Reorg Research Job Posting: Covenant Analyst

Reorg Research is hiring a number of Covenant Analysts who are experts in high yield bank and bond financings. The ideal candidate would have several years of experience working in a credit, financing or securities group at a major law firm. In addition to having spent time at a law firm, top candidates may also have experience in investment banking or in a credit research/investment function with a focus on loan agreements and indentures.

The Covenant Analyst will work closely with our team of in-house experts (from both legal and financial backgrounds) and will be responsible with the rest of the team for producing research, analysis and reporting on covenants and credit documents. The team of Covenant Analysts will also be working with our technology team to envision best-in-class technology offerings and solutions to help our clients in their day to day work flows.

An ideal candidate will have the following:

  • JD with a strong academic record.
  • 3+ years of experience involving high yield financings and a deep understanding of debt covenants.
  • Experience drafting and analyzing loan agreements and indentures.
  • A proven ability to multi-task and work both independently and as a team player in a fast-paced environment with people from varied professional backgrounds.  

This is an exciting position for anyone who is looking to transition to a new career at a rapidly growing provider of research and intelligence for the investment community. The candidate will work out of our New York City offices.

Interesting candidates can send their resumes to recruiting [at] reorg-research.com



iGlobal Forum's Sixth Global Distressed Investing Summit

iGlobal Forum will host its sixth Global Distressed Investing Summit on Feb. 4. As with years past, the conference has a stellar line up of panels and panelists to discuss the current trends and issues facing the distressed debt universe. The summit will take place on Feb. 4 at the Park Lane Hotel in New York. Senior representatives from distressed funds, private equity firms, advisors, and ratings agencies will be attending. Reorg Research will be in attendance,

Bruce Richards, CEO and founding partner of Marathon Asset Management will be the keynote speaker at the event. Aside from the keynote interview, which will be titled “Where in the Cycle are we?” the topics of the scheduled panels are:

  • Exploiting the Distress in Energy-Related Credits
  • Profiting from European Distressed Opportunities
  • Examining the Potential for Distress in the Retail Sector
  • Unlocking Opportunities in Puerto Rico and Other Emerging Markets
  • Examining the State of the Re-Financing Markets

Additionally, there will be two roundtables titled “Profiting from Financial Liquidations” and “Opportunities in Distressed Real Estate.” Other speakers include professionals from firms such as KKR Credit, HSBC, Citibank, Schultze Asset Management, Archview Investment Group, Raith Capital Partners, GLC Advisors, Blackstone, Apex, Centerview Partners, Eyck Capital, BB&T Capital Markets, Siguler Guff & Co., Maglan Capital, Deutsche Bank, Bowery Investment Management, Guggenheim Partners, PMD Capital, Versa Capital Management, Schulte Roth, WAMCO, Orrick Herrington and Sutcliffe, Weil Gotshal, Alumcreek HOldings, Marathon Asset, Alcentra, Halcyon and HIG Capital.

For more information visit the 6th Global Distressed Investing Summit page. http://www.iglobalforum.com/6dd.html 



2015 Wharton Restructuring and Distressed Investing Conference Taking Place in New York

The Wharton Restructuring and Distressed Investing Conference is always one of the best conferences of the year. This year’s theme is “Signs of Distress? Looking Past the Current Market Cycle.” This conference is always a valuable source of insight and networking opportunities for distressed debt and restructuring professionals. The conference will take place on Feb. 27 at the Pierre Hotel in New York.

The keynote speakers this year are Bennett Goodman of GSO and former Treasury Secretary Robert Rubin, who is now at Centerview. As usual, there will also be a number of panels that are sure to provide interesting and valuable insight on a number of topics. The panel topics are:

  • Distressed Private Equity
  • Legal Restructuring: Distressed Acquisitions in Chapter 11
  • Financial Restructuring
  • Distressed Hedge Fund
  • Operational Restructuring

The legal restructuring panel features several well-known experts, including Judge Shelley Chapman, a bankruptcy judge in the Southern District of New York.

Reorg Research is happy to be a media partner for the event and will be in attendance. For more information, please visit the conference home page here: Wharton Restructuring and Distressed Investing Conference.



