In re Lehman Bros. Mortgage–backed Sec. Litigationwyoming State Treasurer
| Decision Date | 11 May 2011 |
| Docket Number | 10–0898–cv,10–1288–cv.,Docket Nos. 10–0712–cv |
| Citation | 650 F.3d 167 |
| Parties | In re LEHMAN BROTHERS MORTGAGE–BACKED SECURITIES LITIGATIONWyoming State Treasurer, Wyoming Retirement System, Plaintiffs–Appellants,Police and Fire Retirement System of the City of Detroit, Individually, Police and Fire Retirement System of the City of Detroit, on Behalf of All Others Similarly Situated, Plaintiffs,v.Moody's Investors Service, Inc., The McGraw–Hill Companies, Inc., Fitch Inc., Defendants–Appellees,Indymac MBS, Incorporated, Residential Asset Securitization Trust 2006–A5CB, Indymac INDX Mortgage Loan Trust 2006–AR9, Indymac INDX Mortgage Loan Trust 2006–AR11, Indymac INDX Mortgage Loan Trust 2006–AR6, Residential Asset Securitization Trust 2006–A6, Residential Asset Securitization Trust 2006–A7CB, Indymac INDX Mortgage Loan Trust 2006–AR13, Indymac INDX Mortgage Loan Trust 2006–1, Indymac Home Equity Mortgage Loan Asset–Backed Trust, Series 2006–H2, Indymac INDX Mortgage Loan Trust 2006–AR21, Residential Asset Securitization Trust 2006–A8, Indymac INDX Mortgage Loan Trust 2006–AR19, Indymac INDZ Mortgage Loan Trust 2006–AR1, Indymac INDX Mortgage Loan Trust 2006–AR23, Residential Asset Securitization Trust, Indymac INDX Mortgage Loan Trust 2006–AR12, Indymac INDX Mortgage Loan Trust 2006–AR25, Indymac INDX Mortgage Loan Trust 2006–R1, Residential Asset Securitization Trust 2006–A11, Indymac INDA Mortgage Loan Trust 2006–AR2, Indymac INDX Mortgage Loan Trust 2006–AR27, Indymac Home Equity Mortgage Loan Asset–Backed Trust, Series 2006–H3, Residential Asset Securitization Trust 2006–A12, Indymac INDX Mortgage Loan Trust 2006–AR29, Indymac INDX Mortgage Loan Trust 2006–AR31, Indymac INDX Mortgage Loan Trust 2006–FLX1, Residential Asset Securitization Trust 2006–A13, Residential Asset Securitization Trust 2006–A13, Residential Asset Securitization Trust 2006–R2, Indymac INDA Mortgage Loan Trust 2006–AR3, Indymac INDX Mortgage Loan Trust 2006–AR14 (and 5 Additional Grantor Trusts for the Class 1–A1A, Class 1–A2A, Class 1–A3A, Class 1–A3B And Class 1A4A Certificates, to be Established by the Depositor), Residential Asset Securitization Trust 2006–A14CB, Indymac INDX Mortgage Loan Trust 2006–AR33, Residential Asset Securitization Trust 2006–A15, Indymac INDX Mortgage Loan Trust 2006–AR35, Indymac INDX Mortgage Loan Trust 2006–AR37, Residential Asset Securitization Trust 2006–A16, Indymac INDX Mortgage Loan Trust 2006–AR41, Indymac INDX Mortgage Loan Trust 2006–AR39, Residential Asset Securitization Trust, Indymac INDX Mortgage Loan Trust, Indymac INDA Mortgage Loan Trust 2007–AR1, Residential Asset Securitization Trust 2007–A1, Indymac INDX Mortgage Loan Trust 2007–FLX1, Residential Asset Securitization Trust 2007–A2, Indymac INDX Mortgage Loan Trust 2007–AR1, Indymac INDX Mortgage Loan Trust 207–FLX2, Residential Asset Securitization Trust 2007–A3, Indymac INDA Mortgage Loan Trust, Indymac INDX Mortgage Loan Trust 2007–AR5, Residential Asset Securitization Trust 2007–A5, Indymac INDX Mortgage Loan Trust 2007–AR7, Indymac INDX Mortgage Loan Trust 2007–AR9, Indymac INDA Mortgage Loan Trust 2007–AR2, Indymac INDX Mortgage Loan Trust 2007–FLX3, Indymac INDX Mortgage Loan Trust 2007–AR11, Residential Asset Securitization Trust 2007–A6, Indymac IMSC Mortgage Loan Trust 2007–F1, Residential Asset Securitization Trust 2007–A7, Indymac INDX Mortgage Loan Trust 2007–AR13, Indymac INDA Mortgage Loan Trust 2007–AR3, Indymac INDX Mortgage Loan Trust 2007–FLX4, Indymac IMJA Mortgage Loan Trust 2007–A1, Indymac IMJA Mortgage Loan Trust, John Olinski, Blair S. Abernathy, Raphael Bostic, Samir Grover, Simon Heyrick, Victor H. Woodworth, Banc of America Securities LLC, J.P. Morgan Securities Inc., as Successor–in–Interest to Bear, Stearns Company, Inc., Citigroup Global Markets Inc., Country Wide Securities Corporation, Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Deutsche Bank National Trust Company, Goldman, Sachs & Company, Greenwich Capital Markets, Incorporated, HSBC Securities (USA) Inc., Indymac Securities Corporation, J.P. Morgan Securities, Inc., Lehman Brothers Inc., Bank of America Corporation, as Successor–in–Interest to Merrill Lynch, Pierce, Fenner & Smith, Inc., Morgan Stanley & Company, Incorporated, UBS Securities LLC, Fitch Ratings, JPMorgan Chase & Co., RBS Securities, Inc., UBS Securities LLC, Michael Perry, Defendants,Lynette Antosh, Indymac INDX Mortgage Loan Trust Series 2006–AR14, Indymac INDX Mortgage Loan Trust Series 2006–AR2, Indymac INDX Mortgage Loan Trust Series 2006–AR15, Indymac INDX Mortgage Loan Trust Series 2006–AR4, Indymac INDX Mortgage Loan Trust Series 2006–AR7, Indymac Residential Mortgage Backed Trust Series 2006–L2, Indymac Residential Asset Backed Trust Series 2006–D, Bank of America Corporation, Successor–in–Interest to Countrywide Securities Corporation, Fitch Rating Limited, Consolidated–Defendants.Vaszurele Limited, Lead Plaintiff–Appellant,Vasili Tsereteli, Individually and on Behalf of All Others Similarly Situated, Plaintiff,v.Moody's Investors Service, Inc., The McGraw Hill Companies, Inc., Defendants–Appellees,Residential Asset Securitization Trust 2006–A8, Credit Suisse Securities (USA) LLC, Defendants.