Monday Update – January 8, 2018

Welcome to your weekly Title III update for January 8, 2018. After a short vacation, we are back to discuss the happenings in PROMESA. While not much happened, much will happen soon.

Foremost for this week, and even for this year, is the oral argument of the Aurelius and Utier constitutional challenge to the appointment of the members of the Board. Aurelius’s Objection and Motion to Dismiss presents a single yet fundamental question: Whether the members of the Board should be secretly hand-picked by four members of Congress or selected by the President and publicly confirmed by the Senate.

After a lengthy delay, the US Office of the Solicitor General informed the Court that it would defend the PROMESA appointments’ clause. Nothing surprising there since the office of the Solicitor General defends the overwhelming majority of constitutional challenges to acts of Congress. The last time I remember the Solicitor General deciding not to defend a law was when President Obama changed his mind about the Defense of Marriage Act.

The US Solicitor General wisely steered as far away as it could from the “Insular Cases,” especially the racist piece of resistance, Downes v. Bidwell, deciding instead in concentrating on cases before the 1898 dawn of the Imperial American Age.

The Board and AFFAF, however, in their motions reinforced the Territorial Clause of the US Constitution and Downes, which is the basis for Congressional discrimination against Puerto Rico in most federal programs. The Board claimed in its opposition to Aurelius motion that “[i]n a series of cases, the Court recognized that the U.S. Constitution applies ‘only in part in unincorporated Territories.’” The reference ends with a footnote citing Downes for the proposition that the Appointments Clause of the US Constitution does not apply to PR as an unincorporated territory. This probably explains why AFFAF did not argue in its brief that PR is an incorporated territory as Judge Gelpí decided in Consejo de Salud de Playa de Ponce v. Rullan. It seems that “[i]n the eyes of the Board and Governor Rosselló, it is better to have 100 more years of colonialism and discrimination than to have to pay the island’s debt.” See my Caribbean Business column, http://caribbeanbusiness.com/column-et-tu-ricky-and-jose/. Interestingly, Aurelius’ argument did not make any mention of the Territorial Clause.

Contrary to what some commentators believe, this challenge is important enough for the Board to have hired Donald Verrilli, President Obama´s former Solicitor General to argue its case and even used a reply to the US Solicitor General’s brief to further snipe at Aurelius, forcing the Court to allow the latter for file an unusual sur-reply. Anticipating the importance of the case, Aurelius hired Ted Olsen, George W. Bush’s Solicitor General and Matthew McGill, who successfully argued the Franklin California challenge to the Puerto Rico Recovery Act.

In addition, some of the same commentators that argued that the Aurelius challenge was not to be taken serious now claim that to grant the bondholder’s request would mean the dismissal of the Title III cases. In its reply to the Board’s motion to dismiss, Aurelius made clear how it envisioned the result of its successful challenge:

“In fact, the Opposing Parties agree with Aurelius that the proper remedy here is narrow andeminently practical: The Court should simply sever the offending portions of Section 2121(e). Board Opp. 34–35. That would cure the constitutional problem by allowing the President to decide for himself, with the Senate’s consent, who is best suited to serve on the Board. The parties also agree that the Court has procedural tools to ensure an orderly transition from the current Board to one that complies with the Appointments Clause. See, e.g., Dkt. 1627 (“GO Bondholders’ Stmt.”) at 2–3; see also Board Opp. 34; Dkt. 1629 (“Retiree Comm. Opp.”) at 35; Dkt. 1640 (“AAFAF Opp.”) at 31; Dkt. 1631 (“Unsecured Creditors Opp.”) at 28. In particular, this Court could simply stay its order of dismissal pending appeal, and the First Circuit, following appellate review, could stay its mandate pending the nomination and confirmation of a new Board. The Opposing Parties’ prophecies of disaster are belied by their own view of the remedies. They are also revealing. The Opposing Parties presuppose that the President would not select, or the Senate would not confirm, the same people who currently occupy the Board’s seats—even if that were necessary to prevent the sky from falling in Puerto Rico. If the President did determine that the current members are unworthy of their offices or not capable of discharging the Board’s important responsibilities in the wake of the hurricanes, and the Senate did not disagree, that would be to the good. There is no legitimate reason to shield the Board from this public scrutiny.”

The oral argument is going to be epic and lengthy. Judge Swain has allotted 90 minutes for each side. Argument starts at 11 am AST and 10 am EST in New York. Given the importance of the issue, I have no doubt Judge Swain will decide quickly and any appeal to the First Circuit will be expedited

The Aurelius constitutional challenge, however, is not the only thing in the agenda. At 3 pm AST and 2 pm EST, there will be the consideration of the UCC’s request for reconsideration on Judge Swain’s dismissal of some of its causes of action for allegedly going beyond the scope of its appointment in the Commonwealth v. COFINA case. Specifically, the UCC, quite correctly, points out that although its causes of action challenging the constitutionality of the COFINA structure were struck down, similar causes of action presented by the Ad Hoc Group of GO bondholders and Bettina Whyte as COFINA agent were not. Let’s see what Judge Swain decides.

In addition, several bondholders had filed requests for Rule 2004 discovery and the Court signaled its agreement to it subject to specific objections. The parties filed a report informing the Court where they agree and where (surprise surprise) they did not and subsequently, the Ad Hoc GO Group filed a motion objecting to following:

“Some of these Fiscal Plan Development Materials—such as the live model that underlies the Commonwealth Fiscal Plan, certified in March 2017—were provided to Movants in the “data room.” Those data room materials are subject to the strict constraints of an NDA (or in some cases, the mediation agreement), which prohibits their use in any way in the litigation. Among other things, they cannot be used as evidence-in-chief or for impeachment purposes, nor can they ever be shown to the Court. As for the rest of the Fiscal Plan Development Materials—such as versions of the new fiscal plan submitted to (but not certified by) the Oversight Board—Respondents refuse to produce them at all. Joint Rpt. at 3. Either way, Respondents, who continue to tout their “commitment to transparency” (Dkt. 1928 at 1), insist that these Fiscal Plan Development Materials must never see the light of day.”

As I have mentioned many times before, the Board is anything but transparent and will fight to the end to continue obfuscating the truth. Some Supervisory Board!

Also this past week, Gregorio Igartua, who has filed many cases to get Puerto Rico to vote for President, filed a petition for permission to file a brief of amicus curiae and included it with his pleading. In essence, it requests:

“As it can be seen, for Federal Courts to follow the Insular Cases, the case of Balzac, and/or the case of Harris v Rosario to legally support Puerto Rico’s special relation with the U.S. as a non-incorporated territory is today legally unfounded and incorrect. The practice of treating Puerto Rico as a non-incorporated territory where constitutional dispositions do not apply, and as an incorporated for others, must end.”

Finally someone arguing what the Government of Puerto Rico should have argued, for example, that Puerto Rico is an incorporated territory and the full power of the Constitution applies to it. Too bad that this is too little, too late.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Weekly Update – December 22, 2017

Welcome to your weekly Title III update for December 22, 2017. Due to the Holidays, decided to do the update this Friday and adjourn until January 8, 2018 and maybe take a little vacation. Again, not much happened, but what did happen was of great importance.

Many filed requests for interim payments with the Court last week and continued this week. I will not bore you with the details, but will just mention that the Board’s lawyers filed an emergency motion, later joined by the UCC, for a declaration that any insurance proceedings to PREPA not be used for debt payment. It seems that PREPA has a $250 million property insurance policy and the Board and AFFAF seem to want the Court to know they don’t want creditors claiming that money.

Additionally, O’Melveny & Myers LLP, filed a request for interim payment in the PROMESA case as lawyers of AFFAF, for the meager amount of $9,990,147.15 of which $8,993,939.50 have been paid. Unbelievable.

