National Credit Union Administration Board v. UBS Securities, LLC et al
MEMORANDUM AND ORDER - It is ordered that defendants' motion for partial summary judgment relating to damages (Doc. # 445 in Case No. 12-2591; Doc. # 407 in Case No. 12-2648) is hereby denied. It is further ordered that plaintiff's moti ons to exclude testimony by Andrew Carron (Doc. # 425 in Case No. 12-2591) and to exclude testimony by Christopher James (Doc. # 391 in Case No. 12-2648) are hereby granted in part and denied in part. The motions are granted with respect to those experts' deductions of post-suit principal payments in determining damages under Section 11 in the event that the NGN transactions are found not to have been dispositions, and such testimony shall be excluded. The motions are otherwise denied. Signed by District Judge John W. Lungstrum on 12/30/2016. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATIONAL CREDIT UNION
UBS SECURITIES, LLC, et al.,
NATIONAL CREDIT UNION
CREDIT SUISSE SECURITIES (USA) LLC, )
Case No. 12-2591-JWL
Case No. 12-2648-JWL
MEMORANDUM AND ORDER
Plaintiff National Credit Union Administration Board brings these related suits
as conservator and liquidating agent of credit unions. The suits relate to a number of
offerings involving different residential mortgage-backed securities (“RMBS” or
“certificates”) purchased by the credit unions. Plaintiff asserts claims under federal and
state law against sellers, underwriters, and issuers for the certificates, based on alleged
untrue statements or omissions of material facts relating to each certificate.1
The cases presently come before the Court on the various motions relating to
plaintiff’s damages. As more fully set forth herein, the Court rules as follows:
Defendants’ motion for partial summary judgment relating to damages (Doc. #
445 in Case No. 12-2591; Doc. # 407 in Case No. 12-2648) is denied. The Court rejects
defendants’ argument concerning the treatment of post-complaint principal payments in
calculating damages under Section 11. The motion is denied as premature with respect
to issues relating to prejudgment interest.
Plaintiff’s motions to exclude testimony by Andrew Carron, UBS’s damages
expert (Doc. # 425 in Case No. 12-2591), and to exclude testimony by Christopher
James, Credit Suisse’s damages expert (Doc. # 391 in Case No. 12-2648), are granted
in part and denied in part. The motions are granted with respect to those experts’
deductions of post-complaint principal payments in determining damages under Section
11 in the event that the NGN transactions are found not to have been dispositions, and
such testimony shall be excluded. The motions are otherwise denied.2
The Court refers to the defendants in Case No. 12-2591 collectively as “UBS”.
The Court refers to the defendants in Case No. 12-2648 collectively as “Credit Suisse”.
By a previous order, the Court denied plaintiff’s motion to exclude testimony by
Dr. Carron relating to loss causation.
Defendants’ Motion for Summary Judgment Concerning Damages
By a joint motion filed in each case, defendants seek summary judgment with
respect to the proper calculation of prejudgment interest. Plaintiff argues that these
issues relating to any award by the Court of prejudgment interest should be considered
after trial, once it has been determined whether and to what extent plaintiff has been
awarded damages. Plaintiff also notes that an award of prejudgment interest is
discretionary with respect to the federal claims. The Court agrees that consideration of
these issues at this time would be premature. The Court would ordinarily take up any
issues relating to prejudgment interest after trial. Although the Court customarily awards
prejudgment interest on a liquidated damage recovery, with the purpose of compensating
the plaintiff for the lost use of that money, the Court will of course entertain any
arguments concerning whether and how to award interest in this case, and such
arguments are better considered once any damages have been determined. Accordingly,
the Court in its discretion denies the motion for summary judgment to the extent that it
seeks pretrial rulings relating to prejudgment interest.
