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Category: Bankruptcy

2

Chapter 11 as Metaphor: The Financial Systems Restructuring Act of 2008?

lipson.JPGLast week, when all that was on the table was the mere collapse of a few investment banks and one large insurance holding company, I posted Jonathan Lipson’s lucid analysis, identifying the “selective socialism” of A.I.G.’s bailout as a consequence of the Bankruptcy Amendments of 2005.

Now that we’re frying bigger fish, I wondered what Lipson would say. His comments follow:

There are many options for a bailout. One that has received surprisingly little (if any) attention in Washington is reorganization under Chapter 11 of the United States Bankruptcy Code.

Strictly speaking, Chapter 11—which governs business reorganizations—would not apply in any meaningful way to many of the entities that are concerned here. Nor should it. But its general approach may, by analogy, be instructive.

Chapter 11 is a response to the collective action problem presented by a company’s general default. It is designed to enable parties to work out—restructure—legal and economic relationships with a mix of market incentives and government oversight. Some features of that system might, by analogy, help to avoid the growing stalemate in Washington while also creating mechanisms that actually resolve the underlying financial problems.

What, then, might a Financial Systems Restructuring Act of 2008 modeled on Chapter 11 do?

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The Loophole that Became a Wormhole: Why the Fed Had to Bail out AIG

lipson.JPGMany explanations have been offered for the “why” of the Fed found it necessary to bail-out AIG, mostly centering around uncertainty and risk. It’s not exactly that AIG was “too big to fail,” but rather that no one could say, with any certainty, that its failure wouldn’t lead to a real market crash of enormous scope. That is, AIG is a good example of the precautionary principle in action. Maybe so. But I still am a little unclear why AIG is so exceptional in that regard.

Back in the Spring, when Bear failed, I asked my colleague Jonathan Lipson to offer a set of observations about Bear’s bailout. (Check out also Ribstein’s response to Lipson here.) Based on a recent correspondence with him about AIG, I thought it would make sense to share with you his unique & very interesting perspective on the problem.

Why did the Fed bail out AIG but not Lehman?

The conventional answer—which is true but incomplete—is that AIG was too big to fail. But that begs two questions: Too big how? And why?

In part, AIG was too big to fail because it could owe an astronomical amount—allegedly about $300 BN—on credit default swaps issued to support mortgage-backed securities.

The problem, however, is not just the amount AIG owes, but the fact that these obligations are not like other obligations. They occupy a series of loopholes that make them unusually dangerous. Perhaps the greatest loophole of all came in the 2005 amendments to the Bankruptcy Code. Although designed ostensibly to “get tough” on profligate debtors, those amendments also made certain that CDS holders would get special treatment in bankruptcy—special treatment that may have made the Fed bailout inevitable.

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On the Uses of Greed and the Current Finacial Mess

1Gordon-gekko.jpgHow useful is it to think about our reactions to the current financial meltdown in terms of greed? It seems to me that there are two questions here. The first is positive. To what extent can I use greed as a concept to explain the current implosion in the markets?. The second is normative, namely to what extent does greed help us understand how to best deal with the crisis?

First to the positive question. Greed as an explanation posits that we are in this mess because the single-minded pursuit of profit by financial speculators, irregardless of its wider consequences has caused our problems. On this view, the problem is that we have been suffering some sort of a unique spiritual crisis that has come to a head at this moment with dire consequences. The question then becomes cultural. Why did we suddenly become greedy now in such a way as to create this problem?.

Frankly, I’m skeptical. Rather, it seems to me that what we are seeing is a classic bubble caused by sharply rising asset prices. Was the rise in prices fed by greed? No doubt in part, but a better candidate is, I think, the Fed’s loose monetary policy. In effect, we had a huge, government-sponsored intervention in the price mechanism that resulted in a massive misallocation of resources. Now that misallocation is getting unwound. Indeed, if the speculators were greedy, they were also stupid and many who were greediest — those who leveraged themselves the most and for the longest periods — are now the one’s most likely to lose their shirts. My point here is not that investors, brokers, and other players in the financial markets are all saints. There is more than enough greed to go around, I’m sure. Rather, my point is that I think that there are other causal factors that are more important.

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It’s a Sad Day when Nationalization is the Silver Lining

socialistrealism.gifDave asks “What do you think, Nate should “Berneke and Paulson [have] looked on in stony indifference” here too?” To be entirely honest, the answer is I don’t know. Frankly, I am not sure that anyone else really knows either. My instincts are for letting it fail. I have no idea how I am supposed to evaluate the too-networked-to-fail argument.

