By: Mark Glennon*

An interesting debate has arisen on one particular aspect of the proceeding now pending in an Illinois court to invalidate certain state bonds. However you come down on that debate, it illustrates the vast difference in how some of us view Illinois’ fiscal crisis and how courts and markets should be addressing it.

As widely reported, a pending petition seeks authority to proceed with a lawsuit claiming the State of Illinois unconstitutionally issued certain bonds. If successful, it would prevent the state from making any further payments thereon.

The particular debate is about the motives of one of the plaintiffs, Warlander Asset Management. They hope to stop the state from making any further payments on two particular sets of bonds, claiming issuance was unconstitutional. Specifically, $10 billion of general obligation bonds sold in 2003 and $6 billion in 2017 are being challenged. The 2003 bonds were pension obligation bonds, meaning the proceeds were to be used for pension funding. The 2017 bond proceeds were used to pay down some of the state’s backlog of ordinary accounts payable.

Based on published reports, Warlander reportedly will profit in two ways if it wins. First, they hold other Illinois general obligation bonds that would benefit because more cash would be freed up to ensure those other bonds get paid. Second, they hold credit default swaps against the bonds they want to invalidate. That’s basically a bet that they will win in court. If the court ordered the state to stop payments on the challenged bonds, a payment in some unknown amount would go to Warlander, owed by some counterparty, whose identity we don’t know, that took the opposite side of that bet.

It’s those credit default swaps that especially set some people off. Columnist Rich Miller, on his site, criticized my question on Twitter about whether Warlander did anything unusual and my suggestion that motives shouldn’t matter. WCIA reporter Mark Maxwell asked on Twitter, regarding the swaps, “How is this not criminal?”

Yikes! “Hedge fund” and “credit default swaps.” Few terms are more certain to trigger fears of sinister forces at work. And it’s just unseemly for somebody to try to profit from the state’s default. That seems to be enough reasoning for many.

But hold on. It’s not so simple. There’s another side to this.

On the one hand, there’s a risk of market manipulation. I am not suggesting this occurred, but conceivably a fund could make investments like Warlander and file a lawsuit not intending to win but merely to scare the market, then cash out before the lawsuit is fully decided. That’s an entirely fair concern.

On the other hand, if the facts are as simple as I’ve stated, there’s probably nothing unusual here and, unless other bad facts become known, nothing that should concern anybody. In fact, a reasonable case can be made that Warlander’s actions are healthy. Here’s why:

First, Warlander has put its money where its mouth is. While Miller, bond pundits and many others have said the lawsuit is frivolous, Warlander hasn’t only bet on its own legal position but has also hired a very expensive New York law firm to argue its case, White & Case.

Second, through the default swaps, Warlander has also allowed somebody who thinks the case is frivolous to bet accordingly. If that counterparty is right and the case is dismissed (as I, too, expect), Warlander handed them the opportunity to profit from their opinion.

Third, if Warlander’s case really has merit, it is doing a service for other holders of any bonds except those they are challenging. The muni bond business is a sleepy one, dominated by widows, orphans and other individual investors who lack the wherewithal to mount lawsuits defending their interests. Warlander is doing their work for them.

Fourth, in the world of insolvency, it’s routine for investors to take stakes in securities they think are undervalued then go to court to get the enforcement they think is right. That routine often includes attempts to invalidate or subordinate competing claims to free up cash for the position the investor holds, which is what Warlander seeks to do.

Fifth, do we really want courts judging cases on the basis of motive and not the law? Countless cases are filed every day because plaintiffs want bucks.  Should courts judge claims differently if the plaintiffs say their motive is to save mankind? Shouldn’t they simply apply the law as best they can?

Sixth, the actual results for the state, if Warlander were to win, would be far different than some critics seem to think. The state would be destroyed and it’s credit slashed, some are saying.

Nonsense. The state would stop payment on the challenged bonds, indeed freeing up that cash to relieve the budget crunch and ensure that other bonds get paid. Taxpayers would be better off. Only the challenged bonds would be impaired, provided the court’s rationale were limited to those bonds. That’s an important proviso. If the court issued a sloppy or overly broad opinion, many other bonds could become suspect. Regardless, however, the credit rating for bonds to be issued in the future would improve, provided the they are made within the legal limits the court would have laid out in its decision. That point came up yesterday in court.

That’s the part that so many don’t seem to get. It’s the creditworthiness of bonds to be issued in the future that counts. Holders of old bonds are of less concern. They should get what the courts say they have a right to get, and nothing more.

Put it all together and you may see why some of us view our fiscal crisis through an entirely different lens. The only ones playing the insolvency game in Illinois the way it’s routinely played are bondholders and pensioners. Bondholders have been doing what all smart creditors do in the face of insolvency – they shore up their position by getting mortgages, liens and other priorities however they can, knocking down the other guys when possible. Pensioners likewise have played it smart by getting laws passed for intercepts and forced funding levels. The entrance of opportunistic, litigious investors was inevitable, but isn’t necessarily bad. It depends what they ultimately do.

And, now, bondholders are duping the public and the state into thinking that full payment of previously issued bonds is essential to the state’s future. That’s because nobody is thinking through what might be in taxpayers’ interests and playing the insolvency game smartly on their behalf.

None of this is to say that Warlander is likely to win. We’ve said from the outset that we’re very skeptical that any Illinois court would side with them, and the state has other defenses not discussed here. Instead, we said the lawsuit should make for a good education, and that’s what we’re getting.

