Pennsylvania Public School Employees' Retirement System v. Bank of America Corp. (874 F. Supp. 2d 341, 2012)

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge.

Lead Plaintiff Pennsylvania Public School Employees’ Retirement System (“Plaintiff’) brings this putative securities class action lawsuit against Bank of America Corporation (“BoA”), current and past officers and directors of BoA, twenty-seven underwriters, and PricewaterhouseCoopers LLP (“PwC”) (collectively, “Defendants”). Defendants move to dismiss the Consolidated Class Action Complaint (“the Complaint”). For the following reasons, Defendants’ motions are granted in part and denied in part.

BACKGROUND

This action concerns allegations of BoA’s purposeful concealment of its reliance on Mortgage Electronic Registration Systems, Inc. (“MERS”) and attendant exposure to billions of dollars of loan repurchase claims arising from the sale of mortgage-backed securities. (Consolidated Class Action Complaint, dated Sept. 23, 2011 (“Compl.”) ¶ 1.) BoA allegedly concealed this material information to facilitate the repayment of funds it borrowed from the federal government in connection with the Troubled Asset Relief Program (“TARP”). (Compl. ¶ 1.) The following is gleaned from the Complaint and assumed to be true for the purposes of this motion.

I. The Parties

BoA is the largest lender in the United States. (Compl. ¶ 34.) In July 2008, BoA acquired Countrywide Financial Corporation (“Countrywide”)—one of the biggest originators of subprime mortgages. (Compl. ¶ 35.) Following this acquisition, BoA oversaw $2.09 trillion in loans as of September 2010. (Compl. ¶ 94.) This action implicates Countrywide’s role in originating loans and selling them to third parties or for securitization into mortgage-backed securities (“MBS”). It also concerns BoA’s role as servicer for mortgages in MBS trusts.

Plaintiff also brings this action against the following past and current BoA officers: (1) Kenneth D. Lewis, Chief Executive Officer (“CEO”) from April 2001 to December 2009; (2) Joseph Lee Price, II, Chief Financial Officer (“CFO”) from January 2007 to January 2010; (3) Brian T. Moynihan, CEO from January 2010 to the present; (4) Neil Cotty, CFO from February 2010 to May 2010; and (5) Charles H. Noski, CFO from May 2010 through June 2011 (the “Executive Defendants,” collectively with BoA, the “BoA Defendants”).

The Complaint further names the following past and current BoA directors: William P. Boardman, Frank Paul Bramble, Sr., Virgis William Colbert, Charles K. Gifford, Jr., Charles Otis Holliday, Jr., Monica C. Lozano, Thomas John May, Thomas Michael Ran, and Robert W. Scully (collectively, the “Director Defendants,” with Defendant Price, the “Securities Act Defendants”). Additionally, the Complaint names over twenty underwriters to BoA’s Common Equivalent Securities offering, which is discussed below (the “Underwriter Defendants”). Plaintiff also names PwC, the accounting firm that audited BoA’s financial statements during the Class Period—February 27, 2009 to October 19, 2010.

Plaintiff is a public pension fund organized for the benefit of Pennsylvania public school employees. (Compl. ¶ 33.) It purchased BoA’s securities during the Class Period, including the Common Equivalent Securities. (Compl. ¶ 33.) Plaintiff alleges that it suffered substantial damage as a result of these purchases. (Compl. ¶ 33.)

II. MERS

In almost every jurisdiction, a mortgagee must record the mortgage in the county where the property is located for it to take priority over other liens. (Compl. ¶ 2.) MERS is a private, computerized system for processing and tracking loans that purports to eliminate the need for physically recording mortgages. (Compl. ¶ 6.) When a mortgage is transferred from one MERS member to another, MERS only makes a notation of that transaction in its system. (Compl. ¶¶ 6, 76.) Thus, there is no public record of the transfer. (Compl. ¶ 76.) Additionally, instead of listing the name of the mortgagee, MERS lists itself as the mortgagee or the “nominee” for the mortgagee. (Compl. ¶¶ 6, 75.) However, MERS holds no interest in the loan. (Compl. ¶ 75.) Thus, the mortgage holder or servicer, and not MERS, receives payments on the loan. (Compl. ¶ 75.) BoA, Countrywide, and other financial institutions utilized MERS to avoid burdensome recording requirements and to ensure the speedy securitization of mortgages for sale on the secondary market. (Compl. ¶ 7.)

MERS operated seamlessly until 2008, when the country entered a recession and default rates rose sharply. (Compl. ¶ 5.) Then a number of courts made clear that it would be nearly impossible for mortgage holders or servicers to foreclose on loans processed or transferred via MERS. (Compl. ¶¶22, 84-85.) To foreclose on a mortgage, a party must have title to it. (Compl. ¶¶ 85, 87.) Courts reasoned that because MERS listed itself as the mortgagee, mortgage holders and servicers did not have standing to foreclose. (Compl. ¶85.) Some of these suits involved BoA and Countrywide in their capacities as a mortgage holder or servicer. (Compl. ¶ 84.) Plaintiff alleges that these publicly-filed court decisions were available to insiders, such as the BoA Defendants, but not to the public. (Compl. ¶ 87.)

