Cuomo Using Martin Act to Pursue Subprime Securities Fraud

We had been wondering when subprime-related securities litigation would get going in earnest. New York attorney general, Andrew Cuomo, along with Connecticut attorney general Richard Blumenthal, has been investigating whether underwriters failed to disclose relevant information to investors in subprime deals.

The latest development, according to the Wall Street Journal, is that Cuomo has issued Martin Act subpoenas to Bear Stearns, Deutsche Bank, Morgan Stanley, Lehman, and Merrill. Predecessor Eliot Spitzer demonstrated that New York State’s Martin Act is a potent weapon, since the plaintiff does not need to prove intent to defraud, merely that a fraud resulted. Put more simply, incompetence or negligence can be sufficient grounds for a successful case.

If these investigations result in lawsuits, the evidence presented in court would be a boon to individuals and funds who wanted to take action. However, Spitzer’s playbook was to threaten criminal prosecution. Since no firm was willing to suffer indictment, they agreed on settlements. If Cuomo goes the civil prosecution route, we may see trials which would be of considerable assistance to other plaintiffs.

From the Wall Street Journal:

The New York attorney general’s office, pursuing an investigation into whether Wall Street firms improperly packaged and sold mortgage securities, is latching onto a powerful regulatory tool: the 1921 Martin Act.

The state law, considered one of the most potent legal tools in the nation, spells out a broad definition of securities fraud without requiring that prosecutors prove intent to defraud. As a result, the act has become an influential hammer in recent years for New York state prosecutors in cracking down on securities manipulation, improper allocation of initial public offerings of stock and misleading stock research on Wall Street….

The development comes as the attorney general’s office has gained the cooperation of Clayton Holdings Inc., a company that provides due diligence on pools of mortgages for Wall Street firms. At issue is whether the Wall Street firms failed to disclose adequately the warnings they received from Clayton and other due-diligence providers about “exceptions,” or mortgages that didn’t meet minimum lending standards.

Such disclosures could have prompted credit-ratings firms to judge certain mortgage-backed securities as riskier investments, making them more difficult to sell, these people said. The attorney general is examining, among other things, whether some Wall Street firms concealed information about the exceptions from the credit-rating concerns, these people said, in a bid to bolster ratings of mortgage securities and make them more attractive to buyers, such as pension funds, which often required AAA, or investment grade, ratings on potential investments in securities containing risky mortgages.

The attorney general’s office has issued Martin Act subpoenas, which don’t spell out whether matters are civil or criminal in nature, according to people familiar with the matter. So far, the recipients include financial firms Bear Stearns Cos., Deutsche Bank AG, Morgan Stanley, Merrill Lynch & Co., and Lehman Brothers Holdings Inc., possibly among others. Representatives of Bear, Deutsche, Morgan, and Lehman declined to comment on the investigation. A Merrill spokesman said, “We cooperate with regulators when they ask us to,” but declined to elaborate….

With data provided by Clayton, Mr. Cuomo’s office is seeking to gather more information on how Wall Street firms purchased home loans that had been singled out as “exception loans” — that is, loans that didn’t meet the originator’s lending standards. Data from Clayton, for instance, indicates that in 2005 and 2006, years in which the mortgage-securitization business was going full throttle, some investment banks acting as underwriters were purchasing large numbers of loans that had been flagged as having exceptions, these people said.

In 2006, according to the data, as much as 30% of the pool of exception loans was purchased by some securities firms, these people said. One likely reason: Flawed loans could be purchased more cheaply than standard loans could be, lowering a firm’s costs as it sought to compile enough mortgages for a new security.