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CONGRESSIONAL OVERSIGHT PANEL

SEPTEMBER OVERSIGHT REPORT*

THE USE OF TARP FUNDS IN THE SUPPORT AND REORGANIZATION OF THE
DOMESTIC AUTOMOTIVE INDUSTRY

SEPTEMBER 9, 2009.—Ordered to be printed

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*Submitted under Section 125(b)(1) of Title 1 of the Emergency Economic
Stabilization Act of 2008, Pub. L. 110–343

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CONGRESSIONAL OVERSIGHT PANEL SEPTEMBER OVERSIGHT REPORT

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1

CONGRESSIONAL OVERSIGHT PANEL

SEPTEMBER OVERSIGHT REPORT*

THE USE OF TARP FUNDS IN THE SUPPORT AND REORGANIZATION OF THE
DOMESTIC AUTOMOTIVE INDUSTRY

SEPTEMBER 9, 2009.—Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON

51–964

:

2009

For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800
Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

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*Submitted under Section 125(b)(1) of Title 1 of the Emergency Economic
Stabilization Act of 2008, Pub. L. 110–343

CONGRESSIONAL OVERSIGHT PANEL
PANEL MEMBERS
ELIZABETH WARREN, Chair
PAUL ATKINS
REP. JEB HENSARLING
RICHARD H. NEIMAN

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DAMON SILVERS

(II)

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CONTENTS
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Executive Summary .................................................................................................
Section One: The Use of TARP Funds in the Support and Reorganization
of the Domestic Automotive Industry .................................................................
A. Introduction ..................................................................................................
B. What Happened? The Sequence of Events ................................................
C. The Impact of the Reorganizations: Who Got What? ................................
D. Treasury’s Objectives: What was Treasury Trying to Achieve? ..............
E. Bankruptcy Law Aspects of the Automotive Company Rescues ..............
F. Following the Money ....................................................................................
G. Issues Raised ...............................................................................................
H. Conclusion and Recommendations .............................................................
Annexes:
A. Professor Adler .............................................................................................
B. Professor Lubben .........................................................................................
Section Two: Additional Views ...............................................................................
A. Congressman Jeb Hensarling .....................................................................
Annex to Congressman Jeb Hensarling’s Additional Views .........................
Section Three: Correspondence with Treasury Update ........................................
Section Four: TARP Updates since Last Report ...................................................
Section Five: Oversight Activities ..........................................................................
Section Six: About the Congressional Oversight Panel ........................................
Appendices:
APPENDIX I: LETTER FROM CHAIR ELIZABETH WARREN TO SECRETARY TIMOTHY GEITHNER AND CHAIRMAN BEN BERNANKE,
RE: CONFIDENTIAL MEMORANDA, DATED JULY 20, 2009 ..............
APPENDIX II: LETTER FROM CHAIR ELIZABETH WARREN TO SECRETARY TIMOTHY GEITHNER, RE: TEMPORARY GUARANTEE
PROGRAM FOR MONEY MARKET FUNDS, DATED AUGUST 12,
2009 ................................................................................................................

(III)

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SEPTEMBER OVERSIGHT REPORT

SEPTEMBER 9, 2009.—Ordered to be printed

EXECUTIVE SUMMARY*

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Even before last year’s financial crisis, the American automotive
industry was facing severe strains. Foreign competitors had steadily eroded its market share. Rising fuel prices had softened demand
for its products. Legacy costs had constrained its flexibility. And a
series of poor strategic decisions by its executives had compounded
these problems. In 2008, U.S. automotive sales fell to a 26–year
low.
The financial crisis weakened American automakers even further, constricting credit and reducing demand, turning their longterm slump into an acute crisis. By early December, Chrysler and
General Motors (GM) could no longer secure the credit they needed
to conduct their day-to-day operations. Unless they could raise billions of dollars in new financing, they faced collapse—a potentially
crippling blow to the American economy that Treasury estimated
would eliminate nearly 1.1 million jobs.
Facing this prospect, the administration of former President
George W. Bush stepped in and provided short-term financing to
the automotive companies, using funds from the Troubled Asset
Relief Program (TARP). The policy was later continued by the
Obama Administration, which supplied additional loans that were
used to finance the bankruptcy reorganizations of Chrysler and
GM.
Treasury’s financial assistance to the automotive industry differed significantly from its assistance to the banking industry. Assistance given to the banks has carried less stringent conditions,
and money was made readily available without a review of busi* The Panel adopted this report with a 2–1 vote on September 8, 2009. Rep. Jeb Hensarling
voted against the report. Additional views are available in Section Two of this report.

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2
ness plans or without any demands that shareholders forfeit their
stake in the company or top management forfeit their jobs. By contrast, Treasury was a tough negotiator as it invested taxpayer
funds in the automotive industry. The bulk of the funds were available only after the companies had filed for bankruptcy, wiping out
their old shareholders, cutting their labor costs, reducing their debt
obligations and replacing some top management. The decision to
provide financing for the automotive industry raises a number of
questions about TARP and its use, including the decision to fund
the automotive industry, the government as tough negotiator, the
conflicts of interest that arise when the government owns a substantial stake in a private company, and the exit strategy. This report addresses each of these issues.
The decision to intervene also raises critical questions about
Treasury’s objectives. Was the primary purpose of this intervention
to provide bridge funding to the automakers, with the expectation
that these were viable companies that could eventually repay taxpayers in full? Was it to prevent an uncontrolled liquidation because such a prospect posed a systemic risk to the financial markets and the overall economy? Was it to advance broader policy
goals, such as improving fuel efficiency or sustaining American
manufacturing and jobs? Or was it some combination of these? To
date, Treasury’s public statements provide little clarity, as each of
these objectives has been cited at various times.
Whether Treasury had the legal authority to use TARP funds to
bail out Chrysler and GM is the subject of considerable debate.
There was, however, enough ambiguity in the TARP legislation,
and there continues to be ambiguity about congressional intent, so
that Treasury has faced no effective challenge to its decision to use
TARP funds for this purpose.
Given the size of the automotive companies, the historical importance of the industry, and the government’s extensive engagement
in this process, the bankruptcy proceedings were highly visible and
invited much public scrutiny. Those creditors who saw their investments in the company sharply reduced in bankruptcy raised vigorous objections to the role of the government as tough negotiator.
The Panel asked two experts on bankruptcy law, Professor Barry
Adler of New York University and Professor Stephen Lubben of
Seton Hall University, to provide the Panel with an analysis of the
bankruptcy process.
When all had settled, substantial changes had been made in the
businesses, shareholders had been wiped out, many creditors had
taken substantial losses, and the American taxpayers emerged as
the owners of 10 percent and 61 percent of post-bankruptcy Chrysler and GM, respectively.
Although taxpayers may recover some portion of their investment in Chrysler and GM, it is unlikely they will recover the entire
amount. The estimates of loss vary. Treasury estimates that approximately $23 billion of the initial loans made will be subject to
‘‘much lower recoveries.’’ Approximately $5.4 billion of the loans extended to the old Chrysler company are highly unlikely to be recovered. The Congressional Budget Office earlier calculated a subsidy
rate of 73 percent for all automotive industry support under TARP
and recently raised its estimate of the cost of that assistance by approximately $40 billion over the previous estimate. Because Treas-

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ury has not clearly articulated its objectives, it is impossible to
know if this prospect, indeed, represents a failure of Treasury’s
strategy.
The government’s emergence as the part-owner of a large, private company raises critical oversight questions. At times, in the
ordinary course of business, natural tensions arise between the interests of a corporation’s management team, its shareholders and
the directors who represent them, its creditors, its workers, its regulators, and, and its customers. The government’s investment in
the American automotive industry has added a new complication,
as the American public now directly or indirectly participates in
many of these roles. This report explores the conflict between possibly competing objectives, including preventing significant job
losses across the nation in the midst of an economic crisis against
maximizing shareholder profits; changing the culture of these automotive companies against not interfering with day-to-day management; and public accountability against normal commercial operations. The Panel assesses how effectively Treasury has navigated
these and other concerns, including its role in the bankruptcy process.
The Panel recommends that, to mitigate the potential conflicts of
interest inherent in owning Chrysler and GM shares, Treasury
should take exceptional care to explain its decision-making and
provide a full, transparent picture of its actions. The Panel recommends that Treasury use its role as a significant shareholder in
Chrysler and GM to ensure that these companies fully disclose
their financial status and that the compensation of their executives
is aligned to clear measures of long-term success. To limit the impact of conflicts of interest and to facilitate an effective exit strategy, Treasury should also consider placing its Chrysler and GM
shares in an independent trust that would be insulated from political pressure and government interference.
Finally, because of the unprecedented nature of the assistance
provided to the automotive industry, the Panel also recommends
that Treasury provide its legal analysis justifying the use of TARP
funds for this purpose. This analysis will inform policymakers’ and
taxpayers’ understanding of the potential for Treasury to use its
authority to assist other struggling industries.
Treasury must be clearer, more transparent, and more accountable in its TARP dealings, providing the American public with the
information needed to determine the effectiveness of Treasury’s efforts.

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4
SECTION ONE: THE USE OF TARP FUNDS IN THE SUPPORT AND REORGANIZATION OF THE DOMESTIC
AUTOMOTIVE INDUSTRY
A. INTRODUCTION
Beginning in December 2008, Treasury broadened its allocation
of funding under the Troubled Asset Relief Program (TARP) by
using $85 billion in TARP funds to support the domestic automotive industry.1 In this report, the Panel examines several key
considerations relating to these disbursements, including: Treasury’s justification for extending TARP funds to the automotive sector, how exactly this money has been used, and whether Treasury
has properly and publicly articulated its objectives and taken action in furtherance of those objectives. This report also examines
Treasury’s role in the bankruptcy of Chrysler Holding LLC (Chrysler) and General Motors Corporation (GM), how Treasury plans to
protect taxpayers’ interests while the government controls these
companies, and how Treasury intends to maximize taxpayers’ returns when the government divests itself of ownership.
The Emergency Economic Stabilization Act of 2008 (EESA),2
which governs Treasury’s administration of TARP, specifically authorizes the Secretary of the Treasury ‘‘to establish the Troubled
Asset Relief Program . . . to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution.’’ 3 EESA also established the Panel to oversee Treasury’s administration of the program. According to its mandate, the Panel
is obliged to review and oversee the Secretary of the Treasury’s use
of his authority under TARP, the impact of TARP on the financial
markets and financial institutions, the extent to which information
made available on TARP transactions has contributed to market
transparency, and TARP’s effectiveness in minimizing long-term
costs and maximizing benefits to the taxpayers.
While these oversight objectives do not fit as neatly into an examination of Treasury’s involvement in the automotive industry as
they do with respect to its involvement in the financial industry,
if Treasury is of the understanding that it has the authority to use
TARP funds to assist the automotive industry, then the Panel has
the obligation to ‘‘follow the money’’ and determine whether Treasury used that money in furtherance of the stated objectives of
TARP.
B. WHAT HAPPENED? THE SEQUENCE

OF

EVENTS

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Despite increasing competition from abroad, the U.S. automotive
industry continues to account for a significant portion of America’s
economic output. As recently as early 2004, the industry produced
almost four percent of this nation’s gross domestic product.4 Even
1 U.S. Department of Treasury, TARP Transaction Report (Aug. 18, 2009) (online at
www.financialstability.gov/ docs/ transaction-reports/ transactions- reportl08182009.pdf) (hereinafter ‘‘August 18 Transactions Report’’).
2 Emergency Economic Stabilization Act of 2008 (EESA), Pub. L. No. 110–343 (hereinafter
‘‘EESA’’).
3 EESA § 101(a)(1).
4 Bureau of Economic Analysis, National Income and Product Accounts Table: Table 1.5.5—
Gross Domestic Product, Expanded Detail (Aug. 27, 2009) (online at www.bea.gov/natinal/
nipaweb/ TableView.asp? SelectedTable= 35&ViewSeries= NO&Java=no&Request3Place=

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though the industry lost approximately 435,000 jobs between 2000
and 2008, approximately 880,000 people continued to be employed
in the industry in 2008.5 This represents more than 6.5 percent of
the total manufacturing jobs in the United States.6 Notably, the
American steel industry shipped almost 13 percent of its output to
automotive manufacturers in 2008.7
However, in the fall of 2008, the combination of rising gasoline
prices, tightening credit markets, eroding consumer confidence,
high unemployment, and discretionary spending concerns prompted
a significant downturn in automobile sales in the United States
and abroad, with 2008 sales 18 percent lower than the previous
year’s.8 U.S. automobile sales fell to a 26-year low, from a high
point of 17.3 million cars and light trucks in 2000 to 13.2 million
in 2008. Sales fell much further in the first half of 2009 as a result
of deteriorating economic conditions and are projected to be roughly
10.3 million units for 2009 and 11.1 million in 2010.9 The tightened
credit market was especially significant because 90 percent of consumers finance automobile purchases through loans, either directly
from the manufacturers’ financing arms or through third-party financial institutions, all of which experienced increased difficulty in
raising capital to finance the loans.10 The particularly weak condition of the financing arms of Chrysler and GM—Chrysler Financial
and GMAC, respectively—exacerbated the manufacturers’ plummeting sales as the credit markets seized up.11
In December 2008, Chrysler and GM faced a crippling lack of access to credit due to the global financial crisis.12 Their CEOs appeared before Congress and appealed for government assistance to
help them stay afloat.13 The House of Representatives responded
on December 10 by passing legislation to provide a total of $14 billion in loans to the two companies, allocating the funds from a previously enacted Department of Energy program for advanced vehiN&3Place=N&FromView=
YES&Freq=Year&FirstYear=
1990&LastYear=
2008&3Place=N&Update= Update&JavaBox=no) (hereinafter ‘‘National Income Table’’).
5 Bureau of Labor Statistics, Automotive Industry: Employment, Earnings, and Hours
(accessed on Aug. 21, 2009) (online at www.bls.gov/iag/tgs/iagauto.htm) (hereinafter ‘‘Employment, Earnings, and Hours Report’’).
6 Id.
7 Center for Automotive Research, Sean McAlinden, Kim Hill, and Bernard Swiecki, Economic
Contribution of the Automotive Industry to the U.S. Economy—An Update, at 21–25 (Fall 2003)
(online at www.cargroup.org/ pdfs/ Alliance-Final.pdf).
8 IHS Global Insights, U.S. Executive Summary at 9 (Aug. 2009) (hereinafter ‘‘U.S. Executive
Summary’’).
9 Id. at 2.
10 House Committee on the Judiciary, Administrative Law Subcommittee, Testimony of Ron
Bloom, Senior Advisor at the U.S. Department of Treasury, Ramifications of Automotive Industry Bankruptcies, Part II, 111th Cong., at 1 (July 21, 2009) (online at judiciary.house.gov/ hearings/pdf/ Bloom090721.pdf) (hereinafter ‘‘Ramifications of Automotive Industry Bankruptcies
Part II’’).
11 Id. at 19. The decline arose in no small part due to a history of actual and consumer-perceived inferior product quality relative to foreign competitors. U.S. Department of Treasury,
Chrysler February 17 Plan: Determination of Viability, at 3 (Mar. 30, 2009) (online at
www.financialstability.gov/ docs/AIFP/ Chrysler-Viability- Assessment.pdf) (hereinafter Chrysler
February 17 Viability Plan’’).
12 Senate Committee on Banking, Housing, and Urban Affairs, Testimony of Chrysler Chairman and CEO Richard Nardelli, State of the Domestic Automobile Industry: Part II, 110th Cong.,
at 2 (Dec. 4, 2008) (online at banking.senate.gov/public/ index.cfm?FuseAction= Hearings.Testimony
&HearinglID=
299be20f-5e40-4c5f-89ee2ade064d4226&WitnesslID=
45d1bc44-ac76- 4539-be69- 32e09c50b3b8) (hereinafter ‘‘Nardelli Senate Testimony’’).
13 Id. The President and Chief Executive Officer of Ford Motor Company also testified at this
hearing.

