NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/08/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------x NORTHERN GROUP INCORPORATED and ALTITUDE PARTNERS, LLC, Plaintiffs, -against- MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and MERRILL LYNCH GOVERNMENT SECURITIES, INC, Defendants. ------------------------------------------------------------------------x Amended Complaint Index No. 603271/08 Plaintiffs Northern Group Incorporated ("Northern") and Altitude Partners, LLC ("Altitude") (collectively, the "Companies" or "plaintiffs"), by their attorneys Hinman, Howard & Kattell, LLP, allege as follows: PRELIMINARY STATEMENT JURISDICTION 1. This Court has jurisdiction over defendants Merrill Lynch, Pierce, Fenner & Smith Incorporated and Merrill Lyneh Government Securities, Inc. (colleetively, "Merrill" or "defendants") pursuant to CPLR 302 (a)(l) because each defendant has its principal place of business within the State of New York. PARTIES 2. PlaintifI Northern Group Incorporated is a Delaware company and has an office located in New York, New York. 3. Plaintiff Altitude Partners, LLC is a Delaware company and has an ofliee loeated in New York, New York. 4. Defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated ("ML") is a Delaware corporation with its principal place of business in New York, New York. 5. Defendant Merrill Lynch Government Securities, Inc. ("MLGS") IS a Delaware corporation with its principal place of business in New York, New York. FACTUAL BACKGROUND 6. NOlthern was formed in 1990 and Altitude was !(ll"lued in 2007. 7. Jacqueline Fried ("Fried") and Alexander Dembitzer ("Dembitzer") are the sole shareholders of Northern and sole members of Altitude. 8. Northern is a management company managed by Fried and Dembitzer to manage real property which is owned by Fried and Dembitzer through various special purpose entities. 9. Altitude is an entity managed by Fried and Dembitzer. 10. Altitude's sole business purpose is to hold liquid assets (derived 1\'om the operation of real property or the sale of real property) until such time as Fried and Dembitzer need such assets to acquire or improve real property. 11. Northern and Altitude each hold their assets separate \'om one another and neither one is: (i) a Qualified Institutional Buyer ("QIB") or an (ii) institutional investor that is an accredited investor within the meaning of 501(A),(I), (2), (3), or (7) of Regulation D under the Securities Act of 1933 ("Securities Act"). MERRILL'S SOLICITATION OF' PLAINTIFF TO INVEST IN COMMERCIAL MORTGAGE-BACKED SECURITIES 12. In May, 2008, Northern entered into a consulting agreement with Irwin Boris ("Boris"). Boris's initial responsibility was to assist in obtaining financing as well as assist in the management of properties managed by Northern. 13. Prior to consulting for Northern, Boris was contacted by John Mulligan 2 ("Mulligan"), a Merrill Managing Director, regarding various investments for his then employer, El Ad. 14. When Boris began working j{)r Norlhern, Boris injurmed Mulligan of his new position. 15. On April 16, 2008, Mulligan, on behalf of defeudants, met with Fried, Dembitzer and Boris. Mulligan touted Merrill's expertise in the flnaneial analysis of companies fur the purpose of providing honest opinions and recommendations on whether Merrill clients should buy, hold or sell securities. Defendants represented themselves as the premier llnll in the f,nance industry, adhering to all ethical and regulatory standards, complying with the 2004 analyst consent agreement, and maintaining their clients' accounts in accordance with applicable standards within the industry. 16. At the meeting, Fried, Dembitzer, and Boris inf{lrI11ed Mulligan that neither they nor the plaintiffs had ever invested in commercial mortgage backed securities ("MBS"). 17. Fried and Dembitzer also advised Mulligan that: (i) they were not experienced investors in securities; (ii) Altitude's sale flmction was to hold funds for Dembitzer and Fried until such time as they were needed to invest in real estate; (iii) plaintiffs' primary objective was to maintain principal and liquidity so that the funds would be available to invest in real estate on short notice; (iv) they had a conservative investment strategy; and (v) if they chose to proceed they would be relying on Merrill's selection of securities in order to provide the Companies' safety, liquidity and principal protection. 18. Mulligan then presented plaintiffs with a high pressure sales pitch in an effort to convince them to invest in MBS and/or collateralized mortgage obligations 3 ("CMO," collectively referred to with MBS as "CMBS"). More specifically: a. Mulligau advised plaintim (via Dembitzer and Fried) that CMBS are liquid bonds ("Bonds"). b. Mulligan advised plaintiffs that the Bonds traded in an active market and were prieed by a mark to market system. e. Merrill advised plaintiffs that it made a market in the Bonds so that they will always be saleable; d. Mulligan informed plaintiffs that the Bonds were secured by loans on eommercial property. e. Mulligan advised plaintiffs that Merrill was the originator/underwriter/syndicator of many Bonds ("Merrill Originated Bonds") and that the underwriting standards used by Merrill in originating such bonds were the most stringent in the industry; f Mulligan represented to plaintiffs that the Bonds arc "money good," conservative, safe and highly liquid investments and that the safety of the investments arc reflected by the high ratings from S&P, Moodys and Fitch. g. Mulligan assured Fried, Dembitzer and Boris that if the plaintiffs invested in Bonds rated A or higher, the principal risk would be comparable to that of a similarly rated government security. More specifically, a Bond rated AAA was comparable in risk to a United States Treasury Bond, while a Bond rated AA was eomparable to an Israeli Treasury Bond. h. Mulligan failed to advise plaintiffs that 88% of the Bonds were rated A or higher, and that seventy pereent of the Bonds were considered "super senior". 