On December 19, one day before the Omnibus hearing, AFFAF filed a motion to inform the Court that, OOPS, we found 800 government accounts we knew nothing about with $6.85 billion. AFFAF said:

“Indeed, both restricted and unrestricted cash accounts as encompassed in the Initial Report indicates that a significant portion of the funds either have or will likely have limitations and restrictions on use (including various accounts containing federal funds designated by law solely and exclusively for use on specific federal programs). Notwithstanding the foregoing, completion of Independent Review Process Steps 2 and 3 will provide a definitive determination concerning limitations and restrictions on all bank accounts.”

The Oversight Board has announced they will be hiring a forensic analysis team to “carry out an investigation into the liquidity of the Puerto Rican Government.” Well, aren’t we a little late? After almost a year-and-a-half on the job, the Board still does not know how much money the government has in its accounts, or this is one big cover-up effort by the Board? Either way, I suspect this is not the last we’ve heard of this issue, and it could be an inflection point. I believe this could have significant ramifications going forward, including how much money Congress gives Puerto Rico in the next supplemental and what happens to those Community Disaster Loans.

On December 20, Judge Swain held an Omnibus hearing on the case. Judge Houser of the mediation team gave a short presentation stating that the process would restart early 2018 and she hoped a plan of adjustment would be presented that same year. Martin Bienestock, the Board’s counsel, stated that they believed it would indeed be presented then.

Mr. Bienestock then gave a presentation on the issue of the bar dates. He said that the Board would be presenting a motion in January with a proposed bar date for May. The proof of claim would be in both English and Spanish and could be sent via U.S. Mail. Judge Swain suggested that during the period there will be reminders of the need to file the proof of claim and the possibility of moving the date if electricity was not reestablished to all of PR soon.

Judge Swain also approved the Joint Motion on PREPA insurance proceeds but for future payments established a protocol where the utility must notify the “Official Committee of Unsecured Creditors appointed in this case, the Oversight Board, the Trustee under the Trust Agreement, National, Assured, Syncora, and the Ad Hoc Group” of the new information and the group may object. If objections are not resolved, not all of the order will apply to it. Obviously, this was a stipulated order. Let’s see if any problems arise.

Ambac and AFFAF informed Judge Dein that they had reached an agreement in principle as to documentation discovery pertaining to the SUT since Maria. They were ordered to present a motion by January 5, 2018, explaining the status of those negotiations. Seems AFFAF knew the Judge is leaning toward Rule 2004 discovery.

There was oral arguments as to the adequate protection payments to the ERS bondholders that had been stipulated before Judge Besosa in April of 2017 and later ratified in June of 2017 by Judge Swain. AFFAF was arguing that its obligation to pay interest on the bonds expired on October 1, but it paid the November payment to the Trust agent who paid bondholders. Then AFFAF demanded repayment from the Trust agent. The ERS bondholders requested an order from the Judge for payment of said interest. AFFAF argued that since there was a dispute as to the validity of the liens, there was no need for the adequate protection. Judge Swain ruled from the bench and ordered the renewal of the interest payment.

Question is, is this a harbinger of her ruling on the validity of the ERS lien? Why order payment if there is no lien? On the other hand, there was a stipulation of payment of the interest until she decided the issue of the validity of the lien. Hopefully, we will soon find out.

In other news, the Board granted a short extension to the Government of Puerto Rico on the presentation of the fiscal plans. Instead of December 22, the plans will be presented on January 10, 2018. This is not much of an extension given that the supplemental aid package approved by the House will not go to the Senate until 2018. In addition, there is no clarity, as mentioned above, as to when the CDL loans will be disbursed or under what conditions, no clarity on Medicaid/Medicare funding, and there is the issue of the secret bank accounts.

Why then rush the fiscal plan? Simple, the Board does not want to factor in those billions of dollars in aid in their plan and since the plan of adjustment must be based on the fiscal plan, it wants to have the numbers to argue for no debt service for five years as Bienestock advanced in November.

Obviously, there will be objections to any disclosure statement based on these premises which will lead to questioning of the plan of adjustment. The board will then argue, the plan of adjustment is based on the fiscal plan and you cannot question the fiscal plan. Perfect tautology to prevent scrutiny of both plans which will force creditors to object to the plan and then Judge Swain will have to decide how best to proceed. Let’s see what happens.

In any event, Happy Holidays to all of my readers. Not all in life can be work. Have fun and remember those who love you.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update – December 18, 2017

Welcome to your weekly Title III update for December 18, 2017. The decision by Judge Dein on the Rule 2004 could turn out to be a pivotal moment in Puerto Rico’s bankruptcy.

GO’s, Ambac, the UCC and others had sought a separate Rule 2004 discovery on several issues and the Board opposed the request. Judge Dein granted the requests and said the following in her order:

“The Joint Motion is allowed only as to the 17 requests made in Schedule A to the Joint Motion, and without waiver of any objections the Respondents may have to specific categories or documents. . . Respondents contend that no Rule 2004 order is needed in light of their voluntary production. While the Court recognizes Respondents’ efforts to produce information voluntarily, there is a need in this Title III proceeding under the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”) for formal and controlled discovery related to the Commonwealth of Puerto Rico’s financial condition. This Court encourages the voluntary disclosure of documents between the parties and allows this motion to exercise its supervisory role over a finite set of document requests.”

Judge Dein further ordered that:

“Movants and Respondents shall submit a joint report on or before Friday, December 22, 2017 at 3:00 p.m. Atlantic Standard Time (2:00 p.m. Eastern Standard Time), which shall address, but need not be limited to, the following:
a. any agreed upon release from existing use restrictions for documents produced or to be produced in accordance with this order;
b. any areas of disagreement regarding the restrictions on the usage of documents produced or to be produced in accordance with this order and a proposal for dealing therewith; and
c. the format of a privilege log to be used in connection with productions pursuant to this order.”

Even with this order, I doubt this will be the end of disputes as to document production. The Board and the Commonwealth have amply demonstrated their lack of commitment to transparency.

Interestingly, and quite suspect, the government “found” $6.8 billion in bank accounts belonging to the Commonwealth and instrumentalities just days after the Rule 2004 decision. Now, the Board is going to “investigate,” but they have been in place for 16 months with little progress to show. It also raises questions about what they knew, when they knew, how they came to know it, etc. Same goes for the Governor.

The UTIER, PREPA’s main union, filed an amended complaint that essentially requests that the utility sign its union contract and that its Fiscal plan be disallowed.

The Board filed an emergency motion, later joined by the UCC, for a declaration that any insurance proceedings to PREPA not be used for debt payment. It seems that PREPA has a $550 million property insurance policy and the Board and AFFAF seem to want the Court to know they don’t want creditors claiming that money.

On Saturday December 16, 2017, the Ad Hoc Group of PREPA Bondholders and others filed an opposition to the Board’s motion. Although they “fully support the efforts of the Oversight Board and AAFAF . . . to collect Insurance Proceeds for damage caused to PREPA’s System by Hurricanes Irma and Maria and to apply them to repairs and prompt restoration of power to the Island,” they nevertheless opposed the motion as filed. They state that “[c]ontrary to the assertions in the Motion, the Objecting Parties do have a secured property interest in the Insurance Proceeds. Pursuant to section 701 of the Trust Agreement, the proceeds of insurance on the System are Revenues that have been pledged.” The Ad Hoc group argues that the PREPA Trust Agreement has “clear and definitive provisions governing PREPA’s right to receive and use proceeds of insurance policies notwithstanding that such funds have been pledged to support payment of the Bonds.” Let’s see what Judge Swain decides on this issue.

On December 12, 2017, the Board sent the Governor a letter as to PREPA’s transformation. Most specifically, it stated that the new Fiscal Plan must include:

“Governance: The Fiscal Plan should contain a clear plan for enhanced management capabilities to deliver a successful restoration and transformation and ensure PREPA management is de-politicized and able to make independent technical and operational decisions in a governance structure consistent with attracting private investment.

Private investment and partnerships: The Fiscal Plan should explicitly provide a plan for the private sector to invest to develop new infrastructure, upgrade existing infrastructure, and realize operational excellence.”

Those of us who live here know that the main problem with PREPA is that politics and politicians dominate its decision making. By stressing improving its governance and requiring private investment, plus Mr. José Carrión’s repeated cries for the sale of the utility and the Governor’s preference for public-private entities, it is clear that another confrontation between the Board and Commonwealth is inevitable. Let’s see who wins this time.