Plaintiff additionally alleges that Countrywide routinely failed to transfer promissory notes when it sold mortgages. (Compl. ¶ 78.) To transfer a mortgage validly, an assignor or seller must endorse the promissory note and physically transfer it to the new mortgage holder. (Compl. ¶ 80.) If the promissory note is not endorsed and transferred, the loan is unsecured. (Compl. ¶ 80.) Like the standing issue, this practice hindered BoA’s ability to foreclose on loans that it serviced. (Compl. ¶ 84.) Plaintiff contends that various judicial decisions involving BoA or Countrywide informed BoA about a mortgage holder’s inability to foreclose on a mortgage when MERS was the nominee and the note was not properly assigned. (Compl. ¶ 84.) To remedy this problem, BoA enlisted employees, now known as robo-signers, to falsify affidavits representing that they had personal knowledge of facts underlying loans and that the notes supporting various loans had been properly transferred. (Compl. ¶¶ 22, 83.)

III. Repurchase Claims

Following its acquisition of Countrywide, BoA was responsible for underwriting 17% of the mortgage-backed securities market, thereby constituting the largest share of the market. (Compl. ¶ 94.) Plaintiff alleges that during the Class Period, BoA made representations and warranties (or assumed liability for representations Countrywide made) regarding mortgages it sold to third parties or bundled into mortgage-backed securities. (Compl. ¶ 11.) These representations and warranties included assurances that BoA had good title to the mortgages and that BoA and Countrywide adhered to certain underwriting standards. (Compl. ¶¶ 12, 104.) If BoA breached representations and warranties, purchasers could demand that BoA repurchase the loan. (Compl. ¶ 108.)

Plaintiff alleges that BoA breached its representation that it had good title because, as discussed above, courts said mortgage servicers and holders lacked standing to foreclose against borrowers in default due to the MERS system. (Compl. ¶ 107.) Similarly, Plaintiff alleges that BoA breached its representations concerning good title because Countrywide regularly failed to transfer promissory notes with their respective mortgages as required by law. (Compl. ¶ 107.)

Plaintiff also asserts that BoA breached because the underwriting standards utilized for those loans were far less stringent than represented. The lower standards resulted in unqualified borrowers obtaining loans and later defaulting. (Compl. ¶¶ 13-14.) Specifically, Plaintiff alleges that prior to the Class Period, Countrywide’s priority was generating loans for securitization. (Compl. ¶ 100.) And because Countrywide transferred risks associated with its loans upon securitization, it cared little about whether borrowers could fulfill their loan obligations. (Compl. ¶ 100.)

Plaintiff claims that BoA is liable to investors for billions of dollars in repurchase claims as a result of these breaches and that the BoA Defendants misled investors about the magnitude of repurchase claims BoA faced. (Compl. ¶ 14.)

IV. Repaying TARP and Common Equivalent Securities

In 2008, BoA suffered significant financial setbacks due to the financial crisis, which were exacerbated by its acquisition of Countrywide. (Compl. ¶ 63.) To remain solvent, BoA accepted $25 billion in loans from the federal government in October 2008 and another $20 billion in January 2009 (the “TARP funds”). (Compl. ¶¶ 15, 63.) As a condition of these loans, the government imposed onerous restrictions on executive compensation. (Compl. ¶ 15.) Accordingly, repaying the TARP Funds was a high priority for the Executive Defendants. (Compl. ¶¶ 16, 65.) Indeed, Lewis publicly stated that the restrictions, which applied to top management as well as the next twenty highly-compensated employees, went “too far.” (Compl., ¶ 65.) He was concerned that those highly-compensated employees would receive employment offers from competitors if BoA were unable to offer them adequate compensation, which in turn would hurt BoA’s profits. (Compl. ¶ 65.) The need to remove compensation restrictions became more pressing when Lewis stepped down as CEO because BoA would have difficulty retaining an executive to replace him if those restrictions remained in place. (Compl. ¶ 67.)

BoA faced obstacles raising the capital required to repay TARP funds because it had already issued all the shares of common stock authorized under its certificate of incorporation. (Compl. ¶ 68.) Thus, in December 2009, the BoA Defendants undertook an “unorthodox” securities offering. (Compl. ¶¶ 68, 143.) The BoA Defendants issued Common Equivalent Securities, which would convert into BoA common stock upon shareholder approval of an amendment to BoA’s certificate of incorporation (the “Offering”). (Compl. ¶¶ 16, 69.) The BoA Defendants allegedly concealed BoA’s reliance on MERS and BoA’s exposure to billions of dollars in repurchase claims to ensure the Offering’s success. (Compl. ¶¶ 15-16, 69.) And the Underwriter Defendants failed to ensure the truthfulness of statements the BoA Defendants made in connection with the Offering. (Compl. ¶ 42.) In February 2010, shareholders approved the amendment, and the funds the Offering generated enabled the BoA Defendants to repay the TARP Funds. (Compl. ¶ 146.)

