In a May 11, 2011 opinion (here), a three-judge panel of the Second Circuit affirmed the dismissal of rating agency defendants in litigation filed under the Securities Act of 1933 and involving mortgage-related securities issues by Lehman Brothers and IndyMac and the Residential Asset Securitization Trust (RUST). The Second Circuit affirmed the District Court's rulings that the credit rating agencies could not be held liable under Section 11 of the '33 Act as "underwriters" - even if they helped structure the securities at issue.
The plaintiffs were purchasers of mortgage backed securities. The plaintiffs generally alleged that the originators of the loans that backed the securities failed to comply with the general loan underwriting guidelines described in the offering documents. The plaintiffs allege that the rating agencies determined the composition of the loans in the mortgage pool that the instruments securitized. The plaintiffs also allege that the credit enhancements supporting the loans were insufficient to support the investment ratings the rating agencies gave the securities.
The plaintiffs premised their securities liability claims against the rating agencies based on their argument that the rating agencies were "underwriters" within the meaning of Section 11 of the '33 Act. The plaintiffs based their theory that the rating agencies were "underwriters" on the argument that the "underwriter" liability extends to those "who engaged in steps necessary for the distribution." Plaintiffs argued that because the rating agencies structured the certificates at issue to achieve the desired ratings, that had performed a necessary predicated for the securities' distribution in the market, and therefore they should be liable as underwriters.
In separate rulings on February 1 and February 17, 2010, Southern District of New York Lewis Kaplan granted the rating agency defendants' motions to discuss in the Lehman Brothers Mortgage Backed Securities lawsuit, as discussed here and here. Judge Kaplan relied on his ruling s in the Lehman Brothers case to granting the rating agency defendants' dismissal motions in the IndyMac and RUST cases. The plaintiffs' appealed. Because the separate cases raised similar issues, the appeals were consolidated before the Second Circuit.
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Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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