Kellogg Huber’s David Frederick (Photo by Diego M. Radzinschi/LEGAL TIMES)
Faced with claims that Goldman Sachs & Co. saddled a federal credit union with toxic securities, Goldman’s lawyers at Sullivan & Cromwell unearthed a long forgotten arbitration agreement that they hoped would offer a quick escape. But on Tuesday a judge determined that Goldman can’t rely on the 22-year-old document to dismiss the case.
U.S. District Judge Denise Cote in Manhattan ruled that the National Credit Union Administration can proceed with a lawsuit alleging that Goldman duped the now-defunct credit union Southwest Corporate Federal Credit Union into purchasing mortgage-backed securities. Goldman’s defense lawyers at S&C argued that the bank could avail itself of an arbitration clause in a two-decade-old agreement with Southwest. Cote disagreed, finding that the NCUA repudiated the agreement.
The NCUA is a federal agency that serves as liquidating agent for failed credit unions. In 2011, it began bringing cases against banks on behalf of failed credit unions that purchased mortgage-backed securities, much like the Federal Housing Finance Agency has done on behalf of Fannie Mae and Freddie Mac. The NCUA is represented by Kellogg, Huber, Hansen, Todd, Evans & Figel; Korein Tillery; Stueve Siegel Hanson; and Wollmuth Maher & Deutsch.
The case against Goldman is part of a batch of suits that the NCUA brought in September 2013 on behalf of Southwest and one other defunct credit union. The other defendants include Credit Suisse AG, UBS AG, and Morgan Stanley. All told, the nine cases involve $2.4 billion in MBS in losses. The cases were assigned to Cote, who has been consistently siding against the banks targeted in the parallel FHFA litigation.
In October 2013, Goldman produced a one-page broker-dealer agreement it entered into with Southwest way back in 1992. The agreement stated that disputes over the sale of securities would be settled through arbitration. Later than month, the NCUA alerted Goldman that it was repudiating the 1992 agreement. The agency pointed out that under its enabling statute it has the discretion to repudiate any contracts that are “burdensome,” so long as it does so in a timely manner.
Goldman’s lawyers, led by S&C partner Richard Klapper, argued that the NCUA’s repudiation of the arbitration agreement was invalid. They wrote that there is nothing “burdensome” about the arbitration agreement, since arbitration is generally cheaper and more efficient than litigation. The bank also argued that the NCUA’s repudiation wasn’t timely because it occurred three years after the NCUA was appointed Southwest’s liquidating agent.
Cote rejected those arguments in Tuesday’s decision. She determined that the arbitration agreement faded from memory until Goldman discovered it in October. Once it came to light, the NCUA repudiated it within nine days, Cote wrote. “In such circumstances, NCUA’s repudiation occurred within a ‘reasonable period’ from when it was appointed conservator,” the judge wrote.
Goldman counsel Klapper at Sullivan & Cromwell didn’t immediately respond to a request for comment. We also didn’t hear back from David Frederick of Kellogg Huber, who represents the NCUA.