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12-3207-cvIN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

FEDERAL HOUSING FINANCE AGENCY, as Conservator forTHE FEDERAL NATIONAL MORTGAGE ASSOCIATION andTHE FEDERAL HOME LOAN MORTGAGE CORPORATION,

Plaintiff-Appellee,—against—

UBS AMERICAS INC., UBS REAL ESTATE SECURITIES INC., UBS SECURITIES, LLC,MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., DAVID MARTIN,

PER DYRVIK, HUGH CORCORAN, PETER SLAGOWITZ,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK

EMERGENCY MOTION TO RECALL MANDATE TO AMEND JUDGMENT AND FOR LEAVE TO INTERVENE

d

David H. BraffBrian T. FrawleyJeffrey T. ScottJoshua FritschSULLIVAN & CROMWELL LLP125 Broad StreetNew York, New York 10004(212) 558-4000

Attorneys for Barclays CapitalInc., Barclays Bank PLC, andSecuritized Asset BackedReceivables LLC

(Counsel continued on inside cover)

Case: 12-3207 Document: 228-2 Page: 1 07/15/2013 989365 40

Michael O. WareMAYER BROWN LLP1675 BroadwayNew York, New York 10019(212) 506-2500

Catherine A. Bernard1999 K St., N.W.Washington, D.C. 20006(202) 263-3000

Attorneys for Ally Financial Inc. andGMAC Mortgage Group, Inc.

Matthew SolumKIRKLAND & ELLIS LLP601 Lexington AvenueNew York, New York 10022(212) 446-4800

Robert J. KopeckyBrian D. Sieve300 North LaSalle StreetChicago, Illinois 60654(312) 862-2000

Attorneys for Ally Securities, LLC

David BlattKannon K. ShanmugamJohn McNicholsWILLIAMS & CONNOLLY LLP725 Twelfth Street, N.W.Washington, DC 20005(202) 434-5000

Attorneys for Bank of America Corp.,Bank of America, N.A., Asset BackedFunding Corp., Banc of AmericaFunding Corp., Merrill Lynch & Co.,Inc., Merrill Lynch Mortgage Lending,Inc., Merrill Lynch Mortgage CapitalInc., First Franklin Financial Corp.,Merrill Lynch Mortgage Investors,Inc., Merrill Lynch GovernmentSecurities, Inc., and Merrill Lynch

Richard W. ClaryRichard J. StarkMichael T. ReynoldsLauren A. MoskowitzCRAVATH, SWAINE & MOORE LLPWorldwide Plaza825 Eighth AvenueNew York, New York 10019(212) 474-1000

Attorneys for Credit Suisse Securities(USA) LLC, Credit Suisse Holdings(USA), Inc., Credit Suisse (USA), Inc.,DLJ Mortgage Capital, Inc., CreditSuisse First Boston MortgageSecurities Corp., Asset BackedSecurities Corp., and Credit SuisseFirst Boston Mortgage AcceptanceCorp.


Thomas C. RiceDavid J. WollAlan C. TurnerSIMPSON THACHER & BARTLETT LLP425 Lexington AvenueNew York, New York 10017(212) 455-2000

Attorneys for Deutsche Bank AG,Taunus Corporation, Deutsche BankSecurities Inc., DB StructuredProducts, Inc., ACE Securities Corp.,Mortgage IT Securities Corp.

Attorneys for RBS Securities Inc.

Bruce ClarkSULLIVAN & CROMWELL LLP125 Broad StreetNew York, New York 10004(212) 558-4000

Amanda F. Davidoff1701 Pennsylvania Avenue, N.W.Washington, DC 20006(202) 956-7500

Attorneys for First Horizon NationalCorp., First Tennessee Bank NationalAssociation, FTN Financial SecuritiesCorp., and First Horizon AssetSecurities, Inc.

Attorneys for Nomura SecuritiesInternational, Inc., Nomura HoldingAmerica Inc., Nomura AssetAcceptance Corp., Nomura HomeEquity Loan, Inc., and Nomura Credit& Capital, Inc.

Richard H. KlapperTheodore EdelmanMichael T. Tomaino, Jr.Tracy Richelle HighSULLIVAN & CROMWELL LLP125 Broad StreetNew York, New York 10004(212) 558-4000

Attorneys for Goldman, Sachs & Co.,GS Mortgage Securities Corp.,Goldman Sachs Mortgage Co., TheGoldman Sachs Group, Inc., andGoldman Sachs Real Estate FundingCorp.

John M. ConlonMark G. HanchetMichael O. WareMAYER BROWN LLP1675 BroadwayNew York, New York 10019(212) 506-2500

Attorneys for HSBC North AmericaHoldings Inc., HSBC USA Inc., HSBCMarket (USA) Inc., HSBC Securities(USA) Inc., HSBC Bank USA, N.A.,and HSI Asset Securitization Corp.


Penny ShaneSharon L. NellesJonathan M. SedlakYavar BathaeeSULLIVAN & CROMWELL LLP125 Broad StreetNew York, New York 10004(212) 558-4000

Attorneys for JPMorgan Chase & Co.,JPMorganChase Bank, N.A., J.P. Morgan Mortgage AcquisitionCorp., J.P. Morgan Securities LLC,J.P. Morgan Acceptance Corp. I, BearStearns & Co., Inc., EMC MortgageLLC, Structured Asset MortgageInvestments II Inc., Bear Stearns AssetBacked Securities I LLC, WaMu AssetAcceptance Corp., WaMu CapitalCorp., Washington Mutual MortgageSecurities Corp., and Long BeachSecurities Corp.

James P. RouhandehBrian S. WeinsteinDaniel J. SchwartzNicolas N. GeorgeJane M. MorrilDAVIS POLK & WARDWELL LLP450 Lexington AvenueNew York, New York 10017(212) 450-4000

Attorneys for Morgan Stanley, Morgan Stanley & Co. Incorporated(n/k/a Morgan Stanley & Co. LLC),Morgan Stanley Mortgage CapitalHoldings LLC (successor-in-interest toMorgan Stanley Mortgage CapitalInc.), Morgan Stanley ABS Capital I Inc., Morgan Stanley Capital I Inc.,Saxon Capital, Inc., Saxon FundingManagement LLC, and Saxon AssetSecurities Co.

Jay B. KasnerScott MusoffGeorge ZimmermanRobert A. FumertonSKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLPFour Times SquareNew York, New York 10036(212) 735-3000Attorneys for SG Americas, Inc., SGAmericas Securities Holdings, LLC,SG Americas Securities, LLC, SGMortgage Finance Corp., and SGMortgage Securities, LLC.


