Obama's Frightening Fiduciary Follies

On April 30, President Barack Obama denounced “hedge funds” that he claimed ruined concession discussions that might have enabled Chrysler to avoid filing for bankruptcy.

Since then, most of the outrage in the establishment media has focused on these holdouts. Matt Goldstein of Business Week called them “cowards” for not revealing their names (remember the AIG bonuses, Matt?). No one in the establishment media leveled a similar charge at Team Obama when they similarly refused. When the holdouts issued a press release describing their legal rights and why they were asserting them, Jessica Pressler at NYMag.com disgracefully accused them of playing “the Obama-is-a-communist card.”

First of all, these are not all presumably evil (unless you’re John Edwards and happen to have worked for one) “hedge funds.” As the lawyer representing these firms, Tom Lauria, told Frank Beckmann of WJR radio in Detroit last week:

What people really need to understand is that the people who bought this debt are pensioneers, teachers’ credit unions, personal retiree accounts, retirement plans, college endowments. That’s who my clients act as fiduciaries for.

Lauria was also saying in so many words, “We’re just doing our job.”

The Employee Retirement Income Security Act (ERISA), passed in 1974 with strong bipartisan support, subjects retirement plans to a very strict standard of fiduciary duty, specifically:

(1) … a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and —

(A) for the exclusive purpose of:

(i) providing benefits to participants and their beneficiaries; and

(ii) defraying reasonable expenses of administering the plan

There is nothing ambiguous about this requirement and nothing about the word “solely” or the term “exclusive purpose” to misunderstand. The Wall Street Journal’s Gregory Corcoran also pointed out on April 30 that hedge fund managers are subject to a nearly identical common-law standard, “to the exclusion of any contrary interest.”

Fiduciary duty directly ties in to the situation at Chrysler. As Lauria explained to Beckmann — in between describing what he alleges are threats to his clients’ reputations and safety, which he later expanded to include death threats that have been turned over to the FBI — the creditors he represents have collateralized first-lien rights.

In a normal bankruptcy, first-lien creditors get paid what they are owed before anyone else. Since assets rarely fetch their ongoing-use value in liquidation, it appears reasonable that Lauria’s group would have come down in negotiations from 100% to 65%, and then to 50%, in the interest of avoiding bankruptcy. Presumably, 50% is a reasonable estimate of what might be realized in liquidation.

But Obama, Steve Rattner, and his car people wanted Lauria’s group to come down to 29% of their collateralized value in return for what appears to be almost nothing. Under current plans, the United Auto Workers’ health care trust will own a majority of the company if and when it emerges from bankruptcy. It appears that lenders who have no first-lien rights — and whose arm’s-length interests are questionable, given that many of them have received Troubled Asset Relief Program (TARP) funds — will receive company shares in an amount roughly proportional to the total of all debt balances, including those of Lauria’s non-TARP first-lien lenders.

In other words, Obama et al. want Lauria’s group to essentially act as if their first-lien status doesn’t exist. They frame this as being “in the national interest.”

There’s only one “little” problem: Under ERISA, Barack Obama’s definition of “the national interest” is not relevant to “the interest of the [retirement plan] participants and beneficiaries.” It is also not relevant to hedge funds’ common-law duties. If the non-TARP lenders act against their participants’ and investors’ interests and give in to such a deal, they will more than likely be virtually defenseless against shareholder and participant lawsuits.

Perhaps the example of Bank of America’s Ken Lewis is weighing on the minds of those who are still in Lauria’s group.

Lewis claims he was intimidated by former Treasury Secretary Hank Paulson and Fed Chairman Ben Bernanke into hiding from the public the extent of losses at its recently acquired Merrill Lynch subsidiary. Bank of America is being sued by shareholders and Ken Lewis is no longer BofA chairman. Does anyone think that the government will provide witnesses to defend Lewis or BofA?

There will likely be an anti-Chrysler backlash by those who see Team Obama’s tactics for what they are. Before the bankruptcy filing, General Motors was catching almost all of that heat.

At GM, in the first full month following Obama’s sacking of Rick Wagoner that signaled the company’s de facto nationalization, it sold all of 171,258 vehicles. Only about 131,000 vehicles were sold to individual consumers, a 45% drop from April 2008. Some of the company’s fleet (i.e., not individual) sales may have occurred because of a sped-up purchasing campaign announced in early April by an Uncle Sam desperate to prop up GM any way it conceivably can.

Since the first bailout funds were sent in December, Chrysler, whose CEO Bob Nardelli spent most of 2008 ruining the company on his own, has somewhat stabilized and may even have been the beneficiary of a bit of public sympathy. That is more than likely over and Nardelli’s announced departure won’t stop it. As it is, Chrysler sold a pathetic 15,558 cars (i.e., excluding light trucks) in April, putting it in eighth place, behind even Hyundai and Kia.

What has happened since the bailouts began has become so obvious that after reviewing April’s results, the Associated Press’ auto writers told readers that “Detroit’s Big Three is becoming Ford and the other two.”

It’s reasonable to believe that Team Obama’s “Chicago way” tactics have accelerated the downward trend at GM and that it will now spread to Chrysler. It shouldn’t surprise anyone if we learn a few months from now that one, the other, or even both are gone and aren’t coming back.