More On Legal & Compliancefrom The Advisor's Professional Library
- Do’s and Don’ts of Advisory Contracts In preparation for a compliance exam, securities regulators typically will ask to see copies of an RIAs advisory agreements. An RIA must be able to produce requested contracts and the contracts must comply with applicable SEC or state rules.
- Conducting Due Diligence of Sub-Advisors and Third-Party Advisors Engaging in due-diligence of sub-advisors isnt just a recommended best practice it is part of the fiduciary obligation to a client. An RIA should be extremely reluctant to enter a relationship with a sub-advisor who claims the firms strategy is proprietary.
Calling the accusations “worthy of an Oliver Stone movie,” a federal district court judge in New York today dismissed a lawsuit brought by former American International Group chief executive Maurice “Hank” Greenberg against the Federal Reserve Board.
Greenberg and his company, Starr International, had charged that the Fed acted against the interests of AIG and its shareholders when it bailed AIG out starting in September 2008.
The court said arguments by Greenberg and Starr International are “not plausible,” dismissing, amongst other allegations, that AIG was forced by the N.Y. Fed in Sept. 2008 to pay excessive amounts to its counterparties to satisfy its obligations under credit default swap contracts. Starr claimed in the suit that that transaction served as a “backdoor bailout” by the N.Y. Fed of these counterparties.
A spokesman for the N.Y. Fed says the agency would have no comment. A spokesman for Starr International referred all calls to Greenberg’s lawyers at Boies, Schiller and Flexner LLP, New York, who did not respond to requests for comment.
The amended suit was filed November 2011.
Still remaining is a $25 billion lawsuit in the federal Court of Claims in Washington accusing the U.S. government of engineering an unconstitutional bailout of the insurer. In a preliminary ruling, a federal judge has allowed that suit to proceed.
Greenberg is a major AIG shareholder, and Starr is the original company from which AIG was created. Starr International held a 12 percent stake in AIG before a court settlement allowed it to again become independent.
“Federal Reserve Bank of New York’s motion to dismiss the amended complaint is granted in its entirety,” said Judge Paul A. Engelmayer in a decision filed today in the Federal Court for the Southern District of New York.
“All of Starr's claims are dismissed with prejudice, with the exception of Starr's takings claim, which was withdrawn, and which is therefore dismissed without prejudice,” Engelmayer ordered.
At the same time, the judge characterized the suit in colorful terms.
“Starr’s amended complaint paints a portrait of government treachery worthy of an Oliver Stone movie,” Engelmayer said.
In his 89-page opinion, Engelmayer said Starr failed to allege facts sufficient to carry its heavy burden of calling the trustees’ independence from the N.Y. Fed into question.
“Starr claims that, as the global financial system teetered on the brink of collapse, the N.Y. Fed seized control of AIG,” the judge said.
“Then, Starr claims, the N.Y. Fed, in an act of Napoleonic plunder, stole AIG’s assets, re-distributing some to shore up other flagging financial institutions while keeping much of the residue for itself,” the judge said.
“It is, however, one thing to make a sweeping and dramatic claim of government misconduct. It is quite another to plead plausibly—under the established standards of Delaware law, and based on concrete factual allegations, as [the law requires]—that FRBNY exercised control over AIG,” Engelmayer said.
The court held that Starr’s claim that FRBNY was a “controlling shareholder” or a “controlling lender” of AIG is not plausible in light of the facts pled and documents referenced in the amended complaint, the judge said in his opinion.
“Because Starr’s fiduciary duty claims are all premised on such control, those claims must be dismissed,” the judge said.
In his decision, Engelmayer said the facts stated in the case “instead plausibly permit only one conclusion, and it is inconsistent with Starr’s thesis of control.”
That conclusion, he said, is that in September 2008, “AIG was in extremis, and its independent board of directors, to save the company, voluntarily accepted the hard terms offered by the one and only rescuer that stood between it and imminent bankruptcy—the NY Fed, ” the opinion states.
“Specifically, based on Starr’s own allegations, AIG, as of mid-September 2008, was in dire straits, whether as a result of its own business decisions, the unraveling state of the financial system, the lack of available liquidity, or a perfect storm of these and other factors, and was actively considering bankruptcy; AIG had not found any effective rescuer in its hour of need other than FRBNY, and had run out of time to keep looking; and AIG’s Board, unwilling to accept bankruptcy and the ‘public opprobrium’ and ‘risk of legal liability’ that would come with it, acceded—regretfully, and perhaps angrily, but, as a matter of law, voluntarily—to the hard terms on which the NY Fed was willing to extend the $85 billion credit facility,” the decision says.
“Far from describing actual control of AIG by an outside party, these allegations describe a moment of corporate desperation, in which AIG’s board grabbed the sole lifeline extended to the company,” Engelmayer said.
“To be sure, AIG’s directors faced wrenching circumstances,” the decision continues. “But Starr has not pled facts sufficient, under Delaware law, to shift responsibility from the board to the N.Y. Fed for the board’s decision to agree to the term sheet and credit agreement. On the facts alleged, as of September 17 and 22, 2008, AIG’s directors retained actual control of the company. They—not the N.Y. Fed—were the ones with fiduciary duties towards AIG and its shareholders.”