In this enforcement action for injunctive relief and damages, the Attorney General of the State of New York (NYAG) alleges that defendants Credit Suisse Securities (USA) LLC and related entities (Credit Suisse) committed fraudulent and deceptive acts in connection with the creation and sale of residential mortgage-backed securities (RMBS).

The Complaint alleges that in promoting and selling RMBS,^[FN1] defendants led investors to believe that defendants had "carefully evaluated — and would continue to monitor — the quality of the loans underlying their RMBS, and that [defendants] would encourage loan originators to implement sound origination practices," when in fact defendants "systematically failed to adequately evaluate these loans. . . ." (Complaint, ¶ 2.) According to plaintiff, as a result of defendants' focus on "keeping a high volume of loans coming to them from originators," they [*2]implemented an "incentives" program which rewarded originators (to whom defendants extended lines of credit worth hundreds of millions of dollars), based solely on the volume of loans they sold to defendants, and encouraged originators to deliver defective loans. (Id., ¶ 4.) Plaintiff also alleges that defendants were aware of "pervasive flaws in the screening process for loans underlying Defendants' RMBS," and that despite defendants' acknowledgment "internally" of such flaws, defendants failed to disclose the flaws to investors or the public. (Id., ¶¶ 5, 6.) Further, plaintiff alleges that even when defendants' "severely flawed" review process identified defective and failing loans, defendants knowingly waived such loans into the pools. (Id., ¶¶ 53-55.) While the Complaint emphasizes defendants' alleged misrepresentations about, and flaws in, their due diligence process, the Complaint also alleges misrepresentations regarding the quality of the mortgage loans underlying the securities. (Id., ¶¶ 39-42; see infra at 13.)

The Complaint pleads two causes of action. The first alleges that defendants violated the Martin Act, Article 23-A of the General Business Law (GBL §§ 352 et seq.), by employing "deception, misrepresentations, concealment, suppression, fraud and false promises regarding the issuance, exchange, purchase, sale, promotion, negotiation, advertisement and distribution of securities." (Complaint, ¶ 74.) The second alleges that defendants violated Executive Law § 63 (12), based on their violation of the Martin Act or other "persistent fraud or illegality in the carrying on, conducting or transaction of business." (Id., ¶ 76.) This action raises claims similar to those brought against Credit Suisse in jurisdictions around the country.^[FN2] The claims under the Martin Act are, however, unique.

Credit Suisse moves to dismiss the Complaint, pursuant to CPLR 3211 (a) (5) and (7), based upon res judicata, failure to timely commence suit under the applicable statute of limitations, and failure to state a cause of action.^[FN3]

Standard Of Review

It is well settled that on a motion to dismiss pursuant to CPLR 3211(a) (7), "the pleading is to be afforded a liberal construction (see, CPLR 3026). [The court must] accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]. See 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002].) However, "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts." (Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]; see also Water St. Leasehold LLC v Deloitte & Touche LLP, 19 AD3d 183 [1st Dept 2005], lv denied 6 NY3d 706 [2006].)

Statute Of Limitations

The parties' threshold and principal dispute is whether the three year statute of limitations [*3]of CPLR 214 (2) or the six year statute of limitations of CPLR 213 (1) or (8) applies to the NYAG's claims.^[FN4] Credit Suisse contends that the Complaint must be dismissed in its entirety because it is an action to recover on a liability created by statute and is therefore governed by the three year limitations period set forth in CPLR 214 (2).^[FN5] (Ds.' Memo. In Support at 12.) Plaintiff counters that this action is not one to recover upon a liability created by statute because it seeks relief based on fraud recognized at common-law, and that the action is therefore governed by the six year limitations period set forth in CPLR 213 (1) for actions for which no limitation is specifically prescribed by law, or the six year limitations period set forth in CPLR 213 (8) for fraud. (P.'s Memo. In Opp. at 6.)