On December 13, 2017 at 11 EST, the Court heard oral argument as to Motion for Summary Judgment of Employees Retirement System of the Government of Commonwealth of Puerto Rico and ERS Bondholders’ Motion for Summary Judgment on Issues Relating to Perfection and Application of Section 552 of the Bankruptcy Code. Both motions seek to show that bondholders of the Retirement System have no lien. Judge Swain asked both parties pointed questions and took the submissions under advisement. Let’s see what she decides.

During December 14-15, 2017, the different attorneys and experts filed their fee applications to the Court. In bankruptcy, the Court passes judgment as to the payment of the debtors’ lawyers and experts and they make applications for payment. I will not comment as to the propriety of these application but just mention what they are. I will only include the name of the movant and its relationship with Puerto Rico, the attorneys fee requested, the expenses requested, the attorneys fees paid to date. Expenses have, for the most part, been paid and the time period the fee request covers.

MOVANT FEE REQ EXP REQ FEE PAID TIME PERIOD
Bettina Whyte $264,460.00 $21,392.86 $238,014.00 8/3 to 9/30/17
Willkie Farr & Gallagher LLP counsel  for Bettina Whyte $4,661,711.75 $158,974.01 $3,789,638.26 8/3 to 9/30/17
Klee, Tuchin, Bogdanoff & Stern LLP municipal counsel for Bettina Whyte $533,434.50 $11,133.88 $533,434.50 7/31 to 9/40/17
Proskauer Rose LLP, as counsel for Board in PREPA $989,899.20 $67,275.25 $989,899.20 7/2 to 9/30/17
Proskauer Rose LLP, as counsel for Board in ERS $1,427,540.40 $24,131.76 $1,427,540.40 5/21 to 9/30/17
Proskauer Rose LLP, as counsel for Board in Commonwealth $6,369,303.60 $233,148.09 $6,369,303.60 5/3 to 9/30/17
Proskauer Rose LLP, as counsel for Board in HTA $4,035,404.70 $154,512.19 $4,035,404.70 5/21 to 9/30/17
Proskauer Rose LLP, as counsel for Board in COFINA $1,505,471.40 $16,605.84 $1,505,471.40 5/5 to 9/30/17
O’Melveny & Myers LLP, for AFFAF $2,028,863.49 $67,533.13 $1,827,719.83 5/21 to 9/30/17
O’Melveny & Myers LLP, for AFFAF, for HTA $1,272,965.00 $19,854.00 $1,149,595.03 5/21 to 9/30/17
Greenberg Traurig, LLP for PREPA $1,356,635.10 $57,025.81 $0.00 7/2 to 9/20/17
Ernst & Young LLP Board Expert $1,169,699.80 $4,910.69 $0.00 5/3 to 9/30/17
Luskin, Stern & Eisler LLP, counsel for the Board $$297,054.45 $2,172.59 unknown 5/3 to 9/30/17
McKinsey & Company, Inc. experts for the Board $5,120,000.00 $0.00 $0.00 7/1 to 9/30/17
Phoenix Management Services, LLC, experts for mediation team $774,101.00 $28,561.25 unknown 8/4 to 10/1/17
Deloitte Financial Advisory Services LLP, advisors to Commonwealth $6,647,370.29 $441,830.04 $6,647,370.29 5/3 to 9/30/17
FTI Consulting, Inc., experts  Committee of Retired

Employees

 

$660,431.00 $5,298.34  unknown 6/27 to 9/30/17
Jenner & Block LLP, counsel for Committee of Retired

Employees

$2,051,975.37 $60,916.21 $0.00 6/16 to 9/30/17
Segal Consulting, expert actuaries for Committee of Retired

Employees

$223,475.00 $5,305.47 $0.00 6/27 to 9/30/17
Greenberg Traurig, LLP, AFFAF counsel in PREPA $2,037,466.72 $23,832.82 $0.00 7/2 to 9/30/17
Zolfo Cooper, LLC, financial advisor to UCC $2,641,266.75 $38,372.69 unknown 6/27 to 9/30/17
Paul Hastings LLP counsel for UCC $$4,868,107.00 $133,270.22 $0.00 (of this application) 6/26 to 9/30/17
Ankura Consulting Group, LLC, financial advisors to PREPA $2,260,252 $129,303.57 unknown 7/2 to 9/30/17

Anyone who wants to can do the math. This proceeding is costing Puerto Rico enormous amounts of money. In addition, local entities to which the Commonwealth owes money are also spending money they could better use on lawyers and experts. The cost is mindboggling.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update – December 11, 2017

Welcome to your weekly Title III update for December 11, 2017. Not much happened but certain issues are looming large.

Ambac had sought a separate Rule 2004 discovery on the SUT after María, but this week joined GO and others’ petition requesting discovery as to other aspects of the Commonwealth’s finances. As was expected, the Board opposed the request for discovery and all eyes will be in Judge Dein’s courtroom on December 14 to see what will be decided. Irrespective of the decision, it is profoundly disturbing that at this stage, over a year from PROMESA’s enactment, the Board and PR continue being opaque about its finances.

The United States Solicitor General filed its opposition to the Aurelius and Utier motion regarding the unconstitutionality of the PROMESA members’ appointment. Surprisingly, the U.S. Government relied much less on Downes v. Bidwell, 182 U.S. 244 (1901), the racist basis of the so-called “Insular Cases,” than the Board or AFFAF/Governor Rosselló did, relying more on older case law. This is something that few have focused on, but something I will be exploring in further detail. The January 10 oral argument will be very interesting.

On December 13, at 11 EST, the Court will hear oral argument as to Motion for Summary Judgment of Employees Retirement System of the Government of Commonwealth of Puerto Rico and ERS Bondholders’ Motion for Summary Judgment on Issues Relating to Perfection and Application of Section 552 of the Bankruptcy Code. Both motions seek to show that bondholders of the Retirement System have no lien. Interesting to watch Judge Swain’s reaction.

The Asociación de Profesoras y Profesores del Recinto de Mayagüez, Inc., had sued the UPR, the Board, etc. trying to invalidate the UPR’s fiscal plan. The parties, however, agreed to stay the litigation until the new plan is approved. Let’s see what happens.

All this leads us to the December 20 Omnibus hearing which will also decide several issues. More on this next week.

Finally, during the Board’s hearings last week, its Executive Director, Ms. Jaresko, made it clear the Board would exercise its prerogatives pursuant to Sec. 207 of PROMESA to review prior to approving or denying any action by the Commonwealth to “issue debt or guarantee, exchange, modify, repurchase, redeem, or enter into similar transactions with respect to its debt.” Given the above, the Board will be able to veto any federal loans or any conditions demanded by the Treasury Department. This would include the $4.9 billion in community disaster loans from the funds approved by Congress that in order to be utilized require sign-off from FEMA and the US Treasury as well as the White House.  In addition to this approval by the Board, Judge Swain, pursuant to 11 U.S.C. § 364(c), would have to approve the loan if it is going to be more than a non-secured loan or administrative expense. This means that even if the Board approves, Judge Swain would have the final word. Will the Board have final say over these funds given the involvement from FEMA and the White House? We’ll see. Let’s see what the conditions of the loan will be.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update –December 4, 2017

Welcome to your weekly Title III update for December 4, 2017. As I predicted last week, the parties have not rested the Rule 2004 requests for production of documents. On November 28, 2017, the GO Bondholders, Ambac Assurance Corporation, Assured Guaranty Corp., Assured Guaranty Municipal Corp., the Mutual Fund Group, and National Public Finance Guarantee Corporation filed a joint motion seeking documents on the financial condition of the Commonwealth.  The GO Bondholders seek discovery on the following:

Requests 1 through 7 seek reports regarding the Commonwealth’s revenues, expenditures, liquidity, receipt of federal funds, and debt burden—all of which directly evidence the financial condition of the debtor.” 

