Action Resolution: What New Data Shows." The purpose of the webinar is to discuss recent research completed by Stanford Law School Professor Michael Klausner on the impact of D&O insurance on securities class action resolutions. Professor Klausner’s research also addresses the timing of case resolution and factors affecting the eventual outcomes.

　

Joining me on the discussion panel, in addition to Professor Klausner, will be Steve Anderson of Beecher Carlson and Todd Greeley of C N A. The session will be moderated by Paul Lavelle of LVL Claims Services. Additional Information and Registration Instructions for this webinar can be found here.

 

My Nomination for Funniest Roomate Ad of All Times: Where to go if you are looking for a place to live in Santa Cruz, and you happen to be a tetrahedron? No worries, find it here. 　

　

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The sudden upsurge in the number of subprime and credit crisis-related securities lawsuit dismissal motion rulings, noted in yesterday’s post, is continuing. As outlined below, courts in four separate cases also recently issued rulings. Each of the cases involved ’33 Act claims brought by purchasers of mortgage-backed securities. In each case, a part of the plaintiffs’ cases survived the motions, although in two of the cases the outcome is at best a mixed bag for the plaintiffs.

 

Here are the four cases, in chronological order:

 

DLJ Mortgage Capital/Credit Suisse: In a March 29, 2010 order (here), Southern District of New York Judge Paul Crotty granted in part and denied in part the defendants dismissal motions in the subprime-related lawsuit that had been filed against DLJ Mortgage Capital, which had sponsored and sold the mortgage-backed securities; Credit Suisse Management, which had issued the offering documents; the offering underwriters; individual signatories to the offering documents and rating agencies.

 

Judge Crotty granted the motion to dismiss, on the grounds of lack of standing, with respect to four offerings referenced in the complaint in which the plaintiffs had not purchased securities.

 

Judge Crotty also granted the motion to dismiss regarding allegations based on the offering documents’ statements concerning the mortgage originators’ practices concerning appraisals, loan to value ratios and ratings, holding that these allegations are not actionable where "the Complaint fails to allege that the speaker did not truly believe the statements at the time it was made public."

 

However, Judge Crotty denied the motions to dismiss with respect to the plaintiffs’ allegations concerning the mortgage originators’ "systematic disregard of the mortgage underwriting guidelines." Judge Crotty rejected the defendants’ argument that the offering documents contained sufficient cautionary language, because "the disclosures fail to make clear the magnitude of the risk" adding that "the allegations here are extreme, yet plausible in light of the rapid and precipitous decline in market value, concurrent with skyrocketing mortgage loan delinquency rates and plummeting credit ratings."

 

Residential Capital LLC/RALI Certificates: In a March 31, 2010 order (here), Southern District of New York Harold Baer, Jr., citing his own prior ruling in the Royal Bank of Scotland/Harborview Mortgage Trust case (about which, refer to yesterday’s post, here), granted in part and denied in part the defendants’ motions to dismiss in the lawsuit brought with respect to mortgage-backed certificates issued by Residential Capital, known as RALI Certificates.

 

Judge Baer granted, based on lack of standing, plaintiffs’ allegations concerning 55 of the 59 offerings referenced in the complaint in which the plaintiffs had not purchased shares.

 

Judge Baer also granted the motions to dismiss with respect to the plaintiffs’ allegations that the offering documents failed to disclose that the credit rating model used to evaluate the securities was outdated and that the credit enhancements offered in connection with the securities were inadequate.

 

Judge Baer noted that "there is no allegation that these offerings did not receive the stated credit rating or credit enhancements detailed in the Offering Documents," and that "there is no factual allegation that indicates the ratings and credit enhancements described in the documents were incorrect at the time offered."

 

Judge Baer also granted the motion to dismiss with respect to the alleged failure to disclose material conflicts with the rating agencies, holding that the defendants had no duty to disclose this information.

 

However, Judge Baer denied the motion to dismiss with respect to the plaintiffs’ allegations that the originator of the mortgages collateralizing the RALI Certificates "systematically disregarded" the underwriting guidelines. Relying on his prior opinion in the Royal Bank of Scotland case, Judge Baer noted that that the allegations that about the mortgage originators "improper underwriting practices coupled with the loan pools’ near-total credit rating collapse and default rate spike are sufficient to create a fair inference that the [originator] totally disregarded the underwriting guidelines."

 

Citigroup Mortgage Loan Trust: In an April 6, 2010 order (here), Southern District of New York Judge Leonard Wexler held granted in part and denied in part the motions to dismiss in the lawsuit relating to mortgage-backed securities issued by Citigroup Mortgage. As in the cases discussed above, Judge Wexler dismissed the allegations relating to the 16 of 18 offerings referenced in the complaint in which the named plaintiff had not purchased securities.

 

With respect to the remaining allegations that the offering documents had misrepresented the underwriting standards used in connection with the underlying mortgages, including in particular the loan to value ratios, appraisals and debt to income ratios, Judge Wexler said that "the strong nature of the cautionary language contained in the disclosure materials brings this case very close to the dismissal line."

 

However, "given the length of the Complaint" and "the fact that most of the Plaintiffs’ claims have been dismissed," Judge Wexler concluded that he "will not dismiss the case at this time." Rather Judge Wexler gave the plaintiffs’ leave to replead the remaining causes of action, according to his very specific guidelines, which "will put the court in a better position from which to evaluate the merits of the claim alleged."

 

Deutsche Alt-A Securities: In a second opinion also issued on April 6, 2010 (here), Judge Wexler on substantially similar grounds as stated in connection with the Citigroup Mortgage Loan Trust case, granted in part and denied in part the defendants’ motions to dismiss in the securities suit relating to the mortgage-backed securities issued by Deutsche Alt-A Securities. As in the Citigroup case, Judge Wexler gave the plaintiffs leave to replead the remaining claims that were not dismissed due to lack of standing.

 

Discussion

Certain generalizations emerge from the recent surge in subprime and credit crisis securities lawsuit dismissal motions rulings. The first and most obvious is that plaintiffs are not going to be allowed to raise ’33 Act claims in connection with offerings in which they did not purchase securities. This could substantially narrow many of these cases.

 

On the other hand, the winning allegation for plaintiffs (which appears to have been repeated verbatim in many of these mortgage-backed securities offering cases) seems to be that the mortgage originators "systematically disregarded" the underwriting guidelines. Courts seem skeptical of allegations concerning outdated credit rating models, inadequate credit enhancements and rating agency conflicts of interest.

 

The name of the game for plaintiffs in these cases is to survive a dismissal motion, and the plaintiffs will generally put a dismissal motion ruling in the win column even if only a small part of the case survives. So even though big chunks of all of these cases were dismissed, there may be enough in each of these cases for these plaintiffs to live for another day.

 

However in the two opinions of Judge Wexler referenced above, in which he said he would not dismiss the remaining allegations "at this time," the plaintiffs’ position arguably is more precarious, as the plaintiffs must replead their remaining allegations, after which their remaining and repled claims apparently must again withstand judicial scrutiny.

 

The sudden cascade of dismissal motion rulings is quite remarkable. It is not entirely clear why there has suddenly been such an onslaught of rulings in these subprime and credit crisis related securities suits. To some extent, it may just be coincidental. It may also be due to the fact that many of these cases are now maturing and are reaching the stage where they are now finally ripe for dismissal motion rulings.

 

In addition, a number of these rulings seem to be emerging now because there is a developing body of case law providing guidance on how these cases should be sorted out. Each of the rulings cited recent decisions in similar cases. There is a certain sense that the basic ground rules have now been worked out, making it a lot more straightforward to work out the remaining cases.

 

But whatever the reason may be, there certainly are an awful lot of decisions coming down all of a sudden. It is getting hard just to keep track.

 

I have in any event added all of these recent rulings to my running tally of subprime and credit crisis securities suit dismissal motion resolutions, which can be accessed here.

 

Many thanks to a loyal reader for copies of the decisions in the Citigroup and Deutsche cases. Thanks also to Joel Laitman of the Cohen Milstein firm for providing copies of the rulings in the Residential Capital and DLJ Mortgage cases. Cohen Milstein is sole lead plaintiffs’ counsel in these latter two cases.

 

Note to Subscribers: I recently changed the service I use for delivery of email notifications to subscribers. If you have not been receiving email notifications, the most expeditious thing to do at this point may be to resubscribe by entering your email address in the Subscribe dialog box in the right hand column, clicking Go, and then clicking on the subscription confirmation link. It is my hope the new service will be more reliable and more timely. I apologize for any inconvenience the change may cause.　

