Wells Fargo Bank, National Association et al v. City of Richmond, California et al

Filing 53

MOTION for Leave to File Memorandum of Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed by Securities Industry and Financial Markets Association, Chamber of Commerce of the United States of America. (Attachments: # 1 [Proposed] Memorandum, # 2 Exhibit Exhibits A-F to Memorandum, # 3 Proposed Order, # 4 Certificate/Proof of Service)(Carpenter, David) (Filed on 9/3/2013)

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David R. Carpenter (SBN 230299)
Email: [e-mail]
Collin P. Wedel (SBN 278461)
Email: [e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, California 90013
Telephone: [phone]
Facsimile: [phone]
Carter G. Phillips
(pro hac vice application pending)
Email: [e-mail]
Jonathan F. Cohn
(pro hac vice application pending)
Email: [e-mail]
SIDLEY AUSTIN LLP
1501 K Street NW
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

Ira D. Hammerman
Kevin Carroll
SECURITIES INDUSTRY AND
FINANCIAL MARKETS ASSOCIATION
1101 New York Avenue, NW
Washington, DC 20005
Telephone: [phone]
Of counsel for amicus curiae Securities
Industry and Financial Markets Association
Rachel L. Brand
Steven P. Lehotsky
NATIONAL CHAMBER LITIGATION
CENTER, INC.
1615 H Street, NW
Washington, DC 20062
Telephone: [phone]
Of counsel for amicus curiae Chamber of
Commerce of the United States of America

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Attorneys for Amici Curiae Securities Industry and
Financial Markets Association and Chamber of
Commerce of the United States of America
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Case No. CV-13-3663-CRB
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee, et al.
Plaintiffs,

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vs.
CITY OF RICHMOND, CALIFORNIA, a
municipality; and MORTGAGE
RESOLUTION PARTNERS LLC,
Defendants.

MOTION OF SECURITIES INDUSTRY
AND FINANCIAL MARKETS
ASSOCIATION AND CHAMBER OF
COMMERCE OF THE UNITED STATES
OF AMERICA FOR LEAVE TO
PARTICIPATE AS AMICI CURIAE, AND
TO FILE MEMORANDUM, AS AMICI
CURIAE, IN SUPPORT OF PLAINTIFFS’
MOTION FOR A PRELIMINARY
INJUNCTION; [PROPOSED] AMICI
CURIAE MEMORANDUM IN SUPPORT;
[PROPOSED] ORDER
Date:
Time:
Judge:

September 13, 2013
10:00 a.m.
Hon. Charles R. Breyer

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MOTION OF SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION AND CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
CASE NO. CV-13-3663-CRB

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD

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PLEASE TAKE NOTICE THAT the Securities Industry and Financial Markets

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Association (“SIFMA”) and the Chamber of Commerce of the United States of America (the

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“Chamber”) respectfully request leave to participate in this action as amici curiae, and to file a

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Memorandum in support of Plaintiffs’ motion for a preliminary injunction. Amici request leave to

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help explain the substantial ramifications of the eminent domain plan at issue for the financial and

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housing markets and also because amici have communicated extensively with City of Richmond

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officials relating to the challenged plan and have Richmond-specific mortgage data relevant to this

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case. Amici thus request that the Court consider its Memorandum and exhibits thereto so as to

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assist the Court on the substantive merits and as to why the dispute is ripe.

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I.

STANDARD FOR MOTION FOR LEAVE TO FILE MEMORANDUM OF AMICI
CURIAE

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District courts have discretion to permit third parties to participate in an action as amici
curiae. NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D.
Cal. 2005). Such discretion is generally exercised liberally, as “[t]here are no strict prerequisites
that must be established prior to qualifying for amicus status.” In re Roxford Foods Litig., 790 F.
Supp. 987, 997 (E.D. Cal. 1991) (quoting United States v. Louisiana, 751 F. Supp. 608, 620 (E.D.
La. 1990)). Rather, “an individual seeking to appear as amicus must merely make a showing that
his participation is useful to or otherwise desirable to the court.” Id. District courts frequently
accept amicus briefs from non-parties where the legal issues in a case “have potential
ramifications beyond the parties directly involved or if the amicus has unique information or
perspective that can help the court beyond the help that the lawyers for the parties are able to
provide.” NGV Parties, 355 F. Supp. 2d at 1067 (quotation omitted).

