Tag Archives: Boies

AIG Suit Strengthens Government Powers

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photo by Tim Evanson

Law360 quoted me in Greenberg’s AIG Loss Strengthens Gov’t’s Crisis Powers (behind a paywall). It reads, in part,

The Federal Circuit’s decision reversing Maurice R. “Hank” Greenberg’s win in his campaign against the U.S. government over its bailout of American International Group Inc. was the latest in a string of defeats for investors challenging financial crisis bailouts, and could further strengthen the government’s hand in future crises, experts say.

The Federal Circuit on Tuesday rejected claims by Greenberg, AIG’s former chief executive, and his current company, Starr International Co. Inc., that the government engaged in an unconstitutional taking of property when it demanded and received 80 percent of the giant insurance company’s stock in exchange for an $85 billion bailout in September 2008.

Although the appellate panel overturned a lower court ruling by rejecting Greenberg’s standing to sue, it came in the wake of a series of rulings against shareholders in Fannie Mae and Freddie Mac. Those shareholders are seeking to overturn a President Barack Obama-era move to sweep profits from the bailed out mortgage giants back to the U.S. Department of the Treasury rather than into shareholder dividends, cases courts have repeatedly rejected.

Those wins mean that courts are giving the government wide latitude to respond to a financial crisis, even if some shareholders are harmed, said David Reiss, a professor at Brooklyn Law School.

“There’s now a lot of judges who have come down to effectively say, ‘The government had very broad authority to address the financial crisis, and we’re not going to second-guess that,'” he said.

Greenberg’s campaign against the Federal Reserve, the Treasury Department and other arms of the U.S. government stems from the effort to bail out AIG in 2008 after it was brought to the brink of insolvency due to the failure of credit default swaps held by its structured finance unit.

In exchange for the $85 billion loan that the Federal Reserve Bank of New York ultimately extended, AIG and its board agreed to hand over nearly 80 percent of its equity and fire its top executives.

Greenberg, who left AIG in 2005 under a cloud, and his current firm Starr International were the largest shareholders in the world’s largest insurer, and argued in a 2011 lawsuit that the government had engaged in an illegal taking of shareholder property.

Federal Claims Judge Thomas C. Wheeler agreed with at least part of Greenberg’s argument in a June 2015 decision, saying that the Fed had placed unduly tough terms on AIG in exchange for the bailout loan, with those terms exceeding the central bank’s authority under Section 13(3) of the Bank Holding Company Act.

However, Judge Wheeler did not award any damages to Greenberg and shareholders in the class action, arguing that their shares would have been worth nothing without the government’s action.

Both Greenberg and the government appealed, and the Federal Circuit on Tuesday reversed Judge Wheeler’s holding on the question of whether the government exceeded its authority by placing tough terms on the bailout.

However, the opinion did not focus on the government’s actions but on the question of standing. Greenberg and his company did not have it, so the rest of his argument was moot, the panel said.

    *     *     *

While the Federal Circuit did not address the substance of Greenberg’s claims, the U.S. Supreme Court might.

Greenberg and Starr said Tuesday they plan to take their case to the U.S. Supreme Court. If the high court takes up the case, despite a lack of a circuit split on the issue of lawsuits over financial crisis-era bailouts, they could set the terms under which the government acts in a future financial crisis.

But even without a Supreme Court ruling in their favor, the government should feel that it is on stronger legal ground during a financial crisis with its two wins at the appellate court level, Reiss said.

“Companies who are looking to reverse government actions at the height of the financial crisis … are having a really tough row to hoe,” he said.

Reps and Warranties Mean What They Say

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Derek Jensen

The New York Appellate Division, 1st Department, issued a ruling in Bank of New York Mellon v. WMC Mortgage, 654464/12 (Dec. 1, 2015) that stands for the proposition that representations and warranties regarding mortgage-backed securities mean what they say and say what they mean. The opinion opens,

This breach of warranty action arises from a residential mortgage backed securitization called the J.P. Morgan Mortgage Acquisition Trust 2006-WMC4 (the Trust). The Trust was arranged and sponsored by defendant J.P. Morgan Mortgage Acquisition Corporation (JPMMAC), which made certain representations and warranties as to the quality of the mortgage loans in the Trust. We find that plaintiff’s interpretation of the language of the representations and warranty at issue is the only reasonable interpretation . . ..