　

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I was only away from the office for a few days last week, but while I was away, an absolute cascade of dismissal motion rulings in subprime and credit crisis-related securities cases arrived. A number of the rulings were sufficiently favorable to the defendants that Alison Frankel commented in an April 1, 2010 article in the AmLaw Litigation Daily that "it’s been a truly lousy week for plaintiffs’ lawyers in the securities bar."

 

But while the defendants did indeed prevail in there motions to dismiss in a number of very high profile subprime and credit crisis-related securities lawsuits, not all of the rulings were favorable to the defendants. In several cases, the dismissal motions were denied, and in other cases enough of the case survived the dismissal motion rulings that the plaintiffs probably consider themselves to have been successful. As discussed further below, there arguably are certain discernable trends amongst all of these rulings.

 

Dismissal Motions Granted

The dismissal motion rulings that are most favorable to the defendants undoubtedly are the highest profile cases amongst the latest rulings. Here is a brief summary of the defense friendly rulings:

 

American International Group Derivative Litigation: In a March 30, 2010 opinion (here), Southern District of New York Judge Laura Taylor Swain granted the motion to dismiss the shareholders’ derivative suit that had been filed against American International Group and certain of its individual officers and directors. The plaintiffs claimed that the defendants had failed to properly oversee the company’s credit default contracts and had made certain material misstatements and omissions regarding the company’s financial health and risk management. The plaintiffs also allege waste and breach of fiduciary duty with regard to the company’s dividend increase and share buybacks instituted in the month’s preceding the company’s near collapse and government rescue.

 

The defendants moved to dismiss on the grounds that the plaintiffs failed to make presuit demand. The plaintiffs contended that because it would have been futile, demand was excused.

 

Judge Swain granted the defendants’ motion, concluding that because at least of five of the company’s nine June 2009 directors were sufficiently disinterested and independent, demand was not excused.

 

Of particular interest, in granting the defendants’ motion with respect to plaintiffs’ allegations concerning the alleged failure to oversee the company’s credit default swap exposures, the court specifically observed (in reliance on the Delaware Chancery Court’s February 2009 dismissal of the subprime-related derivative suit filed against Citigroup) that a plaintiff "may not support a claim based on the duty of oversight…merely by identifying signs of general difficulty in the market in which the company participates and asserting that the defendants should be held liable for exercising their business judgment in a manner that appears to have been inconsistent with those indications." Rather a plaintiff must allege that the directors "knew they were not discharging their fiduciary obligations" or "demonstrated a conscious disregard for their obligations."

 

Merrill Lynch Auction Rate Securities Litigation: In a March 31, 2010 ruling (here), Judge Loretta Preska granted the motion of defendants to dismiss the auction rate securities litigation that had been filed against Merrill Lynch and related entities. Judge Preska’s ruling is the latest in a series of auction rate securities lawsuit dismissals. However unlike many of the dismissals (for example, the dismissal of the UBS auction rate securities lawsuit), the dismissal did not depend alone on the Merrill Lynch’s entry into a regulatory settlement. The dismissal was, rather, on the merits.

 

Specifically, Judge Preska held, citing the recent ruling in the Raymond James auction rate securities litigation (refer here), that the plaintiffs had failed to allege with sufficient specificity, with respect to the allegedly misleading statements about the securities, "which financial advisors made such statements or when, where and to whom the statements were made."

 

Judge Preska also rejected the plaintiffs’ arguments that the defendants had engaged in manipulative conduct, holding that as a result of the defendants’ 2006 auction rate securities settlement with the SEC and related disclosures, the defendants’ market-related conduct was fully disclosed. Judge Preska also found that the plaintiffs had not sufficiently pled reliance.

 

In addition to the ruling in the Merrill Lynch case, in a March 30, 2010 order (here), Southern District of New York Judge Robert Patterson granted the motion of defendant Morgan Stanley to dismiss the individual action Ashland Inc. and related entities had filed against the company, alleging securities violations in connection with the plaintiffs’ purchase of over $66 million of auction rate securities. Judge Patterson found that certain allegations do not involve the "purchase or sale of securities," as they involved only the alleged inducement to hold securities. Judge Patterson also found that the plaintiffs’ allegations failed to support a strong inference of scienter. He also held that the plaintiffs had failed to establish that they had reasonably relied on the supposedly misleading statements.

 

Fremont General Corporation: In a March 29, 2010 order (here), Central District of California Judge Jacqueline Nguyen granted with prejudice the motion of defendants to dismiss the subprime related securities class action lawsuit that had been filed against Fremont General Corporation.

 

As noted here and here (scroll down), the court had previously granted the defendants’ motions to dismiss in the Fremont General case. In granting the renewed motion to dismiss, Judge Nguyen noted that renewed pleading "still fails to allege the causes of action with sufficient specificity," observing further that the plaintiffs’ third amended complaint "sets forth virtually no new facts, disregards [the court’s] order not to include certain allegations, and constitutes ‘puzzle pleading’ that made the [prior complaints] so difficult to decipher."

 

BankUnited Financial Corporation: On March 30, 2010, Southern District of Florida Judge Marcia Cooke entered an order (here), granting the motion of the individual defendants to dismiss the subprime related securities lawsuit that had been filed in connection with the events leading up to the May 21, 2009 closure of BankUnited FSB (for more about which refer here).

 

In granting the motion, Judge Cooke held that that certain of the statements on which plaintiffs sought to rely were "general, vague, unverifiable statements of corporate puffery." She found that other statements on which plaintiffs sought to rely were forward looking and protected by the safe harbor. She also found that various statements about the bank’s loan underwriting practices on which the plaintiffs sought to rely were not false and misleading. Judge Cooke also concluded that the plaintiffs had not sufficiently pled scienter, holding that the "generalized allegations" on which the plaintiffs sought to rely "do not support a strong inference of scienter, let along a strong one. "

 

Security Capital Assurance: In a March 31, 2010 order (here), Southern District of New York Judge Deborah A. Batts entered an order granting without prejudice the defendants’ motions to dismiss in the subprime-related securities class action lawsuit that had been filed against Security Capital Assurance, its Corporate parent XL Capital, certain of its individual directors and officers and its offering underwriters.

 

SCA is a holding company for financial guaranty insurance and reinsurance. SCA was formed by and was still partially owned by XL. As reflected here, the plaintiffs alleged that the defendants had misled investors about SCA’s exposure, through its insurance operations, to securities backed by subprime residential mortgages.

 

In her 84-page March 31 order, Judge Batts granted defendants’ motion on the grounds that plaintiffs had not sufficiently alleged either scienter or loss causation. In concluding that plaintiffs scienter allegations were insufficient, Judge Batts stated that "plaintiffs’ broad allegations that Defendants received and were aware of information contradicting their public statements because they held management roles is not enough to allege scienter." Judge Batts also noted, based on plaintiffs’ own allegations, "defendants, like so many other institutions floored by the housing market crisis, could not have been expected to anticipate the crisis with the accuracy plaintiffs enjoy in hindsight."

 

In finding that plaintiffs had not adequately alleged loss causation, Judge Batts stated that "Plaintiffs have not with this Complaint effectively shown that it was the incremental revelation of Defendants’ fraudulent misrepresentations, and not the actions of third parties or other circumstances of the market that caused the decline in SCA’s share price over the Class Period." She adds that "Plaintiffs leave wide periods unaccounted for, and select inconsistent date spreads and wide event windows that permit market noise, and suggest Plaintiffs may be cherrypicking dates that suit their argument."

 

With respect to whether or not she should allow plaintiffs leave to amend, she noted that "it is not likely that Plaintiffs will be able to establish loss causation." But because "amendment might not be futile," the court allowed plaintiffs leave to amend their complaint.

 

Dismissal Motion Granted in Part and Denied in Part

In addition to the dismissal motion rulings described above in which the defendants’ motions prevailed, there were also a group of rulings in which the defendants prevailed in part. In some cases, the defendants were successful in having substantial parts of the plaintiffs’ cases dismissed. Nevertheless, in each of the following cases, the plaintiffs were able to preserve at least a part of their case, at least as to some defendants.

 

Harborview Mortgage Loan Trusts: In a March 26, 2010 order (here), Southern District of New York Judge Harold Baer, Jr. granted in part and denied in part the defendants’ motions to dismiss in the subprime related securities class action lawsuit involving the Harborview Mortgage Loan Trusts. The Trusts had issued certain mortgage backed securities, of which defendant Royal Bank of Scotland was the primary issuer and underwriter. Certain rating agencies that provided ratings of the securities were also named as defendants.

 

Judge Baer granted the rating agencies’ motions to dismiss on the grounds that they could not, as the plaintiffs’ sought to allege, be held liable under the Securities Act, as underwriters. Judge Baer also dismissed, on the basis of lack of standing, plaintiffs claims based on offerings in which the plaintiffs had not purchased securities. Judge Baer also dismissed plaintiffs’ claims that the RBS defendants had not disclosed conflicts of interest with the rating agencies or the dependence of the ratings on outdated ratings models.