CORPORATE DISCLOSURE STATEMENT

(FEDERAL RULE OF APPELLATE PROCEDURE 26.1)

JPMorgan

Movants JPMorgan Chase Bank, N.A., J.P. Morgan Mortgage

Acquisition Corporation, J.P. Morgan Securities LLC (formerly known as J.P.

Morgan Securities Inc.), J.P. Morgan Acceptance Corporation I, EMC Mortgage

LLC, Bear Stearns & Co., Inc. (now known as J.P. Morgan Securities LLC),

Structured Asset Mortgage Investments II Inc., Bear Stearns Asset Backed

Securities I LLC, WaMu Asset Acceptance Corporation, WaMu Capital

Corporation, Washington Mutual Mortgage Securities Corporation and Long

Beach Securities Corporation are each directly or indirectly wholly owned

subsidiaries of JPMorgan Chase & Co. JPMorgan Chase & Co. is a publicly held

company whose shares are traded on the New York Stock Exchange. It has no

parent corporation, and no publicly held company owns more than 10% of

JPMorgan Chase & Co.’s shares.

HSBC

Movants HSBC North America Holdings Inc., HSBC USA Inc.,

HSBC Markets (USA) Inc., HSBC Bank USA, National Association, HSI Asset

Securitization Corporation and HSBC Securities (USA) Inc. are all wholly owned,

indirect subsidiaries of HSBC Holdings plc. No publicly held corporation owns

10% or more of the stock of HSBC Holdings plc.


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Barclays

Movants Barclays Bank PLC, Barclays Capital Inc., and Securitized

Asset Backed Receivables LLC are each directly or indirectly wholly owned

subsidiaries of Barclays PLC, which is a publicly traded corporation. Barclays

PLC has no parent corporation, and no publicly held corporation holds 10% or

more of the stock of Barclays PLC.

Deutsche Bank

Movants Taunus Corporation, DB Structured Products, Inc., Deutsche

Bank Securities Inc., and MortgageIT Securities Corp. are each directly or

indirectly wholly owned subsidiaries of Movant Deutsche Bank AG, a publicly

held corporation organized under the laws of Germany. Movant Deutsche Bank

AG has no parent corporation and no publicly held company owns more than 10%

of its stock. Movant ACE Securities Corp. is wholly owned by Altamont Holdings

Corp., a privately held corporation organized under the laws of Delaware.

First Horizon

Movant First Horizon National Corporation (“First Horizon”) is a

publicly held corporation. First Horizon has no parent, and no publicly held

corporation beneficially owns 10% or more of First Horizon’s stock. First Horizon

is the parent company and 100% owner of the common stock of Movant First

Tennessee Bank National Association. Movant First Tennessee Bank National


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Association is the parent company and 100% owner of Movants FTN Financial

Securities Corp. and First Horizon Asset Securities, Inc.

Bank of America

Movant Bank of America Corporation is the ultimate corporate parent

of all of the Bank of America Movants and their respective parent companies,

other than itself, and owns 100% of their common stock. Bank of America

Corporation is itself a publicly held corporation whose shares are traded on the

New York Stock Exchange. Bank of America Corporation has no parent, and no

publicly held corporation owns 10% or more of Bank of America Corporation’s

stock.

Goldman Sachs

Movants Goldman, Sachs & Co., GS Mortgage Securities Corp.,

Goldman Sachs Mortgage Company and Goldman Sachs Real Estate Funding

Corp. are each directly or indirectly wholly owned subsidiaries of The Goldman

Sachs Group, Inc. (“GS Group”), which is a corporation organized under the laws

of Delaware and whose shares are publicly traded on the New York Stock

Exchange. GS Group has no parent corporation, and to the best of GS Group’s

knowledge, no publicly held company owns 10% or more of the common stock of

GS Group.


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Credit Suisse

Movants Credit Suisse Securities (USA) LLC, DLJ Mortgage Capital,

Inc., Credit Suisse First Boston Mortgage Acceptance Corp., Asset Backed

Securities Corporation, Credit Suisse First Boston Mortgage Securities Corporation

and Credit Suisse (USA), Inc. are each directly or indirectly wholly owned

subsidiaries of Credit Suisse Holdings (USA), Inc. Credit Suisse Holdings (USA),

Inc. is a jointly owned subsidiary of (1) Credit Suisse Group AG, (2) Credit Suisse

Group AG, Guernsey Branch, which is a branch of Credit Suisse Group AG, and

(3) Credit Suisse AG. Credit Suisse AG has publicly registered debt securities and

warrants in the United States and elsewhere. Credit Suisse AG is a wholly owned

subsidiary of Credit Suisse Group AG, which is a corporation organized under the

laws of the Country of Switzerland and whose shares are publicly traded on the

SIX Swiss Exchange and are also listed on the New York Stock Exchange in the

form of American Depositary Shares.

Nomura

Movant Nomura Holding America Inc., a private company, is 100%

owned by Nomura Holdings, Inc., a publicly held corporation. Movant Nomura

Holding America Inc. is the parent company and 100% owner of Movant Nomura

Securities International, Inc. Movant Nomura Holding America Inc. is also the

parent company and 100% owner of Nomura America Mortgage Finance, LLC,


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which is the parent company and 100% owner of Movants Nomura Asset

Acceptance Corporation, Nomura Home Equity Loan, Inc., and Nomura Credit &

Capital, Inc.

Merrill Lynch

Bank of America Corporation is the ultimate corporate parent of all of

the Merrill Lynch Movants and their respective parent companies, and owns 100%

of their common stock. Bank of America Corporation is itself a publicly held

corporation whose shares are traded on the New York Stock Exchange. Bank of

America Corporation has no parent, and no publicly held corporation owns 10% or

more of Bank of America Corporation’s stock.

SG Americas

Movant SG Americas, Inc. is a wholly owned subsidiary of Société

Générale. Société Générale is a publicly held company whose shares are traded on

the Euronext Stock Exchange. No publicly traded entity owns 10% or more of the

stock of Société Générale. Movant SG Americas Securities Holdings, LLC is a

Delaware limited liability company and is a wholly owned subsidiary of Société

Générale. Movant SG Americas Securities, LLC is a Delaware limited liability

company and is a wholly owned subsidiary of SG Americas Securities Holdings,

LLC. Movant SG Mortgage Finance Corp. is a wholly owned subsidiary of SG


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Americas, Inc. Movant SG Mortgage Securities, LLC is a Delaware limited

liability company and is a wholly owned subsidiary of SG Mortgage Finance Corp.