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cle technology.14 The bill was blocked in the Senate on December
11, which effectively prevented the legislation from being signed
into law.15 The Bush Administration then announced that it would
consider making TARP funds available to the automotive industry—a reversal of its previous stance that automakers were ineligible to receive TARP assistance—and on December 19 announced
that Chrysler and GM would both receive TARP funds.16 The
White House Fact Sheet accompanying the announcement estimated that ‘‘the direct costs of American automakers failing and
laying off their workers in the near term would result in a more
than one percent reduction in real GDP growth and about 1.1 million workers losing their jobs, including workers for automotive
suppliers and dealers.’’ 17
Under the Automobile Industry Financing Program (AIFP) that
was announced on December 19, Chrysler and GM received bridge
loans of $4 billion and $13.4 billion, respectively, under separate
loan and security agreements.18 The GM loan and security agreement was signed on December 31, 2008 and GM drew the first $4
billion total loan amount on that date. The Chrysler loan and security agreement was signed on January 2, 2009, and Chrysler drew
the entire $4 billion loan amount on that date. On January 16,
2009, GM drew an additional $5.4 billion installment.19 These
three loan installments used the last of the $350 billion first
‘‘tranche’’ of TARP under EESA. Beyond that, the President had to
transmit to Congress a written report of the plan to exercise the
authority to use the remaining half of the funding, after which
Congress had 15 calendar days to enact a joint resolution of disapproval. Congress failed to pass the disapproval resolution for the
second tranche of TARP funds on January 15, and GM then drew
a third installment of $4 billion on February 17, 2009.20 The term
sheets for both companies established a loan interest rate of
14 H.R. 7321, Auto Industry Financing and Restructuring Act, 110th Cong (hereinafter ‘‘H.R.
7321’’).
15 The failure to invoke cloture on the proposed legislation by a vote of 52 to 35. U.S. Senate,
Roll Call Vote on the Motion to Invoke Cloture on the Motion to Proceed to Consider H.R. 7005
(online at www.senate.gov/ legislative/LIS/ rolllcallllists/ rolllcalll votelcfm.cfm?congress=
110&session= 2&vote=00215).
16 White House Office of the Press Secretary, President Bush Discusses Administration’s Plan
to Assist Automakers (Dec. 19, 2008) (online at georgewbush whitehouse.archives.gov/ news/
releases/ 2008/12/20081219.html) (hereinafter ‘‘Bush Plan to Assist Automakers’’).
17 White House Office of the Press Secretary, Fact Sheet: Financing Assistance to Facilitate
the Restructuring of Auto Manufacturers to Attain Financial Viability (Dec. 19, 2008) (online at
georgewbush-whitehouse.archives.gov/ news/releases/ 2008/12/20081219-6.html) (hereinafter
‘‘Auto Viability Financing Fact-Sheet’’).
18 The loans were documented in two separate documents released by Treasury, both entitled
Loan and Security Agreement, on December 31, 2008. In total, up to $13.4 billion was made incrementally available to GM (with $4 billion available upon the effective date of December 31,
2008) in the first TARP financing. In total, $4 billion was made available to Chrysler on the
same effective date. Each agreement was for a secured term loan facility with a first lien on
all unencumbered assets of each company. Treasury accepted junior liens on encumbered assets.
The loans expire December 30, 2011. U.S. Department of the Treasury, Loan and Security
Agreement [GM] (Dec. 31, 2008) (online at www.financialstability.gov/ docs/agreements/
GM%20Agreement%20 Dated%2031%20 December%202008.pdf) (hereinafter ‘‘GM Loan and Security Agreement’’); U.S. Department of the Treasury, Loan and Security Agreement [Chrysler]
(Dec. 31, 2008) (online at www.financialstability.gov/docs/agreements/Chyslerl12312008.pdf)
(hereinafter ‘‘Chrysler Loan and Security Agreement’’).
19 U.S. Department of Treasury, Fourth Tranche Report to Congress (Jan. 7, 2009) (online at
www.financialstability.gov/ docs/TrancheReports/ Fourth-Tranche-Report.pdf).
20 U.S. Department of Treasury, Section 105(a) Troubled Asset Relief Program Report to Congress for the period February 1, 2009 to February 28, 2009 (Mar. 6, 2009) (online at
www.financialstability.gov/ docs/105CongressionalReports/ 105aReportl 03062009.pdf) (hereinafter ‘‘Fourth Tranche Report’’).

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LIBOR plus three percent, with an additional five percent penalty
on any amount in default.21
The AIFP loans were extended to Chrysler and GM under terms
and conditions specified in the loan agreements.22 The most important condition required each company to demonstrate that the assistance would allow it to achieve ‘‘financial viability,’’ which was
defined as ‘‘positive net value, taking into account all current and
future costs, and [the ability to] fully repay the government
loan.’’ 23 Both companies were required to submit viability plans designed ‘‘to achieve and sustain [their] long-term viability, international competitiveness and energy efficiency.’’ 24 Key to such viability would be ‘‘meaningful concessions from all involved in the
automotive industry.’’ 25 The loans also imposed conditions and covenants related to their operations, expenditures, and reporting
thereof to the President’s designee, including divestiture of interests in all private passenger aircraft and nonpayment of unapproved bonuses to certain executives.26
Both companies submitted plans demonstrating their financial
viability in February 2009. GM’s plan called for reductions in
plants, dealers, employees, and nameplates (Saturn, Saab and
Hummer would be eliminated).27 Chrysler’s plan presented three
scenarios:
1. Chrysler could continue as a stand-alone company with
the help of $11 billion in loans from the government;
2. Chrysler could pursue a non-binding agreement already
signed with the Italian automaker Fiat S.p.A. (Fiat) and, with
additional government assistance, aim to sell more fuel efficient cars to a wider range of markets; or
3. Chrysler could file for bankruptcy and embark on an orderly wind down of the company.28
On February 15, 2009, President Obama announced the creation
of an interagency Presidential Task Force on the Auto Industry
(Task Force), that would assume responsibility for reviewing the
Chrysler and GM viability plans. The Task Force is co-chaired by
Treasury Secretary Timothy Geithner and Director of the National
Economic Council Lawrence Summers and includes a number of ex-

21 GM Loan and Security Agreement, supra note 18; Chrysler Loan and Security Agreement,
supra note 18.
22 Auto Viability Financing Fact-Sheet, supra note 17.
23 Auto Viability Financing Fact-Sheet, supra note 17.
24 U.S. Department of the Treasury, Indicative Summary of Terms for Secured Term Loan Facility [GM], at 5 (Dec. 19, 2008) (online at www.ustreas.gov/ press/releases/ reports/
gm%20final%20 term%20&%20appendix.pdf) (hereinafter ‘‘GM Secured Term Loan Facility
Summary’’); U.S. Department of the Treasury, Indicative Summary of Terms for Secured Term
Loan Facility [Chrysler], at 5 (Dec. 19, 2008) (online at www.ustreas.gov/ press/releases/ reports/
chrysler%20 final%20term%20&%20 appendix.pdf) (hereinafter ‘‘Chrysler Secured Term Loan
Facility Summary’’).
25 Bush Plan to Assist Automakers, supra note 16.
26 GM Secured Term Loan Facility Summary, supra note 24 at 3–4; Chrysler Secured Term
Loan Facility Summary, supra note 24 at 3–4.
27 General Motors Corporation, 2009–2014 Restructuring Plan (Feb. 17, 2009) (online at
media.gm.com/ us/gm/en/news/ govt/docs/ plan.pdf) (hereinafter ‘‘GM Restructuring Plan’’).
28 Chrysler Group LLC, Chrysler Restructuring Plan for Long-Term Viability (Feb. 17, 2009)
(online at www.media.chrysler.com/ dcxms/assets/attachments/ RestructuringlPlanlforl
LongTermlViability.pdf) (hereinafter ‘‘Chrysler Restructuring Plan’’).

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officio designees29 and government staffers.30 In addition, the
President named two advisors to lead the Treasury auto team,31
which had responsibility for evaluating the companies’ viability
plans and negotiating the terms of any further assistance: Ron
Bloom, a former investment banker and advisor to the president of
the United Steelworkers union, and Steven Rattner, the co-founder
of the Quadrangle Group, a private equity firm. (Mr. Rattner subsequently left the Treasury auto team on July 13, 2009, leaving
Mr. Bloom as the auto team’s head.) The auto team reports to the
Task Force and its co-chairs, who then report up to the President.
President Obama announced the results of the Treasury auto
team’s review on March 30. According to the auto team, the most
important indicator of the companies’ viability was their ability to
‘‘generate positive cash flow and earn an adequate return on capital over the course of a normal business cycle.’’ 32 In making the
individual determinations, the auto team generally assumed no significant changes in the operations of the companies’ competitors,
although they ran various scenarios to take into account changes
in the competitive environment.
The auto team found GM’s plan ‘‘not viable as it’s currently
structured,’’ 33 chiefly because it relied on overly optimistic assumptions about the company and the economy’s recovery. The auto
team focused on:
• GM’s consistently decreasing market share over the past
30 years, which the auto team calculated at a 0.7 percent annual decrease—much greater than GM’s assumption of 0.3 percent annual decrease going forward to 2014;
• consumer perception of GM’s poor product quality compared to competitors;
• GM’s large network of underperforming dealers;
• GM’s costly and unprofitable European operations;
• GM’s vulnerability to higher energy costs due to its disproportionate profit share from SUVs; and
• increasing legacy liabilities that would require GM to sell
almost a million more cars in both 2013 and 2014.
In short, GM had too much catching-up to do, even without accounting for the sunk costs of restructuring, to generate positive
cash flow over the projection period. GM was therefore asked to
submit a ‘‘subsantially more aggressive plan’’ and was provided an
additional 60 days.
29 Secretary of Transportation, Secretary of Commerce, Secretary of Labor, Secretary of Energy, Chair of President’s Council of Economic Advisors, Director of the Office of Management
and Budget, Environmental Protection Agency Administrator, Director of the White House Office of Energy and Climate Change.
30 Diana Farrell, Deputy Director, National Economic Council; Gene Sperling, Counselor to the
Secretary of the Treasury; Jared Bernstein, Chief Economist to Vice President Biden; Edward
Montgomery, then Senior Advisor, Department of Labor, Lisa Heinzerling, Senior Climate Counsel to the EPA Administrator; Austan Goolsbee, Staff Director and Chief Economist of the Economic Recovery Advisory Board; Dan Utech, Senior Advisor to the Secretary of Energy; Heather
Zichal, Deputy Director, White House Office of Energy and Climate Change; Joan DeBoer, Chief
of Staff, Department of Transportation; Rick Wade, Senior Advisor, Department of Commerce.
31 The missions and personnel of the Task Force and Treasury auto team—a joint TreasuryNational Economic Council team which staffs the Task Force—overlap considerably, therefore
these entities are often cited interchangeably. The auto team’s analysis of the viability plans
is discussed in more detail in Sections D and G below.
32 Chrysler February 17 Viability Plan, supra note 11.
33 Chrysler February 17 Viability Plan, supra note 11.

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In short, GM had too much catching-up to do, even without accounting for the sunk costs of restructuring, to generate positive
cash flow over the projection period. GM was therefore asked to
submit a ‘‘substantially more aggressive plan’’ and was provided an
additional 60 days of working capital.34 Between March 30 and
May 30, GM received another $6.36 billion in loans (including $361
million for the warranty program).35
In its analysis, the auto team found that Chrysler had an even
poorer outlook than GM because of problems with scale, quality,
product mix, lack of manufacturing flexibility, and geographic overconcentration. The auto team concluded Chrysler could succeed
only if it developed a partnership with another automotive company.36 Chrysler was offered working capital for 30 more days
while it sought an agreement with Fiat.37 Between March 30 and
34 U.S. Department of Treasury, GM February 17 Plan: Determination of Viability (Mar. 30,
2009) (online at www.whitehouse.gov/ assets/documents/ GMlViabilityl Assessment.pdf)
(hereinafter ‘‘GM February 17 Viability Plan’’).
35 Aug. 18 Transactions Report, supra note 1 at 16.
36 In fact, both Chrysler and GM had been contemplating mergers with other automotive companies for over a year. The contraction in domestic auto manufacturing that foreshadowed the
economic crisis led Chrysler and GM to pursue possible strategic changes including mergers, the
creation of partnerships, and sales. Chrysler, concerned with its viability, reached out to NissanRenault in the spring of 2007 and continued discussion on a wide range of possible scenarios
until term sheets were exchanged in July 2008. Declaration of Thomas W. LaSorda, 11–12 (Apr.
30, 2009), In Re Chrysler LLC, S.D.N.Y. (No.09 B 50002 (AJG)) (online at
chap11.epiqsystems.com/
docket/docketlist.aspx?pk=
1c8f7215-f67541bf-a79be1b2cb9c18f0&l=1) (hereinafter ‘‘Thomas LaSorda Declaration’’). Ultimately, only joint production agreements were signed and negotiations for a union between Chrysler and Nissan collapsed. Davis Welch, Behind the Chrysler-Nissan Deal, Business Week (April 14, 2008) (online
at
www.businessweek.com/
bwdaily/dnflash/
content/apr2008/
db20080414l
164988.htm?campaignl id=rssldaily) (hereinafter ‘‘Behind the Chrysler-Nissan Deal’’). Chrysler executives then approached General Motors in August 2008. Some industry insiders believed
that by folding Chrysler into GM, the proposed company would have easier access to the capital
markets and would benefit from the increased market share. Declaration of J. Stephen Worth,
85–86 (May 31, 2009), In Re General Motors Corp., S.D.N.Y. (No. 09–50026 (REG)) (online at
docs.motorsliquidationdocket.com/ pdflib/ 425l50026.pdf) (hereinafter ‘‘Stephen Worth Declaration’’). GM suspended the negotiations in November 2008 due to the lack of funding for the proposed arrangement and the company’s impending liquidity crisis. After accepting the initial assistance from the Treasury, Chrysler contacted Nissan and GM in hopes of reviving negotiations, but both carmakers refused. These unsuccessful attempts, coupled with the lack of adequate funding in the capital markets and the rapidly deteriorating condition of the domestic
automotive industry, led Chrysler and GM to seek assistance from the United States government. After receiving the initial bridge loans from the Bush Administration, Chrysler again
reached out to GM in early January, but GM remained uninterested in further merger discussions. Thomas LaSorda Declaration at 13–14. The auto team has told the Panel that it did not
discourage a merger between GM and Chrysler, that ‘‘[e]ach company made its own determination to pursue a future independent of the other.’’ Congressional Oversight Panel, Questions for
the Record from the Congressional Oversight Panel at the Congressional Oversight Panel Hearing
on July 27, 2009, Questions for Ron Bloom, Senior Advisor, U.S. Department of the Treasury,
at 8 (July 27, 2009) and Congressional Oversight Panel, Ron Bloom Responses, Congressional
Oversight Panel Hearing Transcript on July 27, 2009 (collectively, hereinafter ‘‘Ron Bloom COP
Testimony’’).
37 Chrysler had begun discussions with Fiat a year earlier, in March 2008, as part of its talks
with other car companies about a partnership. By January 2009, ‘‘no party except Fiat emerged
as a viable and willing partner.’’ Declaration of Thomas LaSorda, supra note 36. Chrysler and
Fiat agreed to an initial term sheet that became one of the options in the restructuring plan
that Chrysler submitted to Treasury in February 2009. Chrysler’s plan also included an option
in which, with concessions and additional government support, it could have been viable as a
stand-alone company. Declaration of Robert Manzo, 30 (Apr. 30, 2009) In Re Chrysler LLC,
S.D.N.Y. (No. 09 B 50002 (AJG)) (online at chap11.epiqsystems.com/ docket/ docketlist.aspx?pk=
1c8f7215-f675-41bf- a79b-e1b2cb9c18f0&l=1) (hereinafter ‘‘Robert Manzo Declaration’’); Chrysler
Restructring Plan, supra note 28. The auto team disagreed with the latter option, and informed
Chrysler that it would only provide financing if Chrysler formed an alliance with Fiat—the only
potential partner willing to form an alliance. It stated that: [Treasury] will provide Chrysler
with working capital for 30 days to conclude a definitive agreement with Fiat and secure the
support of necessary stakeholders. If successful, the government will consider investing up to
the additional $6 billion requested by Chrysler to help this partnership succeed. If an agreement
is not reached, the government will not invest any additional taxpayer funds in Chrysler. White
House, Obama Administration New Path to Viability for GM & Chrysler (Mar. 30, 2009) (online
Continued