Emerging Manager Series: Advantage Capital

In the past we have interviewed a number of emerging hedge fund managers whose strategy and style of investment we particularly respect. In the latest edition of our emerging manager series, we caught up with Irv Schlussel of Advantage Capital. Irv launched Advantage in December of 2013 after two successful years managing an account at Telemus Capital. More information on Advantage Capital can be found on their website advantagecapm.com

Enjoy and have a wonderful Thanksgiving!

You started your career in equity research, how did you find yourself in distressed debt investing?

I began developing my interest in the distressed space when I was in college. The idea of investing in a situation where there was significant confusion and forced selling was quite appealing to me. I read the book “The Vulture Investors” by Hilary Rosenberg and then did a summer internship at the distressed firm Wexford Capital. After working at Wexford, I was sold and directed my career toward distressed. The distressed market has developed significantly from the 1980s and early 1990s, when investors purchased loans directly from the workout groups of commercial banks, but there continues to be significant opportunity in the space. When I graduated from Wharton in the early 2000s, the traditional path was to work in banking research or trading. UBS had an excellent training program, and working there helped me gain perspective prior to going to the buy-side and into distressed investing.

Perhaps consequently, your fund’s investments involve a combination of equity and debt investments. How does that help when special situations opportunities are sparse?

I think it is critical to have the flexibility to move across the capital structure and adapt to the opportunities that are available in varying market environments. Many of the core analytical and legal skills used in distressed can be applied to merger arbitrage and other litigation related opportunities. Even within a distressed capital structure, we sometimes find that having a smaller sized position in the equity results in a more asymmetric return profile when compared to investing in the debt. We focus our analysis on finding the most optimal positioning within a given capital structure and this has been a key component of the fund’s success thus far.

Your portfolio has a mix of hedged/arbitrage trades and directional fundamental positions, can you describe your criteria for using one or the other?

We think having a mix of outright and hedged positions is the key to successful portfolio management. We find it safer to deploy capital when we can identify a great hedge within a capital structure. In such a scenario, we focus our research on the catalysts that will make our trade work. We perform extensive fundamental research, but the hedged nature of our risk gives us greater flexibility in how we can size the position. We also develop a good sense of the time horizon of an event that will catalyze these hedged positions.

A good example of an appealing hedged opportunity was the merger arbitrage in the pre-chapter equity of the then bankrupt American Airlines. American was emerging from bankruptcy through a merger with US Airways. AAMRQ had sold off disproportionately to the value of new shares of US airways into which it would be converted. There was significant confusion in the market as holders of the then bankrupt AAMRQ were to receive the majority of their stock in the NewCo (AAL) over a period of four months. During this period, the AAMRQ stock would be delisted and cease trading. News of the delisting caused forced selling by many market participants who were not allowed to own delisted companies. We seized upon this opportunity to put on a hedged arbitrage position in which we bought AAMRQ and sold short AAL to reduce our risk. The merger spread on this position was in the mid-teens on a non-annualized basis and the weighted average time to close was about two months given the timing of distributions.       

Outright positions are usually driven by a significant mismatch between our perceived value of a security and the prevailing market price. When we have done significant work and believe we have an informational advantage, we are comfortable having directional risk in a given situation.

In the last three years when you’ve seen mega-funds take huge hits on situations such as the government sponsored enterprises and then have been stagnated in other investments due to a slow distressed market, Advantage has posted significant double digit returns ahead of the HFRI distressed and event driven indices. What has set your firm apart?

We think one of our strengths is the management of position sizing in some of the crowded distressed trades. We have a position in FNMA and continue to be favorable on the GSEs. We are more likely to take larger positions (7-10% of capital) in situations like Genco, GT Advanced Technologies, Verso, Syncora & YRCW. These situations are less crowded and we believe our involvement through participation on the committees and positioning in the information flow allows us to have an advantage.

You’ve been bearish on the corporate debt market while emphasizing “opportunities in idiosyncratic situations” that give rise to investments that have low correlations to the market. Can you give an example and how you came across an idiosyncratic distressed investment?

A great example of this is our position in Genco Shipping. Shipping had been on our radar for the past several years, as the industry has been distressed since the financial crisis, but has not had that much bankruptcy. Much of the shipping reorganization was pushed off, since the banks that lent to the industry were primarily European banks that were incentivized to avoid foreclosure. These banks opted to kick the can down the road to avoid having to mark the underwater debt to market.

