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 .