“Requests 8 through 10 seek information relating to the Commonwealth’s macroeconomic projections, which will form the basis for the Commonwealth’s projection of its future financial condition, and the impact of any financial measures, in the revised fiscal plan. Specifically, these requests seek documents explaining testimony provided by, and models produced by, two Commonwealth consultants—Andrew Wolfe and DevTech—neither of which is on-island.”

“Requests 11 and 12 seek documents relating to fundamental expense projections that must be contained in the contemplated revised fiscal plan: “essential services,” and medical expenses. Because the Commonwealth necessarily must evaluate what constitutes an essential service, and projected medical expenses, production of documents containing such analysis should not be burdensome.”

“Request 13 seeks production to all Movants of documents that have already been produced to other parties, in order to put all creditors on the same playing field.”

 “Requests 14 and 15 seek documents relating to revenues that have been or are subject to being “clawed back” from certain Commonwealth agencies for purposes of paying the Commonwealth’s general obligation debt, as well as documents relating to special taxes dedicated to paying such debt.”

“Request 16 seeks copies of the forthcoming submissions of the fiscal plans of the Commonwealth or any instrumentality to the Oversight Board, as well as documents necessary to understand the live model of the Fiscal Plan for Puerto Rico certified on March 13, 2017 and the Puerto Rico Electric Power Authority Fiscal Plan certified on April 28, 2017. Movants believe that such information will be necessary to understand and analyze the revised fiscal plans.”

“Request 17 seeks documents related to the analysis that led to the creation of a $600 million “Reconciliation Adjustment” in the Fiscal Plan certified on March 13, 2017, which is layered onto projected expenses each year, and serves to wipe out the effect of the Commonwealth’s proposed financial reform measures.” 

On that same date, Ambac sought a separate Rule 2004 discovery on the SUT after María. On Saturday, December 2, 2017, the UCC filed a limited joinder to the GO Bondholders and Ambac’s request.  Judge Dein has ordered a hearing on the subject for December 14, 2017, at 12:30 pm EST in Boston. Given that bondholders continue to complain about lack of financial information from the Board and from AFFAF, it seems that Judge Dein will have to either shut the door on Rule 2004 or allow it. Let’s see what happens.

Judge Swain issued a further order extending the time to assume or reject leases and gave the Commonwealth “until the earlier of (i) January 1, 2019, (ii) the date of expiration or termination of such leases pursuant to their own terms, or (iii) the date on which a plan of adjustment is confirmed for each Debtor, without prejudice to (x) the Debtors’ right to seek further extensions as contemplated by Bankruptcy Code section 365(d)(4)(B)(ii), or (y) the right of any party in interest to object to such requested extensions.”

As to “Real Property Leases for which the respective landlords have been sent a request for a consensual extension” the extension is “until the earlier of (i) January 1, 2019, (ii) the date of expiration or termination of such leases pursuant to their own terms, or (iii) the date on which a plan of adjustment is confirmed for each Debtor, without prejudice to (x) the Debtors’ right to seek further extensions as contemplated by Bankruptcy Code section 365(d)(4)(B)(ii), or (y) the right of any party in interest to object to such requested extensions, and subject to a reservation of the rights of each landlord on Exhibit B to assert that its consent was not validly provided.” Now the Commonwealth has ample time to decide which leases to reject and “convince” others to give it substantial rent reductions.

This is crunch time for motions for summary judgment in the New York Mellon Bank interpleader. Several motions have been filed but COFINA has yet to decide which it will answer. The time to file said answers has been extended to December 8, 2017 and replies to January 5, 2018, which  means that a decision could come as early as February 2018, but could be contingent on what is decided in the Commonwealth v. COFINA adversary proceeding.

Also, the issue of the scope of the Commonwealth v. COFINA disputes, oppositions to the motions as to the dispute must be filed by December 4, 2017 and replies by December 11. The oral argument will be heard during the December 20 Omnibus hearing. Also, summary judgment motions, the Commonwealth and COFINA have suggested January 31, 2018 with a March 2018 trial date. Let’s see what Judge Swain determines.

The Utier constitutional challenge continues its movement with the American Federation of State, County and Municipal Employees, which was allowed a limited intervention, filing a motion for the Court not to dismiss the Utier complaint for lack of standing. What behooves the mind is that this party opposes the Utier complaint and supports the Board’s request for dismissal, but not on standing grounds. Go figure.

 The Aurelius constitutional challenge motions continue to be filed as the January 10, 2018 oral argument looms. The hearing promises to be lively with veterans of United States Supreme Court arguments leading the way. Hope one of my clients wants me to attend.

In the Commonwealth v. COFINA litigation, the GO bondholders answered the UCC’s complaint, the COFINA counterclaims, answered COFINA Senior Bondholders answers in intervention and defenses and the Mutual Funds. This is another litigation that one should keep an eye on for it has the potential of deciding half of the bond debt.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update –November 27, 2017

Welcome to your weekly Title III update for November 27, 2017. This Thanksgiving week very little transpired in the case.

Judge Houser was not amused by the parties discussion of what documents, or lack thereof, were provided during mediation during the oral arguments of Rule 2004 discovery. She filed a notice of breach of confidentiality and promptly Judge Swain issued an order that what goes on in mediation cannot be discussed in the main case. If a party still thinks it must make reference to something that happened during mediation, it must first request to file a motion under seal. I foresee this will happen with some frequency.

Judge Dein issued an order that if any party wanted to file a Rule 2004 motion, it would be “limited to no more than 20 targeted requests” which the Board had to answer. After the Board filed its opposition, the parties have to meet to see if they can come to agreements. Since the party is given up to 20 requests, there can be more than one motion. I foresee this happening with frequency.

The issue of the mediation and the Rule 2004 motions are closely linked. Several parties are seeking information on how the information used to prepare the Fiscal Plan and its economic models therein. Movants made a valid point that this information is vital to understand the future plan of adjustment which must be consistent with the fiscal plan. Hence, if you don’t understand how the Fiscal Plan is made, you will not be able to understand the Plan of Adjustment. The Board insisted it was providing the documentation in a special data room for those who were involved in the mediation but movants denied this.

Since the days of Alejandro García Padilla, the Government of Puerto Rico has resisted being open as to its finances. Since its first meeting, the Board has resisted being open as to where the Fiscal Plan assumptions and data come from, what they were and how its economic models worked and were devised. These actions by the Government of Puerto Rico and the Board are clearly against PROMESA.

Section 201(b)(1)(F) states that the Fiscal Plan must “improve fiscal governance, accountability, and internal controls.” In addition, section 405(m)(1) states as a finding of Congress that “[a] combination of severe economic decline, and, at times, accumulated operating deficits, lack of financial transparency, management inefficiencies, and excessive borrowing has created a fiscal emergency in Puerto Rico.” Clearly, Congress believed that transparency and accountability are of great importance but neither the Board nor the Government of Puerto Rico have heeded this admonishment. By denying these requests to do discovery, the Court has only helped the Board and the Government of Puerto Rico to perpetuate its lack of transparency.

Also closely related is the UCC request to conduct discovery as to the validity of the debt. The UCC has repeatedly pointed out the conflicts of interest of the Board as to the issuance of debt but the Court has preferred to allow it to take point, albeit with input from the Committee. Again, the Court has given the Board the benefit of the doubt but it seems to me that eventually, it will have to come out, and that will unfortunately likely be later rather than sooner.

This lack of transparency is critical not only to the Title III litigation but the entire PROMESA scheme. If Congress has found that lack of financial transparency was a factor in the island’s fiscal emergency, why has the Board gotten away with obfuscation of the truth? Given this lack of transparency, why has Congress not acted? Why can the  Board get away with telling the Court and all of those us who attended the hearing that there would be no money for debt service in the next 5 years without the corresponding documentation to support it? What is the Board’s agenda that requires that it have no transparency? Questions, questions.

