PANGEA3 LLC

As the summer ends and we return from our “staycations” it is the time to reflect on litigation flowing from the 2008 subprime crisis. Not a day goes by without the media reporting on a new angle in the three-ring circus that is the “tsunami” of Mortgage-Backed Securities - related litigation. In order to survey the damage, let’s look at how we got here, where we are now, and where we may be going.

The Past: The Great American Class Action and The Running of the Statutes

To understand where we are now, it’s important to take a quick trip down memory lane. At the beginning of 2011, things looked bleak for individual MBS investors as federal judges denied class certification, MBS-trustees sat on their thumbs, hard evidence of individual breaches of reps and warranties was hard to come by, and statutes of limitations continued to run.

In early January, S.D.N.Y Judge Baer denied class certification¹ for a group of MBS investors, holding, amongst other things, that: (1) the class had different knowledge levels of the alleged loosening of mortgage-underwriting standards that led to the defaults and the decline in the value of the MBS, and; (2) the investors bought the securities at different times, when different amounts of information was available. In April, the Second Circuit agreed to consider² an interlocutory appeal of the denial of class, which has yet to be fully briefed.

Similarly, in May, Los Angeles federal court judge Mariana Pfaelzer³ held that a class could only bring claims “if named plaintiffs bought into specific tranches of specific offerings.”

Since then the tides have turned. Two judges in the Southern District have upheld MBS-investor class certification and courts have allowed plaintiffs to use statistical sampling in put-back cases.

In June and August two S.D.N.Y. Judges – Rakoff and Crotty⁴ – issued opinions allowing investors to pursue MBS-class actions against Bank of America and Credit Suisse, rejecting the banks argument that the purchasers couldn’t form a class because amongst them were sophisticated investors aware of the general deterioration in the housing markets and lending practices.

On August 24 - citing the opinions of Crotty and Rakoff – Reuters editor at large Alison Frankel reported⁵ that “MBS class actions turn[ed] a critical corner” and noted that the decisions will give “ammunition” in the appeal of Judge Baer’s decision⁶ before the Second Circuit.

With respect to use of statistical sampling and extrapolation to prove plaintiffs’ claims for breach of reps and warranties, on March 25, United States District Court Judge Paula Crotty in the Southern District of New York was the first federal judge to rule⁷ in favor of that methodology. Crotty held that a plaintiff could use statistical sampling to prove a generalized claim for breach, and was not limited to the loan-by-loan approach described in standard MBS agreements.

The Present: The FHA Lawyers Up and MBS Trustees get “Feisty”

Since August the focus of MBS litigation has been on: the recent volley of lawsuits by the Federal Housing Finance Agency; the increase in litigation brought by MBS trustees and the extent of the exposure to those suits; the running statutes of limitations; and the certification of MBS-investor classes. Below are the highlights in chronological order:

September 1- Due to the surge in MBS related lawsuits, Pangea3 established a taskforce dedicated to MBS-related document review. The taskforce was built upon our experience acquired first-hand through work on dozens of MBS-related litigations and investigations for many of the largest international banks.

September 2 - The FHFA entered the MBS litigation arena when its litigation counsel, Quinn Emanuel and Kasowitz Benson filed 17 suits⁸ against virtually all financial institutions in the MBS game asserting put-back claims.

September 6 - Analyzing those suits, Reuters reported⁹ that the 17 suits by the FHFA cite approximately $196 billion in MBS holdings by Fannie Mae and Freddie Mac, but that the claims are more realistically valued at $40 billion – a number calculated by extrapolating the FHFA’s previously estimated percentage loss across the entire set of suits. Furthermore, Reuters stated that the $40 billion number does not include defenses by the banks designed to reduce their exposure dramatically.

September 10 - Bloomberg reported¹⁰ that recent decisions in the Southern District of New York, which allow class-action status for MBS investors, may result in banks suing their peer banks over losses from MBS issued by the defendant banks, suits they could not, and would not, have brought on their own.

September 14 - The American Banker reported¹¹ that due to statutes of limitations “[t]he clock is running down on investors looking to sue the nation’s largest banks.” The article noted that the 17 lawsuits by the FHFA were brought before the three-year anniversary of Fannie Mae’s and Freddie Mac’s failure, ensuring they didn’t miss possible deadlines. The article explains though, that with respect to the relevant deadlines, “[l]egal arguments exist for both sides.”

September 15 - Reuters reported that MBS trustees were “getting feisty,”¹² foreshadowing a trend of MBS trustees taking action due to pressure from regulators “fed up” with their inaction and MBS investors who are “running out of time on securities claims.” Trustees were finally asserting claims on behalf of the trusts, after coming under serious scrutiny by NY attorney general Eric Schneiderman and Delaware AG Joseph Biden III, which resulted in state fraud claims against trustee BNY Mellon.