In September 2010, the U.S. Treasury Department announced it was investigating improper foreclosure practices by lenders. (Compl. ¶ 23.) The following month, attorneys general of all fifty states announced they were investigating the underwriting and foreclosure practices of major banks. (Compl. ¶ 25.) That same month, BoA announced it was suspending foreclosures and admitted that there were “technical issues” with its foreclosure practices. (Compl. ¶¶ 24-25.) On October 18, 2010, a group of private investors, including Pacific Investment Management Company, LLC (“PIMCO”), demanded that BoA repurchase $47 billion worth of mortgage-backed securities (the “PIMCO demand”). (Compl. ¶ 159.) The following day, BoA disclosed the PIMCO demand and announced it had received an additional $26 billion in repurchase claims, half of which had not been resolved. (Compl. ¶¶ 162, 314-15.)

The Complaint alleges that throughout the Class Period, the BoA Defendants failed to disclose its reliance on MERS and the looming legal obstacles in various SEC filings, press releases, and earnings calls, which rendered those disclosures misleading. (Compl. ¶¶ 184-86, 188-89, 192, 199, 201, 203, 205, 209-10, 212, 214, 216-17, 221-22, 231, 234, 237-38, 239, 245, 252, 256, 259-60, 262, 268-69, 272, 274, 276.) Plaintiff alleges that the Class Period began when the BoA Defendants issued its first misleading filing, its Form 10-K on February 27, 2009 (“2008 10-K”). Similarly, Plaintiff alleges that throughout the Class Period, the BoA Defendants failed adequately to disclose BoA’s exposure to repurchase claims, making statements in the 2008 10-K and other disclosures misleading. (Compl. ¶¶ 184-85, 188, 190-91, 199, 202, 206, 209, 213, 218, 219, 221, 224-25, 231, 232, 235, 241, 243, 245, 247-48, 253-54, 256-57, 259, 266, 267, 270, 273) Plaintiff further claims that the 2008 10-K and BoA’s Form 10-K filed February 26, 2010, as well as interim filings, were false because the BoA Defendants represented that BoA maintained effective disclosure controls and procedures and effective internal controls over financial reporting, when BoA did not. (Compl. ¶¶ 184-85, 193-95, 204, 213, 215, 223, 226-27, 249-50, 251, 261-64, 271, 289-92.) Finally, Plaintiff contends that BoA violated generally accepted accounting principles (“GAAP”) and SEC regulations and that the failure to comply with GAAP rendered those filings presumptively misleading. (Compl. ¶¶ 283-85.)

DISCUSSION I. Legal Standard

On a motion to dismiss, a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in plaintiff’s favor. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). Nonetheless, “factual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all of the allegations in the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (requiring plaintiff to plead “enough faet[s] to raise a reasonable expectation that discovery will reveal evidence of [his claim]”). “To survive a motion to dismiss, a complaint must contain sufficient-factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). “A court ruling on such a motion may not properly dismiss a complaint that states a plausible version of the events merely because the court finds a different version more plausible.” Anderson News, LLC, et al. v. Am. Media Inc., et al., 680 F.3d 162, 185 (2d Cir.2012). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A court’s “consideration [on a motion to dismiss] is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). A complaint alleging securities fraud must meet the heightened pleading standard of Rule 9(b), which requires a plaintiff to “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b); see also ATSI Commc’ns Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007).

II. Section 10(b) of the Exchange Act and Rule 10b-5

Plaintiff asserts that the BoA Defendants violated Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5. To state a claim for relief under Section 10(b) and Rule 10b-5, Plaintiff must allege “(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” Pac. Inv. Mgmt. Co. v. Mayer Brown LLP, 603 F.3d 144, 151 (2d Cir. 2010). The parties dispute whether the Complaint adequately alleges that the BoA Defendants made misstatements or omissions of material fact and whether the BoA Defendants made any such misstatements or omissions with scienter.

A. Material Omissions and Misstatements

The Private Securities Litigation Reform Act of 1995 (“PSLRA”) “insists that securities fraud complaints specify each misleading statement” and “that they set forth the facts on which a belief that a statement is misleading was formed.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 81-82, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006) (internal alterations and quotation marks omitted). “When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak,” Chiarella v. United States, 445 U.S. 222, 235, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); see also In re Marsh & Mclennan Cos., Inc. Sec. Litig., 501 F.Supp.2d 452, 469 (S.D.N.Y.2006). “Disclosure of an item of information is not required ... simply because it may be relevant or of interest to a reasonable investor.” Resnik v. Swartz, 303 F.3d 147, 154 (2d Cir.2002). Indeed, the Supreme Court recently reiterated that Section 10(b) and Rule 10b-5 “do not create an affirmative duty to disclose any and all material information. Disclosure is required under these provisions only when necessary to make statements made, in the light of the circumstances under which they were made, not misleading.” Matrixx Initiatives, Inc. v. Siracusano, — U.S. -, 131 S.Ct. 1309, 1321, 179 L.Ed.2d 398 (2011) (internal quotation marks and alterations omitted). The undisclosed information need not “completely negate! ] the public statements,” but need only render them materially misleading. In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 268 (2d Cir.1993).

