BlackRock Core Bond Portfolio, et al. v. Wells Fargo Bank, National Association
|Court:||New York State Supreme Court|
|Case Number:||Index No. 656587/2016|
|Judge:||Hon. Andrew S. Borrok|
|Case Contacts:||Timothy A. DeLange,|
Class action on behalf of certificateholders in 271 residential mortgage-backed securities (“RMBS”) trusts for which Wells Fargo Bank, National Association (“Wells Fargo”) serves as trustee (the “Trusts”). Plaintiffs generally allege that Wells Fargo, as trustee for the Trusts, breached its contractual and common law duties by not causing the substitution or repurchase of mortgage loans that allegedly breached representations and warranties from the entities (or their successors) that sold the mortgage loans to the Trusts and by not providing notices to cure servicing violations to the servicers responsible for servicing the mortgage loans in the Trusts. Wells Fargo has denied Plaintiffs’ allegations, denied that it has any liability, and asserted various affirmative defenses to Plaintiffs’ claims.
Plaintiffs’ claims have largely proceeded in federal court—an action that has been litigated extensively. See BlackRock Allocation Target Shares: Series S Portfolio, et al. v. Wells Fargo Bank, Nat’l Ass’n, Case No. 14-cv-9371-RMB (S.D.N.Y.). In the parallel federal case, the Parties have conducted more than three years of discovery related to the claims and underlying events and transactions. The Parties have served, collectively, more than 550 requests for production, exchanged nearly 5.5 million documents, and deposed at least 75 party witnesses. The Parties have also received and analyzed over 700,000 documents from third parties following the issuance of more than 160 third party subpoenas. Relatedly, certain Plaintiffs filed an action in New York State court captioned PIMCO Absolute Return Strategy 3D Offshore Fund Ltd., et al. v. Wells Fargo Bank, National Association, Index No. 654743/2017 (N.Y. Sup. Ct.) seeking declaratory relief to address Wells Fargo’s indemnification by the Trusts in connection with the trustee litigation (the “Declaratory Relief Action”).
The Class Action Settlement
The Parties have reached a proposed settlement of this action for $43 million in cash and release of $70 million of the Reserve Funds held by Wells Fargo in connection with 20 Bank of America Trusts that, if approved by the Court, will resolve all claims in the Actions. If you are a member of the Settlement Class, your rights will be affected and you may be eligible for a payment from the Settlement, if the Settlement is approved. The Settlement Class consists of:
All persons or entities who purchased or otherwise acquired a beneficial interest in a security issued from one the 271 RMBS Trusts listed in Exhibit 2 to the Stipulation and (i) hold on the date on which the Court enters an order finally approving the Settlement or (ii) held at any time on or after June 18, 2014, but no longer hold as of the date on which the Court enters an order finally approving the Settlement.
On November 9, 2018, Plaintiffs filed a motion with the New York Supreme Court seeking an Order directing notice to the proposed Settlement Class of the proposed Settlement and Fairness Hearing, and setting a date for Fairness Hearing. On January 30, 2019, Judge Borrok issued an Order directing notice to the proposed Settlement Class and setting the Fairness Hearing for May 6, 2019 at 10:00 a.m.
Please read the Notice to fully understand your rights and options. Copies of the Notice and Claim Form can be found on the Case Documents page. You may also visit the Settlement website, www.BlackRockWellsFargoTrusteeClassAction.com, for more information about the Settlement.
If you are a member of the Settlement Class, in order to be potentially eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than July 2, 2019.
Payments to eligible claimants will be made only if the Court approves the Settlement and a plan of allocation, and only after any appeals are resolved, and after the completion of all claims processing. Please be patient, as this process will take some time to complete.
YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT
|SUBMIT A CLAIM FORM BY JULY 2, 2019.||This is the only way to be eligible to receive a payment from the Settlement.|
|EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS BY APRIL 15, 2019.||If you exclude yourself from the Settlement Class, you will not be eligible to receive any payment from the Settlement. Exclusion is the only option that can allow you to bring another lawsuit against the Defendant with respect to the Released Claim|
|OBJECT TO THE SETTLEMENT||If you are a Settlement Class Member and do not like the proposed Settlement, the proposed Plan of Allocation, and/or the request for attorneys’ fees and expenses, you may object orally at the Fairness Hearing on May 6, 2019, or write to the Court and explain why you do not like them.|
|ATTEND THE HEARING ON MAY 6, 2019 AT 10:00 A.M.||You may attend the hearing and speak in Court about the fairness of the proposed Settlement, the Plan of Allocation, and/or the request for attorneys’ fees and expenses.|
|DO NOTHING.||If you are a Settlement Class Member and you do not submit a Proof of Claim Form, you will not be eligible to receive any payment from the Settlement. You will, however, remain a Settlement Class Member and give up your right to bring, participate in, or receive a monetary or other recovery in connection with another lawsuit against the Defendant with respect to the Released Claims, and you will be bound by any orders entered by the Court.|
Original State Court Action
Plaintiffs commenced this action in New York State Supreme Court against Wells Fargo in June 2014 on behalf of themselves and a putative class of investors in Certificates issued by more than 250 RMBS trusts for which Wells Fargo serves as trustee. See Blackrock Allocation Target Shares: Series S Portfolio, et al. v. Wells Fargo Bank, Nat’l Ass’n, Index No. 651867/2014 (the “Initial State Court Action”). In November 2014, Plaintiffs filed a motion for voluntary dismissal of that action without prejudice that the Court granted on December 23, 2014.
The Federal Action and Third-Party Actions
On November 24, 2014, Plaintiffs filed a complaint in the Southern District of New York captioned BlackRock Allocation Target Shares: Series S Portfolio, et al. v. Wells Fargo Bank, National Association, Case No. 14-cv-9371-RMB (S.D.N.Y.) (the “Federal Action”). On April 30, 2015, Defendant filed a motion to dismiss the complaint, which Plaintiffs opposed. Defendant’s motion was fully briefed on June 29, 2015, and oral argument was heard on December 22, 2015. On January 19, 2016, the Honorable Richard M. Berman issued a decision and order declining to exercise supplemental jurisdiction over Plaintiffs’ state law claims relating to certain Trusts and granting Plaintiffs leave to file an amended complaint in the Federal Action on indenture trust claims.
On February 24, 2016, Plaintiffs filed an amended complaint pursuant to the January 19, 2016 order. The amended complaint did not include derivative claims brought on behalf of the Trusts and instead brought claims directly on behalf of Trust investors. Thereafter, on June 17, 2016, the case was re-assigned to the Honorable Katherine Polk Failla.
On July 8, 2016, Wells Fargo filed a motion to dismiss the amended Federal Action complaint, which Plaintiffs opposed. Defendant’s motion to dismiss was fully briefed on September 6, 2016. On March 30, 2017, Judge Failla issued an opinion and order granting in part and denying in part Wells Fargo’s motion, dismissing Plaintiffs’ breach of fiduciary duty claims and sustaining Plaintiffs’ claims for breach of contract, violations of the Trust Indenture Act, and breach of the duty to avoid conflicts of interest. On May 12, 2017, Wells Fargo filed its answer to the amended complaint.
On May 26, 2017, Wells Fargo filed complaints for contribution against Plaintiffs’ investment advisors in the Third-Party Actions. On October 13, 2017, the third-party defendants filed motions to dismiss Wells Fargo’s third-party complaints. The third-party defendants’ motions to dismiss were fully briefed on December 14, 2017. The motions remain pending.
On January 31, 2018, Plaintiffs filed a motion for class certification in the Federal Action, supported by an expert report and other evidence. On February 26, 2018, Wells Fargo filed an opposition to the class certification motion and a motion to preclude Plaintiffs’ expert report. Plaintiffs filed their reply in support of class certification and in opposition to Defendant’s motion to preclude Plaintiffs’ expert report on March 26, 2018. Wells Fargo filed its reply in support of its motion to preclude Plaintiffs’ expert report on April 9, 2018, and, on April 23, 2018, filed a surreply in further opposition to Plaintiffs’ class certification motion.
On November 19, 2018, Judge Failla issued an Order Of Discontinuance directing the Clerk of the Court to terminate all pending motions, adjourn all remaining dates, and close the case.
