There's a fascinating and absolutely cut-throat fight going on between BofA and MBIA. There's been some good media coverage of how a litigation fight over MBS fraud has spilled over into a really nasty corporate finance battle. I think it shows yet another danger of too-big-to-fail firms: ?they can adopt litigation tactics that others simply can't in order to avoid liability. ?Put another way, the lesson I take from this fight is that if you get into bed with a too-big-to-fail firm on a business deal, don't expect the law to protect you if things go badly. Even if the law and the facts are on your side, that doesn't mean you can beat a too-big-to-fail firm in court. Contracting with a too-big-to-fail firm is not like contracting with a regular firm. It's more like contracting with a sovereign. If you put your head into the Leviathan's jaws, well, ask Siegfried & Roy how well that worked out... ?
The rather long post below gives an overview of the litigation and corporate finance machinations, before a trio of bigger picture observations about inter-creditor duties, empty-creditors, and the private-label securitization market's denial of its lemons problem. ?
OK, here's the story as I've pieced it together. You can get a lot of this from the press coverage, but I'm hoping that my presentation of the story, which has some surmises and fleshes out some points that aren't discussed in the media coverage, will be of interest to a legal audience. ?For academics, I think this is a really neat case study for a corporate finance class.During the bubble years MBIA insured lots of Countrywide MBS. ?Not a good idea. MBIA has already paid out a lot of money on the policies, and there's a lot ($6B?) of liability left. ?MBIA claims that it was duped into insuring the MBS: ?it alleges material misrepresentations about the quality of the loans it was insuring. MBIA has been suing Countrywide (BofA) to recover for the money it's paid out and rescind the remaining coverage, which I gather exposes BofA to some sort of liability. (I assume the coverage was on the MBS, so maybe the MBS investors could then sue BofA, but maybe Countrywide is itself the insured party.)?
MBIA's exposure on the MBS led to it being downgraded and unable to underwrite new municipal bonds because a poorly-rated insurer is hardly an attractive credit enhancement for a muni bond. MBIA's solution was to split its insurance business into two insurance companies: ?a structured products insurer which retained the liability for the MBS and a municipal bond insurer with a common parent holding company. My impression is that these two units have an ultimate common parent, but are ring-fenced insurance companies; I do not think funds can be easily shifted from one unit to the other (and doing so would threaten the muni insurer's business). MBIA's regulator approved the move, but it's been challenged by BofA among others. ?
It seems that BofA's basic strategy is to drag things out to force a settlement. ?But this isn't just any delay strategy to increase the costs of litigation. ?BofA seems determined to wait out MBIA's liquidity and threatens MBIA with collapse unless it settles. There are two parts to this strategy.
First is to litigate the spin-off of the muni bond unit. If MBIA isn't able to divide its muni bond business from its structured finance business, it will presumably be unable to write new business and go broke for lack of liquidity. Thus, threatening to unwind the division of the muni business from the structured finance business is a way of trying to force MBIA to settle the litigation over the Countrywide MBS on the cheap.
The second part of the strategy is to drag out the litigation for a long time, which has been draining MBIA's liquidity from the structured finance unit. If the structured finance unit runs too low on cash, it will end up in an insurance receivership. MBIA, however, isn't able to amputate this individual subsidary. There are cross-default clauses in the bonds issued by the parent holding company that would be triggered by a regulatory seizure of the structured finance unit. ?So if the sub goes into receivership, there'd be an acceleration of the parent's debt and the parent would have a liquidity crisis that would probably result in the company's collapse. ?
MBIA decided to make an exchange offer on those bonds to try to free the parent from the cross-default clause risk: ?MBIA is offering to purchase its old bonds with a cross-default clause that would be triggered by the structured products unit in exchange for new bonds that are worth 1% of the par value of the old ones, but with a cross-default clause linked to the municipal bond unit. ?If MBIA could pull off the exchange offer, it would get some breathing room to continue its fight with BofA about the insurance on the Countrywide MBS. ?
