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New York high court dismisses case against bond insurer

By John Paul Putney

[JURIST] The New York Court of Appeals [official website] on Tuesday dismissed [opinion] a lawsuit against bond insurance company MBIA [corporate website] alleging breach of contract brought by several of the world's largest financial institutions. The lawsuit challenged the break-up of MBIA into two separate lines of bond insurance. MBIA, historically the largest guarantee insurer of municipal bonds and other public entity securities, sought to separate its municipal bond obligations from its structured finance obligations, including mortgage-backed securities and collateralized debt obligations. Major financial institutions including JPMorgan Chase, Citigroup, Bank of America, Morgan Stanley, Merrill Lynch, Barclays, Wachovia, UBS, and HSBC [corporate websites] challenged the split on the contractual grounds, arguing that it amounted to a fraudulent conveyance and left the divided MBIA undercapitalized and unable to pay on the structured-finance product policies [CNBC report] written by MBIA. The court dismissed the lawsuit, concluding:

For their breach of contract claim, plaintiffs allege that MBIA Insurance breached an implied covenant of good faith and fair dealing in its insurance policies. Plaintiffs do not claim that MBIA Insurance has failed to make any payment due under the policies, but instead contend that the company has frustrated an implicit purpose of obtaining the policies, namely "to enhance the value and credit rating" of the covered structured finance products. However, since this alleged purpose is nowhere reflected in the policies, it cannot serve as the basis for a claim of breach of contract or breach of the implied covenant of good faith and fair dealing. ... In effect, plaintiffs seek an advisory opinion premised on future events that are beyond defendants' control and thus are speculative.

There are currently two other lawsuits challenging the split that have yet to be resolved.

Financial institutions, as well as both private and municipal issuers, have recently faced securities-related enforcement actions. In August, the Securities and Exchange Commission (SEC) [official website] charged [order, PDF] the state of New Jersey with securities fraud for failing to disclose to municipal bond investors that it was underfunding two of the state's largest pension plans [JURIST report]. Also in August, a federal judge rejected a $75 million settlement [JURIST report] reached between Citigroup and the SEC to resolve charges of misleading investors [JURIST report] about Citigroup's exposure to sub-prime mortgage-related assets. In July, Goldman, Sachs & Co.. [official website; JURIST news archive] agreed to a $550 million settlement [text, PDF] with the SEC to resolve charges [press release] that they marketed a subprime mortgage product and made misleading statements and omissions to investors in early 2007.

Full post as published by JURIST - The Paper Chase on January 11, 2011 (boomark / email).