When we first started looking at Genco in April of 2013 when its bonds were trading in the low 30s and the bank debt was primarily held by the Norwegian bank DNB. We were alerted to a pending restructuring of Genco in December 2013, as much of the bank debt changed hands and was purchased by a group of large hedge funds including Centerbridge and Apollo. These trades were rumored to have been priced in the low $90’s as broader market fundamentals were improving and shipping rates were on the rise. We took the view that these funds would not waive further covenant violations and had purchased the bank debt with the objective of forcing bankruptcy and owning the company. Genco had a $125 million convertible bond that we felt would have a blocking position in any restructuring.  We began purchasing bonds and set up a hedged position with a short in the equity. There was a clear mismatch between the debt & equity as we were buying the bonds in the 40s and shorting the stock at market cap of $90M. The catalyst for this position was a violation of the company’s bank debt covenants, which led to a reorganization and equitization of most of the liabilities. We sat on the creditors group in Genco, and were involved in the reorganization as a signatory to the Chapter 11 Plan Support Agreement. The plan of reorganization resulted in a conversion of the company’s debt into equity with a token recovery for the equity and a near par recovery for the bonds.

Conversely, you wrote about Exact Sciences as an equity short in your September letter and how it was the first name you published on when you were at UBS. That was 10 years ago. When do you decide that you know a company well enough to put your money into a thesis?

It depends on our comfort level and prior familiarity with an industry or particular company. There are situations in which we will do our initial work and initiate a small position that same day. That being said, we tend to wade cautiously into most situations. If something is appealing based on our preliminary research, we will take a smaller position while continuing to hone our thesis. If we increase our level of conviction as we do further research, we will increase sizing in accordance with liquidity and our view of the balance of risk and reward. It was easier to get comfortable with the Exact Sciences situation, as it is a company we have followed for over 10 years. Prior to initiating the short in Exact Sciences, we did a thorough “refresh” which included reaching out to physicians in the oncology field and having several conversations with the sell side. We confirmed our view that Exact was significantly overvalued and proceeded with our short.

You’ve written about sitting on creditors committees and the informational advantage that it provides. What is unique about how you sort through the information, and misinformation, that often comes as part of the Chapter 11 process?

Any given bankruptcy docket is filled with thousands of documents, the vast majority of which are noise and pertain to administrative matters. We think that as a starter, it is important to understand which documents are key. We always look at a company’s MORs, PORs, SOFAs, Disclosure Statements, 2019s & First Day Declarations. Services such as Reorg Research http://reorg-research.com/ have greatly improved the ability of a buy side firm to quickly monitor the docket and isolate important items. 

Sitting on a bondholder group or committee is an important step to being at the center of information flow. Having access to the attorneys and advisers involved allows us to get a great sense of how the chapter is proceeding and better understand the motivations of the various constituencies. We also closely watch 2019s and try to get a sense of who owns what and the extent to which they will defend their positioning. We think that having knowledge about the distressed firms involved is very helpful when trying to assess how a situation will play out. 

Recently there have been many market corrections and large drops in bonds as a reaction to only marginally weak earnings, and distressed investors are starting to see more opportunities. What is your prediction for the next significant distressed cycle?

We are of the view that we are closer to a turn in the credit cycle and the next wave of distressed investing opportunities. It is challenging to handicap the exact timing, but there are a number of signs that indicate that a turn is approaching.  There have been huge inflows into credit-related mutual funds driving a gradual move to tighter and tighter levels. More PIK Holdco notes were issued in 2013 than ever before, and this trend has continued into 2014.

We think that an eventual rise in interest rates will likely be a key catalyst as we have seen many poor companies able to refinance their liabilities in what has been a hot market for high yield new issuance. Just this morning I read the following headline on Bloomberg: “The $400 Billion Bond Mismatch Keeping Bears at Bay Endures”  The article mentioned that JP Morgan research is predicting fixed income “demand globally will outstrip supply by about $400 billion”.

New Issuance is ultimately purchased by mutual funds who have to buy to keep up with their inflows. Higher rates will make it more challenging for companies to continue to service and roll their liabilities. We anticipate and look forward to an associated uptick in the corporate default rate.