 

However, while as a result of the rulings described in the preceding paragraph, substantial parts of plaintiffs’ claims did not survive the motion to dismiss, Judge Baer denied defendants motions to dismiss related to "misstatements and nondisclosure of mortgage originators’ ‘disregard’ for loan underwriting standards."

 

The loan originators in question included certain mortgage lenders whose names "are now synonymous with sub-prime lending and the housing market collapse," including Countrywide, American Home Mortgage Corporation, IndyMac, BankUnited, and Downey Savings. Judge Baer concluded that "plaintiffs have pled sufficient factual allegations to plausibly infer that the underwriting guidelines were disregarded by mortgage originators, and in conflict with the disclosures made in the Offering Documents." Judge Baer found the plaintiffs had alleged that the originators "systematically ignored their stated underwriting practices" and that "plaintiffs have also sufficiently, albeit just barely, connected these allegations to the offerings in question."

 

Credit-Based Asset Servicing & Securitization, LLC: In a terse, two-page March 31, 2010 order (here), Southern District of New York Judge Jed Rakoff granted in part and denied in part the defendants’ motion to dismiss that had been filed in the C-BASS subprime related securities lawsuit. Background regarding the lawsuit can be found here. The plaintiffs had alleged that the defendants had made material misrepresentations and omissions in the offering documents related to the sale of certain mortgage pass-through certificates.

 

For reasons that Judge Rakoff will elaborate upon in a forthcoming order, Judge Rakoff granted in part and denied in part the defendants’ dismissal motions. Judge Rakoff granted the dismissal motion as to claims involving offerings in which the plaintiffs had not purchased securities. Judge Rakoff also granted with prejudice the dismissal motions of the underwriter defendants, C-Bass itself and certain mortgage originator defendants. Judge Rakoff also granted without prejudice the dismissal motions of the offering underwriter defendants, as well as the Section 15 claims against certain individual defendants.

 

Though these rulings resulted in the elimination from the case of a substantial part of plaintiffs’ case, Judge Rakoff went on to rule that, other than the parts dismissed, "all other claims survive." According to an AmLaw Litigation Daily article discussing the decision (here), though Judge Rakoff’s ruling dismissed with prejudice plaintiffs claims on 65 offerings, his ruling also "keeps Merrill and other defendants exposed to liability on 19 mortgage-backed securities offerings."

 

MBIA: In a March 31, 2010 order (here), Southern District of New York Judge Kenneth Karas granted in part and denied in part the dismissal motions that had been filed in the subprime related securities class action lawsuit that had been filed against MBIA and certain of its directors and officers. MBIA provides insurance to traditional bond and structured finance issuers. As discussed at greater length here, the plaintiffs allege that the defendants misrepresented MBIA’s risk exposure to certain collateralized debt obligations containing residential mortgage-backed securities.

 

In his March 31 order, Judge Karas granted without prejudice the motions to dismiss of the two individual defendants, finding that the plaintiff had failed to "allege particularized facts sufficient to state a claim based on recklessness against" the two individuals. Judge Karas also dismissed without prejudice plaintiffs’ allegations against MBIA as to claims based on the company’s alleged failure to disclose the lack of certain structural protections for in the insurer in certain of the CDO transactions.

 

However, Judge Karas otherwise denied MBIA’s motion to dismiss, holding that even though the plaintiff had failed sufficiently to allege scienter as to the two individual defendants, the plaintiff "has alleged particularized facts supporting a strong inference of recklessness as to MBIA." He went on to find that "the inference that MBIA’s officers knew or likely knew that their statements were materially misleading" is "at least as plausible an inference that they were not aware of the potential importance of CDOs-squared to investors."

 

Dismissal Motions Substantially Denied

In addition to the motions described above in which a least a portion of plaintiffs claims survived the motions to dismiss, there were at least a couple recent dismissal motion rulings in which the plaintiffs’ claims substantially survived the dismissal motions rulings.

 

iStar Financial, Inc.: In a March 26, 2010 order (here), Southern District of New York Judge Richard Sullivan substantially denied the defendants’ motion to dismiss in the subprime-related securities lawsuit that filed against iStar Financial, certain of its directors and officers, and its offering underwriters. iStar is a real estate investment trut providing commercial real estate loans. The plaintiffs alleged that iStar had failed to disclose losses on certain investments, losses in its loan portfolio, and had misrepresented the carrying value of certain nonperforming loans.

 

Judge Sullivan denied the defendants motions to dismiss, other than with respect to the Section 12 claims against the individual defendants and the Section 11 claims as to one individual defendant.

 

In otherwise denying the motion to dismiss plaintiffs’ ’33 Act claims, Judge Sullivan rejected the defendants’ arguments that the quarterly reports and earnings calls preceding the company’s secondary offering put the market on notice of deteriorating loan performance. He stated that the Court is "unable to hold that there was sufficient information in the marketplace to render iStar’s nondisclosures in the registration statement immaterial as a matter of law." Judge Sullivan specifically rejected the underwriter defendants’ motions to dismiss.

 

Judge Sullivan also found that the plaintiffs had adequately alleged a claim under the ’34 act, specifically finding that the plaintiffs had adequately pleaded scienter, relying on plaintiffs’ allegations that defendants needed to conceal iStar’s deteriorating performance "to secure financing and mating an investment-grade rating."

 

Evergreen Ultra Short Opportunities Fund: In a March 31, 2010 ruling (here), District of Massachusetts Judge Nathaniel Gorton substantially denied the defendants’ motions to dismiss in the subprime-related securities class action lawsuit filed on behalf of investors who purchased shares of Evergreen Ultra Short Opportunities Fund. The plaintiffs sued the trust that issued the fund’s shares, the fund’s investment manager and its corporate parent, as well as individual members of the trust’s board of trustees. The plaintiffs alleged that the defendants had violated the securities laws by representing the fund as a "safe, liquid and stable investment" when, it was alleged, "it was comprised of illiquid, risky and volatile" mortgage-backed securities.

 

Judge Gorton denied the defendants’ motions to dismiss, except that he granted the trustees’ motion to dismiss the Section 12 claims that had been filed against them. Judge Gorton specifically found as sufficient plaintiffs’ allegations concerning the offering documents’ statements about the fund’s objectives; the offering documents’ statements about the fund’s limited holdings of illiquid assets; and the offering documents’ statements comparing the fund to certain indices which reflected longer average portfolio durations than the fund.

 

Discussion

There is little doubt that this line up of dismissal motion rulings reflects some significant defeats for the plaintiffs. The impact of these decisions undoubtedly is magnified by the high-profile nature of several of the cases in which the dismissals were granted.

 

But while the plaintiffs in some of these cases took some substantial hits, the overall outcome of this long list of dismissal motion rulings is far from just one-sided. There are of course the cases noted above in which the dismissal motions were substantially denied. Moreover, in the cases in which the dismissal motions were denied at least in part, the plaintiffs at least preserved the right to live for another day. Since the name of the game for the plaintiffs’ attorneys in these kinds of cases is just to get past the dismissal motion, the plaintiffs in these cases have preserved at least enough of their case to press on.

 

Though the plaintiffs did not come away empty handed in all of these cases and won some other motions more or less outright, the balance of these cases still do seem to be running in the defendants’ favor. As I noted in my recent status update on the subprime and credit crisis related securities litigation, the dismissal motion rate on these cases is running far higher than the 33-40% dismissal rate that generally applies to securities class action litigation.

 

To be sure, as I have frequently noted in the past, there are still many of these cases in which dismissal motions have not yet been heard. But with this recent wave of dismissal motion ruling described above, a significantly greater number of dismissal motions have been addressed, and the rulings do still seem to be running in defendants’ favor, disproportionately to historical norms.

 

Of course, it should be noted that there have been cases in which plaintiffs have managed to survive renewed dismissal motions based on amended pleadings filed after initial motions have been granted (as noted, for example, here, in connection with the Credit Suisse case).

 

I have in any event added all of these recent rulings to my now substantially updated register of subprime and credit crisis-related securities class action lawsuit dismissal motion rulings, which can be accessed here.

 

Very special thanks to the several readers who sent along copies of one or more of the above referenced decisions.

 

Subscription Update: As I have tried to let everyone know, I recently changed the service that I use for email subscription notices. It is my hope that the new service will afford more timely and more reliable service. Readers who subscribed in the past to receive email notices should have received during the past week a reminder to reconfirm their subscription. If you did not receive a notice, or if you deleted it without reconfirming, the most expeditious thing to do is to resubscribe by entering your email address in the Subscribe box in the right hand column and click Go. As an antispam measure, you will then be asked to confirm your subscription.