September 16 - Bloomberg reported¹³ that the “mortgage debacle” had already cost the nation’s five biggest home lenders at least $65.7 billion, and that “new claims may push the industry wide total to twice that amount.” Bloomberg’s tally was compiled from regulatory filings, company statements and financial presentations by the nation’s five biggest banks, which have lost, respectively: Bank of America - $39.1 billion; JPMorgan Chase - $16.3 billion; Wells Fargo - $5.09 billion; Ally Financial, previously known as GMAC Inc. - $3.28 billion; Citigroup - $1.9 billion.

The Future: The Second Circuit Will Speak and The Evidence Will Be Sorted

With so many interested parties and moving parts it is impossible to predict exactly where this wave of litigation will head. We could be facing years of laborious fact finding, dramatic public trials, or quick mass settlements. As observers we should look out for the following:

• The opinion of the Second Circuit with respect to the certification of MBS-classes
• The size and frequency of put back claims by trustees
• Motions to dismiss MBS claims for violation of applicable statutes of limitations

Just last week, on September 19, Reuters reported that, due to investor class actions and trustee lawsuits, the banks’ “put-back exposure,” from trustee and investors suits “may ultimately dwarf their securities law liability.” If so, hold on, because this ride has just begun.

Links:

1. http://www.reuters.com/article/2011/01/19/markets-assetbackeds-idUSN1926043720110119
2. 2. http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202492333999
3. http://www.reuters.com/article/2011/05/19/bankofamerica-countrywide-idUSN1926858420110519
4. http://www.cohenmilstein.com/cases/231/hemt-mbs-litigation
5. http://newsandinsight.thomsonreuters.com/Legal/News/2011/08_-_August/MBS_class_actions_turn_a_crucial_corner/
6. http://newsandinsight.thomsonreuters.com/uploadedFiles/National_Litigation/News/2011/06_-_June/baerRALIclasscertopinion.pdf
7. http://www.subprimeshakeout.com/2011/05/top-five-reasons-we-havent-seen-the-last-of-the-mbs-lawsuits.html
8. http://www.forbes.com/sites/afontevecchia/2011/09/02/fhfa-sues-17-banks-over-massive-mortgage-losses-at-fannie-and-freddie/
9. http://newsandinsight.thomsonreuters.com/Legal/News/2011/09_-_September/Banks_face_huge_losses_from_FHFA_lawsuits-analysts/
10. http://news.businessweek.com/article.asp?documentKey=1376-LR84AT0UQVI901-5F6TEAVCB8O2C2LTGHRNK3S7IJ
11. http://www.americanbanker.com/syndication/statute-mortgage-backed-securities-1042193-1.html
12. http://newsandinsight.thomsonreuters.com/Legal/News/2011/09_-_September/MBS_trustees_(finally)_getting_feisty__Wells_sues_Bear_unit/
13. http://www.businessweek.com/news/2011-09-16/mortgage-debacle-costs-banks-66-billion-as-suits-sap-profit.html

Securities litigation is once again the center of the legal industry, and the timing couldn’t be better for IQPC’s 7th Securities and Litigation Summit. The summit, October 3rd and 4th at the Helmsley Hotel in New York City, will host a series of panels on the management of securities litigation risks in private suits and government enforcement activity. Greg McPolin, Vice President and Managing Director at Pangea3, is speaking on the “Effectively Litigating the Newest Complex Structured Products Claims” session at 3:50 p.m. on October 3.

This session will feature Q and A with Charlie Gambino, Director and Senior Counsel of Deutsche Bank, and Colby Allsbrook, Director and Counsel of Credit Suisse, moderated by Greg McPolin. It will discuss securities litigation in terms of the:

• Types of claims currently being litigated
• Current status of litigation regarding class actions
• Important industry developments currently being litigated
• Various strategies being used to defend structured product claims

Pick up new litigation strategies, network, and learn about new trends and practices in the securities litigation industry during the IQPC’s 7th Securities and Litigation Summit sponsored by Pangea3. For more information on or to register for the event, click here. You can follow us during the conference on Twitter @Pangea3, and be sure to check back on the blog for more regarding the IQPC event, as well as other upcoming events.

Have you ever wondered how legal process outsourcing clients select an LPO provider, integrate the provider into their legal department and determine success of the relationship? Attendees of the Virtual Corporate Counsel Forum this Sept 21st have an opportunity to hear in-house counsel discuss why LPO is becoming more than just a trend in the interactive CLE webinar Legal Outsourcing: In-house Counsel Discuss Strategies for Maximizing Value.

Jonathan Goldstein, Vice President and Managing Director, Legal Solutions of Pangea3, along with John Cheek, Senior Corporate Counsel of Caterpillar, and Kristen Henzi, Associate General Counsel of MegaPath, will discuss how legal process outsourcing has become a go-to strategy for those who want to expand capacity, while saving money. This team of experts will provide answers to many common questions about LPO including:

• What led you to consider LPO?
• How have you used LPO?
• Are there areas where you would like to expand the use of LPO?