1. Mulligan also stated that a portfolio of CMBS in different 4 geographic areas and different propClty elassitlcations (i.e. retail, industrial, otlice, hotels ...) would provide diversification and thus, additional security far superior to municipal bonds. J. Mulligan fililed to advise plaintiffs that many of the loans underlying the Bonds would have been in default but for funds escrowed at closing. k. Mulligan failed to advise plaintiffs of the decline in underwriting metries used to generate both the bonds and their underlying loans. To wit: (i) in greater loan to value ratios; (ii) greater percentage of loan interest only; (iii) use of j(llward looking rather than actual tlnaneials in determining debt service coverage. I. Mulligan fi.uther advised plaintiffS that Merrill would provide the plaintifls with repurchase tlnaneing ("Repo Financing") on the Merrill Bonds. Mulligan also reassured them that Merrill has always in the past provided, and would continue to provide, Repo Financing on securities bought ji'om Men'ill's trading inventory ("Inventory Bonds"). m. Mulligan stated that the llnaneing offered on Bonds varied based on the ratings of these securities. The higher the rating on the Inventory Bonds, the greater the amount of tlnancing Merrill would provide. Merrill otIered the Inventory Bonds with a repurehase roll-over period ("Repo Roll"). This means that after 30 days the interest rate for the Bonds would be reset in accordance with the current L1BOR pricing. Thc tlnancing Merrill offered the plaintiffs on Bonds with a 30-day rcpo roll was as follows: AAA 85% AA 75% A 65% BBB 50% 5 n. Apparently anticipating concerns about the heavy leverage, Mulligan then repeated his assurances about the safety and liquidity of the investments and that the leverage would create a nominal risk. In this vein, Mulligan stated: (i) if plaintiffs purchased short term Bonds, the price fluctuations were meaningless because the Bond would payoff in ftl!l within that time frame; and (ii) the strength of the collateral underlying the Bonds would minimize any l1uctuation. o. Mulligan then recommended certain Inventory Bonds. 19. The plaintiffs left the meeting believing that investing in Bonds was in line with their business objectives. MERRILL'S OPENING AND OPERAnON OF THE INVESTMENTS ACCOUNTS 20. On April 18, 2007, Max Baker, Director of CMBS Trading at Merrill, emailed the plaintiffs an offering of some Bonds. 21. On April 21,2008, Merrill assigned Matthew LoVecchio, CLoVecehio"), hom Merrill's Global Markets and Investment Banking (GMI) ._.. NY Fixed Income Sales Group, to act as the plaintiffs' registered representative and sales consultant. 22. That same day, LoVecchio emailed the plaintiffs an introduction, offered his assistance and outlined the required doeUli1entation to open an account with Merrill: specifically, a Master Repurchase Agreement ("MRA") with Merrill, an Investment Management Agreement ("IMA"), an offering memorandum or prospectus for the plaintiffs, a certificate of formation or articles of incorporation, and a tax ID form. 23. This was the only detailed documentation Merrill requested Ii'om the plaintiffs for Merrill to open and maintain the accounts. 6 24. The plaintiffs reviewed such requests and advised Merrill that they had no offering memorandum or prospectus. 25. On April 28, 2008, LoVecchio emailed the plaintiffs to notify them that Merrill had set up accounts n no IMA was ever submitted. In that same email, LoVeeehio offered the plaintiffs two Bonds that were eaeh rated A. 26. Shortly thereafter, LoVeeehio requested a Enaneial statement for Merrill's credit department to review to approve plaintiffs' creditworthiness for the purchase and financing of Bonds. 27. On or about May 2, 2008, Northern providcd a statement of assets it managed, whieh were constructively owned by Dembitzer and Fried. The flnaneial statement was unaudited, unexecuted and was a merely a two page statement, with the Erst page listing cash and real estate owned by Dembitzer and Fried through special purpose entities while the second page listed mortgages and a net value - - i.e. assets luinus lTIOltgages. 28. No Enaneial statement was providcd by Altitude. 29. LoVecchio and his group continued the sophisticated hard-sell methods that Merrill employed throughout Merrill's relationship with the plaintiffs. Beginning on April 22, 2008, LoVecchio called plaintiffs on almost a daily basis, in an effort to convince them to purchase Inventory Bonds. LoVecchio also sent the plaintiffs emails praetieally every day eontaining an offering ofInventory Bonds. At no time, however, did Merrill send the plaintiffs any kind of account analysis or market analysis of the InventOlY Bonds that adequately disclosed the risks of investing in CMBS. To wit: degradation of underwriting metries, rapid decline of the eollateral underlying eertain segments of CMBS, laek ofliqnidity in CMBS, and the inability to have an aeeurate mark 7 to market price due to the lack of liquidity in the CMBS market. 30. Boris asked LoVechhio for information regarding the Bonds and was told that the only information required was that contained on the Trepp Sheets. 31. The Trepp Sheets providcd a snapshot of the performance of the loans underlying the Bonds. To wit: Loan: Amount of Loan; Loan Balance; ldentitleation of Property; Term of Loan; Amortization Term; lntercst Only Period; Status of Loan -- current, delinquent or default; and a summary of each category. 32. In this regard, LoVecchio gavc plaintifh his password so tlicy could acccss the Trepp Sheets. 33. Plaintiffs were never provided with any offering memorandums, prospectus' or private placement memorandums ("Offering Memorandums") for any of the Bonds which they purchased. 