FILED: NEW YORK COUNTY CLERK 06/03/2013 INDEX NO /2012 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/03/2013

Transcription

1 FILED: NEW YORK COUNTY CLERK 06/03/2013 INDEX NO /2012 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/03/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HOME EQUITY MORTGAGE TRUST SERIES , by U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Trustee, -against- Plaintiff, Index No /2012 Motion Seq. #003 Part 45 (Schweitzer, J.) DLJ MORTGAGE CAPITAL, INC. and SELECT PORTFOLIO SERVICING, INC., Defendants. PLAINTIFF S MEMORANDUM OF LAW IN SUPPORT OF ITS OPPOSITION TO DEFENDANT SELECT PORTFOLIO SERVICING INC. S MOTION TO DISMISS Philippe Z. Selendy Erica P. Taggart Nicholas D. Smith QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Avenue, 22nd Floor New York, New York (212) Attorneys for Plaintiff Home Equity Mortgage Trust Series

2 TABLE OF CONTENTS Page INTRODUCTION...1 FACTUAL BACKGROUND...3 A. The Transaction and SPS s Duties under the PSA...3 B. SPS Failed to Apprise the Trustee of Any Breaches in DLJ s R&Ws...5 LEGAL STANDARD...6 ARGUMENT...6 A. The Trust Has Standing...6 B. Plaintiff Has Stated a Claim for Breach of SPS s Duty to Notify of Breaches in R&Ws...8 C. Plaintiff s Claim for Indemnification Is Properly Pled...10 CONCLUSION...12 i

3 TABLE OF AUTHORITIES Page Cases Am. Home Assur. Co. v. Scanlon, 164 A.D.2d 751, 559 N.Y.S.2d 317 (1st Dep t 1990)...8 In re Blumenkrantz, 14 Misc. 3d 462, 824 N.Y.S.2d 884 (Surrogate s Ct. Nassau Cnty. 2006)...7 Dept. of Econ. Dev. v. Arthur Andersen & Co., 924 F. Supp. 449 (S.D.N.Y. 1996)...9 Garrison Special Opportun. Fund L.P., 33 Misc. 3d 1204, 938 N.Y.S.2d 230 (N.Y. Sup. Ct. 2011)...7 Grand Realty Co. v. City of White Plains, 125 A.D.2d 639, 510 N.Y.S.2d 172 (1st Dep t 1986)...10 Home Equity Mortgage Trust Series , et al. v. DLJ Mortgage Capital, Inc. and Select Portfolio Servicing, Inc., Index No /2012 (N.Y. Sup. Ct. 2012)...1 Kirschbaum v. Elizabeth Ortman Trust of 1977, 3 Misc. 3d 1110, 787 N.Y.S.2d 678 (N.Y. Sup. Ct. 2004)...7 Lublin Corp. v. United States, 106 Fed. Cl. 669 (Fed. Cl. 2012)...9 Miller Inv. Trust v. Morgan Stanley & Co. Inc., 2012 WL (D. Mass. July 24, 2012)...7 Noise In Attic Prods., Inc. v. London Records, 10 A.D.3d 303, 782 N.Y.S.2d 1 (1st Dep t 2004)...6 P.T. Bank Cent. Asia, N.Y. Branch v. ABN Amro Bank N.V., 754 N.Y.S.2d 245 (1st Dep t 2003)...6 Williams v. Steuart Motor Co., 494 F.2d 1074 (D.C. Cir. 1974)...9 UBS Comm. Mortg. Trust 2007-FL1 v. Garrison Special Opportun. Fund L.P., 33 Misc. 3d 1204(A), 938 N.Y.S.2d 230 (Sup. Ct. 2011)...7 CIVIL PRACTICE LAWS AND RULES C.P.L.R ii