 

As I said, it is my hope that by switching services, I will be able to provide more reliable email notifications. I apologize for any inconvenience that the change may cause.

 

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In recent decisions in separate subprime-related securities class action lawsuits reflecting a common unwillingness to engage in "backward looking assessments," two different Southern District of New York judges granted defendants’ motions to dismiss. In each of the cases, the judge’s recognition of the extent of the financial crisis played into their rulings, and in the absence of specific allegations showing how internal information or knowledge differed from the defendant companies’ public statements, both judges were unwilling to allow the cases to go forward.

 

The State Street Case　

In a February 22, 2010 opinion (here), Southern District of New York Judge Richard Holwell granted with prejudice the motion of defendants to dismiss the subprime-related securities class action lawsuit that had been filed against State Street Corporation, its management arm, and two executives and eight trustees of the management arm and one of the funds it managed, the Yield Plus Fund.

 

According to the complaint, the Fund’s value declined 34% during the class period of July 1, 2005 and June 30, 2008. This decline was alleged to have reflected the write-downs of the value of the Fund’s mortgage-related holdings. The Fund was liquidated on May 30, 2008.

 

The plaintiffs claimed that the Fund’s offering documents reflected three categories of misrepresentations: (1) a misleading description of the Fund’s investment strategy; (2) misrepresentations of the extent of Fund’s exposure to mortgage-related securities; and (3) inflated valuations of the Fun’s mortgage-related holdings. Based on these alleged misrepresentations, the plaintiffs sought to recover damages under the liability provisions of the Securities Act of 1933.

 

With respect to the plaintiffs’ allegations that the defendants’ misrepresented the Fund’s investment strategy, by misrepresenting its goal to invest in "high-quality debt securities," Judge Holwell found the plaintiffs had insufficiently pled falsity. He noted that though the phrase "high quality" is "somewhat vague when read in isolation," it "surely cannot be understood as a guarantee that investors would not suffer losses."

 

Judge Holwell also observed that the plaintiffs cannot allege that it was false for defendants to describe the Fund’s investments as high quality "without averring facts showing that the investments’ actual quality …was in fact otherwise." Judge Holwell went on to observe that:

 

Of course, from our vantage point on the other side of the financial crisis, it is conventional wisdom that highly rated, investment grade securities were exposed to risks that the rating agencies did not perceive….And not surprisingly, the Fund sustained most it is calamitous losses on securities with high investment ratings. …In hindsight then, it could be alleged that investments were viewed by defendants – and the marketplace – to be "high quality"…in fact stood on shaky foundations. But the accuracy of the offering documents must be assessed in light of information available at the time they were published…A backward-looking assessment of the infirmities of mortgage-related securities, therefore cannot help plaintiffs’ case.

 

As to the plaintiffs’ allegation that the offering documents misrepresented the Fund’s exposure to mortgage-related securities, Judge Holwell concluded that the plaintiffs had not alleged sufficient to plead that the Fund’s investment categorizations were materially misleading.

 

Finally, Judge Holwell held that plaintiffs’ allegations that the Fund overstated the value of its mortgage-related holdings "fail" because the Complaint "does not aver a single concrete fact to suggest that defendants deviated from the prescribed valuation methods." Judge Holwell noted that other financial entities, including even other mutual funds, have been accused of carrying mortgage-related securities on their books at inflated values, but in light of these other accusations, "the Complaint’s failure to identify information about how State Street overvalued its holdings is telling."

 

The CIBC Case　

In a March 17, 2010 opinion (here), Southern District of New York Judge William H. Pauley III granted the motions to dismiss the subprime related securities class action lawsuit filed against defendants Canadian Imperial Bank of Commerce (CIBC) and four of its officers and directors.

 

CIBC is a Canadian bank whose shares are traded on the New York and Toronto stock exchanges. The plaintiffs allege that the defendants misled investors about CIBC’s exposures to mortgage-backed securities.

 

In granting the motions to dismiss, Judge Pauley noted that not only had none of the defendants benefited from the alleged fraud, but in fact both CIBC and three of the four individuals bought CIBC shares during the class period. Judge Pauley noted that "it is nonsensical to impute dishonest motives to the Individual Defendants when each of them suffered significant losses in their stock holdings and executive compensation."

 

Judge Pauley also noted that the complaint "makes no reference to internal CIBC documents or confidential sources discrediting Defendants’ assertion that they were only adapting to a ‘rapidly changing economic environment’ during a ‘once-in-a-century credit tsunami’." He added that the plaintiffs "should, but do not, provide specific instances in which Defendants received information that was contrary to their public declarations."

 

Judge Pauley also noted a "compelling" alternative explanation for CIBC’s statements:

 

The Complaint describes an unprecedented paralysis of the credit market and a global recession. Major financial institutions like Bear Stearns, Merrill Lynch, and Lehman Brothers imploded as a consequence of the financial dislocation. Looking back, a full turn of the wheel would have been appropriate. That CIBC chose an incremental measured response, while erroneous in hindsight, is as plausible an explanation for the losses as an inference of fraud. …CIBC, like so may other institutions, could not have been expected to anticipate the crisis with the accuracy Plaintiff enjoys in hindsight.

　

Judge Pauley also found that the complaint "is bereft of factual allegations from which a reader could infer Defendants intentionally or recklessly failed to take write-downs on U.S. mortgage backed securities."

 

Judge Pauley’s dismissal order is not expressly without prejudice; however, he does close his opinion with the observation that "any request for leave to file an amended consolidated class action complaint should conform to this Court’s Individual Practices."

 

CIBC was represented by Jay Kasner and Scott Musoff of Skadden Arps. Andrew Longstreth's March 18, 2010 AmLaw Litigation Daily article about the CIBC decision can be found here. Special thanks to the several readers who sent me copies of the CIBC ruling.

 

Discussion

These two opinions, both out of the Southern District of New York, where so many of the subprime and credit crisis-related securities class action lawsuits were filed, share a number of similar and significant features.

 

First and foremost, in both instances, the judges were reluctant to subject the defendant company’s pre-credit crisis disclosures to hindsight judgment. The courts were simply unwilling judge as fraudulent the defendants’ failure to anticipate the crisis that arose later.

 

Nor were the courts receptive to the arguments in both cases that the defendants knew their companies were vulnerable or knew that things were already going wrong. That is, without more specific details about what the defendants supposedly knew and how that differed from public statements, the courts were unwilling to let the cases go forward.

 

These two judges’ unwillingness, in light of the magnitude of the financial calamity, to engage in "backward-looking assessments," is a judicial predisposition that plaintiffs in many of these cases will have to struggle to overcome. Absent internal documents or confidential witness testimony showing internal company knowledge or information different from public statements, many other subprime and credit crisis cases may face the same fate as did the complaints in these two cases.

 

These ruling underscore how critical confidential witness testimony is. Indeed, as I noted here, in cases in which renewed motions to dismiss were denied after initial motions to dismiss had been granted, the critical additional detail that convinced the courts to allow the amended complaints to go forward was the addition of allegations supported by confidential witness testimony. In the absence of that corroborative support, courts seemingly are much more likely to follow their predisposition to avoid backward looking assessments.

 

In any event, I have added these two rulings to my register of subprime and credit crisis related dismissal motion rulings, which can be found here. The interim scoreboard continues to show that motions to dismiss in these cases are continuing to be granted in disproportionate numbers, at least so far than is the case for the universe of all securities class action cases. My recent status update of the subprime and credit crisis related litigation can be found here.

 

And Finally: "Outside of a dog, a book is man’s best friend. Inside a dog it’s too dark to read." Groucho Marx

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According to the March 11, 2010 bankruptcy examiner’s report, the collapse of Lehman Brothers was a result of the deteriorating economic climate, exacerbated by Lehman’s executives, whose conduct ranged from "serious but non-culpable errors of business judgment to actionable balance sheet manipulation."

 

The Report was prepared pursuant to a January 2009 bankruptcy court order directing the trustee to appoint an examiner to investigate the events leading up to Lehman’s collapse. The examiner appointed was Anton Valukas of the Jenner & Block law firm.

 

The full report is nine volumes long, consisting of 2,200 pages, and can be found here. The executive summary (which alone is 239 pages long) can be found here. According to news reports, Valukas spent $38 million conducting his examination. He and his team interviewed more than 100 people and scrutinized more than 10 million documents, plus 20 million pages of e-mails from Lehman.

 

The examiner’s report states that as conditions worsened during 2008 and in order to "buy itself time," Lehman "painted a misleading picture of its financial condition." For example, the report states, that while reporting a significant loss at the end of the second quarter 2008, Lehman "sought to cushion the bad news by trumpeting that it had significantly reduced its net leverage ratio," while failing to disclose that it had been using an "accounting device" – known as Repo 105 – that had "no substance" and whose sole purpose was to allow Lehman to "manage its balance sheet."