“[T]here is no duty to disclose information to one who reasonably should already be aware of it.” Seibert v. Sperry Rand Corp., 586 F.2d 949, 952 (2d Cir.1978), see also In re WorldCom, Inc. Sec. Litig., 346 F.Supp.2d 628, 687 (S.D.N.Y.2004). Additionally, defendants need not disclose matters that are merely speculative. See Acito v. IMCERA Grp., 47 F.3d 47, 53 (2d Cir.1995) (no duty to disclose negative consequences from a failed factory inspection when it was not a “foregone conclusion” that consequences would materialize); see also In re Par Pharm., Inc. Sec. Litig., 733 F.Supp. 668, 678 (S.D.N.Y.1990) (“Defendants cannot be held liable for failing to disclose what would have been pure speculation!.]”) (internal quotation marks omitted). Plaintiffs allege that the BoA Defendants made misrepresentations and omissions regarding (1) BoA’s use of MERS and the risks associated with it; (2) BoA’s exposure to repurchase claims; (3) BoA’s internal controls; and (4) GAAP and SEC regulations.

1. Use of and Risks Associated with MERS

Plaintiff adequately pleads that the BoA Defendants had a duty to disclose BoA’s reliance on MERS and the risks associated with it. For example, in the 2008 10-K, the BoA Defendants reported BoA’s loan assets. (Compl. ¶ 186.) While BoA’s reliance on MERS does not render those figures false, it does make them misleading, which is sufficient to plead a material omission. See Time Warner, 9 F.3d at 268. Specifically, the BoA Defendants’ representations that BoA held a particular amount of loan assets is rendered misleading by the BoA Defendants’ failure to disclose that MERS “clouded” ownership for a substantial number of those loans. Cf In re Gen. Elec. Co. Sec. Litig., 857 F.Supp.2d 367, 386 (S.D.N.Y.2012) (defendants did not have duty disclose that company made risky loans because it did not render misleading company’s statement that it was a “senior secured and diversified lender”).

Additionally, BoA stated in the 2008 10-K that it faced contractual liabilities if it breached representations and warranties concerning mortgages it sold or bundled into securities. (Compl. ¶ 190.) It noted that it “attempts to limit its risk of incurring these losses by structuring its operations to ensure consistent production of quality mortgages and servicing those mortgages at levels that meet secondary mortgage market standards.” (Compl. ¶ 190.) BoA disclosed its efforts to limit repurchase claims, triggering its duty to disclose its reliance on MERS and the attendant breach of its representations concerning good title to mortgage loans. See Novak v. Kasaks, 216 F.3d 300, 315 (2d Cir.2000) (duty to disclose contrary information when defendant reported that a problem with inventory was “in good shape”); see also In re Gen. Elec. Co., 857 F.Supp.2d at 386 (duty to disclose problems with loan portfolios where defendant described its loan portfolio as “great”).

The statement is not inactionable puffery because it is “not merely an expression of opinion, expectation or declaration of intention.” Lapin v. Goldman Sachs, 506 F.Supp.2d 221, 239 (S.D.N.Y.2006) (finding actionable Goldman Sachs’ statement that integrity was “at the heart” of its business). And more importantly, Plaintiff alleges that the BoA Defendants did not genuinely or reasonably believe these opinions. Lapin, 506 F.Supp.2d at 239. For example, Plaintiff alleges that BoA employees robo-signed loan documents in an attempt to fix the various problems created by MERS and Countrywide’s failure to transfer notes with mortgages. (Compl. ¶ 83.) Additionally, Plaintiff alleges that the BoA Defendants were aware of judicial decisions questioning the ability of a mortgage holder or servicer to foreclose on mortgages transferred via MERS. (Compl. ¶84.)

The BoA Defendants next argue that they had no duty to disclose BoA’s use of MERS or its associated risks because (1) any risks associated with MERS were purely speculative, and (2) BoA disclosed its use of MERS in various SEC filings. Both of these arguments are unavailing. Plaintiff sufficiently pleads that beginning in 2008, courts found that mortgage holders and servicers could not foreclose on mortgages transferred via MERS. (Compl. ¶¶ 84-85.) These court decisions distinguish this case from Acito v. IMCERA Group, 47 F.3d 47 (2d Cir.1995). In Acito, the Second Circuit found that defendant did not have a duty to disclose the speculative possibility that an FDA inspection of defendant’s plant would have negative effects. 47 F.3d at 53. That two prior FDA inspections of the plant had negative consequences did not render it a “foregone conclusion” that the plant would fail a third time. Acito, 47 F.3d at 53.