34. On April 18, 2008, Merrill attempted to send plaintiffs two offering memorandums via email. Apparently due to the tremendous size of the attachments, neither document was received. Altitude did ultimately purchase Bonds reflected in one of the offering memorandums. 35. Other than the futile attempt to provide plaintifls with Offering Memorandums on April 18, 2008 (see paragraph 33 above), plaintiffs never received any Offering Memorandums until they were provided in discovely in this action. 36. On or around May 5, 2008, in reliance on Merrill's representations set fortb above, Northern and Altitnde each entered into a Master Repurchase Agreement ("Repo Agreement) with Merrill, dated April 28, 2008, and provided Merrill with Northern's Certificate of Incorporation and Altitude's Certificate of Formation. No IMA was provided or even requested. 8 37. Upon information and belief, an IMA is required pursuant to Merrill's internal compliance manual, and the Know Your Client Rules contained in FINRA Rule 2090. 38. Northern did not make any investments or conduct any trading activities with Merrill. Only Altitude purchased Bonds fi'om Menill. 39. Altitude would never have invested in Bonds if Merrill had not represented to the plaintiffs that the Bonds were "money good," conservative, safe, sound, highly rated, highly liquid investments, and if Menill had not assured it of the safety of making these investments with the levels of financing Merrill agreed to provide. THE INITIAL CMBS PURCHASES IN PLAINTIFFS' ACCOUNTS 40. On or about May 12,2008, Altitude purchased eight inventory Bonds with a face value of $23,626,000, for $16,985,945 ("Purchase 1") with Merrill Providing 30- day Repo Financing as follows: (i) ML Commercial CMO 2006 4 Crated AA for $3,981,138.28; (ii) Waehovia Bank CMO 2006 C29 Crated AA for $2,779,605.70; (iii) ML Commercial CMO 2007 6E rated A- for $2,623,880.16; (iv) ML Commercial TR CMO 2007 Cl B rated AA tor $ 105,710.94; (v) Waehovia Bank CMO 2007 C31 AJ rated AAA telr $2,841,222.66; (vi) Waehovia Bank CMO 2007 C31 F rated Ate)]' $4,077,656.25; (vii) ML Commercial CMO 2007 5 D rated Ate)]' $272,544.18; and (viii) ML Commercial CMO 2007 8 Crated AA for $304,187.50. 41. Plaintiffs were never given an Offering Memorandnm for any of sueh Bonds and thus were not privy to the numerous risk tiletors detailed therein. 42. Plaintiffs were never provided with the updated financials t,)r any of such Bonds. 9 43. On May 12, 2008, the settlement date for these purchases, Altitude paid for the Bonds in cash by wiring $4,700,792 to Merrill, with $12,326,000 in financing hom Menill. 44. On May 19, 2008, Altitude purchased two additional Bonds with a combined $2,964,000 filce value for $2,810,425 with Merrill providing 30 day Repo Financing of $2,389,000 ("Purchase 2") as follows: (i).lP Morgan Chase CMO 2006 FL2A A2 rated AAA for $365,929.69;and (ii) Greenwich Capital CMO 2006 FL4A A2 rated AAA for $2,444,495.63. 45. PlaintiiTs were never provided with offering memorandum for either Bond and thus were not privy to the numerous risk factors detailed therein. 46. On June 4, 2008, Altitude purchased another two bonds with a combined face value of $7,020,000 for $6,387,661 with Merrill providing 30 day Repo Financing in the amount of $4,754,000 ("Purchase 3") as follows: (i) Bank of America Large Loan 2007 BMB1 Crated AA for $4,505,273.44; and (ii) Citigroup CMT 2007 FL3A A2 Rated AAA for $1,882,387.50. 47. Merrill never provided plaintiffs with any Offering Memorandums !{ll' any of those Bonds, and thus plaintiffs were not privy to any of the risk factors detailed therein. 48. Merrill never provided plaintiffs with any updated !inancials !{)r any of such Bonds. 49. On June II, 2008, the Repo Financing for Purchase 1 came due. Merrill sent the Companies notification that for Altitude to roll Purchase I for another repo period, Altitude had to pay an additional $112,000 to cover market valuations. 50. As of June II, 2008, Altitude had purchased a total of $33,61 0,000.00 face 10 amount of Inventory Bonds hom Merrill f'lr purchase prices totaling $26, 184,03 I .00 with Repo Financing totaling $19,469,000. 5I. On June 16, 2008, LoVecchio advised Northern that it must execute and return a QIBLlST Application ("QIB Form"). 52. The QIB Form is a representation that the buyer of securities is a qualillcd institutional investor and therefore, eligible to purchase unregistered securities (such as Bonds) pursuant to an excmption in the Securities Act of 1933 ("Securities Act"). 53. According to Part 230.144A of the General Rules and Regulations of the Securities Act, to be effective, a QIB Form must be exeeuted by a company's Chief Financial Officer, a person lulfilling an equivalent funetion, or other exeeutive offieer of the purehaser. 54. On June 16, 2008, Boris exeeuted the QIB Form and returned same to LoVeeehio. 55. Boris was never the Chief Financial Offker, a person fulfilling an equivalent fi.lIlction or other executive officcr of any of the plaintiffs. Merrill was awarc that plaintiffs were a mother, son operation and that Boris was a new hire and Merrill should have looked to one of the principals of plaintiffs for such signature. 56. Merrill's failure to have the QIB form executed prior to the purchase or by an authorized person, is yet an other example (no IMA) of how its desperation to unload the InventOly Bonds took precedenec over following proper proecdure. 