Morgan Stanley

Movants Morgan Stanley & Co. Incorporated (n/k/a Morgan Stanley

& Co. LLC), Morgan Stanley Mortgage Capital Holdings LLC (d/b/a Morgan

Stanley Mortgage Capital, Inc.), Morgan Stanley ABS Capital I, Inc., Morgan

Stanley Capital I, Inc., Saxon Capital, Inc., Saxon Funding Management LLC f/k/a

Saxon Funding Management, Inc., and Saxon Asset Securities Company, are all

directly or indirectly wholly owned subsidiaries of Morgan Stanley, a publicly held

corporation that has no parent corporation. Based on Securities and Exchange

Commission Rules regarding beneficial ownership, Mitsubishi UFJ Financial

Group, Inc., 7-1 Marunouchi 2-chome, Chiyoda-ku, Tokyo 100-8330, beneficially

owns greater than 10% of Morgan Stanley’s outstanding common stock.

GMAC Mortgage Group Ally

Movants GMAC Mortgage Group, LLC and Ally Securities, LLC are

direct, wholly owned subsidiaries of Movant Ally Financial Inc. No publicly held

corporation owns 10% or more of the stock of Ally Financial Inc.

RBS Securities

Movant RBS Securities Inc., formerly known as Greenwich Capital

Markets, Inc., is an indirect wholly owned subsidiary of The Royal Bank of

Scotland Group plc, a public company whose stock is traded on the London Stock


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Exchange. The Royal Bank of Scotland Group plc has no parent corporation and

no publicly held company owns more than 10% of its stock.


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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ............................................................................... 1

BACKGROUND ....................................................................................................... 3

A. Procedural History ................................................................................. 3

B. Movants’ Direct and Substantial Interest in the UBS Action ............... 7

ARGUMENT ............................................................................................................. 7

I. THE COURT SHOULD RECALL THE MANDATE TO PERMIT MOVANTS TO INTERVENE AND SEEK CERTIORARI .......................... 8

II. THE EXTRAORDINARY CIRCUMSTANCES WARRANT INTERVENTION .......................................................................................... 11

A. Movants Have Standing to Intervene .................................................. 11

B. Intervention Will Further the Efficient Resolution of the FHFA Actions and the Policies Underlying Intervention .............................. 13

1. This Motion Is Timely .............................................................. 15

2. The Non-UBS Actions Share with the UBS Action Common Questions of Law ...................................................... 16

3. Intervention Will Not Unduly Delay or Prejudice the Parties ........................................................................................ 16

4. The Present Circumstances Favor Intervention ........................ 18

CONCLUSION ........................................................................................................ 20


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Table of Authorities

Page(s)

CASES

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .............................................................................................. 11

AT&T Corp. v. Sprint Corp., 407 F.3d 560 (2d Cir. 2005) ............................................................................... 17

Banks v. Chi. Grain Trimmers Ass’n, 389 U.S. 813 (1967) ............................................................................................ 14

Bates v. Jones, 127 F.3d 870 (9th Cir. 1997) .............................................................................. 13

Calderon v. Thompson, 523 U.S. 538 (1998) ........................................................................................ 8, 10

Canal Ins. Co. v. First Gen. Ins. Co., 901 F.2d 45 (5th Cir. 1990) ................................................................................ 10

Chadha v. INS, 634 F.2d 408 (9th Cir. 1980) .............................................................................. 14

Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., 709 F.3d 140 (2d Cir. 2013) ................................................................................ 8

City of Detroit v. Grinnell Corp., 575 F.2d 1009 (2d Cir. 1977) ............................................................................... 8

Clark v. Putnam County, 168 F.3d 458 (11th Cir. 1999) ............................................................................ 19

Commonwealth Land Title Ins. Co. v. Corman Constr., Inc., 508 U.S. 958 (1993) ............................................................................................ 14

Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982) ............................................................................ 14

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ............................................................................................ 16


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Corroon v. Reeve, 258 F.3d 86 (2d Cir. 2001) ................................................................................. 13

Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104 (1st Cir. 1999) ............................................................................... 19

Diamond v. Charles, 476 U.S. 54 (1986) .............................................................................................. 12

Dunton v. Suffolk County, 748 F.2d 69 (2d Cir. 1984) ............................................................................. 8, 13

Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091 (10th Cir. 2005) .......................................................................... 13

FHFA v. UBS Ams. Inc., 712 F.3d 136 (2d Cir. 2013) ......................................................................... 2, 3, 6

FHFA v. UBS Ams., Inc., 858 F. Supp. 2d 306 (S.D.N.Y. 2012) .........................................................passim

Gonzales v. Oregon, 546 U.S. 807 (2005) ............................................................................................ 14

Goodman v. Heublein, Inc., 682 F.2d 44 (2d Cir. 1982) ................................................................................. 13

H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85 (2d Cir. 1986) ................................................................................. 18

Hercules Inc. v. United States, 309 F.3d 781 (Fed. Cir. 2002) .............................................................................. 9

Holloway v. Horn, No. 01-9010 (3d Cir. Apr. 21, 2004) .................................................................... 9

Hunt v. Cromartie, 525 U.S. 946 (1998) ............................................................................................ 14

Hunter v. Ohio ex rel. Miller, 396 U.S. 879 (1969) ............................................................................................ 14


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Hurd v. Ill. Bell Tel. Co., 234 F.2d 942 (7th Cir. 1956) .............................................................................. 13

In re Nevada-Utah Mines & Smelters Corp., 204 F. 982 (2d Cir. 1913) ................................................................................... 13

In re Union Nacional de Trabajadores, 527 F.2d 602 (1st Cir. 1975) ............................................................................... 11

Int’l Union v. Scofield, 382 U.S. 205 (1965) ...................................................................................... 11, 14

Jie Hin Shu v. Dep’t of Justice, 282 F. App’x 879 (2d Cir. 2008) ...................................................................... 8-9

Mass. Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776 (D.C. Cir. 1997) ............................................................................ 19

Mullaney v. Anderson, 342 U.S. 415 (1952) ............................................................................................ 19

NAACP v. New York, 413 U.S. 345 (1973) ............................................................................................ 15

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989) ...................................................................................... 13, 14

Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114 (2d Cir. 2010) ............................................................................... 12

Rogers v. Paul, 382 U.S. 198 (1965) ...................................................................................... 14, 19

Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86 (2d Cir. 1996) ............................................................................... 8, 10

Sierra Club v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007) .................................................................... 19

Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326 (9th Cir. 1977) ............................................................................ 18


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Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004) ............................................................................... 12

TM Patents v. IBM, 107 F. Supp. 2d 352 (S.D.N.Y. 2000) ................................................................ 12

Turner v. Rogers, 131 S. Ct. 504 (2010) .......................................................................................... 14

U.S. Postal Serv. v. Brennan, 579 F.2d 188 (2d Cir. 1978) ............................................................................... 17

United States v. Hinds, No. 99-4605, 2002 WL 32076932 (4th Cir. Oct. 17, 2002) ................................. 9

United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994) ................................................................................... 17

United States v. Terminal R.R. Ass’n, 236 U.S. 194 (1915) ............................................................................................ 14