Here, however, there was no speculation about whether courts would find problems with MERS. As Plaintiff alleges, courts in fact had found problems with MERS. Cf. In re Yukos Oil Co. Sec. Litig., No. 04 Civ. 5243(WHP), 2006 WL 3026024, at *16 (S.D.N.Y.2006) (no misrepresentation where defendant had no reason to know that law would change and render it in violation of a particular rule). And to the extent that the BoA Defendants dispute the import of these judicial decisions, these arguments pose a question of fact that cannot properly be decided on a motion to dismiss. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (noting that court must accept facts as true for purposes of a motion to dismiss); see also Anderson News, 680 F.3d at 185 (“choice between two plausible inferences” should not be made on Rule 12(b)(6) motion to dismiss).

The SEC filings that the BoA Defendants cite to show that BoA disclosed its reliance on MERS are insufficient. Indeed, BoA did not even file those documents. One was filed by a Countrywide subsidiary prior to BoA’s acquisition of Countrywide, and the other was issued by a BoA subsidiary. And both prospectuses were intended for private investors, rather than BoA shareholders. The BoA Defendants offer no convincing explanation why BoA shareholders should have been reasonably aware of those prospectuses. See Seibert, 586 F.2d at 952; see also In re WorldCom, 346 F.Supp.2d at 687 (no duty to disclose information to one who reasonably should already be aware of it); Fisher v. Plessey Co., 559 F.Supp. 442, 447-48 (S.D.N.Y.1983) (American investors were not reasonably aware of matters covered heavily in British press). Accordingly, the BoA Defendants’ failure to disclose BoA’s reliance on MERS and its associated risks constitutes a material misrepresentation. 2. Representation and Warranty Claims

Plaintiff cites various misrepresentations and omissions relating to BoA’s exposure to repurchase claims for breaches of warranties. Specifically, it contends that (1) BoA’s stated reserves were unreliable because Defendants bypassed internal controls for establishing allowances for representation and warranty claims; (2) BoA concealed existing repurchase claims; (3) BoA misrepresented that it' had resolved issues concerning Countrywide’s assets when more repurchase claims were likely; and (4) the 2008 10-K misleadingly reported that BoA attempted to limit its liability by ensuring “consistent production of quality mortgages.”

Plaintiffs contention that stated reserves were unreliable fails because estimating loan reserves is a matter of judgment. Therefore, Plaintiff must allege that the BoA Defendants’ “opinions were both false and not honestly believed when they were made.” Fait v. Regions Fin. Corp., 655 F.3d 105, 113 (2d Cir.2011); see also City of Omaha, Neb. Civilian Emps’ Ret. Sys. v. CBS Corp., 679 F.3d 64, 64 (2d Cir.2012) (applying Fait to Section 10(b) claims). Plaintiff maintains that it does not assert a claim for misstated loan loss reserves. Rather, Plaintiff alleges that the BoA Defendants’ stated reserve figures “could not be relied upon” because they purposely bypassed internal controls to downplay the magnitude of losses. (Compl. ¶¶ 136(d), (n).) Specifically, Plaintiff alleges that contrary to industry practice and GAAP, Moynihan failed to record an allowance for repurchase claims until BoA received a formal demand or notice of litigation. (Compl. ¶ 136(d).) While Plaintiff rejects the notion that it asserts a claim for misstated loan loss reserves, this appears to be precisely what Plaintiff is pleading. Because Plaintiff fails to comply with the requirements set forth in Fait, unreliable loan reserves cannot form the basis of this claim.

Plaintiffs allegation that BoA concealed repurchase claims is factually insufficient to plead a material misstatement or omission. Indeed, Plaintiff concedes that the Executive Defendants disclosed repurchase claims by government-sponsored entities and monoline insurers. (Lead Plaintiffs Brief in Opposition to Defendants’ Motion to Dismiss, dated Feb. 15, 2012, at 2.) Rather, Plaintiff insists that the BoA Defendants concealed repurchase claims by private investors. On October 18, 2010, PIMCO demanded that BoA repurchase $47 billion worth of RMBS. But BoA disclosed this development the following day—October 19, 2010. (Compl. ¶¶ 159, 162, 314-15.) In addition to the PIMCO demand, BoA revealed on October 19, 2010, that as of September 30, 2010, it had received $26 billion in repurchase claims— nearly half of which were unresolved. (Compl. ¶ 162.) But Plaintiff does not allege when investors demanded repurchase. Without these facts, Plaintiff does not plead a claim that “is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Moreover, in August 2010, BoA disclosed that as of June 30, 2010, it had $11.1 billion worth of unresolved repurchase claims. This disclosure undercuts any reasonable inference that up until October 2010, the BoA Defendants were concealing that BoA had nearly $13 billion worth of unresolved claims. (Declaration of Michael Bongiorno, dated Jan. 11, 2012 (“Bongiorno Decl.”) Ex. O: 10-Q, dated Aug. 6, 2010 (“August 2010 10-Q”) at 40 (estimating that BoA had $11.1 billion worth of unresolved repurchase requests).) Nor does Plaintiff cite any repurchase claims that the Executive Defendants failed to disclose but should have.