* |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Joel P. Laitman, Cohen Milstein Sellers & Toll PLLC, New York, N.Y. (Michael B. Eisenkraft, Daniel B. Rehns, Kenneth M. Rehns, Cohen Milstein Sellers & Toll PLLC, New York, NY; Steven J. Toll, Joshua S. Devore, Matthew B. Kaplan, S. Douglas Bunch, Cohen Milstein Sellers & Toll PLLC, Washington, D.C., on the brief), for Lead Plaintiff–Appellant Locals 302 & 612 of the International Union of Operating Engineers—Employers Construction Industry Retirement Trust and Plaintiffs–Appellants New Jersey Carpenters Health Fund and Boilermakers–Blacksmith National Pension Trust.Joseph J. Tabacco, Jr., Berman DeValerio, San Francisco, CA (Patrick T. Egan, Berman DeValerio, Boston, MA, on the brief), for Plaintiffs–Appellants Wyoming State Treasurer and Wyoming Retirement System.Lester L. Levy, Wolf Popper LLP, New York, NY, for Lead Plaintiff–Appellant Vaszurele Limited.Floyd Abrams (S. Penny Windle (admission pending), Adam Zurofsky, Tammy L. Roy, on the brief), Cahill Gordon & Reindel LLP, New York, NY, for Defendant–Appellee The McGraw Hill Companies, Inc.James J. Coster (Joshua M. Rubins, Glenn C. Edwards, on the brief), Satterlee Stephens Burke & Burke LLP, New York, NY, for Defendant–Appellee Moody's Investors Service, Inc.Andrew J. Ehrlich (Martin Flumenbaum, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Defendant–Appellee Fitch, Inc.Before: FEINBERG, CABRANES, and RAGGI, Circuit Judges.REENA RAGGI, Circuit Judge:
Because these three appeals raise common questions of law, we dispose of them in a single opinion. Plaintiffs, Locals 302 & 612 of the International Union of Operating Engineers—Employers Construction Industry Retirement Trust (“Operating Engineers”), New Jersey Carpenters Health Fund, and Boilermakers–Blacksmith National Pension Trust (collectively, “Union Plaintiffs”); Wyoming State Treasurer and Wyoming Retirement System (collectively, “Wyoming”); and Vaszurele Limited (“Vaszurele”), appeal from judgments of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ) entered on February 5, 2010, and February 17, 2010, dismissing their class-action complaints seeking to hold defendants, The McGraw Hill Companies, Inc. (“McGraw Hill”), through its subsidiary Standard & Poor's (“S & P”), Moody's Investors Service, Inc. (“Moody's”), and/or Fitch, Inc. (“Fitch”) (collectively, “Rating Agencies”), liable as underwriters or control persons for misstatements or omissions in securities offering documents in violation of §§ 11 and 15 of the Securities Act of 1933 (“1933 Act”). See 15 U.S.C. §§ 77k(a)(5), 77 o (a). Plaintiffs submit that the Rating Agencies are “underwriters” as defined by 15 U.S.C. § 77b(a)(11) because they helped structure securities transactions to achieve desired ratings. The Union Plaintiffs and Wyoming also submit that the Rating Agencies' alleged provision of advice and direction to primary violators regarding transaction structures makes the agencies liable as “control persons.” Id. § 77 o (a). Finally, plaintiffs charge the district court with abuse of discretion in implicitly denying their requests to amend.
We reject these arguments as without merit.
I. Background
On appeal, we assume the truth of the facts alleged in plaintiffs' complaints. See, e.g., In re NYSE Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir.2007).
In the period from 2005 to 2007, plaintiffs and similarly situated persons purchased approximately $155 billion worth of mortgage pass-through certificates registered with the Securities and Exchange Commission (“SEC”) entitling them to distributions from underlying pools of mortgages. To create such certificates, a “sponsor” originates or acquires mortgages. Next, the loans are sold to a “depositor” that securitizes the loans—meaning, in effect, that the depositor secures the rights to cash flows from the loans so that those rights can be sold to investors. The loans are then placed in issuing trusts, which collect the principal and interest payments made by the individual mortgage borrowers and, in turn, pay out distributions to the purchasers of the mortgage pass-through certificates. Finally, different risk levels, or “tranches” of risk, are created by using various types of credit enhancement, such as subordinating lower tranches to absorb losses first, overcollateralizing the loan pools in excess of the bond amount, or creating an excess spread fund to cover the difference between the interest collected from borrowers and amounts owed to investors.1 Each tranche is denominated by a credit...
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