Weisshaus v. Swiss Bankers Ass’n (In re Holocaust Victim Assets Litig.), 225 F.3d 191 (2d Cir. 2000) ............................................................................... 17

Wilkins v. United States, 441 U.S. 468 (1979) ............................................................................................ 11

CONSTITUTION, STATUTES & RULES

U.S. Constitution .................................................................................................. 4, 11

12 U.S.C. § 4617 ........................................................................................................ 4

15 U.S.C. § 77m ......................................................................................................... 4

28 U.S.C. § 1292 ........................................................................................................ 5

Fed. R. Civ. P. 1 ....................................................................................................... 14

Fed. R. Civ. P. 21 ..................................................................................................... 14

Fed. R. Civ. P. 24 ..............................................................................................passim


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OTHER AUTHORITIES

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) .............................................................. 14

15A Charles Alan Wright et al., Federal Practice & Procedure § 3902.1 (2d ed. 1992)...................................... 13


PRELIMINARY STATEMENT

By this emergency motion, Movants respectfully request this Court to

enter an Order (a) recalling the mandate issued in this action on April 26, 2013 (the

“Mandate”), and (b) granting Movants leave to intervene as Appellants-Defendants

to this Court’s April 5, 2013 opinion and judgment (the “April 5 Judgment”) in this

action (the “UBS Action”). Movants also seek entry of an amended judgment

reflecting this relief. Movants bring this motion to protect their legal rights, to

preserve appellate review of the April 5 Judgment, and to avoid the potential

mootness of these proceedings before the filing of (or during the pendency of) a

forthcoming petition for writ of certiorari, currently due on September 3, 2013.

For the reasons set forth below, compelling and unique circumstances warrant this

relief.

Movants are defendants in thirteen actions 1 filed by the Federal

Housing Finance Agency (“FHFA”) on September 2, 2011 (the “Non-UBS

Actions,” and together with the UBS Action, the “FHFA Actions”) that, like the

present action, arise from the Federal Home Loan Mortgage Corporation’s

(“Freddie Mac”) and the Federal National Mortgage Association’s (“Fannie Mae”)

purchases of over $130 billion dollars of certificates in over 400 residential

1 See Declaration of David H. Braff in Support of Emergency Motion to Recall Mandate to Amend Judgment and for Leave to Intervene (“Braff Decl.” or “Braff Declaration”) ¶ 1 n.1 (July 15, 2013). Citations to “Ex.” are to the exhibits appended to the Braff Declaration.


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mortgage-backed securities (“RMBS”) issued, sponsored, and/or underwritten by

defendants between 2005 and 2007. The Non-UBS Actions were coordinated for

pre-trial purposes with the UBS Action, which is serving as the lead action in the

District Court. After the District Court largely denied the motion to dismiss filed

by the defendants in the UBS Action (the “UBS Defendants”), it certified two legal

issues common to all defendants in the FHFA Actions for interlocutory appeal to

this Court.

On April 5, 2013, this Court issued its decision affirming the District

Court’s denial of a motion to dismiss in the UBS Action confined to two issues

concerning the construction of a federal statute and the U.S. Constitution. FHFA

v. UBS Ams. Inc., 712 F.3d 136, 139, 144-45 (2d Cir. 2013). The Mandate issued

from this Court on April 26, 2013. (Ex. B.) The U.S. Supreme Court has granted

an extension until September 3, 2013 to file a petition for writ of certiorari to

review the April 5 Judgment. (Ex. A.) The issues addressed in this Court’s

decision are common to each of Movants’ cases.

Because of the highly compressed timetable in the UBS Action—

including a January 13, 2014 trial date that the District Court has deemed

immovable for any reason—there is a substantial risk that the UBS Action will

settle before any petition for writ of certiorari is filed or before the Supreme Court

reaches the merits of any appeal by the UBS Defendants. Consequently, although


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Movants participated in this appeal as amici curiae (Ex. C), Movants seek to

intervene as party Defendants-Appellants to ensure that their significant interest in

this appeal will be vindicated notwithstanding any resolution of the UBS Action.

Movants seek expeditious relief from this Court in order to allow

them to file and prosecute a petition for writ of certiorari. Granting intervention as

soon as possible will permit Movants to comply with the September 3, 2013

deadline for filing a petition for writ of certiorari in the Supreme Court. Without

intervention, Movants will be forced to litigate the individual Non-UBS Actions to

final judgment and bring seriatim appeals to this Court before seeking further

appellate review of these threshold issues. Movants’ intervention is thus critical to,

among other things, avoid needless waste of judicial and party resources, limit

prejudice to Movants, and further the efficient resolution of the FHFA Actions.

Movants therefore ask the Court to recall the Mandate and request entry of an

amended judgment reflecting Movants’ intervention as Defendants-Appellants.

BACKGROUND

A. Procedural History

FHFA, acting as conservator for Freddie Mac and Fannie Mae,

commenced the UBS Action on July 27, 2011. FHFA, 712 F.3d at 139. It

commenced the Non-UBS Actions on September 2, 2011. Id. All of the FHFA

Actions were re-assigned to a single federal district court judge and coordinated for


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pre-trial purposes. (See, e.g., Ex. I.) On December 2, 2011, the District Court

designated the first-filed UBS Action as a test case for purposes of resolving all

“common issues” raised in motions addressed to the pleadings. (E.g., Ex. H, at 21,

29.) The District Court explained that, to the extent Movants sought dismissal on

legal grounds raised by the UBS Defendants, the District Court would not revisit

those arguments but, instead, would adopt its reasoning in its decision in the UBS

Action. (Id. at 31.)

On January 20, 2012, the UBS Defendants filed their motion to

dismiss, raising various core common issues including whether (i) 12 U.S.C.

§ 4617(b) (the “Extender Statute”)—a provision enacted as part of the Housing and

Economic Recovery Act of 2008 that governs the limitations period for certain

actions brought by FHFA—applied to statutes of repose under Section 13 of the

Securities Act of 1933, 15 U.S.C. § 77m, and state Blue Sky laws, and (ii) FHFA

had standing to prosecute its claims when the Acting Director who appointed

FHFA as conservator for Freddie Mac and Fannie Mae and the Acting Director

who directed FHFA to initiate the FHFA Actions were not appointed in accordance

with the Appointments Clause of the U.S. Constitution, art. II, § 2, cl. 2. (Ex. G, at

12-19, 36-38.) If the Extender Statute does not apply to the statutes of repose in

the Securities Act and state Blue Sky laws, most—and in some cases, all—of

FHFA’s multi-billion dollar claims against Movants would be barred as a matter of


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law. Similarly, if FHFA lacks standing to sue, FHFA’s claims against all

defendants in the FHFA Actions would be dismissed.

