Dodona I, LLC v. Goldman, Sachs & Co.

296 F.R.D. 261, 2014 WL 300723, 2014 U.S. Dist. LEXIS 9681
CourtDistrict Court, S.D. New York
DecidedJanuary 23, 2014
DocketNo. 10 Civ. 7497(VM)
StatusPublished
Cited by7 cases

This text of 296 F.R.D. 261 (Dodona I, LLC v. Goldman, Sachs & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dodona I, LLC v. Goldman, Sachs & Co., 296 F.R.D. 261, 2014 WL 300723, 2014 U.S. Dist. LEXIS 9681 (S.D.N.Y. 2014).

Opinion

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Court-appointed lead plaintiff Dodona I, LLC (“Dodona”) brought this action on behalf of a putative class of investors in certain securities offerings led by-defendants Goldman, Sachs & Co. (“GS & Co”), The Goldman Sachs Group, Inc. (“Goldman”), and former Goldman employees Peter L. Ostrem (“Ostrem”) and Derryl K. Herrick (“Herrick”) (collectively, “Defendants”).1 The securities offerings at issue were two collateralized debt obligations (“CDOs”): Hudson Mezzanine Funding 2006-1 (“Hudson 1”) and Hudson Mezzanine Funding 2006-2 (“Hudson 2”) (collectively, the “Hudson CDOs”). Dodona alleges violations of federal securities laws; common law fraud; aiding and abetting fraud; fraudulent concealment; and unjust enrichment. Dodona’s allegations are detailed more fully in this Court’s prior opinion in this action. See Dodona I, LLC v. Goldman, Sachs & Co., 847 F.Supp.2d 624 (S.D.N.Y.2012) (“Dodona I”).

Dodona now moves, pursuant to Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”), to certify a class (the “Class” or “Proposed Class”) comprised of investors in the Hudson CDOs “who, from their initial offering through April 27, 2010, purchased or otherwise acquired the Hudson CDOs in the United States, and were damaged thereby.” (Pl.’s Mem. of Law in Supp. of Mot. for Class Cert., dated December 17, 2012 (“Pl.’s Mem.”), at 2, Dkt. No. 108.) Dodona also moves for its appointment as class representative and, pursuant to Rule 23(g) of the Federal Rules of Civil Procedure (“Rule 23(g)”), for appointment of Berger & Montague, P.C. (“B & M”) as counsel for the Class and Gusrae Kaplan Nusbaum, PLLC (“GKN”) as local counsel for the Class. (PL’s Mot. for Class Cert., dated December 17, 2012, at 2, Dkt. No. 107.)

The Court has reviewed the parties’ submissions regarding this matter2 and, for the reasons discussed below, the Court finds that the Proposed Class satisfies all of the requirements of Rule 23(a) and the pertinent requirements of Rule 23(b). This Class is subject to further adjustment or decertification if warranted as facts develop. Additionally, the Court finds that B & M and GKN satisfy the pertinent requirements of Rule 23(g). Accordingly, Dodona’s motion for class certification and appointment of class representative and class counsel is GRANTED.

I. BACKGROUND3

Dodona’s claims arise from its investment in the Hudson CDOs. The Hudson CDOs were each an example of a synthetic CDO, a financial instrument that “mimics” the cash flow of particular “referenced” assets which, in the case of the Hudson CDOs, were residential mortgage backed securities (“RMBS”). RMBS are, in turn, collateral-ized by pools of residential mortgages. Thus, the investors in the Hudson CDOs, like Dodona, were betting that the referenced [265]*265RMBS — and therefore the underlying residential mortgages — would perform well, and not experience negative credit events. See Dodona 1, 847 F.Supp.2d at 631.

Dodona’s claims against the Defendants are built upon allegations that Goldman, through its role in various aspects of the subprime mortgage market in the late 2000s, possessed information not yet available to the broader public demonstrating the deteriorating performance of subprime mortgages. In the years leading up to 2006, Goldman had bet heavily that residential mortgages would continue to do well; or, in financial parlance, Goldman was long on subprime mortgage-backed securities. By late 2006, Goldman officials had noticed an increase in negative credit events in subprime loans and recognized a corresponding need to reduce Goldman’s long exposure.

One way Goldman began offsetting sub-prime risk was by shorting RMBS and mortgage-backed CDOs — in other words, betting that subprime mortgages and the securities instruments built upon them would decrease in value. The Hudson 1 and Hudson 2 offerings occurred during this shift in Goldman’s strategy. The Hudson 1 offering commenced on December 5, 2006; Hudson 2 commenced on February 8, 2007. The Marketing Book for Hudson 1 reported that “Goldman ha[d] aligned incentives with the Hudson program by investing in a portion of equity.” (Am. Compl. ¶ 175, Dkt. No. 40.) In other words, Goldman was long on a portion of the equity notes. However, Goldman was also short on the entire value of the Hudson CDOs. A subsidiary of Goldman served as the sole credit protection buyer for both of the Hudson CDOs, meaning that if the referenced RMBS experienced a negative credit event, the subsidiary would receive an insurance payout.

Dodona purchased $3 million of Hudson 2 notes on approximately January 24, 2007 from GS & Co and $1 million of the Hudson 1 notes on approximately February 6, 2007 from an intermediate fund which had purchased its securities from GS & Co.

The credit quality of the Hudson CDOs rapidly deteriorated at the same time as the downturn of the housing market. By September 2007, Moody’s downgraded the credit rating of certain of the Hudson 1 notes and placed on “negative watch” certain of the Hudson 2 notes. By mid-2008, Standard & Poor’s had downgraded $286 million of the Hudson 2 notes, and the Hudson 1 notes were downgraded to junk status. As a result of those downgrades, the Goldman subsidiary, in its role as the credit protection buyer, would have received insurance payouts.

The fallout of the subprime crisis spurred regulatory and legislative investigation. In April 2011, the United States Senate Permanent Subcommittee on Investigations cited the Hudson CDOs among evidence that Goldman “issued and sold to clients RMBS and CDO securities containing or referencing high risk assets that Goldman Sachs wanted to get off its books,” and that Goldman’s strategic shorting allowed it to “profit[ ] from the loss in value of the very CDO securities it had sold to its clients.” {Id. ¶¶ 108, 52.)

Dodona alleges that the Defendants created the Hudson CDOs as part of a scheme to decrease Goldman’s subprime exposure at the expense of its investors by shorting those same CDOs; that Defendants failed to disclose this strategy to investors; and that Defendants failed to disclose that they did not reasonably believe that the Hudson CDOs would be profitable for investors like Dodona. Dodona claims it suffered damages when the Hudson CDO notes were liquidated and when it sold them at a loss.

Defendants moved to dismiss the complaint, and in the Dodona I decision, the Court denied in part and granted in part Defendants’ motions. Defendants filed answers, and GS & Co asserted two counterclaims against Dodona, one alleging breach of contract and the other fraudulent inducement. (Dkt. No. 81 ¶¶ 242-45, 247-57.) Do-dona now moves for certification of the Proposed Class, Dodona’s appointment as class representative, and for appointment of class counsel.

II. DISCUSSION

A. LEGAL STANDARD FOR CLASS CERTIFICATION

To certify the Proposed Class, Dodona must satisfy all four of the requirements of [266]*266Rule 23(a) and the relevant portions of Rule 23(b)(3).

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Bluebook (online)
296 F.R.D. 261, 2014 WL 300723, 2014 U.S. Dist. LEXIS 9681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodona-i-llc-v-goldman-sachs-co-nysd-2014.