However, Plaintiffs other allegations adequately plead that the BoA Defendants made material misstatements or omissions concerning its vulnerability to repurchase claims. For example, Plaintiff asserts that Moynihan and Cotty’s statements during an April 2010 conference were misleading. Moynihan and Cotty represented that BoA had resolved issues with toxic Countrywide assets by writing down the value of loan portfolios. (Compl. ¶¶ 255, 258.) Specifically, Moynihan stated:

I think the results reinforce what I think will be the trends that we’ll discuss over the next few quarters. Decreasing charge-offs, potential reserve releases, and those types of things that dominate the credit discussion.... With legacy asset write-downs now down to an immaterial amount, and that also shows the worst of the crisis is behind us we believe

(“the 2010 Statement”) (Compl. ¶ 255.) Plaintiff correctly asserts that these statements were misleading because BoA still remained vulnerable to a substantial number of repurchase claims.

The BoA Defendants argue that there was no duty to disclose the speculative possibility of litigation. But in contrast to In re Citigroup Securities Litigation, where the plaintiff failed to allege that litigation was not “substantially certain” to occur, Plaintiff adequately alleges the likelihood of litigation here. Cf. 330 F.Supp.2d 367, 377 (S.D.N.Y.2004); cf. also Acito, 4!7 F.3d at 53. Here, Plaintiff alleges that BoA breached representations and warranties for a substantial portion of their loans and that such breaches were obvious because of the failing economy. And in contrast to In re Par Pharmaceutical, Inc. Securities Litigation, where defendant had no duty to disclose speculation about the possible negative consequences of a bribeiy scandal, there is nothing speculative here. Cf. 733 F.Supp. at 678; cf. also Acito, 47 F.3d at 53. Rather, the consequences of multiple breaches of representations and warranties were clear— BoA would be vulnerable to repurchase demands.

The BoA Defendants further claim that Moynihan’s foiward-looking statement falls within the PSLRA’s safe harbor provision. “Under the PSLRA, the defendants are not liable if the allegedly false or misleading statement is identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the foiward-looking statement.” Slayton v. Am. Express Co., 604 F.3d 758, 768 (2d Cir.2010) (quoting 15 U.S.C. § 78u-5(c)-5(e)(l)) (internal quotation marks and alterations omitted). In other words, “defendants must demonstrate that their cautionary language was not boilerplate and conveyed substantive information.” Slayton, 604 F.3d at 772. “[A] defendant need not include the particular factor that ultimately causes its projection not to come true in order to be protected by the meaningful cautionary language prong of the safe harbor.” Slay-ton, 604 F.3d at 772.

Prior to Moynihan’s statement, a BoA executive informed analysts that future predictions could change depending on a variety of factors, including, “economic conditions, changes in interest rates, competitive pressures within the financial services industry, and legislative or regulatory requirements that may affect our businesses.” (Declaration of Scott D. Musoff, dated Mar. 2, 2012 (“Musoff Deck”) Ex. I at 1.) The BoA Defendants “carry the burden of demonstrating that they are protected by the meaningful cautionary language prong of the safe harbor,” but have failed to argue that any of the factors “identified were important factors that could realistically cause results to differ materially.” Slayton, 604 F.3d at 773. “Absent such argument,” this Court has “no way of knowing if’ the factors identified could have caused results to differ materially. Slay-ton, 604 F.3d at 773. Accordingly, the PSLRA safe harbor does not shield Moynihan’s misstatements.

Additionally, BoA’s representation that it ensures “consistent production of quality mortgages” was rendered misleading by the BoA Defendants’ failure to disclose that BoA inherited from Countrywide loans with “origination defect[s].” (Compl. ¶ 155.) Indeed, Plaintiff alleges that as early as 2007, Lewis knew that 89% of Countrywide’s loans originated from 2005 to 2006 were ineligible for origination under BoA’s standards. (Compl. ¶ 114.) BoA’s assurances concerning the quality of its mortgages were not puffery because Plaintiff alleges that some of the BoA Defendants did not genuinely or reasonably believe these opinions. See Lapin, 506 F.Supp.2d at 239; (Compl. ¶¶ 114; 155). Indeed, the Complaint alleges that BoA knowingly securitized loans that did not comply with its underwriting guidelines. (Compl. ¶ 128.)

3. Internal Controls

Plaintiff argues that Lewis and Price’s certification in the 2008 10-K that BoA maintained adequate internal controls over financial reporting was materially misleading. (Compl. ¶ 193.) Specifically, Plaintiff alleges that BoA’s reliance on MERS constituted a weakness in its financial reporting. (Compl. ¶¶ 286-91.) The BoA Defendants counter that these allegations miss the mark because reliance on MERS does not implicate internal controls over financial reporting. Rather, the BoA Defendants assert that MERS only impacted the operation of BoA’s mortgage business. But, as Plaintiff explains, BoA utilized MERS as a control that tracked and disclosed the dollar value of mortgages on BoA’s books. And because MERS allegedly failed to transfer title to mortgage loans properly, the accuracy of BoA’s financial statements was undermined. (Compl. ¶ 290.)

