Shares of MBIA Inc. jumped more than 10% Tuesday after a New York
The case was filed in May 2009 by more than a dozen major financial institutions — one of two lawsuits contesting MBIA’s restructuring.
The plaintiffs hold insurance policies issued by MBIA for structured finance products, including residential mortgage-backed securities.
They believe the value of MBIA’s guarantee was irreparably harmed when the insurer split its structured finance portfolio from its safer portfolio of municipal bonds.
The appellate division of the New York State Supreme Court ruled in favor of MBIA by a margin of 3 to 2.
MBIA has continued to pay all insurance claims since the restructuring, so “no breach of a specific contractual provision has been made out,” the court said in its 34-page decision. “In effect, plaintiffs seek an advisory opinion premised on future events that are beyond defendants’ controls and thus are speculative.”
The court also said plaintiffs failed to detail fraud or corporate misconduct, and noted the restructuring was performed through legitimate channels with the approval of its regulator, the New York Insurance Department.
MBIA earlier called this case “an improper collateral attack” on the NYID. If the banks wish to contest the approval of its restructuring, the insurer contends they must do so under Article 78 of New York Civil Practice Law and Rules, which would allow them to argue that the NYID decision was “arbitrary and capricious.”
The court sided with that reasoning Tuesday, calling an Article 78 proceeding “the appropriate vehicle” for challenging the NYID’s approval of the restructuring. If plaintiffs believe the department determined its approval based on bad information, the court said, they should explore that issue in a case to which the superintendent of the NYID is a party.
The financial institutions filed an Article 78 lawsuit in June 2009, which remains pending.
Robert Giuffra Jr., lead counsel for the banks and a partner at Sullivan & Cromwell LLP, called Tuesday’s decision “far from the last word.”
He vowed to vigorously pursue the Article 78 proceeding, while appealing Tuesday’s decision to the New York State Court of Appeals — the state’s highest appellate court.
“As powerfully demonstrated in the dissent, the majority opinion is wrong on the law and ignores the allegations of the complaint,” Giuffra said in an e-mailed statement. “Next month, we will submit compelling evidence to the trial court [in the Article 78 proceeding] showing that MBIA used misleading and outdated financial numbers to obtain the New York Insurance Department’s approval of these fraudulent transactions.”
The financial institutions Giuffra represents include Bank of America Merrill Lynch, Morgan Stanley, UBS, and BNP Paribas.
MBIA shares closed at a 27-month high of $13.53 on Tuesday. Shares have jumped 42% since Dec. 29, as investors are increasingly optimistic that the insurer will recover billions of dollars from mortgage-loan repurchases by financial institutions that originated the loans.