4 Plaintiff Home Equity Mortgage Trust Series (the Trust ), acting by U.S. Bank National Association, solely in its capacity as trustee of the Trust (the Trustee ), respectfully submits this Memorandum of Law in support of its opposition to Defendant Select Portfolio Servicing, Inc s ( SPS ) motion to dismiss Plaintiff s Complaint (the Motion ). INTRODUCTION Plaintiff s Complaint concerns the securitization called Home Equity Mortgage Trust Series , which closed only several months after the three HEMT securitizations (the Related HEMT Trusts ) that have brought the related case captioned Home Equity Mortgage Trust Series , et al. v. DLJ Mortgage Capital, Inc. and Select Portfolio Servicing, Inc., Index No /2012 (N.Y. Sup. Ct. 2012) (Schweitzer, J.) (the Related HEMT Action ). SPS, a loan servicer, is a Defendant both in this action and the Related HEMT Action, as is its affiliate DLJ Mortgage Capital, Inc. ( DLJ ), which sold more than 12,000 mortgage loans (the Loans ) to the Trust. SPS raises virtually the same arguments in the Motion as it did in its motion to dismiss the Related HEMT Action. Accordingly, Plaintiff reasserts in full the arguments made by the Related HEMT Trusts in response to SPS s motion to dismiss the Related HEMT Action. Like the Related HEMT Action, this case concerns a residential mortgage-backed securitization and the thwarted efforts of its Trustee to compel DLJ to honor its contractual commitment to repurchase Loans that breach DLJ s representations and warranties (the R&Ws ). Both SPS and DLJ are affiliates under common control by Credit Suisse. They are represented by the same counsel in this case and the Related HEMT Action. The potential conflicts inherent in a corporate relationship between DLJ as Seller of the Loans and SPS as Servicer of them have been fully realized to the detriment of the Trust. 1

5 As a party to the PSA, SPS has a duty to give prompt notice to all of the PSA parties upon SPS s discovery... of a breach of a [R&W] that materially and adversely affects the interests of the Certificateholders in any [Loan]. Compl., Ex. A, Section 2.03(f). The Complaint alleges that, as a Servicer, SPS modified the terms of the Loans and made decisions as to whether Loans should be charged-off or released from the Trust because losses on the Loans cannot be recovered. It alleges that these processes involved scrutinizing the Loans origination files (the Origination Files ) and deciding anew whether borrowers had the ability to meet their loan obligations. Compl., Finally, it alleges that SPS likely became aware of breaches in DLJ s R&Ws during this process, but failed to notify the Trustee of them (the Notice Claim ). Id. Because all of these facts must be assumed true for purposes of SPS s Motion, and because SPS offers nothing but challenges to the factual predicate of the Trust s claim, the Motion must be denied. SPS s other arguments are similarly unavailing. As described in the Trust s Opposition to DLJ s motion to dismiss the Complaint, SPS s contention that this suit is not being brought by the Trustee is belied by the very caption of the Complaint, which reads Home Equity Mortgage Trust , by U.S. Bank National Association, solely in its capacity as Trustee... (emphasis added). And the Complaint makes clear that the Trust s claim for indemnity from SPS arises from the Trust s expenses incurred as a result of... SPS s fail[ures] to perform its obligations under the PSA, Compl., 139, not by reason of any Certificateholder direction. SPS s Motion should be denied so the real question of whether it failed to alert the Trust to breaches in its affiliate s R&Ws can be judged on the merits. 2

6 FACTUAL BACKGROUND A. The Transaction and SPS s Duties under the PSA As more fully described in the Trust s Opposition to DLJ s Motion to Dismiss, 1 the Trust at issue in this case was created to hold and own the Loans that DLJ securitized and sold interests in to Certificateholders. The parties to the PSA were DLJ as Seller; Credit Suisse First Boston Mortgage Securities Corporation as Depositor; U.S. Bank National Association as Trustee; and SPS as Servicer and Master Servicer. 2 As alleged in the Complaint, because the identities and underwriting practices of the Loans originators were completely unknown to the Trustee and to Certificateholders, DLJ made the R&Ws about each of the Loans in the Trust and promised to cure any Loan with a breach in the R&Ws within 120 days of its discovery or receipt of notice of the breach. Compl., Ex. A, Section 2.03(f). Critical to testing the full suite of DLJ s R&Ws are the Loans Origination Files. All of the documents integral to the origination of a mortgage loan are (or should be) contained within the Origination Files, including a property appraisal, loan application (the 1003 ), full credit reports, verification of employment by the originator, hazard and flood insurance certificates, among many other documents. To take one example, DLJ represented that every Loan complied with all the terms, conditions and requirements of the originator s underwriting standards in effect at the time of origination of the Loans. Compl., Ex. A, Schedule IV (iv). To analyze comprehensively the accuracy of this representation with respect to any Loan, the Trust must examine the Origination Files. 1 See Plaintiff s Opposition to Defendant DLJ Mortgage Capital Inc. s Motion to Dismiss and Motion to Strike, Motion Seq. #002 (the DLJ Opposition ). Plaintiff incorporates the DLJ Opposition herein by reference. 2 There were additional parties to the PSA but their duties and actions are not relevant to SPS s Motion. 3

