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The Impact of Assured Guaranty on Claims Against Sponsors
In Assured Guaranty Ltd v. J.P. Morgan Investment Management Inc., 2011 NY LEXIS 3658 (decided Dec. 11, 2011), a unanimous Court of Appeals held that the Martin Act, New York's “blue sky” law, does not pre-empt common law claims for breach of fiduciary and gross negligence. Assured Guaranty itself had nothing to do with real estate; the complaint alleged that J.P. Morgan had invested assets in high-risk securities without diversifying and without advising its client of the true level of risk. But the court's holding may have a significant effect on co-op and condominium purchasers and sponsors, because the Martin Act and its implementing regulations requires sponsors to make numerous disclosures. Whether those disclosures could serve as the foundation for a common law fraud action has been the subject of considerable litigation.
Background
The state legislature adopted the Martin Act in 1921, conferring on the state Attorney General the power to investigate and remedy possible securities fraud. In 1960, the legislature added section 352-e to the statute, requiring the sponsor of a co-operative or condominium plan to file an offering plan with the Attorney General. Certainly the Attorney General had power to enforce the statutory and regulatory requirements, but what about private parties. What rights did they have with respect to errors of omission or commission that appeared in the offering plan?
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