Although it is hard to tell from the details that we have now, I am encouraged by the fact that the government didn’t simply shell out cash to save the company. I think that it is better if feds end up owning AIG, or at least holding the threat of ownership. This at least diminishes some of the moral hazard effect, and I think that if the tax-payers are going to foot the bill for a company’s debt, then going forward the company ought to be managed in the interests of the tax payers. Better nationalization than a world of promiscuous government guarantees of private actors.

On the other hand, I have a hard time thinking that nationalizing the home-mortgage and insurance industries is a path to prosperity. Particularly, when the tax payers are left owning the bits of the industry that no one else wanted. In favor of a bit of creative destruction, I would point out that it is worth remembering that even when we are talking about sub-prime mortgages, most of them ARE NOT in default. At the margins they are in default, and the margin is a lot bigger than everyone expected. On the other hand, there are still — even in the troubled bottom end of the home lending market — a lot of valuable assets out there, and I am not convinced that letting the losses lie where the contracts put them will bring the entire system to its knees. On the other hand, I am a lawyer, which means that almost by definition I don’t know what I am talking about when it comes to finance.

Still, its a sad day when the silver lining for me is nationalization.

2

And the Winner is…

PilesofCash.jpgOne of my students sent me the pages from Lehman’s filings listing the 30 top unsecured creditors. It’s a simple column of figures that makes sobering reading, even for a let-the-market-punish-them enthusiast such as myself. First past the post is CitiBank with $138 billion in unsecured bonds. Just for fun, I tried to find out what $138 billion will get you in today’s world. It is equal to:

The second quarter 2008 revenues of ExonMobile.

The value of all of the cement produced in China in 2006.

The amount of money, according to the EPA, that will have to be spent over the next 20 years to repair and update all drinking water systems in the United States.

The value of the Florida Retirement System, i.e. public pensions.

The amount of money spent under the Presevation of Public Lands of America Act, a bill originally introduced by my former Senator George Allen as a joke. (Okay, so my source on that one is The Onion.)

Looking just in the ball park and you get:

The total value of all goods purchased at self-checkout kiosks in the United States in 2006. ($137 billion)

The amount of money necessary to run the State of Texas for two years. ($139 billion)

The value of total U.S. investment in the Korean stock market in the last year. ($140 billion)

Interestingly, $138 billion is also exactly the amount of money that JP Morgan advanced to Lehman Brother’s yesterday and today in what Bloomberg calls “Federal Reserve backed advances.”

7

I am Irving Fisher

417px-Irvingfisher.jpg“You are a perverse soul,” my office-suite mate told me this morning after I expressed my glee at the fall of Lehman Brothers and the imminent death-by-merger of Merril Lynch. Perhaps, I am just Irving Fisher. Of course, my office-suite mate and I have differing time horizons. She is not that far from retirement and is in that stage of life where every twitch, hiccup, and nose-dive of the market ripples through one’s 401(k). I’m decades from cashing out my retirement savings, and I have to confess that the fall of a major financial institution puts me in a down right jaunty mood.

Sure, the markets already have lost 3%, but what makes me happy is the news that Lehman Brothers threw itself at the knees of the Fed and the Treasury Department over the week end, and Berneke and Paulson looked on in stoney indifference. At last, it would seem, capitalism is going to do what capitalism is supposed to do: Punish those who make bad investment choices. Hopefully, we are in for a bit of short term pain while markets find their bottom and the dead and dying are taken out behind the barn to be shot. On the other hand, once the carnage is over those with money to loan, invest, and spend — and there are lots of them — will come out from hiding in their bunkers with the knowledge that we’ve unwound the risk, and a market that has learned something about the valuation of credit derivatives can move forward. To be sure, the landscape will be utterly changed, but that had to happen any way. Better this way than through a long, slow, expensive process of bailing out the super-rich. This is bad for the financial markets and the real economy may take a hit as well. It is good, however, I think for the long-term political health of capitalism.