The three year statute of limitations provided by CPLR 214 (2) governs "an action to recover upon a liability, penalty or forfeiture created or imposed by statute" (with exceptions not here relevant). It is well settled that "CPLR 214 (2) does not automatically apply to all causes of action in which a statutory remedy is sought, but only where liability would not exist but for a statute.'" (Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d 201, 208 [2001] [Gaidon II], quoting Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 174 [1986]; see also City of New York v Kingsview Homes, Inc., 70 AD2d 866, 867 [1st Dept 1979], quoting Shepard Co. v Taylor Pub. Co., 234 NY 465, 468 [1923] ["[A] liability created by statute . . . is construed to mean a liability which would not exist but for the statute'"].) It is further settled that "CPLR 214 (2) does not apply to liabilities existing at common law which have been recognized or implemented by statute.'" (Gaidon II, 96 NY2d at 208, quoting Aetna Life, 67 NY2d at 174.) Where the statute codifies or implements liabilities existing at common law, "the Statute of Limitations for the statutory claim is that for the common-law cause of action." (Gaidon II, 96 NY2d at 208.)

The Martin Act "authorizes the Attorney General to investigate and enjoin fraudulent practices in the marketing of stocks, bonds and other securities within or from New York." (Assured Guar. (UK) Ltd. v J.P. Morgan Inv. Mgt. Inc., 18 NY3d 341, 349 [2011].) The purpose of the Martin Act was "to create a statutory mechanism in which the Attorney-General would have broad regulatory and remedial powers to prevent fraudulent securities practices by investigating and intervening at the first indication of possible securities fraud on the public and, thereafter, if appropriate, to commence civil or criminal prosecution." (Id. at 350-351.)

As the Court of Appeals has made clear, where a statute does not " make' unlawful the alleged fraudulent practices, but only provide[s] standing in the Attorney-General to seek redress and additional remedies for recognized wrongs which pre-existed the statute[]," such a statute does "not create or impose new obligations." (State of New York v Cortelle Corp., 38 NY2d 83, 85 [1975].)

There is substantial authority applying the six year statute of limitations to investor fraud [*4]claims brought under Executive Law § 63 (12) or the Martin Act. ^[FN6] In Cortelle, the Court of Appeals explained that "[i]n applying a Statute of Limitations it is basic that one look to the essence of plaintiff's claim and not to the form in which it is pleaded." (38 NY2d at 86.) Cortelle held that CPLR 213 (1), rather than CPLR 214 (2), was applicable to an Executive Law § 63 (12) claim based on a scheme to obtain ownership of distressed properties by means of fraudulent misrepresentations.^[FN7] The Court reasoned that although this Executive Law provision "may in part expand the definition of fraud so as to create a new liability in some instances, it also incorporates already existing standards applied to fraudulent behavior always recognized as such." (Id. at 87.) The Court further held that the allegations at issue "create no new claims but only provide particular remedies and standing in a public officer to seek redress on behalf of the State and others. Moreover, the kind of wrong the Attorney-General seeks to redress is not a new one to the decisional law but a now rather old and common type of fraud" — namely, "promissory fraud." (Id. at 86, 87.)

In State of New York v Bronxville Glen I Assocs. (181 AD2d 516 [1992]), this Department expressly held that CPLR 213 (8) rather than 214 (2) was applicable to a Martin Act claim. As explained by the Court, "[l]iability is considered to be created by statute . . . if the statute establishes a unique species of liability entirely unknown at common law." (Id. at 516.) Noting that "the Martin Act may expand the definition of fraud so as to create new liability in some instances," the Court found that "[l]iability for investor fraud was not created by the [*5]Martin Act, but is recognized in case law predating that legislation." (Id.)