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April 30, Treasury agreed to commit up to $280 million in loans to
Chrysler for the warranty program (no working capital loans were
advanced).38
The auto team emphasized that, while Chrysler and GM presented different issues and problems, in each case, ‘‘their best
chance of success may well require utilizing the bankruptcy code
in a quick and surgical way.’’ 39 In the Administration’s vision, this
would not entail liquidation or a ‘‘traditional,’’ long, drawn-out
bankruptcy, but rather a ‘‘structured’’ bankruptcy as a tool to
‘‘make it easier for Chrysler and General Motors to clear away old
liabilities.’’ 40
1. NEW CHRYSLER

smartinez on DSKB9S0YB1PROD with HEARING

Chrysler was unable to complete a restructuring deal by the
April 30 deadline.41 A group of investors holding 30 percent of
Chrysler’s $6.9 billion in secured debt would not accept Treasury’s
$2 billion offer in exchange for the debt.42 Chrysler filed for bankruptcy on April 30 under Chapter 11 of the U.S. Bankruptcy Code
(the Code).43 Forty-two days later the sale of the majority of its assets to a newly formed entity, Chrysler Group LLC (New Chrysler),
under Section 363 of Chapter 11 of the Code, closed.
The technical details of the bankruptcy process and the precise
manner of disposition of assets of Chrysler (often referred to as Old
Chrysler, for clarity) and ownership of New Chrysler are discussed
in more detail below.44 In essence, however, the arrangements, set
out in a master transaction agreement,45 were as follows. The secured creditors had to accept the original offer of $2 billion. At the
time of filing, Chrysler was privately owned by the private equity
firm Cerberus Capital Management L.P. (Cerberus) and the automobile company Daimler AG (Daimler). Daimler, the minority
shareholder, agreed to waive its share of Chrysler’s $2 billion second lien debt, give up its 19 percent equity interest in Chrysler,
and settle its pension guaranty obligation by agreeing to pay $600
million to Chrysler’s pension funds. Cerberus agreed to waive its
share of second lien debt and forfeit its equity stake in Chrysler.
Cerberus also agreed to transfer its ownership of the Chrysler
headquarters in Auburn Hills, Michigan to New Chrysler. Finally,
Cerberus pledged to contribute a claim it had against Daimler to
assist in the Daimler pension guaranty settlement.
at www.whitehouse.gov/ assets/documents/ Factl SheetlGMl Chryslerl.FIN.pdf) (hereinafter ‘‘New Path to Viability for GM & Chrysler’’).
38 Aug. 18 Transactions Report, supra note 1.
39 New Path to Viability for GM & Chrysler, supra note 37.
40 New Path to Viability for GM & Chrysler, supra note 37.
41 White House Office of the Press Secretary, Obama Administration Auto Restructuring Initiative (April 30, 2009) (www.whitehouse.gov/ thelpressloffice/ Obama-Administration-AutoRestructuring-Initiative) (hereinafter ‘‘Chrysler Release’’).
42 Id.
43 Id.
44 See Section C for a discussion of the precise disposition of assets, and Section E for a discussion of the Section 363 sale process.
45 Master Transaction Agreement among Fiat SpA, NewCarCo. Acquisition LLC, Chrysler
LLC, and the Other Sellers identified therein, Dated April 30, 2009 (May 12, 2009), In Re
Chrysler LLC, S.D.N.Y. (No. 09 B 50002 (AJG) (online at chap11.epiqsystems.com/ docket/
docketlist.aspx?pk= 1c8f7215-f675-41bf- a79b-e1b2cb9c18f0&l=1) (hereinafter ‘‘Chrysler Master
Transaction Agreement’’).

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Treasury provided a total of $8.5 billion in working capital and
exit financing to facilitate the deal.46 The U.S. government received
approximately an eight percent equity stake in New Chrysler and
the right to select the initial group of four independent directors.
The governments of Canada and Ontario 47 together received two
percent of the equity of New Chrysler, and Canada received the
right to select one independent director. Fiat received a 20 percent
equity stake and the right to select three directors of New Chrysler. In addition, Fiat has the right to earn up to 15 percent in additional equity, in three tranches of five percent each, if it meets certain performance metrics.48
As part of New Chrysler’s purchase of Old Chrysler’s assets, New
Chrysler entered into an agreement with the United Auto Workers
(UAW) regarding the funding of the UAW Retiree Medical Benefit
Trust (the UAW Trust).49 New Chrysler agreed to fund the UAW
Trust with a $4.6 billion unsecured note and a 55 percent ownership stake in New Chrysler.50 The UAW Trust, subject to approval
of the UAW, has the right to select one independent director and
no other governance rights.51
During the bankruptcy proceedings, three Indiana state pension
funds, which were secured first lien debt holders of Chrysler, objected to the Section 363 sale to New Chrysler. The funds argued
that the sale would violate the Code by impermissibly subordinating their interests as secured lenders and allowing assets on
46 U.S. Treasury Department, AIFP Outlays for COP (Aug. 18, 2009) (hereinafter ‘‘AIFP Outlays’’).
47 During a meeting with Panel staff on July 11, 2009, Ron Bloom explained that the Canadian governments approached the U.S. government with an offer to provide assistance to the
American automotive industry. Mr. Bloom stated his belief that the Canadian governments were
concerned about the impact of the troubled American auto makers on the Canadian economy
and therefore had an interest in providing such support.
48 Chrysler Release, supra note 41.
49 By the end of the last century, Ford, Chrysler and GM found themselves faced with tens
of billions of dollars in employee health obligations. In 2007 and 2008, after it became clear to
both the companies and their unions that the state of the American automotive industry made
these healthcare obligations unsustainable, the UAW and each of the three companies ultimately entered into an agreement whereby, in exchange for significant upfront payments principally in the form of cash and notes, healthcare obligations for retired union employees would
be transferred off the books of the companies and into a trust (an independent entity totally
separate from either the union or the automotive companies), the UAW Retiree Medical Benefits
Trust, also known as a Voluntary Employees’ Beneficiary Association (VEBA). VEBAs are tax
free entities that pay health, life, or similar benefits. Although subject to the fiduciary requirements of the Employee Retirement Income Security Act of 1974 (ERISA), they are not subject
to ERISA funding rules as are qualified retirement plans—a company’s funding obligation is
solely contractual. The threat of a Chapter 11 bankruptcy filing by Chrysler and GM made it
clear that these companies would not be able to meet the cash commitments they had made
to the UAW Trust. As part of a new agreement reached with representatives from both the old
and new Chrysler and GM entities to enable them to emerge from bankruptcy, the UAW agreed
to significant changes to the funding structure of the UAW Trust. While the UAW was able to
get these companies to transfer cash amounts already set aside by the old Chrysler and GM
entities (about $10 billion from GM and about $1.5 billion from Chrysler), the balance of the
commitments these companies had made will no longer be paid up front in cash. Instead, New
GM and New Chrysler have agreed to contribute large portions of equity, as well as notes that
will allow cash commitments to be deferred and paid over time, into the UAW Trust. In order
to help it remain competitive and avert bankruptcy, Ford negotiated similar alterations to its
settlement with the UAW. Starting January 1, 2010, UAW retirees’ healthcare benefits will be
funded solely by the assets in the UAW Trust, and will receive no further commitments from
Old Chrysler, Old GM or Ford. New GM and New Chrysler—as with Ford—will no longer have
the healthcare obligations that have been weighing down their predecessor companies’ books for
decades, while the healthcare benefits of the UAW’s retired members will still be linked to the
fortunes of all three companies through the tens of billions in stock and notes.
50 Chrysler Release, supra note 41.
51 Form of Amended and Restated Operating Agreement of New Carco Acquisition LLC, 17
(May 12, 2009) In re Chrysler LLC, S.D.N.Y. (No. 09 B 50002 (AJG) (online at
chap11.epiqsystems.com/
docket/docketlist.aspx?pk=
1c8f7215-f675-41bf-a79be1b2cb9c18f0&l=1) (hereinafter ‘‘New Carco Operating Agreement’’).

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which they had a lien to pass free of liens to other creditors and
parties.52 Moreover, they claimed that the sale would violate bankruptcy priority rules by paying unsecured creditors, even though
secured creditors were receiving only 29 cents on the dollar. The
funds stated that they believed that Chrysler could sell the assets
for more money if they did not rush the sale, or that first lien debt
holders could recover more in liquidation. The bankruptcy court denied the funds’ motion.53 Of the other first lien debt holders, 92
percent had not opposed the sale.
The funds immediately began the appellate process. The Second
Circuit issued a short order ratifying the bankruptcy court’s decision and issuing a stay to allow for the U.S. Supreme Court’s review. The Supreme Court denied a request for a stay of the bankruptcy reorganization.54 Upon remand, the Second Circuit affirmed 55 the bankruptcy court’s decision.56
Treasury appointed four directors to New Chrysler’s nine-member board of directors: C. Robert Kidder, chairman and CEO of
3Stone Advisors LLC; Douglas Steenland, former CEO of Northwest Airlines; Scott Stuart, a partner at Sageview Capital LP, and
Ronald L. Thompson, chairman of the board of trustees for the nonprofit Teachers Insurance and Annuity Association and College Retirement Equities Fund (TIAA/CREF).57 Mr. Kidder is chairman of
the new board.58 The Trustees of the UAW Trust appointed James
J. Blanchard, a former Michigan governor, to the board.59 As New
Chrysler began operations, it was announced that Robert Nardelli
would be departing as CEO.60 Fiat CEO Sergio Marchionne subsequently replaced him.61 The Obama Administration announced
52 Emergency Motion of the Indiana Pensioners For Stay of Proceedings Pending Determination of Motion to Withdraw the Reference, 2–3 (May 20, 2009) In re Chrysler LLC, S.D.N.Y.
(No. 09 B 50002 (AJG) (online at chap11.epiqsystems.com/ docket/ docketlist.aspx?pk= 1c8f7215f675-41bf- a79b-e1b2cb9c18f0&l=1) (hereinafter ‘‘Indiana Pensioners’ Emergency Stay Motion’’).
53 Order Denying Emergency Motion of the Indiana Pensioners for Stay of Proceedings Pending Determination of Motion to Withdraw the Reference (May 20, 2009), In Re Chrysler LLC,
S.D.N.Y. (No. 09 B 50002 (AJG)) (online at chap11.epiqsystems.com/ docket/docketlist.aspx?pk=
1c8f7215-f675-41bf-a79b- e1b2cb9c18f0&l=1) (hereinafter ‘‘Order Denying Indiana Pensioners’
Emergency Stay Motion’’).
54 556 U.S.l(2009) (Per Curiam) (online at www.supremecourtus.gov/ opinions/08pdf/
08A1096.pdf).
55 In re Chrysler LLC, 2009 WL 2382766 (2d Cir. 2009). The funds then filed a petition for
writ of certiorari to the Supreme Court in which the sole question presented is ‘‘is whether Section 363 may freely be used as a ‘side door’ to reorganize a debtor’s financial affairs without
adherence to the creditor protections provided by the chapter 11 plan confirmation process.’’ Petition for Writ of Certiorari for Petitioners Indiana State Police Pension Trust, et al., at 2
No.l(Sept. 3, 2009) (hereinafter ‘‘Indiana Pensioners’ Appeal’’). It did, however, allude to Treasury’s broad definition of ‘‘financial institution.’’ Id. at 29.
56 In re Chrysler LLC, 405 B.R. 79, 83 (Bankr. S.D.N.Y. 2009).
57 U.S. Department of the Treasury, Treasury Department Statement on Chrysler’s Board of
Directors Appointments (July 5, 2009) (online at www.financialstability.gov/latest/tg197.html)
(hereinafter ‘‘Statements on Chrysler Directors Appointments’’).
58 Chrysler Group LLC, Formation of Chrysler Group LLC Board is Completed (July 5, 2009)
(online
at
www.chryslergroupllc.com/
en/news/article/?lid=
formationlboard&year=
2009&month=7) (hereinafter ‘‘Formation of New Chrysler Board Completed’’).
59 United Auto Workers, Chrysler Update: VEBA Trust Names James Blanchard to Board of
Chrysler Holding, LLC (June 10, 2009) (online at www.uaw.org/chrysler/chry12.cfm) (‘‘VEBA
Trust Director Announcement’’).
60 Letter from Robert Nardelli to Chrysler employees (Apr. 30, 2009) (online at images.businessweek.com/
extras/09/nardellil
email.pdf?chan=
top+newsl
special+report+¥+auto+bailout+ 2009l special+report+¥+auto +bailout+2009) (hereinafter
‘‘Richard Nardelli Letter to Chrysler Employees’’).
61 Chrysler Group LLC, Chrysler Group LLC Announces Organizational Structure Focused on
Chrysler, Jeep, Dodge and Mopar Brands (Jun. 10, 2009) (online at www.chryslergroupllc.com/
en/news/article/ ?lid=newl organizationall structure&year= 2009&month=60) (hereinafter
Chrysler Org Structure Announcement’’).

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that Fiat would shake up other management in an effort to reorganize the company.62
Chrysler announced that it would retain an ‘‘overwhelming majority’’ of its suppliers 63 and would close 789 of its nearly 3,200
U.S. dealerships.64 These dealerships employed more than 40,000
people.65 State governments heavily regulate the relationship between dealerships and automotive companies, usually claiming that
close oversight is necessary to equalize the bargaining power of
dealerships and automakers.66 Generally, states only allow an
automotive manufacturer to terminate a dealer contract if it has
good cause.67 However, the bankruptcy process provided the automotive manufacturers with greater flexibility in terminating dealership contracts.68 Congress is currently considering a number of
bills to restore the terminated dealers’ contracts.69
Both Chrysler and GM maintain that their dealer networks were
oversized and that downsizing was necessary to regain viability.70
Domestic brands in 2008 accounted for about two thirds of U.S.

