UBS Decision Memorandum
Transcript of UBS Decision Memorandum
X05CV084013452S : Superior Court
Pursuit Partners, LLC et al : Complex Litigation
Docket at Stamford
v.
UBS AG et al : September 8, 2009
MEMORANDUM OF DECISION
ON PLAINTIFFS’ APPLICATION FOR A PREJUDGMENT REMEDY (#124)
Introduction
This is a case involving allegations of securities fraud and related causes of action.
It has been brought by a hedge fund against a financial institution whose businesses include
the creation and marketing of securities in the form of a series of notes. These notes
constitute a complex financial investment product known generically in the securities
industry as collateralized debt obligations (Notes or CDOs). CDOs are a type of structured
credit product in the world of asset-backed securities. CDOs lump various types of debt -
from the very safe to the very risky - into one bundle. The various types of debt are known
as tranches.1 The purpose of these products is to create tiered cash flows for various groups
of investors holding the different tranches. These cash flows come from mortgages and
other debt obligations that have been pooled together. These Notes are customarily
marketed and sold to institutional investors and hedge funds, the types of entities which are
considered generally self-sufficient in the area of due diligence.
Pursuit Partners, LLC is a hedge fund based in Stamford, Connecticut. This hedge
fund is managed by Pursuit Investment Management, LLC, and includes two investment
1 “Tranche” is the French word for “slice.” A tranche is a piece, portion or slice of a deal or structured financing. Different tranches have different risks, rewards and/or maturities.
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funds known as the Pursuit Opportunity Fund I Master Ltd. and the Pursuit Capital Master
(these entities collectively referred to as Pursuit or the Plaintiffs). The defendant UBS AG
is a Swiss Bank with a securities affiliate known as UBS Securities, LLC. (collectively
referred to as UBS). The principal United States offices for UBS are located in Stamford,
Connecticut and New York, New York. At the operative times in this case, the co-
defendant Robert T. Morelli (Morelli) was employed as the head of the UBS syndicate
desk.
The remaining two defendants, Moody’s Corporation (Moody’s) and the McGraw-
Hill Companies, Inc, d/b/a Standard and Poor’s (S & P), are both credit-ratings agencies.
Ratings agencies are a vital part of the securities market, and their ratings greatly influence
the market. To help investors assess risks, ratings agencies analyze and rate companies and
the fixed-income securities they issue, using risk profiles to determine the likelihood that
issuers will default on their loans. Markets react, often dramatically, to the increased or
decreased likelihood of default when a rating changes. Moody’s and S & P were
responsible for rating the credit worthiness of the collateral underlying the CDOs sold to
Pursuit by UBS and at issue in this case. In fact, the credit ratings for these CDOs changed
in an adverse manner shortly after UBS sold the Plaintiffs some $35,573,904.53 worth of
Notes, Notes then rated some form of “Investment Grade,” in a series of transactions
between late July 2007 and October 1, 2007.2
It is the credit ratings downgrades publicly announced by Moody’s and S & P later
in the month of October 2007, a short time after the last Note was purchased from UBS by
2 For purposes of the PJR hearing, the parties have agreed that this is the amount at issue. The original claim totaled over $40 million, but at the PJR hearing, the Plaintiffs withdrew their claims in connection with two of the CDOs they had purchased from UBS. (Transcript [Tr.] 4/7/09, p. 87). Therefore, the Plaintiffs’ application for a PJR is based on its purchases of four classes of Notes in three different CDOs arranged by UBS, as follows: Vertical ABS CDO 2007-1, ACA ABS 2007-2 Ltd., and TABS 2007-7 CDO.
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Pursuit, and the adverse effect that such changes to those credit ratings had on the value of
the Notes held by Pursuit due to certain “trigger” language contained in each of the CDOs,
and UBS’s earlier role in marketing and soliciting purchases of such Notes by the
Plaintiffs, and finally (and most importantly), UBS’s degree of knowledge of such
impending ratings changes, and representations made by UBS to Pursuit in written, oral
and email communications, that are at the heart of this case.
On January 21, 2009, the Plaintiffs filed a thirty count Second Amended Complaint,
stating claims of relief against UBS, Morelli, Moody’s and S & P. The allegations center
on a fraud allegedly committed by UBS upon Pursuit in connection with Pursuit’s purchase
of CDOs from UBS. The Plaintiffs also moved for the issuance of a prejudgment remedy
(PJR) solely against the UBS defendants, which resulted in an evidentiary hearing on the
application. Following the hearing, the parties submitted their proposed findings of fact
and conclusions of law.3
The issue facing this court is simple, even if some of the nuances of the securities
purchased and sold in this case are complex. Have the Plaintiffs presented sufficient
evidence to warrant the granting of a PJR?4 At the hearing held on the application for a
PJR, the court heard witnesses from both sides, and it received into evidence numerous, if
not voluminous, documents relating to the transactions between the parties and the Notes
3 Prior to this memorandum of decision as to the PJR, the court, Blawie, J., granted the defendants’ motion to strike the counts in the Plaintiffs’ complaint sounding in negligent concealment, negligent supervision, breach of contract, breach of duty of good faith and fair dealing, civil conspiracy and breach of fiduciary duty. Therefore, the court will not address those allegations in this decision. 4 The court declines the Plaintiffs’ request to consider evidence of UBS’s uncharged misconduct as evidence of a common scheme or plan for purposes of ruling upon this application for a PJR. This is in reference to the fact that in February 2009, UBS agreed to pay $780 million to United States authorities to settle accusations that it helped wealthy Americans illegally evade taxes through secret offshore bank accounts that went undeclared to the Internal Revenue Service. UBS has admitted to conspiracy to defraud the I.R.S, and the Plaintiffs may renew their motion to introduce such evidence at a trial on the merits of their allegations, but it played no part in this court’s decision on the PJR.
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and CDOs themselves, including preliminary and final offering memoranda. The court in
its discretion also allowed the parties to conduct limited discovery on the issues presented
before scheduling such hearing. The court had the opportunity to observe and listen to all
the witnesses, and it also assessed their credibility. The court further understands the
factual issues in light of the legal framework (both substantive and procedural) it must
apply in granting or denying a PJR in this case, including a consideration of UBS’s
defenses. Finally, the court has, as it must, decided the contested issues of fact presented
by the parties. Those findings, and the necessary orders that flow therefrom, are the subject
of this memorandum of decision.