From an investing perspective, we believe that many distressed funds have spent the past few years focused on Lehman and the vintage of 2007 LBO’s (TXU, Caesar’s, Clear Channel, etc.). We anticipate that the downturn in credit will create opportunities in smaller capitalization companies with structures smaller than $3B. We think these smaller companies will find it harder to role liabilities than their larger peers. Advantage considers middle market distressed to be our “bread and butter,” and we think that the next cycle will be provide great opportunities for us to deploy capital as we grow our firm.

Are there people, events, things that have particularly influenced you as an investor?

Sitting on the trading desk at Xaraf Management (a trading group within Paloma Partners) in the crash of 2008 was a key experience in my professional development. It provided a perspective on just how bad things can get and how to approach trading in an illiquid cash bond market. The lack of liquidity magnified the degree of pain in the market as bids completely dried up. Those who were well capitalized were able to put on positions with great expected return and low risk, but most participants were too shell-shocked to be in a position to make investments. At Xaraf, we had done well in the market crash and were able to put on low risk basis trades that took advantage of the liquidity and leverage mismatch between cash bonds and CDS. I was also able to put on several low risk credit related risk arbitrage positions. During the crash, I saw the value of having dry powder when most don’t.

At Xaraf, I sat alongside and worked for Paul Pizzolato, who taught me the virtues of patience, position construction and sizing, and the value of liquidity in a down-market. I developed many skills at Xaraf, including unique approaches to merger arbitrage utilizing CDS and cash bonds to better optimize and hedge equity positions. Oftentimes, I would make the case for an investment and Paul would suggest that we wait and see if it gets cheaper. Many times it would, and we would find a far better entry point, which had a significant impact on returns. I have learned that there is a huge universe of potential investments, but the timing of entry and exit is critical regardless of thorough research and analysis. I learned the importance of being patient and waiting for the fat pitches.

At Wexford Capital I had exposure to Charles “Chuck” Davidson who was the right hand man of Michael Steinhardt for several years. Hearing Chuck’s perspective on investing and the experiences he had in the crash of 1987 had a lasting impression.
Can you talk about one idea you find particularly compelling today?

We think there is great upside to the bonds of the distressed Apple supplier GT Advanced Technologies, GTAT. GT has $434 million of convertible debt outstanding across two issues; a 2017 and 2020 both trading at 40. The company filed for bankruptcy on Oct. 6 in order to preserve value for creditors rather than continuing to hemorrhage cash as they attempted to fulfill the terms of an onerous contract to supply Apple with sapphire glass for the iPhone 6.

We believe there are sources of value that will drive recovery for the GTAT bonds. GTAT has significant cash, working capital, and the company’s SOFA filed on 11/21 disclosed that GTAT recently received a tax rebate of $29M.

Apple and the Company have reached a settlement which is pending confirmation by the court. An ad hoc group of creditors (of which we are a member) have filed an objection to this settlement as we believe it does not sufficiently repay the Company for the time, energy and money which was spent trying to perfect the Sapphire facility. The bonds could appreciate significantly if Apple agrees to recut this settlement with improved terms for GT Advanced.

One of the key ambiguities in the GTAT case surrounds the basic capital structure concept of “structural seniority”. The convertible bonds of GTAT sit at the holdings company and lack subsidiary guarantees. Funds from the issuance of the convertible bonds ultimately flowed down the capital structure from GT Advanced Technologies Inc. (“HoldCo”) to the various operating entities. There is approximately $125 in trade debt at the operating entities. A key question amongst investors and an ultimate driver of recovery will be the extent to which the Bonds have an intercompany claim that would make them pari-passu with some of the trade debt. We are of the view that at a minimum there is a strong legal argument to be made for substantive consolidation at the various GTAT entities. This argument was further coalesced on November 12th at the 341 meeting of creditors when it was disclosed that GTAT did not have a bank account in the name of the holding company and the proceeds of the convertible issuance went directly into the bank account of GTAT Corporation, an operating subsidiary.

We value the bonds at 60-70 in our base case scenario in which the court confirms the Apple Settlement. The settlement caps Apple’s claim against the company at $439mm and limits the claim to an operating company can that will sell the furnaces used for sapphire production. We model in $50M of value flowing back to the estate from the sale of furnaces. We value the core GT Advanced Solar businesses at $300mm.