62 Chrysler and Fiat facing a long road, Pittsburgh Post Gazette (June 11, 2009) (online at
www.post-gazette.com/ pg/09162/976675- 185.stm) (hereinafter ‘‘Chrysler/Fiat Face Long Road’’).
63 Chrysler Group LLC, Chrysler LLC to Assume Supplier Agreements (May 15, 2009) (online
at www.chryslerrestructuring.com/ chr/Press%20Release %20May%2015%202009.pdf) (hereinafter ‘‘Chrysler Assumes Supplier Agreements’’).
64 Chrysler Vice President Peter Grady, The Real Story on Chrysler’s Dealer Network, Chrysler Corporate Blog (July 16, 2009) (online at blog.chryslerllc.com/blog.do?id=717&p=entry) (hereinafter ‘‘Real Story on Chrysler’s Dealer Network’’).
65 National Automobile Dealers Association, Statement on Chrysler’s Dealership Reduction Announcement (May 14, 2009) (online at www.nada.org/ MediaCenter/ News+Releases/
NADA+Statement+on +Chrysler%E2%80%99s +Dealership+Reduction +Announcement.htm)
(hereinafter ‘‘NADA Chrysler Statement’’).
66 New Motor Vehicle Board of Cal.v. Fox, 439 U.S. 96, 100–01 (1978).
67 National Automobile Dealers Association, The Benefits of the Franchised Dealer Network:
The Economic and Statutory Framework, at 5 (Nov. 24, 2008) (online at www.magnetmail.net/
images/clients/ NADA/attach/ BenefitsDealerNetwork.doc) (hereinafter ‘‘Benefits of the Franchised Dealer Network’’).
68 In light of the recent news that Chrysler plans to open new dealerships, often nearby the
ones that were closed, some assert that Chrysler used the bankruptcy to get rid of dealerships
that it had wanted to close otherwise. See Greg Gardner, Chrysler Plans New Dealerships, Detroit Free Press (Aug. 13, 2009) (online at freep.com/article/ 20090813/BUSINESS01/ 908130448/
1333/Chrysler- plans-new-dealerships) (hereinafter ‘‘Chrysler Plans New Dealerships’’); see also
Chrysler Green Lights New Dealerships, American Public Media (accessed Aug. 31, 2009) (online
at marketplace.publicradio.org/ display/ web/2009/08/14/ am-chrysler/) (hereinafter ‘‘Chrysler
Green Lights New Dealerships’’).
69 The Financial Services and General Government Appropriations Act of 2010, passed by the
House on July 16, 2009, includes an amendment that would require Chrysler and GM to reinstate contracts with dealers that had agreements prior to the Chapter 11 filings. H.R. 3170, Sec.
745(b), Financial Services and General Government Appropriations Act of 2010, 111th Cong.
(hereinafter ‘‘H.R. 3170’’).
70 House Committee on Energy and Commerce, Subcommittee for Investigations and Oversight, Testimony of General Motors President and Chief Executive Officer Frederick A. Henderson, Auto Dealership Closures, 111th Cong., at 2–3 (June 12, 2009) (online at
energycommerce.house.gov/ Pressl111/ 20090612/ testimonyl henderson.pdf) (hereinafter
‘‘Fritz Henderson House Testimony’’); House Committee on Energy and Commerce, Subcommittee for Investigations and Oversight, Testimony of Chrysler Vice Chairman and President James Press, Auto Dealership Closures, 111th, Cong., at 3–5 (June 12, 2009) (online at
energycommerce.house.gov/ Pressl111/20090612/ testimonyl press.pdf) (hereinafter ‘‘James
Press House Testimony’’).

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dealerships,71 but only 48 percent of new vehicle sales.72 Chrysler,
for example, has less domestic market share than Toyota,73 but
even after its intended closings will have many more dealers.74 In
2008, Chrysler’s dealers lost on average $3,431.75 By consolidating
dealerships, the companies argue, they can drive more sales
through more profitable businesses that can afford to invest in
their businesses.76 The remaining dealers may also be able to negotiate more favorable terms with their floor-plan financers.77 This
may in turn help dealers acquire more stock and sell it to consumers at lower prices, thereby increasing sales and profits for the
dealers and for Chrysler and GM.
UAW Chrysler workers agreed to make concessions on compensation and retiree health benefits. These changes include the adjustments to the funding of the UAW Trust (as discussed above), cancellation of cost-of-living adjustments for the current workforce,
and a restructuring of skilled trade classifications, among other
concessions.78 As Mr. Bloom told the Panel at its hearing in Detroit
71 General Motors has stated that it had 6,450 U.S. dealerships in 2008. Ford has said that
it had 4,106 U.S. dealerships the same year. And Chrysler has reported that it had more than
3,330 U.S. dealerships in 2008. Summing those numbers, the ‘‘Big Three’’ had roughly 13,856
U.S. dealerships out of a total of 20,700 U.S. auto dealerships in 2008, or about 67 percent. See
General Motors Corp., Restructuring Plan for Long-Term Viability, at 19 (Dec. 2, 2008) (online
at online.wsj.com/ public/resources/ documents/gml restructuringl plan120208.pdf) (hereinafter ‘‘GM December 2008 Viability Plan’’). See also Ford Sustainability Report 2008/9 Dealers
(accessed Aug. 30, 2009) (online at www.ford.com/ microsites/sustainability- report-2008-09/ society-dealers) (hereinafter ‘‘Ford Sustainability Report’’); Patti Georgevich, Chrysler’s Economic
Impact, Chrysler Corporate Blog (Dec. 5, 2008) (online at blog.chryslerllc.com/
blog.do?id=552&p=entry) (hereinafter ‘‘Chrysler’s Economic Impact’’); Casesa Shapiro Group,
The Franchised Automobile Dealer: The Automaker’s Lifeline, report prepared for the National
Automobile Dealers Association, at 2 (Nov. 26, 2008) (online at www.nada.org/ nr/rdonlyres/
5c36b316-e765-4876-8d69- 3bf3a57e7789/0/ benefitsoffranchise dealers.pdf).
72 Autodata Corp.’s Motor Intelligence Web site (accessed Aug. 30, 2009) (online at
www.motorintelligence.com/ fileopen.asp?File= SRlSales-4.xls).
73 In 2008, Toyota had 1,649,045 light-vehicle retail sales, compared with 1,076,170 for Chrysler. Id.
74 Toyota, United States Operations 2009, at 5 (accessed Aug. 30, 2009) (online at
pressroom.toyota.com/ pr/tms/document/ TNAlOPSl MAPl2009.pdf) (hereinafter ‘‘Toyota US
Operations 2009’’).
75 Senate Commerce, Science, and Transportation Committee, Testimony of Vice Chairman
and President Chrysler LLC James Press, Chrysler’s Dealership Network, 111th Cong., at 3
(June 3, 2009) (online at commerce.senate.gov/ public/lfiles/ PressTestimony Dealerships.pdf)
(hereinafter ‘‘James Press Senate Testimony’’).
76 Senate Commerce, Science, and Transportation Committee, Testimony of General Motors
President and CEO Fritz Henderson, GM and Chrysler Dealership Closures: Protecting Dealers
and Consumers, 111th Cong., at 3, 5 (June 3, 2009) (online at commerce.senate.gov/ public/
lfiles/ HendersonTestimony Dealerships.pdf) (hereinafter ‘‘Fritz Henderson Senate Testimony’’);
James Press Senate Testimony, supra note 75 at 5–6.
77 Comptroller of the Currency, Comptroller’s Handbook on Floor Plan Loans, at 3 (accessed
Aug. 30, 2009) (online at www.occ.treas.gov/ handbook/ floorplan1.pdf) (hereinafter ‘‘Comptroller
Floor Plan Handbook’’) (‘‘Dealers selling in large volume are usually granted a three-day leeway
before proceeds from inventory sold are required to be received by the bank.’’); Lynn M. LoPucki
& Elizabeth Warren, Secured Credit: A Systems Approach, at 252–53, 263 (hereinafter ‘‘Secured
Credit: A Systems Approach’’).
78 UAW Chrysler, Modifications to 2007 Agreement and Addendum to VEBA Agreement (Apr.
2009) (online at download.gannett. edgesuite.net/ detnews/2009/ pdf/UAWChrysler.pdf); Congressional Oversight Panel, Testimony of Ron Bloom before the Congressional Oversight Panel: Regarding the Treasury’s Automotive Industry Financing Program (July 27, 2009) (online at
cop.senate.gov/documents/testimony-072709-bloom.pdf) (hereinafter ‘‘UAW Statements on VEBA
Modifications’’) (‘‘The UAW made important concessions on wages, benefits, and retiree health
care. These concessions brought New Chrysler’s compensation in line with that of Toyota and
other foreign automotive manufacturers at their US operations. In addition, the UAW retirees
exchanged an almost $8 billion fixed obligation to the Voluntary Employees’ Beneficiary Association (VEBA) retiree health trust for a $4.6 billion unsecured note and stock in New Chrysler.
This arrangement shifts substantial risk onto the retiree health care trust and will likely result
in meaningful reductions in health care benefits for New Chrysler’s 150,000 retirees. The Trust,
which is managed by an independent committee of legally bound fiduciaries, will, other than
a single seat on the Company’s Board of directors, will [sic] have no role in the governance of
the Company. However, the ability of the Trust to provide decent benefits over the long-term
will require that the Company’s stock become valuable, thus significantly aligning the interests

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15
on July 27, ‘‘these concessions brought New Chrysler’s compensation in line with that of Toyota and other foreign automotive manufacturers at their U.S. operations.’’ 79
New Chrysler is not a public company and is not required to file
reports with the Securities and Exchange Commission (SEC). However, Mr. Bloom has stated that both New Chrysler and the New
GM will file quarterly reports with the SEC.80
2. NEW GENERAL MOTORS

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A month after Chrysler entered bankruptcy, GM followed on
June 1, 2009.81 On July 5, GM sold its ‘‘good’’ assets under Section
363 of the Code to a new, government-owned entity, General Motors Company (New GM).82 The new company purchased substantially all of the assets of Old GM needed to implement its new,
leaner viability plan, which will focus on four core brands: Chevrolet, Cadillac, Buick, and GMC. New GM plans to close 11 facilities and idle another three facilities.
Again, the technical details of the disposition of assets are discussed in more detail below. Under the terms of a Master Purchase
and Sale Agreement, Old GM unsecured creditors will receive a
pro-rata share of 10 percent of the equity of New GM, plus warrants for an additional 15 percent of New GM.83 At least 54 percent of Old GM bondholders voted to approve the transaction.84
New GM issued 17.5 percent equity to the UAW Trust, as well as
warrants to purchase an additional two and a half percent of the
company. The UAW Trust will also be funded by a $2.5 billion note
maturing in 2017, and $6.5 billion in nine percent perpetual preferred stock.85 The UAW Trust has the right to select one independent director, but no right to vote its shares nor any other governance rights.
Treasury received 61 percent of the equity of New GM and $9.2
billion in debt and preferred stock.86 It also received the right to
select 10 initial members of the GM board of directors. The governments of Canada and Ontario received approximately 12 percent of
of the Company and the VEBA as a key stakeholder.’’) (hereinafter ‘‘Ron Bloom Prepared COP
Testimony’’).
79 Id.
80 Nick Bunkley, U.S. Likely to Sell G.M. Stake Before Chrysler, New York Times (Aug. 5,
2009) (online at www.nytimes.com/ 2009/08/06/ business/06auto.html).
81 Voluntary Chapter 11 Petition, at 1 (June 1, 2009), In Re General Motors Corp., S.D.N.Y
(No.09–50026 (REG)) (online at docs.motorsliquidationdocket.com/ pdflib/01l50026.pdf) (hereinafter ‘‘GM Bankruptcy Petition’’).
82 Order (I) Authorizing Sale of Assets Pursuant to Amended and Restated Master Sale and
Purchase Agreement with NGMCO, Inc., a Treasury-Sponsored Purchaser; (II) Authorizing Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection
with the Sale; and (III) Granting Related Relief, (July 5, 2009), In Re General Motors Corp.,
S.D.N.Y. (No. 09–50026 (REG)) (online at docs.motorsliquidationdocket.com/ pdflib/
2968lorder.pdf) (hereinafter ‘‘Order Authorizing GM 363 Sale’’).
83 First Amendment to Amended and Restated Master Sale & Purchase Agreement (June 26,
2009) In Re General Motors Corp., S.D.N.Y. (No. 09–50026 (REG)) (online at
docs.motorsliquidationdocket.com/ pdflib/ amendmentl630.pdf) (hereinafter ‘‘First Amendment
to GM Master Sale Agreement’’).
84 Rod Lache, Industry Update: Implication of GM’s Bankruptcy Filing Today, Deutsche Bank
(May 31, 2009) (hereinafter ‘‘Deutsche Bank Report on Implications of GM Bankruptcy’’).
85 White House, Fact Sheet: Obama Administration Auto Restructuring Initiative General Motors Restructuring (June 30, 2009) (online at financialstability.gov/ latest/ 05312009lgmfactsheet.html) (hereinafter ‘‘White House GM Restructuring Fact Sheet’’).
86 General Motors Corp., Form 8–K (July 16, 2009) (online at www.sec.gov/Archives/ edgar/
data/ 1467858/000119312509150199/ 0001193125-09-150199- index.htm) (hereinafter ‘‘GM July
16, 2009 8–K’’).

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the equity in New GM, approximately $1.7 billion in debt and preferred stock, and the right to select one director for as long as they
hold their current share of New GM equity.87
Treasury provided approximately $30.1 billion of financing to
support GM through an expedited Chapter 11 proceeding and restructuring.88 Treasury has no plans to provide any additional assistance to GM beyond this commitment.89
By the end of July, New GM had filled all of the positions on its
board of directors.90 The 13 members bring experience from a wide
range of industries and backgrounds. Ten of these directors were
appointed or reinstated by Treasury: Daniel Akerson, managing director and head of global buyout at private equity firm The Carlyle
Group; David Bonderman, co-founder of private equity firm Texas
Pacific Group; Erroll B. Davis, Jr., chancellor of the University System of Georgia; E. Neville Isdell, retired chairman and CEO of
Coca-Cola; Robert D. Krebs, retired chairman and CEO of Burlington Northern Santa Fe Corporation; Kent Kresa, chairman
emeritus of Northrop Grumman Corporation; Philip A. Laskawy,
retired chairman and CEO of Ernst & Young LLP; Kathryn V.
Marinello, chairman and CEO of Ceridian Corporation; Patricia F.
Russo former chief executive officer of Alcatel-Lucent; and Edward
E. Whitacre, Jr. former chairman of the board of AT&T, who was
chosen to be chairman of the board. Carol M. Stephenson, dean of
the Richard Ivey School of Business at the University of Western
Ontario, was appointed by the Canadian government.
In late March 2009, as Treasury sought to invest additional
funds in GM, President Obama announced the departure of CEO
Rick Wagoner, who was replaced by COO Fritz Henderson.91 As
part of the restructuring, the Motors Liquidation Company (MLC)
board of directors and former CEO Wagoner reduced their 2009
compensation to one dollar, and several other executive officers
took salary cuts between 10 and 30 percent.92
GM subsequently notified 1,300 of its approximate 6,000 U.S.
dealers that they would be closing by year end 2010, aiming eventually to trim its total to about 4,000.93 GM provided approximately $600 million in financial assistance in return for the dealers’ selling down their existing inventory over the subsequent
87 Stockholder Agreement by and Among General Motors Company, United States Department
of the Treasury, 7176384 Canada Inc., and UAW Retiree Medical Benefits Trust, 8 (July 10,
2009) (online at www.sec.gov/ Archives/ edgar/data/ 1467858/ 000119312509150199/ dex101.htm)
(hereinafter ‘‘New GM Stockholder Agreement’’).
88 Declaration of J. Stephen Worth, supra note 36 at appx. 18.
89 White House Office of the Press Secretary, Remarks by the President on General Motors Restructuring (June 1, 2009) (online at www.whitehouse.gov/ thelpressloffice/ Remarks-by-thePresident-on-General- Motors-Restructuring/) (hereinafter ‘‘White House June 1 Remarks on GM
Restructuring’’).
90 General Motors, Board of Directors (accessed on Aug. 11, 2009) (online at www.gm.com/ corporate/about/ board.jsp) (hereinafter ‘‘GM Description of Board of Directors’’).
91 White House, Remarks by the President on the American Automotive Industry (Mar. 30,
2009) (online at www.whitehouse.gov/ thelpressl office/ Remarks-by-the-President- on-theAmerican-Automotive-Industry-3/30/09/) (hereinafter ‘‘March 30 Presidential Remarks’’).
92 General Motors Corp., Form 8–K, at 39 (Aug. 7, 2009) (online at www.sec.gov/ Archives/
edgar/data/ 1467858/000119312509169233/d8k.htm) (hereinafter ‘‘GM August 7 8–K’’).
93 House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law,
Testimony of Vice President and General Counsel of North America General Motors Company
Michael J. Robinson, Ramifications of Auto Industry Bankruptcies, Part III 111th Cong., at 5
(July 22, 2009) (online at judiciary.house.gov/ hearings/pdf/ Robinson090722.pdf) (hereinafter
‘‘Michael Robinson House Testimony’’).