I am also frankly skeptical about the notion that we are facing a crisis that will call for New Deal-esque responses. Just a quick reality check: When the New Deal was being put together we had near 25 percent unemployment, roughly 50 percent of all home-mortgages in default, and the GNP contracted by over 13 percent in a single year. This simply IS NOT the second coming of the Great Depression. This is an enormous financial crisis, but one that — as Dave notes in the Greenspan quote in his post — has been having less than catastrophic effects on the economy. It is a big nasty problem, to be sure, but I do not think that it is an apocalypse. Gordon is right, however, that the big question is going to be what will be the regulatory response. This is undoubtedly a bigger event economically than Enron, and the regulatory response to that problem does not give me a great deal of confidence going forward. What I fear is less the markets, than what Congress is likely to do in response. It is the sort of thing that we might want to ask our Presidential hopefuls about, although the chances of a productive discussion on this between now and election day are … low.

5

Wall Street Circles the Drain

800px-Wall_Street_Sign.jpgReflecting on today’s astonishing run on the bank, Gordon Smith writes:

The big issue, going forward, is how the events of this year reshape our regulatory system. In a decade, will we look back on Bear Stearns, Frannie, and Lehman — oh, and have you been paying attention to the problems at WaMu? — in the same way that we look back on Enron?

My guess: no. Enron will be too modest an analog. By the time the dust settles, the New Deal will seem the more apt comparison.

The. New. Deal. Friends, it’s time to go to the mattresses. And put your money there. Have you read this color commentary on the mood up in NYC? Or this catch from the dealbreaker? “[T]hey are saying that AIG has asked the Federal Reserve for some kind of emergency bridge loans. Can the Fed lend to an insurance company?” (More here.)

It’s pretty fortunate that the political blogosphere, which, you know, is much more substantive and issue-oriented than the mainstream press, is all over the story of the rapid collapse of the US financial industry. Indeed, of the top twenty most recent posts at Instapundit and the Daily Dish, only seventeen are explicitly about presidential politics! And one is about the financial crisis (though, to be fair, Reynolds does put a dig in against Obama.)

I myself don’t know what to think. Larry Ribstein thinks that it means the end of large corporations managing financial risks. Is that the problem – bad governance? Or is this a mass psychology problem subject to Nudge-like fixes? The question I have about Larry’s conception of the problem is that it doesn’t explain firms like Goldman, which appear to be surviving the crisis with little hint of major trouble. The goal for policy makers shouldn’t be just to focus on what’s gone wrong, but what hasn’t: what makes Goldman’s corporate culture so superior to the rest of the Street’s?

That’s is a discussion we should have next week. In the meantime, let’s try to survive tomorrow’s opening bell.

[Update: You think I'm a chicken little? Alan Greenspan said the following earlier today:"''I can't believe we could have a once-in-a-century type of financial crisis without a significant impact on the real economy globally, and I think that indeed is what is in the process of occurring.' The former Federal Reserve chairman also predicted that the financial crisis would see the failure of more major financial institutions, even as embattled Wall Street investment giant Lehman Brothers scrambled to find a buyer. "]

(Image Source: Wikicommons)

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Debtor Friendly Legislation and Unintended Consequences

house_for_sale.jpgThe rate of home foreclosures in the current mortgage crisis has not been evenly distributed. Some states — such as Nevada, California, and Florida — have seen many more foreclosures than others, and not simply because some of them are big states. Take California, where in some localities the foreclosure rate has been as high as 25 percent. What gives here? Are California home buyers and mortgage brokers just much more irresponsible than the rest of the nation? Is there some California specific economic shock that accounts for this? I don’t pretend to know the ultimate answers to these questions, but I think that at least part of the blame for California’s high foreclosure rates needs to be laid at the feet of California’s debtor friendly home mortgage law.

According to California Civil Code section 580b:

No deficiency judgment shall lie in any event after a sale of real property or an estate for years therein for failure of the purchaser to complete his or her contract of sale, or under a deed of trust or mortgage given to the vendor to secure payment of the balance of the purchase price of that real property or estate for years therein, or under a deed of trust or mortgage on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of that dwelling occupied, entirely or in part, by the purchaser.

What this means is that virtually all purchase-money home mortgages in California are non-recourse. In other words, in the event of default the bank can foreclose on the house but cannot come after the debtor personally for repayment of any debts left unsatisfied by the foreclosure sale. The result is that if buyers are left underwater on a loan, owing more than the house is worth, they can walk away from the house without any debt.

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Lipson on The BS That Didn’t Bark: Why Didn’t (Doesn’t) Bear Stearns Go Into Bankruptcy Part II

lipson.JPGThis post concludes my colleague Jonathan Lipson’s set of observations about Bear’s bailout. You can find part I, in which Lipson demonstrates some of the advantages of a bankruptcy for Bear, here. Check out also Ribstein’s response, here.

