Jennifer C. Lee

Senior Associate

San Francisco


Read full biography at www.orrick.com
Jennifer Lee is a California lawyer in Orrick’s San Francisco office who focuses on complex commercial litigation and securities litigation. Jennifer is a member of the firm's Complex Litigation and Dispute Resolution group.

Jennifer’s primary practice is defending investment banks, corporations and individuals in various federal and state litigations alleging fraud or breach of contract related to mortgage-backed securities, as well as SEC enforcement actions alleging securities fraud violations of the Securities Act of 1933 and the Securities and Exchange Act of 1934.

Prior to joining Orrick, Jennifer held a year-long public interest fellowship position in the Law Reform Unit at The Legal Aid Society of New York. She represented individual clients in Article 78 housing proceedings and helped bring class action lawsuits against the New York City Housing Authority.

Posts by: Jennifer Lee

NY Intermediate Appellate Court Reverses Dismissal of HSBC RMBS Suit Against Deutsche Bank

 

HSBC, the trustee of two securitizations at issue, successfully appealed the 2018 dismissal of its complaint alleging that DB Structured Products Inc. (DBSP), the sponsor of the two securitizations at issue, breached Mortgage Loan Purchase Agreements and Pooling and Servicing Agreements by securitizing loans in breach of representations and warranties and subsequently failing to disclose its discovery of those breaches. The trial court granted a motion to dismiss without leave to amend because it interpreted the contract language as providing that DBSP had no obligation to inform HSBC when it discovered loan-level breaches due to language in the governing agreements that DBSP notify itself of breaches. A split panel of the New York Appellate Division, First Department, reversed the trial court decision, finding that the contract was ambiguous because of the nonsensical nature of the notice provision, which required DBSP to provide notice to itself and granted HSBC leave to amend its complaint.

SDNY Dismisses FDIC Claims for Lack of Standing Again

 

The Federal Deposit Insurance Corporation (FDIC) as receiver for Guaranty Bank brought claims against The Bank of New York Mellon, U.S. National Bank Association, and Citibank, N.A. alleging breach of contract, violation of the Streit Act, and violation of the Trust Indenture Act for allegedly failing to carry out their duties as trustees. Judge Carter dismissed the same claims in September of 2016 for lack of subject matter jurisdiction, holding that the FDIC lacked standing to sue because the FDIC had sold its ownership of the certificates at issue in 2010 to Wilmington Trust Co., as owner trustee, with Citibank acting in as indenture trustee. The Court had held that after that sale, the plaintiff’s claims had travelled with the securities to the resecuritized trust and thus the plaintiff no longer had standing to bring the claims it asserted. The Court had granted leave to amend the complaint to permit FDIC to resolve the standing issues by seeking ratification of the claims by the trust pursuant to FRCP 17(a)(3). After the 2016 dismissal, Wilmington Trust ratified the claims, but Citibank refused to ratify the claims without indemnity from FDIC. As a result, the standing issues remained unresolved, and the court dismissed the claims once again for lack of subject matter jurisdiction without prejudice. Decision.

Royal Park and Wells Fargo Reach Settlement in RMBS Litigation

 

On January 14, U.S. District Judge Katherine Polk Failla of the Southern District of New York granted a joint request from plaintiff certificateholder Royal Park Investments SA/NV and defendant trustee Wells Fargo Bank NA to dismiss Royal Park’s remaining claims against Wells Fargo. The dismissal follows a settlement that resolves the litigation brought by Royal Park accusing Wells Fargo of breaching its contractual duties as trustee of two RMBS trusts, including the alleged failure to notify and enforce repurchase obligations of mortgage loan sellers for purported breaches of representations and warranties. The settlement also resolves a separate suit brought by Royal Park, which accused Wells Fargo of improperly financing its defense using money from two RMBS trusts. Wells Fargo maintained that it was entitled to reimbursement pursuant to the trusts’ governing agreements. Details of the settlement agreement were not disclosed as a stipulation of the voluntary dismissal.

Deutsche Bank Settles Two BlackRock RMBS Suits

 

Deutsche Bank settled with BlackRock and other RMBS investors in New York federal (BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Company, S.D.N.Y., No. 1:14-cv-09367) and California state (BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank Trust Company Americas, Orange County Superior Court, No. 2016-00843062) suits that argued Deutsche Bank failed to fulfill its obligations as trustee of over 500 RMBS trusts valued at more than $570 billion. The settlement comes after the investors repeatedly failed to certify the cases as class actions. The settlement amount was not disclosed.