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twelve months.94 These payments could vary widely based on each
dealer’s situation.
GM’s UAW workers agreed to make concessions on compensation
and health benefits. These concessions were similar to those of
Chrysler workers. GM workers gave up cost-of-living adjustments,
performance bonuses, one paid holiday in each of 2010 and 2011,
tuition assistance, and some health benefits.95 The UAW estimated
that these cuts would save GM between $1.2 and $1.3 billion per
year.96
New GM is not a public company and is not required to file reports with the SEC, although as discussed above it is intended that
GM will file financial statements with the SEC by 2010.
3. WARRANTIES

The automotive companies’ widely publicized vulnerability in late
2008 and early 2009 raised concerns that consumers might not purchase Chrysler and GM automobiles for fear that these companies
could not back their warranties. When Treasury announced the results of the auto team’s work on March 30, Treasury also created
a new program to backstop the two companies’ new vehicle warranties. This program applied to any new GM or Chrysler car bought
during the restructuring period.97 The program was sized at 125
percent of the costs projected by the manufacturer to satisfy anticipated claims. Each of Chrysler and GM provided 15 percent of the
projected funds necessary with Treasury providing the remaining
110 percent of the projected costs via loans.98
Prior to entering bankruptcy proceedings, Chrysler and GM created special purpose vehicles (SPVs) to hold those funds. Treasury
lent Chrysler and GM $280 million 99 and $361 million,100 respectively. Both Chrysler and GM have since repaid these loans.101 To
date, GM’s repayment of its SPV facility has been its only repayment of TARP funds.102
4. SUPPLIER SUPPORT PROGRAM

As a result of the downturn in the economy, automotive suppliers, upon whose functioning Chrysler and GM depend, had great
94 Id.

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95 Id.
96 Kimberly S. Johnson and Tim Trisher, UAW Workers Approve General Motors Concessions,
USA Today (May 29, 2009) (online at www.usatoday.com/ money/autos/ 2009-05-29-gmuawlN.htm) (hereinafter ‘‘Kim Johnson and Tim Trisher May 29 USA Today Report’’).
97 U.S. Department of Treasury, Obama Administration’s New Warranty Commitment Program (Mar. 30, 2009) (online at www.financialstability.gov/ docs/WarranteeCommitment Program.pdf) (hereinafter ‘‘White House Statement on New Warranty Commitment Program’’).
98 Id.
99 White House Office of the Press Secretary, Obama Administration Auto Restructuring Initiative: Chrysler-Fiat Alliance (hereinafter ‘‘Chrysler-Fiat Alliance’’) (Apr. 30, 2009) (online at
www.whitehouse.gov/ thelpressloffice/ Obama-Administration-Auto- Restructuring-initiative/)
(hereinafter ‘‘Chrysler-Fiat Alliance’’).
100 U.S. Department of Treasury, Obama Administration Auto Restructuring Initiative: General Motors Restructuring (Mar. 31, 2009) (online at www.financialstability.gov/ latest/
05312009lgm- factsheet.html) (hereinafter ‘‘White House March 31 Remarks on GM Restructuring’’).
101 U.S. Department of Treasury, TARP Transactions Report, at 15 (Aug. 4, 2009) (online at
www.financialstability.gov/ docs/ transaction-reports/ transactions- reportl08042009.pdf) (hereinafter ‘‘August 4 Transactions Report’’).
102 U.S. Department of Treasury, Transactions Report, at 16 (Aug. 28, 2009) (online at
financialstability.gov/ docs/transaction-reports/ transactions- reportl08282009.pdf) (hereinafter
‘‘August 28 Transactions Report’’).

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difficulty accessing credit.103 The viability plans of Chrysler and
GM both pointed to the vulnerability of their suppliers.104 Consequently, on March 19, Treasury announced the Auto Supplier
Support Program (ASSP) to make available up to $5 billion in financing.105 The government guaranteed the payment of products
suppliers shipped, even if the automotive companies went under. In
order to further unlock credit, participating suppliers could also
sell their receivables into the program at a discount before maturity. The program would be run through American automotive companies that agreed to participate in the program. The supplier
would pay a small fee for the right to participate in the program.
Although all domestic automotive companies were eligible, only
Chrysler and GM chose to participate. By April 9, $1.5 billion was
made available to Chrysler and $3.5 billion to GM under the program.106 The total commitment was reduced on July 8 to $1 billion
for Chrysler and $2.5 billion for GM.107
5. WHITE HOUSE COUNCIL ON AUTOMOTIVE COMMUNITIES AND
WORKERS

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One aspect of TARP assistance to the automotive industry is the
fallout created by the restructurings. In aiming to make Chrysler
and GM more competitive and sustainable, President Obama has
recognized the difficult sacrifices that many stakeholders and communities have made across the nation.108 The government-backed
restructurings have resulted in substantial sacrifices for many, including further job reductions and dealership and parts supplier
closings that impact the welfare and livelihood of dealers, retirees,
workers and the greater communities 109 surrounding automotive
plants and dealerships. The Obama Administration has created a
White House Council on Automotive Communities and Workers, cochaired by Mr. Summers and Secretary of Labor Hilda L. Solis. Edward Montgomery, a former deputy secretary of labor, was appointed as the new director of recovery for auto communities and
workers to work with autoworkers and auto communities to help
offset the impact of these changes and assist communities as they
reorient their local economies.110 President Obama stated that the
hardships currently being faced are necessary in order for the
American automotive industry to reemerge as the ‘‘best automotive
industry in the world’’ 111 and for the future of this nation to con103 U.S. Department of Treasury, Auto Supplier Support Program: Stabilizing the Automotive
Industry at a Time of Crisis (Mar. 18, 2009) (online at www.treas.gov/ press/releases/ docs/
supplierl supportl programl3l18.pdf) (hereinafter ‘‘Stabilizing the Automotive Industry at
a Time of Crisis’’).
104 Chrysler Restructuring Plan, supra note 28; GM Restructuring Plan, supra note 27.
105 U.S. Department of the Treasury, Treasury Announces Auto Supplier Support Program
(Mar. 19, 2009) (online at www.financialstability.gov/ latest/ auto3l18.html) (hereinafter
‘‘Treasury Auto Supplier Support Program Announcement’’).
106 August 18 Transactions Report, supra note 1.
107 August 18 Transactions Report, supra note 1.
108 White House June 1 Remarks on GM Restructuring, supra note 89.
109 According to data from the Center for Automotive Research, more than 50 U.S. towns and
cities have had a major automotive plant closure in the past five years.
110 White House, Executive Order Establishing a White House Council on Automotive Communities and Workers (June 23, 2009) (online at www.whitehouse.gov/ thelpressl office/ Establishing-a- White-House-Council-on- automotive-communities- and-workers/) (hereinafter ‘‘Executive Order Establishing White House Council on Automotive Communities and Workers’’).
111 White House Office of Press Secretary, Remarks by the President on the Auto Industry
(Apr. 30, 2009) (online at www.whitehouse.gov/ thelpressloffice/ Remarks-by-the-President-onthe- Auto-Industry/) (hereinafter ‘‘White House April 30 Remarks on Auto Industry’’).

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tinue to be premised on the ingenuity and entrepreneurship of current generations and generations past.112
C. THE IMPACT

OF THE

REORGANIZATIONS: WHO GOT WHAT?
1. CHRYSLER

At the time of the Chapter 11 filing, Chrysler was owned 80.1
percent by Cerberus and its affiliates and 19.9 percent by Daimler
and its affiliates.113 Chrysler owed money to several groups of
creditors. Under a first lien credit agreement, Chrysler had borrowed $10 billion from a group of lenders 114 on a secured basis,
meaning that if Chrysler defaulted, specific assets, known as collateral, could be seized by those lenders.115 The collateral for this loan
was nearly all Ch rysler’s assets.116 At the time of filing, Chrysler
owed $6.9 billion to the ‘‘first lien lenders’’ under this agreement.
Under a second lien credit agreement, Chrysler received a further loan from affiliates of its shareholders.117 This loan was secured by a ‘‘second lien’’ over the assets that formed the collateral
for the first lien credit agreement, meaning the second lien lenders
had access to collateral securing their loan only after the first lien
lenders were paid off. At the time of filing, Chrysler owed $2 billion
to the second lien lenders. Under the TARP funding discussed
above, Chrysler borrowed a total of $4 billion from Treasury.118 As
security for this loan, Treasury received a third lien over the assets
securing the first and second lien credit agreements, and a first
lien on all unencumbered assets. (The warranty advance discussed
above was secured by the funds in the warranty SPV.) The amount
owed to Treasury at the time of filing was $4.28 billion.
In 2008, Chrysler (like GM and Ford) had entered into a settlement agreement pursuant to litigation between the UAW, individual workers and the automotive companies.119 Under this agreement, a trust was created to provide medical benefits to UAW retirees. Chrysler was supposed to fund this trust with cash. At the
time of the filing, Chrysler owed the UAW Trust $10.6 billion.120

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112 Id.
113 Affidavit of Ronald E. Kolka In Support of First Day Pleadings, at 5 (April 30, 2009), In
Re Chrysler LLC, S.D.N.Y. (No. 09 B 50002 (AJG)) (online at chap11.epiqsystems.com/ docket/
docketlist.aspx?pk= 1c8f7215-f675-41bf- a79b-e1b2cb9c18f0&l=1) (hereinafter ‘‘Ronald Kolka
Declaration’’).
114 About 70 percent of this debt is held by four banks that received TARP funding: JP Morgan Chase ($25 billion in TARP funding), Citigroup ($45 billion in TARP funding), Morgan Stanley ($10 billion in TARP funding), Goldman Sachs ($10 billion in TARP funding). Ronald Kolka
Declaration, supra note 113 at 5. Some creditors have claimed that Treasury used its status as
a creditor to these institutions as leverage in negotiating over this secured debt. See, for example, Indiana State Police Pension Trust et al. v. Chrysler LLC, No. 09–2311–bk, 2009 WL
2382766 (2d Cir. Aug. 5, 2009); Neil King Jr. and Jeffrey Mccracken, U.S. Forced Chrysler’s
Creditors to Blink, Wall Street Journal (May 11, 2009) (online at online.wsj.com/ article/
SB124199948894005017.html) (hereinafter ‘‘Neil King and Jeffery McCracken May 11 Wall
Street Journal Report’’).
115 When the value of the collateral is less than the amount of the secured claim, the secured
creditors become unsecured creditors with respect to the shortfall.
116 Ronald Kolka Declaration, supra note 113 at 5.
117 The lenders included Daimler Financial, an affiliate of Daimler, with $1.5 billion in commitments and Madeleine LLC, an affiliate of Cerberus, with $500 million in commitments. Ronald Kolka Declaration, supra note 113 at 5.
118 The $4.8 billion total includes three separate loans to Chrysler Holding LLC. Treasury
made a $4 billion loan on Jan. 2, 2009. It made additional loans of $500 million and
$280,130,642 on April 29, 2009. August 28 TARP Transactions Report, supra note 102.
119 See discussion of the UAW Trust, supra note 49.
120 Chrysler Restructuring Plan, supra note 28.

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Chrysler also had significant unsecured debt owing to trade
creditors such as suppliers. At the time of filing, this amounted to
approximately $5.3 billion.121
When, as discussed above, the government indicated that it
would support Chrysler’s viability plan,122 Fiat established New
CarCo. Acquisition LLC (New Chrysler) under Delaware law.
Chrysler, Fiat and New Chrysler tentatively entered into a master
transaction agreement (MTA).123 Under the MTA, with the approval of the bankruptcy court 124 and in accordance with Section
363, Old Chrysler sold substantially all its operating assets to New
Chrysler, and in exchange for those assets New Chrysler assumed
some of the liabilities of Old Chrysler 125 (most importantly the obligations to the UAW Trust) and paid Old Chrysler $2 billion in
cash.126
That $2 billion in cash, together with any remaining assets of
Old Chrysler not transferred to New Chrysler, becomes the ‘‘bankruptcy estate’’ of Old Chrysler and will be distributed to the first
lien lenders in accordance with bankruptcy law.127 As also discussed above, certain of those lenders objected to the Section 363
sale. Notwithstanding the objection of the dissenting creditors, they
will receive the same payout—about 29 cents on the dollar—that
the assenting creditors do.128 Since the first lien lenders were owed
$6.9 billion, there was no money left over for secured lenders with
second or lower liens, or for any unsecured creditors.129
New Chrysler’s operations are not constrained by bankruptcy
law, and it is able to make whatever commercial arrangements it
chooses regarding (a) to whom it sells ownership interests in New
Chrysler, (b) which assets and contracts of Old Chrysler it will acquire, and (c) ongoing commercial relationships with persons (such
as dealers, suppliers and unions) who may have had relationships
with Old Chrysler.130
Thus, in exchange for a new collective bargaining agreement
with the UAW, New Chrysler will fund the UAW Trust with a combination of a $4.6 billion note and 67.7 percent of the equity in
121 Ronald

Kolka Declaration, supra note 113 at 5.
supra Section B.
Transaction Agreement, supra note 45. The agreement was conditioned on the approval of various other agreements or settlements with other parties, including Treasury and
the UAW, as well as overall acceptance of the transaction by the bankruptcy court.
124 Master Transaction Agreement, supra note 45.
125 U.S. Treasury Office of Public Affairs, Obama Administration Auto Restructuring Initiative
(April 30, 2009) (online at www.financialstability.gov/ latest/ tgl043009.html) (hereinafter
‘‘White House April 30 Remarks on Auto Restructuring Initiative’’).
126 Id.
127 The secured creditors committee sued J.P. Morgan, the administrative agent for the deal,
demanding that $1.4 billion paid to Chrysler secured debt holders be returned because liens on
the debt were not perfected. See generally, In re Chrysler LLC, 405 B.R. 84 (Bankr. S.D.N.Y.
2009); Alan Zimmerman, GM Creditor Panel Seeks to Recoup $1.4 billion from Secured Lenders,
Standard & Poor’s: Leveraged Commentary & Data (Aug. 3, 2009) (hereinafter ‘‘Alan Zimmerman S&P Commentary’’).
128 This outcome stands in contrast with press release issued by the White House on April
30, 2009. This release stated: ‘‘In order to effectuate this alliance without rewarding those who
refused to sacrifice, the U.S. government will stand behind Chrysler’s efforts to use our bankruptcy code to clear away remaining obligations and emerge stronger and more competitive.’’
White House April 30 Remarks on Auto Restructuring Initiative, supra note 125.
129 Some of these entities, such as the UAW Trust, did receive interests in New Chrysler, as
discussed in more depth below. From a technical point of view, they received these interests in
their capacity as independent contracting entities offering consideration (such as revised employment contracts with the UAW) to New Chrysler in exchange for New Chrysler equity. Section
363 sales are discussed in more depth in Section E of this report.
130 The significant policy implications of this are discussed in Section G below.
122 See

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123 Master

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New Chrysler.131 Fiat will contribute technology and other capabilities, and receive about 20 percent equity in New Chrysler.132
Treasury received a 10 percent stake in the company, as well as
notes that equal about $7.1 billion. If Fiat is able to achieve certain
performance goals with New Chrysler, its stake will increase to a
35 percent equity share, while the UAW Trust’s and Treasury’s
stakes will decrease to 55 percent and 8 percent, respectively.133
The status of the principal stakeholders in Chrysler and New
Chrysler at the time of filing 134 and after reorganization is thus:
FIGURE 1: STATUS OF THE PRINCIPAL STAKEHOLDERS IN CHRYSLER AND NEW CHRYSLER
Stakeholder

What Old Chrysler owed them

What they get from Old
Chrysler in liquidation

What they contributed to
New Chrysler

What they got from New
Chrysler

First lien secured
lenders 135.
Daimler ......................