This webinar will take place on September 21st from 11:30 AM- 12:30 PM EDT. For more information on or to register for the online conference, click here. You can follow us during the conference on Twitter @pangea3, and be sure to check back on the blog for more regarding the VCCF event, as well as other upcoming events.

We have always said that one of the most important ingredients in our “secret sauce” for exceeding the expectations of our current clients and winning new ones is our people. In the age of J-M Manufacturing’s recent malpractice suit against McDermott Will & Emery, one of the lessons learned is the importance of having the right managers and service providers in place; this, along with the right processes, makes it much easier for in-house and outside attorneys to fulfill their ethical duty to supervise.

The spectrum of legal service providers is broad and the differences are stark. On the one hand, there are temporary attorneys, as there were in J-M Manufacturing, who are often looking for their next permanent job. On the other, there are permanent attorney managers and workers who are not only expert at document review as a career choice, but also expert in document review in very specific types of cases and for very specific types of customers. Witness our recent announcement of our Mortgage-Backed Securities Taskforce that pulls together over 200 permanent attorneys at our company that have actual experience in this type of complex financial litigation.

Experience comes from working on the same types of cases, but also comes from the context of feeling secure in their roles and engaged by having a comfortable working environment and a respectable career path. This is a 180 degree difference from the situation faced by J-M Manufacturing, and why our customers recently voted us the Best Legal Process Outsourcing Provider in the New York Law Journal’s 2011 Reader Rankings.

In the article “The backroom legal eagles” in The Hindu Business Line (a well respected Indian business newspaper), Gokul Krishnamurthy paints a vivid and very accurate portrait of our people and operations in our Mumbai office in Leela Business Park. I highly recommend reading the entire article for those that have never visited LPO operations in India since it provides such a good description, as well as some great commentary from Sanjay Kamlani, Co-CEO of Pangea3, about the facility, our people, and how we compete.

However, below I will sum up some of the main points of the article which really tells the tale of how Pangea3 uniquely attracts the best people, keeps them and gets the best from each of them:

Inspiring Work Environment: The article describes the work environment and seating arrangements as being open, transparent, inspirational, and supporting a flat hierarchical structure.

Opportunity: The most effective way to keep your top employees and make sure they perform at their best is by providing real opportunity. The article highlights the ascension of Rachita Maker who was brought on to Pangea3 to help build the HR group, but who with experience and opportunity (and her own ambition and intelligence) is now Assistant Vice-President, Corporate Legal Solutions, and is in the U.S. as a subject matter expert helping the sales force with their sales efforts.

Client Contact: With global services and happy clients, Pangea3 has many customers that repeat their business. This means that our employees really get to know the clients’ industries and businesses, and often get to know the main contacts at these firms and companies. Part of the Pangea3 process is constant client contact, for which the whole team participates. That client contact could be weekly team video or audio team calls, or could be travel to the client’s facilities, and even when appropriate, longer term assignments at those facilities.

Work-Life Balance: Workers who want to get ahead have plenty of opportunities at Pangea3 to step up and take on extra work, or work U.S. hours. However, the option to take a “slower lane,” including flexible time schedules, is also available to those workers who have home obligations that are the current priorities in their life.

Feedback & Reward: There is nothing as unsettling to an employee, particularly a professional employee, as not knowing where they stand and how well they are completing their assignments. The article describes the appraisal system built by Pangea3 to provide that constant and constructive feedback, as well as opportunities as “employee of the year” to be recognized among peers for outstanding work.

Personal Growth & Fun: Finally, the article describes how Pangea3 provides both technical growth opportunities to its attorneys, as well as occasions to socialize and have fun as a group, including cricket matches and billiards.

Read Full Article.

In a profile entitled “The Disrupter,” David Perla, the Co-CEO of Pangea3, tells the story of how he and his partner, former law school classmate, and Co-CEO, Sanjay Kamlani, created Pangea3 and how they made it a success, making the right bets and working with the right people. The profile also includes a video of Perla answering the question about if he were in charge of a BigLaw firm, how would he foster growth. It is clear that Perla’s experience in both building a business and being an executive at large corporations – including Monster early in his career and Thomson Reuters now – have influenced the types of strategies he would pursue, which include hiring C-level people from outside the industry and employing a professional salesforce.

The top minds in law – judges, senior lawyers from in-house, firms, and government, plus other respected thought leaders in the profession – discuss the impact of new technology on the legal world at the Legal Technology Leadership Summit taking place on Amelia Island, Florida from September 6-8

Greg McPolin, Vice President and Managing Director for Global Litigation Solutions for Pangea3, will be speaking as part of a panel entitled, “Getting the Right Players at the Table” on September 7. The discussion covers how to ensure the right voices are heard when discussions about corporate commitments regarding the management of electronically stored information take place. Greg joins Mark Herrmann of Aon and Stephanie Mendelsohn of Genentech/Roche, with Hilary Lane of NBC Universal leading the panel.

For more information, check the conference website , or read what Greg has to say about the conference here. You can follow us during the event on Twitter @Pangea3, and be sure to check back here for more following the event.