Aaron M. Rubin

Senior Associate

Orange County


Read full biography at www.orrick.com

Aaron M. Rubin is a Senior Associate in the Orange County office and a member of the Complex Litigation and Dispute Resolution group.

Aaron has experience with a wide array of matters, including securities and commercial litigation, accountants’ liability, mass torts, and insurance. He has represented clients in federal and state courts. He is also active in pro bono matters.  Prior to working in Orrick's Orange County office, Aaron worked in Orrick's New York office.

Posts by: Aaron Rubin

S.D.N.Y. Denies Motion for Sampling in Trustee Action

 

On May 17, 2018, Judge Jesse M. Furman of the United States District Court for the Southern District of New York denied the BlackRock Plaintiffs’ request to use sampling to prove their case against an RMBS trustee in BlackRock Balanced Capital Portfolio (FI) v. Deutsche Bank National Trust Company. In reaching this conclusion, Judge Furman noted that his decision was consistent with those reached by other S.D.N.Y. judges in similar actions against RMBS trustees Wells Fargo and HSBC (previously covered here and here). Echoing those decisions, Judge Furman held that sampling was of limited benefit because the BlackRock Plaintiffs had to prove liability and damages loan-by-loan and trust-by-trust. Memorandum Opinion & Order

Lehman Brothers to Pay $2.38 Billion in Connection with RMBS Claims

 

On March 8, 2018, Judge Shelley C. Chapman of the United States Bankruptcy Court for the Southern District of New York issued a decision from the bench valuing RMBS breach of representation and warranty claims against now-defunct Lehman Brothers Holdings Inc. at approximately $2.38 billion. While the Trustees of the Lehman-issued RMBS at issue sought an $11.4 billion valuation, the Court concluded that such a figure was not a fair or reasonable estimate of the claims, particularly in light of the fact that over a dozen institutional investors agreed to the lower figure earlier in the proceedings. The Court also highlighted that the Trustees could not point to any comparable settlement to support their valuation.

SDNY Grants Trustees’ Motion to Dismiss Triaxx CDOs’ RMBS Claims with Prejudice

 

On March 8, 2018, Judge Naomi Reice Buchwald of the United States District Court for the Southern District of New York issued a Memorandum and Order granting Defendants’ motion to dismiss Plaintiffs’ Third Amended Complaint in its entirety in Triaxx Prime CDO 2006-1, Ltd., et al. v. The Bank of New York Mellon and U.S. Bank, N.A., and forbidding Plaintiffs from amending the Complaint any further. In dismissing Plaintiffs’ breach of contract claims for lack of standing, the Court found that Plaintiffs failed to remedy the deficiencies that previously resulted in dismissal of these same claims, covered here (“Triaxx I“), because Plaintiffs assigned away their right to sue under the contracts. Judge Buchwald also dismissed Plaintiffs’ negligence and breach of fiduciary duty claims because Plaintiffs failed to allege that Defendants owed them any duty of care or fiduciary duty. Additionally, the Court held that the fiduciary duty claims were an improper attempt to re-plead claims already dismissed as abandoned in Triaxx I, and in any event, the claims were barred by New York’s economic loss doctrine. Plaintiffs’ claim for equitable relief directing U.S. Bank to assign Plaintiffs the authority to sue was also dismissed as inappropriate and unsupported by law. [Memorandum and Order]

S.D.N.Y. Grants in Part and Denies in Part Trustee Bank of New York Mellon’s Motion for Summary Judgment in Suit Brought by Certificateholder Phoenix Light

 

On September 7, 2017, Judge Valerie Caproni in the United States District Court for the Southern District of New York granted the majority of RMBS trustee Bank of New York Mellon’s (“BNYM“) summary judgment motion and denied certificateholder Phoenix Light SF Ltd.’s (“Phoenix Light“) cross motion in its entirety in Phoenix Light SF Ltd. v. Bank of New York Mellon. Judge Caproni’s decision significantly curtailed Phoenix Light’s Complaint, which alleged various breaches of the trustee’s duties in connection with 21 RMBS trusts. For eight of the trusts at issue, Judge Caproni rejected Phoenix Light’s breach-of-contract claims alleging that BNYM failed to notify other parties upon discovery of breaches of representations and warranties due to lack of evidence that BNYM actually discovered any breaches. Judge Caproni also rejected the breach claims in connection with another eight trusts due to Phoenix Light’s failure to support the claims with evidence on a “loan-by-loan and trust-by-trust” basis. Only Phoenix Light’s breach-of-contract claims related to trusts where BNYM had notice of a specific breach or an event of default survived, as did Phoenix Light’s Trust Indenture Act claims for three trusts (because BNYM did not address the claims in its reply brief). The Court also granted BNYM’s motion with respect to Plaintiffs’ negligence, gross negligence, and negligent misrepresentation claims, finding that Plaintiffs’ tort-based arguments were duplicative of their breach-of-contract allegations.