Defendants argue that the NYAG's claims are "substantively different from claims cognizable at common-law and would not exist but for those statutes." (Ds.' Memo. In Support at 9.) According to defendants, the claims are substantively different because the NYAG does not, and under the Martin Act need not, plead two of the "hallmark" elements of common-law fraud — namely, scienter and reliance.^[FN8] Defendants maintain that this difference compels the court to apply CPLR 214 (2) to the NYAG's claims under the "reasoning" of Gaidon II and other cases. (Id. at 9-11.) Plaintiff responds that his claims in this action were recognized at common-law and that he has in fact pleaded the elements of common-law fraud. (P.'s Memo. In Opp. at 7-10, 15-17.) Plaintiff further contends that Gaidon II did not involve the Martin Act, and did not overrule the holdings of Cortelle and Bronxville that Martin Act fraud claims are not subject to CPLR 214 (2). According to plaintiff, the reasoning of Gaidon II does not in any event support a holding that the elements of scienter and reliance must be pleaded in order for the CPLR 213 six year limitations period to apply. (Id. at 12-13.)

Gaidon II (96 NY2d 201, supra) held that misrepresentations in promotional materials used in selling vanishing premium policies "did not rise to the level necessary to establish a common-law fraud claim" (id. at 209), but were actionable under General Business Law § 349, " a creature of statute based on broad consumer-protection concerns.'" (Id., quoting Gaidon v. Guardian Life Ins. Co. of Am., 94 NY2d 330, 343 [1999] [Gaidon I].) Although noting that a General Business Law § 349 claim may cover conduct "akin to" a common-law fraud claim, the Court found that the section 349 claim at issue was "critically different" from a common-law fraud claim. (Id. at 209, quoting Gaidon I, 94 NY2d at 343.) The Court accordingly applied the three year statute of limitations of CPLR 214 (2).

Defendants argue that Gaidon II "reason[ed] that because the consumer fraud statute did not require scienter, the statute encompassed a significantly wider range of deceptive business practices that were never previously condemned by decisional law', and thus, CPLR 214(2) applied." (Ds.' Memo. In Support at 10, quoting Gaidon II, 96 NY2d at 210.) Defendants thus suggest that the absence of scienter is the critical element that distinguishes common-law fraud from the conduct that the Court held actionable under General Business Law § 349.

Defendants' quotation of the Gaidon II Court's holding is, however, incomplete. The quoted sentence reads: "Thus, despite plaintiffs' and the Attorney General's contentions to the contrary, it is not merely the absence of scienter that distinguishes a violation of section 349 from common-law fraud; section 349 encompasses a significantly wider range of deceptive business practices that were never previously condemned by decisional law." (Gaidon II, 96 NY2d at 209-210.) More specifically, the Gaidon II Court reasoned that the defendants' misrepresentations in their promotional materials did not support a common-law fraud claim "because of the disclaimers" in the materials. In holding that General Business Law § 349 created a new liability, the Court found that although the disclaimers vitiated the common-law fraud claim, they "were not sufficient to dispel the deceptiveness of [the defendants'] sales practices" under the statute. (Id. at 209.)

Defendants thus overstate the holding of Gaidon II in claiming that it requires application of the three year statute of limitations of CPLR 214 (2) "where a statute sets forth elements of proof that diverge from the elements required by common law." (See Ds.' Memo. In Support at 10.) State v Daicel Chem. Indus., Ltd. (42 AD3d 301, 303 [1st Dept 2007]), on which defendants rely, also fails to support this reading of Gaidon II. Following Gaidon II, Daicel held that a cause of action under Executive Law § 63 (12), based on General Business Law § 349, was barred by CPLR 214 (2). The Court's reasoning was as follows: "These claims rely on allegations of conduct made illegal by statute, and do not even allege all the elements of common-law fraud, and as such they are covered by CPLR 214 (2)." Daicel, like Gaidon II, thus notes the divergence between the elements of proof of the common-law claim and the statutory claim, but does not hold that it is determinative of whether the liability is created by statute.^[FN9] Based on close reading of these cases, this court concludes that a divergence in the elements of proof is but one factor that must be considered in determining whether liability was created by statute, not the sine qua non of such determination.