In a May 4, 2012 decision, the District Court largely denied the UBS

Defendants’ motion to dismiss. FHFA v. UBS Ams., Inc., 858 F. Supp. 2d 306

(S.D.N.Y. 2012). The District Court ruled, among other things, that (i) the

Extender Statute applied to statutes of repose despite the fact that the statute, by its

terms, referred only to statutes of limitations, and (ii) FHFA had standing to sue.

Id. at 317, 322. The District Court subsequently certified two questions for

interlocutory appeal under 28 U.S.C. § 1292(b) relating to the application of the

Extender Statute, explaining that “the Court’s decision to certify is driven

primarily by the prospect that an immediate appeal may expedite the conclusion of

this litigation—whether through judicial resolution or settlement.” Id. at 340-41.

The District Court also observed:

Appellate resolution of the timeliness of plaintiff’s Securities Act claims will also remove a cloud of legal uncertainty that hangs over the other 17 actions in this suite of cases. This, in turn, will facilitate and streamline motion practice in those other cases and may affect the parties’ strategic decision-making going forward. Courts may properly consider such “system-wide costs and benefits” in determining whether to permit interlocutory review. Indeed several district courts, including this one, have opined that certification may be particularly appropriate in complex litigation involving multiple coordinated actions. In such cases, interlocutory review may be the best way to “materially advance the ultimate termination of the litigation by avoiding ‘protracted litigation and multiple appeals’” of the same or similar issues.


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(Id. at 338-39 (citations omitted and emphasis added).) On appeal, Movants

sought—and received—permission from this Court to participate as amici,

demonstrating their direct and substantial interest in this appeal. FHFA v. UBS

Ams. Inc., No. 12-3207, Dkt. No. 183 (2d Cir. Nov. 14, 2012) (granting leave to

file amicus brief).

This Court accepted interlocutory review and, on April 5, 2013,

affirmed the District Court’s holdings on the two certified questions. FHFA, 712

F.3d at 141-42. On June 20, 2013, the UBS Defendants sought an extension of

time until September 3, 2013 to file a petition for writ of certiorari in the Supreme

Court. On June 24, Justice Ginsburg granted the UBS Defendants a 60-day

extension (to September 3, 2013) to file the petition. (Ex. A.) Accordingly, any

petition for writ of certiorari to review the April 5 Judgment is due September 3.

The Movants filed motions to dismiss FHFA’s claims against them in

the individual Non-UBS Actions, incorporating the UBS Defendants’ arguments on

common issues by reference. In each case, the District Court adopted and applied

its rulings in the UBS Action, including its rulings regarding the interpretation of

the statute at issue in the then-pending appeal in this Action.2

After deciding the UBS Defendants’ motion to dismiss, the District

Court entered a schedule for the FHFA Actions whereby the UBS Action would be

2 See Braff. Decl. ¶ 13 n.3.


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tried first and have the most compressed schedule. (Ex. F, at 5.) Fact and expert

discovery in the UBS Action must be completed by September 13, 2013; summary

judgment motions are due September 16, 2013; and trial is set for January 13,

2014. (Ex. D, at 2-3.)

B. Movants’ Direct and Substantial Interest in the UBS Action

As the District Court acknowledged in certifying an interlocutory

appeal, Movants have a substantial interest in the UBS Action. The District Court

already has ruled that Movants are bound by its rulings on overlapping issues in

the UBS Action, including those rulings affirmed by this Court in the April 5

Judgment. The District Court’s holding—as affirmed by this Court—that the

Extender Statute applies to statutes of repose and that FHFA has standing to sue

allowed FHFA’s claims against Movants concerning more than $100 billion in

securities to proceed. Movants indisputably have a direct and substantial legal

interest in this Action.

ARGUMENT

Movants bring this motion to protect their legal rights, to avoid

mootness if the UBS Action settles, and to preserve appellate review of this Court’s

April 5 Judgment in order to remove the “cloud of legal uncertainty” over the

FHFA Actions. This Court has discretion to grant the relief requested, and the


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unprecedented size and nature of the FHFA Actions present extraordinary

circumstances that warrant granting Movants relief.

I. THE COURT SHOULD RECALL THE MANDATE TO PERMIT MOVANTS TO INTERVENE AND SEEK CERTIORARI.

This Court’s “power to recall a mandate is unquestioned”; indeed, the

Court has recognized that it has “the power to reopen a case at any time.” Sargent

v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996). While “this power

is to be ‘exercised sparingly’” because of “the need to preserve finality in judicial

proceedings,” it can be exercised under “exceptional circumstances.” Id. (citations

omitted); see also Calderon v. Thompson, 523 U.S. 538, 550 (1998) (“In light of

‘the profound interests in repose’ attaching to the mandate of a court of appeals,

. . . the power can be exercised only in extraordinary circumstances.”). In deciding

what constitutes “extraordinary circumstances,” courts have considered, among

other things, the equities involved. See Christian Louboutin S.A. v. Yves Saint

Laurent Am. Holding, Inc., 709 F.3d 140, 142 (2d Cir. 2013); Dunton v. Suffolk

County, 748 F.2d 69, 70 (2d Cir. 1984) (“The unusual nature of these

circumstances and the realization that injustice would ensue if we simply denied

the petition for a writ of prohibition convinced us to recall our mandate.”); City of

Detroit v. Grinnell Corp., 575 F.2d 1009, 1009 (2d Cir. 1977) (equity favored

granting motion to recall and amend mandate); see also Jie Hin Shu v. Dep’t of

Justice, 282 F. App’x 879, 882 (2d Cir. 2008) (finding exceptional circumstances


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warranting sua sponte recall of mandate where petitioner’s legal representation

was substandard).

Courts of appeals have exercised their power to recall mandates to

allow a movant to petition for writ of certiorari. Thus, in Hercules Inc. v. United

States, the Federal Circuit granted a motion to recall the mandate upon a showing

of good cause and “in light of the conditional consent of the United States,” and

“stay[ing] issuance of the mandate for 90 days to allow for the filing of a petition

seeking a writ of certiorari.” 309 F.3d 781, 781 (Fed. Cir. 2002). Similarly, in

Holloway v. Horn, the Third Circuit recalled a mandate “to give the

Commonwealth an opportunity to file a timely petition for certiorari.” (Ex. J (No.

01-9010, Dkt. entry of Apr. 21, 2004 (3d Cir.)).) See also United States v. Hinds,

No. 99-4605, 2002 WL 32076932, at *1 (4th Cir. Oct. 17, 2002) (recalling

mandate upon finding that Hinds had presented “extraordinary circumstances” and

granting motion for appointment of counsel to file petition for writ of certiorari).