Choice of Law Provision
While the Plaintiffs have brought this complaint and application for a PJR here in
Connecticut, the Defendants argue that both New York’s PJR statute, as well as the
substantive law of the state of New York should govern these allegations. The Defendants
contend that the Indentures governing the transactions between the parties in this case
contain a choice of law provision. This clause states that New York law shall govern all
matters arising out of or relating in any manner to the Indenture or the Notes. However, an
analysis of this language is the beginning, not the end, of the court’s inquiry. “Connecticut
indubitably favors enforcement of contractual choice of law provisions. . . . A broadly
worded choice of law provision in a contract may govern not only interpretation of the
contract in which it is contained, but also tort claims arising out of or relating to the
contract.” (Citation omitted; internal quotation marks omitted.) Blakeslee Arpaia
Chapman, Inc. v. Helmsman Management Services, Inc., Superior Court, judicial district of
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New Haven, Docket No. CV 00 0443753 (January 9, 2002, Blue, J.) (31 Conn. L. Rptr.
214, 215).
The UBS defendants provided the Plaintiffs with a copy of the Offering
Memoranda5 for each transaction before the Plaintiffs purchased the subject Notes.
Although the Plaintiffs were not provided with the Indenture before their purchases, the
Offering Memoranda contained certain pertinent clauses of the Indenture, including a
governing law provision, for the Plaintiffs to review as prospective purchasers. The
“Governing Law” provision states: “The Notes . . . will be governed by, and construed in
accordance with, the Law of the State of New York.”6 The court heard testimony from
Frank Canelas (Canelas), a partner at Pursuit Management, LLC. Canelas testified that at
least two Pursuit employees read the Offering Memoranda before they purchased the
subject Notes from UBS. Specifically, Canelas testified that either himself or his partner
Anthony Schepis, as well as a Pursuit analyst read the Offering Memoranda. (Tr., 4/6/07,
p. 208). Thus, the Plaintiffs were aware of and were on notice that any purchase of Notes
outlined in their respective Offering Memoranda would be governed by New York law and,
knowing this, the Plaintiffs still purchased the Notes. The Plaintiffs claim that they cannot
be bound by the terms of an agreement that they did not sign. It is clear, however, that
“[p]arties [can be] bound to the terms of a contract even though it is not signed if their
assent is otherwise indicated, such as acceptance of benefits under the contract.” (Internal
5 The Offering Memorandum provides prospective investors with a detailed description of the most
significant terms of the CDO, including the distribution of interest and principal payments to the various counterparties and Noteholders in the CDO, and what constitutes an “event of default” for the CDO. The Offering Memorandum also identifies or describes the collateral manager, the types of collateral, the counterparties, and numerous risk factors for the CDO. (Tr. 4/7/09, pp. 120-21). 6 The “Governing Law” provision of the Indentures states: “This Indenture and each Secured Note will be construed in accordance with, and this Indenture and each Secured Note and all matters arising out of or relating in any manner to this Indenture or the Secured Notes (whether in contract, tort or otherwise) will be governed by the law of the State of New York.” (Exhibits [Exhs.] Q, S, T).
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quotation marks omitted.) Schwarzschild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774
(1983). In the present case, the court finds that the Plaintiffs were aware that the subject
Notes would be governed by New York law and, nevertheless, purchased the Notes.
Next, the Plaintiffs argue that the choice of law provision should not be enforced in
this case as it is a product of bad faith. Section 187 of the Restatement (Second) provides
in relevant part: “A choice-of-law provision, like any other contractual provision, will not
be given effect if the consent of one of the parties to its inclusion in the contract was
obtained by improper means, such as by misrepresentation, duress, or undue influence, or
by mistake.” In Elgar v. Elgar, 238 Conn. 839, 848, 679 A.2d 937 (1996), the court stated
that “[t]he fact that a contract was entered into by reason of misrepresentation, undue
influence or mistake does not necessarily mean that a choice-of-law provision contained
therein will be denied effect. This will only be done if the misrepresentation, undue
influence or mistake was responsible for the complainant’s adherence to the provision.”
In the present case, the Plaintiffs have not provided the court with sufficient evidence to
conclude that the choice of law provision at issue was obtained by reason of
misrepresentation, undue influence, or mistake. As such, the court will not invalidate the
provision on these grounds.
Absent a showing of bad faith in obtaining the assent of a party to its terms, there
are only two grounds for the court to void a contractual choice of law provision. One is as
a matter of public policy, while the second is pursuant to a statute. In this case, the
significance of the choice of law provision is primarily that if New York law governs, the
Plaintiffs’ statutory claims against UBS under the Connecticut Uniform Securities Act,
General Statutes § 36b-29 (CUSA), would be barred. CUSA reflects important public
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policy considerations, and is designed for the protection of Connecticut investors.
Connecticut National Bank v. Giacomi, 242 Conn. 17, 66, 699 A.2d 101 (1997).
Moreover, there is a specific statutory provision within CUSA that reflects the will of our
legislature and the court finds it is applicable to this case. Its importance is underlined by
the broad range of remedies spelled out in a section entitled “Buyer’s Remedies,” found at
General Statutes § 36b-29i.
As indicated, the title of the statute is “Buyers Remedies.” Its legislative purpose
could not be more self-evident than that. This law is designed to protect Connecticut
investors buying securities, from sophisticated hedge funds (such as the instant plaintiff) to
ordinary citizens who are solicited to purchase securities. To allow securities to be
marketed, offered and sold in any or all of the 49 states outside of New York, and hold that
no other jurisdiction’s laws can be enforced or invoked, or that Connecticut law must be
ignored, even if a plaintiff can establish, as it has here, probable cause to support a cause of
action under Connecticut law, the state where the solicitation was made, simply because of
this choice of law provision, is not a proposition this court will or may accept, both as a
matter of statute and public policy.
Statutes such as CUSA reflect the fact that securities are different than other forms
of commercial transactions. That statute in the Buyer’s Remedies provides in part, “Any
condition, stipulation or provision binding any person acquiring any security . . . to waive
compliance with any provision of sections 36b-2 to 36b-33, inclusive, or any regulation or
order thereunder is void.” General Statutes § 36b-29i. Therefore, the court concludes that
even if the choice of law provision should be interpreted as providing that New York law
applies to the remainder of Pursuits’ claims, it would violate our state’s fundamental policy
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to give an effect to a provision that would prevent suit under CUSA. This conclusion is
reinforced by a belief that New York law is not adequate to provide the Plaintiffs with a
remedy similar to CUSA in the event that a securities fraud may be proven at trial.
