Space Coast Credit Union v. Merrill Lynch, Pierce, Fenner & Smith Inc.

295 F.R.D. 540, 2013 WL 1131628, 2013 U.S. Dist. LEXIS 36882
CourtDistrict Court, S.D. Florida
DecidedMarch 18, 2013
DocketNo. 12-60430-CIV
StatusPublished
Cited by5 cases

This text of 295 F.R.D. 540 (Space Coast Credit Union v. Merrill Lynch, Pierce, Fenner & Smith Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Space Coast Credit Union v. Merrill Lynch, Pierce, Fenner & Smith Inc., 295 F.R.D. 540, 2013 WL 1131628, 2013 U.S. Dist. LEXIS 36882 (S.D. Fla. 2013).

Opinion

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon several dismissal motions filed by Defendants: Defendants Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities LLC (f/k/a Wachovia Capital Markets LLC), J.P. Morgan Securities Inc. (£/k/a Bear Stearns & Co., Inc.), UBS Securities LLC, and Barclays Capital Inc.’s Joint Motion to Dismiss [DE 58]; Corrected Motion to Dismiss Claims Against Merrill Lynch, Pierce, Fenner & Smith Incorporated [DE 69]; Defendant Wells Fargo Securities LLC’s Motion to Dismiss [DE 63]; Defendant J.P. Morgan Securities, LLC’s Supplemental Motion to Dismiss [DE 65]; UBS Securities LLC’s Motion to Dismiss Plaintiffs Complaint Pursuant to Rules 12(b)(6) and 9(b) [DE 60]; Defendant Barclays Capital Inc.’s Supplemental Memorandum of Law in Support of Its Motion to Dismiss [DE 59]; Defendant Moody’s Investors Service, Inc.’s Motion to Dismiss [DE 64]; and Defendant The McGraw-Hill Companies, Inc.’s Motion to Dismiss the Complaint [DE 57] (together, “Motions”). The Court has carefully reviewed the Motions and all related filings and is otherwise fully advised in the premises.1

I. Background

Eastern Financial Florida Credit Union (“Eastern”) formerly operated as a Florida state-chartered credit union. See DE 1-2 (Compl.) at 35, ¶ 11. Between December 2005 and July 2007, Eastern invested over $100 million in twelve collateralized debt obligations (“CDOs”) that were sold by five investment banks and their predecessors (“Bank Defendants”) and were assigned credit ratings by two nationally recognized rating agencies (“Agency Defendants”). See id. at 35-38, ¶¶ 12-16, 19-20, 23; id. at 74 (Ex. A).2 A CDO is a financial vehicle that [543]*543sells notes to investors and uses the proceeds to buy assets — here, primarily, residential mortgage-backed securities. See id. at 32, ¶ 3. The notes entitle investors to payments generated by the CDO’s assets. See id. at 38-39, ¶ 24. The notes issued by a CDO are not identical; they are divided into several tiers, or “tranches,” that carry different levels of credit risk, yield, and payment priority. See id. When Eastern bought the CDO notes from the Bank Defendants, the Agency Defendants had assigned those notes investment-grade credit ratings of “AA” or “A,” indicating a low risk of default. See id. at 42, ¶ 34; id. at 44-45, ¶39; id. at 74. The CDOs, however, “ultimately defaulted on principal and interest payments and are now worthless.” Id. at 64, ¶ 104.

In June 2009, Plaintiff Space Coast Credit Union (“Space Coast”), another Florida state-chartered credit union, acquired Eastern’s assets and liabilities through an emergency merger approved by the State of Florida. See DE 1-2 at 35, ¶ 11. On February 6, 2012, Space Coast filed this action against the Bank Defendants and Agency Defendants (collectively, “Defendants”) in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. See id. at 29-76. Space Coast’s Complaint “seeks to recover over $100 million in investment capital that [DJefendants’ CDOs wrongfully took from [PJlaintiff.” Id. at 32, ¶ 2. Space Cost alleges that Defendants engaged in six types of “systematic fraud in selling CDOs to [PJlaintiff’:

(a) First, [DJefendants used knowingly inflated, inaccurate and unreliable credit ratings to sell the rated CDOs to [PJlaintiff, and fraudulently omitted the fact that [Agency Defendant] S & P’s CDO ratings were the result of secret, out-of-model adjustments that S & P made to inflate its own ratings because its own models produced ratings on CDOs that were lower than its favored investment banking clients wanted;
(b) Second, [DJefendants used knowingly inflated, inaccurate and unreliable credit ratings to sell the rated CDOs to [PJlaintiff, and fraudulently omitted the fact that the rating agencies were rating CDOs on a “curve,” such that CDOs had inflated ratings relative to similar corporate and government issued bonds;
(c) Third, [DJefendants used knowingly inflated, inaccurate and unreliable credit ratings to sell the rated CDOs to [PJlaintiff, and fraudulently omitted the fact that the so-called “NRSRO” investment grade ratings assigned to CDOs were not even educated opinions but unreliable “guesses” based on unverified, inaccurate data;
(d) Fourth, [DJefendants fraudulently omitted the fact that they were mispricing CDO notes in the first quarter of 2007 in order to dump over-valued mortgage-related bonds off of their own balance sheets and onto investors, including [PJlaintiff; ...
(e) Fifth, [DJefendants fraudulently omitted the fact that secret “short sellers” — business people who wanted to make investments that would profit when CDOs failed — had warped CDOs’ assets, and their prices, during 2006 and 2007, in essence creating CDOs so that they would fail[; and]
(f) Sixth, [DJefendants used knowingly inflated, inaccurate and unreliable ratings to sell the rated CDOs to [PJlaintiff, and fraudulently omitted the fact that the “correlation” input used to make those CDOs and to rate the notes that [DJefendants sold to [PJlaintiff was inaccurate when [DJefendants used that “correlation” input. Among other reasons, one government study shows that this correlation input was inaccurate due to the fact that the NRSRO Agencies and the other [DJefendants were packing CDOs with the same securities over and over again.

Id. at 33-34, ¶ 5 (citations omitted). Based on these allegations, Space Coast asserts that the CDOs in which Eastern invested “collapsed due directly and proximately to [DJefendants’ fraud.” Id. at 65, ¶ 105. Space Coast pleads claims against Defendants for securities fraud under the Florida Securities and Investor Protection Act (“FSIPA”), Fla. Stat. § 517.301; common-law fraud; negligent misrepresentation; unjust enrichment; [544]*544and imposition of a constructive trust against the Bank Defendants. See DE 1-2 at 65-71.

On March 8, 2012, Defendants removed Space Coast’s action to this Court based on diversity jurisdiction. See DE 1 (Notice of Removal); 28 U.S.C. § 1332(a)(1). The Bank Defendants subsequently filed a Joint Motion to Dismiss, as well as separate dismissal motions for each Bank Defendant. See DE 58-60, 63, 65, 69. Both Agency Defendants also filed Motions to Dismiss. See DE 57, 64. Plaintiff responded to Defendants’ Motions, and Defendants replied. See DE 75, 82-88, 90. Further, the parties submitted various documents and caselaw in support of their arguments. The Motions are now ripe for decision.

II. Discussion

A. Pleading Standards

A plaintiffs complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).

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Cite This Page — Counsel Stack

Bluebook (online)
295 F.R.D. 540, 2013 WL 1131628, 2013 U.S. Dist. LEXIS 36882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/space-coast-credit-union-v-merrill-lynch-pierce-fenner-smith-inc-flsd-2013.