The Mellon Bank interpleader as to COFINA is moving along with summary judgments, etc. It is an open question if the Court will decide the issues via motion, have a trial and or postpone decision until the Commonwealth v. COFINA case is decided. Having mentioned this case, the Court has allowed motions to intervene by all COFINA bond representatives, AFFAF and the GO Bondholders in this case. This is important since Judge Swain had denied intervention to the GO Bondholders and others in the Mellon Bank Interpleader.

The Commonwealth v. COFINA controversy will determine the ownership of the COFINA funds. If the funds belong to the COFINA bondholders, there will be less money for all other bondholders. On the other hand, if the SUT funds belong to the Commonwealth, will it have unfettered use of them? Will GO Bondholders have dibs on them or, as the Board claims, do they not have priority over these funds? This litigation may decide around $36 billion of the $72 billion of Puerto Rican debt when finished. Let’s see how Judge Swain plays it out.

I took a look at the PREPA Ad Hoc appeal, docketed on November 6, 2017, and it still does not have a briefing schedule. Neither party has requested expedited consideration of the matter although PROMESA requires that matters be expedited by the Courts.

A new adversary proceeding was filed that claims that Plaintiffs are owed “for services provided in furtherance of the Commonwealth’s Medicaid program,” a grant jointly supported by the federal government and the Commonwealth.  They also state that this debt is non-dischargeable and that the debts are otherwise unimpaired by PROMESA or the Commonwealth’s filing of Title III proceedings under such Act. Since one of my clients is involved in this, I will not comment as to the merits but those interested should read section 7 and 304 of PROMESA. Suffice it to say there are millions of dollars in judgments that plaintiffs have not been able to collect in state court.

On related matters, allegedly PREPA had stopped paying Whitefish due to Arc American, Inc. having sent it a letter claiming it had not been paid. On November 22, 2017, Whitefish, a Montana corporation with its principal place of business in that state, sued Arc, a Florida corporation, in the 11th Judicial District Court at Flathead County in Montana for several causes of action and an injunction, even though their contract calls for disputes to be arbitrated. It is a very weird procedure and it is doubtful Montana courts have long arm jurisdiction over Arc.  The case could easily be moved to federal court. To add to the confusion, PREPA paid Whitefish $2.7 million for work already done, so it is questionable whether the Montana litigation will continue.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update – November 20, 2017

Welcome to your weekly Title III update for November 20, 2017. This week several motions and incidents of great importance have occurred. Aside from the blockbuster and, to me, surprising decision by Judge Swain to deny the Board’s unilateral appointment of Noel Zamot as PREPA CTO and essentially put the Government of Governor Rosselló on equal footing with the Board, other interesting things transpired. Even still, it remains to be seen if the Board will appeal Judge Swain’s ruling.

The Board filed a motion essentially stating that the COFINA and Commonwealth agents exceed its authority in the Commonwealth v. COFINA dispute. It states at page 2 of its motion:

“[B]oth the COFINA Agent and Commonwealth Agent have exceeded the scope of their respective agencies by making claims and seeking relief that go beyond the narrow issue for which they were appointed to resolve—the Commonwealth-COFINA Dispute. The Oversight Board thus seeks an order confirming the scope of the tasks it expressly assigned to its Agents, so the Agents can answer the single question posed to them, through litigation or authorized settlement, and the Oversight Board can then use that answer to carry out its duty to restructure the debts of the Commonwealth and COFINA.”

As to the Commonwealth Agent, to wit the UCC, the Board objects to Count III that states “the Commonwealth Agent hereby indicates its intent to breach, revoke, and/or reject that unsecured promise” that sales and use tax (“SUT”) “revenues would be transferred to COFINA in the future.”

As to the COFINA agent, the objections are to these causes of action:

“Count II: Declaration that the “Commonwealth’s misappropriation of the Pledged Sales Tax and/or Dedicated Sales Tax” constitutes a violation of the U.S. and Puerto Rico Constitutions.

Count III: Declaration that the “Commonwealth’s misappropriation of the Pledged Sales Tax and/or Dedicated Sales Tax through the Compliance Law” constitutes a violation of PROMESA.

Count VII: Permanent Injunctive Relief against the Commonwealth, preventing the Commonwealth from “interfering” with the Funds.

Count VIII: Declaration that “the GO Bonds, PBA Bonds and Other Debt Issued in Violation of the Debt Limit” Are Not Entitled to Priority under the Constitution.” (Board motion pages 6-8)

The Board motion also argues that the interveners’ motions exceed the scope of the intervention. These objections are much more numerous than the COFINA and Commonwealth Agent objections. The motion specifically objected to several causes of action by Ambac, COFINA Senior Bondholders, Mutual Fund Group/Mutual Fund Group and National.

Irrespective of the merit of these objections, and some are quite meritorious, it is clear that the Board wants to tightly control the Commonwealth v. COFINA litigation. To what extent it will be allowed by Judge Swain, we will soon find out.

Related to the Commonwealth v. COFINA dispute, several motions to strike claims were filed this week. Ambac filed a motion to strike the UCC’s causes of action (claim 12 and 13) claiming COFINA is unconstitutional – which I believe is the strongest claim — and the avoidance claims (claims 4-11). As you can see, Ambac wants to strike the bulk of the UCC’s claims against COFINA. Another party trying to control the scope of inquiry in the Commonwealth v. COFINA dispute.

Judge Hausser, in charge of the mediation team, made some remarks during the November 13, hearing but recognized that “no major breakthroughs had been achieved.” As to the UCC’s motion to conduct discovery as to the legality of PR debt, Judge Dein denied it without prejudice and conditioned any new motion on the UCC confirming:

  1. “that it has entered into a mutually agreeable nondisclosure agreement with the investigator appointed by the Oversight Board (the “Investigator”) or has been unable to do so despite its good faith efforts;
  2. that it has submitted targeted discovery requests for information from the Financial Institutions to the Investigator; and
  3. that the Investigator has failed to seek this information from the Financial Institutions within a reasonable time or has otherwise been unable to obtain this information within a reasonable time.”

The clear message to the Board and its investigator is to take the UCC’s views seriously.

The QTCB Noteholder Group filed a motion requesting that the UCC’s Eight Cause of Action against COFINA be stricken. This cause of action claims “that any security interest of COFINA is subordinate to the rights of the Oversight Board as trustee.”

Also, the GO Ad Hoc Committee filed a motion to strike the following in the Commonwealth v. COFINA litigation:

“a. The Second, Third, Fourth, Seventh, and Eighth Causes of Action asserted in the Amended Answer, Defenses, and Counterclaims of the Appointed Agent of the Puerto Rico Sales Tax Financing Corporation (COFINA) (Dkt. No. 75 ¶¶ 73-102, 117-128);

b. The Third Counterclaim asserted in the Mutual Fund Group’s and Puerto Rico Funds’ Answer and Counterclaims (Dkt. No. 88 ¶¶ 73-80);

c. The Second, Third, and Fourth Causes of Action asserted in the Answer, Affirmative Defenses, and Counterclaims of National Public Finance Guarantee Corporation (Dkt. No. 93-1 ¶¶ 70-102);

d. The First, Second, Third, Fourth, Fifth, Sixth, and Seventh Counterclaims for Relief asserted in Intervenor-Defendant and Counterclaimant Ambac Assurance Corporation’s Answer and Affirmative Defenses to the Unsecured Creditor Committee’s Amended Complaint and Counterclaims Against the Commonwealth (Dkt. No. 94 ¶¶ 56-111); and

e. The Second, Third, Fourth, Fifth, Sixth, Seventh, Tenth, Fourteenth, Fifteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, and Twenty-first Causes of Action asserted in the Answer in Intervention and Counter and Crossclaims of the COFINA Senior Bondholders’ Coalition (Dkt. No. 90 ¶¶ 69-122, 137-141, 161-175, 182-207)”

Clearly, the Commonwealth v. COFINA controversy is much larger than it seems.

Judge Dein heard argument on several motions for Rule 2004 discovery. She granted Siemens right to request documents and take on deposition on “whether or not the funds identified in the Motion are being held in an escrow account.”

