VALERIE CAPRONI, District Judge.
On December 5, 2017, the National Credit Union Administration Board ("NCUA" or "Intervenor") moved to intervene in a lawsuit brought by Plaintiff Royal Park Investments ("Royal Park") against Defendant HSBC Bank USA, National Association ("HSBC" or "Defendant") regarding HSBC's use of trust funds to indemnify itself in related litigation. HSBC opposes the intervention. For the reasons discussed below, NCUA's motion to intervene is DENIED.
This case is part of the next round of litigation between entities that lost money when the Residential Mortgage-Backed Securities ("RMBS") market collapsed and a few banks that appear to represent the last available deep pockets that may have some conceivable liability for those investment losses. In an earlier round of litigation, which is still ongoing, unhappy holders of
Apparently now concerned that litigation costs may deplete funds that would otherwise be used to make payments to holders of
NCUA is an independent federal agency that, inter alia, may act as conservator and liquidating agent for failed credit unions.
NCUA contends that Defendant's use of
Pursuant to Federal Rule of Civil Procedure 24(a)(2), a court "must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." To intervene either as of right or with permission, "an applicant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action. . . . Failure to satisfy any one of these four requirements is a sufficient ground to deny the application." Floyd v. City of New York, 770 F.3d 1051, 1057 (2d Cir. 2014) (citations, alteration, and internal quotation marks omitted). "While accepting as true the non-conclusory allegations of the motion courts applying Rule 24 must be mindful that each intervention case is highly fact specific and tends to resist comparison to prior cases." Kamdem-Ouaffo v. Pepsico, Inc., 314 F.R.D. 130,134 (S.D.N.Y. 2016) (citation and internal quotation marks omitted).
NCUA argues that the Court should grant its motion to intervene as of right. See Int. Mem. at 6-13. NCUA asserts that its motion is timely, that it has a sufficient interest in Royal Park's action, that its ability to protect its interest would be impaired if it cannot intervene, and that Royal Park does not adequately represent NCUA's interest. Id.; Reply Memorandum in Support of Motion to Intervene by National Credit Union Administration Board as Liquidating Agent ("Reply") [Dkt. 51] at 2-10. Defendant asserts that NCUA does not satisfy any of the required factors. See Memorandum in Opposition to Motion to Intervene by National Credit Union Administration Board as Liquidating Agent ("Opp.") [Dkt. 48] at 8-24. The Court analyzes each factor below.
Whether a motion is timely "defies precise definition [but] is not confined strictly to chronology." Floyd, 770 F.3d at 1058 (quoting United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994)) (internal quotation marks omitted). The determination is flexible and "entrusted to the [Court's] sound discretion." Id. (citing United States v. Yonkers Bd. of Educ., 801 F.2d 593,594-95 (2d Cir. 1986)) (internal quotation marks omitted). A court considers "(a) the length of time the applicant knew or should have known of its interest before making the motion; (b) prejudice to existing parties resulting from the applicant's delay; (c) prejudice to the applicant if the motion is denied; and (d) the presence of unusual circumstances militating for or against a finding of timeliness." Id. (quoting MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377,390 (2d Cir. 2006)) (internal quotation marks omitted).
NCUA asserts that its motion is timely because it filed its motion the day after Defendant filed its motion to dismiss and less than two months after the Complaint was filed. Int. Mem. at 6-7; Reply at 2-3. NCUA also argues that there is no prejudice to the parties because discovery has been stayed, and because NCUA does not seek to add any additional trusts to the case. Int. Mem. at 7; Reply at 3. Denial of intervention, NCUA argues, will prejudice its interests because a decision from this Court could affect any separate case NCUA might bring and could produce inconsistent rulings as to whether HSBC can use trust funds from the FHLT 2006-C trust to pay for its defense in the underlying litigation. Int. Mem. at 8; Reply at 4. Lastly, NCUA claims that there are no unusual circumstances bearing on timeliness that disfavor intervention. Int. Mem. at 8-9; Reply at 4.