7 These critical documents are not in the possession of the Trustee, however, even though the Trustee is the PSA party with authority to investigate and enforce DLJ s R&Ws. Instead, the PSA charges the Servicers, including SPS, with holding and maintaining the Origination Files. Compl., Ex. A, Section 3.07(a). Consistent with their role as the keepers of documents critical to assessing whether DLJ s R&Ws were complied with, the PSA obligates the Servicers to give prompt notice to the Trustee when they discover that any Loan breaches the R&Ws. Compl., Ex. A, Section 2.03(f). As alleged in the Complaint, in its role as Servicer, SPS was engaged in several activities requiring it to assess borrowers ability to pay their loans and, in so doing, SPS must have discovered at least some of the rampant breaches in DLJ s R&Ws. Compl., For example, in modifying the terms of the Loans for borrowers who could not keep pace with the mortgages original terms, SPS would scrutinize the Origination Files and any supplemental information provided by the borrower, such as tax forms. Id., If, for instance, SPS received a W2 form from a borrower indicating that the income the borrower claimed to make in his loan application was patently false, or showing that the borrower s income was not high enough to satisfy the debt-to-income ratio requirements of the originator s guidelines as shown by the loan approval forms in the Origination Files in SPS s possession, SPS had a duty to notify the Trustee of this fact. Additionally, in its role as Servicer, SPS made decisions regarding whether Loans that were at least 120 days delinquent should be charged off and then released from the Trust to a residual class of Certificateholders called the X-2 holders. 3 Compl., Ex. A, Section As a part of this process, the PSA required SPS to assess whether a Significant Net Recovery would be possible on these severely delinquent Loans, which in turn required SPS to decide anew whether the borrowers 3 The Complaint alleges that these holders were entities owned by Credit Suisse, the parent of DLJ and SPS. Compl., 92, n. 7. 4

8 had the ability to pay. Id. To fulfill that duty, SPS had to scrutinize the Origination Files and any supplementary information provided by the borrower to assess the borrower s ability to pay. Compl., 92. SPS has charged off hundreds of Loans and released them from the Trust without notifying the Trustee of a single breach. Id. As a Servicer, SPS also has a duty under the PSA to indemnify and hold harmless the Trustee against any loss or expense incurred in connection with any claim or legal action related to the PSA, provided that the Trustee s losses or expenses relate to SPS s failure to perform its obligations under the contract. Compl., Ex. A, Section One narrow exception to the Trustee s right to indemnification from SPS is where the Trustee s losses or expenses are incurred by reason of any action of the Trustee taken at the direction of the Certificateholders. Id. Conversely, SPS is itself entitled to indemnification from the Trust s trust fund (all of the assets held by the Trust) for its losses or expenses in connection with any legal action under the PSA, except where losses or expenses are incurred by reason of [SPS s] willful misfeasance, bad faith, or negligence in the performance of its duties hereunder or by reason of its reckless disregard of obligations or duties hereunder. Compl., Ex. A, Section Finally, the PSA contains a narrow limitation of liability section for Servicers like SPS. Under this uncontroversial section, SPS may be held liable under the PSA only to the extent of the obligations specifically... imposed upon and undertaken by [it]. Compl., Ex. A, Section B. SPS Failed to Apprise the Trustee of Any Breaches in DLJ s R&Ws As set forth in the Complaint, with regard to SPS s duty to notify the Trustee of breaches in DLJ s R&Ws upon SPS s discovery of them, SPS has never notified the Trustee of such breaches even though its duties included scrutinizing Origination Files and other documents that would necessarily have led to such discovery. Compl.,

