The Municipal Bond Cases Revisited

Link: http://blogs.harvard.edu/bankruptcyroundtable/2021/06/01/the-municipal-bond-cases-revisited/

Graphic:

Excerpt:

The invocation of ultra vires to escape bond obligations is nothing new, though. In the second half of the nineteenth century, municipal debtors frequently welched on their debts. In the 1850s and 1860s, cities, towns, and counties across the Midwest and West issued bonds to finance the construction of railroads and other infrastructure. Many ultimately defaulted. Rather than simply announce that they couldn’t or wouldn’t pay, however, they often contended that they needn’t pay: for one or another reason, the relevant bonds had been issued ultra vires and so were no obligation of the municipality at all. Litigation in the federal courts was common. Several hundred repudiation disputes made their way to the Supreme Court in the forty years starting 1859.

With an eye to the modern cases, we set out to understand how the Court reckoned with repudiation. We read every one of the 196 cases in which the Justices opined on bond validity (i.e. the enforceability of a bond in the hands of innocent purchasers). In a recently published article, we correct received wisdom about the cases and remark on the logical structure of the Court’s reasoning.

To the extent the municipal bond cases are remembered, modern scholars usually think of them as exemplary instances of a political model of judging. The caricature has the Court siding with bondholders even when the law called on them to rule for the repudiating municipalities. The Justices—or a majority of them—are imagined as staunch political allies of the capitalist class, set against the institutions of state government and their regard for agricultural interests. We find that this picture is inconsistent with reality. In fact, the Court ruled for the repudiating municipality in a third of all the validity cases. As importantly, the Court’s decisions reflected a readily articulable formal logic, a logic the Justices seem, to our eyes, to have applied soundly.

Paper link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3699633

Citation: Buccola, Allison and Buccola, Vincent S.J., The Municipal Bond Cases Revisited (September 25, 2020). 94 American Bankruptcy Law Journal 591 (2020), Available at SSRN: https://ssrn.com/abstract=3699633

Abstract

Recent high-profile attempts to repudiate municipal bonds break from what had become a stable American norm of honoring public debt. In the nineteenth century, though, hundreds of cities, towns, and counties walked away from their bonds. The Supreme Court’s handling of repudiation in the so-called municipal bond cases conjured intense animus at the time. But the years as well as the archaic prose and sheer volume of the opinions have obscured the cases’ significance.

This article reconstructs the bond cases with an eye to modern disputes. It reports the results of our reading all 203 cases, decided 1859–1899, in which the Justices opined on bond validity. At a high level, our findings correct a stock narrative in the literature. The standard account paints the Court as a reliable champion of northeastern capitalists in what resembled regional or class politics more than law. That story does not withstand scrutiny, however. We find, for example, that the Court ruled for the repudiating municipality about a third of the time. Moreover, the decisions had a readily articulable logic at the heart of which lay a familiar law/fact distinction. Estoppel barred issuers in most instances from denying factual predicates of bond validity, but it did not prevent scrutiny of legal predicates. The Justices were willing to hold bonds void on even highly technical legal grounds.

Author(s): Allison Buccola (Independent) and Vince Buccola (Assistant Professor, The Wharton School)

Publication Date: 1 June 2021

Publication Site: Harvard Law School, Bankruptcy Roundtable

Hard Lessons From the Coming Public Pension Plan Shortfall

Link: https://www.thestreet.com/investing/hard-lessons-from-the-coming-public-pension-plan-shortfall

Excerpt:

I predict that state and local government balance sheets, already reeling from the pandemic, will be devastated in coming years by the stock and bond markets’ disappointing returns.

That’s because these governments’ pension plans are based on unrealistic assumptions about how those markets will perform in the future, and are therefore woefully underfunded. In fact, even with their optimistic assumptions, those funds are already underfunded. Their “actuarial funded ratio” (the ratio of the actuarial value of their assets to the actuarial value of their liabilities) is just 71.5% currently.

These plans are hoping to make up their actuarial deficits by earning outsized investment returns. I’m willing to bet their earnings instead will fall far short of historical averages, and they will have to make up the shortfall either by raising taxes, cutting services, or declaring bankruptcy.

