The key sentence in New York State Supreme Court Justice Barbara Kapnick’s 17-page decision dismissing Walnut Place’s $1 billion put-back suit against Countrywide is buried in the middle of the penultimate paragraph. But for Bank of America, it’s pure gold. The Manhattan judge said that contrary to Walnut’s assertion, Countrywide’s mortgage-backed securities trustee, Bank of New York Mellon, acted on Walnut’s complaints about deficiencies in underlying Countrywide loans by reaching the proposed $8.5 billion settlement announced last June. That language should shield BofA and BNY Mellon from reps and warranties claims by any Countrywide MBS investor — and may offer a hint of the fate of the proposed global deal, which is also now before Kapnick after a detour in federal court.
The New York Court of Appeals ruled Tuesday that a German company called Global Reinsurance cannot bring antitrust claims under New York state’s “little Sherman Act” against Equitas, the reinsurer created in 1996 to cap the liability of Lloyd’s of London syndicates. Happily, to understand the high court’s 22-page opinion, we don’t have to get into its analysis of the global market for retrocessionary reinsurance. We don’t even have to consider Chief Judge Jonathan Lippman‘s discussion of whether Equitas had the power to effect worldwide anticompetitive injury. We need only consider what the opinion called “an immovable obstacle” to Global’s case: New York’s antitrust law, the Donnelly Act, “cannot be understood to extend to the foreign conspiracy (Global) purports to describe.”
Jed Rakoff has bounced back quite nicely, thank you, from his appellate smackdown in the Securities and Exchange Commission’s collateralized debt obligation case against Citigroup. In the unlikely event you’ve forgotten, earlier this month the 2nd Circuit Court of Appeals stayed the SEC’s case before Rakoff, finding a strong likelihood that the government and Citi would prevail in their argument that the judge overstepped his bounds when he rejected their proposed $285 million settlement. Despite the notably critical language in the three-judge panel’s per curiam ruling in the Citi case, Rakoff, a U.S. Senior District Judge in federal court in Manhattan, seems undaunted in his determination to hold the SEC accountable. On Tuesday, he ruled that the agency must disclose documents used to prepare Goldman CEO Lloyd Blankfein for his deposition in the Rajat Gupta insider trading case.
If Paul Ceglia — the onetime wood pellet salesman from upstate New York who hired Mark Zuckerberg as a computer programmer before Zuckerberg founded Facebook — thought he’d wring a quick settlement out of his claim to own a piece of Facebook by virtue of a two-page contract Zuckerberg signed in 2003, boy did he think wrong. Facebook’s long-awaited motion to dismiss, finally filed Monday in federal court in Buffalo, asserts that Ceglia was out for an easy score based on a doctored version of the 2003 contract. But it’s not easy to put one over on Zuckerberg or his lawyers at Gibson, Dunn & Crutcher. Facebook’s 74-page dismissal motion is a virtual compendium of the tiny mistakes (alleged) frausters can make and the ways determined defendants can find them out.
Tenet Healthcare brought a gun to its knife fight with Community Health Systems. At the end of 2010, Community Health, the second-largest hospital operator in the United States, offered to acquire Tenet in what ended up as a $4.1 billion, all-cash bid. Tenet made the typical moves of hostile takeover targets, enacting a phalanx of defenses that included a bylaw amendment postponing its annual meeting by six months so shareholders couldn’t vote on Community’s proposed slate of directors. But that wasn’t all Tenet, the third-largest U.S. hospital operator, did. Its lawyers at Gibson, Dunn & Crutcher also filed a suit in federal court in Dallas that accused Community of bilking Medicaid and private insurers through unwarranted hospital admissions.
Goldman’s sweep for internal emails containing client insults like “muppet,” a scoop by my Reuters colleague Lauren LaCapra, got lots of well-deserved snark as the bank’s latest too-little-too-late response to Greg Smith’s “Why I Am Leaving Goldman Sachs” op-ed. In case you’re just returning from a vacation in Antarctica, which is pretty much the only way you could have avoided the financial world’s equivalent of Kim Kardashian’s divorce, Smith, a London-based Goldman executive director, said he was sick and tired of the bank’s callous treatment of its clients. “It’s purely about how we can make the most possible money off of them,” Smith wrote in the New York Times. “If you were an alien from Mars and sat in on one of these meetings, you would believe that a client’s success or progress was not part of the thought process at all.”
The Mississippi Public Employees Retirement System is not a professional securities class action plaintiff, according to U.S. District Judge William Alsup of San Francisco federal court. Late Tuesday, after a bruising fight between MissPERS and the New England Carpenters Guaranteed Annuity and Pension funds, Alsup appointed the Mississippi fund to lead a juicy securities class action against Diamond Foods. Alsup rejected arguments by the New England funds’ lawyers at Robbins Geller Rudman & Dowd that MissPERS had exceeded the statutory limit for lead counsel appointments.
Mortgage-backed securities investors who are convinced that banks intend to shift the cost of the $25 billion national mortgage settlement onto their shoulders are “evaluating their legal options,” according to Chris Katopis, executive director of the Association of Mortgage Investors (and a former clerk on the Federal Circuit Court of Appeals). The private investors, as I’ve reported, are outraged at the terms of the settlement, which sets no limit on the percentage of securitized mortgages the settling banks — Bank of America, JPMorgan Chase, Citigroup, Wells Fargo, and Ally Financial — are permitted to modify to reach their $17 billion target for reducing the principal balance owed by struggling borrowers. Mortgage-backed noteholders believe the deal terms encourage banks to write down investor-owned first liens, rather than second lien mortgages in bank-owned portfolios. That incentive, they say, shifts the cost of the deal from the banks to mortgage-backed bondholders.
When U.S. Senior District Judge Jed Rakoff rejected a $285 million settlement between Citigroup and the Securities and Exchange Commission last fall, he offered a stern rebuke to SEC lawyers who’d suggested his role was not to protect the public interest. “A court, while giving substantial deference to the views of an administrative body vested with authority over a particular area, must still exercise a modicum of independent judgment in determining whether the requested deployment of its injunctive powers will serve, or disserve, the public interest,” Rakoff wrote in his oft-quoted ruling. “Anything less would not only violate the constitutional doctrine of separation of powers but would undermine the independence that is the indispensible attribute of the federal judiciary.”
Bank of America really, really does not want CEO Brian Moynihan to sit for a deposition in bond insurer MBIA’s breach-of-contract case against Countrywide and BofA.