State Court Proceedings
On March 28, 2016, Plaintiffs re-filed the dismissed claims relating to the non-indenture Trusts previously asserted against Wells Fargo in the Initial State Court Action and the Federal Action in California State Court in San Francisco County. Blackrock Balanced Capital Portfolio (FI), et al. v. Wells Fargo Bank, Nat’l Ass’n, Case No. CGC-16-551176. On September 27, 2016, the California State Court granted Wells Fargo’s motion to dismiss based on the ground of inconvenient forum pursuant to Cal. Civ. Proc. Code §§ 410.30 and 418.10, subd. (a)(2).
Thereafter, on December 16, 2016, Plaintiffs filed a complaint in New York State Court captioned Blackrock Core Bond Portfolio, et al. v. Wells Fargo Bank, National Association, Index No. 656587/2016 (Sup. Ct. N.Y. Cty.) the “NY State Court Action”). The complaint in the NY State Court Action asserts claims for breach of contract, breach of fiduciary duty, breach of the duty to avoid conflicts of interest, and negligence. The complaint was brought directly on behalf of a putative class of current Trust certificateholders.
On June 21, 2017, Wells Fargo filed a motion to dismiss, which Plaintiffs opposed on August 7, 2017. Wells Fargo filed a reply on August 28, 2017, and oral argument was heard on September 20, 2017. That motion remained pending until September 25, 2018, when the Court marked the motion off the calendar without prejudice due to the Parties’ proposed Settlement.
Declaratory Relief Action
On July 11, 2017, certain Plaintiffs filed the Declaratory Relief Action arising from Wells Fargo’s reimbursement of litigation expenses from Trust funds. The Declaratory Relief Action sought a declaration that, in connection with Wells Fargo’s defense of the Federal Action and the NY State Court Action, Wells Fargo was not entitled to indemnity from the Trusts, was not entitled to draw against the Trusts’ funds for purposes of advancing its attorneys’ fees and expenses, and was not entitled to withhold or reserve Trust funds for future legal expenses.
On September 15, 2017, Wells Fargo filed its motion to dismiss Plaintiffs’ complaint or, in the alternative, for a declaration in its favor, in the Declaratory Relief Action. On September 26, 2017, the PIMCO Plaintiffs filed their opposition to Wells Fargo’s motion to dismiss. Wells Fargo filed its reply on October 4, 2017.
On November 13, 2017, following oral argument, the Court granted Wells Fargo’s motion to dismiss the Declaratory Relief Action. On January 5, 2018, the PIMCO Plaintiffs filed a notice of appeal. The appeal is pending.
Mediation and Settlement
On June 7, 2018, Plaintiffs, on behalf of themselves and others similarly situated, provided draft terms of a potential settlement to Defendant through Phillips ADR. On June 11, 2018, the Parties agreed to engage in a confidential mediation to negotiate terms of a potential settlement. The Parties jointly selected a neutral, the Honorable Layn R. Phillips (Ret.) of Phillips ADR, to conduct the mediation. On August 3, 2018, the Parties convened a full day, in-person meeting to discuss the proposed settlement terms under the supervision and with the participation of Judge Phillips’ associate. On August 4, 2018, Judge Phillips conducted a full day, in-person mediation session; however, the Parties were unable to reach an agreement to settle the Actions.
The Parties continued to negotiate confidentially throughout the next two weeks with the assistance of Judge Phillips, and subsequently reached an agreement in principle to settle the Actions that was memorialized in a term sheet (the “Term Sheet”) executed on August 15, 2018. The Term Sheet sets forth the Parties’ agreement to settle the Actions and release all claims amongst the Parties related to the Actions in return for, among other things, a cash payment of $43 million to be paid by Wells Fargo for the benefit of the Settlement Class and release of $70 million of the Reserve Funds held by Wells Fargo in connection with 20 Bank of America Trusts, subject to the execution of a formal stipulation and agreement of settlement and related papers. The settlement agreement also proposes to dismiss with prejudice all Actions.
On November 9, 2018, Plaintiffs filed a motion with the Court seeking an Order directing notice to the proposed Settlement Class of the proposed Settlement and Fairness Hearing, and setting a date for Fairness Hearing. On January 30, 2019, Judge Borrok issued an Order directing notice to the proposed Settlement Class and setting the Fairness Hearing for May 6, 2019 at 10:00 a.m.
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