Harvard Law School Professor Mark Roe made some extremely thoughtful observations in a Friday “Op Ed” piece in the Wall Street Journal (“A Chrysler Bankruptcy Won’t Be Quick”). Central to his discussion are the following key questions:
• Are Chrysler’s secured lenders receiving fair value for their claims as is their legal right in bankruptcy?
• Was the 70% lender vote to accept $.32 on the dollar valid or was it coercively tainted by government influence on banks who had received TARP funds? The law requires a 2/3 vote of secured creditors to accept a settlement. TARP banks make up the vast preponderance of the lenders who accepted the govenment’s proposal. Non-TARP lenders can reasonably ask if TARP lenders would have voted to accept if the government did not have an ability to influence their operations.
Professor Roe makes it clear that there is a reasonable basis for lenders to resist the settlement “mandated” by the Obama Administration. If so, creditor claims may make the final outcome less than clear and the process long and contentious.
What is not said but also must be considered is the generally heavy hand of the government to obviate the contractual rights of secure lenders. This does not begin to address the issue of unions gaining majority control of the Company.
The overall process raises significant and pernicious issues for our national economic future. If lenders rights are not protected, the appetite for U.S. corporate debt will diminish significantly. This will have severe adverse implications on economic growth, employment and our national standard of living. We have already seen how unilateral government interference has caused a significant measure of investor reluctance to play in TALF programs to buy “Toxic Loans”. The Chrysler bankruptcy could make matters worse. Fears of government intervention against indenture terms will not necessarily be reduced by higher interest rates, though higher rates will be one possible outcome. They will more than likely result in reduced lending until fears abate. The government will find that it has a hard time forcing lending by any institution that it does not control (ie foreign banks etc). If the over arching goal of Treasury policy is to get credit flowing, the government’s role in Chrysler is a major step backward.
Just as the American government was wrong in condoning torture against the laws of the nation and the civilized world, so too are actions which disregard freely negotiated loan terms which are critical to financing American industry. If we learned anything from the disastrous policies of the Bush administration, we need to understand and believe that our laws can’t be selectively followed or enforced.