 

The report states that Lehman neither disclosed its use of nor "the significance of the use of the magnitude of its use of" Repo 105, to the Government, to rating agencies, to investors or even to its own Board. Its auditors were aware of but did not question the transaction. The Repo 105 balance sheet manipulation is summarized on the WSJ.com Deal Journal blog, here.

 

The examiner concluded that the business decisions that brought Lehman to a crisis "may have been in error but were largely within the business judgment rule." However, the "decision not to disclose the effects of these judgments does give rise to colorable claims against the senior officers who oversaw and certified misleading financial statements," including CEO Richard Fuld and the company’s CFOs, Christopher O’Meara, Erin Callan and Ian Lowitt.

 

The examiner also found that there is a "colorable claim that the "sole function" of the Repo 105 transactions was "balance sheet manipulation" that "created a misleading picture of Lehman’s true financial health."

 

The examiner also concluded that there are "colorable claims" against the company’s auditor, Ernst & Young, on the grounds that it "did not meet professional standards" for its "failure to question and challenge improper or inadequate as disclosures."

 

The examiner’s report explains that the report uses the phrase a "colorable claim" to mean one for which "there is sufficient credible evidence to support a finding by a trier of fact," without presuming the finder of fact’s ultimate conclusion.

 

The examiner also reviewed the actions of Lehman’s lenders, JP Morgan and Citigroup. The report concludes that "The demands for collateral by Lehman’s lenders had direct impact on Lehman’s liquidity pool," adding that "Lehman’s available liquidity is central to the question of why Lehman failed." Citigroup, which handled currency trades for Lehman, received a new guarantee from Lehman when Lehman was already insolvent and didn’t give enough value in return, the report said. The report concludes that "a colorable claim exists to avoid the Amended Guaranty as constructively fraudulent."

　

The examiner also reviewed the acquisition of Lehman’s North American brokerage, concluding that "a limited amount of assets" belonging to Lehman were "improperly transferred to Barclays."

 

The examiner recites at the outset of the report that under the relevant bankruptcy code provisions one purpose of a bankruptcy examination is to determine the existence of "a cause of action for the estate." Given the bankruptcy examiner’s conclusion that there are colorable claims against Fuld and the other former Lehman’s officials, as well as against its outside auditor, it seems reasonable to anticipate that the next step with be the bankruptcy trustee’s initiation of claims against these individuals and the auditor.

 

By way of comparison, after the New Century Financial bankruptcy examiner issued a report issued a report critical of company officials and the company’s auditor (about which refer here), the bankruptcy trustee filed a lawsuit (refer here) seeking to hold New Century’s auditors liable. In addition, the claimants in the New Century securities class action lawsuit relied heavily on the Examiner's findings in their amended complaint, which later suvived a motion to dismiss. I noted at the time of the dimissal that the bankruptcy examiner's findings may have strongly influenced the court in its dismissal motion ruling.

　

General Growth Properties Settles Credit Crisis-Related Securities Suit: According to a February 23, 2010 filing in the Northern District of Illinois, the parties to the credit crisis-related securities suit arising out of the collapse of General Growth Properties has been settled for $15.5 million, subject to court approval. The parties’ stipulation of settlement can be found here.

 

The General Growth Properties suit was one of the cases first filed in late 2008 as the subprime meltdown morphed into a full blown credit crisis, as I discussed in a post at the time, here.

 

The lead complaint, which can be found here, was filed in January 2009. The plaintiffs alleged that General Growth’s survival depended on its ability to refinance in November 2008 approximately $1.5 billion of its $27 billion of outstanding debt. Ultimately the company was unable to refinance its debt and it filed for bankruptcy in April 2009. The plaintiffs essentially alleged that the eleven individual defendants misrepresented the company’s ability to refinance its debt.

 

The complaint also alleged that the company’s senior executives had improperly loaned money to certain executives so that the executives did not have to sell their company shares in a margin call. The companies also allege that the company’s officials improperly sought to have the company’s shares included in the SEC’s short selling ban, so that the officials could sell their share at inflated prices.

 

In a September 29, 2009 opinion (here), Northern District of Illinois Milton Shadur granted in part and denied in part the defendants’ motion to dismiss. According to the settlement stipulation, in January 2010, the parties submitted the case to mediation, from which the settlement ultimately resulted.

 

The General Growth suit is one of only a handful of cases filed in the wake of the subprime meltdown and the ensuing credit crisis that has reached the settlement stage, and one of only a smaller handful of cases that have been settled following a dismissal motion ruling. We undoubtedly will see more settlements ahead as more cases work their way through the system.

 

I have in any event added the General Growth Properties settlement to my list of subprime and credit crisis-related case resolutions, which can be accessed here. My recent status update on the subprime and credit crisis related securities litigation can be found here.

 

Special thanks to Adam Savett of the Securities Litigation Watch blog for providing me with a copy of the stipulation of settlement.

 

Hello Polly: Many readers undoubtedly saw the article in yesterday’s Wall Street Journal (here) reporting that the Bank of America has apologized after its local contractor entered the home of a mortgage borrower, while she was away, and cutoff her utilities, padlocked the door and "confiscated her pet parrot, Luke." The homeowner, separated from her parrot for a week, filed a lawsuit against the bank for emotional distress.

 

This momentous story was deemed by the Journal’s editors to be worthy of a front page photograph of the homeowner, now fortunately reunited with her beloved parrot.

 

We mention this because, as was pointed out to us by a loyal reader, the Journal’s front page above- the- fold color photograph was headlined with the phrase "Hello, I Wish to Register a Complaint." We suspect that the Journal’s editors ran the picture on the front page for the sole reason that it gave them an excuse to use that headline.

 

If the topic is parrots, the only possible reference is to the immortal Monty Python dead parrot sketch, which believe it or not has its own Wikipedia page, here. The skit begins with John Cleese entering a pet shop and stating (as reflected in this script of the sketch) "Hello, I wish to register a complaint." Cleese’s problem in the sketch is not that his parrot has been confiscated; rather, his problem is that the parrot he had just purchased is dead. Deceased. It is no more. It has ceased to exist. It has joined the choir celestial. This is an ex-parrot

 

We are delighted to have this pretext to be able to embed a video of the sketch below. Because we think everyone should know a dead parrot when they see one.

 

 

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It has now been over three years since the first subprime-related securities class action lawsuit was filed in February 2007, yet many of the cases filed in the ensuing litigation wave are still only in their earliest stages. While the vast majority of these cases are still unfolding, there have been some important recent developments, suggesting that the evolving litigation wave has passed some significant milestones. With that possibility in mind, it seems appropriate to check in for a status report on the subprime and credit crisis-related litigation wave.

 

 

In the latest issue of InSights (here), I take a look at the developments to date as the subprime and credit crisis-related cases have worked their way through the system, including trends in motion to dismiss rulings and settlements, as well as with respect to issues such as gatekeeper liability and defense expense costs.

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In a ruling that may have potential significance for the many claims that have been filed against the rating agencies in the subprime litigation wave, on February 17, 2010, Southern District of New York Judge Lewis Kaplan dismissed all but one of the claims that had been filed against the individual defendants in the Lehman Brothers Mortgage-Backed Securities Litigation. A copy of Judge Kaplan’s February 17 order can be found here.

 

Background

Plaintiffs had purchased the mortgage back securities that Lehman Brothers issued in August 2005 and August 2006. The plaintiffs allege that the originators of the loans that backed the securities failed to comply with the general loan underwriting guidelines described in the offering documents. The plaintiffs allege that the offering documents had failed to disclose that the rating agencies, which were paid for providing their ratings, had conflicts of interest and had been involved in helping to structure the securities. The plaintiffs also allege that the offering documents failed to disclose that the credit enhancements supporting the loans were insufficient to support the investment ratings the rating agencies gave the securities.

 

The individual defendants in the case are the officers and directors of the Structured Asset Securities Corporation, which issued the registration statements and acted as depositor in the securitization process. The individual defendants moved to dismiss.

 

As noted in prior posts, Judge Kaplan has previously dismissed plaintiffs’ claims against the rating agencies themselves (refer here), rejecting plaintiffs’ arguments that the rating agencies were "underwriters" under the ’33 Act. Judge Kaplan also previously dismissed the separate ERISA class action claims (refer here, scroll down). In his February 17 decision, Judge Kaplan separately ruled on the individual defendants’ motion to dismiss.

 

The February 17 Decision

Judge Kaplan held that the plaintiffs’ allegations that the offering documents failed to disclose the rating agencies’ conflict of interest were insufficient to state a claim, for two reasons.