Reorg Research - GSEs: Lamberth Opinion Dismissing Lawsuits Against FHFA, Treasury Deals Blow to Hedge Fund Case on HERA Jurisdiction

Reorg Research has actively covered the various GSE litigations ongoing in the District Court of the District of Columbia, the Court of Federal Claims, and Iowa. Using our technology, we were one of the first to break the dismissal filed by Judge Lamberth. More importantly though, we put out a comprehensive story and analysis that same night so our subscribing investors and traders across the distressed and event driven equity space were better informed than those trying to untangle the complicated opinion on their own.

Now that Perry has appealed the ruling (just hit the docket), we wanted to reproduce our review of the dismissal below. Enjoy!

Lamberth Opinion Dismissing Lawsuits Against FHFA, Treasury Deals Blow to Hedge Fund Case on HERA Jurisdiction

Relevant Documents:

Judge Royce Lamberth of the United States District Court for the District of Columbia granted the government motions to dismiss and denied the hedge fund plaintiffs' motions for summary judgment, brushing aside a class action lawsuit and three individual lawsuits with overlapping claims. 

The decision will most likely be appealed according to multiple sources. Both the D.C. District Court, where Judge Lamberth sits, and the D.C. Circuit Court, where the appeal will proceed, are highly respected around the country. While not binding on other jurisdictions, a final negative result for the funds could be highly precedential on other courts. 

Below are our initial impressions of the opinion, which will be augmented throughout the day tomorrow.


At heart of today’s opinion is a finding by Judge Lamberth that the bulk of the funds claims are barred by the Housing and Economic Recovery Act, or HERA. Specifically, the opinion concludes that HERA contains only an extremely narrow window for suits against FHFA as conservator. Rejecting the contention that even claims of “arbitrary and capricious” behavior by the FHFA are barred by HERA, Judge Lamberth concluded that the only types of declaratory relief that could survive HERA’s “express anti-injunction provision” are those premised on the FHA acting beyond the scope of its authority

Even construing the facts in the light most favorable to the funds, Judge Lamberth found that they could not allege that FHFA was acting beyond its authority. Importantly, he also found that FHFA’s subjective motivations are irrelevant in this inquiry. “The court must look atwhat has happened, not why it happened,” reads the opinion. (emphasis in original). Judge Lamberth also stresses that both sides are sophisticated 

Specifically on the critical question of FHFA’s authority, the opinion notes: “Of most relevance to the present litigation, HERA empowered FHFA, as conservator or receiver, to “immediately succeed to—(i) all rights, titles, powers, and privileges of the [GSE], and of any stockholder, officer, or director of such [GSE] with respect to the [GSE] and the assets of the [GSE].” Further, the HERA statute sets forth a limitation on court action that “may take any action to restrain or affect the exercise of powers or functions of [FHFA] as a conservator or a receiver.”

The opinion rejects claims by the funds that the conservatorship was a de facto liquidation and allegations that Treasury was improperly directing the FHFA. “The plaintiffs cannot transform subjective, conclusory  allegations into objective facts,” says Judge Lamberth.

Judge Lamberth finds that even claims that FHFA acted arbitrarily or capriciously are barred by HERA. He bases this on “a distinction between acting beyond the scope of the constitution or a statute, see § 702(2)(B) and (C), and acting within the scope of a statute, but doing so arbitrarily and capriciously, see § 702(2)(A).” Only the former allegations can proceed, and Judge Lamberth found (as noted above) that this simply could not be claimed on the facts put forward by the funds.

Factual Findings

Going even further than his legal conclusions, Judge Lamberth ties FHFA's actions as conservator to the GSEs recent profitability. Footnote 21 to the opinion reads: “Indeed, the GSE’s current profitability is the fundamental justification for the plaintiffs’ prayers for equitable and monetary relief. In other words, this litigation only exists because the GSEs have, under FHFA’s authority, progressed from insolvency to profitability.”