Why Didn’t Bear Bark?

So, if the standard arguments against a BS bankruptcy don’t stack up, and in fact it might produce a better result than the hastily structured, poorly-executed deal on the table, why no bankruptcy?

The answer may be that while bankruptcy might benefit shareholders, JPM and other stakeholders, it would not benefit the folks who are in fact most likely responsible for the current state of affairs—BS’ officers and directors, and the managers of the hedge funds with whom they were intimately involved.

In any BS bankruptcy, insider transactions with the company of at least the last year—and probably quite a bit longer—would almost certainly be subjected to a searching inquiry. Most likely, a chapter 11 examiner would be appointed to determine what happened at BS, just as Neal Batson did at Enron.

Batson produced a huge report in Enron. Some would say it was not worth the price—allegedly about $100 million. But others would respond that Batson’s investigation did two very important things that created far greater value. First, his report was used in countless litigations that are said to have brought many times that amount back into the bankruptcy estate.

Second, his report revealed at least some of what really happened at Enron. My research on the use of examiners in chapter 11 cases suggests that this “public” value was, at least in the case of Enron, important because it gave lawyers and other professionals guidance on acceptable conduct well beyond that case.

In BS, scrutiny is likely the last thing that senior managers want. The media assumes that management is suffering along with everyone else because people like CEO Cayne had large share holdings, the value of which has been slashed. But this glosses over two important questions.

First, what did BS senior managers—and the management of the hedge funds they supported—get from BS over the last couple of years, whether in stock they sold for far more than $2 (or $10) per share, or cash bonuses, or compensation of some sort from hedge funds within or proximate to BS? These questions become relevant in bankruptcy because these transactions would certainly be scrutinized, and some may be avoided for the benefit of the bankruptcy estate.

BS’s senior managers doubtless understand this. It may be that for them, keeping last year’s goodie basket is worth far more than what they lose in the JPM deal. In a JPM deal—no matter how bad it gets for today’s shareholders—last years’ executive compensation is safe. Bankruptcy may put some or all of that at risk.

Second, and ultimately more important, there is the simple, cleansing effect of public scrutiny. Today, the question that no one asks—the elephant in the room—is where, exactly, all the money went? Of course, not all of it was real money. There was a lot of marking-to-model, which means that some valuations never really involved cash.

But lots of investors bought toxic securities from or through BS or affiliated hedge funds. And they paid cash. So, where did all that money go? Answering that question could go a long way toward understanding what went wrong in the mortgage crisis generally, and perhaps understanding how to prevent similar problems in the future. Today, thanks to JPM and the Federal Reserve, we won’t know.

In some ways, this is really about Sherlock Holmes famous dog that did not bark. There, after all other explanations were eliminated, only one—silence—made sense. Here, it may be that there are plenty of sound reasons to keep BS out of bankruptcy. But so far, it just looks like only one: the insiders want to keep the muzzle on.

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Lipson on The BS That Didn’t Bark: Why Didn’t (Doesn’t) Bear Stearns Go Into Bankruptcy

lipson.JPGMy colleague, Jonathan Lipson, is an incredibly astute observer of bankruptcy law and practice. I was talking with him the other day about Bear’s bailout, and he offered some characteristically interesting thoughts. I invited him to share them in written form with our audience, and will be posting his comments in two parts today and tomorrow.

What’s so bad about bankruptcy?

Today’s New York Times reports that both shareholders and lock-up acquiror JP Morgan-Chase have threatened to put the financial firm into bankruptcy if the other doesn’t blink.

But, if bankruptcy is the only thing both sides agree on, why doesn’t the board authorize a chapter 11 filing?

Two classes of arguments have been made against a BS bankruptcy, one about market disruption, the other about value maximization. The cost, delay and uncertainty of bankruptcy could bring the whole system down, the theory goes. In any case, it would wipe out shareholders’ entire interest.

These are, of course, possible outcomes. But they’re not as likely as people think. In any case, the important question is not whether bankruptcy would do this, but whether ex ante we think bankruptcy would be worse than the current deal.

There is some reason to think bankruptcy might actually be better. If so, then something else may explain why BS, JPM and the Fed would rather spend the next couple of years in Delaware Chancery Court than the U.S. Bankruptcy Court for the Southern District of New York.

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