Defendants also seek summary judgment on a single issue relating to the proper
calculation of damages under Section 11 of the federal Securities Act, 15 U.S.C. §77k.3
Most of the certificates at issue in these cases were transferred by plaintiff to the NGN
Summary judgment is appropriate if the moving party demonstrates that there is
“no genuine dispute as to any material fact” and that it is “entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
Trusts. Plaintiff argues in these cases that those transfers represent dispositions for
purposes of determining damages under the relevant statutes, including Section 11. In
the related RBS case, the Court denied the parties’ cross-motions for summary judgment,
ruling that an issue of fact remained for trial concerning whether the NGN transactions
constituted dispositions under the statutes. See NCUAB v. RBS Sec. Inc., 2016 WL
3685210, at *8-9 (D. Kan. July 12, 2016) (Lungstrum, J.). In these cases, plaintiff’s
damages expert, John Finnerty, has offered opinions concerning his calculations of
damages under Section 11 in the event that the NGN transactions are found not to have
been dispositions. In those calculations, Dr. Finnerty deducted certain repayments of
principal received by plaintiff in accordance with the terms of the certificates.4
Specifically, Dr. Finnerty deducted principal payments received prior to the
corresponding dates on which these actions were filed (September 6, 2012, for UBS,
Case No. 12-2591; October 4, 2012, for Credit Suisse, Case No. 12-2648); he did not,
however, deduct principal payments received after those dates. Defendants argue in that
event that post-suit principal repayments should be deducted in determining damages
Although plaintiff does not raise the point in the argument section of its
opposition brief, plaintiff has stated in its facts section that, after the NGN transactions,
any such principal repayments were received by the NGN Trusts and not by plaintiff.
If those transactions are found not to have been dispositions, however, then the
repayments would be deemed to have been made to plaintiff. Presumably, that is why
Dr. Finnerty made these deductions in calculating damages under this scenario.
under Section 11 as a matter of law, and they seek summary judgment to that effect.3
Section 11(e) provides as follows:
The suit authorized under subsection (a) of this section may be to recover
such damages as shall represent the difference between the amount paid
for the security (not exceeding the price at which the security was offered
to the public) and (1) the value thereof as of the time such suit was
brought, or (2) the price at which such security shall have been disposed
of in the market before suit, or (3) the price at which such security shall
have been disposed of after suit but before judgment if such damages shall
be less than the damages representing the difference between the amount
paid for the security (not exceeding the price at which the security was
offered to the public) and the value thereof as of the time such suit was
brought . . . .
See 15 U.S.C. § 77k(e). As plaintiff notes, if the security has not been disposed of before
or after suit, then Section 11 mandates damages in the amount of the difference between
the price paid and the value of the security at suit; thus, the plain language of the statute
precludes any deduction for income on the security. Defendants argue that the text of
the statute does allow for consideration of a repayment of principal after suit because
such a repayment should be deemed a disposition under Section 11(e)(3) (which, if
considered, would lessen the amount of damages). Defendants note that, according to
both sides’ experts, a principal repayment has the same economic effect as a sale of part
of the security, as the purchaser has received its money back and therefore has not
In RBS, this Court also ruled that a question of fact remained concerning whether
certain Sandlot transactions by the credit unions (for whom plaintiff is acting as
liquidator) were dispositions under the statutes. See RBS, 2016 WL 3685210, at *3-8.
The issue discussed herein arises with respect to a certificate only in the event that no
pre-suit disposition has been found for that certificate.
suffered any loss on the portion of the security represented by the repayment.
Defendants argue that a purchaser could ultimately receive a windfall if repayments were
not deducted in the damage calculation under Section 11(e).
The Court rejects defendants’ argument concerning the interpretation of Section
11(e). The plain language of the statute allows for an alternate measure of damages if
“such security shall have been disposed of after suit but before judgment.” See 15
U.S.C. § 77k(e). It is undisputed that plaintiff has not disposed of these certificates post
suit. Thus, there is no basis to interpret the statute to allow for a deduction for post-suit
repayments under the certificates. Defendants argue that the repayments are like
dispositions, but the statute’s alternate measure is limited to a disposition of the security.
Moreover, the damages provision of Section 12 of the federal Securities Act explicitly
allows for a deduction for “any income received thereon.” See 15 U.S.C. § 77l(a). Thus,
the Court gives effect to Congress’s refusal to provide for a similar deduction under
In addition, defendants’ proposed interpretation is not required to avoid a windfall
from the receipt of post-suit income. Section 11(e) already provides for a deduction of
the value of the security at the time of suit (as the plaintiff retains the security), and that
value would account for the likelihood and amount of any future income on the security.