Significantly, cases construing the Martin Act since the time of its enactment have held that the Act prohibits misrepresentation of facts in the sale of securities, even where such misrepresentation is not intentional. (People of the State of New York v The Federated Radio Corp., 244 NY 33, 36 [1926]; State of New York v Rachmani Corp., 71 NY2d 718, 725 n 6 [1988] ["[T]o establish liability for fraudulent practices in an enforcement proceeding under the Martin Act, the Attorney-General need not allege or prove either scienter or intentional fraud"]; Assured Guar. (UK) Ltd., 18 NY3d at 350 [same].) With this standard of proof already well settled, the Court of Appeals in Cortelle and this Department in Bronxville held that Executive Law § 63 (12) and Martin Act cases based on investor fraud were governed by the six year statute of limitations of CPLR 213.^[FN10]

Defendants do not cite any appellate case which holds that an investor fraud claim under [*6]either Executive Law § 63 (12) or the Martin Act is not subject to the six year limitations period of CPLR 213. Nor do they cite any appellate case which supports their contention that Cortelle and Bronxville are "superseded" by Gaidon II and Daicel. (See Ds.' Memo. In Support at 11.) These cases do not explicitly or implicitly overrule the earlier cases. As discussed above, Gaidon II and Daicel involve liability under a wholly different statute. Defendants' contention aside, the cases do not hold that liability is imposed by statute, and that application of CPLR 214 (2) is required, whenever there is a divergence between the elements of a common-law claim and the elements of the statutory claim. Rather, under Gaidon II and Daicel, a divergence is a factor to be considered in determining whether the statute creates a new liability. Gaidon II reaffirmed settled law that "CPLR 214 (2) does not apply to liabilities existing at common law which have been recognized or implemented by statute.'" (96 NY2d at 208.) Indeed, Gaidon II cited Cortelle approvingly for the proposition that, in such instance, "the Statute of Limitations for the statutory claim is that for the common-law cause of action which the statute codified or implemented." (Id. at 208.)

To the extent that plaintiff contends that all Executive Law § 63 (12) and Martin Act cases based on investor fraud are subject to a six year statute of limitations, that contention also overstates the law. Cortelle relies on well settled law in holding that a court must look to the essence of the claim, and not to the form in which it is pleaded, to determine whether a liability was recognized by the common-law or is imposed by statute. (38 NY2d at 86, citing Brick v Cohn-Hall-Marx Co., 276 NY 259, 264 [1937]; accord Matter of Guzman v 188-190 HDFC, 37 AD3d 295, 296 [1st Dept 2007], lv denied 9 NY3d 801 [citing Cortelle]; see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977].) The inquiry that the court must undertake is therefore whether plaintiff's claims under Executive Law § 63 (12) and the Martin Act allege conduct that would not be illegal or fraudulent but for the Martin Act or whether they allege fraud that was cognizable at common-law.

This court finds that the essence of plaintiff's claims under both Executive Law § 63 (12) and the Martin Act is that defendants made false representations in order to induce investors to purchase their securities. ^[FN11] These claims thus seek to impose liability on defendants based on the classic, longstanding common-law tort of investor fraud. The court accordingly holds that, even in the absence of allegations of scienter, the claims are subject to the six year statute of limitations. ^[FN12]

The court's conclusion that the NYAG's claims are for investor fraud recognized at common-law is strongly supported by the fact that in the many pending common-law fraud cases brought before this court by private investors in RMBS, the allegations as to the misrepresentations made by the defendant-securitizers are substantially similar to those in this [*7]action. (See e.g. Allstate Ins. Co. v Credit Suisse Secs. (USA) LLC [Allstate], 2014 WL 432458, * 7 [Sup Ct, NY County Jan. 24, 2014] [alleging misrepresentations, among others, that loans were generally originated in accordance with underwriting guidelines; that exceptions to underwriting standards were on a case-by-case basis only when the borrower demonstrated compensating factors; and that the defendants ignored their own due diligence, issued repurchase demands to originators for defective loans, and then kept the money recovered from originators rather than passing it on to the securitization trusts for the benefit of investors]; HSH Nordbank v Barclays Bank PLC, 2014 WL 841289 [Sup Ct, NY County Mar. 3, 2014] [HSH Nordbank].)