In Custard Insurance Adjusters v. Nardi, Superior Court, judicial district of
Ansonia-Milford, Docket No. CV 98 0061967 (April 20, 2000, Corradino, J.), the court
concluded that although a contract specified Massachusetts law as governing, it allowed the
plaintiff to assert causes of action under the Connecticut Unfair Trade Practices Act, § 42-
110a et seq (CUTPA) and the Connecticut Uniform Trade Secrets Act, § 35-50 et seq
(CUTSA). The court stated, “[I]t would violate the state’s fundamental policy to give
effect to that provision that would prevent suit under CUTPA and CUTSA.”
That does not mean, however, that under this interpretation the choice of New York
law provision is to be entirely disregarded. Because the Plaintiffs through their conduct
assented to the choice of law provision, this court will apply New York law to the
remainder of the Plaintiffs’ substantive claims. As the plaintiffs have not provided the
court with any analysis of their claims under New York law, for purposes of this PJR
application, this leaves for the court’s consideration those counts in the complaint with a
readily identifiable New York counterpart. The court will discuss both CUSA and those
issues of substantive law in a moment, but it notes that as to legal procedure here in the
forum state, the court will follow no other procedure but that of Connecticut, including the
PJR procedure.
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The Prejudgment Remedy Statute
Turning now from legal substance to legal procedure, the court will address why it
will apply the prejudgment remedy statute of Connecticut, the forum state, and not that of
New York. The reason is simple. Although a choice of law provision may govern certain
claims arising from a contract, the Connecticut Appellate Court has stated that “in a choice
of law situation the forum state will apply its own procedure.” Paine Webber Jackson &
Curtis, Inc. v. Winters, 22 Conn. App. 640, 650, 579 A.2d 545, cert. denied, 216 Conn.
820, 581 A.2d 1057 (1990). Therefore, the question before this court is whether General
Statutes § 52-278a et seq., Connecticut’s PJR statute, should be considered as procedural or
substantive. Section 52-278d (a), provides in relevant part: “If the court, upon
consideration of the facts before it and taking into account any defenses, counterclaims or
set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has
shown probable cause that such a judgment will be rendered in the matter in the plaintiff’s
favor in the amount of the prejudgment remedy sought and finds that a prejudgment
remedy securing the judgment should be granted, the prejudgment remedy applied for shall
be granted as requested or as modified by the court . . . .”
On this issue of whether or not the Connecticut PJR statute is procedural or
substantive, there is a dearth of precedent. One Superior Court opinion cited by the UBS
Defendants states that, “The intention of the parties to a contract governs the determination
of the parties’ rights and obligations under the contract. . . . Analysis of the contract focuses
on the intention of the parties as derived from the language employed. . . . [P]arties to a
contract generally are allowed to select the law that will govern their contract. . . . The
judicial rule of thumb, that in a choice of law situation the forum state will apply its own
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procedure . . . brings [the court] to the vexing question of which rules are ‘procedural’ and
which ‘substantive.’ . . . If a statute gives a right of action that did not exist at common law
. . . the entire statute is considered substantive rather than procedural.” (Citations omitted;
internal quotation marks omitted.) Macrolease International v. Nemeth, Superior Court,
judicial district of Fairfield, Docket No. CV 99 036774471 (June 9, 2000, Skolnick, J.).
The court acknowledges that Macrolease International is a Superior Court decision
that interpreted Connecticut’s prejudgment remedy statute in a substantive, rather than
procedural manner. However, while the PJR mechanism is unquestionably a statutorily
based remedy, this court declines to adopt the rather inflexible view that an entire statute
such as the PJR remedy should be considered as substantive law for all purposes, or for the
facts of this case, merely because the PJR remedy did not exist at common law. To the
contrary, it finds the reasoning in another Superior Court decision to be more persuasive.
That is the case of Butova v. Bielonko, Superior Court, judicial district of Hartford, Docket
No. CV 07 5010057 (November 9, 2007, Bentivenga, J.).
In Butova v. Bielonko, the court stated: “Connecticut’s prejudgment remedy statutes
were adopted in response to a line of United States Supreme Court cases prescribing the
standards of procedural due process in the area of property rights, foremost among them
the opportunity to be heard at a meaningful time and in a meaningful manner. . . . The
prejudgment remedy application is a process afforded by a state statute enabling an
individual to enlist the aid of the State to deprive another of his or her property by means of
[a] prejudgment attachment or similar procedure.” (Emphasis added; citation omitted;
internal quotation marks omitted.) Because Connecticut’s PJR statute is primarily
procedural in nature, and notwithstanding the choice of law provision in the Offering
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Memoranda, this court will apply the procedural law of the forum state, Connecticut,
including its PJR statute, to these allegations.
“The purpose of the prejudgment remedy of attachment is security for the
satisfaction of the plaintiff’s judgment, should he obtain one. . . . It is primarily designed to
forestall any dissipation of assets by the defendant and to bring [those assets] into the
custody of the law to be held as security for the satisfaction of such judgment as the
plaintiff may recover. . . . The adjudication made by the court on [an] application for a
prejudgment remedy is not part of the proceedings ultimately to decide the validity and
merits of the plaintiff’s cause of action. It is independent of and collateral thereto.”
(Internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent
Avery, LLC, 101 Conn. App. 638, 646-47, 922 A.2d 1131 (2007).
“[P]rejudgment remedy proceedings are not involved with the adjudication of the
merits of the action brought by the plaintiff or with the progress or result of that
adjudication. They are only concerned with whether and to what extent the plaintiff is
entitled to have property of the defendant held in the custody of the law pending
adjudication of the merits of that action. . . . This limited evidentiary proceeding contrasts
sharply with, for example, the detailed and substantive arguments and conclusions that
must be addressed in a motion to strike.” (Citation omitted; internal quotation marks
omitted). Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, supra, 101 Conn.
App. 646.
“‘Prejudgment remedy’ means any remedy or combination of remedies that enables
a person by way of attachment, foreign attachment, garnishment or replevin to deprive the
defendant in a civil action of, or affect the use, possession or enjoyment by such defendant
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of, his property prior to final judgment but shall not include a temporary restraining order.”