9 On October 30, 2012, the Trust commenced this lawsuit by filing a summons with notice. NYSCEF Doc No. 1. On April 8, 2013 the Trust filed its Complaint. NYSCEF Doc No. 3. LEGAL STANDARD For purposes of SPS s Motion, the Court must accept as true the facts as alleged, give the Trust the benefit of every possible favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory. See, e.g., P.T. Bank Cent. Asia, N.Y. Branch v. ABN Amro Bank N.V., 754 N.Y.S.2d 245, 250 (1st Dep t 2003). To plead properly a breach of contract action, a plaintiff must allege: (1) the existence of a valid contract; (2) non-performance by the defendant; (3) performance by the plaintiff; and (4) damage to the plaintiff as a result of defendant s nonperformance. See, e.g., Noise In Attic Prods., Inc. v. London Records, 10 A.D.3d 303, 306, 782 N.Y.S.2d 1, 3 (1st Dep t 2004). ARGUMENT A. The Trust Has Standing Like DLJ, SPS moves to dismiss the entire Complaint on the ground that the Trustee ought to have been named as a stand-alone plaintiff in the Complaint s caption instead of the Trust, given that (1) the Trust is supposedly not a legal entity capable of bringing suit, and (2) the Trustee is the only party authorized under the PSA to bring the Complaint s claims. Motion, p SPS s argument fails for at least three independent reasons: first, the Complaint unequivocally shows the Trust is acting through the Trustee in this action, consistent with the terms of the PSA; second, the Trust qua trust may bring suit as a matter of law; third, even if the Trustee must be formally named a standalone plaintiff, the proper remedy is not outright dismissal of the Complaint. First, DLJ argues that a trust cannot act itself; rather the trustee must act for it and that the Trustee is not acting for the Trust here. Motion, pp But the very caption of the Complaint unequivocally states Home Equity Mortgage Trust Series , by U.S. Bank National 6

10 Association, solely in its capacity as Trustee. Compl., at caption (emphasis added). The Complaint s prefatory paragraph indicates the Trust is acting by U.S. Bank National Association, solely its capacity as Trustee... Compl. at prefatory paragraph (emphasis added). References to the Trustee delivering the Repurchase Letters for, and acting on behalf of, the Trust appear countless times in the Complaint. Compl., 8, 11, 13-15, 32, 73-76, 89, In short, there can be no credible doubt that the Trustee is acting for the Trust in bringing this action. Second, SPS contends that a securitization trust is not a legal entity capable of serving as a plaintiff. That is wrong as a matter of law. The cases in which securitization trusts permissibly serve as plaintiffs are legion. 5 See, e.g., UBS Comm. Mortg. Trust 2007-FL1 v. Garrison Special Opportun. Fund L.P., 33 Misc. 3d 1204(A), 938 N.Y.S.2d 230 (Sup. Ct. 2011) (Schweitzer, J.); Miller Inv. Trust v. Morgan Stanley & Co. Inc., F. Supp. 2d, No. 11-CV JLT, 2012 WL , at *7 (D. Mass. July 24, 2012). Third, even if the Court decides that the Trustee should be made a stand-alone plaintiff (recognizing that it is already named in the caption), the proper remedy would be designating the Trustee as stand-alone Plaintiff, not complete dismissal of the Complaint. See, e.g., Am. Home Assur. Co. v. Scanlon, 164 A.D.2d 751, 559 N.Y.S.2d 317 (1st Dep t 1990) (substitution of plaintiff with standing, not dismissal, is the proper remedy where original pleading gave notice of the transactions and occurrences to be proved by new, related plaintiff); see also C.P.L.R Notably, as of September 2012, SPS took the opposite position, asserting that the Trustee lacked standing to enforce the PSA. Compl., And yet now SPS argues for dismissal on the ground that only the Trustee has standing to do so. 5 The pair of decisions cited by SPS neither stand for the overbroad proposition that trusts do not have standing, nor that an action brought by a trust must be dismissed for lack of standing. Nor does either of them concern securitization trusts. See Kirschbaum v. Elizabeth Ortman Trust of 1977, 3 Misc. 3d 1110(A), 787 N.Y.S.2d 678 (Sup. Ct. 2004) (holding that a family trust may not sell an estate without the trustee exercising the power to sell); In re Blumenkrantz, 14 Misc. 3d 462, 466, 824 N.Y.S.2d 884, 888 (Surrogate s Ct. Nassau Cnty. 2006) (as between trustee and trust beneficiary, trustee has the sole responsibility for determining whether to settle, arbitrate or otherwise dispose of the claim ). 7

