Sec. & Exch. Comm'n v. Goldstone

• Decision Date: 31 January 2017
• Docket Number: No. CIV 12–0257 JB/GBW,CIV 12–0257 JB/GBW
• Parties: SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. Larry A. GOLDSTONE; Clarence G. Simmons, III and Jane E. Starrett, Defendants.
• Court: U.S. District Court — District of New Mexico

233 F.Supp.3d 1149

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,

v.Larry A. GOLDSTONE; Clarence G. Simmons, III and Jane E. Starrett, Defendants.

No. CIV 12–0257 JB/GBW

United States District Court, D. New Mexico.

Signed January 31, 2017

Michael H. Hoses, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico and Stephen C. McKenna, Gregory A. Kasper, Dugan Bliss, Danielle Voorhees, Ian S. Karpel, Securities and Exchange Commission, Denver, Colorado, Attorneys for Plaintiff Securities and Exchange Commission

Robert Badal, Santa Barbara, California and Skye Lynn Perryman, Michael A. Lamson, April N. Williams, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, D.C. and Randall R. Lee, Aaron Thompson, Daniel Crump, Wilmer Cutler Pickering Hale & Dorr LLP, Los Angeles, California and Heather S. Tewksbury, Christopher W. Johnstone, Wilmer Cutler Pickering Hale & Dorr LLP, Palo Alto, California and Jerry L. Marks, Robert J. Liubicic, Elena Kilberg, Alisa Schlesinger, Paul M. Torres, Milbank, Tweed, Hadley & McCloy LLP, Los Angeles, California and Bruce D. Hall, Andrew G. Schultz, Melanie B. Stambaugh, Rodey, Dickason, Sloan, Akin, & Robb P.A., Albuquerque, New Mexico, Attorneys for Defendants Larry Goldstone, Clarence G. Simmons, III, and Jane E. Starrett

Peter J. Dennin, George A. Salter, Hogan Lovells US LLP, New York, New York and William Spencer Reid, Keleher & McLeod P.A., Albuquerque, New Mexico, Attorneys for Intervenor KPMG, LLP

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiff Securities and Exchange Commission's Motion in Limine to Exclude Argument or Evidence that the Defendants did not Violate Rule 13b2–2 as a Result of Providing the "Tie–Out Document" to KPMG, filed March 17, 2016 (Doc. 392)("Motion"). The Court held a hearing on May 11, 2016. The primary issue is whether the Court should allow the Defendants, Larry A. Goldstone, Clarence G. Simmons, III, and Jane E. Starrett,¹ to introduce evidence that, on February, 27, 2008, Thornburg Mortgage provided to its auditor, KPMG, LLC, a "Tie–Out Document," which constituted a schedule of margin calls that Thornburg Mortgage received in the two weeks before that date. The Court will allow the Defendants to introduce evidence related to the Tie–Out Document, because such evidence is not irrelevant to whether the Defendants violated rule 13b2–2 and because the danger of unfair prejudice does not substantially outweigh the Tie–Out Document's probative value. Accordingly, the Court denies the Motion.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint, filed March 13, 2012 (Doc. 1). The Court presents the facts solely to provide context for the Motion. It continues to adhere to the decisions on the facts that it reached in SEC v. Goldstone , No. CIV. 12-0257 JB/GBW, 2015 WL 5138242 (D.N.M. August 22, 2015) (Browning, J.)("Summary Judgment Opinion").

The Defendants are Thornburg Mortgage officers: Goldstone was the chief executive officer, Simmons was the chief financial officer, and Starrett was the chief accounting officer. See Complaint ¶ 1, at 1. The SEC alleges that the Defendants were involved in fraudulent misrepresentations and omissions made in connection with the 2007 Form 10–K.² See Complaint ¶¶ 1–3, at 1–2. The SEC asserts that the Defendants misled and withheld important financial information from Thornburg Mortgage's outside auditor, KPMG, LLP, such as the impending collapse of a large European hedge fund that held mortgage-backed securities ("MBS") similar to the Thornburg Mortgage's adjustable rate mortgage ("ARM") securities.³ Complaint ¶¶ 76–79, at 22.

Thornburg Mortgage was a publicly traded single-family mortgage lender and real estate investment trust, founded in 1993, headquartered in Santa Fe, New Mexico, and was once the second-largest independent mortgage company in the United States of America after Countrywide Financial Corporation. See Complaint ¶ 2, at 1; id. ¶ 20, at 7. During the time relevant to the Complaint's allegations, Thornburg Mortgage's shares were traded on the New York Stock Exchange. See Complaint ¶ 20, at 7. Thornburg Mortgage's lending operations focused on "jumbo" and "super-jumbo"⁴ ARM securities; Thornburg Mortgage also purchased ARM securities that third parties originated. See Complaint ¶ 21, at 7. Thornburg Mortgage used most of its earnings to pay dividends, and obtained financing for its mortgage and investment business through reverse repurchase agreements⁵ which ARM securities backed. See Complaint ¶ 3, at 2.