$6.9 billion in secured
claims 136.
$2 billion in second lien
debt; 19.9% equity for
Daimler and 80.1%
equity for Cerberus.

$2 billion cash .........

N/A ............................

N/A.

Wiped out .................

$600 million to settle
claim with
PBGC 137.

Cerberus ....................

Treasury .....................

First TARP financing
(1/2/09): $4 billion;
first lien on all
unencumbered property, third lien on previously encumbered
assets.
Second TARP financing
(4/29/09): $1.89 billion
for DIP
(debtor-in-possession)
financing (of $3.8 billion commitment).

UAW Trust ..................

$8 billion in unsecured
claims.

Bankruptcy estate
will not cover
TARP or DIP financing except the
portion assumed
by New Chrysler.
(Note: With respect to
the first TARP financing, Treasury
has a claim on
the value of
Chrysler Financial
equity at the
greater of $1.375
billion or 40% of
total equity value).
Nothing from Old
Chrysler.

Fiat ............................

N/A ...................................

N/A ............................

Contribution of claim
against Daimler to
indirectly assist
settlement with
PBGC.
TARP financing
(6/10/09): up to
$6.6 billion senior
secured debt.

UAW gave concessions on wages,
benefits, retiree
health care to New
Chrysler.
Technology, IP, access to distribution network 139.

8% equity (9.85%
currently),138 as
well as a $6.6 billion note and the
assumption of
$500 million of
the first TARP financing.

55% equity (67.69%
currently); $4.6
billion note.

20% equity with an
additional 15%
available if certain
performance
metrics are met.

131 White

House April 30 Remarks on Auto Restructuring Initiative, supra note 125.
House April 30 Remarks on Auto Restructuring Initiative, supra note 125.
House April 30 Remarks on Auto Restructuring Initiative, supra note 125.
134 This report analyzes information at several different points in the restructuring process.
Dollar amounts in this section are given as at the time of filing for bankruptcy. They may therefore differ from dollar amounts in Section F, which shows amounts initially expended and
amounts outstanding at the time of this report.
132 White

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133 White

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FIGURE 1: STATUS OF THE PRINCIPAL STAKEHOLDERS IN CHRYSLER AND NEW CHRYSLER—
Continued
Stakeholder

What Old Chrysler owed them

Governments of Ontario and Canada.

$600 million loan ............
$1.125 billion for DIP financing.

What they get from Old
Chrysler in liquidation

Nothing from Old
Chrysler.

What they contributed to
New Chrysler

What they got from New
Chrysler

$600 million original
loan assumed by
New Chrysler.
$1.3 billion loan 140

2% equity (2.46%
currently) and a
note for up to
$1.9 billion.

135 These lenders include JP Morgan Chase & Co., Citigroup Inc., Goldman Sachs Group Inc., & Morgan Stanley & Co. Inc., all recipients of
TARP money, as discussed in note 155. infra. Ronald Kolka Declaration, supra note 113 at 5. These lenders include the Indiana Pension
Funds.
136 Chrysler Restructuring Plan, supra note 28.
137 When Chrysler filed for bankruptcy, its pension liabilities were significantly underfunded. As part of the bankruptcy process, Chrysler received court approval of a settlement among the company, the Pension Benefit Guaranty Corporation, Daimler and Cerberus. As noted in the
PBGC’s press release (online at www.pbgc.gov/ media/news-archive/ news-releases/ 2009/pr-0921.html), the settlement frees Daimler of its $1
billion guaranty of the Chrysler pension plans. In exchange, Daimler will pay $200 million into the pension plans immediately upon final execution of the agreement, and will also pay $200 million into the plans in 2010 and 2011. If the Chrysler pensions terminate before August
2012 and are trusteed by the PBGC, Daimler will pay $200 million to the PBGC insurance program. In addition, Cerberus and Daimler have
agreed to waive various loans they made to Chrysler as part of the Cerberus’ 2007 acquisition of the company. Order Authorizing Debtor
Chrysler LLC to Enter Into a Settlement on the Terms Set Forth in the Binding Term Sheet Among Daimler, the DC Contributors, Cerberus,
Chrysler Holding, Chrysler and PBGC Pursuant to Rule 9019 Federal Rules of Bankruptcy Procedure (June 5, 2009), In Re Chrysler LLC,
S.D.N.Y. (No. 09 B 50002 (AJG)) (online at chap11.epiqsystems.com/ docket/docketlist.aspx?pk= 1c8f7215-f675-41bf- a79b-e1b2cb9c18f0&l=1)
(hereinafter ‘‘Order Allowing Chrysler Pension Settlement’’).
138 The ‘‘current’’ figures, which are indicated for Treasury, UAW Trust, and the Governments of Canada and Ontario, represent the equity
breakdown before Fiat increases its equity holding after meeting specified performance metrics. If Fiat secures its potential 35 percent equity
holding, the other equity holdings will decrease as indicated.
139 Chrysler-Fiat Alliance, supra note 99.
140 $1.3 billion of financing commitments were provided by the Canadian and Ontario governments in the form of working capital and exit
financing loans that will continue to be the obligations of New Chrysler.

2. GENERAL MOTORS

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At the time of the Chapter 11 filing, GM was a publicly owned
company traded on the New York Stock Exchange.141
As with Chrysler, GM owed money to various groups of creditors.
At the time of the GM bankruptcy filing on June 1, 2009, GM’s
largest secured debt was to Treasury (in the amount of $19.4 billion) backed by collateral including, in part, intellectual property,
real property, cash, and equity. After GM filed for bankruptcy,
Treasury provided GM with $30.1 billion of debtor in possession
(DIP) financing 142 that was used to facilitate GM’s restructuring
process. As will be discussed below, this DIP financing constituted
an administrative priority claim and gave Treasury priority over
the claims of unsecured creditors.
GM’s largest secured claims outside the U.S. government were:
bank lenders represented by Citicorp US, Inc. ($3.865 billion); bank
lenders represented by JP Morgan Chase Bank ($1.488 billion); Export Development Canada ($400 million); and Gelco Corporation
($125 million).143 These totaled approximately $6 billion and were
backed by collateral that included, in part, inventory, equipment,
and equity interest.
Old GM had unsecured claims that totaled $116.5 billion. Of
those claims, $27.1 billion were attributable to unsecured bonds.144
At the time of filing, the largest unsecured claims were: Wilmington Trust Company ($22.760 billion, bond debt); UAW
($20.560 billion, owed to the UAW Trust); Deutsche Bank AG
($4.444 billion, bond debt); IUE–CWA ($3.669 billion, employee obligations); and Bank of New York Mellon ($176 million, bond debt).
141 General Motors Corp., Form 10–K (March 5, 2009) (online at www.sec.gov/ Archives/edgar/
data/40730/ 000119312509045144/ d10k.htm) (hereinafter ‘‘GM Fiscal Year 2008 10–K’’).
142 See Section G(4) of this report.
143 GM Bankruptcy Petition, supra note 81 at 94.
144 GM Bankruptcy Petition, supra note 81 at 6.

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The remaining 45 unsecured claims were all trade debt, and totaled $894 million.145
On June 1, President Obama outlined the Treasury auto team’s
plan to restructure GM.146 New GM was created. Pursuant to the
Master Sale and Purchase Agreement (MPA),147 New GM purchased most of Old GM’s assets and assumed certain liabilities.148
In exchange, New GM paid Old GM consideration of 10 percent of
the equity in New GM and warrants for a further 15 percent of
New GM’s equity, totaling approximately $7.4 to $9.8 billion in
value.149 In addition, Treasury and the Canadian government credit bid their loans to Old GM, which totaled approximately $45 billion.150 This amount included the $19.4 billion in pre-bankruptcy
indebtedness and the portion of the $33.3 billion DIP facility that
was not assumed by New GM or left behind for the wind-down of
Old GM. That consideration became part of Old GM’s bankruptcy
estate. Where cash is bid in a Section 363 sale (as was the case
in Chrysler), that cash becomes part of the bankruptcy estate to be
distributed to the debtor’s creditors. In a credit bid, the debt owed
to the bidder by the bankruptcy estate is offset by the amount of
the credit bid, reducing the amount of claims that will share in the
distribution of the remaining assets, and thereby increasing the
value of the bankruptcy estate that will be distributed to the nonbidding creditors.
Old GM’s secured lenders were repaid, leaving the unsecured
lenders with their pro rata share of the 10 percent equity in New
GM.
As with New Chrysler, New GM was able to dispose of ownership
interests in New GM as it saw fit. Treasury received $6.7 billion
in New GM debt (of which $361 million related to the warranty
program has been repaid) and $2.1 billion in New GM preferred
stock 151 and approximately 61 percent of the equity in New GM.
The governments of Canada and Ontario received $1.7 billion in
debt and preferred stock and approximately 12 percent of the equity in New GM. 152
145 GM

Bankruptcy Petition, supra note 81 at 81.
House June 1 Remarks on GM Restructuring, supra note 85.
Purchase and Sale Agreement by and Among General Motors Corporation, Saturn
LLC, Saturn Distribution Corporation, and Vehicle Acquisition Holdings LLC (June 1, 2009), In
Re General Motors Corp., S.D.N.Y. (No. 09–50026 (REG)) (online at docs.motors
liquidationdocket.com/ pdflib/ pleadingl5.pdf) (hereinafter ‘‘GM Master Purchase Agreement’’).
148 New GM did not assume the following liabilities: (i) products liability claims arising out
of products delivered prior to the 363 sale transaction closing (to the extent they were not assumed by reason of the change in the MPA after the filing of objections); (ii) liabilities for claims
arising out of exposure to asbestos; (iii) liabilities to third parties for claims based upon contract,
tort or any other basis; (iv) liabilities related to any implied warranty or other implied obligation
arising under statutory or common law; and (v) employment-related obligations not otherwise
assumed, including, among other obligations, those arising out of the employment, potential employment, or termination of any individual (other than an employee covered by the UAW collective bargaining agreement) prior to or at the closing of the 363 sales transaction. In re GMC,
407 B.R. 463, 482 (Bankr. S.D.N.Y. 2009).
149 Stephen Worth Declaration, supra note 36 at appx. 18.
150 Amended and Restated Master Sale and Purchase Agreement by and Among General Motors Corporation, Saturn LLC, Saturn Distribution Corporation, and Vehicle Acquisition Holdings LLC (June 26, 2009) (hereinafter ‘‘Amended and Restated GM Master Purchase Agreement’’).
151 White House March 31 Remarks on GM Restructuring, supra note 100.
152 Prime Minister of Canada, PM and Premier Dalton McGuinty Announce Loans to Support
the Restructuring of Chrysler (June 1, 2009) (online at pm.gc.ca/ eng/media.asp?id=2547) (hereinafter ‘‘Canadian Prime Minister’s Chrysler Announcement’’).
146 White

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147 Master

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Old GM owed a $20 billion obligation to the UAW Trust. Pursuant to the UAW Retiree Settlement Agreement,153 New GM will
transfer to the UAW Trust 17.5 percent of the equity in New GM,
warrants to purchase an additional 2.5 percent, a $2.5 billion note,
and $6.5 billion in preferred stock.
The status of the principal stakeholders in Old GM and New GM
at the time of filing and after reorganization is thus as follows:
FIGURE 2: STATUS OF THE PRINCIPAL STAKEHOLDERS IN GM AND NEW GM
Stakeholder

What Old GM owed them

What they get from
Old GM in liquidation

What they contributed to
New GM

What they get from New
GM

N/A.
17.5% equity; warrants
to buy an additional
2.5% in equity, $2.5
billion note, $6.5
billion in preferred
stock.

Old GM shareholders ....
UAW Trust .....................

Shareholders’ equity .... Wiped out .............
$20.56 billion in unse- Nothing from Old
GM.
cured obligations 154.

N/A ...............................
UAW gave concessions
on wages, benefits,
retiree health care
to New GM.

Secured lenders 155 .......
Unsecured creditors ......

$6 billion .....................
$27.1 billion in bonds
and various other
claims.

N/A.
N/A ...............................

Treasury ........................

First TARP financing
(12/29/08): $13.4
billion.
Second TARP financing
(4/22/09): $2 billion.
Third TARP financing
(5/20/09): $4 billion.
DIP financing (6/3/09):
$30.1 billion.
$9.5 billion loan including $3.2 billion
in DIP financing.

Governments of Canada
and Ontario.

Paid in full ..........
10% of New GM
and warrants
equal to 15%
of New GM.
$986 million of
Treasury DIP financing remains with Old
GM; other debts
were credit bid
and thus no
longer outstanding.
$189 million of
Canadian DIP
financing remains with Old
GM; other
amounts credit
bid.

(Equity issued to Old
GM in exchange for
assets).

Used approximately
$42 billion in debts
to credit bid for Old
GM assets.

61% equity.
$7.1 billion in notes
(including $361 million for warranty
program already repaid) and $2.1 billion in preferred
stock.

Approximately $3 billion of DIP financing
was credit bid.

12% equity.
$1.3 billion in notes
and $0.4 billion in
preferred stock.

154 $10 billion in cash scheduled to be transferred to the UAW Trust on January 1, 2009 had already been set aside by Old GM in an internal account. This cash is still scheduled to be transferred to the UAW Trust on that date.
155 As discussed above, these creditors include J.P. Morgan, Citigroup Inc., Goldman Sachs Group Inc., & Morgan Stanley, all recipients of
TARP money. GM Bankruptcy Petition, supra note 81.

D. TREASURY’S OBJECTIVES: WHAT WAS TREASURY TRYING
ACHIEVE?

TO

1. WHAT WERE TREASURY’S STATED OBJECTIVES?

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In this section, the Panel examines the publicly articulated statements of the Bush and Obama Administrations at the various
points their decisions were announced in order to determine under
which circumstances and upon which conditions the government
might intervene in failing industries. As discussed above, Detroit
automotive executives warned Congress in late 2008 that the collapse of one or more of the Big Three automotive companies would
have national consequences, putting as many as 1.1 million jobs at
153 Form of UAW Retiree Settlement Agreement (June 1, 2009) In Re General Motors Corp.,
S.D.N.Y. (No. 09–50026 (REG)) (online at docs.motorsliquidationdocket.com/ pdflib/uawl7.pdf)
(hereinafter ‘‘UAW Retiree Settlement Agreement’’).

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risk.156 Allocating TARP assistance under EESA came to be perceived by many as the fastest means to provide funding to the sector, since it could be done without further action by Congress.