The former representative of the Puerto Rico Government to the Board, Mr. Elías Sánchez, had filed a motion to strike his mention in the UCC request to conduct discovery on the Whitefish contract. Although the UCC amended its motion to reflect the fact that he denied any involvement, Mr. Sánchez insisted in striking any mention of himself. As I predicted, Judge Swain denied the motion to strike.

The UCC and PREPA reached written stipulation on the inquiry as to Whitefish. Maybe at some time we will know the truth behind this scandal.

Aurelius filed a reply to motion to dismiss by the Board and to the Board’s objection to the lifting of the stay. These issues which surround the Constitutionality of the appointment of the Board members is in full fledged briefing schedule. In December, the Solicitor General of the US will file his opposition to Aurelius and Utier and oral arguments are to be held in January 10, 2018. The issue is likely to reach the US Supreme Court.

The Official Committee of Retired Employees of Puerto Rico was allowed to intervene in a limited fashion in the adversary proceeding of the ERS v. Altarir where the validity of certain liens is being challenged.

Lastly, the American Federation of State, County and Municipal Employees filed a reply to Utier’s opposition to their intervention in its constitutional challenge of the Board appointments.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update – November 13, 2017

Welcome to your weekly Title III update for November 13, 2017. This week and last several motions and incidents of great importance have occurred.

Today, Judge Swain heard oral arguments regarding the Board’s urgent motion to appoint a Chief Transformation Officer for PREPA. After arguments, Judge Swain not only ruled against the Board from the bench, but made important findings in favor of a limited view of the Board’s power. She said nowhere in Title I, II or III of PROMESA was there basis for the appointment of Mr. Zamot. She insisted that PROMESA required that the Puerto Rican Government act first and then the Board could react.

Judge Swain also denied that the Board could impose the recommendations it made in the Fiscal Plan if the Government rejected the recommendations, which puts into question the Board’s power to impose furloughs or pension reductions. Judge Swain mentioned that in the DC Board statute, there was the power to appoint an emergency manager and that this was not included in PROMESA. Moreover, Section 204 of PROMESA does not give the Board power to review all contracts, as it previously claimed. She also mentioned that Section 108(a) does not give the Board power to conduct day-to-day management of recovery efforts. Important, the Board cannot unilaterally borrow money in the name of the Government of Puerto Rico and any feasible Plan of Adjustment must take into account the Government of Puerto Rico. Both the Board and Puerto Rican Government are partners to achieve the dual goals of PROMESA.

All this essentially puts Governor Rosselló and his administration on equal footing with the Board. One cannot do things without the other. It remains to be seen if the Board will appeal this decision or if it will simply seek these prerogatives from Congress.

Finally, I want to make clear that I do not support the Board. I think it has exercised its powers to the detriment of Puerto Rico. It was my professional opinion that PROMESA, as written, gave the Board the powers it was invoking and as is the case in every piece of ongoing litigation, the Judge had the last word unless her decision is appealed. Let’s see how this new balancing of powers works out for Puerto Rico.

Last week, the Asociación de Profesoras y Profesores del Recinto Universitario de Mayagüez, Inc., a professorial association of employees of UPR Mayagüez Campus, filed an amended complaint challenging the UPR fiscal plan as unconstitutional. The problem with the complaint is that the professors lack standing since the reduction in funds to the UPR does not necessarily entail injury to them. Without standing, this challenge will likely fail.

The QTCB Noteholder Group filed a notice of intervention in the Commonwealth v. COFINA dispute to request that the UCC’s Eight Cause of Action be stricken. This cause of action claims that any security interest of COFINA is subordinate to the rights of the Oversight Board as trustee.” COFINA creditors have been filing answers to the complaint aside from what the COFINA agent has done so Judge Swain will have many arguments to sift through.

Two weeks ago, the UCC filed a motion to conduct discovery on the Whitefish contract and quickly several bondholders joined the request. Both PREPA and Whitefish were willing to provide the documents they would provide to Congress. After a short delay, they came to a stipulation to provide documents to the UCC. As the stipulation was filed, the Court cancelled the November 13 afternoon hearing. There will be a hearing on November 15, however, for the myriad other Rule 2004 requests for discovery that have been pending for a while. These requests include requests by bondholders on information as to the financial condition of the Commonwealth. On November 15, Judge Dein will hear further argument in the Siemens Transportation, National Public Finance Guarantee Corp., Ambac Assurance, UCC and GO, Assured Guaranty & Mutual Fund Group Rule 2004 motions. It will be interesting to see whom and to what extent Judge Dein will allow to conduct discovery.

Also, on November 6, the Board announced its policy on the Puerto Rican Government review. PROMESA gave the Board this power but it was only during its October 31 meeting that it decided to utilize this power. Extremely convenient, given the Whitefish contract controversy. The document states:

“This Policy applies to any contract that is proposed to be entered into by the Commonwealth or any covered instrumentality. As used in this Policy, “contracts” also applies to grants and sub-grants. This Policy applies to all contracts in which the Commonwealth or any covered instrumentality is a counterparty, including those with the federal government, state governments, private parties, and nonprofit organizations.”

So much for the Board recognizing the limitations of section 204(d)(2) of PROMESA or the democratically elected government of Puerto Rico.

In addition, Ambac Assurance objected to the Board’s request for an extension to the period to determine whether to reject or adopt unexpired contracts. Understandable, but it is unlikely Judge Swain will not grant the extension.

The saga of Elías Sánchez v. the UCC continues. The UCC amended its motion for Whitefish discovery to acknowledge that Mr. Sánchez denied the allegations but refused to withdraw its statement that former Governor Acevedo Vilá in his radio show claimed Mr. Sánchez was involved in the Whitefish contract. Mr. Sánchez filed a reply but it is unlikely Judge Swain will strike a statement of fact that Mr. Acevedo Vilá made the claim.

The US Government, although asking to be heard via motion, was absent from today’s hearing, putting into question its support of the Board.

The Board also took off the gloves with AFFAF in another issue. AFFAF requested leave to intervene in the Utier challenge to the constitutionality of the Board appointment. The Board objected but said at page 4:

“Defendants support AAFAF’s intervention as a party in interest pursuant to 11 U.S.C. § 1109 (“Section 1109”), consistent with Dkt. 75 in 17-ap-189, and Dkt. 38 in 17-ap-219. Under Section 1109, AAFAF “may raise and may appear and be heard” on issues in this adversary proceeding, including the Motion to Dismiss the complaint. Accordingly, AAFAF should be permitted to file briefs stating its position on issues raised in this adversary proceeding and subject to such notice or other requirements as the court may impose, and be heard at arguments concerning issues raised in this adversary proceeding. AAFAF does not have the right, and should not be afforded the right, to control, appeal, or settle causes of action.”

In other words, AFFAF can state its position and be heard but nothing more. Sort of a permanent Amicus Curiae. Again the Board brushes aside the Government of Puerto Rico. And speaking of the Utier complaint, the union filed an amended complaint cutting 25 pages of its previous motion. It seems that a review of the Aurelius complaint was persuasive.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update –November 6, 2017

Welcome to your weekly Title III update for November 6, 2017. This week several motions and incidents of great importance have occurred.

Whitefish continues to dominate in the news and in the Court. The UCC filed a motion requesting leave to conduct Bankruptcy Rule 2004 on the Whitefish contract. The motion, which is a superb summary of all the facts and allegations surrounding the Whitefish contract, states that at page 15:

“The only way to address these concerns through the lens of the stakeholders in these Title III Cases is through discovery under Bankruptcy Rule 2004. As the official committee appointed to represent all of the unsecured creditors in PREPA’s title III case, no party stands better suited to investigate and evaluate these issues than the Committee.”

The UCC mentioned that former Governor Aníbal Acevedo Vilá, during one of his daily radio shows, alleged that Elías Sánchez, former Governor Rosselló representative before the Board, was involved with Whitefish, as an example of possible corruption or wrongdoing. Mr. Sánchez was not amused and filed a motion to strike the statement and included a statement, under penalty of perjury, stating he does not represent Whitefish or any of its principals nor have any contracts with PREPA. Judge Swain issued an order that the UCC “shall file an opposition, if any, by November 7, 2017. Mr. Sánchez shall file a reply by November 9, 2017 at 1:00 p.m.” Never a dull moment in Puerto Rican politics!

