Federal Housing Finance Agency v. HSBC North America Holdings Inc.

987 F. Supp. 2d 369, 2013 WL 6480445, 2013 U.S. Dist. LEXIS 175287
CourtDistrict Court, S.D. New York
DecidedDecember 10, 2013
DocketNos. 11 Civ. 6189 (DLC), 11 Civ. 6190 (DLC), 11 Civ. 6192 (DLC), 11 Civ. 6193 (DLC), 11 Civ. 6195 (DLC), 11 Civ. 6198 (DLC), 11 Civ. 6200 (DLC), 11 Civ. 6201 (DLC), 11 Civ. 6202 (DLC), 11 Civ. 6203 (DLC), 11 Civ. 6739 (DLC), 11 Civ. 7010 (DLC)
StatusPublished
Cited by3 cases

This text of 987 F. Supp. 2d 369 (Federal Housing Finance Agency v. HSBC North America Holdings Inc.) 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
Federal Housing Finance Agency v. HSBC North America Holdings Inc., 987 F. Supp. 2d 369, 2013 WL 6480445, 2013 U.S. Dist. LEXIS 175287 (S.D.N.Y. 2013).

Opinion

OPINION & ORDER

DENISE COTE, District Judge:

Before the Court is an August 13, 2013 motion for partial judgment on the pleadings under Rule 12(c), Fed.R.Civ.P., filed by certain of the individual defendants in these actions. The motion requires the Court to decide whether the SEC radically altered Section 11 liability for individuals who sign registration statements in the context of the shelf registration process when the SEC promulgated Rule 430B in 2005. For the following reasons, the Court concludes that Rule 430B made no such fundamental changes and that motion must be denied.

BACKGROUND

These actions involve alleged misrepresentations in the offering materials for residential mortgage backed securities purchased by Fannie- Mae and Freddie Mac (collectively, the “GSEs”) between 2005 and 2007.1 ■ The securities at issue consisted of certificates issued by a trust that were backed by pools of underlying mortgages and entitled the owners to income in the form of payments on those mortgages. The value of the certificates thus depended on the ability of mortgagors to repay the loan principal and interest and the adequacy of the collateral in the event of default. FHFA v. UBS Americas, Inc., 858 F.Supp.2d 306, 312 (S.D.N.Y.2012).

The certificates purchased by the GSEs were issued pursuant to shelf registration statements filed with the Securities and Exchange Commission (“SEC”), prospectuses, and prospectus supplements that together constitute the “offering documents” for each security. The alleged misrepresentations at the heart of these cases concerned the creditworthiness of. the borrowers and the quality of the collateral underlying the certificates and were made in the prospectus supplements; the original registration statements contained only a base prospectus with generic information about future offerings. FHFA v. UBS Americas, Inc., No. 11 Civ. 520(DLC), 2012 WL 2400263, at *4 (S.D.N.Y. June 26, 2012). The information that was material to investors “was only provided at the time that each securitization was marketed to the public — in the form of lengthy prospectus supplements that purported to convey in detail the soundness of the underlying assets.” Id. at *5.

The defendants in these cases include various corporate entities that played different roles in the securitization process as well as individuals whom FHFA alleges are liable as a “control person” under Section 15 of the Securities Act of 1933, 15 U.S.C. § 77o, or as directors or signing [373]*373officers under Section 11 of the Securities Act. 15 U.S.C. § 77k(a). The instant motion for judgment on the pleadings, which was fully submitted on September 6, is brought by certain individual defendants who signed the relevant shelf registration statements but did not sign the prospectus supplements (the “Individual Defendants”). The Individual Defendants argue that they cannot be liable under Section 11 for misstatements contained in the prospectus supplements.

DISCUSSION

Shelf registration is a process by which securities can be registered to be offered or sold on a delayed or continuous basis. The purpose of shelf registration is to afford the issuer the “procedural flexibility” to vary “the structure and terms of securities on short notice” and “time its offering to avail itself of the most advantageous market conditions.” Shelf Registration, SEC Release No. 6499, 1983 WL 408321, at *4 (Nov. 17, 1983) (“SEC Rel 6499”); see In re WorldCom, Inc. Sec. Litig., 346 F.Supp.2d 628, 667 (S.D.N.Y.2004).

As a general matter, the registration statement for a new securities offering must include a copy of the prospectus -that will be used to market the securities for sale to the public. 17 C.F.R. § 230.404. In order to satisfy Section 10(a) of the Securities Act, 15 U.S.C. § 77j(a), the prospectus must make detailed disclosures about the securities at issue and, in the case of asset-backed securities, the underlying asset pools. See Regulation S-K, 17 C.F.R. § 229.10 et seq.; Regulation AB, 17 C.F.R. § 229.1100 et seq.; see also In re WorldCom, 346 F.Supp.2d at 658.

The shelf registration process allows certain would-be issuers to file a generic registration statement with the SEC that omits the type of detailed information that must generally be disclosed to purchasers. 17 C.F.R. §§ 230.409, 230.415, 230.430A. A qualified registrant commits that, at the time of any offering, it will have made the omitted disclosures in some form or another, including by filing a post-effective amendment to the registration statement, filing a prospectus supplement with the SEC, or filing an annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act. See 17 C.F.R. § 229.512. Once this “shelf registration statement” becomes effective, the issuer can take the registration statement “off the shelf,” make the required supplemental disclosures, and use the shelf registration statement to issue securities whenever it chooses, without the need for further SEC action. Thus, as in this case, a single shelf registration statement may be used for a series of offerings. SEC Rel. 6499, 1983 WL 408321, at. *4.

In 2005, the SEC promulgated Rule 430B, which among other things broadened the category of disclosures that can be made in prospectus supplements rather than post-effective amendments to registration statements. See 17 C.F.R. § 230.430B; FHFA v. UBS, 2012 WL 2400263, at *4 (“Rule 430B permits issuers to make disclosures by prospectus supplement that previously would have required a post-effective amendment to the registration statement'.... ”). In a motion to dismiss filed in 2012 in one of these coordinated actions, certain defendants argued that FHFA’s claims were time-barred because the effective dates of the certificates at issue were the dates of the underlying registration statements, not the dates they were actually marketed to the public. See FHFA v. UBS, 2012 WL 2400263, at *1. The Court rejected this argument, noting that Rule 430B did not change the rule that “[a] filing that represents a fundamental change in the information set forth in [374]*374the registration statement has always been deemed to restart the clock on Section 11 claims.” Id. at *4 (citation omitted). Because the prospectus supplements at issue in these cases were plainly “fundamental changes” to the information contained in the registration statements, the Court held, they triggered new Securities Act liability periods. Id. at *5.

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Cite This Page — Counsel Stack

Bluebook (online)
987 F. Supp. 2d 369, 2013 WL 6480445, 2013 U.S. Dist. LEXIS 175287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-housing-finance-agency-v-hsbc-north-america-holdings-inc-nysd-2013.