Documents At End of AIG Bailout Testimony Could Aid Greenberg

By and | November 24, 2014

The Federal Reserve Bank of New York’s legal advisers sought to devise ways to avoid accountability to shareholders in the 2008 bailout of American International Group Inc., according to evidence introduced at the end of trial testimony over terms of the rescue.

“We succeeded in finding a structure that allows the trust to gain control of the company without shareholder votes,” John Brandow, an outside lawyer for the Federal Reserve Bank of New York, wrote in one of the documents summarized in the trial of ex-AIG chairman Maurice Greenberg’s lawsuit against the U.S.

In another document, an unidentified federal official expressed concern that the New York Fed’s outside counsel, Davis Polk & Wardwell LLP, is “revising history and giving self- interested advice” regarding a shareholder suit against the bailout filed in Delaware in late 2008.

The documents were among more than 30,000 previously off- limits records linked to communications between the New York Fed and outside lawyers that U.S. Court of Federal Claims Judge Thomas Wheeler ordered the government to turn over to Starr.

Wheeler ruled the New York Fed had forfeited its right to keep attorney-client communications confidential because of the way government lawyers questioned Marshall Huebner, a Davis Polk lawyer advising the reserve bank.

75 Days

At the end of testimony yesterday, Wheeler, who is hearing the case without a jury, gave both sides 75 days to file papers summarizing conclusions of law in the eight-week trial.

He didn’t set a date for closing arguments.

Greenberg’s Starr International Co. alleges the government imposed illegally harsh terms on AIG for an $85 billion loan, including 14 percent interest and a demand for 80 percent of the company’s stock.

The government argued that it had authority to demand equity and that the bailout was voluntarily agreed to by the AIG board as a preferable alternative to bankruptcy.

Greenberg was on the government’s witness list for this week, but wasn’t called.

Bailout’s Masterminds

The trial did feature testimony by the bailout’s masterminds, former Treasury Secretary Henry Paulson, ex-Federal Reserve Chairman Ben Bernanke and Timothy Geithner, the former Treasury secretary who was president of the New York Fed in 2008.

All of them testified that the U.S. rescued AIG to avert catastrophic damage that would result if the insurer went bankrupt and took many of the world’s largest banks — its clients — with it.

Huebner, of Davis Polk, figured in one of the recently disclosed documents, an e-mail on Sept. 23, 2008, to Thomas Baxter, the top lawyer for the New York Fed. In it, Huebner writes of “the real joy” that will come when the government collects tens of billions of dollars in fees and interest on the loan.

Boies used the correspondence to try to show that instead of being a hedge against risk as the government argued, the stiff costs of the loan were an attempt to make money on the transaction.

‘Paid Back’

Baxter “doesn’t disagree with what Mr. Huebner said about the likelihood of getting paid back with ten plus, plus, plus billion dollars in fees and interest,” does he?, Boies asked, reading from the e-mail in a Nov. 20 cross-examination of Anthony Saunders, a government expert witness on financial aspects of the bailout deal.

“Well, I can’t say,” Saunders replied.

Starr’s suit seeks at least $25 billion, although the company presented expert witness testimony putting the harm at $40 billion.

The initial loan grew to $182 billion. AIG returned to profitability and repaid the assistance in 2012, leaving the government with a $22.7 billion profit.

Starr’s Allegations

Much of the trial focused on Starr’s allegations that the government coerced the AIG board into accepting the bailout and exercised control of the company at key moments afterward.

Those elements are crucial to Starr’s claim the government took shareholders’ property without just compensation, in violation of their Fifth Amendment rights under the U.S. Constitution.

In one exchange intended to show government influence over AIG, Boies elicited testimony from Sarah Dahlgren, the New York Fed’s monitor of the insurer after the bailout, that regulators won the company’s agreement to screen sensitive documents such as regulatory filings after it mischaracterized the terms of the bailout in a Securities and Exchange Commission filing, and had to correct it.

Starr’s suit alleged the government gave favored terms to investment banks and wanted control of AIG to facilitate a “back-door bailout” of Goldman Sachs Group Inc. and other financial institutions that were the insurer’s counterparties.

Goldman Sachs

Boies sought to show that Goldman Sachs officials or alumni picked a new chief executive officer for AIG, Edward Liddy, a member of the New York-based bank’s board, after the government forced out the previous CEO, Robert Willumstad.

A fundamental question at the heart of the case — whether the government had the power to demand stock as a condition of the loan — was largely covered in the trial’s first two weeks, during testimony by the top lawyers for the Fed and the New York Fed, and by Paulson, Geithner and Bernanke.

In a preliminary ruling in the case in 2012, Wheeler wrote that he didn’t accept the government’s position that the Fed’s emergency powers allowed it to demand stock from a company.

Under questioning by a government lawyer, Scott Alvarez, the general counsel for the Fed testified that he concluded the board of governors could empower a reserve bank “to extend credit and in giving that authorization can set whatever limits and restrictions and rules the Federal Reserve Board believes is appropriate,” including demanding equity.

The emergency powers clause at issue doesn’t specifically mention equity, only that that Fed can set an interest rate for emergency lending.

According to a Starr filing yesterday, the documents Wheeler ordered the government to turn over include correspondence showing that regulators doubted their authority to demand stock as part of the loan deal,

“The government is on thin ice and they know it,” a Davis Polk lawyer wrote to colleagues. “But who is going to challenge them on this ground?”

The case is Starr International Co. v. U.S., 11-cv-00779, U.S. Court of Federal Claims (Washington).

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