General Statutes § 52-278a (d). Prejudgment remedies are statutory devices designed to
bring the defendant’s assets into custody as security for the satisfaction of the judgment the
plaintiff may recover. They are limited by definition to attachments, foreign attachments,
garnishments, replevin, or a combination thereof. . . . Pursuant to § 52-278d (a), the
prejudgment remedy hearing is limited to a determination of: “(1) whether or not there is
probable cause that a judgment in the amount of the prejudgment remedy sought, or in an
amount greater than the amount of the prejudgment remedy sought, taking into account any
defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff.”
“The role of the court in considering an award of a prejudgment remedy is well
established. Pursuant to our prejudgment remedy statutes . . . the trial court’s function is to
determine whether there is probable cause to believe that a judgment will be rendered in
favor of the plaintiff in a trial on the merits.” (Citations omitted; internal quotation marks
omitted.) Butova v. Bielonko, supra, Superior Court, Docket No. CV 07 5010057.
“[A] hearing in probable cause is not intended to be a full scale, trial on the merits of the
[moving party’s] claim. The [moving party] does not have to establish that he will prevail,
only that there is probable cause to sustain the validity of the claim. . . . The court’s role in
such a hearing is to determine probable success by weighing probabilities. . . . The legal
idea of probable cause is a bona fide belief in the existence of the facts essential under the
law for the action and such as would warrant a man of ordinary caution, prudence and
judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible
common sense standard. It does not demand that a belief be correct or more likely true
than false.” Spilke v. Spilke, 116 Conn. App. 590, 593 n.6, __ A.2d. __ (2009). “Proof of
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probable cause as a condition of obtaining a prejudgment remedy is not as demanding as
proof by a fair preponderance of the evidence.” (Internal quotation marks omitted.)
Kosiorek v. Smigelski, 112 Conn. App. 315, 319, 962 A.2d 880, cert. denied, 291 Conn.
903, 967 A.2d 113 (2009); see 36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690,
698, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007) (stating that the
burden of proof at a probable cause hearing is a low one). “At a probable cause hearing on
a prejudgment remedy, a trial court may properly consider all evidence presented,
including testimony of witnesses, documentary evidence, and affidavits.” Fleet Bank of
Connecticut v. Dowling, 28 Conn. App. 221, 225, 610 A.2d 707, cert. granted on other
grounds, 223 Conn. 921, 614 A.2d 821 (1992).
Facts
With this standard in mind, and for the purposes of this application, the court
finds the following facts based on the evidence and testimony it finds credible. In the
spring 2007, UBS marketed certain CDO7 Notes to Pursuit. (Transcript [Tr.] 4/6/09, pp.
110-11). Pursuit, although not a regular investor in “synthetic” CDOs8, was familiar with
the CDO market from prior investments. (Tr., 4/7/09, pp. 91-92). In early 2007, UBS
solicited Pursuit with CDO Notes for sale. (Tr., 4/7/09, pp. 110-11). The Plaintiffs
inquired with UBS about purchasing CDO Notes at a discount that were both “investment
7 The complaint defines “CDO” or collateralized debt obligation as a vehicle which allows investors to invest in the future performance of either actual or referenced mortgages that act as the underlying collateral. A CDO allows an investor to purchase a position whose return profile is based upon the performance of a security with a defined risk and reward, without actually purchasing the mortgages themselves. 8 Unlike CDOs that may be backed by actual mortgages or underlying collateral, synthetic CDOs are usually backed by credit derivatives such as credit default swaps. At its most basic, a credit default swap is similar to an insurance contract. The swap provides the buyer with protection and coverage against specific risks in exchange for a periodic fee paid to the counterparty who “buys” that risk. The protection “buyer” is paid a set amount if there is a triggering event that is a specified risk, such as a default or a credit rating downgrade.
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grade” and “triggerless.”9 It is the ratings “triggers” embedded in the transaction
documents and credit default swaps that made millions of dollars in future payments to
Pursuit and UBS dependent upon how Moody’s and S & P labeled certain credit risks.
With such heavy reliance upon these ratings, the court finds that it created a bit of a
ratings trap, due to the catastrophic consequences of a downgrade.
While there are varying degrees of investment grade, a Note rated as investment
grade by Moody’s and/or S & P is reserved for the highest end of the credit spectrum. As
such, it is deemed to have the most predictable cash flow and is usually deemed to carry the
lowest risk of default. Pursuit informed UBS that although it was willing to make an
investment in the mortgage market, it was unwilling to take the extra-market risk of an
investment that was subject to unilateral termination by a senior investor (such as UBS).
Pursuit further informed UBS that it would only purchase Notes that: (1) were investment
grade; (2) “triggerless”; (3) not subject to an over collateralization test (O.C. test); (4) bore
a substantial discount from par; and (5) would perform based upon market, rather than
extra-market conditions. (Tr., 4/7/09, p. 91). All of these conditions were designed to
ensure the safety and security of any investment by Pursuit. In the spring of 2007, UBS
informed Pursuit that based upon the pre-drafted Offering Memoranda for the CDOs, it
would not meet Pursuit’s conditions for sale of the Notes. (Tr., 4/7/09, pp. 110-11).
Soon after, as a result of certain meetings with Moody’s, the court finds probable
cause to sustain the claim that UBS became privy to material non-public information
regarding a pending change in Moody’s ratings methodology. (Exhibits [Exhs.] 11, 17). 9 In paragraph sixty-eight of the Second Amended Complaint, the Plaintiffs state that “[i]t is generally accepted in the CDO investment community that the term ‘triggerless’ means that the O.C. test [Over Collateralization test] or Senior Credit test - which otherwise would allow the super-senior Noteholder to trigger or initiate a liquidation of the less senior positions in order to protect the super-senior Noteholder’s investment – is inapplicable.” Canales testified that triggers put the purchaser of a Note at a disadvantage, and can shut off the cash flow. (Tr. 4/6/09, p. 95).
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This change in ratings methodology, when implemented, would cause the Notes that UBS
had previously offered and sold as investment grade to no longer receive the same
investment grade ratings. (Exhs. 11, 17, 22, 25). Due to the way the CDOs at issue were
structured, such a change would effectively render the Notes, and Pursuit’s investment in
them, worthless. Thus, in the summer of 2007, UBS was aware that the Notes they were
currently marketing for sale in their CDOs were Notes for which the ratings agencies
would soon no longer be giving investment grade ratings. At that time, UBS was holding a
significant amount of unsold Notes in inventory that would lose a significant amount of
value when such a ratings downgrade occurred, (Tr., 4/7/09, pp. 140-41), and therefore had
an incentive to lower UBS’s inventory of these Notes and their corresponding exposure.