11 (providing that any mistake or defect in a pleading shall be disregarded by the court if it did not result in prejudice of any substantial right of the other party). The Complaint put SPS on notice of all of the claims at issue and specifically pled that the Trust acted through the Trustee, exactly as specified in the PSA; dismissing the Complaint would be manifestly unjust. B. Plaintiff Has Stated a Claim for Breach of SPS s Duty to Notify of Breaches in R&Ws SPS moves to dismiss the Trust s Notice Claim on two grounds: first, that the Trust s allegations are without any factual foundation; and, second, that the facts pled in support of the Notice Claim are not true. Beyond being mutually exclusive, SPS s arguments fail independently. The allegation that SPS breached its obligation to give prompt notice to all of the PSA parties, including the Trustee, upon its discovery of a breach in DLJ s R&Ws is not conclusory because the Complaint alleges the process by which SPS s duties led it to discover, but not to disclose, DLJ s breaches. Specifically, the Complaint alleges that both in modifying Loans and in charging off and releasing Loans, SPS would scrutinize Origination Files and other borrower documents that would frequently reveal breaches of DLJ s R&Ws, but that SPS did not notify the other PSA parties of the breaches. Compl., This violated SPS s contractual duty to give prompt notice to the other [PSA] parties of the breached R&Ws. Compl., Ex. A, Section 2.03(f). Against these allegations, SPS argues that Plaintiff fails to allege that SPS inadequately serviced the Loans and that Plaintiff casts SPS in the role of contract policeman and imposes on SPS burdens and obligations found nowhere in the [PSA]. Motion, p. 1. These are straw-men arguments: Plaintiff does not, and need not, allege that SPS inadequately serviced the loans, and every duty of SPS s that Plaintiff alleges in the Complaint is easily located in the PSA. Compl., Ex. A, Section 2.03(f) ( Upon discovery... of a breach of a [R&W]... [SPS] shall give prompt notice thereof to the other parties. ) (emphasis added). SPS also argues that the Notice Claim must be 8

12 dismissed because the Complaint does not plead specific instances where SPS failed to notify PSA parties of breached R&Ws in particular Loans. Motion, p. 9. This misconstrues Plaintiff s allegations. Plaintiff alleges that SPS never alerted the Trustee to a single R&W breach in any Loan despite the systemic breaches that the Trust alleges are prevalent in the Trust s loan pool. Compl., 73, 93. The Complaint pleads that, given the sheer prevalence of breaching Loans and the nature of SPS s servicing duties, SPS could not have been unaware of its affiliate s breaches. Id. Such circumstantial evidence is entirely appropriate to prove let alone plead a breach-of-contract claim. See, e.g., Lublin Corp. v. United States, 106 Fed. Cl. 669, 675 (Fed. Cl. 2012) ( [A] breach of contract may be proven by circumstantial evidence.... [which is different from] mere speculation the former yields a preponderant probability, the latter only a mere possibility. ); Dept. of Econ. Dev. v. Arthur Andersen & Co., 924 F.Supp. 449, 474 (S.D.N.Y. 1996) ( Circumstantial evidence is evidence that tends to prove a disputed fact whose existence follows inferentially from the existence of evidentiary facts. ); Williams v. Steuart Motor Co., 494 F.2d 1074, 1080 (D.C. Cir. 1974) (breach may be established by direct or circumstantial evidence or by a combination of the two kinds of evidence ). This is not rank speculation about how SPS serviced the loans. Motion, p. 9. It is based on the express terms of the PSA governing SPS s duties under the contract and rests on evidence, pled in the Complaint, that prevalent breaches existed in the Loans that SPS serviced. Compl., 32-65, 73, SPS s only other ground for dismissal is that the Trustee is fully aware of how loan servicing works and that the Trustee knows that in assessing a borrower s ability to pay, a servicer would look at the borrower s current ability to make payments... Motion, p. 10 (emphasis in original). To begin with, it is black-letter law that it is inappropriate to raise questions of fact at the motion to dismiss stage. Grand Realty Co. v. City of White Plains, 125 A.D.2d 639, 640, 510 9