57. On Junc 23, 2008, Northern rewarded Boris by making him its Chief Investmcnt Officer ("CIa") a title which is not traditionally considered to be an actual officer but rather a mere job title. Tellingly, Boris was not cIa of Altitude, and he I 1 gained such title with Northern after he executed the QIB Form. 58. Merrill was precluded Ii'om selling any of the Bonds to the plaintiffs because they did not qualify to use any of the exemptions fi'om registration under tbe Securities Act of 1933 PLAINTIFFS SUCCUMB TO ADDITIONAL SALES PRESSURE FROM MERRILL 59. On June 13, 2008, Dembitzer and Boris, met with Merrill to discuss investing in Bonds. Those present from Merrill werc Matthew LoVecchio, Roger Lehman CLehman"), Max Baker ("Baker"), and Julia Tcherkassova ("Tcherkassova"). At that meeting, LoVecchio, Baker and Tcherkassova reiterated that CMBS are strong, secure, liquid investments and that Bonds are rated A and above are "money good." This meeting induced Altitude to retain its existing positions regarding the Bonds Altitude had already purchased and to purchase additional Bonds. At such mccting, Lchman vigorously stated that the higher rated Bonds held almost no principal risk because they were in a senior position to the lower rated Bonds. What Lebman and Merrill Lynch f ~ t i l e d to disclose at such meeting was that close to ninety percent of all the Bonds were in this senior position, thereby making this statement almost meaningless -- the senior Bonds were effectively not senior to any other bonds. In addition, Lehman failed to disclose the degeneration of underwriting metries that had occurred since 2003, thereby weakening the value of the underlying collateral. To wit: loan to value ratio increased; the cash How to debt service coverage decreased; loans were written on pro-forma financials rather than actual financials; the methods of appraisal were loosened allowing for higher valuations. 60. During that conversation, LoVecchio informed Boris that Altitude had 12 initial approval for $50 million of Repo Financing, and that, if needed after quarter-end, the plaintiffs could discuss increasing their Repo Financing amounts based on their past performance, Boris also asked LoVecchio if the plaintifls could extend their repo periods for 90 days or morc. LoVecchio answcred that he spoke with Merrill's rcpurchase tlnancing group and they suggested repeating this request after quarter-end. 61. On .June 20, 2008, the Repo Financing from Purchasc 2 expired and LoVecchio stated that in order to roll the tlnancials ovcr for another period, Altitude must invcst an additional $14,000, which Altitude then did. THE EARLY MARGIN CALLS 62. On .June 24, 2008, Merrill sent Altitude a notice of a margin call with an exposure of $464,468, which Merrill claimed was duc to a decrease in markct value for all the Bonds purchased by Altitude. Altitude covered the margin call. 63. On June 30, 2008, Merrill sent Altitude noticc of a second margin call for $396,452, which Merrill once again claimed was due to the decreasc in market value for all thc Bonds purchased by Altitude. Altitude covercd the margin call. 64. On July 7, 2008, the Repo Financing camc due. Paul Caputo, another representative at Merrill who was handling the Companies' accounts at Merrill while LoVecchio was away, told Altitude that it would have to invest an additional $100,000 in cash to roll the financials over for another 30-day period, which Altitude did. 65. When Dembitzer and Boris asked LoVecchio why Altitude was recclvmg all these margin calls, LoVecchio responded that it was due to the fact that it was the end of the current qumier. He said there is always volatility at the end of the quarter, but that the prices would readjust in a few days. LoVecchio further assured Dembitzer and Boris 13 that these were just paper losses and that the Bonds were good investments. MORE SALES PRESSURE, MORE PURCHASES 66. With that reassurance in mind, on July 9, 2008, in response to the daily offering sheet provided by LoVecchio ofInventory Bonds, Altitude purchased two Bonds with a combined IIlce value of $10,000,000 jix $9,140,625 with Merrill providing 30 day Repo Financing of $7,770,000 ("Purchase 4") as follows: (i) ML CMO 2006 1 A2 rated AAA for $4,603,125; and (ii) ML CMO 20061 B ratcd AAA fi)r $4,537,500. 67. P l a i n t i n ~ were never given an Offering Memorandum fi)r either of such Bonds, and thus were not privy to any of the risk factors detailed therein. 68. From July 11, 2008 to July 24, 2008, the Repo Financing expired and was rolled for 30 days. This time, Merrill did not request any additional funds Ii'om Altitude. 69. On July 18, 2008, Altitude purchased two Inventory Bonds with a combined face value of $2,000,000 for $1,177,031 with Merrill providing 30 day Rcpo Financing of $880,000 ("Purchase 5") as follows: (i) CW Capital Cabal CMO 2006 CI G rated BBB fi)r $402,187.50; and (ii) ML Commercial CMO 2007 7 AJ rated AAA lill" $774,843.75. 70. Plaintiffs were never given an Offering Memorandum for either of sucb Bonds, and thus were not privy to any of the risk factors detailed therein. 71. On July 21, 2008, Altitnde purchased one Inventory Bond with a face value of $5,000,000 face for $4,097,656 with Merrill providing 30 day Repo Financing in the amount of $3,483,000 ("Purchase 6") as follows: ML Commercial CMO 2006 3 AI rated AAA. 72. PlaintiilS were never given an Olfering Memorandnm for snch Bond, and thus were not privy to any of the risk factors detailed therein. 14 MOUNTING MARGIN CALLS IN JULY AND AUGUST Z008 73. On July 30, 2008, Merrill sent Altitude notice of a margin call for $1, I05,110, which Merrill, once again, claimed was due to decrease in market value for all the Bonds Altitude purchased. Altitude covered the margin call. 74. On August 6, 2008, the Repo Financing for the purchases came due and Merrill permitted Altitude to roll it over. The cash remaining from the rollover was applied to the account. 75. On August II, 2008, Merrill sent Altitude notice of a margin call for $533,000 which Merrill once again claimed was due to dccrease in market value for all the Bonds purchased by Altitudc. Altitude covered the margin call. 76. On August 15, 2008, Merrill sent Altitude notice of a margin call for $392,000 which Merrill once again claimed was due to decrease in market value It)r all the Bonds purehased by Altitude. Altitude covered the margin call. 77. On August 19, 2008, Merrill sent Altitude notice of a margm call It)r $607,000 which Merrill once again claimed was duc to decrease in market value for all the Bonds purchased by Altitude. 