Although this court has held that this action is subject to the six year statute of limitations of CPLR 213 even absent the pleading of scienter, the court notes that the allegations of plaintiff's Complaint are substantially similar to those which the court has previously determined are sufficient to plead scienter in the common-law fraud RMBS actions. (See Allstate, 2014 WL 432458 at * 12; HSH Nordbank, 2014 WL 841289 at * 15-16.)^[FN13]

Defendants further argue that the Complaint does not allege reliance on defendants' alleged misrepresentations, and that plaintiff therefore asserts claims that would not exist but for the statute, or seeks to take advantage of a wider range of deceptive practices than supported liability under the common-law. (Ds.' Memo In Reply at 5, 7.) Contrary to defendants' contention, the NYAG's Complaint includes allegations of reliance by private investors on defendants' alleged misrepresentations, which are similar to the reliance allegations in RMBS actions brought by private investors that are pending before this court.^[FN14]

To the extent that defendants argue that it is necessary to plead direct reliance by the NYAG in order to state a claim cognizable at common-law, that argument is untenable. Plaintiff correctly maintains that "reliance would not be an element of a sovereign action for investor fraud even absent the Martin Act and § 63(12)." (P.'s Memo. In Opp. at 15, 11.) As discussed above, the Martin Act was enacted to "create a statutory mechanism in which the Attorney-General would have broad regulatory and remedial powers to prevent fraudulent securities practices" by investigating and prosecuting claims. (Assured Guar. (UK) Ltd., 18 NY3d at 350-351 [internal citations and quotation marks omitted].) Here, as in Cortelle, "[a]s applied to the allegations in this case, the statutes authorizing the Attorney-General to bring this action "create no new claims but only provide particular remedies and standing in a public officer to seek redress on behalf of the State and others. Moreover, the kind of wrong the Attorney-General seeks to redress is not a new one to the decisional law but a now rather old and common type of fraud." (38 NY2d at 86.)

Defendants also argue that plaintiff fails to plead reasonable reliance by private investors on defendants' alleged misrepresentations and, in particular, that the Complaint does not allege such reliance because the marketing materials contained clear warnings and disclaimers that statements in such materials should not be relied upon. (Ds.' Memo. In Reply at 7.) This argument ignores that the Complaint pleads that defendants made misrepresentations not only in marketing materials but also in offering documents, including Prospectus Supplements and Private Placement Memoranda. (Complaint, ¶ 39.) These representations included that the loans [*8]were originated "generally in accordance" with underwriting standards; that exceptions were made to underwriting standards only where "compensating factors" existed; that originators made a determination that the borrowers had the ability to repay; and that in the case of "stated income" loans — i.e., loans that permitted borrowers to state their income and assets without verification — defendants applied a "reasonableness test" to determine whether the claimed income was reasonable. (Id., ¶¶ 40-41.) Defendants do not argue that the offering documents made disclosures about these representations that rendered investors' reliance on them unjustifiable.^[FN15]

Defendants contend that the disclaimers in the marketing materials preclude reliance on representations made in those materials. (Ds.' Memo. In Reply at 7.) The alleged disclaimer in the marketing materials states that these materials "may not be used or relied upon for any purpose other than as specifically contemplated by a written agreement with CS." (Aff. of Lauren Moskowitz, Ex. 28 at 25.) The record does not contain evidence as to the written agreement, if any, with Credit Suisse. Moreover, defendants do not submit any legal authority which addresses the effectiveness of the disclaimer under governing New York law, or demonstrates that it precludes reliance as a matter of law.

