Intesa Sanpaolo v. Credit Agricole Corporate & Investment Bank

924 F. Supp. 2d 528, 2013 WL 525000
CourtDistrict Court, S.D. New York
DecidedFebruary 13, 2013
DocketNo. 12 Civ. 2683(RWS)
StatusPublished
Cited by10 cases

This text of 924 F. Supp. 2d 528 (Intesa Sanpaolo v. Credit Agricole Corporate & Investment Bank) 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
Intesa Sanpaolo v. Credit Agricole Corporate & Investment Bank, 924 F. Supp. 2d 528, 2013 WL 525000 (S.D.N.Y. 2013).

Opinion

OPINION

SWEET, District Judge.

Plaintiff Intesa Sanpaolo, S.p.A., (“Intesa” or “Plaintiff’) filed an amended complaint on June 22, 2012, (the “FAC”) asserting federal securities fraud claims and state law claims for fraud, aiding and abetting fraud and civil conspiracy against the following defendants: (i) Credit Agricole Corporate and Investment Bank and Credit Agricole Securities (U.S.A.) Inc. (collectively, “Calyon”1); (ii) The Putnam Advisory Company, LLC (“Putnam”); and (iii) Magnetar Capital LLC, Magnetar Financial LLC and Magnetar Capital Fund, LP (collectively, “Magnetar”, and along with Calyon and Putnam, “Defendants”).

The Defendants now move, pursuant to Fed.R.Civ.P. 9(b) (“9(b)”) and 12(b)(6) (“12(b)(6)”), to dismiss the FAC. Upon the conclusions set forth below, the Defendants’ motions to dismiss are granted with leave to replead within 20 days.

BACKGROUND

This action arises, like a host of others in recent years, from the ashes of a failed collateralized debt obligation (“CDO”) that was backed by residential mortgage-backed securities (“RMBS”) and their synthetic equivalents. Actions of this type frequently have involved claims that investors were misled as to the probability of a CDO’s failure. In this case, however, the allegation is not that the chances of success were less than promised, but rather that there was simply no chance of success whatsoever.

Intesa alleges that a CDO named Pyxis ABS CDO 2006-1 (“Pyxis”) — in which Intesa made what was effectively a $180 million investment — was purposefully designed to fail. According to Intesa, the defendants conspired to fill Pyxis’ portfolio with assets that were certain to default, thereby sealing Pyxis! fate from the moment of its inception. Intesa contends that the defendants conspired to mislead prospective investors such as Intesa into believing that Pyxis’ collateral would be selected by an independent collateral man7 ager acting in good faith in the best interests of those betting on Pyxis’ success. The reality, according to Intesa, is that collateral was being selected by a secretive hedge fund called Magnetar that was betting heavily against Pyxis’ success, and therefore had every incentive to design Pyxis to fail.

Shortly after Intesa invested in Pxyis, the CDO’s constituent collateral began to falter, which in turn caused Pyxis to de[531]*531fault on payments to its noteholders. As a result, Intesa lost the entirety of its $180 million investment.

PRIOR PROCEEDINGS

Intesa filed its initial complaint on April 6, 2012. The Defendants filed motions to dismiss on June 1, 2012, after which Intesa voluntarily withdrew its complaint. On June 22, 2012, Intesa filed the FAC, which asserted the same causes of action against virtually the same set of defendants,2 but contained additional allegations and documentary evidence in support of Intesa’s claims.

THE FAC

The allegations in the FAC are presumed to be true for the purpose of ruling on the motions to dismiss, see USAA Cas. Ins. Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103, 105 n. 4 (2d Cir.2012), and are described below.

In early 2005, the market for CDOs, and in particular for CDOs backed by RMBS, was booming.3 FAC ¶ 40. The demand for CDOs produced an extremely lucrative revenue stream for investment banks who acted as the arrangers and underwriters, essentially coordinating the CDOs’ creation and getting paid handsomely to do so. Id. At that time, Calyon, a French investment bank, found itself lagging behind its competitors in terms of CDO market share, and Calyon’s management set a corporate goal to erase this disparity and rise to the top of the CDO market. Id. ¶¶ 40-41.

Calyon’s goal proved difficult to achieve, however, as 2006 saw default rates on sub-prime mortgages begin to rise, which in turn made potential investors skittish about purchasing the lowest tranches and equity tranches of CDOs, which were the most subordinate and therefore riskiest.4 Id. ¶ 43. Without investors willing to gamble on the risky tranches, opportunities for CDO production quickly dried up, and Calyon’s efforts to make headway in the CDO market were frustrated. Id.

There was, however, a notable exception to the overall lack of desire to purchase the riskiest CDO securities — Magnetar, a new but rapidly growing hedge fund. Id. ¶¶ 41-48. In 2006 and 2007, while the rest of the investment world turned its back on these investments, Magnetar invested in the low tranches and/or equity for CDO after CDO. Id. While this behavior may have appeared on its face to be a significant gamble, according to Intesa it was anything but. See id. In fact, Magnetar’s willingness to invest in securities that the rest of world viewed as toxic was a crucial piece of a scheme (the “Magnetar Scheme”) through which Magnetar increased its assets under management by [532]*532600% (from $1.5 billion to $9 billion) in the span of just two years. Id.

The Magnetar Scheme operated as follows: (1) Magnetar would approach an investment bank and propose the creation of a CDO, and would offer to purchase the riskiest tranche itself, and also to pay above-market fees to both the investment bank (who would be the CDO’s “arranger”) and the CDO’s collateral manager for their services; (2) in return, Magnetar would demand that the arranger and collateral manager permit Magnetar to secretly control the collateral selection process for the CDO’s portfolio, while publicly representing that the collateral was being selected by the putatively independent collateral manager in the best interests of the CDO’s investors; (3) Magnetar would use its control over the collateral selection to fill the CDO with assets that it knew were on their way to defaulting (oftentimes these were securities from other built-to-fail CDOs orchestrated by Magnetar, as was the case with Pyxis, see FAC ¶ 101); (4) at the same time, Magnetar would accumulate short positions on the CDO (essentially bets against the CDO’s success) by engaging in credit-default swaps (“CDS”) that referenced the CDO’s various tranches of securities, eventually ending up with a net short position on the CDO that was several multiples the size of its equity investment; (5) the CDO’s assets, handpicked by Magnetar, would quickly begin to fail as intended, and within a short period even the supposedly safe tranches of notes would experience credit events (ie., would default on their payments to the noteholders), and the CDO would soon collapse entirely; (6) though Magnetar would lose much, if not all, of its equity investment, it would earn many times that amount through its bets against the CDO; (7) Magnetar would walk away with a massive profit and the arranger and collateral manager would earn healthy fees, while those who had invested in the CDO would be left empty-handed. See FAC ¶¶ 44-53.

Pyxis was one of the CDOs that Magnetar used as a vehicle to perpetrate the Magnetar Scheme. Magnetar found a willing arranger in Calyon, which grasped the opportunity to grow its underperforming CDO business and earn the generous fees proposed by Magnetar. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
924 F. Supp. 2d 528, 2013 WL 525000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/intesa-sanpaolo-v-credit-agricole-corporate-investment-bank-nysd-2013.