78. Prior to covering certain of the margm calls, plaintiffs inquired as to whether it could sell the Bonds. Defendants responded that there was a limited market for the Bonds and that, although Merrill would pnrchase them from plaintiffs, it would be at a mark approximately forty percent less than the one used to determine the margin call. As a result, Altitude had no option but to cover the margin calls. 79. Despite the margin calls during that period, LoVecchio repeatedly advised the plaintiffs via telephone calls and emails that the Bonds the plaintiffs purchased were highly attractive, safe, highly rated, "money good" investments with long term value, a 15 nice upside and high payoffs. In this regard, Merrill provided plaintiffs with daily market color from its trading desk as well as weekly CMBS research reports. 80. The weekly CMBS Rcsearch would, as a general rule, discuss a negative occurrence in the commercial rcal estate market but then disingenuously minimize its impact. For instance, when discussing Stuyvesant Town ("Stuy Town") and Peter Cooper Village, Lehman wrotc that although at its present rate, Stuy Town would not have enough funds to satisfy its debt in 4 months, it was immaterial over the next twelve months; and (ii) when discussing a failing borrower, such as: Riverton; Mervins; West Oak Mall; Feldman Mall; Goody,; Steve & Barrys'; Linens and Things; Boseows; Lillian Vernon; Shatver Image; Bombay Company or Borders, Lehman would state that the size of default was immaterial as it was only a miniscule percentage of the bonds -- tellingly Lehman never aggregated the exposure created in a segment ie. retail. CONSOLIDAnON OF THE ACCOUNTS 8I. On August 22, 2008, the Repo Financings for all the purchases were consolidated ("Consolidated Repo") and Altitude had a surplus of $2.4MM of margin cash. To roll these consolidated purchases, $2.4MM of the margin cash was applied to Altitude's account at Merrill. 82. Through late Angust 2008, the net result of the purchases, the margin calls and the Consolidated Repo was that Northern and Altitude had purchased $50,610,000.00 face amount of Bonds for $8,997,334.00 cash plus roll-over and margin payments of $3,427,483.00 for total payments of $12,424,827.00 with total remaining margin of $28,480,000. 83. Throughout September 2008, Merrill made numerous telephone calls to the plaintiffs and sent the plaintiffs numerous emails containing market reports (CMBS 16 Weekly and Daily Color) (i-om Merrill stating that the Bonds were highly attractivc, safe, highly rated, "money good" investments with high payoffs. LATE SEMPTEMBER: THE MOUNTING D 1 S A S n ~ R ANn EXPANDING LIES OF MERRILL 84. On September 22, 2008, the Consolidated Rcpo came duc and, without any notice, Merrill reduecd Altitude's levcrage by flve percent. Thus, Altitude had to invcst an additional $772,000 to cover reduced leverage. Altitude wired the additional $772,000 to Merrill. 85. That same day, Dembitzer and Boris on behalf of Altitude, had a conversation with LoVccchio. During that conversation, LoVecchio stated that Mcrrill would continue providing Repo Financing for Altitude. LoVecchio also assured Dembitzer and Boris that Menill is in the business of buying and selling Bonds and providing flnancing to facilitate transactions. He said that Merrill had reduced the flnancing amounts and therefore, their exposure on a temporaIy basis bccause of market conditions and balance sheet concerns with the pending acquisition of Merrill by Bank of Amcrica. He also reassured Dembitzer and Boris that the fundamentals were sound and that Altitude's investments were liquid, safe and secure. 86. Later that day, Boris contacted LoVecchio to discuss Repo Financing. LoVecchio then called the repo desk at Merrill with Boris in the background. Boris then heard the person LoVecchio was speaking with at the repo desk state that Merrill would continue to provide Repo Financing for Merrill Bonds. 87. On October 1, 2008, Merrill sent Altitude notice of a margin call for $1,063,000, which Merrill once again claimed was due to decrease in market value for all the Bonds purchased by Altitude. Altitude covered the margin call. 17 88. On October 2, 2008, Merrill sent Altitnde notice of a margin call for $9 I4,000, which Men'ill once again claimed was due to decrease in market value for all the Bonds purchased by Altitude. Altitude covered the margin call. 89. On October 10, 2008, Merrill sent Altitude notice of a margin call for $3 I9,000, which Merrill once again claimed was due to dccreasc in market value for all the Bonds purchased by Altitude. Altitude covered the margin call. 90. On October 16, 2008, Merrill sent Altitude notice of a margin call for $1,828,000, which Merrill once again claimed was due to decrease in market value for all the Merrill Bonds purchased by Altitude. 91. On Oetober 20, 2008, Merrill fired more than SOO employees. 92. On October 22, 2008, the Consolidated Repo came due. Merrill informed Altitude that to roll the Consolidated Repo, in addition to applying the entire margin cash, Altitude had to invest an additional $100,000 to cover reduced leverage. Altitude wired the additional $772,000 to Merrill. 93. Instead of providing a thirty day roll over period, Merrill decreased the Consolidated Repo period to seven days without any notice to Altitude. LoVecchio claimed that on account of the layoffs that occurred on October 20, 2008, of more than SOO people at Merrill, LoVecchio could not obtain credit approval for a repo period of 30 days. LoVecchio stated that he would work on extending the repo period for the next time the Consolidated Repo came due. 94. On October 29, 2008, the Consolidated Repo period expired and was rolled for 30 days. Nevertheless, that same day, Merrill demanded from Altitude a IS% principal paydown on all the Merrill Securities in Altitude's account. Merrill claimed that this was being done to all bond issues and claims on all its accounts. Merrill demanded 18 $4,721,991.87 hom Altitude on account of the "repo roll," $1,218,991.87 of which was immediately paid by Altitude. 