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II.
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STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE
SIFMA brings together the shared interests of hundreds of securities firms, banks, and

asset managers. SIFMA has become the voice of the financial industry that is uniquely suited to
provide trusted and expert information to policymakers, regulators, media, industry participants
and the general public about the financial industry. SIFMA’s member firms are engaged in
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MOTION OF SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION AND CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
CASE NO. CV-13-3663-CRB

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communities across the country to raise capital for businesses, promote job creation, and lead

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economic growth. SIFMA’s mission is to support a strong financial industry, investor

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opportunity, capital formation, and economic growth, while building trust and confidence in

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financial markets. In addition, SIFMA keeps a close watch on trends in financial markets, and

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regularly publishes and maintains robust analyses of the strengths and weaknesses of those

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markets, including the market for private-label residential mortgage-backed securities—the

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financial instrument directly at issue in this case. Moreover, SIFMA has been monitoring, and has

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been a vocal opponent of, MRP’s eminent domain plan since it gained attention over a year ago,

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and as explained below, SIFMA has had extensive contact with the City of Richmond and has

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developed mortgage data specifically on the issue.

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The Chamber is the world’s largest business federation. It represents 300,000 direct

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members and indirectly represents the interests of three million companies and professional

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organizations of every size, in every industry sector, and from every region of the country.

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Chamber members transact business throughout the United States and a large number of countries

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around the world. An important function of the Chamber is to represent the interests of its

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members in matters before Congress, the Executive Branch, and the courts. 1 The Chamber and its

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members thus have a significant interest in this case, given the widespread ramifications that the

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eminent domain plan will have for the financial and housing markets, and the national economy as

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a whole. Moreover, the Chamber believes that Richmond’s and MRP’s plan, if allowed to

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proceed, would create a dangerous precedent for municipalities’ ability to abrogate private

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contractual rights and interfere with interstate markets.

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III.

Based on their significant expertise in the functioning of American business and financial

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AMICI CURIAE’S EXPERTISE WILL BENEFIT THE COURT

markets and their direct involvement with Richmond in its decision to pursue MRP’s seizure

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Amici are independent of the parties in this case. No counsel for a party authored their amici curiae
Memorandum in whole or in part, and no such counsel or party made a monetary contribution
intended to fund the preparation or submission of the Memorandum.
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MOTION OF SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION AND CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
CASE NO. CV-13-3663-CRB

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program, amici believe that their participation and perspective will aid the Court in evaluating

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Plaintiffs’ Preliminary Injunction Motion on both the merits and issue of ripeness.

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Issues raised by Plaintiffs’ motion include, among other things, (A) the extent to which

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Defendants’ seizure program is purportedly necessary to avoid foreclosure, remedy blight, and

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correct alleged problems in the way that private-label securities (“PLS”) trusts were set up; and

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(B) the impact of Defendants’ plan on the functioning of the financial and housing markets. Based

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on amici’s extensive knowledge of these national markets, and specific information relating to

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PLS loans in Richmond and the availability and success of alternative loan modification programs,

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amici have “unique information [and] perspective that can help the court” and their perspective is

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important to understand the severe “ramifications beyond the parties directly involved” in case.

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NGV Parties, 355 F. Supp. 2d at 1067 (quotation omitted). SIFMA’s first-hand interactions with

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the City as it has pursued MRP’s plan also go to, and will assist the Court in understanding, why

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this case is ripe for adjudication, and why prompt adjudication is important to avoiding uncertainty

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in the markets and preventing additional municipalities from following Richmond.

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IV.

CONCLUSION
Accordingly, SIFMA and the Chamber respectfully request that the Court grant their

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motion for leave to participate as amici curiae, and to file the accompanying Memorandum in

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support of Plaintiffs’ motion for a preliminary injunction. 2

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Dated: September 3, 2013

Respectfully submitted,

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SIDLEY AUSTIN LLP

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By: /s/ David R. Carpenter
David R. Carpenter

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Plaintiffs consented to the participation of SIFMA and the Chamber as amici curiae and to their
filing of a Memorandum regarding Plaintiffs’ motion for a preliminary injunction, provided that the
filing does not cause a delay in the hearing on that motion. On August 27, 2013, counsel for amici
asked counsel for Defendants to consent to the filing of three amicus briefs by (1) SIFMA and the
Chamber, as well as (2) the Structured Finance Industry Group, Inc, and (3) the California Bankers
Association, American Bankers Association, California Mortgage Bankers Association, and
Mortgage Brokers Association. Defendants declined to consent to amici’s participation.
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MOTION OF SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION AND CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
CASE NO. CV-13-3663-CRB

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Attorneys for Amici Curiae

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SECURITIES INDUSTRY AND FINANCIAL
MARKETS ASSOCIATION AND
CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA

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Ira D. Hammerman
Kevin Carroll
SECURITIES INDUSTRY AND
FINANCIAL MARKETS ASSOCIATION
1101 New York Avenue, NW
Washington, DC 20005
Telephone: [phone]

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Of counsel for amicus curiae Securities Industry
and Financial Markets Association

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Rachel L. Brand
Steven P. Lehotsky
NATIONAL CHAMBER LITIGATION
CENTER, INC.
1615 H Street, NW
Washington, DC 20062
Telephone: [phone]

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Of counsel for amicus curiae Chamber of
Commerce of the United States of America

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MOTION OF SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION AND CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
CASE NO. CV-13-3663-CRB