In late summer 2007, UBS again contacted Pursuit and offered to sell the same
Notes that Pursuit had rejected several months earlier. UBS, without disclosing the
information regarding the ratings of the Notes, represented to Pursuit that UBS would now
meet Pursuit’s aforementioned terms in a “no trigger deal.” (Exh. 32). This is significant,
because the terms and conditions of the Notes purchased by the Plaintiffs were by that
point fixed and immutable, just as they had been the first time such Notes were pitched by
UBS. That included such details as trigger vs. triggerless and/or the types of triggers each
CDO contained, all of which were contained in the respective offering memorandum. The
only feature not spelled out was the actual purchase price to be paid for the Notes, which
was subject to negotiation. The offering memoranda for each CDO was received into
evidence. As to the TABS 2007-7 CDO, the offering memorandum was dated March 17,
2007. (Exh. T). The offering memorandum for Vertical ABS CDO 2007-1 was dated
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April 6, 2007 (as supplemented April 9, 2007). (Exh. FF). The offering memorandum for
ACA ABS 2007-2 was dated June 27, 2007. (Exh. AA).
With the exception of the ACA ABS 2007-2 CDO, which was not finalized until
June 2007, the court finds that what had changed between UBS’s first unsuccessful pitch
and its second, successful pitch to the Plaintiffs was not the presence or absence of triggers,
or the structures of the CDOs themselves, but UBS’s awareness that these high grade
securities on its hands would soon turn into financial toxic waste. Shortly after selling
Pursuit the subject Notes, UBS diverted the cash waterfall payments after a ratings agency
downgrade . UBS triggered a termination and liquidation of the Notes, wiping out Pursuit’s
entire investment. Between July 26, 2007, and October 1, 2007, Pursuit purchased the
Notes that are the subject of this litigation.
UBS sent the Offering Memoranda for the Vertical ABS CDO 2007-1,10 ACA ABS
2007-2 Ltd.11 and TABS 2007-7 CDOs12 to Pursuit in summer and fall 2007 by cover
emails. These emails contain certain “transaction highlights” for each CDO. (Exhs. 32, 45,
83). Pursuit confirmed that at least two of its employees read the Offering Memoranda,
and that Pursuit would not have relied on a one- or two-page transaction highlights email to
invest tens of millions of dollars, but instead would have relied on the transaction
documents for each CDO. (Tr. 4/6/09, p. 208; 4/7/09, pp. 5, 39). To do otherwise would
10 The closing date on the Vertical CDO was April 10, 2007 and Pursuit purchased Notes in Vertical’s B2 class on July 26, 2007, and in Vertical’s B1 Notes on August 7, 2007. 11 The closing date on the ACA CDO was June 28, 2007 and Pursuit purchased Notes in ACA’s B1class on September 6, 2007. 12 The closing date on the TABS CDO was March 20, 2007 and Pursuit purchased Notes in TABS’ B3 class on October 1, 2007. As to the TABS CDO, the court finds that the “no trigger” language was specifically couched by UBS in favorable terms for prospective investors in the Notes, as it meant that coupon interest would be “unaffected by rating agency downgrades actions in the underlying collateral pool.” (Exh. 55).
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have been unreasonable and contrary to the standard of care in the CDO industry. (Tr.
4/8/09, p. 87).
It is true that there had already been a public disclosure on May 15, 2007 by
Moody’s that it was “re-examining its correlation assumptions for ABS [asset backed
securities] CDO tranches” due to “increasing overlaps in the securities underlying ABS
CDOs” traceable to a “growing proportion of synthetic transactions.” The disclosure noted
that, “Moody’s expects to complete its correlation analysis over the next couple of
months.” (Exh. O). It is also true that the Plaintiffs purchased these Notes at a deep
discount. However, in July 2007, the court finds probable cause to sustain the claim that
UBS, as a large player in the CDO market (Tr. 4/8/09, p. 34), one that “worked very
closely with the CDO analysts at the ratings agencies,” (Tr. 4/7/09, pp. 211-212), failed to
advise Pursuit that it in fact knew material nonpublic information about the ratings agencies
and their methods,13 and that the ratings agencies were going to downgrade the Notes UBS
was selling. This change was material, as it essentially was a shift from a performance-
based rating methodology to a market-based ratings methodology. Given the deteriorating
conditions in this sector of the market at that time, such ratings changes as to these Notes
were universally negative. On July 11, 2007, the day that Moody’s publicly announced it
was putting 184 CDO tranches on review for possible downgrade, Morelli sent an email
stating simply “put today in your calendar.” (Exh. 24). In explaining the context of that
email, the significance of that day was described to the court by Morelli as, “Today was
13 For example, a July 31, 2007 email from Vab Kumar, Director, Global CDO Group for UBS Securities LLC was received into evidence (Exh. 38) The email was sent to both UBS employees working the CDO desk as well as certain Moody’s CDO ratings analysts, with a copy to Morelli. The email concerns the Vertical 2007-2 CDO, which was purchased by the Plaintiffs. It starts out by stating that “There have been
a number of things that have been asked by Moodys on the above mentioned deal that are not market and not your criteria in deals we have closes in the past week.”(Emphasis added.) As the Senior Structurer at UBS, Kumar had extensive interactions with the ratings agencies.
18
essentially the beginning of the end of the CDO business, meaning the bonds were getting
downgraded, they were probably going to get downgraded further and we [UBS] were
going to lose a lot of money.” (Tr. 4/7/09, p. 213).
UBS failed to disclose and actively concealed the fact that based upon this change,
the Notes being marketed by UBS would not maintain their investment grade rating, and
would lose a significant amount of value, if not the liquidation of the entire investment.
After the July 2007 action by Moody’s, it was followed by the “massive mortgage bond
downgrades” which were publicly announced October 11-19, 2007. (Exh. 78). By the
time Moody’s publicly announced these ratings downgrade, the court concludes that
probable cause exists to sustain a belief that UBS had known that Moody’s was not just
“re-examining assumptions,” but was changing its methodology, and that the collateral
underlying the Notes would therefore no longer be rated investment grade. Had Pursuit
been aware of this, it would not have invested in the subject Notes.