BofA is playing hardball, however. ?BofA has launched a tender offer for the MBIA bonds, not at 1% of par, but at 100% of par. That's an offer that's going to be hard to resist (although I suspect BofA would actually be willing to pay more than par for the bonds). ?That will let BofA continue to put the squeeze of MBIA's liquidity. ?MBIA's stock has plunged in response to the BofA tender offer. I'm a bit confused by this since all that the tender offer will accomplish is to put MBIA in the liquidity position it had prior to its exchange offer. It won't be in a worse position. To be sure, MBIA won't have the option of trying a later exchange offer if BofA owns all the bonds, but I don't see a material change in MBIA's liquidity position as a result of BofA's tender offer that would justify the stock sell-off. But maybe I've missed something. ?
And the cherry on top? ?There's speculation that BofA has taken out CDS protection on MBIA, so that not only will it avoid liability in the MBS litigation, but BofA might actually make some money if MBIA collapses. ?Vicious stuff. ?Financial law of the jungle. ?
OK, now for some observations.
(1) What, if anything, can MBIA do to push back against BofA? Not clear to me. I don't think BofA owes any duty to MBIA or to MBIA's other bondholders currently, so I don't think the tender offer itself is a legal problem from a corporate law standpoint. ?Once BofA becomes a bondholder, it is unlikely to be found to have duties vis-a-vis other bondholders, although someone might make such an argument. (Note how things might look different if this played out in bankruptcy...). ?Maybe there's a contract or tort argument to be found--some sort of general unfair trade practice hook or perhaps tortious interference with contract. (Which contract? Take your pick--the muni bond insurance contracts, the other bondholders' contracts, etc.). ?Maybe an enterprising attorney figures out how to pull a Joe Jamail on BofA. But I don't see an obvious legal parry here. Maybe others do. But it speaks to a potential problem in corporate law of inter-creditor relationships not being policed, even when they get really nasty. ??
(2) This is an empty-creditor problem variant. ?BofA is willing to pay perhaps 100x the market value of the bonds because overspending on the bonds may well save it a lot more money vis-a-vis its litigation interest with MBIA. ?So BofA is willing to take a position that is way long on the bonds because it is really ultimately short on MBIA. ?
This is a neat version of Black & Hu's empty-creditor problem. ?Here we are able to see both BofA's long interest and its short interest. ?But often we are only able to see half of the equation. ?Imagine that this scenario were playing out in bankruptcy. ?A hedge fund buys up a large position in the bankruptcy claims, and then pushes for liquidation, even though liquidation will result in less value for the hedge fund than a reorganization. ?If it turns out that the hedge fund has another position on the debtor, say a bunch of total return swaps or an interest in the debtor's competitor--its short position outside of the bankruptcy might outweigh its creditor interest in the bankruptcy. ?This is hardly new--we've seen this issue in Dish Network--but it's rare to see it tee'd up so starkly outside of bankruptcy. ?
(3) Ending the Lemons Market. ?The way this litigation is playing out is another indication of how poorly designed MBS were. MBS were designed with the assumption that everything worked out hunky-dory. These deals were not designed to deal with problems, be they borrower defaults or large scale non-compliance on underwriting. The monoline insurers like MBIA are actually in a better position than the MBS investors who have been generally screwed.?
A large part of the securitization industry still seems in deep denial that anything went wrong. Part of this is that the sell-side firms are completely implicated in causing the problems--they can't really admit them. Yes, there's some grudging admission that things didn't work out well, but there hasn't been acceptance that the industry is fundamentally tilted to protect the sell-side at the expense of the buy-side. ?Deal design is really a function of the industry sell-side, but unless the sell-side is willing to redesign deals so that they provide credible protections for investors and insurers--the buy-side--I just don't see this market restarting beyond the rare Redwood deal. Maybe this speaks to the need for the buy-side to be much, much more involved in product design. ?But the buy-side buys lots of things, not just MBS, so there's no reason to invest in MBS deal design.
Bottom line, the private-label residential mortgage securitization industry needs to recognize that it is a lemons market in a bunch of different dimensions: ?underwriting, servicing, legal documentation, legal recourse. Lemons markets die. If this market is going to be resurrected--and I think it has social value and should be resurrected--it needs to really clean house and rebalance the interests of sellers and investors.?
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