S.D.N.Y. Denies Plaintiffs’ Sampling Motion in Consolidated Actions Against RMBS Trustee

 

On August 21, 2017, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York upheld a magistrate’s order denying plaintiff-certificateholders’ motion to attempt to prove their claims by re-underwriting a sample of the loans at issue in a consolidated action against Wells Fargo Bank, National Association, in its capacity as RMBS trustee. Judge Failla, after reviewing the magistrate’s order for clear error, affirmed that under the governing agreements, to prevail on a breach of contract claim against an RMBS trustee with respect to the loans underlying the trust, Plaintiffs must demonstrate a breach on a loan-by-loan and trust-by-trust basis. Accordingly, Plaintiffs cannot utilize sampling in their efforts to prove that the RMBS trustee breached its contractual obligations. Judge Failla also noted that Plaintiffs, rather than needing to prove that the trustee had actual knowledge of breaches of representations and warranties, could potentially demonstrate the trustee’s discovery of breaches through a showing of conscious avoidance or implied actual knowledge. Wells Fargo Sampling Order.

NCUA Enters $445 Million Settlement with UBS in Lawsuit Alleging Untrue Statements in Connection with Sale of RMBS

 

On April 25, 2017, the National Credit Union Administration (“NCUA“), as liquidating agent for U.S. Central Federal Credit Union and Western Corporate Federal Credit Union, voluntarily dismissed its complaint against UBS Securities, LLC (“UBS“) and Mortgage Asset Securitization, Inc., in the United States District Court for the District of Kansas following a settlement between the parties. Under the terms of the settlement, UBS agreed to pay $445 million to end the NCUA’s five-year old lawsuit (the filing of the lawsuit was covered here). The NCUA’s suit involved claims for losses suffered by the two failed credit unions from allegedly untrue statements and omissions of fact by UBS regarding RMBS that it underwrote and sold. This settlement is in addition to the $79.3 million the NCUA also recovered from UBS in April 2016 for RMBS losses suffered by two other defunct credit unions. Voluntary Dismissal.

Wells Fargo Wins Summary Judgment Motion on All Claims Brought by German Bank LBBW Luxemburg

 

On March 30, 2017, Judge J. Paul Oetken granted Defendants Wells Fargo Securities LLC (“Wells Fargo“), f/k/a Wachovia Capital Markets LLC (“Wachovia“), and Fortis Securities LLC’s motion for summary judgment, dismissing the remaining causes of action and closing the case in LBBW Luxemburg S.A. v. Wells Fargo Securities LLC in the United States District Court for the Southern District of New York.

In a prior motion to dismiss order in 2014, the Court granted in part Defendants’ motion to dismiss, “keeping alive” only one theory of liability brought by LBBW. That remaining theory was that Wachovia’s internal valuation markdown of the Grand Avenue II (“GAII“) CDO Preference Shares, for which Defendants had served as some of the initial purchasers, on the same day it issued those shares allegedly signaled Wachovia’s potential misrepresentation or omission to purchasers of other GAII’s securities. Plaintiffs argued this markdown supported a plausible inference that Wachovia knowingly misrepresented the value of CDO shares and constituted circumstantial evidence of conscious misbehavior.

In its ruling, the Court held that LBBW failed to show that it conveyed its right to sue to another German entity, Landesbank, when the two companies merged in 2014, and therefore failed to establish standing.

Judge Oetken also found that LBBW failed to overcome the motion for summary judgment on the merits. The Court found that LBBW’s single surviving theory of liability was unsupported by the record, as discovery in the case had not produced evidence to connect the markdown to any secretly held view by Wells Fargo that GAII’s portfolio of assets was in trouble.

The Court also rejected the fraud claims brought against Defendants, finding that LBBW failed to point to specific evidence as to a misrepresentation or material omission on Defendants’ part based on the single surviving theory. Judge Oetken also dismissed constructive fraud and negligent misrepresentation claims against Defendants, concluding again that there was a lack of evidence to support any misrepresentation, an essential element of both claims. Finally, the Court found that LBBW’s breach of contract claim, which alleged that Defendants agreed to notify it of any material changes to the CDO’s capital structure, must fail, as the “evidence establishes beyond genuine dispute that the internal markdown on the Preference Shares was not related to any change in Wachovia’s view of GAII’s underlying portfolio of assets.”

In addition to granting Defendants’ motion for summary judgment, Judge Oetken also denied LBBW’s motion to supplement the summary judgment record as untimely; LBBW’s motion to strike certain of Defendants’ arguments; and LBBW’s motion for adverse inference sanctions. Opinion.