95. On Halloween, October 31, 2008, Merrill sent Altitude a margin call of $1,774,054.42. Merrill claimed that Altitude had to pay the margin call and the outstanding balance from the repo roll of $3,503,000, a total of $5,477,054.42, by November 4, 2008, or else Altitude's account would be liquidated. 96. Altitude made repeated requests to Merrill to explain their unrcasonable dcmand on such a short notice. Dembitzer informed Merrill that the funds werc immediately available, but that, without admitting that Merrill is entitled to demand this kind of money, Altitude wanted to simply place the funds in escrow until Altitude received an explanation for Merrill's most recent demand for an additional $5,477,054.42. 97. However, Merrill rejected Altitudc's proposal and thrcatened to liquidate the account immediately - at an additional loss of tens of millions of dollars -- if Altitude did not hand over nearly $5.5 million immediately. 98. On November 4, 2008, Dembitzer arranged for Altitude to pay $5,477,054.42 cash to Mcrrill. 99. Altitude made this payment on November 4, 2008, under protest. If Altitude did not make this payment, Merrill would have immediately liquidated Altitude's account at Merrill and would have done so without regard for the prices Merrill could obtain for the securities in Altitude's account. Therefore, Altitude's account at Merrill would have incurred extremc and unreasonable losses. 100. On November 21, 2008, Altitude paid Merrill the sum of$13,383,183.29, in full satisfaction of plaintiffs' elebt to Merrill Lynch. 19 101. In January 2009, Altitude transferred Bonds 111 exchange for $I6, 194,953.17 credit fi'om Moselle Developments, LTD. AS AND FOR A FIRST CAUSE OF ACTION Fraud 102. Plaintiffs repeat and reallege the allegations set forth in the paragraphs "I" through "101" above as if liIlIy set fOlih herein. 103. In April 2008, Merrill made material representations to plaintiffs as set forth in paragraphs 17 above, and summarized below: a. The Bonds are "money good," conservative, safe and highly liquid investments and that the Bonds have high ratings from the principal rating agencies. b. Investing in the Bonds would provide the plaintiffs' safety, liquidity, principal protection and diversilication. c. If the plaintiffs' invested 111 the Bonds they would realize high returns. d. Merrill would provide the plaintiffs with continued Repo Financing on the Bonds. e. That the Bonds rated A or higher were as secure as similar government bonds because such Bonds were senior to the other bonds on the same debt. f. Based upon the liquidity and safety of these Bonds, Northern and Altitude could buy the Bonds in large quantities with full leverage as stated above and nominal risk. 104. If Merrill had not made the misrepresentations set forth in paragraph "102" above, then plaintiffs would not have invested in the Bonds. I05. Plaintiffs did, in fact, rely on the information diselosed by Merrill. 20 106. Merrill intended that plaintiffs rely on such information when it disclosed it to plaintills. 107. Such bonds were unsuitable for plaintiffs needs -- a safe secure investment which could be easily liquidated to investment in real estate -- and plaintiffs knew such investment was not suitable fix plaintiffs. 108. At the time of the account opening and plaintills' signing of the MRAs, Merrill induced plaintiffs to do so by intentionally omitting vital and material information. 109. Merrill failed to follow its proper procedures when opening plaintiffs' accounts -- to wit: no IMA and minimal effort to follow the Know Your Customer regulations contained in FINRA Rnle 2090. 110. If Merrill had followed the regulations contained in FINRA Rule 2090, it would have known the Bonds were not suitable for plaintills needs. 111. Merrill never infonned plaintills or anyone else affiliated with the Companies the true value and risks of the investments they put plaintiffs into. 112. Merrill knowingly concealed from the Companies that: (a) it had a liquidity crisis caused in large part by its inability to sell the Bonds it originated and it was desperately trying to unload its inventories of commercial and residential mortgage-backed securities during the very months it was pushing many of those securities into plaintiffS' accounts; (b) it had offered substantial financial iucentives (.5% paper commission) to its registered representatives in the event they were able to sell any Inventory Bonds. (c) that it was considering, and then cffectuating, the sale of a large part of its own inventory of mortgage-backed securities to a third party at a 78 percent discount at the same time it was selling such securities to the Companies at only a 20 percent 21 discount; (d) its own flnancial instability - leaving its sales people and advisors in a desperate need to "pnsh product" 'and maximize sales and commissions if they were to have any chance of salvaging their jobs and avoiding the fate of tens of thousands of their peers; (e) it had stopped originating Bonds in 2007, because it was unable to place a substantial percentage (more than ten billion dollars) of the Bonds it had already originated; (1) its liquidity crisis was caused by its inability to liquidate its InventOly of Bonds; (g) its poliey to pay higher bonuses to its registered representatives for the sale of any Inventory Bonds; (h) of the lack of transparency in the CMBS market and that the marks utilized by Merrill for both the sales and margin calls were generated by tertiary forms of mark to market because there were no comparable sales; (i) in an effort to generate profits through the origination of CMBS, Merrill had abandoned longstanding underwriting principals, To wit: (a) the loan to value ratios increased; (b) loans were underwritten on 'pro-forma flnancials rather than actual