Extraordinary circumstances are present here as well. As explained

below, absent intervention, a settlement in the UBS Action would render moot in

the UBS Action the threshold legal issues that remain live and are central to the

Non-UBS Actions, depriving Movants of the opportunity for further prompt

appellate review, which will result in significant injury absent intervention. In

these exceptional circumstances, Movants seek straightforward procedural relief:


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recall of the Mandate and leave to intervene as Defendants-Appellants to this

Court’s adverse April 5 Judgment, and entry of an amended judgment reflecting

Movants’ intervention. Movants do so for one reason: to allow them to file a

petition for writ of certiorari for further discretionary review of this Court’s

decision. Significantly, Movants do not ask this Court to disturb or otherwise

revisit the merits of its decision. See Calderon, 523 U.S. at 557.

Moreover, because the April 5 Judgment is still appealable, granting

Movants relief in no way implicates the finality or repose of this Court’s

decision—the principal concern in recalling a mandate. Sargent, 75 F.3d at 89; see

Calderon, 523 U.S. at 550. Indeed, Movants seek this relief in order to file a

petition for writ of certiorari within the schedule set by the Supreme Court.

Moreover, if Movants are permitted to intervene to file a petition for writ of

certiorari, any resolution of the UBS Action will have no effect on Movants’

petition because the issues being appealed are purely legal questions that can be

resolved—as this Court did—without reference to the specific factual

circumstances of any of the FHFA Actions. See infra Section II.B.3.

In addition, recalling the Mandate will not prejudice the parties. See

Canal Ins. Co. v. First Gen. Ins. Co., 901 F.2d 45, 47 (5th Cir. 1990) (per curiam)

(finding it “just to recall the mandate” where defendant would “suffer no undue

prejudice”); In re Union Nacional de Trabajadores, 572 F.2d 602, 604 (1st Cir.


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1975) (per curiam) (recalling mandate, and explaining that doing so “would not

substantially prejudice” Defendants). Finally, recalling the mandate and permitting

Movants to intervene to file a petition for writ of certiorari will promote judicial

economy and efficiency, and prevent substantial injustice to Movants. See infra

Section II.B.4. For the foregoing reasons, the Court should recall the Mandate to

amend the judgment to reflect intervention by Movants. See Wilkins v. United

States, 441 U.S. 468, 470 (1979) (vacating appeals court judgment and remanding

for further proceedings, including reentry of judgment).

II. THE EXTRAORDINARY CIRCUMSTANCES WARRANT INTERVENTION.

Although there is no rule governing intervention in appellate courts,

the Supreme Court has recognized that the “policies underlying [Rule 24 of the

Federal Rules of Civil Procedure] may be applicable in appellate courts.” Int’l

Union v. Scofield, 382 U.S. 205, 217 n.10 (1965). This Court has discretion to

grant a motion for leave to intervene where, as here, the movant has a cognizable

legal interest in the dispute and compelling circumstances warrant relief.

A. Movants Have Standing to Intervene.

While an “intervenor cannot step into the shoes of the original party

unless the intervenor independently ‘fulfills the requirements of Article III,’”

Movants plainly have Article III standing. Arizonans for Official English v.

Arizona, 520 U.S. 43, 65 (1997) (quoting Diamond v. Charles, 476 U.S. 54, 68


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(1986)); Tachiona v. United States, 386 F.3d 205, 211 (2d Cir. 2004). FHFA’s

lawsuits were coordinated before the District Court in an effort to streamline

litigation by, among other things, avoiding the need to resolve arguments on each

defendant’s motion to dismiss on issues common to all the FHFA Actions. (E.g.,

Ex. H, at 50.) The exact same legal questions at issue in the appeal to this Court

arise in each of the FHFA actions against Movants. In fact, the District Court has

applied its rulings in the UBS Action to Movants, including its rulings regarding

the scope of the Extender Statute and FHFA’s standing to prosecute these actions.

See supra at 4, 6, & Braff Decl. ¶ 13 n.3. Because of this coordination, Movants

were required to rely exclusively on the UBS Defendants to litigate these common

issues. 3

Consequently, this Court’s April 5 Judgment has directly affected, in

an actual, concrete, and cognizable way, Movants’ legal interests. Movants are

already, in every practical sense, subject to the April 5 Judgment to the same extent

as the UBS Defendants. Thus, they should be given the opportunity to seek review

of that judgment by the Supreme Court.

3 The Second Circuit’s opinion in the UBS Action is binding on all district courts in the Circuit, see TM Patents v. IBM, 107 F. Supp. 2d 352, 353 (S.D.N.Y. 2000), as well as any subsequent Second Circuit panel “in the absence of a decision by the Supreme Court or an en banc panel of [the Second Circuit] calling that precedent into question.” Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114, 122 (2d Cir. 2010).


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B. Intervention Will Further the Efficient Resolution of the FHFA Actions and the Policies Underlying Intervention.

“A request for intervention to participate in an appeal may be

addressed to the court of appeals instead of the trial court.” 15A Charles Alan

Wright et al., Federal Practice & Procedure § 3902.1, at 120 (2d ed. 1992); see

also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833 (1989). While

intervention on appeal is permitted infrequently,4 it “has been permitted in various

circumstances that do not seem to threaten either the parties or orderly judicial

process,” including post-judgment intervention. Wright et al., at 120. Allowing

intervention here would serve to promote the orderly judicial process by giving

Movants the opportunity to remove the “cloud of legal uncertainty” that prompted

the District Court to certify an interlocutory appeal in the first place. FHFA, 858

F. Supp. 2d at 338, 340-41. Indeed, courts of appeals have permitted intervention

where, as here, it would prevent prejudice to intervenors without prejudicing the

parties. See, e.g., Hurd v. Ill. Bell Tel. Co., 234 F.2d 942, 944 (7th Cir. 1956)

(permitting intervention in a case “fraught with elements of possible prejudice to

petitioner” and where defendants would not be prejudiced by intervention). 5

4 See Corroon v. Reeve, 258 F.3d 86, 91-92 (2d Cir. 2001); Dunton v. Suffolk County, 748 F.2d 69, 70 (2d Cir. 1984); Goodman v. Heublein, Inc., 682 F.2d 44, 47 (2d Cir. 1982); In re Nevada-Utah Mines & Smelters Corp., 204 F. 982, 983 (2d Cir. 1913). 5 See also Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1103-04 (10th Cir. 2005); Bates v. Jones, 127 F.3d 870, 873-74 (9th Cir. 1997).


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Moreover, various courts of appeals have allowed amici to intervene post-

judgment. See Eugene Gressman et al., Supreme Court Practice 86-87 & n.30 (9th

ed. 2007) (citing Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), aff’d, 462 U.S. 919,

929-31 (1983), and Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir.

1982)).

Although the Federal Rules of Appellate Procedure do not provide

explicitly for intervention or the addition of parties, the Supreme Court has

observed that the policies underlying the Rules may apply in appellate courts.