SDNY Grants Defendant GreenPoint Mortgage Summary Judgment

 

On March 29, 2017, Judge Andrew L. Carter, Jr., of the United States District Court for the Southern District of New York granted Defendant GreenPoint Mortgage Funding, Inc.’s (“GreenPoint“) motion for summary judgment, dismissing all causes of action against it as time-barred and terminating the case in Lehman XS Trust et al. v. GreenPoint Mortgage Funding, Inc.

Plaintiff Trustee U.S. Bank National Association, on behalf of the Lehman XS Trust, Series 2006-GP2 (“GP2“), Lehman XS Trust, Series 2006-GP3 (“GP3“), and Lehman XS Trust, Series 2006-GP4 (“GP4“) (collectively, the “Trusts“), and Freddie Mac Conservator Federal Housing Finance Agency (collectively, “Plaintiffs“) brought consolidated claims against GreenPoint regarding GP2, GP3, and GP4. Plaintiffs alleged breach of contract and indemnification claims for specific performance and damages arising out of GreenPoint’s alleged breach of certain representations and warranties.

Citing N.Y. C.P.L.R. § 214(3), the Court first found that Plaintiffs’ breach of contract claims under the mortgage loan purchase agreements (“MLPA“) for all three Trusts were time-barred under New York state’s six-year statute of limitations for breach of contract actions. The Trusts’ respective MLPAs required GreenPoint to cure or repurchase the defective loans in the event that any of the mortgage loans breached these representations and warranties. The closing dates for the Trusts were as follows: GP2 on May 15, 2006; GP3 on June 15, 2006; and GP4 on July 17, 2006. FHFA filed summons with notice for GP2 on May 30, 2012; for GP3 on June 29, 2012; and for GP4 on July 30, 2012.

Judge Carter then rejected Plaintiffs’ indemnification claims arising out of GreenPoint’s alleged breaches of representations and warranties. Plaintiffs sought indemnification for its losses, costs, fees, and expenses arising out of and related to the breaches of GreenPoint’s representations and warranties. Since Plaintiffs did not face liability to a third party as a result of the alleged breaches, the Court held that Plaintiffs’ indemnification cause of action was “more appropriately characterized as one to recover losses incurred by breach of contract” and therefore also barred by the statute of limitations.

Finally, the Court dismissed as time-barred Plaintiffs’ newly alleged causes of action for breach of GreenPoint’s representations and warranties made in the Trusts’ Indemnification Agreements, which provide for indemnity to the Trusts and other entities for claims arising out of breaches of the representations and warranties made in the information provided by or on behalf of GreenPoint for inclusion in the Prospectus Supplements. Opinion.

SDNY Finds Three of Commerzbank AG’s RMBS Claims Against The Bank of New York Mellon Timely Under German Three-Year Statute of Limitations

 

On March 21, 2017, Judge George Daniels of the United States District Court for the Southern District of New York partially granted and partially denied defendant’s motion to dismiss in Commerzbank AG v. The Bank of New York Mellon. With respect to the central breach of contract claims, Judge Daniels held that The Bank of New York Mellon (“BNYM”) had not carried its burden for dismissal under applicable German law, as it had failed to prove that Commerzbank AG had sufficient knowledge of each element of each of its claims with respect to each Trust, “such that it could have commenced [the] action with an expectation, or some prospect, of success,” three years prior to filing. The court also denied the BNYM’s motion to dismiss for failure to state a claim with respect to Commerzbank’s claims for breach of contract, and negligence for failure to avoid conflicts of interest. It granted BNYM’s motion to dismiss Commerzbank AG’s claims for the violation of the covenant of good faith, violation of the Streit Act, and breach of fiduciary duty. Memorandum Decision and Order.

SDNY Grants Trustees’ Motion to Dismiss Triaxx CDOs’ RMBS Claims for Lack of Standing

 

On March 21, 2017, Judge Naomi Reice Buchwald of the United States District Court for the Southern District of New York issued a Memorandum and Order granting defendants’ motion to dismiss plaintiffs’ First Amended Complaint in Triaxx Prime CDO 2006-1, Ltd., et al. v. The Bank of New York Mellon and U.S. Bank, for lack of standing. In dismissing the claims, the court held that the plaintiff CDOs – certificateholders in several RMBS trusts for which the defendants, U.S. Bank and Bank of New York Mellon, serve as RMBS trustees – had ceded any right to initiate litigation on their own behalf when they assigned away “all . . . right, title and interest” in the underlying assets to their respective CDO indenture trustees. Judge Buchwald granted leave to file an amended complaint within thirty days so long as any such amended complaint explains how the plaintiffs’ cured the standing issue. Order and Memorandum.