Thornburg Mortgage's reverse repurchase agreements "typically consisted of a simultaneous sale of pledged securities to a lender at an agreed price in return for Thornburg Mortgage's agreement to repurchase the same securities at a future date (the maturity date) at a higher price." Complaint ¶ 22, at 7–8. The reverse repurchase agreements required Thornburg Mortgage to maintain a certain degree of liquidity and subjected Thornburg Mortgage to margin calls if the value of the ARM securities serving as collateral on the agreements fell below a specified level. See Complaint ¶ 22, at 8. A margin call would generally require Thornburg Mortgage to pay cash to reduce its loan amount or to pledge additional collateral to the lender, either on the same day that Thornburg Mortgage received the margin call or on the following day, unless the parties agreed otherwise. See Citigroup Global Markets, Inc. as Intermediating Agent for Citigroup Global Markets Limited and [Counterparty] Thornburg Mortgage, Inc., International Securities Lenders Association ISLA Global Master Securities Lending Agreement § 5.8, at 11, filed May 21, 2012 (Doc. 37–6) (brackets in original); Master Repurchase Agreement Between Greenwich Capital Markets, Inc., and Thornburg Mortgage, Inc. § 4(c) at 5, filed July 20, 2012 (Doc. 60–2); id. at § 11(a), at 7–8; Master Repurchase Agreement Between Credit Suisse First Boston Corporation and Thornburg Mortgage Asset Corporation § 4(c), at 4, filed July 20, 2012 (Doc. 60–3); id. at § 11(a), at 7; Complaint ¶ 23, at 8. Thornburg Mortgage's failure to timely meet a margin call was an event of default and allowed a lender to declare Thornburg Mortgage in default, which would trigger cross-defaults on Thornburg Mortgage's other reverse repurchase agreements, and all lenders with whom Thornburg Mortgage had defaulted were then allowed to seize and to sell the ARM securities collateralizing Thornburg Mortgage's loans. See Complaint ¶ 24, at 8. Receiving margin calls was part of Thornburg Mortgage's normal course of business, as the value of its ARM securities often fluctuated. See Complaint ¶ 25, at 8.

Citigroup Global Markets, Inc.'s margin call on February 21, 2008, was the largest of the three margin calls that Thornburg Mortgage could not immediately meet—$196 million. See Complaint ¶ 33, at 10. In response to Thornburg Mortgage's inability to meet the Citigroup Global margin call on February 21, 2008, Citigroup Global sent a letter to Goldstone and Simmons, stating that Thornburg Mortgage had breached the parties' reverse repurchase agreement and reserving Citigroup Global's right to declare Thornburg Mortgage in default. See Complaint ¶ 3, at 2; id. ¶ 34, at 10–11 (citing Letter from Stephen G. Malekian to Thornburg Mortgage, Inc., Re: The Global Master Securities Lending Agreement dated as of September 20, 2007 Between Citigroup Global Markets, Inc. as Intermediating Agent for Citigroup Global Markets Limited and Together with Citigroup Global Markets, Inc. and Thornburg Mortgage (dated Feb. 21, 2008), filed May 21, 2012 (Doc. 37–7)("Citigroup Global Letter")). Citigroup Global made clear that, although Citigroup Global was not exercising its rights under the reverse repurchase agreement, it was not waiving its right to declare Thornburg Mortgage in default or to amend the underlying reverse repurchase agreement. See Complaint ¶ 34, at 11. In an email from Goldstone to Simmons, Starrett, and others, dated February 21, 2008, Goldstone stated that he had negotiated a "payment plan with Citigroup Global in order to satisfy the call by the end of [the following] week[.]" Complaint ¶ 61, at 18 (alterations in original)(quoting Email from Clay Simmons to Nyira Gitana, Subject: FW: TMA Update at 2 (sent February 21, 2008, at 9:30 a.m.), filed May 21, 2012 (Doc. 37–10)). Thornburg Mortgage paid the Citigroup Global margin call over seven days and made the final payment of seventy-five million dollars on February 27, 2008. See Complaint ¶ 35, at 11.

In the last week of February, 2008, Thornburg Mortgage had to sell the interest-only portions of its ARM loans ("I/O Strip Transactions") to generate sufficient cash to meet the margin calls it received in the second half of the month. Complaint ¶ 36, at 11. The I/O Strip Transactions further depleted Thornburg Mortgage's liquidity to meet margin calls. See Complaint ¶ 36, at 11. In an email from Goldstone to Simmons and Starrett on February 22, 2008, Goldstone informed them of some of Thornburg Mortgage's plans to raise liquidity to meet margin calls: " ‘Citi sold two of [Thornburg Mortgage's] IO securities^{[6 ]} as well for a gain of approximately $25 million and net proceeds to Citi of $10 million.’ " Complaint ¶ 67, at 19–20 (alteration in original)(quoting Email from Larry Goldstone to Garret Thornburg, Anne Anderson, David Ater, Eliot Cutler, Francis Mullin III, Ike Kalangis, Michael Jeffers, Owen Lopez, and Stuart Sherman, Subject: TMA Update—Friday Morning, February 22 at 2 (sent February 22, 2008 at 8:42 a.m.), filed May 21, 2012 (Doc. 37–8 at 2)("Feb. 22, 2008, Email")). In an email sent February 25, 2008, Goldstone informed Simmons and Starrett that Thornburg Mortgage was " ‘moving towards resolving [its] margin issues' " through, among other strategies, having " ‘sold some additional IO securities[.]’ " Complaint ¶ 68, at 20 (quoting...