FGIC Split: Let the Lawsuits Begin II

There are a variety of interested parties with an interest in keeping the guarantors in one piece, as is pointed out in this article from Bloomberg. Downgrading half a trillion of asset-backed bonds if a split happens? Yes, that is the price, and that is why there will be many lawsuits to contest any split, as pointed out by naked capitalism. The discussion of that post is worth reading, because it got me thinking about the differences between swaps and insurance. There are two ways to go here:

1. A swap that mimics the nature of an insurance contract is an insurance contract. After all, that is the way their regulators have been behaving, at least up until now.
2. A swap is a side agreement between the operating company (the actual insurer, not the parent holding company, MBIA (MBI) or Ambac (ABK)), and the counterparty. In liquidation, they would be treated as general creditors, behind the policyholders in liquidation preference.

I looked at a few of the relevant state legal codes yesterday, and if the state regulators want to play hardball, they would go with the second interpretation, and pull the rug out from under the feet of those who were relying on the first interpretation. They could argue that swaps are a different class of business than insurance, and try to make the case that if an insolvency occured, those with with swap contracts would face a much lower recovery than those with insurance contracts, so let’s make it formal and do a split.

Now, most of the business done was by insurance contracts, and the laws on rehabilitation, conservation and liquidation indicate that similar parties are to be treated equitably within each class of claimants. Policyholders are all in the same class. Splitting the companies into municipal insurance and everything else would not treat all policyholders equally. Thus the lawsuits.

Now for a few links:

• Roger Ehrenberg at Information Arbitrage sees the issues clearly.
• FT Alphaville features my comments, and adds to them.
• Good interview by Chris Whalen of David Kotok discussing the furor in municipals at present.
• For wonks only: from Stroock & Stroock & Lavan, a discussion of how derivatives are treated in insurance insolvencies. Yes. I actually got out my old insurance law books this afternoon, but they were no help. Interesting article that would support the hardball case.

As I’ve said before, I would not be bullish on the equities of the compromised financial guarantors. They may survive, but only after much dilution. Now we have Ambac trying to raise $2 billion. What will they use? A rights offering? A PIPE? Mandatorily convertible debt? Surplus notes at their operating insurance companies? In order to get cash today, they have to give up a lot of the potential profits of the business. And what, will they take the $2 billion to try to buy off the structured securities claimants? Not enough, I think, if that half-trillion figure is correct, with $35 billion of mark-to-market losses for the market as a whole (Ambac’s portion would be big).

Two last notes: legally, I don’t see how splitting the guarantors gets done. It flies in the face of decades of contract law regarding insurers. Second, wouldn’t it be a troubling unintended consequence if the regulators managed to protect the municipalities, and in the process, ended up destroying the investment banks, leading to a bigger catastrophe?

Comments

[Gary McCamey:]

I'm confused, I don't understand. Could someone explain this Ambac, MBIA thing to me in a simple, say, 10th. grade explanation. I read an article by a guy called Cramer, Jim I think, and he said the stock he picked to be stock of the year in 2008, is Ambac. About a week later I read another article by him in which he stated if he owned Ambac, MBIA, and a couple of more companies, (he wrote), if I owned them today I'd sell them and go fishing. Now, he's an analyst isn't he? I know he writes an article, or articles. Did I misunderstand something he wrote, did he say one week that Ambac would in his opinion be the stock of the year in 2008, and then a week later did he write if he owned them he'd sell them? Please, I'm confused. If the business world is as confused as Mr. Cramer, (that is, if I understood the words coming out of his typewriter), then I can understand why things are in such a mess. I'm only thankful that I ignored his advice, and I bought a little company that cost me .31 cents a share, and I did buy a bunch. It was TTGLE, and a week later, well Monday, or day before yesterday it touched .84 cents a share. Hee,hee, I think I figured it out. Buy a stock that nobody knows nothing about, and that no analyst writes a word about it. When the analyst and the writers and all the others get involved with a company, a person doesn't know who/what to believe. Yes, I sold and did very well.
I can't help but laugh. I swear! I've been saying for years ignore the analyst, people like that Bahailia who is an analyst for Citigroup. He stated Etrade would have a high of around $4.50 for the year, and that very day I think, I sold shares of Etrade for right at $5.00/sh. I've forgotten the exact amounts, but you know, I don't think it's figuring out which analyst is right, but it's figuring out which ones are honest and who is not being paid to write bad things about good companies. I may be stupid, but I'm the one whose made over 100% profit for 2008 already.
Mr. Cramer, I appreciate your articles I get, but you did confuse me with that change of pace. Of course, you might have been making a joke meaning, the market is such a mess you'd rather sell everything and go fishing. Many people who read these articles don't think with a business mind, therefore, sometimes it's hard to understand what point is trying to be made. Just out of curiosity, in very simple terms, will Ambac be a stock to buy in 2008, or not. Thank you. Gary

I have no respect for Bahalia, but I do appreciate your opinions Mr. Cramer. Bahalia was so obvious that he was trying to damage Etrade, that it really irritated me to see him hurt a lot of people like me who depend on opinions of (hopefully), honest men.

2008 Feb 20 08:41 PM