Just before midnight on Monday, Weil, Gotshal & Manges
filed the seventh amended plan of reorganization for Washington
Mutual Inc, the bankrupt onetime parent of WaMu Bank. The
seventh time may just be the charm for WMI -- according to the
accompanying disclosure statement, everyone is now on the
reorganization bandwagon, including, for the first time in this
three-year case, the equity holders. As you may recall, WMI
equity holders and their lawyers at Susman Godfrey have until
now stood staunchly in the way of WMI's reorganization. In the
new plan, equity holders will receive an additional $75
million, which WMI senior and subordinated bondholders are
kicking into the company that will emerge from Chapter 11 and
will be owned by shareholders of the old WMI.
That $75 million sweetener, plus a $125 million credit
facility the reorganized company can tap (and some smaller
enhancements as well), is the result of a stunning ruling the
equity committee won in March from Delaware federal bankruptcy
judge Mary Walrath. Walrath refused to confirm WMI's previous
plan because she found shareholders had a colorable claim that
four distressed-debt hedge funds had engaged in insider trading in WMI subordinated notes. The equity committee asserted a
claim for "equitable disallowance," arguing that the hedge
funds learned about progress in WMI's settlement talks with
JPMorgan Chase from their lawyers, and then traded on the basis
of that information. The judge concluded that Susman Godfrey
had presented sufficient evidence that the funds "acted
recklessly in their use of material nonpublic information" to
keep alive the shareholders' claim.
The four funds -- Aurelius, Owl Creek, Appaloosa, and
Centerbridge -- didn't think much of Walrath's reasoning. In
scathing briefs requesting leave to appeal, the hedge funds
said the judge had ignored the facts and misinterpreted federal securities laws. "The absence of any legal support for the
bankruptcy court's decision is palpable," three funds asserted
in a joint brief.
So how much were the equity committee's claims against the
funds worth? Based on the new disclosure statement, less than
$30 million. The hedge funds own about 80 percent of senior
subordinated WMI debt, according to analyst Kevin Starke of CRT
Capital Group. Subordinated debt holders are contributing $35
million of their WMI recovery to the reorganized company to be
owned by old WMI shareholders. So the hedge funds' share is
about $29 million, according to Starke. (The funds are also
backing the $125 million credit facility cited in the
disclosure statement.)
Senior noteholders are contributing the other $40 million
of the $75 million equity committee sweetener. But as Starke
points out, that's proportionally much less than the
subordinated noteholders; $40 million is just under 1 percent
of the senior noteholders' projected recovery, while
subordinated debt holders are giving up a little more than 2
percent of their recovery.
Starke said the equity committee, which will own a company
capitalized with a total of $285 million when WMI emerges from
Chapter 11, should be satisfied with the $75 million
enhancement. "That's a good outcome, considering how weak these
insider trading claims were likely to be," he said.
Equity committee counsel Edgar Sargent of Susman Godfrey
said his clients are "very happy" with the new plan. In
addition to the $75 million bondholder contribution to the
reorganized company, other creditors are contributing $10
million. "The reorganized debtor is going to be
well-capitalized, and we think there's now a chance for
shareholders to receive real recovery," he said. (The
reorganized company will likely "acquire or build assets in the
financial or insurance spaces," Sargent said, although he
cautioned that it's too early to say for sure.) In addition,
Sargent said, equity holders will control any subsequent
antitrust or business tort claims WMI brings against third
parties through its two seats on the litigation committee of
the WMI liquidating trust.
I left messages with WMI bankruptcy counsel Brian Rosen of
Weil and lawyers for the four hedge funds (Paul Hastings for
Appaloosa; Schulte Roth & Zabel for Owl Creek; Latham & Watkins
for Centerbridge; and Kramer Levin Naftalis & Frankel for
Aurelius). Latham referred my call to a Centerbridge spokesman
and the others didn't respond.
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
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