How Does Your BATNA Look Now, Bank or investment company of America? I’ve recently posted about a mediator’s perspective of the MBIA v. Bank or investment company of America (BAC) litigation here, as well as a possible technique for MBIA to “email the secrets” to MBIA Insurance (Securitization Sub) here. In my last mediator’s perspective post, I provided a framework by which I thought both MBIA and BAC could obtain from arrangement what they needed, although definitely not all that they wanted. Assuming that this settlement value is correct with regard to analysis, BAC would compare this settlement value to the value of BAC’s BATNA.
However, it would appear that BAC will eventually lose this article 78 (though we should await Justice Kapnick’s decision to be sure), and MBIA removed the cross-default scenario using its recently completed be aware consent solicitation. First, it’s important to tell apart between NYDFS rehabilitation and liquidation proceedings. When I refer to the “mail the keys” strategy, I am referring to a voluntary rehabilitation proceeding initiated under Section 7402(l) of the NY Insurance Law.
In order to comprehend just what a voluntary rehabilitation of Securitization Sub would look like, this FAQ site on FGIC’s website is an excellent spot to start. Essentially, the rehabilitator (NYDFS or its designee) would think of a rehabilitation plan for Securitization Sub, much such as a debtor-in-possession federal personal bankruptcy proceeding.
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1.6 billion secured loan to Securitization Sub). Just consider what this will do to BAC’s computation of the value of its BATNA? If I were BAC at a settlement negotiation with MBIA and I heard that MBIA was threatening to commence a voluntary treatment proceeding, I would consider this to be a credible threat. Indeed, one might believe BAC shows us that it recognizes this as a credible risk by publicly saying that any successful consummation of the MBIA consent solicitation would make a treatment proceeding of Securitization Sub “much more likely”.
In any “full litigation mode” rehabilitation plan pursued by NYDFS, one might consider that BAC’s BATNA should be valued significantly less than its arrangement value (ie resulting in a much greater world wide web payment to MBIA). Moreoever, any “full litigation mode” rehabilitation plan would also expose BAC to help expand damaging legal precedents because of its other existing and potential litigations (see here and here). So, how exactly does your BATNA look now, BAC?
NB: this website is not designed to be investment advice, and should not be relied upon by one to constitute investment advice. Investing is a hardcore game, and everyone must do and “own” their own work, because you will certainly own your investments. Disclosure: long MBI. Follow me on twitter. Posted by Christian S. Herzeca, Esq.
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