In Monday filings on behalf of the NCUA in the litigation the regulator has brought against a group of onetime top WesCorp executives, the agency’s lawyers sought dismissal of a range of important claims that had been made by the defendants.
They include Robert A. Siravo (WesCorp's former president/CEO), Robert Burrel (former executive vice president), Timothy Sidley (former chief risk officer) and Thomas E. Swedberg (former vice president).
Those officers had in effect sought dismissal of the charges against them (as the court had done with charges that had been leveled against outside directors of the now-failed corporate).
The essence of the NCUA argument is that litigation should proceed and, significantly, the agency forcefully opposes payment of the legal fees incurred by the defendants, despite their employment contracts which appear to commit to do exactly that.
As recently as early November onetime WesCorp CFO Todd Lane, another defendant in the NCUA case, pressed the court for reimbursement for legal fees that he claimed topped $100,000.
In its first point, the NCUA challenged the claim that because it had supervised the actions of the defendants they therefore could not be held responsible. “These defenses fail because “[c]ourts have uniformly held that claims or defenses based upon pre-receivership actions of regulators are legally insufficient,” the agency said in its brief.
The filing continued: “The second set of affirmative defenses assert that the business judgment rule bars liability. The Court has already held that the business judgment rule does not protect the Officer Defendants.
“The third set of affirmative defenses are bare-bones assertions that a statute of limitations bars the NCUA’s claims. Because these defenses state only the legal conclusion embodied in their title – not even identifying the statute being asserted – they do not provide the basic notice required.”
With those three swipes, NCUA sought to discard the bulk of the arguments to dismiss made by the defendants.
Probably most eye-catching, however, is NCUA’s continued argument that despite any agreements the defendants may have had with their employer, the agency believes there is no basis for payment of legal fees. As stated in the filing, “The NCUA here moves first for dismissal of those counterclaims that seek to require the NCUA to make payments unless and until the Officer Defendants prevail.”
In other words, no money to the defendants until ruled innocent, the agency argued.
NCUA elaborated in its filing, “The counterclaims must be dismissed to the extent that they seek indemnification from the NCUA because, as a matter of law, corporate officers or directors sued by a receiver or liquidator for a failed financial institution may not obtain indemnification from that plaintiff, regardless of whether they might have had a right to obtain indemnification had the institution remained solvent.”
The brief also argued that requiring NCUA to pay those costs would result in an “an absurdity: ‘the NCUA is suing the Officer Defendants for their wrongful conduct that directly led to the collapse of WesCorp. Allowing indemnification for the NCUA’s lawsuit would lead to the absurd result’ that the NCUA could succeed in its suit against the Officer Defendants, and then recover from itself.”
Sources indicated that the case is unlikely to proceed to trial before 2013.