Author(s): Mark Hulbert

Publication Date: 25 May 2021

Publication Site: The Street

Ambac files motion to compel documents from actuary – Puerto Rico pensions

Document Link: https://drive.google.com/file/d/1-lIsmyzEIiDvYXnYJtWw5kaCI25euLFk/view

Snippet:

Date Accessed: 21 April 2021

Shared by: Cate Long

Publication Site: Twitter and Google Drive

Singing River retirees file new lawsuit over failed pension. ‘It’s not fair,’ nurse says

Link: https://www.sunherald.com/news/local/counties/jackson-county/article250528304.html

Excerpt:

Singing River Health System retirees are learning to live on lower pensions than they expected as attorneys continue to press for financial damages from companies they believe are responsible.

A new lawsuit has been filed over the 2014 failure of the SRHS retirement plan, which caught hundreds of retirees and employees by surprise. Biloxi attorney Jim Reeves is suing accounting firm KPMG LLC and Transamerica Retirement Solutions on behalf of 272 members of the retirement plan.

Reeves said in a news release that the companies were paid “hundreds of thousands of dollars to help manage and audit the pension plan and to accurately communicate the status of the plan to members.”

Author(s): Anita Lee

Publication Date: 12 April 2021

Publication Site: SunHerald

Puerto Rico debt restructure plan threatens public pensions

Link: https://thehill.com/homenews/state-watch/542318-puerto-rico-debt-restructure-plan-threatens-public-pensions

Excerpt:

A federal control board created by Congress to address Puerto Rico’s debt on Monday filed a restructure plan that threatens a 10-percent cut to public pensions without any deal with retirees.

The board presented a 233-page plan that would reshuffle at least $35 billion in public debt and more than $50 billion in public pension liabilities, The Associated Press reported.  

The proposal, which was filed in U.S. court, includes an up to 8.5 percent cut to monthly pensions of at least $1,500 to help the territory deal with the biggest U.S. municipal bankruptcy filing in history. The board said it received “substantial” support for the plan from creditors, specifically those who have more than $13 billion worth of bonds.

Author(s): Justine Coleman

Publication Date: 9 March 2021

Publication Site: The Hill

Puerto Rico Gov Rejects Pension Cuts in POA

Link: https://www.theweeklyjournal.com/politics/puerto-rico-gov-rejects-pension-cuts-in-poa/article_e661e724-80f7-11eb-ace6-7b42750d090c.html

Excerpt:

Puerto Rico Gov. Pedro Pierluisi reiterated his stance against the pension cuts outlined in the government’s Plan of Adjustment (POA), presented last night by the Financial Oversight and Management Board (FOMB) before the Title III Court.

“My administration has been emphatic that this cut to pensions is not reasonable and it is not necessary to confirm the Adjustment Plan, so we will leave it established in the confirmation process before the Title III Court,” Pierluisi said in written statements.

The POA is based on the agreements previously reached by FOMB with the Official Committee of Retirees (ORC) and other unions, for which it envisions a reduction of 8.5 percent in the pensions of government retirees who earn more than $1,500 per month, as stipulated by the past POA. This represents between 26 percent and 27 percent of all pensioners.

Publication Date: 9 March 2021

Publication Site: The Weekly Journal

Puerto Rico files debt-restructuring plan amid criticism

Link: https://www.nbcnews.com/news/latino/puerto-rico-files-debt-restructuring-plan-criticism-rcna375

Excerpt:

 A framework that outlines how Puerto Rico will restructure at least $35 billion in public debt and more than $50 billion in public pension liabilities threatens a 10% cut to public pensions if no agreement is reached with retirees.

The amended plan of adjustment of 233 pages was filed late Monday in U.S. court by a federal control board that oversees Puerto Rico’s finances and was created by Congress to lift the U.S. territory’s government out of bankruptcy.

The plan includes a proposed cut of up to 8.5% to monthly pensions of at least $1,500. That has long been a point of contention between the board and the governor, who has repeatedly said he would not approve such cuts.

Author(s): Associated Press

Publication Date: 9 March 2021

Publication Site: NBC News

Deal reached to cut Puerto Rico bond debt, pensions a sticking point

Link: https://www.reuters.com/article/usa-puertorico-bankruptcy/deal-reached-to-cut-puerto-rico-bond-debt-pensions-a-sticking-point-idUSL1N2KT1WO

Excerpt:

Puerto Rico would substantially reduce its core government debt load under a new deal announced on Tuesday, but obstacles remain for the U.S. territory’s exit from bankruptcy. The island’s federally created financial oversight board said its agreement with certain bondholders was a major step toward resolving the bankruptcy, which began in 2017 in an effort to restructure about $120 billion of debt and other liabilities, including unfunded pensions.