A plaintiff is allocated the upside if it ultimately recovers more on the security than its
value as determined at the time of suit; but that plaintiff also bears the risk that it will not
ultimately realize that value on the security. That upside, if realized, does not represent
an impermissible windfall that demands that the statute be interpreted in a manner other
than in accordance with its plain terms.
The parties have identified only one case in which this issue has been addressed.
See FHFA v. Nomura Holding Am., Inc., 68 F. Supp. 3d 486, 494 (S.D.N.Y. 2014) (Cote,
J.). In Nomura, the court rejected this same argument in granting a motion in limine to
exclude evidence of post-suit payments on the certificates at issue there. See id. The
court noted that the plain text of Section 11 was inconsistent with an offset or deduction
for such payments, it pointed out the distinction between the damage provisions of
Section 11 and Section 12, and it rejected any argument based on the notion of a windfall
(for the same reason set forth above). See id. The Court agrees with the reasoning of the
court in Nomura.
Defendants argue that the Nomura court did not address the application of Section
11(e)(3), but as discussed above, that provision’s requirement of a disposition of the
security is not satisfied here. Defendants also argue that the Nomura court did not
address the possible inconsistency in deducting for pre-suit payments but not for postsuit payments, as plaintiff’s expert has done in this case. Whether pre-suit payments
must be deducted is not at issue here, however, as defendants challenge only the failure
to account for post-suit payments. Section 11(e) plainly does not allow for a deduction
to account for post-suit income, and in the absence of authority supporting such an
interpretation, the Court will not interpret the statute to add a component to the damage
calculation mandated in explicit terms. The Court therefore denies defendants’ motion
for summary judgment with respect to this issue.
Plaintiff’s Motions to Exclude Expert Testimony
By separate motions, plaintiff seeks to exclude certain testimony by defendants’
damages experts, Andrew Carron (UBS) and Christopher James (Credit Suisse).
Because plaintiff raises the same arguments with respect to both experts, the Court
addresses the motions together.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court instructed that district courts are to perform a “gatekeeping” role
concerning the admission of expert testimony. See id. at 589-93; see also Kumho Tire
Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). The admissibility of expert
testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702.
In order to determine that an expert’s opinions are admissible, this Court must
undertake a two-part analysis: first, the Court must determine that the witness is
qualified by “knowledge, skill, experience, training, or education” to render the opinions;
and second, the Court must determine whether the witness’s opinions are “reliable”
under the principles set forth in Daubert and Kumho Tire. See Ralston v. Smith &
Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). The rejection of expert
testimony is the exception rather than the rule. See Fed. R. Evid. 702 advisory
committee notes. The district court has “considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable.” See
Kumho Tire, 536 U.S. at 152.
Post-Suit Principal Payments
Dr. Carron and Dr. James calculated plaintiff’s damages under Section 11 under
a scenario in which the NGN transactions are found not to have been dispositions. For
the same reasons discussed above, plaintiff argues that defendants’ experts, in making
those calculations, improperly deducted post-suit principal repayments, and plaintiff
therefore seeks to exclude any such testimony. Because the Court agrees that Section
11(e)’s damages provision does not allow for a deduction for income received on the
security post-suit, as set forth above, the Court grants this potion of plaintiff’s motion,
and Dr. Carron and Dr. James will not be permitted to offer any opinion by which they
deduct such payments under this scenario.
Determination of the Value of the OTCs
Plaintiff’s remaining challenges to the expert opinions of Dr. Carron and Dr.
James relate to their calculations of plaintiff’s damages under a scenario in which
plaintiff is found to have disposed of certificates in the market in the NGN transactions.
