Judge William H. Pauley III of the Southern District of New York ruled on October 19 that federal court is the proper forum for the proceeding brought by Bank of New York Mellon Corp., as Trustee, seeking court approval of the $8.5 billion settlement between Bank of America Corp. and holders of Countrywide mortgage-backed securities. BONY Mellon commenced the proceeding in state court in June 2011. A number of investor groups, and the attorneys general of two states, intervened to oppose the settlement, and one of the objecting investor groups – the “Walnut Place” investors – then removed the action to federal court. Judge Pauley denied BONY Mellon’s motion to remand to state court, holding that the case was properly removed as a “mass action” under the Class Action Fairness Act. Order.
Southern District of New York
JP Morgan Settles with the SEC for $154 Million Over CDO Disclosures
On June 21, 2011, the SEC announced that JP Morgan Chase & Co. agreed to pay $153.6 million in disgorgement and penalties to settle claims brought by the SEC in the Southern District of New York. The SEC alleged that JP Morgan structured and marketed a $1.1 billion collateralized debt obligation and failed to disclose that the hedge fund, Magnetar Capital LLC, whose economic interests allegedly were adverse to the CDO’s investors, played a significant role in the portfolio selection process with the knowledge of JP Morgan. According to the SEC, while participating in the selection of the investment portfolio, Magnetar shorted $600 million of the assets it helped to select. The SEC also filed a separate complaint against Edward Steffelin, the head of the registered investment advisory firm that the offering documents represented would select the investments in the portfolio. Steffelin has not settled. JPM Settlement Announcement. JPM Compl. Steffelin Compl.
Royal Bank of Scotland and Ten Underwriters Move to Dismiss Remaining Subprime Mortgage Claims
On June 1, 2011, the Royal Bank of Scotland (“RBS”) moved to dismiss claims brought in the U.S. District Court for the Southern District of New York by investors in RBS preferred securities. Plaintiffs allege that RBS failed to disclose its exposure to subprime mortgage-backed assets early enough. Plaintiffs also allege that ten banks which underwrote the RBS preferred securities were negligent in preparing the offering documents. In January, Judge Deborah Batts dismissed approximately 95 percent of the claims – those brought by the Massachusetts Pension Reserves Investment Management Board and the Public Employees’ Retirement System of Mississippi. RBS argues in its motion that the remaining claims should be dismissed on forum non conveniens grounds and consolidated with litigation ongoing in the United Kingdom. The ten underwriters separately moved to dismiss, arguing that plaintiffs claims are untimely and fail to adequately allege violations of Sections 11 and 12(a)(2) of the ’33 Act. RBS Memo in Support. RBS Memo to Dismiss.
Ambac, Underwriters Settle Putative Class Action for $33 Million
On May 6, 2011, Ambac Financial Group, Inc., several of its officers and directors, and several underwriters of Ambac securities offerings filed stipulations of settlement with the Southern District of New York to resolve a putative shareholder class action filed on behalf of purchasers and acquirers of Ambac securities. Plaintiffs claimed that the now bankrupt bond insurer concealed that it had lowered its policy underwriting standards, allowing it to insure risky financial products, including RMBS. The settlements provide for payments of $2.5 million by Ambac, $24.6 million by Ambac’s D&O policy insurers, and $5.9 million by the underwriters, UBS Securities, Goldman Sachs & Co., and JP Morgan Securities. Ambac Complaint. Ambac Settlement. Ambac Underwriters Settlement.
DOJ Sues Deutsche Bank and MortgageIT for $1.1 Billion Related to Mortgage Lending Activities
On May 3, 2011, the U.S. Department of Justice filed suit in the Southern District of New York against Deutsche Bank AG and MortgageIT Inc. (which was a wholly owned by Deutsche Bank), asserting multiple claims under the False Claims Act as well as claims for breach of fiduciary duty, gross negligence, negligence and indemnity. The Complaint arises out of MortgageIT’s activities as a qualified Direct Endorsement Lender of the Federal Housing Administration (“FHA”) of the Department of Housing and Urban Development (“HUD”). From 1999 through 2009, the defendants originated mortgages that were insured by FHA. The Complaint alleges that during this time the defendants lied to FHA to maintain their Direct Endorsement Lender status which in turn allowed them to continue originating loans that were insured by FHA. The DOJ alleges that the defendants failed to abide by FHA’s standards to control the amount of risk the program would assume by funding mortgages that did not satisfy the underwriting guidelines and failing to implement quality control provisions to monitor the strength of the loans. The Complaint also alleges that HUD has paid more than $386 million in FHA insurance claims arising out of mortgages originated by the defendants. The DOJ seeks treble damages and penalties under the False Claims Act, as well as compensatory and punitive damages in connection with its other claims. Complaint.
Putative Investor Class Action Brought in S.D.N.Y. Against Bank of America Alleging False Statements Relating to Bank of America’s RMBS Exposure
Anchorage Police & Fire Retirement System v. Bank of America Corp., No. 11-2216 (S.D.N.Y. Mar. 30, 2011)
An Alaska retirement fund filed a putative class action complaint against Bank of America and certain of its directors and officers in the Southern District of New York. Plaintiff bring claims under Sections 10(b) and 20(a) of the ’34 Act, alleging that defendants concealed material information and made false and misleading statements relating to Bank of America’s exposure to several forms of risk, including Bank of America’s (1) exposure to faulty mortgages originated by Countrywide; (2) exposure to mortgages upon which it could not legally foreclose; (3) exposure to systemic mortgage servicing problems; and (4) “dollar rolling” practice, through which the company allegedly artificially reduced reported leverage ratios while taking on more risk than it disclosed to the market and federal regulators. Complaint.
Allstate Sues JP Morgan, WaMu and Bear Stearns Over Sale of RMBS
On February 16, 2011, several Allstate Insurance entities filed a complaint against a number of JP Morgan, Washington Mutual and Bear Stearns entities and certain Washington Mutual directors and officers in the Southern District of New York. Plaintiffs allege that defendants misrepresented the quality of the loans underlying over $757 million in RMBS they sold to Allstate. Allstate is represented by the Quinn Emanuel firm. Complaint.
Allstate Sues Countrywide for Securities Fraud
On December 27, 2010, Allstate Insurance Company filed a complaint in the Southern District of New York against Countrywide Financial Corporation and several affiliates and individual officers alleging a variety of federal securities claims in connection with alleged material misstatements or omissions in the offering documents for several RMBS. Allstate seeks rescission and damages in connection with its alleged purchases of $700 million in RMBS certificates from Countrywide during the period from March 2005 to June 2007. Complaint.