The Court also considered the technical aspects of the the government’s actions in regards to whether the Treasury purchased new securities through the Third Amendment. On this point, Judge Lamberth states that the Treasury’s authority as a market participant and the inherent sunsetting provisions (hold, exercise rights, sell) does not “preclude other non-security-purchasing activities otherwise permitted under an already agreed-upon, pre 2010 investment contract with the GSEs. To then say that the purchase authority sunset provision also categorically prohibits any provision within Treasury’s contracts with the GSEs that requires ‘mutual assent’ is to reach too far.”

Specifically, Lamberth writes  “the Court finds that Treasury did not purchase new securities under the Third Amendment. Under the Third Amendment—unlike the first two amendments—Treasury neither granted the GSEs additional funding commitments nor received an increased liquidation preference. Instead, Treasury agreed to a net worth sweep in exchange for eliminating the cash dividend equivalent to 10% of the GSEs’ liquidation preference. This net worth sweep represented a new formula of dividend compensation for a $200 billion-plus investment Treasury had already made. As FHFA further claims, the agency executed the Third Amendment to ameliorate the existential challenge of paying the dividends it already owed pursuant to the GSE securities Treasury purchased through the PSPA; it did not do so in order to sell more GSE securities.”

In regards to FHFA acting within its statutory authority, Judge Lamberth concludes that HERA gave “immense discretion” to the FHFA as conservator. Given the breadth of powers to the FHFA the Court’s decision is narrowed to the what instead of the why FHFA executed the Third Amendment. Specifically, “FHFA’s underlying motives or opinions—i.e., whether the net worth sweep would arrest a downward spiral of dividend payments, increase payments to Treasury, or keep the GSEs in a holding pattern” do not matter. 

Continuing: “However, when the Court is asked to determine whether FHFA acted beyond, or contrary to, its responsibilities as conservator under a statute that grants the agency expansive discretion to act as it sees fit, it is the current state of affairs that must weigh heaviest on this analysis. If the Third Amendment were really part of a scheme to liquidate the GSEs, then the GSEs would, presumably, be in liquidation rather than still be “immensely profitable.” Further, Lamberth notes that no precedent was cited stating that a net worth sweep is functionally equivalent to liquidation.

This follows then that claims for liquidation preference are not ripe. Specifically, “therefore, by definition, the GSEs owe a liquidation preference payment to a preferred shareholder only during liquidation. It follows that there can be no loss of a liquidation preference prior to the time that such a preference can, contractually, be paid. Here, the GSEs remain in conservatorship, not receivership, and there is no evidence of de facto liquidation.”

In an interesting footnote in relation to the ongoing debate of whether the GSEs could have pursued a PIK option in lieu of the Third Amendment, Judge Lamberth states that “the provision makes clear that 10% cash dividends were “required by” the stock certificates, and that 12% dividends deferred to the liquidation preference were only triggered upon a “failure” to meet the 10% cash dividend requirement. Thus, classifying the 12% dividend feature as a “penalty,” as Treasury does, is surely more accurate than classifying it as a “right.” 

Market Background

The plaintiff funds Perry Capital, Fairholme, and Arrowood who own either preferred or common stock in the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation - Fannie Mae and Freddie Mac, respectively. The plaintiffs had arguedthat the Federal Housing Finance Agency and U.S. Treasury exceeded their statutory authority under the Administrative Procedures Act and the Housing and Economic Recovery Act of 2008 when they made an amendment that required every dollar of GSE net worth above a certain amount to be paid to Treasury as a dividend. 

The common shares of the GSEs had been trading down steadily over the past month. Before the after-market-close decision, Freddie Mac quoted on the pink sheets under FMCC closed at $2.64 and Fannie Mae, FNMA at $2.69, down 7.37% and 6.6%, respectively compared with the previous day’s close. 

Other Legal Findings

Much of the opinion is devoted to HERA’s bar on declaratory judgment actions (which formed the bulk of the funds claims). Separately, today’s opinion addresses and rejects a number of other categories of claims:

Unconstitutional Taking: Regarding claims that the Third Amendment was an unconstitutional taking, Judge Lamberth found that plaintiffs can not allege a “cognizable property interest” because the funds took equity subject to “existing rules, understandings and background principles.” As such, Judge Lamberth notes the “specter of conservatorship” has long been part of the GSEs regulatory oversight. Further, according to the opinion, the funds “lack the right to exclude the government from their property.” (emphasis added). The GSEs are subject to “governmental control at the discretion of the FHFA’s director,” reads the opinion. 