In sum, the court finds probable cause to sustain the claim that UBS sold the Notes
to Pursuit without disclosing the following material non-public information: (1) that the
Notes would soon no longer carry an investment grade rating, as the ratings agencies
intended to withdraw these ratings as a result of a change in methodology; and (2) that once
the investment grade rating was withdrawn, the CDO Notes sold by UBS to Pursuit, being
valued in the tens of millions of dollars, would thereby become worthless.
Fraud in the Inducement
Under New York law, “The required elements of a cause of action for fraud are
representation, falsity, scienter, deception, and injury. . . . In order to establish deception,
any reliance upon the false representation must be “justifiable under all the circumstances”
19
(Citations omitted; internal quotation marks omitted.) F & M Precise Metals, Inc. v.
Goodman, 798 N.Y.S.2d 344, 157 N.E.2d 597 (1959); see Ippolito v. Lennon, 150 A.D.2d
300, 303, 542 N.Y.S.2d 3 (stating that “[a]n action for fraud requires that the plaintiff
demonstrate the making of a material misrepresentation, known to be false, made with the
intention of inducing reliance on the part of the victim, on which the victim does in fact
rely and, as a result of).
The court finds that the Plaintiffs were sophisticated hedge fund investors in an
esoteric and at the time largely unregulated area of the securities markets. “A party cannot
claim justifiable reliance on a misrepresentation when that party could have discovered the
truth with due diligence. . . . A sophisticated investor may not allege justifiable reliance
upon alleged incomplete disclosure and partial withholding of information where it could
independently assess the risks and benefits of the transactions at issue . . . or where it could
have discovered the true nature of the investments by ordinary intelligence or with
reasonable investigation. . . . Indeed, New York law imposes an affirmative duty on
sophisticated investors to protect themselves from misrepresentations made during business
acquisitions by investigating the details of the transactions and the business they are
acquiring.” (Citations omitted; internal quotation marks omitted.) Big Apple Consulting
USA, Inc. v. Belmont Partners, LLC, 20 Misc.3d 1144(A), 873 N.Y.S.2d 232 (Nassau
County 2008).
Justifiable reliance does not exist “[w]here a party has the means to discover the
true nature of the transaction by the exercise of ordinary intelligence, and fails to make use
of those means.” Lusins v. Cohen, 49 A.D.3d 706, 707, 853 N.Y.S.2d 685 (2004); see
Emergent Capital Inv. Mgmt., LLC v. Stonepath Group, Inc., 343 F.3d 189, 196 (2d Cir.
20
2003); In re Dean Witter Managed Futures Ltd. Partnership Litigation, 282 A.D.2d 271,
724 N.Y.S.2d 149, 150 (App. Div. 2001); Independent Order of Foresters v. Donaldson,
Lufkin & Jenrette, Inc., 919 F. Sup. 149, 154-55 (S.D.N.Y. 1996); GE Capital Corp. v.
U.S. Trust Co., 655 N.Y.S.2d 505, 505 (App. Div. 1997). It is clear that sophisticated
investors cannot reasonably rely on oral representations or statements in a sales brochure
when they have access to documents outlining the specific terms of the agreement. See
Independent Order of Foresters v. Donaldson, Lufkin & Jenrette, Inc., supra, 919 F. Sup.
154-55.
“In evaluating whether a plaintiff has adequately alleged justifiable reliance, a court
may consider, for example, the sophistication and expertise of the plaintiff in financial
matters, the existence of a fiduciary relationship, access to the relevant information,
concealment of the fraud, and the opportunity to detect the fraud. . . . New York law
imposes an affirmative duty on sophisticated investors to protect themselves from
misrepresentations made during business acquisitions by investigating the details of the
transactions and the businesses they are acquiring. . . . On the other hand, [w]hen matters
are held to be peculiarly within defendant’s knowledge, it is said plaintiff may rely without
prosecuting an investigation, as he has no independent means for ascertaining the truth.”
(Citations omitted; internal quotation marks omitted.) Bank of America Corp. v.
Lemgruber, 385 F. Sup.2d 200 (S.D.N.Y. 2005).
Additionally, in In re Dean Witter Managed Futures Ltd. Partnership Litigation,
supra, 282 A.D.2d 271, the Plaintiffs were individual investors who purchased interests in
limited partnerships engaged in the trading of futures and options contracts, and alleged
that the defendant brokers misrepresented the suitability of such investments for Plaintiffs.
21
The court held that, although the Plaintiffs alleged that the defendant brokers
misrepresented material facts regarding the investments, the Plaintiffs’ causes of action for
fraud and negligent misrepresentation were barred, as the written offering materials
provided to the Plaintiffs stated that the investments were “speculative” and involved a
“high degree of risk.” The court held that such disclosures in the written offering materials
rendered any reliance on alleged contradictory oral representations unjustifiable as a matter
of law.
In the present case, the court finds that although Pursuit was not a regular investor
in “synthetic” CDOs, it was familiar with the CDO market. (Tr., 4/7/09, pp. 91-92).
Further, during the period between 2005 and 2007, almost 30% of Pursuit’s trades involved
CDOs and, during the spring of 2007, at least 15% of Pursuit’s portfolio was invested in
CDOs, including distressed CDOs. (Tr., 4/6/09, pp. 202-03). Therefore, as sophisticated
investors, Pursuit had an affirmative duty to protect themselves from misrepresentations
made during business acquisitions by investigating the details of the transactions and the
businesses they are acquiring. Bank of America Corp. v. Lemgruber, supra, 385 F. Sup.2d
200.
It is clear that Pursuit received the Offering Memoranda for the subject Notes, as
well as other transaction documents which outlined the structure of each deal and the
notable clauses of the Indenture.14 Pursuit admitted that it read and reviewed the Offering
Memoranda before purchasing the subject Notes. (Tr., 4/6/09, p. 208). Therefore, Pursuit
was in possession of the material terms of the agreement. The Offering Memoranda for
14 In the CDO industry, reading the Offering Memorandum and relying on its terms is common practice
when making an investment decision to purchase Notes. (Tr., 4/6/09, pp. 208-09; Tr., 4/7/09, p. 121; Tr., 4/8/09, p. 87).
22
each Note was received into evidence. It sets forth the material terms of the agreement and
explicitly disclaims any representations made that are not contained in the Offering
Memoranda. They state: “No person is hereby authorized in connection with any offering
made hereby to give any information or make any representation other than as contained
herein and, if given or made, such information or representation must not be relied upon as
having been authorized . . . .”
Thus, similar to the Plaintiffs in In re Dean Witter Managed Futures Ltd.