UPDATE 9/19/19: It’s very odd to me that, as became apparent in this debate, so many people are so concerned about the rights of old bondholders instead of protecting future bond issues, other state creditors and taxpayers.

In response to this article, for example, Rich Miller wrote as follows:

That’s some truly wishful thinking. The state can’t just walk away from bond obligations. If the courts eventually do rule against Illinois (which I seriously doubt, but it’s the courts, so one never knows for sure), Illinois will have to make bondholders whole or undoubtedly face serious consequences with the credit ratings agencies. It can’t just walk away from billions in debt – even with a judicial ruling – and not expect a major downgrade into junk status. After all, most of the same institutions which now hold those old bonds are the ones who will be buying new bonds.

No, no, no. The whole point of the suit is to stop payment on just those certain bonds. That’s their specific request for relief. That’s the part that’s wishful thinking because I, like most, think they likely will lose. But if they win Miller apparently thinks the state would somehow pay those bondholders anyway. The state and some in the muni bond world have been saying something similar, to the effect of “we will take care of you anyway even if the state loses.”

No, the state would be barred from doing that, and the bar would apply only to the challenged bonds — if the plaintiffs won. Other bonds and future bonds would benefit, provided, as I said, that the ruling was limited to the challenged bonds. It would be as if a court said you no longer had to make payments on your mortgage because of some claim you had against that lender. Would your credit rating be impaired? No, of course not.

There’s something fundamental about insolvencies that lots of people don’t understand. Restoring solvency requires reducing old debts. Nobody should be obsessing about old bond issues.

*Mark Glennon is founder of Wirepoints.

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J.A. Heezrent
9 months ago

Bond lawyers draft statutes and initiate test cases to provide as much assurance as it’s posslble to fabricate that a bond issue can’t be challenged. Legislators, judges and attorneys General are complicit from the inception. Legal slack enables worthwhile projects and opens the floodgates to those that are unsound.

Once a feasibility study hits the table a project acquires almost unstoppable momentum. Only major losses can restore sense to this market. A few more malpractice suits may also chasten the lawyers.

9 months ago

My concern is with the muni bond market. It’s bad enough with Puerto Rico, but if you’ve got -states- issuing bonds and there is a mechanism whereby they’re declared illegitimate even though they were issued similar to many before… hoowee, the muni market is going to be a mess.

It would not stop with “just those certain bonds”.

That said, I agree with you that this lawsuit is a likely loser, for a variety of reasons.

9 months ago

The judges have pensions too, doesn’t that matter in the decision?

9 months ago
Reply to  Mark Glennon

The judges are paid off essentially. A regular conflict of interest might just involve impartiality or appearance alone. This conflict involves their paychecks and early retirement!

9 months ago

Rich Miller is a bloated, public union stooge idiot. He is a complete waste of time to read.

9 months ago
Reply to  Adam

Prairie State Pravda

9 months ago
Reply to  MikeH

“public union stooge idiot”

He’s a lot of four letter words that aren’t to be said in polite company. That being said, I don’t know why guys like him get opinion pieces anywhere. He’s trash.

9 months ago
Reply to  Adam

Don’t dismiss Miller’s comment because you have a low opinion of him and his connections. Here, his comments probably represent the opinion of at least some of those connections.

9 months ago
Reply to  Mark

Rich Miller’s Cap Fax is mainly funded by public sector union workers and public sector unions. Rich Miller is pathetic. There is no reason to take him seriously. I have no idea why Glennon bothered to comment on his worthless, rigged site yesterday. Idiots like Oswego and RNUG are allowed to say stupid/wrong things all day on there, but any comments that reveal the truth are yelled down or deleted.

mike Williams
9 months ago

Predictably, the major parties owed by Illinois are positioning themselves for the end game. On the other side of the equation are the unorganized, leaderless taxpayers.

9 months ago

Fantastic writing once again!! The Bloomberg article from a couple day ago stated that Illinois muni bonds currently have $300 mill worth of hedges riding on them. And who know how many $ millions on all the city, county & municipal bonds have entities hedging against them? That’s all in a state where declaring bankruptcy is constitutionally not allowed. the tax payers always on the hook in event of a collapse as long as the tax $ keep flowing in. If this law suite succeeded and the hedges kicked in the machine would be freaken. and thats why the const.… Read more »

Illinois Entrepreneur
9 months ago

Nice, intelligent analysis.

Most people are not finance-savvy, and certainly not in the commercial/municipal sector. Throw in the legal arguments and you’ve probably lost 99% of the population.

Including Rich Miller, whose opinion I value as much as the guy ranting at the end of the bar after his shift.

And that means no ill will to the guy at the end of the bar. At least he’s fun to hang out with, but I wouldn’t take his advice on complicated municipal finance ‘rights and wrongs.’

9 months ago
Reply to  Mark Glennon

Mark G, Your background in bankruptcy and insolvency is impressive, and well, bankruptcy can be an odd world for those trained to avoid contract breaches (as a tech lawyer, I am fascinated by your posts). Throw into the mix that Rich Miller type apparatchiks do not want to hear anything that smacks of insolvency, and it is easy to understand the perspective of those who don’t share you substantiated views. I do agree that if this suit would succeed- it won’t – it would take pressure off of other bonds. But the real issue – and just bringing this suit… Read more »

Platinum Goose
9 months ago
Reply to  Willowglen

I think the big concern they have is something like this will put an end to their borrow and spend tactics.