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a. December 2008: Rescue Funding—The Bush Administration’s decision to allocate TARP funds
The Bush Administration’s initial December 2008 determination
to allocate TARP funds to stabilize the automotive industry
through short-term loans was made with the primary goals of preventing a substantial disruption to the national economy and allowing Chrysler and General Motors to undergo significant restructuring in order to achieve future profitability and long-term viability.157 In a press release, then-Treasury Secretary Henry Paulson
noted that Treasury ‘‘acted to support Chrysler and General Motors, with the requirement that they move quickly to develop and
adopt acceptable plans for long term viability.’’ 158 The Bush Administration stated that short-term funding would allow the companies to work with their creditors, the unions, and Congress to
formulate a plan to reduce their debt, some of the residual
healthcare costs, and to achieve additional concessions, in order to
attain financial viability.159
Furthermore, as part of the initial decision to allocate TARP
funding to the automotive sector, the Bush Administration made
clear the importance of several policy targets as a critical component of the taxpayers’ investment.160 These targets included the reduction of outstanding unsecured debt by two-thirds through a debt
for equity exchange, certain labor modifications (such as cuts in
compensation), and modifications to UAW Trust account contributions, among others.161 The companies were also required to conclude new agreements with their other major stakeholders, including dealers and suppliers, by March 31, 2009.162 Many of these targets were included as part of the proposals for bridge loans that
the Bush Administration negotiated with congressional leadership
towards the end of 2008, but which were eventually blocked in the
Senate before the congressional recess.163
156 For further discussions of the economic ramifications of liquidations of Chrysler and General Motors, see Section B, supra.
157 U.S. Department of the Treasury, Secretary Paulson Statement on Stabilizing the Automotive Industry (Dec. 19, 2008) (online at www.treas.gov/press/releases/hp1332.htm) (‘‘Today we
have acted to support Chrysler and General Motors, with the requirement that they move quickly to develop and adopt acceptable plans for long term viability. This step will prevent significant disruption to our economy, while putting the companies on a path to the significant restructuring necessary to achieve long term viability. At the same time, we are including loan provisions to protect the taxpayers to the maximum extent possible.’’).
158 Id.
159 Bush Plan to Assist Automakers, supra note 16.
160 Chrysler Secured Term Loan Facility Summary, supra note 24; GM Secured Term Loan Facility Summary, supra note 24.
161 Chrysler Secured Term Loan Facility Summary, supra note 24; GM Secured Term Loan
Facility Summary, supra note 24.
162 Chrysler Secured Term Loan Facility Summary, supra note 24; GM Secured Term Loan
Facility Summary, supra note 24.
163 Bush Plan to Assist Automakers, supra note 16. President Bush noted that his administration worked with Congress on legislation to provide automotive companies with bridge loans
while they developed plans for viability. ‘‘Unfortunately, despite extensive debate and agreement
that we should prevent disorderly bankruptcies in the American Automotive Industry, Congress
was unable to get a bill to my desk before adjourning this year.’’ Noting that ‘‘Congress failed
to make funds available for these loans,’’ President Bush highlighted that ‘‘the federal government will grant loans to automotive companies under conditions similar to those Congress considered’’ in late fall 2008.

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b. February–March 2009: Formation of the task force and release of
the Obama Administration’s viability determinations
President Obama noted the gravity of the situation facing the
American automotive industry and made the commitment to work
with and support these companies as they underwent restructuring. Upon taking office, the President ‘‘inherited an automotive
industry that had lost 50 percent of its sales volume and over
400,000 jobs in the year before he took office.’’ 164 By early 2009,
despite having already received substantial loans from the Bush
Administration through TARP funding, Chrysler and GM were requesting additional assistance. President Obama stated that he
considered ‘‘the hundreds of thousands of Americans whose livelihoods are still connected to the American automotive industry, and
the impact on an already struggling economy’’ and determined that
‘‘if Chrysler and GM were willing to fundamentally restructure
their businesses, and make the hard choices necessary to become
competitive now and in the future, it was a process worth supporting.’’ 165 In particular, President Obama noted that among
those Americans who ‘‘have suffered most during this recession
have been those in the auto industry and those working for companies that support it,’’ and cited the historic rise in unemployment
across the Midwest.166 The current Administration has cited the
‘‘centrality of the automobile industry to the broader economy’’ 167
as justification for this substantial intervention and stated that inaction would have caused a ‘‘spiraling liquidation of Chrysler and
GM leading to massive job losses and long-term damage to the U.S.
manufacturing base.’’ 168
From early on in his administration, President Obama gave the
Task Force two directives regarding its approach to the automotive
restructurings. First, the Task Force was to avoid intervening in
day-to-day corporate management and refrain from becoming involved in specific business decisions, since its role was not to manage but, rather, serve as a ‘‘potential investor of taxpayer resources’’ with the goal of promoting ‘‘strong and viable companies.’’ 169 Second, the Task Force was to ‘‘behave in a commercial
164 Ron

Bloom Prepared COP Testimony, supra note 78 at 1.
House, Remarks by the President on the American Graduation Initiative, Macomb
Community College, Warren, MI (July 14, 2009) (online at www.whitehouse.gov/ thel pressl
office/ Remarks-by-the-President-on-the- American-Graduation- Initiative-in-Warren-MI/) (hereinafter ‘‘White House July 14 Remarks’’).
166 During his June 1 remarks on the General Motors restructuring, President Obama again
referenced the importance of a viable auto industry to the welfare of families and communities
across the Midwest and throughout the United States. ‘‘In the midst of a deep recession and
financial crisis, the collapse of these companies would have been devastating for countless Americans, and done enormous damage to our economy—beyond the auto industry.’’ March 30 Presidential Remarks, supra note 91.
167 Interview with National Economic Council Director Lawrence H. Summers, Wall Street
Journal (June 15, 2009) (online at online.wsj.com/ article/ SB124388671265573443.html) (hereinafter ‘‘Lawrence Summers’ WSJ Interview’’).
168 Questions for the Record for Ron Bloom, supra note 36 at 4–5. (‘‘Outright failure of GM
and Chrysler would likely have led to uncontrolled liquidations in the automotive industry, with
widespread devastating effects. Importantly, the repercussions of such liquidations could have
included immediate and long-term damage to the U.S. manufacturing/industrial base, a significant increase in unemployment with direct harm to those both directly and indirectly related
to the automotive sector (e.g. dealerships being shuttered, plant closings, supplier failures, service centers closing, etc.), and further damaged our financial system, as automobile financing accounts for a material portion of our overall financial activity.’’).
169 Ron Bloom Prepared COP Testimony, supra note 78 at 1.

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manner.’’ 170 These dual roles, and their continued impact throughout the varying stages of bankruptcy and restructuring, are discussed in detail later in this report.
In evaluating the viability plans submitted by Chrysler and GM
on February 17, 2009, the Treasury auto team acted with the stated goals of achieving the efficient, fair and commercial restructuring of these two companies, along with helping them rethink
their business models and restructure their balance sheets.171 As
required by the original loan agreements executed with the Bush
Administration, the viability plans were evaluated to determine
whether the companies and their subsidiaries ‘‘have taken all steps
necessary to achieve and sustain the long-term viability, international competitiveness, and energy efficiency’’ 172 of these companies. As discussed above, both companies have steadily lost market
share, primarily to foreign automotive companies, over the past
thirty years. A major challenge both companies face is therefore addressing this slippage and designing products that meet consumer
demands. As part of this review process, the Treasury auto team’s
financial advisors performed ‘‘sensitivity analyses by varying the
assumptions underlying the [viability] plans.’’ 173 Mr. Bloom stated
that these viability plans were ‘‘very rigorously reviewed and challenged.’’ 174 The review and evaluation of these viability plans was
conducted through the eyes of a ‘‘provider of capital’’ 175 and potential investor—meaning that the Treasury auto team ‘‘had an obligation to challenge [Chrysler and GM] to make sure they were acting in a thoughtful and commercial fashion.’’ 176

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c. April–May 2009: Decisions to File for Bankruptcy
The decisions by both Chrysler and General Motors to file for
bankruptcy were prompted by the Treasury auto team’s viability
determinations issued on March 30, 2009, as discussed above.
President Obama noted that the word ‘‘bankruptcy’’ was being used
loosely to refer to the use of the Code, with the backing of the federal government, to help Chrysler and GM restructure and continue operating in an ordinary course, not a liquidation (where a
company is broken up, sold off, and disappears), or where a company is in litigation for years with no immediate headway.177
The Treasury auto team’s articulated objectives with respect to
the Chrysler and GM bankruptcies were to save hundreds of thousands of jobs and to place the companies on a solid footing to succeed in the future and generate jobs ‘‘well into the 21st century.’’ 178 In his testimony before the Panel at the Detroit field
hearing on July 27, 2009, Mr. Bloom stated that the governmentbacked bankruptcy reorganizations of Chrysler and GM gave ‘‘every
170 Senate Committee on Banking, Housing, and Urban Affairs, Testimony of Senior Advisor
at the U.S. Department of Treasury Ron Bloom, The State of the Domestic Automobile Industry:
Impact of Federal Assistance, 111th Cong., at 5–6 (June 10, 2009) (hereinafter ‘‘Ron Bloom Senate Testimony’’).
171 Ramifications of Automotive Industry Bankruptcies, Part II, supra note 10 at 1.
172 Chrysler February 17 Viability Plan, supra note 11; GM February 17 Viability Plan, supra
note 34.
173 Ron Bloom COP Testimony, supra note 36, at 2–3.
174 Ron Bloom Senate Testimony, supra note 170, at 8.
175 Ron Bloom Senate Testimony, supra note 170, at 21.
176 Ron Bloom Senate Testimony, supra note 170, at 8.
177 March 30 Presidential Remarks, supra note 91.
178 Ron Bloom Senate Testimony, supra note 170, at 3–4.

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affected stakeholder a full opportunity to have his or her claim
heard,’’ adding that ‘‘every creditor will almost certainly receive
more than they would have had the government not stepped in.’’ 179
In addition, he stated that the Treasury auto team interacted with
the various creditors of Chrysler and GM as a commercial actor
would, given the commercial approach it has taken to the restructuring of these two companies.180
d. June and July 2009 Through the Future: Post-Bankruptcy and
Looking Forward
New Chrysler and New GM completed their Section 363 purchases of assets through the bankruptcy process in June and July,
respectively. As the two companies commence operations as independent companies, Treasury has entered a new phase in the federal government’s temporary involvement in the automotive industry. Since the companies are now being run as commercial enterprises by their management teams and report to new, independent
boards of directors,181 the roles of the Task Force and the Treasury
auto team from now on will be characterized by moving toward a
more passive role with a focus on monitoring the automotive industry and safeguarding the taxpayers’ substantial investments. The
Task Force and Treasury auto team’s goal ‘‘is to promote strong
and viable companies, which can be profitable and contribute to
economic growth and jobs without government support as quickly
as possible.’’ 182
Mr. Bloom has stated that President Obama’s articulated view of
the government’s limited role in these companies has two main elements.183
First, while the government has a partial ownership stake in
these companies, Treasury only plans to hold these equity stakes
for a limited period of time and plans to dispose of them ‘‘as soon
179 Ron

Bloom Prepared COP Testimony, supra note 78, at 3.
Bloom COP Testimony, supra note 36 at 4.
Bloom Prepared COP Testimony, supra note 78 at 9.
182 Ron Bloom Prepared COP Testimony, supra note 78 at 9.
183 The Administration has articulated a set of four guidelines that will govern its approach
to managing ownership interests in financial and automotive companies. These guidelines will
determine the government’s approach to New Chrysler and New GM and its actions as a shareholder. These guidelines are as follows:
1. The government has no desire to own equity stakes in companies any longer than necessary, and will seek to dispose of its ownership interests as soon as practicable. The goal is
to establish strong and viable companies that can quickly be profitable and contribute to economic growth and jobs without government involvement.
2. In exceptional cases where the U.S. government feels it is necessary to respond to a company’s request for substantial assistance, the government will reserve the right to set upfront
conditions to protect taxpayers, promote financial stability and establish the foundation for future growth. When necessary, these conditions may include new viability plans similar to those
now underway at New Chrysler and New GM as well as changes to ensure a strong board of
directors that selects management with a sound long-term vision to restore their companies to
profitability and to end the need for government support as quickly as possible.
3. After any upfront conditions are in place, the government will protect the taxpayers’ investment by managing its ownership stake in a hands-off, commercial manner. The government will
not interfere with or exert control over day-to-day company operations. No government employees will serve on the boards or be employed by these companies.
4. As a common shareholder, the government will only vote on core governance issues, including the selection of a company’s board of directors and major corporate events or transactions.
While protecting taxpayer resources, the government intends to be extremely disciplined as to
how it intends to use even these limited rights.
Ron Bloom Prepared COP Testimony, supra note 78, at 9; White House GM Restructuring Fact
Sheet, supra note 85.
180 Ron

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181 Ron

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as practicable.’’ 184 Treasury’s primary goal is to establish viable
companies capable of achieving future profitability.185
Second, Treasury expects to manage its stake in a ‘‘hands-off’’
manner, voting only on core governance issues, including the selection of directors and other major corporate actions and transactions.186 Having appointed its directors, Treasury will now step
back until the next time that the directors are up for election, at
which time it will decide whether to retain or replace these directors.187 In reference to its ‘‘hands off’’ stance, Mr. Bloom has acknowledged that using GM or Chrysler as an instrument of broader
government policy (for example, mandating the production of certain vehicles, requiring that the automotive companies build more
vehicles in the United States or purchase more parts from U.S.
manufacturers) ‘‘is inconsistent with these goals.’’ 188 This also signifies that no government employees will serve on the boards or be
on the payroll of these automotive companies. The Treasury auto
team has repeatedly reaffirmed President Obama’s commitment to
this policy approach,189 and additionally noted the Administration’s
strong opposition to the amendment to the House Financial Services Committee appropriations bill that attempts to restore prior
Chrysler and GM franchise agreements.190
The Task Force and Treasury auto team are currently focusing
on achieving three objectives with respect to New Chrysler and
New GM: (1) financial restructuring; (2) operational restructuring;
and (3) cultural changes (i.e., establishment of new boards of direc184 Ron

Bloom Prepared COP Testimony, supra note 78 at 9.
February 17 Viability Plan, supra note 11; GM February 17 Viability Plan, supra

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185 Chrysler

note 34.
186 Chrysler February 17 Viability Plan, supra note 11; GM February 17 Viability Plan, supra
note 34.
187 At the Panel’s Detroit field hearing, Mr. Bloom agreed that this is an adequate description
of the government’s approach. Ron Bloom COP Testimony, supra note 36.
188 Ron Bloom Prepared COP Testimony, supra note 78, at 9. Some environmental activists
have raised the question of whether the automotive companies, having received TARP assistance, should be required to build ‘‘greener’’ automobiles, in keeping with President Obama’s
focus on climate change. Brian Deese, Special Assistant to the President for Economic Policy
and a member of the Task Force staff, has said that these broader issues are not the Administration’s objective. ‘‘The question we were focused on was not what larger policy objectives we
should be trying to achieve, but what is a commercially viable restructuring that will allow them
to succeed in a way that they have not in the past.’’ Michelle Maynard and Michael J. de la
Merced, A Cliffhanger to See if a G.M. Turnaround Succeeds, New York Times (July 26, 2009)
(online at www.nytimes.com/ 2009/07/26/ business/26gm.html).
189 Treasury meeting with COP Staff, July 29, 2009; White House June 1 Remarks on GM Restructuring, supra note 89. ‘‘What we are not doing—what I have no interest in doing—is running GM. GM will be run by a private board of directors and management team with a track
record in American manufacturing that reflects a commitment to innovation and quality. They—
and not the government—will call the shots and make the decisions about how to turn this company around. The federal government will refrain from exercising its rights as a shareholder
in all but the most fundamental corporate decisions. When a difficult decision has to be made
on matters like where to open a new plant or what type of new car to make, the new GM, not
the United States government, will make that decision.’’).
190 Treasury meeting with COP Staff, July 29, 2009; Mr. Bloom also stated that:
[t]he decision to invest taxpayer dollars into these companies required all stakeholders to
make difficult sacrifices, and at this point, it would set a dangerous precedent, potentially raising enormous legal concerns, to say nothing of the substantial financial burden it would place
on the companies, to intervene into a completed portion of a judicial bankruptcy proceeding on
behalf of one particular group. Political intervention of this nature could also jeopardize taxpayer returns by making it far more difficult for the companies to access private capital markets
if there is ongoing uncertainty about whether Congress will intervene to overturn judicially approved business decisions anytime that it disagrees with the judgments of the companies.
Ramifications of Automotive Industry Bankruptcies, Part II, supra note 10, at 6. H.R. 3170,
supra note 10, at sec. 745.