Partnership Litigation, supra, 282 A.D.2d 271, Pursuit claims that brokers misrepresented
material facts regarding their investments. Pursuit, like the Plaintiffs in In re Dean Witter
Managed Futures Ltd. Partnership Litigation were provided with written offering materials
that stated the specific terms of the subject Notes and disclaimed any oral representations
made regarding the subject Notes. The term “trigger” or “triggerless,” standing alone, is
too loosely construed and susceptible of too many divergent interpretations to form a solid
basis for legal relief. As such, this court cannot find that Plaintiffs justifiably relied on the
claimed misrepresentations as required by New York law.
As the Plaintiffs have not submitted sufficient evidence for this court to determine
that there is probable that the Plaintiffs justifiably relied on any of the representations not
contained in the Offering Memoranda, it cannot be said that the Plaintiffs established that
that there is probable cause to sustain the validity of their claims for fraud in the
inducement, negligent misrepresentation15 and innocent misrepresentation,16 as all three
claims require the Plaintiffs’ justifiable reliance under New York law.
15 “To recover on a theory of negligent misrepresentation, a plaintiff must establish that the defendant had
a duty to use reasonable care to impart correct information because of some special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information provided. . . . [T]here may be liability where there is a relationship between the parties such
23
Fraudulent Concealment
In the Plaintiffs’ “fraudulent concealment” count, they allege that the defendants
fraudulently withheld information that induced the Plaintiffs into purchasing the subject
notes. “[W]hen dealing with a claim of fraud based on material omissions, it is settled that
a duty to disclose arises only when one party has information that the other party is entitled
to know because of a fiduciary or other similar relation of trust and confidence between
them. . . . When parties deal at arms length in a commercial transaction, no relation of
confidence or trust sufficient to find the existence of a fiduciary relationship will arise
absent extraordinary circumstances. . . . However, there may be a relationship of trust and
confidence sufficient to give rise to a duty to disclose under the ‘special facts doctrine.’
Under that doctrine, a duty to disclose arises where one party's superior knowledge of
essential facts renders a transaction without disclosure inherently unfair. . . . The plaintiff
must prove that (1) one party has superior knowledge of certain information; (2) that
information is not readily available to the other party; and (3) the first party knows that the
second party is acting on the basis of mistaken knowledge.” (Citations omitted; internal
quotation marks omitted.) Travelers Indemnity Co. of Illinois v. CDL Hotels USA, Inc.,
322 F Sup 2d 482, 499 (S.D.N.Y. 2004). that there is an awareness that the information provided is to be relied upon for a particular purpose by a known party in furtherance of that purpose, and some conduct by the declarant linking it to the relying party and evincing the declarant’s understanding of their reliance” (Citation omitted; internal quotation marks omitted.) Grammer v. Turits, 271 A.D.2d 644, 645, 706 N.Y.S.2d 453, 455 (App. Div. 2000); see Berger-Vespa v. Rondack Building Inspectors, 293 A.D.2d 838, 841, 740 N.Y.S.2d 504 (3d Dept. 2002) (stating that a plaintiff must establish that the defendant “had a duty, based upon some special relationship with them, to impart correct information, that the information given was false or incorrect and that the Plaintiffs reasonably relied upon the information provided”). 16 An innocent misrepresentation is a “misrepresentation by the defendants of a material fact made to
induce the plaintiff to enter into the [transaction] . . . and upon which the plaintiff justifiably relied.” West
Side Federal Savings & Loan Assn. of N.Y. City v. Hirschfeld, 476 N.Y.S.2d 292, 295 (App. Div. 1984).
24
It is clear that that from the parties’ extensive contact, UBS knew that Pursuit was
only interested in investing in Notes that carried an “investment grade.” (Tr., 4/6/09,
p.91). The Plaintiffs presented evidence suggesting that UBS, from their dealings with
the ratings agencies, had reason to believe that certain collateral would be downgraded in
the near future and their “investment grade” rating would be withdrawn. The Plaintiffs’
submitted multiple emails from UBS employees. These emails constitute both direct and
circumstantial evidence of UBS’s knowledge of a change in Moody’s ratings
methodology, and the likelihood, if not certainty, that this change in methodology would
cause Moody’s to downgrade the subject CDO Notes. (Exhs. 11, 17). As early as May
17, 2007, UBS had reason to believe that Moody’s was changing its methodology and
that would result in the downgrading of certain asset-backed securities. (Exhs. 11, 17).
UBS’s emails show that its employees met with Moody’s representatives to discuss the
impact of the downgrades and when they should start downgrading.17 (Exh. 17).
Thereafter on July 11, 2007, UBS employees had knowledge that Moody’s was going to
downgrade CDOs by the end of the day.18 On July 26, 2007, UBS instructed its
employees to “reduce cdos . . . no need to publicly relay this, but if you are close on
something, [please] close it . . .[thanks] for your discretion.” (Exh. 34). In response to
that email, Morelli stated “[P]ursuit has dry gun powder but not tons of it.”19 Soon after
on August 28, 2008, Morelli sent an email referencing the subject Notes, stating that he
had “sold more crap to Pursuit.” (Exh. 49). The court finds that the problem was not
confined to only the CDOs at issue in this PJR. For instance, on September 24, 2007, as
17 “It sounds like Moodys is trying to figure out when to start downgrading, and how much damage they’re going to cause – they’re meeting with various investment banks.” (Exh. 17). 18 “FW: hearing moody’s will announce a bunch of CDO downgrades in the next hourish.” Morelli’s response was: “[I’m] going out for lunch . . . do not call the police if I never return.” (Exh. 22). 19 The term “dry gun powder” refers to funds available for purchases of securities. (Tr., 4/6/09, p. 142).
25
the clock was running out on the investment grade ratings for its products, another UBS
employee sent an email to a UBS director referencing another supposed “investment
grade” rated CDO in their inventory, writing, “OK still have this vomit?” (Exh. 62).
Based on the above-mentioned evidence, the court finds that the Plaintiffs’ have
presented sufficient evidence to satisfy the probable cause standard with respect to their
claim that UBS was in possession of superior knowledge that was not readily available to
the Plaintiffs. This material nonpublic information related to rating agency downgrades that
would significantly decrease, if not render worthless, the CDO Notes it was selling Pursuit.