 

First, Judge Kaplan held that the Securities Act does not require disclosures of "that which is publicly known," and "the risk that the rating agencies operated under a conflict of interest because they were paid by the issuers had been known publicly for years."

 

Judge Kaplan then went on to hold that "the rating agencies’ role in structuring the certificates is not material as a matter of law." His conclusion is based on the following analysis:

 

If the fee arrangement undermined an investor’s confidence in the rating agencies’ independence, a disclosure that a rating agency was involved in structuring the Certificates prior to rating them would have added nothing important to the "total mix" of information. If, on the other hand, an investor trusted the ratings agencies to give an honest opinion notwithstanding the fact that they were paid by the issuer, the fact that they were involved in structuring the Certificates, assuming that they were, likewise would have been unimportant. In consequence, these claims are insufficient.

 

With respect to the plaintiffs’ allegations that the offering documents contained misrepresentations about the amount and form of credit enhancement, Judge Kaplan held that the statement about the credit enhancement was a "statement of opinion," which could be actionable only if the complaint alleged that the rating agencies did not actually hold that opinion.

 

Judge Kaplan found that "at best" the complaint’s allegations "support an inference that some employees believed the rating agencies could have used methods that better would have informed their opinions," which he held to be insufficient to state a claim.

 

But Judge Kaplan did hold that the complaint’s allegations that the loan originators "systematically failed to follow the underwriting guidelines" were "sufficient at this stage to support a reasonable inference that the offering documents’ description of the underwriting guidelines was materially misleading."

 

Accordingly, Judge Kaplan granted the individual defendants’ motion to dismiss all of the claims against them except plaintiffs’ Section 11 claims about the loan originators’ supposed departures from underwriting standards.

 

Discussion

Even though Judge Kaplan’s February 17 opinion was issued in connection with claims asserted against the individual defendants and not in connection with claims asserted against the rating agencies themselves, the opinion nevertheless potentially could be of great significance in other subprime mortgage-related cases in which claims have been raised against the rating agencies.

 

In particular, Judge Kaplan’s holding that the offering documents’ omissions about the rating agencies’ alleged conflicts of interest and role in structuring the securities were not legally actionable may be of particular significance.

 

In many of the other cases in which claims have been asserted against the rating agencies, the claimants have, like the plaintiffs in the Lehman case, alleged that the rating agencies had undisclosed conflicts of interest and were involved in structuring the investments at issue. The rating agencies will undoubtedly find Judge Kaplan’s holding that the alleged omission of this information is not legally actionable to be helpful.

 

Judge Kaplan did not reach the question whether or not the rating agencies’ ratings are protected by the First Amendment, which is another defense on which the rating agencies will attempt to rely. But if the alleged omissions about the rating agencies are not actionable in the first place, there may never be a need to reach the First Amendment issues.

 

Judge Kaplan conclusion that the disclosures concerning the securities’ credit enhancements represented opinion rather than statements of fact is also instructive, even without getting into the First Amendment issues. As his February 17 decision states, statements of opinion are actionable only if the allegations show that the opinions were not actually as disclosed. Again, Judge Kaplan’s rulings are instructive and potentially significant as they suggest ways in which the claims against the rating agencies may be considered without even getting into the First Amendment issues.

 

Finally, Judge Kaplan’s holding that the rating agencies’ alleged conflicts of interest and involvement in the securitization transaction are immaterial does raise interesting questions about claimants’ ability to overcome the rating agencies’ First Amendment defenses. The plaintiffs have argued that the rating agencies were not entitled to rely on the First Amendment defense in the context of these kinds of structured investments because of the conflicts of interest and involvement in the transaction. Perhaps Judge Kaplan’s rulings are unrelated to these issues, but it does seem incongruous that considerations that are immaterial would be sufficient to overcome a constitutional defense.

 

Of course, it is entirely possible that other courts may not be persuaded by Judge Kaplan’s analysis. It is not intuitively obvious that, because it was public knowledge that rating agencies had conflicts, the rating agencies’ involvement in the transactions is legally immaterial. Indeed, the jump between the public knowledge of the conflict of interest and the immateriality of the rating agencies’ involvement in the transactions is frankly unsatisfying. Other courts might well be unwilling to make that analytic jump.

 

I have in any event added Judge Kaplan’s February 17 opinion to my table of subprime-related lawsuit motion to dismiss rulings, which can be accessed here. Because a portion of the claims against the individual defendants survived the dismissal motion, I have listed the ruling in the table of dismissal motion denials.

 

Special thanks to a loyal reader for sending a copy of Judge Kaplan's February 17 opinion.

　　

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In one of the largest subprime-related securities lawsuit settlements so far, Moneygram Corporation has agreed to settle its subprime-related securities class action and accompanying derivative suit for $80 million, according to the company’s February 25, 2010 press release (here).

 

Background

As reported here, the MoneyGram case represented the distinct group of subprime-related cases in which the allegation was not that the company was involved in originating or pooling subprime mortgages, but rather that the company had purchased the mortgage-backed securities as investments and misrepresented the value of these assets on its balance sheet.

　

MoneyGram’s global payment and money transfer business requires the company to hold, transfer or to guarantee payments of large amounts of cash. To secure these payments and guarantees, MoneyGram maintains an investment portfolio. At the beginning of the class period in January 2007, the majority of MoneyGram’s $5.85 billion portfolio was held in asset-backed securities, mortgage-backed securities and collateralized debt obligations, backed in part by residential mortgages.

　

By the end of the class period in January 2008, the value of the portfolio had significantly deteriorated. In order to be able to maintain adequate capital, the company entered a substantial financing transaction that forced the company to recognize over $1 billion in losses in its investment portfolio. The company’s share price declined nearly 50%, and securities litigation ensued.

 

The consolidated complaint alleges that during the class period, the defendants made a series of misleading statements regarding the composition, valuation and quality of the company’s investment portfolio, and about its investment valuation processes, standards and controls.

 

As discussed here, on May 20, 2009, District of Minnesota Judge David Doty had denied the defendants’ motion to dismiss, holding that "a reasonable person could find lead plaintiff’s fraud narrative to be cogent and at least as plausible as defendants’ opposing fraud narrative."

 

According to the company’s February 25 press release, the plaintiffs have agreed in principle to settle the claims for an $80 million cash payment, all but $20 million of which will be paid by the Company's insurance coverage. The settlement of the derivative claims provides for changes to MoneyGram's business, corporate governance and internal controls. The agreement in principle is subject both to final documentation and court approval.

 

Discussion

The MoneyGram settlement is only one of a handful of subprime-related securities cases that have reached the settlement stage (and surprisingly, the first settlement of these kinds of cases announced since September 2009). As reflected in my running tally of subprime lawsuit settlements, which can be accessed here, there have only been ten settlements out of the over 200 subprime-related securities class action lawsuits that have been settled.

 

The short list of subprime-related lawsuit settlements is dominated by the massive Merrill Lynch related settlements, in which Merrill settled the subprime-related securities lawsuit for $475 million (refer here), its related bond action for $150 million (here), and the subprime-related ERISA class action for $75 million (here). These massive settlements were all reached shortly after the BofA acquisition closed and are perhaps best understood in that context.

 

Outside of the massive Merrill Lynch settlements, the $80 million MoneyGram settlement is the largest subprime-related securities class action settlement so far. The next largest is the $37.25 million American Home settlement, which included contributions of $8.5 million from seven offering underwriter defendants and $4.75 million from the company’s auditor.

 

There undoubtedly will be many more settlements to come, particularly among cases like MoneyGram where the plaintiffs have managed to survive a motion to dismiss. But in thinking about these likely future settlements, it is worth noting here that the $80 million MoneyGram settlement included a $60 million contribution from the company’s D&O insurers, which is a reminder of how massive a hit these subprime-related cases are likely to be in the aggregate to the D&O insurers – keeping in mind, too, that the $60 million settlement contribution is on top of the likely substantial defense expenses that the insurers undoubtedly incurred.

 

Before all is said and done, the mountain of subprime-related litigation is likely to impose an enormous amount of loss costs on the D&O insurers. I would hesitate to guess how big the aggregate total will be, but I know for sure it will be a very large number.

 

So How Do Public Pension Funds and Plaintiffs’ Firms Get Hooked Up?: Those who may wonder how pension funds and plaintiff’ firms get matched up will want to take a look at the article (oddly, dated March 15, 2010) by Peter Beller in Forbes entitled "Paying Public Pensions to Sue."

