AMBAC ASSURANCE UK LIMITED VJP Morgan Investment Management, Inc. (Nr. 650259/09, 14. Juli 2011)    

Ambac Assurance UK Limited, Inc. (Ambac) insured more than $2 billion in notes issued by Ballantyne, a special purpose vehicle established to reinsure term life insurance policies. Ballantyne had issued the notes to capitalize itself and fund its reserves. Ballantyne contracted with J.P. Morgan Investment Management Inc. (J.P. Morgan) to manage more than $1.65 billion of the proceeds. J.P. Morgan invested a portion of the proceeds in mortgage-backed securities and home equity loan asset-backed securities. Meanwhile, J.P. Morgan’s parent company, J.P. Morgan Chase, reduced its exposure to the same type of securities based on its knowledge that they could “go up in smoke.”

In less than 30 months, Ballantyne’s accounts allegedly lost $1 billion. Ballantyne then failed to make scheduled payments on the notes and Ambac’s guarantees were called in. Ambac then sued J.P. Morgan alleging breach of fiduciary duty, gross negligence and other claims. The complaint alleged, in part, that an article published in Fortune magazine in September 2008 quoted the CEO of J.P. Morgan Chase as having concluded as early as October 2006 that the subprime securities market could “go up in smoke” and described instructions to his subordinates to “watch out for subprime” and to “sell a lot of our positions.” J.P. Morgan filed a motion to dismiss, which was granted.

The appellate court reversed, finding the statements made by J.P. Morgan Chase’s CEO that subprime securities “could go up in smoke” supported an inference in favor of Ambac that its complaint evidenced a cognizable cause of action. At the pleading stage, the allegations supported an inference that J.P. Morgan did not meet Ballantyne’s investment guidelines and were sufficient to survive a motion to dismiss. The complaint was reinstated in its entirety.

IMPACT—REINSURANCE: The subprime securities investment debacle created massive losses and the litigation stemming therefrom will likely continue for a significant amount of time. Insurers of financial institutions involved may be on the hook for years to come.