Further, UBS was aware the Pursuit was only seeking to invest in CDO Notes rated
“investment grade,” and UBS knew that by investing in the subject CDO Notes, Pursuit
was acting on the basis of misleading information. Moreover, because UBS was in the
position of “Super-senior Noteholder” in the structure of these CDOs, such ratings
downgrades, while working to the detriment of buyers like the Plaintiffs, could work to the
benefit of sellers like UBS in the super-senior position, because super-seniors have first
dibs on whatever payments are made on a CDO. A UBS Securities LLC credit analyst
explained it in an October 16, 2007 email sent to Morelli and others. Writing about the
billions of dollars in Moody’s downgrades, downgrades that were now public knowledge,
the UBS analyst wrote, “These bonds [subject to downgrades] appear in countless CDOs.
The downgrades were more severe than what the market seemed to anticipate !!! And !!!
The downgrades could constitute a triggering event that would be an Event of Default for
various for various CDOs. . . If this occurs, then it may prove salutary for the Super-senior
holders [like UBS] as more cash flow would be preserved for their protection.” (Exh. 91).
A November 21, 2007 email from a UBS senior structurer on its CDO desk stated it more
26
succinctly. Writing to Morelli, Kumar and the head of UBS’s CDO group, and ending with
a smiley face, the email says “we protect our super seniors the best : ).”
Connecticut Uniform Securities Act (CUSA)
General Statutes § 36b-29 provides in relevant part: “(a) Any person who . . . (2)
offers or sells or materially assists any person who offers or sells a security by means of
any untrue statement of a material fact or any omission to state a material fact necessary
in order to make the statements made, in the light of the circumstances under which they
are made, not misleading, who knew or in the exercise of reasonable care should have
known of the untruth or omission, the buyer not knowing of the untruth or omission, and
who does not sustain the burden of proof that he did not know, and in the exercise of
reasonable care could not have known, of the untruth or omission, is liable to the person
buying the security . . . .” With respect to this claim pursuant to CUSA, the court adopts
and incorporates its reasoning regarding Pursuit’s fraudulent omissions claim.
Unjust Enrichment
The elements of unjust enrichment are “that: (1) the defendant benefited; (2) the
benefit was at the expense of the plaintiff; and (3) that equity and good conscience require
restitution.” Mazzaro de Abreu v. Bank of America Corp., 525 F. Sup. 2d 381, 397
(S.D.N.Y. 2007). With respect to this claim, the court adopts and incorporates its reasoning
regarding Pursuit’s fraudulent omissions claim. Moreover, in light of the alternate grounds
articulated to sustain the application for a PJR, the court will not address the remaining
allegations of negligence.
27
Damages
“[I]n an application for a prejudgment remedy, the amount of damages need not
be determined with mathematical precision. . . . A fair and reasonable estimate of the
likely potential damages is sufficient to support the entry of a prejudgment attachment. . .
. Nevertheless, the plaintiff bears the burden of presenting evidence which affords a
reasonable basis for measuring [its] loss.” (Citations omitted; internal quotation marks
omitted.) Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693, 795 A.2d
1274 (2002). “[A] finding of probable damages . . . is an integral part of the probable
cause determination.” Id., 694. The parties have agreed that for the purposes of this
application, Pursuit paid $40, 535,010.96 for the subject Notes. Pursuit received pre-
liquidation payments totaling $4,961,106.43, leaving $35,573,904.53 as the amount
sought under this PJR application.
Conclusion
Many financial institutions made bad bets in the mortgage related markets, with
losses totaling hundreds of billions of dollars. There can often be a huge discrepancy
between perceived risks and actual risks in investing. This discrepancy is magnified in the
facts of this case by the complexity and opacity of the terms of the CDOs, and the high
degree of leverage in their makeup. Risk means the chance that an investment's actual
return will be different than expected. This includes the possibility of losing some or all of
the original investment. The court finds that the Notes at issue were represented orally by
UBS employees and in emails to Pursuit as “triggerless.” The court also finds that even if
UBS knew that Pursuit attached a certain meaning to the term “triggerless,” that fact,
standing alone and without more, would be insufficient to sustain Pursuit’s burden for
28
purposes of the PJR, due to the full disclosures spelled out in the written documentation
supplied by UBS for each CDO. But the court finds there is more to this case than that.
Through direct and circumstantial evidence, Pursuit has established probable cause to
sustain the validity of a claim that the UBS defendants were in possession of material
nonpublic information regarding imminent ratings downgrades on the Notes it sold to the
Plaintiffs, information UBS withheld from the Plaintiffs.
The use of the term “triggerless,” which was used by UBS to entice the Plaintiffs to
purchase the same Notes they had earlier rejected, is akin to a representation by UBS that a
gun being handed to the Plaintiffs is not loaded, when in fact UBS knew the gun was not
only loaded, but was about to go off. The court takes UBS employees at their word when
they referenced their Notes, these purported “investment grade” securities which they sold,
as “crap” and “vomit”, for UBS alone possessed the knowledge of what their product, their
inventory, was truly worth. While UBS would argue that such descriptors lack a precise
meaning, the true meaning of these words and the true value of UBS’s wares became
abundantly clear when the Plaintiffs’ multi-million dollar investment was completely
wiped out and liquidated by UBS shortly after the last of the Note purchases was
consummated.
That is the difference between a risk that something might happen to change the
value of an investment, which is both a fact of life and a risk shared by all parties to any
securities transaction, and the undisclosed knowledge that something will happen. That
type of nondisclosure, whether it is on the part of a seller or a buyer, can cross the line into
actionable securities fraud, and the court finds probable cause to sustain a finding that it
this instance, it did.
29
Accordingly, the court finds probable cause that a judgment in the amount of the
prejudgment remedy sought, taking into account any known defenses, will be rendered in
favor of the Plaintiffs. It is hereby ordered that the Plaintiffs may attach and/or garnish the
property and/or assets of the defendants UBS AG and UBS Securities LLC to the value of
$35,573,904.53. The court denies the Plaintiffs’ application as to the Defendant Morelli,
believing the security of the assets of UBS AG and UBS Securities, LLC to be sufficient.
The court further declines to grant any additional fees, interest or damages, leaving such
claims for a trial on the merits. Within ten (10) days from the date of issuance of notice of
this order, it is further ordered, pursuant to General Statutes § 52-278n, that the UBS
Defendants are required to disclose assets sufficient to satisfy this prejudgment remedy, or
in lieu thereof, to move the court for substitution of a bond with surety, or of other
sufficient security.
SO ORDERED,
_________________ Blawie, J.