Plaintiff also claims that BoA’s accounting practices for calculating repurchase losses constituted a material weakness because BoA circumvented formal procedures requiring committee approval and left decisions concerning repurchase losses to Lewis and Price. (Compl. ¶¶ 136(a).) The BoA Defendants respond that these allegations are insufficient because Plaintiff fails to allege why estimating loan amounts in this manner is a material weakness. But Plaintiff pleads a plausible theory because it demonstrates the problematic nature of this practice— that it left BoA without adequate reserves. (Compl. ¶ 136(e)-(f).)

4. GAAP Violations

Finally, Plaintiff asserts that BoA failed to prepare its financial statements in accordance with GAAP. (Compl. ¶¶ 280-85.) SEC regulations dictate that where financial statements are not prepared in compliance with GAAP, they are presumed to be misleading. See 17 C.F.R. § 210.4-01(a)(1). The BoA Defendants argue that GAAP violations require fraudulent intent to be actionable. Novak, 216 F.3d at 309. But, as discussed below, Plaintiff adequately pleads fraudulent intent on the part of BoA, and accordingly, this argument fails.

Plaintiff undergirds its claims on two GAAP precepts: (1) “Guarantor’s Accounting and Disclosure Requirements for Guarantees,” Including Indirect Guarantees of Indebtedness of Otheres (“FIN 45”) and (2) Accounting for Contingencies (“FAS 5”). The BoA Defendants contend that Plaintiff does not allege a violation of FIN 45, which requires that a “guarantor” disclose the nature and amount of a “guarantee.” The BoA Defendants argue that there is no basis for inferring that representation and warranty claims constitute “guarantees.” But representation and warranty claims need not amount to “guarantees” for Plaintiff to allege a FIN 45 violation. It is clear from the Complaint that BoA made guarantees independent of representations and warranties. For example, the 2008 10-K noted that certain securitizations of BoA include a corporate guarantee. (Compl. ¶ 190.) It further stated that BoA records its liability for representation and warranty claims and guarantees together. (Compl. ¶ 190.) Accordingly, the BoA Defendants’ argument fails.

The BoA Defendants also argue that they did not violate FAS 5 because it “requires accrual or disclosure of a loss contingency when it is ‘probable’ or ‘reasonably possible’ that a loss has already been incurred,” Charter Twp. of Clinton Police & Fire Ret. Sys. v. KKR Fin. Holdings LLP, No. 08 Civ. 7062(PAC), 2010 WL 4642554, at *19 (S.D.N.Y. Nov. 17, 2010). The BoA Defendants maintain that because Plaintiff cannot point to any existing, undisclosed repurchase claim, a violation of FAS 5 cannot form the basis of this claim. However, the BoA Defendants’ argument misses the mark. While Plaintiff fails to plead sufficient facts to support its contention that the BoA Defendants concealed repurchase claims, Plaintiff alleges that the BoA Defendants purposely prohibited BoA’s accountants from recording accruals on the repurchase allowance until BoA received a formal demand through a trustee or litigation. (Compl. ¶ 136(d).) Plaintiff alleges that forestalling in this way is contrary to accounting principles and industry practices. (Compl. ¶ 136(d).) Thus, by failing to record repurchase claims until the occurrence of a later event, BoA did not disclose loss contingency when it was “probable” or “reasonably possible” that the loss already occurred.

Because Plaintiff pleads that the BoA Defendants made material misstatements and omissions, this Court now considers the question of scienter.

B. Scienter

The PSLRA requires that the plaintiff “plead ‘with particularity facts giving rise to a strong inference that the defendant acted’” with an “intent to deceive, manipulate, or defraud” or acted recklessly. ECA Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 198 (2d Cir.2009). Here, “[recklessness is defined as at the least, an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” ECA 553 F.3d at 198 (internal quotation marks and alternations omitted). “The inquiry ... is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.” Tellabs Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). In assessing whether a plaintiff has stated a claim, “a court must consider plausible, noneulpable explanations for the defendant’s conduct, as well as inferences favoring the plaintiff.” Tellabs, 551 U.S. at 323, 127 S.Ct. 2499. “A complaint will survive ... only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Tellabs, 551 U.S. at 324, 127 S.Ct. 2499. “[S]eienter can be established by alleging facts to show either (1) that defendants had the motive and opportunity to commit fraud, or (2) strong circumstantial evidence of conscious misbehavior or recklessness.” ECA 553 F.3d at 198.