Setting aside this legal bar, on the facts, Judge Lamberth finds “the plaintiffs cannot show that the Third Amendment rendered their prospects of receiving dividends any less discretionary than they were prior to the amendment.” All that holders were left with was the market trading value of the instruments, the opinion notes.

Derivative Suits: Per the opinion, HERA bars derivative claims against FHFA and Treasury because the D.C. Circuit has held that HERA transfers the ability to bring derivative suits to the FHFA as conservator or receiver of the GSEs. 

Judge Lamberth notes a narrow exception in the case law for allegations that FHFA acted with manifest conflicts of interest. But, he says, “[i]t is a slippery slope for the Court to poke holes in, or limit, the plain language of a statute, especially when, as here, the plaintiffs have not asked the Court to weigh in on the statute’s constitutionality. Therefore, the Court finds that HERA’s plain language bars shareholder derivative suits, without exception,” according to the opinion. 

In explaining why the exemption should not apply, the opinion states that “Treasury represented the only feasible entity— public or private—capable of injecting sufficient liquidity into and serving as a backstop for the GSEs within the short timeframe necessary to preserve their existence in September 2008.” 

Further, “a relationship-based conflict of interest analysis [] does not require the Court to ignore the harsh economic realities facing the GSEs—and the national financial system if the GSEs collapsed—when FHFA and Treasury executed the PSPAs in 2008. Courts, generally, should be wary of labeling a transaction with an investor of last resort as a conflict of interest,” the opinion reads. 

Breach of Contract: Additionally, plaintiffs’ claims requesting monetary damages for breach of contract, or breach of implied covenant of good faith and fair dealing claims were dismissed under certain threshold analyses. 

First, the opinion states the preference claims are not ripe. The opinion calls the analysis of the plaintiffs’ argument about the liquidation preference “uncomplicated.” The GSEs owe a liquidation preference payment to a preferred shareholder only during liquidation, and therefore “there can be no loss of a liquidation preference prior to the time that such a preference can, contractually, be paid. Here, the GSEs remain in conservatorship, not receivership, and there is no evidence of de facto liquidation.” The opinion sums up the point that since there’s no right to a liquidation preference during a conservatorship, the plaintiffs are “no worse off today than they were before the Third Amendment.” 

Second, the dividend claims fail to state a claim for which relief can be granted. The opinion points out that the dividends plaintiffs are claiming a “‘right’” that is “wholly dependent upon the discretion of the GSEs’ board …” and that there is no “absolute right to dividends.” In a footnote to the explanation, the court “expressly rejects the individual plaintiffs’ additional contention that the Third Amendment ‘effectively converted [Treasury’s stock] into common stock,’ which would ‘represent a distribution to the common shareholder ahead of and in violation of the contractual rights of Plaintiffs and other preferred shareholders.’” Another footnote says that the plaintiffs have not demonstrated that the FHFA acted in bad faith. 


The opinion concludes:

“It is understandable for the Third Amendment, which sweeps nearly all GSE profits to Treasury, to raise eyebrows, or even engender a feeling of discomfort. But any sense of unease over the defendants' conduct is not enough to overcome the plain meaning of HERA's text. Here, the plaintiffs' true gripe is with the language of a statute that enabled FHFA and,  consequently, Treasury, to take unprecedented steps to salvage the largest players in the mortgage finance industry before their looming collapse triggered a systemic panic. Indeed, the plaintiffs' grievance is really with Congress itself. It was Congress, after all, that parted the legal·seas so that FHFA and Treasury could effectively do whatever they thought was needed to stabilize and, if necessary, liquidate, the GSEs. Recognizing its role in the constitutional system, this Court does not seek to evaluate the merits of whether the Third Amendment is sound financial--or even moral-policy. The Court does, however, find that HERA's unambiguous statutory provisions, coupled with the unequivocal language of the plaintiffs' original GSE stock certificates, compels the dismissal of all of the plaintiffs' claims.”



hunter [at] distressed-debt-investing [dot] com

About Me

I have spent the majority of my career as a value investor. For the past 8 years, I have worked on the buy side as a distressed debt and high yield investor.