NCUA vs. WesCorp Officers: Win Some, Lose Some
The pre-trial jousting in the case of NCUA vs. a roster of onetime top officers at failed corporate credit union WesCorp continued, as presiding Judge George H. Wu now has issued rulings (dated Jan. 19) on a variety of motions from both sides.
These rulings – crafted in Wu’s typically dense legal language – appear to bring the case closer to trial by eliminating arguments, put forth by the defendants, that the case should simply be dismissed.
But former WesCorp officers Robert Siravo, Todd Lane, Robert Burrell, et. al., won at least one battle when Wu ruled that evidence pertaining to NCUA’s presence and conduct onsite at WesCorp in the run up to the institution’s failure could indeed be introduced into evidence.
NCUA had opposed that – arguing that the defendants could not argue that their conduct had in in effect won de facto approval from NCUA because of the regulator’s 24/7 monitoring of WesCorp. Wu, in this present ruling, indicates that he will hear evidence about the regulator’s presence at WesCorp.
Important to note that Wu explicitly rejected “affirmative defenses” based on NCUA’s pre-receivership conduct. What he said he would allow are references to that conduct.
The officers lost on another motion, however, when Wu said he would not listen to defenses rooted in the so-called “business judgment rule” – an established principle that excuses corporate officers from being held responsible for losses if they acted “in good faith.”
The officers had sought dismissal of some charges on the basis of this principle. Wu, in his ruling, indicated the defendants might appeal this ruling but he did not intend to budge in denying the applicability of the business judgment rule to the present case.
In a third ruling pertaining to a statute of limitations defense, Wu seemed to see merits in the positions of both sides. On the one hand, he indicated that there were reasons to listen to the defendants’ claim that a statute of limitations might wipe out the NCUA case against them – but Wu also seemed to indicate that, if presented with the proper argument from NCUA, he nonetheless would grant NCUA’s motion to strike the statute of limitations defense.
Court observers anticipate still more dueling in this case, leading up to scheduled 2013 hearings.