A Manhattan state judge rejected defense counsel’s attempts Tuesday to take a second crack at persuading the court why a German bank’s fraud claims arising from its purchase of $179 million worth of certificates in mortgage-backed securities prior to the U.S. housing crisis is time-barred under German law.
The decision was folded into a bench ruling from Justice Marcy Friedman in Manhattan’s Commercial Division following oral arguments on the defense’s motion to dismiss in Deutsche Zentral-Genossenschaftsbank v. Goldman Sachs Group, 653134/2012.
Deutsche Zentral, or DZ, alleges that Goldman Sachs misstated the quality of underlying mortgage loans that were packaged into these securities and purchased by DZ in 2006, causing DZ to take a strong hit by the time of the onset of the housing crisis.
Goldman Sachs alleges that as a sophisticated financial institution that specializes in asset securitizations, Germany’s fourth-largest bank should have realized by 2007 and 2008 due to prolific coverage in the media on subprime mortgage loans that it had a further duty to investigate potential fraud claims.
“If the German media knew enough to speculate about these issues in 2007, it’s just inconceivable that a sophisticated bank with a legal department wouldn’t think about those claims—that a journalist would know, and they didn’t,” Sullivan & Cromwell partner David M.J. Rein argued to the court.
Plaintiff’s counsel Mark Arisohn, partner at Labaton Sucharow, argued in response that such media reports did not outright state, “Goldman Sachs lied.”
“Of course, [Goldman Sachs] was in the news a lot and [the focus of] uncomplimentary material, but you’ll not find a single article or lawsuit that Goldman Sachs committed fraud in relation to these certificates or did so with scienter,” he argued to the court.
Like many other RMBS plaintiffs, the German bank brought suit following a report issued by the Financial Crisis Inquiry Commission in 2010 based on due diligence findings.
Friedman has treaded carefully around the issue of when a plaintiff is put on notice under Germany’s statute of limitations. The country’s three-year limitations period begins at the end of the first calendar year in which the claim arose and the claimant obtains knowledge of the circumstances giving rise to the claim or would have obtained knowledge but for “gross negligence.”
She stated it was still unclear the level of investigation required of a sophisticated commercial investor versus a regular consumer under these terms.
In this case, Goldman Sachs argues that DZ brought its claims two years too late.
Friedman, who is presiding over roughly a dozen such RMBS fraud suits by German banks that require the application of Germany’s narrower statute of limitations than New York’s six-year counterpart—said she needed “a great deal more clarification” on certain issues–namely, the level of investigative duty required of a highly sophisticated commercial investor to be on notice of claims under German law, what binding authority German experts rely upon in their affidavits, and the extent to which the German court system is precedential on this issue.
During argument, Rein proposed that the court permit the defense’s German expert witness to submit an additional affidavit addressing certain threshold issues the judge said, “cannot be determined on the record as briefed.”
Later, when issuing her decision from the bench, Friedman stated, “To hold an [evidentiary] hearing at this juncture, without adequate expert affidavits, would give defendants a de novo opportunity to seek dismissal on statute of limitations—or, put another way, a second opportunity to [argue] a motion to dismiss.”
Tuesday’s bench ruling allowing DZ’s fraud claims to stand while dismissing other claims for fraudulent concealment and negligent misrepresentation largely mirrored the judge’s hefty decision last week in HSH Nordbank v. Barclays Bank, 652678/2011, which the parties frequently referenced during oral arguments.
Rein declined to comment following the ruling. Arisohn said he was not surprised by the direction the judge took in light of her recent rulings on similar matters.
Now that most of DZ v. Goldman Sachs has survived the pleadings stage, discovery will begin per a scheduling order—if it gets to that stage, that is.
Electronic court records show that in at least one other case mirroring these issues, HSH Nordbank v. Goldman Sachs, 652991/2012, the parties stipulated per a Feb. 6, 2014 memo to adjourn all discovery deadlines. In that case, Justice Melvin Schweitzer, in a Nov. 26, 2013 decision, also declined to dismiss fraud claims based on the same time-barred as under German statute of limitations argument.
Friedman informed the parties Tuesday that the expert affidavits provided by the parties were inadequate to rule at this stage, stating it would be more appropriate on motion for summary judgment or at trial.
“The court holds that the opinions of the parties’ experts discuss in only the most cursory fashion—although minimally more detailed than the [expert] opinions in prior cases—the standards to be applied in determining whether the limitation period has run,” she said.
The judge also rejected DZ’s argument that New York’s six-year statute of limitations should control in this case because it was the New York branch of the German corporation that suffered a loss of liquidity as the result of these RMBS investments.