The Pooling and Servicing Agreement represented and warranted that

“With respect to the period from [the] Whole Loan Sale Date to and including the Closing Date, [JPMMAC] hereby makes the representations and warranties contained in paragraph (a) . . . of Schedule 4 attached hereto . . . . [that] [t]he information set forth in the Mortgage Loan Schedule and the tape delivered by [WMC] to [JPMMAC] is true, correct and complete in all material respects.”

It also stated that if “JPMMAC breached a representation or warranty it made . . . it was to cure the breach within 90 days after notification; if it failed to do so, it was to repurchase the defective mortgage loan or substitute a qualifying loan for the defective one.” This is pretty standard stuff so far.

By 2012, it appeared that more than 40% of the mortgages remaining in the pool were delinquent and that the R&Ws had been violated. The certificate holders therefor demanded that JPMMAC repurchase the mortgages that were in breach of the R&Ws, which JPMMAC refused to do.

JPMorgan argued, against the plain language of the R&Ws, that it only covered defects that arose during a short period prior to the closing date of the securitization. The Court gave short shrift to this implausible reading of the R&Ws.

This opinion does not make new law, but one wonders what effect it will have on securitization business practices. R&Ws are driven by many things — concerns about credit risk, but also tax compliance with the REMIC rules, to name a couple.  I am curious as to how MBS R&Ws have changed since the early 2000s — and whether the parties to these transactions understand how R&Ws allocate risk among them.

Tough Row to Hoe for Frannie Shareholders

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Inside Mortgage Finance quoted me in a story, GSE Jr. Preferred Shareholders Have a Tough ‘Row to Hoe’ in Winning Their Lawsuits (behind a paywall). It reads,

Expect a long and winding legal road to resolution of investor lawsuits challenging the Treasury Department’s “net worth sweep” of Fannie Mae and Freddie Mac earnings, warn legal experts.

More than a dozen lawsuits filed against the government – including hedge funds Perry Capital and Fairholme Capital Management – are pending in federal district court in Washington, DC, and in the Court of Federal Claims. The private equity plaintiffs allege that the Treasury’s change in the dividend structure of its preferred stock leaves the government-sponsored enterprises with no funds to pay anything to junior shareholders.

The complaints raise complex constitutional and securities law issues, according to Emily Hamburger, a litigation analyst for Bloomberg Industries. “It may be a year before the crucial questions can be answered by the courts because the parties are still in the early stages of gathering evidence,” explained Hamburger during a recent webinar.

Brooklyn Law School Professor David Reiss agrees. “The plaintiffs, in the main, argue that the federal government has breached its duties to preferred shareholders, common shareholders, and potential beneficiaries of a housing trust fund authorized by the same statute that authorized their conservatorships. At this early stage, it appears that the plaintiffs have a tough row to hoe,” notes Reiss in a draft paper examining the GSE shareholder lawsuits.

Government attorneys argue that Treasury has authority to purchase Fannie and Freddie stock when it’s determined such actions are necessary to provide stability to the financial markets, prevent disruptions in the availability of mortgage finance and protect the taxpayer. The government also argues that the plaintiffs do not have a legal property interest for purposes of a Fifth Amendment “takings” claim due to the GSEs’ status in conservatorship.

Hamburger predicted that the judges in the various suits won’t be able to ignore the “obvious equitable tensions” involved. “The government is changing the terms years after their bailout, but on the other hand, the timing and motivation of investors is going to be challenged too,” she noted.

While Reiss agrees that the junior shareholders “look like they are receiving a raw deal from the federal government,” it’s a tall order to sue the federal government even under the most favorable of circumstances. The plaintiffs will have to overcome the government’s sovereign immunity, unless it is waived, and the government has additional defenses, including immunity from Administrative Procedures Act claims, under the Housing and Economic Recovery Act of 2008.

Reiss explained that HERA states that except “at the request of the Federal Housing Finance Agency, no court may take any action to restrain or affect the exercise of powers or functions of [FHFA] as conservator or receiver.” It remains to be seen how this language might apply to Treasury’s change in the preferred stock agreement, but Reiss said it could be read to give the government broad authority to address the financial situation of the two companies.

“The litigation surrounding GSE conservatorship raises all sorts of issues about the federal government’s involvement in housing finance,” said Reiss. “These issues are worth setting forth as the proper role of these two companies in the housing finance system is still very much up in the air.”

The full paper, An Overview of the Fannie and Freddie Conservatorship Litigation (SSRN link), can also be found on BePress.