performance; and (c) cash flow to debt service ratio's decreased; (j) institutional traders were aware of such dcgradation in thc underwriting metrics which was contributing to the laek of liquidity in the CMBS market; (k) eighty eight percent of all the Bonds were rated A or higher thereby minimizing any protections that might be allorded the higher rated classes. (I) many of the Bonds never or rarely traded; 22 (m) that the prices which it used to sell the Bonds, f{)r margin ealls were not actually market prices but generated by its traders based on a review of: (i) sales of identieal Bonds; (ii) sales of similar bonds; (iii) market activity in general; (iv) Markit CMBX; and (v) conversations with other Merrill traders and clients; (n) that the finaneial woes of: Riverton; Mervis; West Oak Mall; Feldman Malls; Goodys; Steve & Barrys'; Linen and Things; Boseouns; Lilior Vernon; Sharper Image; Bombay Company eolleetively had an impact on the performanee of CMBS; and that the escrowing of funds masked the lack of finaneial viability of Stuyvesant Town; Extended Stay and other borrowers directly impacting select Bonds as well as the CMBS market; (0) Merrill had net losscs of $2.6 billion m the third quarter of 2007 resulting primarily from completed and planned asset sales across residential and commercial exposures; and (p) that the projimnas included in the proxy statement dated September 27, 20 II stated that there were preliminary adjustments of 5.3 billion dollars to its loan portfolio. 113. In its desperation to unload the Inventory Bonds, Merrill sold over thirty million dollars of Bonds to plaintiffs without qualifying plaintiffs as either a QIB within the meaning of Rule 144A under the Seeurities Act of 1933 ("Securities Act") or a Purchaser in offshore transaction in reliance on Regulation S ("Reg S Purchaser") under the Securities Act. 114. Merrill never provided plaintiffs with offering memorandums for any of the Bonds they purchased. 115. If Merrill had provided plaintiffs with Offering Memorandums complete 23 with Risk Factors, plaintiffs would not havc invested in the Bonds. J 16. Plaintiffs were not a QIB or Reg S Purchaser. 117. Menill knew or should have known that plaintiffs were not a QIB or Reg S Purchaser. 118. In its desperation to unload the Inventory Bonds, Merrill negligently or recklessly tiled to determine that the plaintiffs were not a QIB or Reg S Purchaser. 119. Pursuant to the statements contained in the Offering Memorandums, the Bonds were unregistered securities and could only be sold to QIB's or a Reg S Purchaser. 120. If Merrill had disclosed the information set forth in paragraphs "106" to "112" above, then p l a i n t i l l ~ would not have invested in the CMBS. 121. Plaintiffs did, in fact, rely on the information disclosed by Merrill m making the decision to purchase the Bonds. 122. Merrill's acts were willful and exceeded the bounds of decency and would be considered outrageous by our society as a whole. 123. By reason of such !iaud, plaintim seek actual damages of twenty five million dollars, plus interest hom December I, 2008; as well as exemplary and punitive damages in such amount as the jury deems appropriate to discourage such behavior. AS FOR A SECOND CAUSE OF ACTION Breach of Fiduciary Duty 124. Plaintiffs repeat and reallege the allegations set forth in the paragraphs" I" through "123" above as iffully set forth herein. 24 125. As the brokerage finn for plaintiffs, Merrill owed plaintiffs fiducimy duties of honesty, hdl disclosure and compliance with securities regulations and generally accepted brokerage firm principles and standards. 126. Merrill had a flducimy duty to execute the sales to plaintiffs at the mark to market price. 127. Merrill had a fiduciary duty to make its margin calls at the mark to market pncc. 128. Merrill breached this fiduciary duty by selling the Bonds to Altitude at grossly inflated prices. 129. Merrill breached this fiduciary duty by selling the Bonds to plaintiffs without qualifying plaintiffs for an exemption fi'om registration under the Securities Act, and therefore, if Merrill didn't breach this fiducimy duty, plaintiffs would not have been able to purchase the Bonds. 130. Merrill did not use accurate pricing when making the margin calls, but instead utilized numbers designed to increase Merrill's cash position. 131. Merrill's breach of flduciary duty has caused plaintifls to incur damages in excess of twenty four million dollars. 132. By reason of the foregoing, plaintifls demands judgment in the amount twenty-four million dollars, plus interest. AS AND FOR A THIRD CAUSE OF ACTION Reckless and Negligent Misrepresentation 133. Plaintiffs repeat and reallege the allegations set forth in the paragraphs" I" through "132" above as if fully set fOith herein. 25 134. Defendants held out themselves as experts for the purpose of providing honest opinions and recommendations on whether plaintiffs should huy, hold or sell CMBS from Merrill Securities in plaintiffs' accounts with Merrill, as well as which CMBS securities should be initially purchased. Merrill represented itself as a finn in the finance induslIy that maintained its clients' accounts in accordance with applicable standards within the industry. 