The Credit Default Swap Litigation Threat
In a prior post (here), I described the growing litigation risk arising out of credit default swap (CDS) transactions. In their recent overview of subprime-related litigation entitled “The Pebble and the Pool: The (Global) Expansion of Subprime Litigation” (here), John Doherty and Richard Hans of the Thacher Proffitt and Wood law firm note that “more lawsuits involving credit default swaps are likely to be initiated in the near future, as the current trend has the potential for huge losses resulting from the defaults on ‘high-yield’ or ‘junk” bonds in connection with the general market failure.”
In a June 1, 2008 article entitled “First Came the Swap. Then It’s the Knives” (here), New York Times columnist Gretchen Morgenson takes a close look at one failed CDS transaction and the litigation that has followed, about which she quotes “experts” as saying that the case is “the first of what will likely be a flood of disputes between big banks and hedge funds that typically strike swap deals.”
The swap involved was issued by a Paramax Capital hedge fund in early 2007 to insure $1.31 bilion of AAA-rated super senior notes that “reflected performance of subprime mortgages in a collateralized debt obligation underwritten by UBS.” The Paramax fund, which itself had just $200 million in capital, organized a special purpose entity capitalized with just $4.6 million, to conduct the swap. Paramax was to receive an annual fee of 0.155 percent of the notes’ $1.31 billion value (or slightly more than $2 million), and would be subject to additional collateral requirements if the notes’ value declined.
Over the course of 2007, UBS presented escalating requirements that Paramax post a total of $33 million in additional collateral. When Paramax refused, UBS sued. According to the Times article, Paramax now contends that a UBS managing director (no longer with the company) induced Paramax to enter the transaction, and to address Paramax’s concern that it might be called upon to post additional collateral, reassured Paramax that the mark-to-market risk on the underlying securities was low because UBS used “subjective valuations” designed to reduce the impact of market fluctuations.
As detailed further in the Times article, there are a number of interesting things about this transaction. From my perspective, the most noteworthy aspect is that UBS considered a special purpose entity with only $4.6 million in capital to be an appropriate source of default insurance for instruments with a face value of $1.31 billion. UBS’s contractual right to demand additional collateral from the hedge fund, which itself had capital of only $200 million (which presumably was deployed in other ways and accordingly unavailable in its entirety as additional collateral), seems a woefully inadequate explanation for this transaction.
The Naked Capitalism blog (here) notes that “UBS was clearly well aware of Paramax’s limits, so the next question is: was UBS solely responsible for pulling a fast one on the CDO buyers or is Paramax a co-conspirator?”
This litigation between UBS and Paramax resembles the CDO Plus litigation I discussed in my prior post (here) about swaps. In those cases as well, a thinly capitalized hedge fund was unable to meet demands for additional collateral and wound up in litigation with the large commercial banks that had purchased CDS protection from the fund. As consequences from the credit crisis continue to roll through the financial marketplace, CDS counterparties are likely to face further collateral demands, which can only fuel further litigation.
But the counterparties themselves are not the only potential litigants. Behind the CDS purchaser are the investors who made investments in the belief that the investment interests were “insured” against default. As it emerges that this insurance depended upon facially inadequate counterparties, investors may join the fray. As the Naked Capitalism blog post linked above notes, “since over 30% of the credit default swaps were written by hedge funds, many of whom were probably as incapable as Paramax of performing in the event of default, it’s not unreasonable to assume that some of these CDS lawsuits will lay the groundwork for investor litigation.”
Another aspect of the role of CDS in the financial marketplace is leading to yet another variety of CDS-related litigation. That is, because there is no requirement that a CDS buyer hold the underlying instruments, swaps are often used as a means to speculate on interest spreads. That means that these instruments can serve an investment purpose separate apart from their insurance purpose.
The problem for companies that have used swaps for investment purposes is that as a result of the credit turmoil, the market for these instruments in an uproar, and the instruments’ valuation has become uncertain. Indeed, as recent circumstances have shown, these valuation issues are present whether a company holds the swap as an investor or as an insurer. Several of the most significant recent financial institution asset write-downs have involved these CDS valuation uncertainties; for example, a substantial part of the recent write-downs of Swiss Re and of American International Group related to CDS valuation issues. Significantly, in both instances, shareholders litigation ensued following the write-downs. (Refer here regarding the Swiss Re litigation and refer here regarding the AIG litigation). It seems highly improbable that there will not be further shareholder litigation over these CDS valuation issues.
As reflected in the June 6, 2008 Wall Street Journal (here), the recent signs are that the turmoil in the financial marketplace is far from over , as a result of which the pressure on CDS will remain, and there likely will be further litigation. Even if only a tiny percentage of CDS transactions beget litigation, the problem could be huge. According to the International Swaps and Derivatives Association (here), the aggregate notional value of credit defaults swaps outstanding at the end of 2007 was $62 trillion, an amount which arguably exceeds the value of bank deposits worldwide. It is nearly three times the value of the U.S. stock markets.
With numbers that astronomical, even a small sliver represents a mammoth problem. With nominal values of $62 trillion, issues concerning valuation present a potentially frightening prospect for companies, their investors, and their insurers. As Time Magazine said in its recent article entitled “Credit Default Swaps: The Next Crisis?” (here), “a meltdown in the CDS market has potentially even wider ramifications nationwide than the subprime crisis.”
Susan Mangiero has an interesting post (here) on her Pension Risk Matters blog about these issues.
The “Pebble in the Pool” article I linked to above presents a very good overview of the subprime-related litigation generally and is worth reviewing on its own for those purposes.
Another Subprime-Related Lawsuit Against Mutual Fund: On June 5, 2008, plaintiffs’ attorneys initiated a securities class action lawsuit in the United States District Court for the District of Massachusetts under the Securities Act of 1933 on behalf of purchasers of the Fidelity Ultra-Short Bond Fund who purchased their fund shares within three years of the lawsuit’s filing.
According to the complaint (which can be found here), the defendants in the lawsuit include Fidelity Management & Research Company, which is the investment advisor to the Fidelity mutual funds, and related entities, and also include the 21 individual trustees of the Ultra-Short Bond Fund.
According to the plaintiffs’ lawyers’ June 5, 2008 press release describing the complaint (which can be found here), the plaintiffs allege that the defendants solicited investors to purchase fund shares by making statements that described the fund as a fund that “(i) “Seeks a high level of current income consistent with the preservation of capital”; (ii) “allocates its assets across different market sectors and maturities”; (iii) has a “similar overall interest rate risk to the Lehman Brothers® 6 Month Swap Index”; and (iv) is geared toward the “preservation of capital.”
The complaint alleges that these statements were false because “defendants did not adequately disclose the risks associated with investing in the Fund, including, for example, that the Fund was: (i) failing to compete with the Lehman Brothers® 6 Month Swap Index; and (ii) so heavily invested in high-risk mortgage-backed securities.”
I have added this case to my running tally of subprime-related litigation, which can be found here. With the addition of this lawsuit, the tally now stands at 86 subprime-related securities class action lawsuits, of which 46 have been filed in 2008.
I note that by my count, this new lawsuit represents the fourth subprime-related lawsuit against a mutual fund or mutual fund family. The other include Calamos Global Dynamic Income Fund (about which refer here), Regions Morgan Keegan Funds (refer here), and the Schwab Yield Plus Fund (refer here).
A lawsuit filed late last week against 
New York Subprime Lawsuit Between Two Foreign Banks: As I noted in prior posts (most recently 
