Confirmation Denial: Where We Are; Part 2
Like every other equity holder I'm thrilled about last week's rulings, notwithstanding the court's decision to support the GSA.
I've been thinking about the decision and am convinced that the court's view that despite Stern she has authority to compromise certain claims in the GSA is erroneous. As the Willkie article points out she cites as authority (1) "established historical practice, currently recognized by Federal Bankruptcy Rule 9019, which is based on a similar provision of the Bankruptcy Act [and (2)] section 1123(b)(3)(A) of the Bankruptcy Code, which states that a plan may provide for the settlement of any claim or interest, and further explained that confirmation of such a plan is within the Court’s core jurisdiction."
Her arguments are specious because she derives her power from Congress and Congress does not have jurisdiction over many of the types of claims the GSA envelopes. I can understand why Walrath is 'fighting' for her jurisdiction. The Supreme Court called the decision narrow, but it really isn't given what the court says about common law claims being the exclusive property of Article III courts. Walrath (and, doubtless, other bankruptcy courts) will seize on the word 'narrow' and proceed in rendering rulings until stopped by higher courts.
My guess is that TPS will appeal Walrath's interpretation of Stern; I don't think they will just sit pat and accept her holdings.
My other impression, which I think is shared by many here, is that the court is committed to resolving this mess with a true global understanding; hence her extraordinary pressure on the SNs. I also sense that she knows Weil is dirty (hence the sidelining of Weil) but isn't willing to blow up the case at this point. Either the SNs will give up value or it will be taken from them. What they yield, plus the value of the reorganized company will be for equity. Once value breaks through to equity I anticipate the EC threatening to propose a plan of its own since it will certainly have the power to reject v. 6. The price it will demand for keeping v.6 will be that JPM and the FDIC surrender value to the waterfall: specifically the tax refunds and, probably, JPM's assumption of TPS.
These demands are not unreasonable. The tax refunds don't appear on JPM's books (never have), so that money isn't coming out of Dimon's shareholders' pockets. As for assuming TPS, I understand these securities were previously protected by about $13B in mortgages. If that's so, even with refinancing at, say, 5%, JPM would generate $650MM annually, and assuming $4B in TPS @ about 8% is only $320MM.
If these concessions are the only impediments to a true GSA the court will probably nudge (if not shove) JPM because if the GSA is extinguished, so is her authority to compromise the underlying claims that she admits she can't adjudicate. Moreover, if the GSA dies the EC would be in a position to demand declaratory rulings on both the $4B deposit and the $6B or so in tax refunds because Stern does not defeat her jurisdiction over those issues. If the EC wins on both or on the $4B and most of the tax refunds, with the estate's obligations diminished by the SNs' disallowance (or settlement through mediation) and its resources increased by the FJR, the EC can cram down its plan anyway, and that plan would NOT include a compromise of the D.C. litigation against the FDIC and the business torts against JPM.