As I previously posted, this semester I’m co-teaching a seminar with an old law school friend, Tanya Marsh (well, seminar-ish – we ended up with 17 students) on the financial crisis.

A couple of weeks ago, I dedicated a class to the concept of “regulation by deal” – inspired Steven Davidoff Solomon and David Zaring’s article with that title.  We talked about how Treasury and the Fed used dealmaking approaches to save individual firms, and thus the economy as a whole, and the corporate law issues that the government’s approach raised (lots of great inspiration also came from Marcel Kahan and Edward Rock’s When the Government is the Controlling Shareholder).  I assigned excerpts of the Regulation by Deal article, as well excerpts from the complaint filed by Fannie & Freddie shareholders, the AIG complaint, and the SIGTARP report on AIG’s payments to counterparties.  We also talked about the mergers between JP Morgan and Bear Stearns, and between Bank of America and Merrill Lynch.

Well, it was lucky timing, because that class – by sheer happenstance – was scheduled just before the AIG trial began, and then earlier this week, the Fannie & Freddie complaint was dismissed.  So now I have even more to talk about with the students.

One point I see in a lot of the commentary on the AIG trial is that the shareholders’ claims are pretty weak, but at least the trial itself will shed some light on one of the unanswered questions about the crisis, namely, why did Geithner and the NY Fed agree to pay AIG’s CDS counterparties 100 cents on the dollar, instead of demanding that they take a haircut?  I.e., one of AIG's major problems was that it had sold credit default swaps (CDS) on mortgage-backed assets held by a number of banks – it had sold insurance, essentially, against a drop in value of those assets.  AIG promised to pay out if those assets failed.  And when asset values began falling, the counterparties demanded that AIG post collateral – and those demands contributed to AIG's liquidity crisis.  To solve that problem, the NY Fed bought the assets underlying the CDS contracts – allowing the counterparties (banks like Goldman Sachs, Morgan Stanley, etc) to collect 100 cents on the dollar for assets that were, at the time, pretty toxic. 

This is, of course, the subject of the SIGTARP report, which concluded that the decision was not particularly well thought out, but was essentially foreordained by the NY Fed’s own self-imposed restrictions on its behavior, which limited its ability to apply any leverage in negotiations.

Among other things, the NY Fed was uncomfortable using its status as regulator to extract concessions on the CDS contracts when it was acting as a creditor of AIG, a more “private” sort of role. 

(Also, the phrase phrase “sanctity of contracts” appears so many times in the SIGTARP report that I wondered if I was going to start seeing graven idols.  But that’s me.)

The problem, of course, was that the NY Fed refused to use its regulatory power while wearing its "private creditor" hat, but at the same time, it also refused to truly behave as a private creditor – making it neither fish nor fowl.  For example, a private actor might have threatened bankruptcy – which the NY Fed was unwilling to do because, in its role as regulator, it could not allow AIG to declare bankruptcy.  A private actor would have been fine with striking different deals with different counterparties – which again, the NY Fed as regulator was unwilling to do, allowing any one counterparty to veto deals with the others.

And perhaps even more strikingly to me as a former litigator, the NY Fed also agreed not to sue any of the counterparties for fraud/misrepresentation.  That doesn’t strike me as anything like what a private actor would have done – which we know for a fact, given lawsuits filed by entitles like MBIA and Syncora.  A private actor could have at least demanded concessions in exchange for not filing a lawsuit – claiming, say, that the counterparties misrepresented the quality of the mortgages backing the assets – and dragging the matter out in court for years.  But the last thing the NY Fed as regulator wanted was that kind of publicity.

Anyway, however it shakes out, it'll make for a fun follow-up class.

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Photo of Ann Lipton Ann Lipton

Ann M. Lipton is Tulane Law School’s Michael M. Fleishman Professor in Business Law and Entrepreneurship and an affiliate of Tulane’s Murphy Institute.  An experienced securities and corporate litigator who has handled class actions involving some of the world’s largest companies, she joined …

Ann M. Lipton is Tulane Law School’s Michael M. Fleishman Professor in Business Law and Entrepreneurship and an affiliate of Tulane’s Murphy Institute.  An experienced securities and corporate litigator who has handled class actions involving some of the world’s largest companies, she joined the Tulane Law faculty in 2015 after two years as a visiting assistant professor at Duke University School of Law.

As a scholar, Lipton explores corporate governance, the relationships between corporations and investors, and the role of corporations in society. Read More