Washington Mutual Inc. failed for the second time to win approval for its plan to pay creditors more than $7 billion as a bankruptcy judge sided with opponents.
The company’s 5.375 percent preferred securities, convertible into common stock until 2041, plunged more than 70 percent today because they may suffer most from the ruling, said Kevin Starke, a senior analyst with CRT Capital Group in Stamford, Connecticut.
U.S. Bankruptcy Judge Mary Walrath in Wilmington, Delaware, said in a decision yesterday that she was “concerned that the case will devolve into a litigation morass” and ordered the two sides into mediation.
WaMu, based in Seattle, was allied with hedge funds, JPMorgan Chase & Co. (JPM) and the Federal Deposit Insurance Corp. The reorganization plan they support was built on an agreement to split $4 billion in cash, and billions of dollars more in tax refunds. The settlement would also have resolved lawsuits over who is to blame for 2008 collapse of Washington Mutual Bank, the biggest bank failure in U.S. history.
Common shareholders opposed that plan because it paid them nothing. They claim billions of dollars more could be raised by suing JPMorgan and the FDIC over the demise of Washington Mutual Bank, WaMu’s main operating unit.
WaMu said in a statement distributed by PRNewswire that it believes the expeditious distribution of funds to claim holders is “of paramount importance.”
The company will proceed in a manner consistent with the judge’s opinion in a bid to win approval for a modified plan as soon as practicable, WaMu said.
Walrath said the hedge funds that helped negotiate the proposed plan may have used non-public information they gained in settlement talks to buy and sell WaMu securities. While the evidence is not definitive, it is strong enough to justify more investigation, Walrath found.
In January, Walrath rejected an earlier version of the plan, saying it guaranteed protection from lawsuits for too many parties.
The four hedge funds accused of receiving inside information are Aurelius Capital Management LP, Centerbridge Partners LP, Appaloosa Management LP and Owl Creek Asset Management LP. All four have denied using any material, non- public information to buy or sell WaMu securities.
Aurelius’s spokesman, Stephen Sigmund with Global Strategy Group, declined to comment. Michael de Leeuw, an attorney for Appaloosa, Centerbridge and Owl Creek, did not immediately return a call for comment.
Walrath granted the committee’s request to sue the hedge funds for their conduct during the bankruptcy. She said that potential lawsuit can’t immediately go forward, ordering shareholders and supporters of the rejected plan to mediation.
She rejected allegations that the hedge funds, known as the settlement noteholders, controlled WaMu and that the entire plan was proposed in bad faith. She also upheld the settlement among JPMorgan, WaMu and the hedge funds that the reorganization plan is built on.
“Rather, the actions of the settlement noteholders appear to have helped increase the debtors’ estates,” Walrath wrote.
Creditors who are being paid in full lost a bid to also receive a higher rate of interest based on their original contracts. Instead, they will get a potentially lower rate known as the federal judgment rate given out by courts when awarding interest.
Sold to JPMorgan
WaMu filed for bankruptcy on Sept. 26, 2008, the day after its banking unit was taken over by regulators and sold to JPMorgan for $1.9 billion. Washington Mutual Bank had more than 2,200 branches and $188 billion in deposits.
The hedge funds that hold different sets of WaMu bonds and convertible securities, shareholders and other creditors fought throughout the case over how to divide the cash, tax refunds and new stock to be issued in the only part of WaMu that will survive bankruptcy, a small reinsurance company.
WaMu has $4 billion in cash and more than $3 billion in tax refunds and other assets to distribute to creditors once the company negotiates a payment plan Walrath will approve.
The longer it takes the company, JPMorgan and the hedge funds to settle their differences with shareholders, the more money will be lost by holders of the so-called Piers class of preferred securities, which WaMu issued in 2001, said Starke.
That’s because they are at the bottom of WaMu’s payment ladder, just above common shareholders. The hedge funds hold billions of dollars worth of WaMu’s senior notes, subordinated notes and Piers, according to court records.
Any compromise that would give money to shareholders or other creditors to persuade them to drop their opposition would probably be paid out of the Piers recoveries, Starke said. The longer the case drags on, the more money Piers holders, including the four hedge funds, will lose as WaMu pays for lawyers, financial advisers and other expenses using the cash it is holding for creditors.
The case costs about $30 million a month in expenses, according to court documents.
The Piers, which have a face value of $50 per share and are convertible to common shares until 2041, fell more than 70 percent today to $4.48, Bloomberg data show.
“That’s the question on everybody’s mind,” Starke said. “What are the four funds going to do?”
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