In those transactions, plaintiff in its capacity as liquidator (“NCUA-Liq”)—as
distinguished from plaintiff acting as an agency in the executive branch of the federal
government (“NCUA-Exec”)—transferred certificates into the NGN trusts; NCUA-Liq
received notes funded by income from the certificates, which NCUA-Liq sold for cash
(the “net proceeds”); and NCUA-Liq received Owner Trust Certificates (“OTCs”),
which entitled NCUA-Liq to residual income from the certificates once the NGN notes
relating to those certificates were fully paid off. In plaintiff’s related case against RBS,
the Court ruled as a matter of law that, under the scenario in which the NGN transactions
were dispositions, “any calculation of plaintiff’s damages must account for all of the
assets (the entirety of the net proceeds and the OTCs) received by NCUA-Liq.” See
RBS, 2016 WL 3685210, at *11. Plaintiff’s expert has not attempted to assign a positive
value to the OTCs. Dr. Carron and Dr. James, however, did opine on the value of the
OTCs. In forming those opinions, defendants’ experts relied on a discounted cash flow
(DCF) analysis of the OTCs performed by BlackRock, a financial advisor, which
analysis plaintiff commissioned and has used for various purposes.
In seeking to exclude the experts’ opinions based on the BlackRock DCF
analysis, plaintiff first argues that the experts improperly failed to determine a “market
value” for the OTCs. Essentially, plaintiff argues that the value of the OTCs must be
determined by reference to the market for such assets, and that because the BlackRock
DCF analysis was not intended to determine the “market value” of the OTCs, that
analysis may not be used here.
The Court rejects this argument for exclusion. Plaintiff does not dispute that a
discounted cash flow analysis represents a generally accepted method for valuing an
asset. Indeed, plaintiff’s expert, Dr. Finnerty, conceded that, if done correctly, a DCF
analysis gives an accurate estimation of value. There is no requirement that the value
of an asset be determined solely by reference to market prices. For example, the Second
Circuit has recognized that “the value of a security may not be equivalent to its market
price,” that the key is value and not market price, and that “[t]he value of a security is
not unascertainable simply because it trades in an illiquid market and therefore has no
‘actual market price.’” See NECA-IBEW Health & Welfare Fund v. Goldman Sachs &
Co., 693 F.3d 145, 165, 167 (2d Cir. 2012) (citing McMahan & Co. v. Wherehouse
Entertainment, Inc., 65 F.3d 1044, 1048-49 (2d Cir. 1995)). Plaintiff concedes that there
were no contemporaneous sales of the OTCs or similar assets that could provide market
prices for use in valuing the OTCs. The lack of a market does not necessarily mean,
however, that the OTCs had no value to NCUA-Liq, and indeed, the possibility of future
income suggests that the OTCs did have some value. Thus, defendants’ experts
reasonably used an alternate method of determining the OTCs’ value. Plaintiff is free
to argue at trial that the OTCs had no value, but the Court cannot conclude that the lack
of a market and the failure to rely on market prices render the experts’ OTC valuations
unreliable and inadmissible. Notably, plaintiff has not provided any expert evidence
suggesting that a DCF analysis could not be used reliably to determine the value of the
Plaintiff further argues that any DCF analysis should have been based on multiple
scenarios and not on the single scenario from BlackRock used by defendants’ experts.
The Court concludes that any such criticism bears only on the weight to be afforded the
experts’ opinions. Defendants’ experts conceded that a multi-scenario analysis is
generally used for certain call options, but they did not concede that the use of the
BlackRock scenario was not reliable because it was not a multi-scenario analysis. The
experts used BlackRock’s “base case” scenario because that scenario was the most likely
actually to occur; thus, the experts’ decision to use a single scenario was not without
basis. Again, plaintiff has not supported its argument with any expert testimony of its
own. The Court rejects this basis for exclusion.
Finally, the Court rejects plaintiff’s argument that the OTCs valuations should be
excluded under Fed. R. Evid. 403. Defendants’ experts’ valuations are highly probative
concerning the value of the OTCs, which make up one part of the total value received
by plaintiff in disposing of the certificates; the use of a DCF analysis instead of market
prices is not unfairly prejudicial; and the probative value of the evidence is not
substantially outweighed by any prejudice from the fact that plaintiff may wish to put on
evidence concerning the underlying BlackRock analysis.