Defendant argues that NCUA knew about its alleged interest in this case well before it sought to intervene and intended to delay the case by waiting to move to intervene until after Royal Park's motion to dismiss was filed. Opp. at 19-22. The delay prejudices HSBC because intervention would postpone resolution of the parties' dispute to allow NCUA to make arguments that Royal Park is well-suited to make itself. Id. at 23. HSBC claims that NCUA would not suffer any prejudice if this Court denies its motion because it can file a separate action to protect its purported interest, and that no unusual circumstances favor intervention. Id. at 23-24.
The Court finds that, in all, NCUA's motion is timely. While its motion did not immediately follow the Complaint's filing, NCUA did move within two months of the case's commencement.
"[F]or an interest to be `cognizable' under Rule 24, it must be direct, substantial, and legally protectable [such that an] interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule." Floyd, 770 F.3d at 1060 (quoting Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010); Brennan v. NEC. Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001)) (internal quotation marks omitted).
NCUA points to its interest in the OTCs as they relate to the FHLT 2006-C trust, as well as its OTCs in other trusts from the same securitization shelves. Int. Mem. at 9. According to Intervenor, its right to the re-conveyance of the
In response, HSBC contends that NCUA does not have an interest in this action because, inter alia, it does not own any certificates in FHLT 2006-C. Opp. at 8-13. HSBC argues that NCUA transferred all of its rights in the underlying FHLT 2006-C certificates to the NGN Trust, which then transferred those same rights to an Indenture Trustee. NCUA is, therefore, several steps away from any interest in the FHLT 2006-C certificates, and its role as Guarantor of the NGN 2010-R2 (Series II-A) Trust does not give it any rights in the underlying
Whether NCUA has a sufficient interest to support its request to intervene is related to the question of whether, by virtue of its ownership in OTCs, it has standing to bring claims against the trustees of the
Judge Forrest's ruling was subsequently affirmed by the Second Circuit. The Circuit held that NCUA, as liquidating agent, "lacks derivative standing to bring claims on behalf of the NGN Trusts for the simple reason that the NGN Trusts themselves do not have claims to bring. To the contrary, the NGN Trusts conveyed the
Just as NCUA lacks standing to sue
Although the Court finds that NCUA does not have a sufficient interest to warrant intervention, it proceeds with the analysis of the remaining factors for the purposes of providing full consideration of all four required factors.
To demonstrate impairment, "the proposed intervenor must show that his interest may be impaired by the disposition of the action, . . . which can be satisfied by asserting that as a practical matter, an adverse decision may compromise the party's claims. . . ." Delaware Tr. Co. v. Wilmington Tr., N.A., 534 B.R. 500, 509 (S.D.N.Y. 2015) (citations, alteration, and internal quotation marks omitted).
NCUA asserts that precluding intervention here may affect its interests through stare decisis, and, at best, it could generate conflicting rulings as to how HSBC may fund the various Trustee Liability Cases in which it is a defendant. Int. Mem. at 10-11; Reply at 7-8. HSBC responds, inter alia, that the impairment needs to be caused by NCUA's absence, and that this Court's ruling would only be persuasive authority to another district judge. Opp. at 13-15
The Court finds that, if NCUA did have a sufficient interest in this action, that interest might be impaired by a disposition of this action. It is true that this Court's ultimate determination will only be persuasive authority as to other district court judges who may face the same issue. See, e.g., Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) ("A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.") (citation and internal quotation marks omitted). The Court appreciates, however, that were NCUA to prevail in a hypothetical separate case aimed at preventing HSBC from using funds from the FHLT 2006-C trust to indemnify itself from NCUA's Trustee Liability Case, and were HSBC to prevail in the instant matter and obtain a ruling that permits it to continue to use FHLT 2006-C trust funds to indemnify itself for its defense costs in Royal Park's Trustee Liability Case, HSBC might deplete the trust funds by defending against Royal Park's Trustee Liability Case, effectively eliminating any benefit to NCUA from its hypothetical successful lawsuit.
