The SEC's suit against Goldman Sachs has people wondering whether other banks committed the same conduct with which the SEC has charged Goldman -- that is, structuring piles of debt they secretly knew would fail and then pitching those piles of debt to investors.
Well, it turns out that Quinn, Emanuel, Urquhart & Sullivan, representing a Dutch bank, alleged almost a year ago that Merrill Lynch did something similar in creating an investment fund nicknamed Norma. The Dutch client, Rabobank, sued Merrill in New York state trial court, and the Quinn team representing the bank filed papers last week in which they claimed the SEC's charges against Goldman "bear directly" on Merrill's conduct in the Norma matter, according to The Am Law Litigation Daily (paid registration required), one of our sibling publications. Playing the role of Paulson & Co. in the Merrill transaction: the hedge fund Magnetar Capital, which, Rabobank alleges, "cooperated" with Merrill in structuring the doomed investment fund and then bet against it. Rabobank claims Merrill falsely represented that an independent collateral manager picked the contents of Norma when, in reality, Magnetar had a major hand in those decisions. Magnetar has denied charges that it behaved in this way in the wake of a ProPublica story that alleged Magnetar structured deals designed to fail.
Skadden, Arps, Slate, Meagher & Flom is representing Merrill in the litigation, and the Skadden lawyers on the case say Quinn is comparing apples to oranges by bringing up the Goldman specter, the Lit Daily reports. For one, Rabobank was not an investor that purchased a piece of Norma, the Lit Daily says; rather, Rabobank lent about $60 million to set up Norma and cover some of Merrill's underwriting fees, according to the Lit Daily. As such, Rabobank was not an investor relying on offering documents to decide whether Norma was worth investing in, according to a letter (cited by the Lit Daily) the Skadden team filed on Monday. In that letter, Merrill and Skadden claim Rabobank is a "highly sophisticated international bank" that could have inquired about Norma and should have understood its risks as lender in the transaction. Sounds a lot like Goldman's "big boy" defense in the SEC's case, doesn't it?
Rabobank is seeking about $45 million in the suit, which charges Merrill with fraud, negligent representation and other charges, the Lit Daily reports.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.