Reliability of Use of the BlackRock Analysis
Plaintiff next argues that defendants’ experts’ use of the BlackRock analysis is
not reliable for various reasons. First, plaintiff argues that the experts did not have
access to BlackRock’s particular models and did not know all of the assumptions made
by BlackRock in performing the DCF analysis of the OTCs, and thus that the experts
cannot verify the validity or accuracy of that analysis. Plaintiff relies on TK-7 Corp. v.
Estate of Barbouti, 993 F.2d 722 (10th Cir. 1993), in which the court held that an expert
improperly relied on hearsay in the form of another person’s projections where the
testifying expert’s “lack of familiarity with the methods and reasons underlying [the
other person’s] projections virtually precluded any assessment of the validity of the
projections through cross-examination of [the expert].” See id. at 732-33. Here,
however, plaintiff commissioned the BlackRock analysis and had access to BlackRock’s
methods and assumptions; thus, plaintiff does not lack the ability to present evidence and
to cross-examine defendants’ experts to challenge the validity of the BlackRock analysis
as it sees fit.
Plaintiff has not cited to any authority suggesting that defendants’ experts must
be able to replicate the analysis on which they rely; rather, Rule 703 merely requires that
the experts reasonably rely on their underlying facts and data. See Fed. R. Evid. 703.
In this case, the experts’ use of the BlackRock analysis was not without basis, as the fact
that plaintiff has used the BlackRock analysis for its own purposes provides some
evidence of the validity and reliability of that analysis. Accordingly, the Court rejects
this argument for exclusion.
Second, plaintiff argues that the BlackRock analysis is unreliable for use in
valuing the OTCs because the analysis was based in part on data from after the relevant
valuation dates, the use of which creates a risk of hindsight bias. Plaintiff has not
provided any authority, however, suggesting that the use of post-valuation-date evidence
makes a valuation so unreliable as to warrant exclusion. The use of such data raises only
a potential concern, and a BlackRock witness testified that any such material concern in
this case would have been noted. The Court concludes that this criticism by plaintiff
bears only on the weight of the opinions and does not provide a basis for exclusion.
Third, plaintiff argues that defendants’ experts should have used an analysis
employing an investment or market discount rate. The analysis used by the experts,
however, employed the same discount rate requested by plaintiff in commissioning the
BlackRock analysis. Thus, this decision by the experts was not without basis, and
plaintiff’s criticism goes only to the weight of the opinions.
Fourth, plaintiff complains that the BlackRock “as of” dates for their analyses are
not sufficiently close to the NGN disposition dates. The Court cannot conclude that the
dates are so distant as to make the valuations so unreliable as to be inadmissible.
Plaintiff may make this argument to the jury concerning the effect of the dates on the
accuracy of the valuations.
Fifth, the Court rejects plaintiff’s argument that the experts’ opinions concerning
the value of the OTCs should be excluded because the experts used a more optimistic
scenario from the BlackRock analysis (based on different assumptions) than the
BlackRock scenario that plaintiff itself has used in its financial reporting. Defendants’
experts did not arbitrarily “cherry pick” a favorable scenario, however; rather, they used
BlackRock’s “base case” scenario because that scenario was the most likely to occur,
and plaintiff’s argument that a less optimistic scenario should have been used goes to the
weight of the opinions and not to their admissibility.
Sixth, plaintiff faults defendants’ experts for failing to use or consider Barclays’s
analysis in setting up the NGN transactions, which predicted no cash flow from the
OTCs. The experts could reasonably have chosen not to use the Barclays analysis,
however, based on evidence that the intended goal of the NGN transactions was to set
the value of the NGN notes to minimize or eliminate payments by NCUA-Exec on the
guarantee, and that the realization of that goal would increase the likelihood that there
would be residual payments on the OTCs. That likelihood provides at least a reasonable
basis for rejection of the Barclays prediction of no cash flow, and the Court thus
concludes that the relevance of the Barclays analysis is for the jury to decide at trial. The
Court thus rejects this basis for exclusion.