"While there is generally a presumption of adequacy in intervention cases, evidence of collusion, adversity of interest, nonfeasance, or incompetence may suffice to overcome the presumption." Eddystone Rail Co., LLC v. Jamex Transfer Servs., LLC, No. 17-cv-1266, 2018 WL 739454, at *6 (S.D.N.Y. Feb. 7, 2018) (quoting Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001)). "[T]he burden to demonstrate inadequacy of representation is generally . . . minimal, [but the Second Circuit has] demanded a more rigorous showing of inadequacy in cases where the putative intervenor and a named party have the same ultimate objective. . . ." Butler, 250 F.3d at 179 (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972); Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92,98 (2d Cir. 1990); US. Postal Serv. v. Brennan, 579 F.2d 188,191 (2d Cir. 1978)). Inadequacy is not shown merely by demonstrating that the putative intervenor and the existing party have different motives to litigate. Wash. Elec., 922 F.2d at 98 (citing Nat. Res. Def. Council, Inc. v. New York State Dep't of Envtl. Conservation, 834 F.2d 60, 61-62 (2d Cir. 1987)).
NCUA advances three arguments for why Royal Park's representation is inadequate. See Int. Mem. at 11-13; Reply at 8-10. First, it asserts that "NCUA, as a federal agency, has broader interests than Royal Park does that also are rooted in public interest," which Royal Park cannot represent. Int. Mem. at 11-12. Second, NCUA argues that, although it may ultimately become a member of Royal Park's class,
HSBC counters that NCUA's interest as a federal agency is irrelevant because NCUA seeks to intervene as a liquidating agent, not as a federal regulatory agency. Opp. at 16-17. It contends that class members are presumed to be adequately represented by the class representative, and that, in any event, Royal Park and NCUA have the same objective, rendering intervention inappropriate. Id. at 17-18. Lastly, HSBC asserts that the other trusts in which NCUA may have an interest are irrelevant to this matter. Id. at 18-19.
The Court agrees with HSBC. It is clear that Royal Park and NCUA share the same objectives in that both want to prevent HSBC from indemnifying itself with funds from the trust, and both want to recover funds that have allegedly been improperly withdrawn. See Complaint ¶¶ 40-73; Proposed Complaint rit 66-78. That NCUA would prefer to maximize its own recovery is of no moment.
Accordingly, because NCUA does not satisfy all four factors required for intervention as of right, its motion to intervene is denied.
Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), a court "[o]n timely motion . . . may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact." "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). The Second Circuit has made clear that the four factors discussed as to intervention of right are also necessary for permissive intervention. See, e.g., Waterkeeper All., Inc. v. Salt, 714 F. App'x 77, 78 (2d Cir. 2018) ("Before a court will grant a motion to intervene under Rule 24(a) or (b), the proposed intervenor must `(1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.") (quoting Floyd, 770 F.3d at 1057) (emphasis added). "Permissive intervention is wholly discretionary with the trial court." Eddystone, 2018 WL 739454, at *9 (quoting U.S. Postal Serv., 579 F.2d at 191) (internal quotation marks omitted).
NCUA seeks, in the alternative, to intervene permissively, arguing that its intervention is timely, that it will contribute to the development of a full record (pointing to an amicus brief it filed in another case), and that HSBC's "looting of trust funds" is inequitable. Int. Mem. at 13-16; Reply at 10. HSBC opposes permissive intervention for reasons similar to its opposition to intervention as of right. Opp. at 24-25. Further, it argues that "[t]he Court and the parties do not need [NCUA's] assistance in addressing purely legal questions" and that NCUA's presence in the case would be duplicative. Id.
The Court does not find that NCUA's proposed assistance with developing the record
For the reasons discussed above, NCUA's motion to intervene is denied.
In BlackRock Allocation Target Shares: Series S. Portfolio v. Wells Fargo Bank, National Ass'n, Judge Failla considered Judge Forrest's and Judge Scheindlin's opinions and agreed with Judge Forrest. 247 F.Supp.3d 377, 410-16 (S.D.N.Y. 2017). Judge Failla held that NCUA "lacks standing to bring a derivative claim . . . on behalf of the NGN Trusts because the NGN Trusts lack standing to bring a claim against Defendant, having transferred all rights to such claim to [the Indenture Trustee] through the Indenture Agreement. Id. at 415.