Scofield, 382 U.S. at 217 n.10; see also Newman-Green, 490 U.S. at 832

(“Although the Federal Rules of Civil Procedure strictly apply only in the district

courts, Fed. Rule Civ. Proc. 1, the policies informing Rule 21 [granting district

courts the authority to ‘add or drop a party’] may apply equally to the courts of

appeals.”). Under Rule 24(b), intervention may be allowed where, as here, (i) the

movant has made a timely motion, and (ii) the movant “has a claim or defense that

shares with the main action a common question of law or fact.” Fed. R. Civ. P.

24(b)(1). These factors are satisfied here.

Indeed, the Supreme Court itself has granted motions to intervene. See, e.g., Turner v. Rogers, 131 S. Ct. 504 (2010); Gonzales v. Oregon, 546 U.S. 807 (2005); Hunt v. Cromartie, 525 U.S. 946 (1998); Commonwealth Land Title Ins. Co. v. Corman Constr., Inc., 508 U.S. 958 (1993); Hunter v. Ohio ex rel. Miller, 396 U.S. 879 (1969); Banks v. Chi. Grain Trimmers Ass’n, 389 U.S. 813 (1967); Rogers v. Paul, 382 U.S. 198, 199 (1965); United States v. Terminal R.R. Ass’n, 236 U.S. 194, 199 (1915).


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1. This Motion Is Timely.

“Timeliness is to be determined from all the circumstances,” including

but not limited to “the point to which the suit has progressed.” NAACP v. New

York, 413 U.S. 345, 365-66 (1973). This motion is timely because Movants’

interest in intervening to maintain the existence of a case or controversy only arose

after this Court’s April 5 Judgment. More particularly, after the UBS Defendants

received an extension on June 24, 2013 to file their petition for writ of certiorari, it

has become more likely that the UBS Action will resolve before the UBS

Defendants file a petition for writ of certiorari. As the District Court explained, its

certification for interlocutory appeal in only the UBS Action was “driven primarily

by the prospect that an immediate appeal may expedite the conclusion of this

litigation—whether through judicial resolution or settlement.” UBS Ams., Inc., 858

F. Supp. 2d at 340-41. The District Court also observed that an “appellate ruling

that FHFA’s claims are in fact timely is likely to significantly affect the parties’

bargaining positions and may hasten the termination of this litigation through

settlement.” Id. at 338. Indeed, defendants in FHFA’s action against Citigroup

Inc. settled with FHFA shortly after this Court’s decision. (See Ex. E.) Thus, like

a class certification ruling in a substantial securities class action, this Court’s

decision could “so increase . . . defendant[s’] potential damages liability and

litigation costs that [they] may find it economically prudent to settle and to


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abandon a meritorious defense.” Coopers & Lybrand v. Livesay, 437 U.S. 463,

476 (1978).

Consequently, Movants seek to intervene to ensure that even if—as is

likely—the UBS Action is resolved before a petition is filed or before

consideration of that case by the Supreme Court, Movants can still seek timely

review of these two threshold legal issues that could result in the resolution of all

of the FHFA Actions.

2. The Non-UBS Actions Share with the UBS Action Common Questions of Law.

This Court’s decision addressed two purely legal issues that are

common to all the FHFA Actions. The resolution of these issues drastically affects

the scope of the potential liability facing defendants in these multi-billion dollar

actions. For example, if the Supreme Court were to hold that the Extender Statute

does not extend statutes of repose, then the great majority of FHFA’s claims

against defendants in these FHFA Actions would be time-barred. In some of the

actions, all of FHFA’s claims would be time-barred. And, if the Supreme Court

were to hold that FHFA lacks standing to bring these lawsuits, then all of FHFA’s

claims in these Actions would be dismissed.

3. Intervention Will Not Unduly Delay or Prejudice the Parties.

Rule 24(b) requires district courts to consider “whether the

intervention will unduly delay or prejudice the adjudication of the original parties’


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rights.” Fed. R. Civ. P. 24(b)(3); AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561-

62 (2d Cir. 2005). This Court has found undue delay or prejudice to be the

“principal consideration” in determining whether intervention under Rule 24(b) is

appropriate. U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978).

Here, intervention poses no delay or prejudice to the parties or the

Court. Movants seek intervention for the sole purpose of filing a petition for writ

of certiorari on the same time frame that has been granted to the UBS Defendants.

The issues to be presented to the Supreme Court for potential review are purely

legal questions, untethered to any unique factual issues or allegations in the UBS

Action.

Further, intervention will not jeopardize any potential settlement in

the UBS Action. Any settlement of that action will implicate only the

securities issued, sponsored, and/or underwritten by the UBS Defendants, which

are independent of the securities at issue in the Non-UBS Actions.6 A settlement

will still relieve FHFA of its obligation to prepare for a January 2014 trial against

the UBS Defendants, regardless of Movants’ intervention. In short, a settlement of

6 While courts have denied motions to intervene when intervention would “prejudice the . . . existing parties by destroying” potential settlement, prolonging litigation, and raising the costs to the parties, there is no such prejudice to the parties from Movants’ intervention. See Weisshaus v. Swiss Bankers Ass’n (In re Holocaust Victim Assets Litig.), 225 F.3d 191, 202 (2d Cir. 2000); United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994) (denying intervention because parties would have had to renegotiate settlement).


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the UBS Action (or any of the individual Non-UBS Actions) will have no effect on

the issues to be presented to the Supreme Court, which concern only the purely

legal questions of whether the Extender Statute applies to statutes of repose and

whether FHFA has standing to bring these suits. Thus, Movants’ intervention

poses no harm or prejudice to either the UBS Defendants or FHFA.

4. The Present Circumstances Favor Intervention.

In considering motions to intervene, courts within this Circuit also

may look to other factors, such as (i) “the nature and extent of the [movant’s]

interests,” (ii) “the degree to which those interests are adequately represented by

other parties,”7 and (iii) “whether [the movant] will significantly contribute to full

development of the underlying factual issues in the suit and to the just and

equitable adjudication of the legal questions presented.” H.L. Hayden Co. of N.Y.,

Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986) (quoting Spangler

v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)) (internal

quotation marks omitted).

These discretionary factors weigh strongly in favor of granting

intervention. First, as the District Court recognized in certifying the interlocutory

appeal, resolution of these issues will materially advance all of the actions that are

7 Although adequate representation is explicitly identified as a consideration under Rule 24(a) but not Rule 24(b), this Court has identified it as a factor to consider for permissive intervention as well.