In sum, the court concludes that CPLR 213 is applicable to the NYAG's claims here because, as stated in Cortelle, the essence of the claims is common-law fraud (38 NY2d at 86) or, as stated in Bronxville, "allegations of fraud are the heart of the State's complaint." (181 AD2d at 516.)

Res Judicata

Defendants contend that the NYAG's claims based on "bulk settlements" are barred by res judicata, as a result of a settlement by Credit Suisse with the SEC involving the same transactions. (Ds.' Memo. In Support at 18.) The Complaint alleges, with respect to bulk settlements, that when defendants' quality control review process revealed defective loans, defendants often left the loans in the pools underlying the RMBS, but obtained monetary settlements for the loans from the originators which defendants "pocketed for themselves." (Complaint, ¶¶ 67-72.)

It is well settled that res judicata "bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was." (People ex rel Spitzer v Applied Card Sys., Inc., 11 NY3d 105, 122 [2008] [internal quotation marks and citation omitted].) Privity has been characterized as an "amorphous term." (Id. at 123, quoting Buechel v Bain, 97 NY2d 295, 304 [2001].) "Ultimately, [the court] must determine whether the severe consequences of preclusion flowing from a finding of privity strike a fair result," taking into account "the policies that res judicata is designed to protect." (Id.)

The court is unpersuaded by defendants' contention that Applied Card compels

Here, defendants do not claim that the NYAG or any New York investors had the right to accept or reject the SEC cease-and-desist order, or that their interests were formally or informally represented by the SEC. Moreover, defendants fail to cite any authority which holds that a state attorney general may be in privity with the SEC with respect to a cease-and-desist order, or which involves analogous circumstances. Without such authority, defendants fail on this motion to carry their burden of establishing privity for res judicata purposes as to the "bulk settlement" claims.

Failure To State A Claim

Finally, defendants argue that the Complaint fails to plead the facts underlying its fraud claims with the specificity required by CPLR 3016 (b). (Ds.' Memo. In Support at 20.) As discussed above (supra at 11-12), the misrepresentations alleged in the NYAG's Complaint as to loan quality and due diligence are similar to those alleged by private investors in the RMBS fraud cases pending before this court, and in which this court has upheld the pleadings at the motion to dismiss stage. The court relies on the reasoning and authority of its prior decisions in holding that the Complaint here pleads actionable misrepresentations. (Allstate, 2014 WL 432458, supra; HSH Nordbank, 2014 WL 841289, supra.)

The court rejects defendants' contention that the Complaint is insufficiently pleaded because it fails to allege details about the materials or documents in which the misrepresentations were made or to identify the securitizations to which the misrepresentations relate. (See Ds.' Memo. In Support at 21; Ds.' Memo. In Reply at 13.) As noted in prior decisions, the weight of authority holds that an RMBS fraud claim is adequately pleaded where the complaint alleges the defendants' systematic abandonment of underwriting guidelines, notwithstanding that the complaint does not specifically reference the loans in the pools underlying the securities. (Allstate, 2014 WL 432458 at * 9-10 [and authorities cited therein].) That authority is applicable here, as the Complaint alleges defendants' knowledge of its originators' systematic abandonment of underwriting standards. (Complaint, ¶¶ 18, 20, 21.) As to defendants' further contention that the Complaint lacks sufficient specificity because it does not state how the marketing materials were published or identify the investors that received them (see Ds.' Memo. In Reply at 13), the court holds that the particularity standard of CPLR 3016 (b) does not require that level of detail. (See generally HSH Nordbank, 2014 WL 841289 at * 17.) The court has considered defendants' remaining objections to the pleading of the fraud claim and finds them to be without merit.

It is accordingly hereby ORDERED that defendants' motion to dismiss the Complaint is denied in its entirety.

December 24, 2014

MARCY FRIEDMAN, J.S.C.