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Financial Services Law Insights and Observations

2nd Circuit affirms no securities fraud in mortgage bundle sale

Courts Appellate Second Circuit Securities Mortgages

Courts

On July 24, the U.S. Court of Appeals for the 2nd Circuit affirmed a district court’s decision, holding that a group of securities investment firms (defendants-appellees) did not unlawfully hide concerns about a mortgage bundle it sold to a Luxemburg-based financial institution (plaintiff-appellant) when it marked down the value of certain junior securities within the bundle. The three judge panel affirmed the lower court’s decision to dismiss securities fraud and breach of contract claims, which alleged that the defendants-appellees’ undisclosed markdown concealed its view that the mortgage bundle would underperform. The defendants-appellees contended that the markdown was related to commonly-used accounting strategies designed to manage risk tied to the preference shares, to which the lower court agreed—ruling that the plaintiff-appellant had failed to show evidence proving its claims of fraud. The appellate court agreed, holding that the plaintiff-appellant “has thus failed to raise a material issue of fact as to [the defendants-appellees’] knowledge that there was anything wrong with the underlying assets, which is essential to establishing its theory of fraud.” The appellate court further upheld the breach of contract dismissal because the offering circular and marketing materials for the mortgage bundle did not specify the value of the preference shares.