Related to the Whitefish contract and PREPA, much to my surprise, several parties filed objections to the Board’s request to appoint Mr. Zamot as the Chief Transformation Officer. For example, the Ad Hoc Group of PREPA Bondholders filed a motion claiming that PROMESA does not explicitly allow the Board to appoint Mr. Zamot. The Ad Hoc Group, however, retained an expert that evaluated the grid and found that:

While Hurricane Maria undeniably inflicted substantial damage, ample evidence demonstrates that the vast majority of the assets of the PREPA generation, transmission, and distribution system are substantially intact and could be restored expeditiously if appropriate and competent measures were implemented.” (page 1 of the motion)

The Ad Hoc Group’s motion details the decades of mismanagement of PREPA and specifically, the mismanagement of the corporation under the Rosselló administration. For example, the motion mentions that “on October 31, AAFAF publicly presented a liquidity update that showed that PREPA has had, and was projected to have, over $500 million from July 7 through September 22; by October 20, PREPA’s liquidity balance had decreased only to $471 million.” (Page 5) Moreover, the Ad Hoc Bondhholders filed a declaration by Derek HasBrouck (required reading for all residents of Puerto Rico), which excoriates PREPA for lack of preparedness and total mismanagement in the Hurricane María emergency. Although these bondholders do not support Zamot saying he has no experience in electrical grids, they renew their call for a receiver that would respond to a court (not Judge Swain) to manage PREPA. Fat chance that will happen unless the First Circuit reverses Judge Swain’s decision on the Ad Hoc bondholders’ request.

National filed a short motion objecting to the permanent appointment of Mr. Zamot but stated it “supports the entry of an appropriately tailored order, pursuant to section 105 of the Bankruptcy Code (made applicable to this Title III case by section 301 of PROMESA), authorizing Mr. Zamot to oversee the immediate repairs to the island’s electric power grid on an interim basis for a period of 120 days. Given the extenuating circumstances on the island, such limited relief is both warranted and urgent. National respectfully requests, however, that the Court deny the remainder of the relief requested or, alternatively, defer consideration of it until a later date.” (Page 8)

The Puerto Rican Energy Commission, supposedly PREPA’s regulator, filed a motion saying it took no position as to the Board’s motion but requested from the Court that it “(a) state explicitly that any approval of the CTO Motion does not preempt the Commission’s authority; and, regardless of how this Court rules on the CTO Motion, (b) direct counsel for FOMB and the Commission to develop, for this Court’s approval, a set of protocols ensuring that the actions of each entity are coordinated and mutually supportive, and not in conflict.” (Page 1) No idea how Judge Swain or the Board will handle this.

Obviously, AFFAF, representing PREPA, opposes the Zamot designation, repeating that PROMESA does not authorize the Board to do what it wants done. However, it seems to me its explanation of what the Board may or may not do pursuant to Section 305 of PROMESA ignores the fact that it clearly states that the Court cannot interfere with the local government’s power unless the Board agrees. Since the Board does agree with this interference with local authority, I fail to see how Judge Swain will not find for the Board. Also in disagreement was Scotiabank de Puerto Rico (“Scotiabank”), as administrative agent for PREPA’s “Fuel Line Lenders”. The motion repeats that the Board does not have the authority to appoint Zamot but without that authority it has ample authority to oversee PREPA’s recovery efforts. Scotiabank stated:

“To the extent the Oversight Board wishes to engage a CTO or other individuals to fulfill its statutory oversight role, the Fuel Line Lenders have no objection. In particular, if the Oversight Board has concluded that a CTO will add value in supervising the power restoration process (including through review and approval of contracts), the engagement should go forward on that basis.

The appointment of a long-term chief executive to take over PREPA’s management is completely different. As noted, the Oversight Board has no authority to supplant PREPA’s management. But if PREPA itself were to supplement its senior leadership, the utility would need to undertake an organized process to attract the best available individuals. A standard approach would be to engage an independent search firm (such as Russell Reynolds, which identified candidates to serve on PREPA’s board of directors) to search for individuals, inside or outside PREPA, with significant knowledge of the utility industry and experience managing a large utility such as PREPA. Scotiabank, as agent for the Fuel Line Lenders, stands ready and willing to participate in any such process along with PREPA, the Commonwealth, the Oversight Board, and other stakeholders.” (Page 10)

It is clear to me that creditors do not believe PREPA is capable of bringing electricity to Puerto Rico in a quick fashion, but they also do not trust the Board to be in complete control of the agency. Moreover, as Puerto Rico’s representative to the Board has said, if this remedy is granted, what would prevent the Board from appointing a CTO for the Government of Puerto Rico? Time will tell.

In addition, the PREPA Board of Directors filed a short objection and the U.S. Bank National Association, in its capacity as successor trustee under the PREPA Trust Agreement dated as of January 1, 1974, joined the Ad Hoc Bondholders motion.

Also on Friday November 3, several parties filed objections to Aurelius motion to dismiss the Title III filing for violating the appointments clause. Donald J. Verrilli issued a strong defense of the Board’s appointment, which it is to be expected as he was President Obama’s Solicitor General when PROMESA was enacted. Aurelius will reply soon and oral arguments are to be held in January 2018. If, however, President Trump’s Solicitor General decides not to support the PROMESA appointment process, which is unlikely, Mr. Verrilli will have an uphill battle. The Official Committee of Retired Employees of the Commonwealth of Puerto Rico also filed a motion in opposition to the Aurelius motion to dismiss, giving reasons why supposedly Congress has the authority to limit presidential power to appoint in territories. This has not been the practice in the past, however.

On the other hand, the American Federation of State, County and Municipal Employees, who also filed an objection to the Aurelius request for dismissal of the Title III proceeding, claims that it “opposes dismissing this Title III case based on the Appointments Clause unless, at a minimum, the offensive doctrine of territorial incorporation is completely overruled.” What does that doctrine have to do with Presidential powers is beyond me, but there it is. Obviously, this argument is made because the only one who can reverse the doctrine of territorial incorporation is the Supreme Court of the United States. I find this motion lacking but lets see what Judge Swain decides next year. In an interesting twist, the American Federation of State, County and Municipal Employees filed a motion to intervene in the Utier request for declaration of unconstitutionality of Board appointments to seek the dismissal of the complaint. It seems this group believes it is better off in a bankruptcy proceeding. Also, the GO bondholders joined the Aurelius request for dismissal in a short motion.

In addition, Judge Swain issued an order, pretty much agreed upon by the parties after extensive negotiations, granting Bettina Whyte, the COFINA agent:

“The protections of 48 U.S.C. § 2125 (“Immunity Protections”) shall apply to the COFINA Agent, the Commonwealth Agent (together with the COFINA Agent, the “Agents”) and their respective professionals and employees with respect to all actions of the COFINA Agent or Commonwealth Agent, as applicable, taken in good faith to carry out their duties under the Stipulation and Order; provided, however, that the foregoing shall not prohibit the Oversight Board or any other party in interest from asserting that a claim, counterclaim or defense asserted by an Agent in the Commonwealth-COFINA Dispute, or any other action of an Agent, is outside of the scope of the authority delegated by the Oversight Board to the Agents or otherwise set forth in the Stipulation and Order (a “Scope Objection”), and if the Court enters an order that (i) sustains a Scope Objection or (ii) otherwise rules that the Agents do not have the authority to take an action or litigate a claim, counterclaim or defense (a “Scope Order”), then the Immunity Protections shall not apply to any further actions by the Agents, their professionals or employees to continue to litigate such claim, counterclaim or defense, except that the Immunity Protections shall apply to any appeal of a Scope Order and to any actions taken in mediation with respect to such claim, counterclaim or defense prior to appeals being exhausted.” (Page 2-3)

In addition, the order states that COFINA will pay Ms. Whyte’s fees from the account it has with BPPR and if there is not enough money, then from the NY Mellon Bank account. Loss for AFFAF.

