The First Department issued a decision in Ambac Assur. Corp. v Countrywide Home Loans Inc., 2020 NY Slip Op 00367 (January 16, 2020), endorsing sampling in litigation relating to RMBS repurchase demands. The First Department wrote:
The court correctly denied the motion to preclude Ambac from using statistical sampling to prove its breach of contract claims in terms of both liability and damages. While the motion was not procedurally barred, we find that despite the language of the repurchase protocol, RMBS plaintiffs like Ambac are entitled to introduce sampling-related evidence to prove liability and damages in connection with repurchase claims (see Deutsche Bank Natl. Trust Co. for Morgan Stanley Structured Trust I 2007-1 v Morgan Stanley Mtge. Capital Holdings LLC , 289 F Supp 3d 484, 493, 496 [SD NY 2018]); Assured Guaranty Municipal Corp. v Flagstar Bank, FSB , 920 F Supp 2d 475, 512 [SD NY 2013]; see also Federal Hous. Fin. Agency for Fed. Natl. Mtge. Assn. v Nomura Holding Am., Inc., 873 F3d 85 [2d Cir 2017], cert denied -US -, 138 S Ct 2679 [2018] [upholding a $806 million RMBS judgment following a bench trial in which statistical sampling featured prominently]).