Judge Grants Stay in U.S. Bank Fee Suit

 

S.D.N.Y. Judge Victor Marrero granted a stay in a proposed class action that alleges that U.S. Bank as trustee improperly used money from trusts to fund its defense in an RMBS suit. Royal Park Investments filed the underlying RMBS trustee suit in 2014 (Royal Park Investments SA/NV v. U.S. Bank National Association, No. 1:14-cv-02590), alleging that U.S. Bank breached its duties as trustee. While the suit was pending, Royal Park Investments filed another suit against U.S. Bank in 2017 (Royal Park Investments SA/NV v. U.S. Bank National Association, No. 1:17-cv-06778) for misuse of trust funds to fund the underlying suit. U.S. Bank contends that indemnification clauses in the trusts’ governing documents allow it to reimburse itself for these legal expenses. Royal Park counters that legal fees are not recoverable if the relevant litigation is the result of U.S. Bank’s gross negligence. Because this gross negligence is a “central factual question” in both suits, Judge Marrero granted the stay to resolve the claim first in the underlying RMBS suit.

New York Federal Court Upholds Privilege and Specificity Requirements Regarding Alleged Awareness of Rep Breaches

 

U.S. District Court Judge Katherine Polk Failla denied Plaintiff-Investors’ attempts in Blackrock Allocation Target Shares et al. v. Wells Fargo et al., No. 1:14-cv-09371 (S.D.N.Y.) to overturn two magistrate judge decisions preventing them from accessing Wells Fargo’s privileged communications and ordering them to identify with greater specificity when Wells Fargo allegedly became aware of problems in a series of residential mortgage-backed securities trusts.  READ MORE

U.S. Bank and UBS Reach $850M Settlement in RMBS Put-Back Action

 

On July 25, 2018, U.S. Bank NA and UBS AG announced they had reached an $850 million settlement in connection with a dispute over loans in three residential mortgage-backed securities trusts. U.S. Bank filed suit against UBS in the Southern District of New York in 2012 seeking $2 billion for UBS’s alleged breach of representations and warranties about those loans. Following a three-week bench trial in 2016, U.S. District Judge P. Kevin Castel held that UBS had breached representations and warranties in certain respects and appointed special master Barbara S. Jones to review breach allegations concerning thousands of individual loans and issue a recommendation regarding liability and damages as to each loan. Order.

Merrill Lynch Settles SEC RMBS Fraud Claims for $16M

 

On June 12, 2018, the United States Securities and Exchange Commission (“SEC“) issued an Order instituting administrative proceedings, making findings, and imposing remedial sanctions against Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch“), a subsidiary of Bank of America Corporation, pursuant to Section 15(b) of the Securities Exchange Act of 1934. The SEC alleged that personnel of Merrill Lynch, acting as broker-dealers engaged in secondary market trading of non-agency RMBS, made false or misleading statements to customers between June 2009 and December 2012 that led customers to accept less or pay more for securities than they otherwise might have accepted or paid.  Merrill Lynch agreed to settle the claims for approximately $16 million without admitting or denying the allegations. Order.

Monoline Insurer Sues Trustee Over Settlement Figure in RMBS Repurchase Action

 

On June 8, 2018, monoline insurer Ambac Assurance Corporation (“Ambac“) filed a complaint in the United States District Court for the Southern District of New York against U.S. Bank National Association (“U.S. Bank“), trustee of the Harborview Mortgage Loan Trust 2005-10 (the “Trust“). The complaint alleges that U.S. Bank breached certain contractual and common law duties when it agreed to a proposed $94 million settlement of an ongoing RMBS repurchase action in New York state court against Bank of America, N.A. and certain affiliates, as successors to Countrywide Home Loans, Inc. (the “Countrywide Action“). Among other things, Ambac alleges that U.S. Bank was required to observe heightened duties of care when an Event of Default occurred under the governing PSA, and that U.S. Bank breached those duties when it agreed to settle the Countrywide Action for approximately 28% of the amount that its expert opined it was entitled to recover. Ambac further alleges that U.S. Bank breached the PSA by incorrectly accounting for recoveries received by the Trust. The complaint asserts two claims for declaratory judgments, two claims for breach of contract, and one claim for breach of fiduciary duty.  Complaint.

UBS Settles New York AG RMBS Claims for $230M

 

On March 20, 2018, UBS entered into a $230 million settlement with the New York Attorney General to resolve allegations against UBS under New York’s Martin Act and Executive Law arising from the creation, packaging, structuring, underwriting, issuance, and sale of fifteen residential mortgage-backed securities sponsored by UBS in 2006 and 2007. The settlement agreement sets aside $189 million for New York homeowners and $41 million for the state, and an agreement by UBS to acknowledge certain facts relating to its alleged misconduct between 2006 and 2007. Settlement Agreement