“I’m hopeful that people over time will understand this is likely to be the most fair and confirmable resolution to exit bankruptcy,” Natalie Jaresko, the board’s executive director, told reporters.

The deal will be included in a plan of adjustment the board expects to file in March in federal court, with the hope of court approval in the fall.

Author(s): Karen Pierog

Publication Date: 23 February 2021

Publication Site: Reuters

Puerto Rico governor rejects key deal with creditors to reduce debt due to pension cuts

Link: https://www.nbcnews.com/news/latino/puerto-rico-governor-rejects-key-deal-creditors-reduce-debt-due-n1258610

Excerpt:

The impasse between the governor and a board that oversees Puerto Rico’s finances threatens to throw into limbo attempts to end a bankruptcy-like process for a government that six years ago declared unpayable its more than $70 billion public debt load.

The deal was reached with creditors who hold general obligation bonds and Public Building Authority bonds sold by Puerto Rico’s government and would resolve $35 billion worth of debt and non-debt claims, according to the board. It also would reduce debt held by those creditors from $18.8 billion to $7.4 billion, a 61 percent reduction, and would provide them with $7.4 billion in bonds and $7 billion in cash, among other things.

The board said the deal would free up more than $300 million a year for government services, and that instead of 30 cents for every dollar in taxes and fees that Puerto Rico’s government collects going to creditors, it would be less than 8 cents.

Author(s): Associated Press

Publication Date: 23 February 2021

Publication Site: NBC News

Puerto Rico Bonds, MBIA Stock Jump on Restructuring Settlement

Link: https://www.wsj.com/articles/puerto-rico-bonds-mbia-stocks-jump-on-restructuring-settlement-11614179542

Excerpt:

A settlement between creditors in Puerto Rico’s bankruptcy case lifted prices of the commonwealth’s municipal bonds and shares of insurance companies that guaranteed payments on the bonds.

Traders have driven up prices of the island’s benchmark $3.5 billion general obligation bond due 2035 by 3.3% to around 78 cents on the dollar after the Tuesday deal removed one of the last logjams in Puerto Rico’s nearly four-year journey through bankruptcy court. Roughly $400 million face amount of the bond changed hands Tuesday and Wednesday, making it one of the most actively traded securities in the municipal-bond market, according to data from Electronic Municipal Market Access.

Shares of the insurers that guaranteed payments on billions of dollars of Puerto Rico’s defaulted bonds also rose as the settlement removed some uncertainty about the amount of claims they would need to pay. MBIA Inc.’s stock has jumped around 13% this week, while Ambac Financial Group Inc.’s shares have gained about 7.2%.

Author(s): Matt Wirz

Publication Date: 24 February 2021

Publication Site: Wall Street Journal

Joint motion filed in St. Clare’s pension case

Excerpt:

It’s been a little over two years since 1,100 former St. Clare’s health care workers learned they were no longer receiving their pensions.

The legal battle continues, after a lawsuit has been filed against the Albany Roman Catholic Diocese, the St. Clare’s Corporation, and two local bishops.

Attorney General, Letitia James, is also launching a separate investigation. But now, a joint motion has been filed between the lawyers working on behalf of the pensioners and the Attorney General’s Office to compel the defendants to produce documents and information.

Author(s): Jamie DeLine

Publication Date: 16 February 2021

Publication Site: ABC News 10

NY Hedge Fund Founder Admits To Fraud In Connection With Neiman Marcus Bankruptcy

Link: https://dailyvoice.com/new-york/northsalem/news/ny-hedge-fund-founder-admits-to-fraud-in-connection-with-neiman-marcus-bankruptcy/802716/

Excerpt:

A hedge fund founder admitted to bankruptcy fraud for abusing his position on a Neiman Marcus Group Inc. bankruptcy committee to purchase securities at a deflated price.

Nassau County resident Daniel Kamensky, of Roslyn, the founder of the New York-based hedge fund Marble Ridge Capital pleaded guilty to pressuring a rival bidder to abandon its higher bid for assets in connection with Neiman Marcus’s bankruptcy proceedings.

U.S. Attorney Audrey Strauss said that Kamensky was the principal of Marble Ridgewhich had assets under management of more than $1 billion that invested in securities in distressed situations, including bankruptcies. Prior to opening Marble Ridge, Kamensky worked for many years as a bankruptcy attorney at a well-known international law firm, and as a distressed debt investor at prominent financial institutions.

Author(s): Zak Failla

Publication Date: 7 February 2021

Publication Site: Daily Voice