135. In the rendering of investmcnt advice and sale of securities to plaintiffs, defendants have obtained money or property by means of untrue statements of material facts or by omissions to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, including, but not limited to, those misrepresentations specifically described in the sections above, including that: a. the Bonds are liquid; b. the Bonds traded in an active market and were priced by a mark to market system. c. Merrill made a market in the Bonds so that they will always be saleable; d. Merrill was the originator/underwriter/syndicator of many Bonds and that the underwriting standards used by Merrill in originating such bonds were the most stringent in the industry; f. the Bonds are "money good," conservative, safe and highly liquid investments and that thc safety of the investments are reflected by the high ratings from 0&13, Moodys and Fitch; g. a Bond rated AAA was comparable 111 risk to a United States 26 Treasury Bond, while a Bond rated AA was comparable to an Israeli Treasury Bond; h. 88% of the Bonds were rated A or higher, and that seventy percent of the Bonds were considered "super senior"; 1. a portfolio of CMBS in different geographic areas and different property classifications (i.e. retail, industrial, office, hotels . .) would provide diversifkation and thus, additional security hlr superior to municipal bonds; J. if plaintiJTs purchased short term Bonds, the price fluctuations were meaningless because the Bond would payoff in full within that time Ji'ame and the strength of the collateral underlying the Bonds would minimize any fluctuation; and material omissions specifically described in the sections above, including that: a. Merrill had a liquidity crisis caused in large part by its inability to sell the Bonds it originated and it was desperately trying to unload its inventories of commcrcial and residcntial mortgage-backed securities during the very months it was pushing many of those securities into plaintifTs' accounts; b. Merrill had offered substantial financial incentives (.5% paper commission) to its registered representatives in the event they werc able to sell any Inventory Bonds; e. Menill was considering, and then effectuating, the sale of a large part of its own inventOly of mortgage-backed securities to a third party at a 78 percent discount at the same time it was selling such securities to the Companies at only a 20 percent discount; d. Merrill's own financial instability - leaving its sales people and advisors in a desperate need to "push product" and maximize sales and commissions if they were to have any chance of salvaging their jobs and avoiding the fate of tens of 27 thousands of their peers; e. Merrill had stopped originating Bonds in 200?, because it was unable to place a substantial percentage (more than ten billion dollars) of the Bonds it had already originated; f. Merrill's liquidity crisis was caused by its inability to liquidate its Inventory of Bonds; g. Merrill's policy to pay higher bonuses to its registered representatives for the sale of any Inventory Bonds; h. there was a lack of transparency in the CMBS market and that the marks utilized by Merrill for both the sales and margin calls were gcnerated by tertiary forms of mark to market becausc there were no comparable sales; I. in an effort to generate profits through the origination of CMBS, Merrill had abandoned longstanding underwriting principals. To wit: (a) the loan to value ratios increased; (b) loans were underwritten on pro-forma financials rather than actual performance; and (c) cash flow to debt service ratio's decreased; .J. institutional traders were aware of such degradation in the underwriting metrics which was contributing to the lack of liquidity in the CMBS market; k. eighty eight percent of all the Bonds were rated A or higher thereby minimizing any protections that might be afforded the higher rated classes. l. many of the Bonds never or rarely traded; m. the prices which it used to sell the Bonds, for margin calls were not actually market prices but generated by its traders based on a review of: (i) sales of identical Bonds; (ii) sales of similar bonds; (iii) market activity in general; (iv) Market CMBS; and (v) conversations with other Merrill traders and clients; 28 n. the financial woes of Riverton; Mervis; West Oak Mall; Feldman Malls; Goodys; Steve & Barrys'; Linen and Things; Boscouns; Lilior Vernon; Sharper Image; Bombay Company collectively had an impact on the perfonuance of CMBS; and that the escrowing of funds masked the lack of fInancial viability of Stuyvesant Town; Extended Stay and other borrowers directly impacting select Bonds as well as the CMBS market; o. Merrill had net losses of $2.6 billion in the third quarter of 2007 resulting primarily jj'om completed and planned asset sales across residential and commercial exposures; and p. the included in the proxy statement dated September 27, 2011 stated that there were preliminary adjustments of 5.3 billion dollars to its loan portfolio. 136. Plaintiffs recklessly and or negligently represented that the Bonds were suitable for plaintifTs. 137. In making the foregoing misrepresentations and material omISSIons, defendants acted with recklessness or with negligence with the direct consequence of deceiving plaintiffs and inducing plaintiffs to act or refrain from acting bascd upon the false disclosures and nondisclosures by defendants. 138. Plaintiffs relied on the representatiol1s made by defendants, and upon the misinformation caused by defendants' material omissions, by placing their brokcrage investments with Merrill, acquiring the CMBS from Merrill's inventory, and placing their investment accounts with Merrill. 139. Plaintiffs suffered mJury and damages in the amount of $25 million, proximately caused by and as a result of defendants' reckless or negligent 29 misrepresentations and Olnissions. WHEREFORE, plaintiffs demand judgment as follows: a. on its first cause of action for fi'aud in the amount of $24,000,000.00 plus punitive dmnages and interest; b. on its second cause of action fllr breach of fiduciary duty in the amount of $24,000,000.00 plus punitive damages and interest; c. on its third cause of action of negligent misinterpretation in the amount of $24,000,000 plus interest; d. An award to plaintiffs of attorneys' fees, costs and disbursements; and e. An order and judgment granting such fllrthcr relief as may be just. 1 Dated: New York, New York December 6, 20II 30 ; / ~ '" y ~ '2 ~ J "'1) .To cpl N. Pay ( l inman, Howard & Kattell, LLP Attorneys for Plaintiffs 185 Madison Avenue, 7''' Floor New York, New York 10016 (212) 725-4423