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coordinated with the UBS Action. UBS Ams., Inc., 858 F. Supp. 2d at 338; see

supra at 4-5. Second, given the compressed schedule in the UBS Action—motions

for summary judgment are due September 16, 2013, and trial begins January 13,

2014 (Ex. D, at 2-3)—the UBS Defendants face particularly acute pressures to

settle, in which case the UBS Defendants would not represent the interests of the

Movants at all.8 Finally, allowing Movants to intervene would promote “litigative

economy, reduced risks of inconsistency, and increased information.” Mass. Sch.

of Law at Andover, Inc. v. United States, 118 F.3d 776, 782 (D.C. Cir. 1997); see

also Rogers, 382 U.S. at 199. Indeed, the Supreme Court has granted intervention

precisely to avoid piecemeal appeals and “needless waste” of resources. Mullaney

v. Anderson, 342 U.S. 415, 416-17 (1952) (permitting addition of two new party

plaintiffs to “remove the matter from controversy” and avoid the “needless waste”

of having to start the case over again in the lower courts after defendant questioned

the standing of the original plaintiffs for the first time in the Supreme Court).

Absent prompt review of this Court’s Decision, Movants will be forced to litigate

each of their thirteen individual Non-UBS Actions to judgment before any further

appeal can be taken. Each of these appeals assuredly will raise the same two 8 Appellate courts have recognized that a named party’s “greater willingness to compromise can impede [that] party from adequately representing the interests of a nonparty.” Clark v. Putnam County, 168 F.3d 458, 462 (8th Cir. 1999) (citation omitted); see also Sierra Club v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007) (citation omitted); Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999) (citation omitted).


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potentially dispositive legal questions that Movants now seek to have reviewed by

the Supreme Court. Thus, considerations of judicial economy, consistency and

efficiency all weigh strongly in favor of intervention, and Movants respectfully

request that the Court permit intervention and amend the judgment accordingly.

CONCLUSION

Movants respectfully request that the Court grant Movants’

emergency motion to recall the Mandate, for leave to intervene, and for entry of an

amended judgment reflecting Movants’ intervention.

Dated: New York, New York July 15, 2013

Respectfully submitted,

/s/ David H. Braff David H. Braff Brian T. Frawley Jeffrey T. Scott Joshua Fritsch SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212) 558-4000 Attorneys for Barclays Capital Inc., Barclays Bank PLC, and Securitized Asset Backed Receivables LLC


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Michael O. Ware MAYER BROWN LLP 1675 Broadway New York, NY 10019 (212) 506-2500 Catherine A. Bernard 1999 K St., N.W. Washington, D.C. 20006 (202) 263-3000 Attorneys for Ally Financial Inc. and GMAC Mortgage Group, Inc. Matthew Solum KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 (212) 446-4800 Robert J. Kopecky Brian D. Sieve 300 North LaSalle Street Chicago, IL 60654 (312) 862-2000 Attorneys for Ally Securities, LLC

David Blatt Kannon K. Shanmugam John McNichols WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 (202) 434-5000 Attorneys for Bank of America Corp., Bank of America, N.A., Asset Backed Funding Corp., Banc of America Funding Corp., Merrill Lynch & Co., Inc., Merrill Lynch Mortgage Lending, Inc., Merrill Lynch Mortgage Capital Inc., First Franklin Financial Corp., Merrill Lynch Mortgage Investors, Inc., Merrill Lynch Government Securities, Inc., and Merrill Lynch Richard W. Clary Richard J. Stark Michael T. Reynolds Lauren A. Moskowitz CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Attorneys for Credit Suisse Securities (USA) LLC, Credit Suisse Holdings (USA), Inc., Credit Suisse (USA), Inc., DLJ Mortgage Capital, Inc., Credit Suisse First Boston Mortgage Securities Corp., Asset Backed Securities Corp., and Credit Suisse First Boston Mortgage Acceptance Corp.


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Thomas C. Rice David J. Woll Alan C. Turner SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 (212) 455-2000 Attorneys for Deutsche Bank AG, Taunus Corp., Deutsche Bank Securities Inc., DB Structured Products, Inc., Ace Securities Corp., Mortgage IT Securities Corp. Attorneys for RBS Securities Inc. Bruce Clark SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212) 558-4000 Amanda F. Davidoff 1701 Pennsylvania Avenue, N.W. Washington, DC 20006 (202) 956-7500 Attorneys for First Horizon National Corp., First Tennessee Bank National Association, FTN Financial Securities Corp., and First Horizon Asset Securities, Inc. Attorneys for Nomura Securities International, Inc., Nomura Holding America Inc., Nomura Asset Acceptance Corp., Nomura Home Equity Loan, Inc., and Nomura Credit & Capital, Inc.

Richard H. Klapper Theodore Edelman Michael T. Tomaino, Jr. Tracy Richelle High SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212) 558-4000 Attorneys for Goldman, Sachs & Co., GS Mortgage Securities Corp., Goldman Sachs Mortgage Co., The Goldman Sachs Group, Inc., and Goldman Sachs Real Estate Funding Corp. John M. Conlon Mark. G. Hanchet Michael O. Ware MAYER BROWN LLP 1675 Broadway New York, NY 10019 (212) 506-2500 Attorneys for HSBC North America Holdings Inc., HSBC USA Inc., HSBC Market (USA) Inc., HSBC Securities (USA) Inc., HSBC Bank USA, N.A., and HSI Asset Securitization Corp.


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Penny Shane Sharon L. Nelles Jonathan M. Sedlak Yavar Bathaee SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 (212) 558-4000

Attorneys for JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., J.P. Morgan Mortgage Acquisition Corp., J.P. Morgan Securities LLC, J.P. Morgan Acceptance Corp. I, Bear Stearns & Co., Inc., EMC Mortgage LLC, Structured Asset Mortgage Investments II Inc., Bear Stearns Asset Backed Securities I LLC, WaMu Asset Acceptance Corp., WaMu Capital Corp., Washington Mutual Mortgage Securities Corp., and Long Beach Securities Corp.

James P. RouhandehBrian S. Weinstein Daniel J. Schwartz Nicolas N. George Jane M. Morril DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 (212) 450-4000

Attorneys for Morgan Stanley, Morgan Stanley & Co. Incorporated (n/k/a Morgan Stanley & Co. LLC), Morgan Stanley Mortgage Capital Holdings LLC (successor-in-interest to Morgan Stanley Mortgage Capital Inc.), Morgan Stanley ABS Capital I Inc., Morgan Stanley Capital I Inc., Saxon Capital, Inc., Saxon Funding Management LLC, and Saxon Asset Securities Co. Jay B. Kasner Scott Musoff George Zimmerman Robert A. Fumerton SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, NY 10036 (212) 735-3000 Attorneys for SG Americas, Inc., SG Americas Securities Holdings, LLC, SG Americas Securities, LLC, SG Mortgage Finance Corp., and SG Mortgage Securities, LLC.


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