 

The article describes how plaintiffs’ firms have "created a multibillion-dollar business lining up public funds as plaintiffs to sue publicly traded corporations whose stocks don’t do well." The article focuses in particular on various conferences the law firms sponsor, in which pension fund representatives are invited to places such as New York or San Diego and feted with Broadway shows, dinners and other entertainments. The article describes the ways in which the firms are caught up in an "arms race to line up suit-happy state local and union pension funds," which has led to "all manner of wining, dining and dishing out of cash."

 

The article concludes by noting that "a curious irony of all this flattery of pension officials is that the ostensible purpose of securities litigation is to keep corporate managers honest."

 

And Speaking of Plaintiffs’ Lawyers: The February 25, 2010 Financial Times has a review (here) of a new book by Patrick Dillon and Carl Cannon about Bill Lerach, once one of the leading plaintiffs’ class action attorneys and now a convicted felon. The book, which is entitled "Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to its Knees," apparently was written with Lerach’s cooperation, and the FT review is quite favorable, noting the value of having a couple of Pulitzer-Prize winning journalists involved as authors.

 

Everyone here at The D&O Diary is hoping for an early opportunity to read this book, which according to the publisher’s website will be available on March 2, 2010. We hope to publish our own review of the book shortly.

 

And Finally: "Ten Wall Street Blogs You Need to Bookmark Now" (according to the Wall Street Journal) – find the list here.

　

　

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In an interesting and potentially significant February 22, 2010 opinion (here), Southern District of New York Judge Naomi Reice Buchwald denied defendants’ motions to dismiss the plaintiffs’ ’34 Act claims in the Ambac Financial subprime-related securities suit. Judge Buchwald also denied the motion to dismiss the plaintiffs’ ’33 Act claims relating to the company’s February 2007 securities offering, but granted the defendants’ motion to dismiss the plaintiffs’ ’33 Act claims relating to the company’s March 2008 securities offering.

 

Judge Buchwald’s decision is particularly noteworthy for her rejection of defendants’ attempts to argue that the company’s woes were not the result of fraud but rather were the result of the global financial meltdown; among other things, she stated that "the conduct that plaintiffs’ allege, if true, would make Ambac an active participant in the collapse of their own business, and of the financial markets in general, rather than merely a passive victim."

 

Background

Ambac Financial Group is a monoline insurer providing protection against credit risk. Traditionally the company insured municipal bonds, but in more recent years prior to the financial crisis, the company increasing provided default protection for structured financial products such as residential mortgage backed securities (RMBS) and collateralized debt obligations (CDO).

 

In early January 2008, Ambac announced that it was taking a $5.4 mark-to-market loss on its CDO portfolio, that it was taking a $1.1 credit impairment charge, and that it expected a net loss for the quarter. The company also announced the resignation of the company’s CEO. The company’s share price declined, and two days later the company received the first of several rating downgrades from the rating agencies.

 

As noted here, the plaintiffs first filed their complaint in January 2008. In their ’34 Act claims, in which the defendants named are the company and certain of its directors and officers, the plaintiffs allege that the defendants mislead investors by continuing to portray Ambac’s underwriting procedures as cautious and conservative, while failing to disclose that the company had lowered its underwriting standards; by stating that Ambac was actively monitoring its RMBS and CDO portfolios and that the portfolios continued to outperform; and by failing to disclose in a timely manner any material impairment to the RMBS-related instruments that Ambac insured.

 

In their ’33 Act claims, which the plaintiffs asserted against the company and certain of its directors and officers, as well as against the offering underwriters and the company’s outside auditor (KPMG), the plaintiffs allege that the defendants made misleading statements in the offering documents about the company’s underwriting standards as well as regarding the company’s RMBS and CDO-related exposures.

 

The defendants moved to dismiss.

 

The February 22 Ruling

In rejecting the defendants’ motions to dismiss the ’34 Act claims, Judge Buchwald found that "the plaintiffs allegations of recklessness support a strong inference of scienter" for each of the ’34 Act claim defendants.

 

Judge Buchwald cited numerous allegations which she found sufficient to show that Ambac’s officers were aware that "Ambac lowered its underwriting standards in several ways." Among other things, she cited an internal October 2006 email to one of the defendants asking "Why are we willing to insure stuff in the secondary market [i.e., the CDO market] that we would not touch with a ten foot pole in the primary market [i.e., the RMBS market]?"

 

Judge Buchwald also found that the officers’ own public statements "detail the regular reports by which they would have learned of the allegedly drastic deterioration of their CDO portfolio." She went on to note that in various public statements the officers "themselves described in the means by which the raw material was collated and analyzed, as part of the surveillance process, and how this formed the basis for defendants’ statements."

 

In concluding that the plaintiffs had adequately pleaded recklessness, she rejected the alternative inference that the defendants urged her to draw from the allegations, namely that the officers could not have predicted the economic collapse and therefore the company’s modeling tools failed to identify the risk of loss in the CDO portfolio. In reaching this conclusion she noted:

 

Viewing the allegations collectively, there is a vast gap between the picture that Ambac presented to investors – of an insurance company that maintained its conservative approach over the years – and the alleged practices within the company, namely the undisclosed lowering of underwriting standards to drive short-term profits. Additionally, defendants’ arguments on this issue are premised on a convenient confusion of cause and effect. The conduct that plaintiffs’ allege, if true, would make Ambac an active participant in the collapse of their own business, and of the financial markets in general, rather than merely a passive victim.

 

Judge Buchwald also found that the plaintiffs had adequately alleged misrepresentation and loss causation. Interestingly, in concluding that the plaintiffs had adequately alleged misrepresentation in connection with the CDO valuation issues, Judge Buchwald cited and apparently relied on the characterization of the company’s CDO portfolio in the plaintiff’s expert analysis, an interesting step at the motion to dismiss stage.

 

Finally Judge Buchwald held that the plaintiffs’ complaint adequately stated a ’33 Act claim with respect to the company’s February 2007 offering, but failed to state a claim with respect to the company’s March 2008 offering because the alleged misstatements in connection with that offering are not actionable under the "bespeaks caution" doctrine.

 

In allowing the claims relating to the February 2007 offering to go forward, she expressly rejected the defendants’ statute of limitations arguments, holding that the "storm warnings" on which the defendants sought to rely were not sufficient to put the plaintiffs on "inquiry notice," because Ambac’s officers had actively sought to reassure investors about those supposed storm warning.

 

Discussion

Judge Buchwald’s ruling in this case is interesting and perhaps significant in a number of respects.

 

First, reliable sources in the plaintiffs’ bar advise me that Judge Buchwald is viewed as a tough draw for plaintiffs. These same sources advise that the fact that she is the one that wrote the opinion makes it even more noteworthy.

 

Second, I think her language in rejecting the "hey, the whole economy tanked" argument is important. There are a number of companies about whom it might be alleged, as was alleged here of Ambac, that they were "an active participant in the collapse of their own business, and of the financial markets in general, rather than merely a passive victim." In other words, the general collapse of the financial markets alone might not be enough to refute the potential existence of fraud, if the plaintiffs sufficiently allege that the defendant companies nevertheless contributed to their own collapse.

 

This is significant because many companies that have been sued in the wake of the credit crisis have tried to refute the inference of fraud by arguing that that no one could have foreseen what subsequently happened. However, as Judge Buchwald noted, the collapse was not the result of the operation of some inevitable physical force. While there were many factors that contributed to the collapse, one of the causes may well have been various companies’ actions and statements prior to the collapse.

 

The fact that the subsequent collapse was generalized is not necessarily inconsistent with the possibility that prior to the collapse that fraudulent misconduct may have taken place at any one specific company – or, as Judge Buchwald noted, that the misconduct may have helped bring the collapse about.

 

I also think Judge Buchwald’s rulings are interesting because of her willingness to rely on plaintiffs’ expert’s analysis in finding misrepresentations on the CDO valuation issue and also because of her rejection of the statute of limitations argument based on the contention that "storm warnings" put the plaintiffs on "inquiry notice."

 

But the final reason that Judge Buchwald’s ruling may be significant is that it is a very strong opinion ruling in the plaintiffs’ favor in a high profile subprime-related case in the Southern District of New York. So many of the subprime related cases are pending in the Southern District, so the plaintiffs lawyer will of course seek to rely on Judge Buchwald’s holdings in other cases pending in that District.

 

It of course remains to be seen to what extent plaintiffs will be able to get mileage out of Judge Buchwald’s holdings in other cases. But it does in any event represent a significant victory for the plaintiffs.

 

I have added the Ambac decision to my table of subprime and credit crisis-related securities class action lawsuit dismissal motion rulings, which can be accessed here. It certainly does seem that recently the dismissal motion rulings have been coming down fast and furious.

 

Special thanks to a loyal reader for providing me with a copy of the Ambac decision.

