The First Circuit Court of Appeals Ruling on ‘Assured’ Should be Reheard or Reversed; Recent Ruling Sends a Harsh Message to Municipal Bond Market

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Why the Municipal Bond Market Expects Pledged Special Revenues to be Timely Paid to Bondholders in a Chapter 9 Proceeding.  And, Why the First  Circuit’s Assured Ruling in Puerto Rico’s PROMESA Title III Proceeding Should Be Reheard or  Reconsidered on Appeal.

Update on “Puerto Rico’s ‘Assured’ Decision Should be Reconsidered or Reversed” (Originally appeared  in Muninetguide on  Feb 05, 2018)

by James Spiotto

On March 26, 2019, The United States First Circuit Court of Appeals ruled on the Appeal from the Title III adjustment of debt proceeding for the Commonwealth of Puerto Rico.  The First Circuit affirmed the ruling of the District Court dismissing the Amended Complaint of Assured Guaranty Corporation (“Assured”) and held that special revenues pledged to revenue bondholders are only exempt from the automatic stay (preventing creditor enforcement action for payments to bondholders) if the municipality voluntarily pays the special revenues to the bondholders, and that such timely payments are not mandatory in Title III or purportedly a Chapter 9 proceeding.

MuniNet previously has described the well-established justification of timely payments of special revenues pledged to bondholders in Title III and Chapter 9 proceedings and why the district court rulings should have been reversed in an article last year.  (Link “Puerto Rico’s Assured Decision Should Be Reconsidered or Reversed” February 5, 2018, James E. Spiotto.)

The First Circuit in ruling on this appeal saw no reason to write at length justifying this ruling, which was contrary to all prior case law precedent by courts hearing Chapter 9 cases, the recognized commentaries on special revenues and the legislative history for the 1988 Amendments to the Federal Bankruptcy Code 11 U.S.C. § 101 et seq. (“Bankruptcy Code”) which added Sections 902, 922(d), 927 and 928, among other provisions, into the Bankruptcy Code.  These sections were interpreted by the First Circuit in its opinion.

I. The First Circuit in Its Opinion Attempted to Reason to Answer the Following Questions:

• Was the disputed language unambiguous?

  Section 922(d) and 928(a) are unambiguous, according to the First Circuit and therefore there is no need to consult the legislative history to understand the meaning of those sections.  According to the First Circuit, the plain meaning and interpretation of these sections should not be capable of a different interpretation.  However, this unique interpretation of the First Circuit was contrary to virtually every prior precedent, namely the prior rulings of every Chapter 9 bankruptcy court that had substantively considered special revenues and the automatic stay, recognized commentators on special revenues and the 1988 Amendments legislative history regarding Section 922(d) and 928(d) of the Bankruptcy Code.

• Are Only voluntary payments of special revenue exempt from the stay?

  Section 922(d) of the Bankruptcy Code provides: “a petition filed under this chapter [Chapter 9] does not operate as a stay [preventing creditor enforcement action to be paid] of application [defined by Black’s Law Dictionary as related to payments] of pledged special revenues in a manner consistent with [s]ection 927[8], which provides the lien of bondholders on special revenues continues to be effective on special revenues collected after the municipal debtor files for the Chapter 9 protection] of this title [Chapter 9] to payment of indebtedness secured by such revenues.”  The First Circuit limits the nonoperation of the stay (of creditor actions) to voluntary payments made by a municipality after the filing of a Chapter 9 or Title III proceeding and not to mandatory payments required by a broader reading of Sections 922(d) and 928(a) of the Bankruptcy Code or state law mandates.

• Is Section 922(d) needed so that the municipality can pay and bondholders can accept voluntary payments?

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PUERTO RICO’S REPUDIATION OF GENERAL OBLIGATION BONDS: A REAL RISK OR JUST KABUKI THEATER

By James E. Spiotto

On January 14, 2019, the Financial Oversight and Management Board, acting through its Special Claims Committee and the Official Committee of Unsecured Creditors, filed an objection to the validity and enforceability of more than $6 billion of the Commonwealth of Puerto Rico’s General Obligation Bonds.  The purported reason for the invalidity was the asserted violation of the Commonwealth’s Constitutional Debt Service Limit found in Article VI, Section 2 of the Puerto Rico Constitution, as amended in 1961, which provides that direct obligations of the Commonwealth “shall not exceed 15% of the average of the total amount of annual revenues…” (“G.O. Debt Limit”).  This claim of invalidity was asserted long after the issuance of the General Obligation Bonds, in which the Commonwealth and its professional represented that the Bonds complied with the Constitution and laws of Puerto Rico and were a valid, binding and enforceable obligation, and released to the market a calculation of compliance of the issuance with the G.O. Debt Limit.  In addition, there also is a claim by the objecting parties that issuance of the $6 billion of General Obligation Bond Debt violated the Balanced Budget Clause of the Puerto Rico Constitution, Article VI, Section 7 providing “the appropriation made for any fiscal year shall not exceed total revenues including available surplus estimated unless the imposition of taxes sufficient to cover said appropriation is provided by law” (“Balanced Budget Clause”).  These claims of invalidity when carefully reviewed from a historic perspective should be rejected.

Repudiation or claims of the invalidity of previously issued general obligation bonds by states or even local governments historically have never been viewed by the market as an acceptable or respectable position for an issuer who had earlier represented, through its statements and its agents, that the bonds were valid and in compliance with the law.  Generally, constitutional debt limits or balanced budget requirements are guide posts for the governmental issuer in conjunction with bond counsel prior to actual issuance to determine whether such debt can and should be incurred.  These provisions were not intended to create an artifice that clever government issuers could spring on unsuspecting good faith bond purchasers who had no prior notice of any defect and in fact were told at issuance there were no compliance problems with the constitution and law of the government.  Nevertheless, efforts by states and local governments to repudiate or invalidate debt after its issuance contrary to what they represented to induce the purchase of bond debt by good faith purchasers are not new.  Such attempts to invalidate or repudiate state and local government debt in the United States first took place in the 1800’s.  The lessons learned from those unfortunate efforts should not be forgotten and are instructive as to the current attempts of Puerto Rico to invalidate certain of its G.O. Debt.

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Municipal Chapter 9 bankruptcy is the legal means by which local governments, be they cities or counties, utilities or school districts, can fiscally reorganize by gaining protection from creditors while developing a plan for adjusting and repaying its debts. MuniNet Guide’s experts provide statistics and insights you can not find elsewhere.

See full article:   Chapter 9 Municipal Bankruptcy Statistics: Use by Number, Type and Year

©2018 James E Spiotto and Chapman & Cutler LLP, all rights reserved

This report by Chapter 9 bankruptcy and fiscal distress expert James Spiotto addresses the historical use of Chapter 9 by year, by state, by type of government entity, and more. Despite growing concerns about pension and OPEB debt, as well as the general fiscal health of the United States’ local governments and a handful of high-profile municipal bankruptcy proceedings over the past decade, filings of Chapter 9 proceedings remain rare, and are seen as a last resort.