1. Motive and Opportunity

To plead scienter under the “motive and opportunity” prong, Plaintiff must allege that the BoA Defendants “benefit-ted in some concrete and personal way from the purported fraud.” ECA 553 F.3d at 198. “Motives that are common to most corporate officers, such as the desire for the corporation to appear profitable and the desire to keep stock prices high to increase officer compensation” are insufficient. ECA 553 F.3d at 198. But motives common to most corporate officers may be sufficient if defendants derived a “unique” benefit from the fraud. ECA 553 F.3d at 201 n. 6; see also In re WorldCom, Inc. Sec. Litig., 294 F.Supp.2d 392, 416 (S.D.N.Y.2003) (requiring plaintiff to plead that defendant derived “unique and substantial benefit from the fraud”).

Plaintiff theorizes that the BoA Defendants concealed BoA’s reliance on MERS and its exposure to repurchase claims so that BoA could repay TARP and lift restrictions on executive compensation. This theory does not plead motive adequately because Plaintiff does not allege that the BoA Defendants benefited in “some concrete and personal way from the purported fraud.” ECA 553 F.3d at 198. Indeed, Plaintiff relies on Lewis’ statement that it was important to remove TARP’s compensation restrictions to prevent employees outside of top management from leaving BoA for a competitor. (Compl. ¶ 65-66.) A desire to increase executive compensation to retain qualified executives is plainly “common to most corporate officers.” ECA, 553 F.3d at 198. And Plaintiff does not allege particularized facts suggesting that the Executive Defendants derived a “unique and substantial benefit” from any fraud. Cf. In re World-Com, 294 F.Supp.2d at 416 (unique and substantial benefit where success of company crucial to defendant’s personal finances).

Moreover, the alleged chronology of events undermines the plausibility of Plaintiffs theory. The BoA Defendants were aware of various judicial decisions issued in early to mid-2008 that questioned the validity of MERS. (Compl. ¶ 85.) Prior to the Class Period, BoA allowed loans that did not comply with its underwriting standards to be securitized. (Compl. ¶ 127.) Thus, it appears that the BoA Defendants were concealing information about MERS and representation breaches prior to BoA’s receipt of TARP funds. But a theory in which fraudulent conduct predates motive is not plausible. See U.S. Educ. Loan Trust III, LLC v. RBC Capital Mkts. Corp., 11 Civ. 860(NRB), 2011 WL 6778480, at *10 (S.D.N.Y Dec. 21, 2011) (finding motive insufficient where alleged fraudulent scheme predated motive).

Additionally, the high turnover among the Executive Defendants further underscores the implausibility of Plaintiffs theory. According to Plaintiff, in February 2009, Lewis and Price conceived of a scheme to repay TARP Funds. Lewis stepped down as CEO in December 2009, and Price stepped down as CFO in January 2010. (Compl. ¶¶ 36-37.) In early 2010, when Moynihan and Cotty became CEO and interim CFO, respectively, they allegedly continued the scheme that Lewis and Price started. (Compl. ¶¶ 38, 40.) Additionally, Noski joined the scheme in May 2010 when he replaced Cotty. (Compl. ¶ 39.) In considering nonculpable explanations for the conduct alleged here, Plaintiffs theory is not at least as compelling as the opposing inference drawn from the facts alleged—that the BoA Defendants acted in good faith. Tellabs, 551 U.S. at 324,127 S.Ct. 2499.

2. Strong Circumstantial Evidence of Conscious Misbehavior or Recklessness

“[T]he strength of the circumstantial allegations [of conscious misbehavior or recklessness] must be correspondingly greater if there is no motive.” ECA, 553 F.3d at 198-99 (internal quotation marks omitted). A “strong inference” of scienter “may arise where the complaint sufficiently alleges that the defendants: (1) benefited in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.4” S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 110 (2d Cir.2009) (internal alterations omitted). To demonstrate that the BoA Defendants knew facts or had access to information contradicting their public statements, Plaintiff must identify specific contradictory information that was available to the BoA Defendants at the time they made their misleading statements. See Shields v. Citytrust Bancorp., 25 F.3d 1124, 1129-30 (2d Cir.1994) (no allegations that disclosures were contradicted by other information that defendants knew at the time disclosures made); see also Novak, 216 F.3d at 309; In re PXRE Grp., Ltd., Sec. Litig., 600 F.Supp.2d 510, 536 (S.D.N.Y.2009) (plaintiff must allege “(1) specific contradictory information was available to the defendants (2) at the same time they made their misleading statements”); Local No. 38 Int’l Bhd. of Elec. Workers Pension Fund v. Am. Express Co., 724 F.Supp.2d 447, 461-62 (S.D.N.Y. 2010). Additionally, a plaintiff “must specifically identify the reports or statements containing this information.” Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 196 (2d Cir.2008).

To support its allegations of conscious misbehavior or recklessness, Plaintiff contends that the BoA Defendants: (1) tolerated robo-signing (Compl. ¶¶ 83, 175); (2) failed to disclose BoA’s vulnerability to repurchase claims (Compl. ¶¶ 101, 115,120, 124-25, 133; 136(c), (e), (i),