13 N.Y.S.2d 172, 174 (1st Dep t 1986) ( [A] question of fact [is]... not appropriately [] considered on a [motion to dismiss]. ). For that reason alone, SPS s lesson to the Court in loan servicing based on facts not pled in this case is entirely irrelevant. Second, even if this were an appropriate stage to resolve factual disputes, SPS s argument misses the point entirely. Assuming arguendo servicers looked solely to a borrower s current ability to make payments, in the course of doing so they can and will discover that the borrower s past ability to make payments was not accurately represented in the borrower s loan application. Compl., For example, in performing its servicing duties, a servicer might receive a W2 form from a borrower indicating that the income the borrower claimed to make in his loan application was patently false, or showing that the borrower s income was not high enough to satisfy the debt-to-income ratio requirements of the originator s guidelines as shown by the loan approval forms in the Origination Files in SPS s possession or to satisfy any originator s debt-to-income ratio requirements. Less relevant still are SPS s stray musings about Plaintiff s true motive for bringing claims against it: a transparent attempt to impose liability upon SPS for a supposed breach by Codefendant DLJ. Motion, p. 10. The Complaint sets out SPS s specifically assumed duties including providing notice of breaching Loans to all PSA parties and modifying and releasing Loans after having scrutinized Origination Files and alleges that SPS breached them. Compl., The Notice Claim should not be dismissed. C. Plaintiff s Claim for Indemnification Is Properly Pled SPS moves to dismiss Plaintiff s claim for indemnification for the Trustee s expenses and costs incurred in connection with bringing the Trust s claims against SPS on the grounds that (1) Plaintiff never alleges that SPS has failed to perform its obligations to properly service the Mortgage Loans, and (2) the PSA s indemnification provision does not apply where any costs or 10

14 fees incurred by the Trustee derive from the Trustee s actions at the direction of the Certificateholders. Motion, p. 8. Neither argument has merit. Under Section 8.05 of the PSA, the Trustee may seek indemnity from SPS for the Trustee s losses and expenses incurred in connection with any claim or legal action relating to the PSA, provided that those losses and expenses related to the failure of [SPS] to perform its servicing obligations in accordance with [the PSA]. Compl., Ex. A, Section The Complaint alleges, and the PSA shows, that the Servicers obligations under the contract included promptly notifying all of the parties to the PSA when the Servicers discovered breaches in DLJ s R&Ws. Compl., 90. The Complaint alleges that SPS breached this obligation, partly as a result of which the Trustee brings this legal action. Compl., 139. Accordingly, the Complaint alleges the Trustee s expenses and costs incurred in bringing its claims against SPS related to the failure of [SPS] to perform its servicing obligations in accordance with [the PSA]. Compl., Ex. A, Section These are the duties of a Servicer under the PSA i.e. servicing obligations and are thus covered by the indemnification provision s clear terms. At the very least, whether the duties breached by SPS constitute servicing obligations is ambiguous and the Trust s claims should not be dismissed at the pleadings stage. See, e.g., Serdarevic v. Centex Homes, LLC, 760 F. Supp. 2d 322, 328 (S.D.N.Y. 2010) (ambiguous terms interpreted in favor of plaintiff at motion to dismiss stage). Next, SPS contends that the Trustee s indemnification request must fail because the Complaint states that the Trustee is acting at the direction of certain holders of Certificates issued by the Trust. Motion, p. 9 (citing Compl., at 1). Section 8.05 of the PSA states that the Trustee may not seek indemnity in the narrow circumstance where its losses or expenses are incurred by reason of any action of the Trustee taken at the direction of the Certificateholders. Compl., Ex. A, Section Nothing in the Complaint indicates that the losses for which the 11

15 Trustee seeks indemnification were incurred by reason of any action of the Trustee taken at the direction of Certificateholders. That the Trustee is acting at the direction of Certificateholders does not mean that the losses and expenses for which it seeks indemnity were incurred by reason of the Certificateholders direction. On the contrary, the Complaint specifically alleges that it is as a result of... SPS s fail[ures] to perform its obligations under the PSA that the Trustee brings this action. Compl., 139. SPS s argument therefore fails. CONCLUSION For all of the reasons stated above, SPS s Motion should be denied in its entirety. DATED: New York, New York June 3, 2013 QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Erica P. Taggart Philippe Z. Selendy Erica P. Taggart Nicholas D. Smith Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY (212)