The UCC filed on Friday, November 3, an informative motion as to the issues of Rule 2004 discovery and informed Judge Dein, The Creditors’ Committee’s position has not changed, and the Creditors’ Committee respectfully requests a ruling on its pending Bankruptcy Rule 2004 Motion after oral argument on November 15, 2017.” (Page 1) In addition, the UCC stated that John Couriel’s investigation on behalf of the Board is different from the one it seeks to conduct:

“[T]his investigation as intended not to identify culpable third parties or potential claims but instead “sole[ly] [] to find facts” related to, among other things, “the factors contributing to Puerto Rico’s fiscal crisis” and its debt issuance.5 However interesting this effort may be in developing a historical record of the financial foibles of various Commonwealth actors, the Creditors’ Committee’s interest is rather different. Because it represents the interests of creditors holding billions of dollars in claims that will be satisfied only partially, its intent is in determining whether claims exist that might benefit these creditors. Mr. Couriel is not pursuing that end.” (page 2 of the motion)

If Judge Dein recommends the UCC proceed, this will throw a monkey wrench into the Board’s plans of total control of the Title III proceeding. In the HTA case, the parties also failed to reach an agreement as to Siemens’ request for Rule 2004 discovery.

On the subject of Rule 2004 discovery, an Omnibus motion by different creditors and debtors was filed, essentially stating that no agreement has been reached. Also, the UCC partially joined National’s request for Rule 2004 discovery. All these issues will be discussed during the November 15 hearing.

The Board also opposed the Aurelius motion to lift the stay and the UCC requested leave to argue during the hearings on several motions to dismiss adversary proceedings. The UCC also opposed bondholders’ request for a 90 day stay in the case, as did the Board.

Finally, the Board had a meeting on Tuesday, October 31. I attended the meeting and quite a bit of new information came out. The Board wants a new fiscal plan for the Commonwealth to be provided by December, with a projected approval for February. As to the fiscal plan, Ms. Jaresko and members of the Board warned the Government that with a population reduction since the hurricane of 15% (gasp!) and a projected 40% plus reduction in income, it had to consider what essential services it could provide. This is nothing more than an even more aggressive employment and pension reduction. During the meeting, Ms. Jaresko announced, upon the suggestion of the settlement team, that all stakeholders have an opportunity to comment on the new fiscal plan. Also, the Board will now review any contract of the Commonwealth and its instrumentalities of $10 million or more before it can be approved. The Board will also review, at random, contracts that have been granted, including the Whitefish contract, in particular. Considering that after María the Puerto Rican government has granted 1,600 contracts, this is a herculean task.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.

Monday Update – October 30, 2017

Welcome to your weekly Title III update for October 30, 2017. This week is dominated by the Whitefish scandal, which will undoubtedly affect the PROMESA litigation and the Board’s roll vis-à-vis the Puerto Rico government.

Whitefish is a recently incorporated Montana-based company with only two employees and reported sales of $1,000,000. The company has no history of mayor reconstruction work, yet, somehow, landed a $300,000,000 contract to reconstruct the PREPA grid. Ricardo Ramos, PREPA’s executive director, said right after Hurricane Irma that the utility had sufficient supplies to repair itself – a claim later debunked. Mr. Ramos stated later that if another hurricane came he would call the American Public Power Association, which would provide its crews for the reconstruction of the power grid. When the APPA crews did not appear, he first said that he had called the association for assistance but received no answer. When the APPA chairman said he had not called, Ramos changed the tune to say they were asking for millions in deposit, something Whitefish did not.  There was no bid for the contract. The contradictions were many and Congressional cries to investigate were loud. Moreover, the contract became public but rather than answer questions it created more. Paragraph 59 reads, “[i]n no event shall PREPA, the Government of Puerto Rico, the FEMA administration, the Comptroller General of the United States, or any of their authorized representatives have the right to audit or review the cost and profit elements of the labor rates specified therein.” This section reeks of bad faith and lack of transparency. Further, in any event would be void as contrary to the law, moral and public order, both in Common Law and Puerto Rico’s Civil Law.  FEMA will have to decide soon whether it will reimburse PREPA for the Whitefish contract – a question sure to be raised when FEMA Administrator Brock Long testifies before Congress this week.   Now, it’s reported the Federal Bureau of Investigation is investigating the Whitefish contract.

Further, on October 26, 2017, Congressman Rob Bishop, chairman of the House Natural Resources Committee, requested from Ricardo Ramos a series of documents pertaining to the adjudication of this contract. Congressman Bishop, in a not very subtle tone, made clear to Mr. Ramos to preserve all communications with Whitefish, which include emails, phone calls, and Linked In messages – the method a Whitefish spokesperson claims is how he first contacted Mr. Ramos. In what seems like a coordinated action with Chairman Bishop’s Committee, the Board announced on October 25, 2017, the designation of Mr. Noel Zamot as the Chief Transformation Officer for PREPA. The next day, the Board filed a motion with Judge Swain in the PREPA Title III proceeding asking for Mr. Zamot to be appointed as CTO, whose duties and responsibilities makes him PREPA’s new CEO, see motion at page 2. The motion, at page 17, states as follows:

“Section 305 of PROMESA provides that, “notwithstanding any power of the court, unless the Oversight Board consents or [the debtor’s Title III] plan [of adjustment] so provides, the court may not by any stay, order or decree, in the case or otherwise, interfere with –(1) any of the political or governmental powers of the debtor; (2) any of the property or revenues of the debtor; or (3) the use or enjoyment by the debtor of any income-producing property.” PROMESA § 305. As this Court reasoned in its rejection of the lift stay motion, a receiver could not be appointed because “permission to require the appointment of a receiver to manage PREPA’s operations and seek the approval of rates higher than those PREPA has thus far chosen to charge – is facially inconsistent with Section 305 of PROMESA [and cannot be ordered by the court] absent the Oversight Board’s consent, which has not been given here.” Order Denying Receiver Motion at 10–11. It follows that, to the extent it is argued that the CTO would necessarily exercise or interfere with political or governmental powers in carrying out its responsibilities, the Court may order the appointment of the CTO provided the Oversight Board consents. The Oversight Board’s consent is given through this Urgent Motion, and it respectfully requests appointment of the CTO with the powers and authority described herein.”

Moreover, at page 19 of the motion, the Board states “[n]othing herein shall prevent the Oversight Board from seeking an order from the court to amend, alter, expand, or limit the Powers and Authority vested in the CTO by any order of the court.” Hence, the Board may seek even more powers for the CTO. This begs the question; can the Board obtain the appointment of a CTO for the Commonwealth Government at some time to eclipse Governor Rosselló? The government has vowed to oppose this latest Board action but I see little chance it may succeed. Judge Swain on Friday ordered the government to oppose the Board’s motion no later than November 3, any reply by November 8 and the oral argument will be on November 13, at 11 am. Fireworks are to be expected unless Governor Rosselló relents.

Why is the Board moving for the Zamot designation? Mostly because it wants to control the María recovery funds, something that is barred at this time by PROMESA section 204(d)(2), and to prove that it is a useful oversight authority rather than simply a tool rip up contracts with Puerto Rico’s creditors. As I said, Judge Swain is very likely to side with the Board since sections 305 and 315 of PROMESA allow the Board to do so.

On Wednesday October 25, the Court held the hearing on the recovery funds motion by the Board and surprisingly, loans were removed by AFFAF from the definition of recovery funds. The language was negotiated between the parties for as I said, there was no real opposition to the Board’s motion, only to some of the language. Also, the UCC said that it expected to settle the COFINA v. Commonwealth litigation, hastily adding that litigation was very costly. Undoubtedly, over 90% of federal cases are settled, but any settlement here that does not involve 100% of COFINA funds for the Commonwealth will be challenged by the GO bondholders, leading to even more litigation.

This summary is merely what I believe are the more salient motions and decisions in the cases. I receive an average of 20 filings each day so it would be impossible to summarize everything. If you have legal interest in these cases, I urge you to hire an attorney to represent you.