 

Climate Change and D&O Coverage: In a recent post (here), I noted the possibility that the requirements of the SEC’s new interpretive guidance about climate change disclosure could create a context within which climate change disclosure claims might arise. If these kinds of claims do materialize, they potentially could create important coverage issues under applicable D&O insurance policies.

 

A February 19, 2010 memo by Collin Hite and Sung Yhim of the McGuire Woods law firm entitled "Global Warming Litigation and D&O Insurance Coverage Issues" takes a look at the kinds of coverage issues that might be involved if climate change-related disclosure cases do arise. The memo can be found here.

　

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Just when it seemed as if the dismissal motion rulings in the subprime-related securities suits might be breaking more favorably to the plaintiffs, two February 18, 2010 rulings granted the defendants’ motions to dismiss in two separate subprime cases. While only one of the two dismissals was with prejudice, both represent substantial defense victories. These latest rulings tend to support the view that, with some notable exceptions of course, the plaintiffs are as a general matter facing hurdles in many of the subprime cases.

 

Fortis: In a February 18, 2010 decision (here) that addressed recurring issues of the extraterritorial jurisdiction of U.S. courts under the U.S. securities laws, Southern District of New York Judge Denny Chin dismissed the subprime-related securities suit pending against Fortis and certain of its directors and officers, for lack of subject-matter jurisdiction.

 

As I detailed in a prior post about the Fortis lawsuit (here), Fortis is a Belgium-based financial company that in late 2008 received a massive bailout by the governments of Belgium, the Netherlands and Luxembourg. Fortis’ shares trade on several European exchanges and its ADRs trade over-the-counter in the U.S.

 

In their amended complaint, the plaintiffs allege that the defendants misrepresented the value of its collateralized debt obligations; the extent to which its assets were held as subprime-related mortgage backed securities; and the extent to which its ill-fated decision to acquire ABN-AMRO had compromised the company’s solvency.

 

In granting the motion to dismiss, Judge Chin found, applying the Second Circuit standard articulated in the National Australia Bank case, that the plaintiffs had not alleged either sufficient U.S.-based "conduct" or "effects" to support the court’s exercise of subject matter jurisdiction.

 

Specifically, the found that the company’s alleged New York-based data compilation was merely preparatory to the actual fraudulent misrepresentations, which were alleged to have been made by the company’s executives in Brussels. Judge Chin found that "the complaint describes the Brussels executives as the masterminds, and portrays the New York Office as uninvolved in decision-making regarding information to be communicated."

 

In finding that the complaint failed to satisfy the "effects" test, Judge Chin observed that the "lead plaintiffs do not explicitly allege what percentage of Fortis’s investors are U.S residents, nor the effect the fraud may have had in the United States."

 

Judge Chin noted that the complaint alleges that 17.2% of all institutional investors were located in North America, but "it does not break down what percentage of those were located in the U.S. – as opposed to Canada, Mexico or any of the approximately 38 countries on the continent."

 

In closing, Judge Chin denied plaintiffs leave to amend, noting that "plaintiffs have already had two bites of the apple, as they have already filed two complaints," adding that "it is difficult to imagine that plaintiffs did not allege all the facts they had a good faith basis for asserting," and a "third opportunity to plead would be futile."

 

Judge Chin’s refusal in the Fortis case to allow the plaintiffs’ to file an amended complaint stands in contrast to what happened in the Credit Suisse case, where, as I discussed here, Judge Victor Marrero at least allowed the plaintiffs to seek leave to file an amended complaint. Significantly, in the Credit Suisse case, the plaintiffs were able to present sufficient additional allegations to satisfy the "effects" test and to establish subject matter jurisdiction. Judge Chin’s refusal even to allow plaintiffs to seek leave to amend, and possibly to cure the pleading defect, stands in contrast to the Credit Suisse case.

 

MGIC: In a February 18, 2010 order (here), Eastern District of Washington Judge Lynn Adelman granted the defendants’ motion to dismiss in the subprime-related securities suit that had been filed against mortgage insurer MGIC Investment Corporation and certain of its directors and offices, as well as against certain officers of C-Bass, a subprime mortgage-securitizer in which MGIC was a joint venture partner with Radian Group.

 

In their complaint, the plaintiffs alleged that the MGIC defendants had misrepresented MGIC’s underwriting practices; that the MGIC defendants had misrepresented the performance of mortgages the company had insured in 2005 and 2006; and that the defendants had misled investors about the extent of C-Bass’s margin calls in July 2007.

 

Judge Adelman went through each of the allegedly misleading statements on which the plaintiffs sought to rely, and with respect to each, he found that the statements were either immaterial or not misleading, or even if misleading, that the plaintiffs had failed to establish that the statements had been made with scienter.

 

Judge Adelman granted the plaintiffs leave to amend, should they choose to do so. However, it will be very challenging for plaintiffs to overcome all of the concerns Judge Adelman noted. The very detailed, painstaking and comprehensive way that Judge Adelman considered each of the alleged misrepresentations may leave plaintiffs with very little room to try address his concerns.

 

In any event, the subprime-related securities suit filed against the other C-BASS joint venture partner, Radian Group, was previously dismissed, as discussed here.

 

Discussion

The plaintiffs’ difficulties trying to establish subject matter jurisdiction in the Fortis case are significant, because many of the other subprime-related cases also involve foreign-domiciled companies. Perhaps the pleading differences between the Credit Suisse case (where the plaintiffs had specifically identified the percentage of shares held by U.S. institutional investors) and the Fortis case provide plaintiffs in other cases enough of a road map, but the Fortis case still does suggest that plaintiffs may struggle to establish jurisdiction in many of these cases.

 

The difference in outcomes in the two cases may be a reflection of where each company’s ADRs traded. Credit Suisse’s ADRs traded on the NYSE, but Fortis’s ADRs traded only over the counter. As Ben Hallman noted in his February 19, 2010 Am Law Litigation Daily article (here) discussing the Fortis decision, over the counter purchases are "nearly impossible to track," and accordingly "the damage to U.S. investors impossible to quantify." The plaintiffs in subprime cases against other non-U.S. companies whose shares or ADRs do not trade on one of the formal U.S. exchanges may have similar difficulty quantifying the impact on U.S. investors.

 

One interesting related question is the extent to which the outcome of the National Australia Bank case, now pending before the U.S. Supreme Court, might affect these jurisdictional issues. Congress may also have its own say on these issues. The bottom line is that there are a lot of moving pieces that could affect consideration of these jurisdictional issues going forward.

 

In any event, these two dismissal motion rulings represent that much more evidence that overall plaintiffs do not seem to be faring particularly well in the subprime-related securities suits. As reflected on my running tally of the subprime and credit crisis-related dismissal motion ruling, which can be accessed here, the defendants have prevailed in far more motion rulings to date than have the plaintiffs.

 

Though plaintiffs have had some notable victories, and though plaintiffs have even managed to survive some renewed motions to dismiss after initial dismissal motions had been granted, in the majority of motion rulings, the defendants have prevailed. By contrast to historical patterns, where cases are dismissed somewhere between 33% and 40% of the time, in the subprime-related dismissal motion rulings, the defendants are prevailed about two-thirds of the time – at least so far. Many of the subprime and credit crisis cases have still not yet reached the dismissal motion stage.

 

So Many Updates, So Little Time: With all of the voices and sources, who is worth following? Bruce Carton, the author of the Securities Docket blog and a new media maven in the securities enforcement arena has put together an updated list of the 15 "must-follows" on Twitter. Special thanks to Bruce for including me on his list.

 

Some Winter Olympics Observations:

1. The key physical forces involved in the winter Olympics sports are the coefficients of friction and aerodynamic drag. (Contrary to what some might think, "aerodynamic drag" is not a description of Johnny Weir’s skating attire.)

2. Shaun White really did say, on camera, while describing his emotional state, "freaky deeky."

3. "Live curling." Discuss.

4. With reference to the commercial in which the female snowboarder leaves the earth’s atmosphere: (a) Does anybody have any idea what product or service is being advertised? (b) Where is she supposed to be snowboarding, the edge of some gigantic cosmic womb or something like that? (c) Am I the only one who is troubled that she never returns to earth, but instead drifts off further into the ether… it all seems so sad and weird.

5. In the summer Olympics, it was commercials with wind turbines. Now in the winter Olympics, it is commercials with girl ice hockey players.

6. Shen Xue and Zhao Hungbo not only came out of retirement to win gold in pairs figure skating, but they did something even more amazing – they managed to get us to root for a couple of Chinese athletes. (If you think that sounds xenophobic, just imagine how it is going to feel four years from now when Chinese snowboarders sweep the medals in the half pipe.)

7. In the entire history of the human race, from the dawn of man to the present moment, has there ever been anyone more unfortunately named than Dick Button?

 

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