Method of Allocation
Plaintiff also argues that defendants’ experts’ methodologies for allocating the
value of the OTCs among the particular certificates at issue are unreliable. The
BlackRock DCF analysis yielded figures for all OTCs in the particular NGN trusts, but
those figures were not allocated among particular certificates within those trusts. Dr.
James allocated the OTC figures among certificates in the same proportion that the
certificates were valued as a whole by Barclays. Dr. Carron allocated the OTC figures
among certificates in three alternate ways, proportionately based on the Barclays values
for the certificates, the BlackRock values for the certificates, and the difference between
the Barclays and BlackRock values for the certificates.
Plaintiff argues that these methods of allocation are not reliable because they are
not based on the likely performance of the certificates and thus are not based on the
likelihood that there will be any income on the OTCs. The Court rejects this argument
as a basis for exclusion. Some allocation of OTC value to the certificates at issue in
these cases is necessary, and plaintiff does not dispute that allocation in some relative
proportion to some other value is an accepted methodology of allocation.4 Any criticism
that the experts should not have compared the value of the OTCs to the value of the
certificates generally may be presented to the jury, and goes to the weight of the experts’
opinions and not to their admissibility. Plaintiff argues that the experts’ methods result
in the overvaluation of some OTCs, but because the total OTC value is being allocated
among all certificates in the NGN trusts, there is just as great a likelihood that the OTCs
in these cases have been undervalued. Plaintiff has not submitted any evidence from an
expert on this issue, and thus there is no basis to assume a high rate of error here. The
Court denies the motions to exclude at they relate to this issue.
Failure to Account for the Value of the Guarantee
In the NGN transactions, the NGN notes were backed by a guarantee from
NCUA-Exec, for which NCUA-Exec received a fee (from the NGN trusts) and the right
Defendants have submitted evidence suggesting that plaintiff similarly allocated
projected OTC income among the credit unions in proportion to the value of the
to seek reimbursement from the trusts for any payments made on the guarantee. Plaintiff
argues that the damages calculations under this scenario by defendants’ experts should
be excluded because they failed to account for the value of that guarantee provided by
NCUA-Exec. In RBS, the Court effectively rejected this argument. In that case, the
Court noted that NCUA-Liq did not pay NCUA-Exec anything for the guarantee, and
that NCUA-Liq had given up only the certificates while receiving the net proceeds and
OTCs; and the Court thus ruled that “any calculation of damages should be based on the
receipt of the entirety of the net proceeds and the OTCs, without any reduction for some
value attributed to the guarantee.” See RBS, 2016 WL 3685210, at *10.
Despite that ruling, plaintiff argues that the experts should have assigned some
value to the guarantee in light of their concessions that NCUA-Liq “effectively” did pay
something for the guarantee, in the sense that the guarantee fees paid by the trusts
reduced the potential income to NCUA-Liq on the OTCs. The Court rejects that
argument. As the Court noted in its prior ruling, the trusts paid for the guarantee, and
NCUA-Liq received the OTCs. Thus, as the Court ruled, the value of the OTCs is key
in determining the value received by NCUA-Liq in disposing of the certificates.
Moreover, as defendants point out, their experts’ valuations of the OTCs account for the
deduction of the fee payments for the guarantee. Thus, defendants’ experts properly
refused to account for the value of the guarantee in their damage calculations under this
scenario, and plaintiff’s motions to exclude are denied with respect to this issue.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion
for partial summary judgment relating to damages (Doc. # 445 in Case No. 12-2591;
Doc. # 407 in Case No. 12-2648) is hereby denied.
IT IS FURTHER ORDERED BY THE COURT THAT plaintiff’s motions to
exclude testimony by Andrew Carron (Doc. # 425 in Case No. 12-2591) and to exclude
testimony by Christopher James (Doc. # 391 in Case No. 12-2648) are hereby granted
in part and denied in part. The motions are granted with respect to those experts’
deductions of post-suit principal payments in determining damages under Section 11 in
the event that the NGN transactions are found not to have been dispositions, and such
testimony shall be excluded. The motions are otherwise denied.
IT IS SO ORDERED.
Dated this 30th day of December, 2016, in Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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