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tors).191 President Obama has stated that it is the responsibility of
each company’s board of directors and management team to deliver
these results, but that the Treasury auto team, in its role as lender
and investor, will closely monitor the loans and investments made
in both companies on an ongoing basis and work to ensure that the
companies are in compliance with commitments they have made.192
While President Obama’s stated policy is for the government to
dispose of its stakes in the automotive companies ‘‘as soon as practicable,’’ 193 as noted above, the Task Force and Treasury auto team
have declined to provide a more specific timeframe, given their desires to avoid market disruptions and prevent the dilution or degradation of the value of Treasury’s ownership stakes. Treasury
‘‘plans to be a responsible steward of taxpayer money,’’ and will
regularly assess both the public and private options to dispose of
its investments.194 The financial performances of the companies
and their return to profitability will play a key role in Treasury’s
determination as to when to dispose of its ownership stakes. The
Treasury auto team expects that the New GM will undertake an
initial public offering (IPO) sometime in 2010 (within the next
twelve months), and Treasury will then seek to gradually sell off
its shares at an appropriate time thereafter.195 On the other hand,
the Treasury auto team’s ‘‘most likely exit strategy’’ for New Chrysler involves either a private sale or a gradual sell-off of shares following an IPO.196 Mr. Bloom has stated, however, that Treasury
will likely begin disposing of its ownership stake in GM before it
does so for its Chrysler stake, but the final decision to proceed with
an IPO is left ultimately in the hands of each company’s board of
directors and will be heavily dependent on conditions in the general economy and public securities markets.197
When asked to identify the primary metric that the public and
policymakers could use to assess the TARP investments in Chrysler and GM, Mr. Bloom noted that success is best measured by
whether taxpayers see a return of their money.198
As discussed above, President Obama, the Task Force and the
Treasury auto team have articulated at least several different objectives for the government’s intervention in the automotive industry. These include preventing the liquidations of the automotive
companies and the impact these occurrences would likely have on
the greater economy, achieving particular policy goals (such as preventing mass layoffs and fostering energy-efficient automobiles),
and retaining the domestic automotive industry. Given that each of
these objectives has been cited at various times, there is little clarity with respect to what has ultimately driven the decision-making
behind these interventions.
191 Ron

Bloom Prepared COP Testimony, supra note 78.
of Automotive Industry Bankruptcies Part II, supra note 10, at 2.
House GM Restructuring Fact Sheet, supra note 85.
194 Ron Bloom COP Testimony, supra note 36, at 3.
195 Ron Bloom COP Testimony, supra note 36, at 3. For further discussion describing ways
in which Treasury might divest its ownership stakes in New Chrysler and New GM, see Section
G2, infra.
196 Ron Bloom COP Testimony, supra note 36, at 3.
197 Ron Bloom COP Testimony, supra note 36, at 3.
198 Ron Bloom COP Testimony, supra note 36, at 56–57.
192 Ramifications

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193 White

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2. THE INTENDED IMPACT ON THE INDUSTRY AND ECONOMY

As discussed above, the Treasury auto team has focused on fulfilling President Obama’s substantial commitment to stabilize the
domestic automotive industry. This policy approach is intended to
give Chrysler and General Motors a second chance, help these companies emerge stronger and more competitive in a changing automotive market, and end the practice of ‘‘kicking the can down the
road’’ 199 by refusing to confront the tough problems and decisions
facing the American automotive industry. As President Obama
noted in his March 30, 2009 speech on the automotive industry,
‘‘we, as a nation, cannot afford to shirk responsibility any longer.
Now is the time to confront our problems head-on and do what’s
necessary to solve them.’’ 200 The Obama Administration has acted
with the assumption that its actions would create a ‘‘new beginning
for a great American industry’’ that would out-compete the world
and be marked by important innovations in fuel efficiency and energy independence.201 This commitment to assist the companies
with the restructuring processes and procedures necessary to help
them achieve long-term viability has been a central underlying
component of every aspect of the Treasury auto team’s decisionmaking.
With respect to the broader economy, the Treasury auto team
has aimed to avoid the devastating impact that the collapse of
these companies would have had on countless Americans and the
greater economy beyond the automotive industry in times of severe
recession and financial crisis. As part of this approach, the President and the Treasury auto team have acted to avoid the prospect
of both Chrysler and General Motors entering liquidation, which,
they argue, would have caused ‘‘substantial job loss with a ripple
effect throughout our entire economy.’’ 202 For example, as a result
of both companies achieving a quick restructuring during recent
months, Secretary Geithner has noted that the ‘‘economy avoided
the devastation that would have accompanied their liquidation.’’ 203
President Obama has essentially viewed the restructuring of
Chrysler and General Motors as key elements of the strengthening
of American manufacturing and the stabilization of the national
economy.204
Since both Chrysler and GM came to the federal government ‘‘in
a state of complete insolvency, facing almost certain liquidation’’
without further government assistance,205 the Treasury auto
team’s actions and decision-making need to be considered and evaluated in the context of existing bankruptcy precedent, process and
procedures.
199 White

House June 1 Remarks on GM Restructuring, supra note 89.
30 Presidential Remarks, supra note 91.
30 Presidential Remarks, supra note 91.
202 Ron Bloom Senate Testimony, supra note 170.
203 U.S. Department of the Treasury, Statement from Treasury Secretary Geithner on the Presidential Task Force on the Automotive Industry (July 13, 2009) (online at www.treas.gov/ press/
releases/ tg207.htm) (hereinafter ‘‘Treasury Statement on Automotive Task Force’’).
204 White House June 1 Remarks on GM Restructuring, supra note 89.
205 Ron Bloom COP Testimony, supra note 36 at 23–24.
200 March

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201 March

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E. BANKRUPTCY LAW ASPECTS OF THE AUTOMOTIVE COMPANY
RESCUES
This section provides a brief introduction to business reorganization in bankruptcy and summarizes the Chrysler and GM bankruptcy proceedings.
These reorganizations have triggered substantial debate in academic circles. As with previous reports, the Panel has engaged the
assistance of prominent professors to discuss the technical and
legal aspects of this debate in more detail. Papers by Professor Stephen Lubben of Seton Hall University School of Law 206 and Professor Barry Adler of NYU School of Law 207 appear as Annexes A
and B to this report, and the report has also benefitted from the
scholarship of Professor Mark Roe 208 of Harvard Law School and
Professor David Skeel 209 of the University of Pennsylvania Law
School. Their positions are discussed in Section G of this report.
1. THE OPTIONS AVAILABLE TO INSOLVENT BUSINESSES

Until the 1930s, bankruptcy generally meant the liquidation of
a firm’s assets for the benefit of its creditors. The stock market
crash of 1929 caused widespread liquidations and spurred efforts to
reform the bankruptcy laws. Forced liquidations and foreclosures
were harmful to both creditors and debtors. Debtors were not given
an opportunity to pay their debts, the going-concern value of the
business was destroyed, and employees lost their jobs. During this
time, creditors recovered only a fraction of the amount they were
owed. From 1933–1934, the laws were changed so that corporations
could obtain bankruptcy court protection and modify their debts.210
Although the reform was designed to address the market crisis
during the Great Depression, it remained in place after the Depression was over and became the precursor for business reorganization
under Chapter 11 today.211

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a. Liquidation
In some countries, the only option when a business is unable to
meet its obligations is to dissolve the business, liquidate its assets
and distribute the proceeds of that liquidation to the business’s
creditors. The Code attempts to preserve economic value by permitting a viable business to attempt to reorganize and operate as a
going concern. If that is not possible, the Code allows the estate to
sell the business as a going concern, to break it up into viable
parts, or to create an orderly liquidation. Some businesses that at206 Professor Stephen Lubben is the Daniel J. Moore Professor of Law at Seton Hall. He specializes in corporate finance, particularly issues concerning corporate debt and financial distress.
207 Professor Barry E. Adler is the Bernard Petrie Professor of Law and Business and Associate Dean for Information Systems and Technology at New York University School of Law. His
areas of research include bankruptcy, contracts, corporate finance, and corporations.
208 Professor Mark J. Roe is the David Berg Professor of Law at Harvard Law School. His
scholarship includes issues in corporate law, corporate finance and corporate bankruptcy and
reorganization.
209 Professor David A. Skeel is the Samuel Arsht Professor of Corporate Law at the University
of Pennsylvania Law School. His areas of expertise are bankruptcy and corporate labor law.
210 For a discussion of the history of bankruptcy legislation in the United States, see David
A. Skeel, Debt’s Dominion: A History of Bankruptcy Law in America (Princeton University Press
2003).
211 11 U.S.C. 101 et seq. (2009). For an explanation of the basic bankruptcy concepts referenced in this report, please see David G. Epstein & Steve H. Nickles, Principles of Bankruptcy
Law (Thomson/West 2007).

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tempt to reorganize under Chapter 11 ultimately fail. Some businesses that are in serious enough trouble do not even attempt
Chapter 11 reorganization, and instead liquidate in Chapter 7
under the supervision of a court-appointed trustee.212 Others will
wind up their business operations without any bankruptcy proceeding, simply disappearing from the economy.

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b. ‘‘Traditional’’ Chapter 11 Reorganization
Chapter 11 permits a troubled company to continue its business
as a going concern while it restructures its debts. The purpose of
Chapter 11 is to preserve economic value, minimizing the impact
of a business’s failure on both its creditors and those who depend
on the business, such as the employees and suppliers. Considering
the intangible value of the business, such as business relationships,
name recognition, and synergy created by the productive use of resources, there may be more value in a business as a going concern
than in liquidation. This value is destroyed in liquidation, and the
price the business’s assets would realize in liquidation is often very
low compared to the value they would have as a part of a productive whole. Liquidation value for a troubled business is generally
less than the total amount of the business’s outstanding debt.
Creditors may receive more value from reorganization than from
liquidation. Additionally, parties other than creditors, such as employees, gain more from the business’ continuance. Consequently,
when a business has any chance of continuing as a going concern,
public policy 213 and the best interests of the creditors 214 dictate
that it should be given a chance to recover while being protected
from its creditors’ actions to collect.
In Chapter 11 reorganization, the business’s debts are restructured. Each creditor is entitled to receive the present value of the
amount that creditor would have received in liquidation. The bankruptcy court is required to protect the best interest of each individual creditor during reorganization. This requirement is known
as the ‘‘best interest’’ test. The consideration the creditors receive
under this standard may be paid over time with interest from the
time that the plan of reorganization is confirmed. Any debt that exceeds the amount the creditor is entitled to in liquidation may be
discharged in bankruptcy. In fact, however, many Chapter 11 plans
offer to pay the creditors more than they are specifically entitled
to, in part to attract the support of the creditors as they vote, by
class, for or against the plan of reorganization, as described in
more detail below.
In addition to (or in substitution for) repayment of debt, creditors
may also be issued shares of stock or other ownership interests in
212 Chapter 7 of the Code addresses the liquidation of a business. 11 U.S.C. §§ 701–784 (2009).
In cases where efforts to reorganize under Chapter 11 fail, such cases may be converted into
Chapter 7 liquidation cases. Although liquidation of the debtor is primarily the function of
Chapter 7, liquidation may also occur under other chapters. For instance, a Chapter 11 plan
could provide for the partial or complete liquidation of a business.
213 Considering that keeping a business in operation is often much more desirable than liquidating it, the fundamental premise of Chapter 11 of the Code is that reorganization is desirable.
Mark S. Scarberry, Kenneth N. Klee, Grant W. Newton & Steve H. Nickles, Business Reorganization in Bankruptcy (2006).
214 Upon filing the bankruptcy petition, the Code requires the business to be run for the benefit of the creditors. The shareholders will recover their investment only in the unlikely event
that all the valid claims of all creditors are paid in full and value remains in the business.

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the reorganized debtor to satisfy their claims. As a consequence,
the capital structure of the pre-bankruptcy business may look very
different after undergoing restructuring under Chapter 11.
In a traditional corporate reorganization, the restructuring process begins when the debtor files a bankruptcy petition 215 with the
bankruptcy court. The petition asks for bankruptcy relief, and includes detailed schedules of the business’ income, assets, and liabilities. Upon filing the petition, all the business’ legal and equitable
interests in any property are transferred to a new entity, which is
known as the bankruptcy estate.216 All the assets of the newly created bankruptcy estate instantly come under the full protection of
the Code.217 Most importantly, the rights of creditors, and the
order of priority by which they will be paid, are locked into place.
Also at the time of filing, bankruptcy law imposes an automatic
stay against all attempts by creditors to collect from the debtor.
This allows the debtor to continue its ordinary business operations
and the Chapter 11 reorganization to proceed in an orderly manner. The Code sets out rules for a collective system to coordinate
the actions of the various creditors. In doing so, the Code permits
the overall value of the business to be maximized by lowering both
the business’s losses and the costs of addressing the creditors’ collection actions.
At the moment of the bankruptcy filing, creditors’ claims against
the debtor become claims against the bankruptcy estate. Claims
against the estate are entitled to different levels of statutory priority, with some claims having seniority over others.218 The order
of priority is significant because priority determines the order in
which claims against the bankruptcy estate will be satisfied. Shareholder interests, following behind secured and unsecured claims,
have the lowest level of priority in a bankruptcy estate. Under the
absolute priority rule,219 shareholders are often wiped out and receive nothing in a Chapter 11 reorganization or a Chapter 7 liquidation.
The Code treats secured and unsecured creditors very differently.
Secured creditors—those whose debts are secured by collateral in
advance of the bankruptcy—hold a secured claim. The value of the
secured claim is limited by the value of the collateral. If the secured claim is less than or equal to the value of the collateral that
relates to that debt, the claim is fully secured and the secured creditor will recover its money entirely. If, however, the debt is greater
than the value of the collateral, the creditor will receive the value
of the collateral, and the balance of the debt becomes a general unsecured claim to be paid pro rata way with the other general unsecured claims against the debtor.
Generally, the business does not have enough value to pay unsecured claims in full. Instead, unsecured creditors often receive a
215 In theory, creditors could file an involuntary petition to force a business into bankruptcy,
but this is extremely rare. 11 U.S.C. § 303.
216 11 U.S.C. § 541.
217 11 U.S.C. § 362(a).
218 The seniority of claims may also be determined by contractual agreement between creditors, when, for example, two creditors agree that one will subordinate its claim to the other.
219 The absolute priority rule, simply stated, refers to the requirement that unless a dissenting
class of creditors receives or retains property of a value equal to the allowed amount of its
claims, no creditor of lesser priority, or shareholder, may receive any distribution under the
plan. 11 U.S.C. § 1129(b)(1).

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pro rata distribution on account of their claims. However, not all
unsecured creditors are treated exactly the same. Some unsecured
claims, such as certain taxes and unpaid employee wages,220 will
be paid ahead of the general class of unsecured creditors.
The general unsecured creditors form a creditors’ committee. The
creditors’ committee monitors the activities of the individual or entity managing the debtor’s business, which may be a trustee, but
is more likely to be the debtor-in-possession (DIP). When a business files for bankruptcy, the management team automatically becomes the management of the DIP, and continues to run the business. Old management, however, may not remain in place for long.
Studies show that management is frequently replaced just before
or after filing.221 A party that is willing to provide financing after
the business files bankruptcy will often have a substantial say in
many aspects of the business, including appointing new management.222
After the petition is filed, any new monies coming into the bankruptcy estate are not bound by the rules constraining the assets of
the pre-bankruptcy debtor. There are two basic reasons for the disparate treatment of incoming funds of the pre-bankruptcy and the
post-bankruptcy debtor: (1) to attract new investment into the business (investors are unlikely to invest if they believe their funds
would only be used to pay off old debt); and (2) to permit the business to find funding for a new business plan.
While undergoing Chapter 11 reorganization, the DIP must continue to operate the business as a going concern and protect it from
disruptive interference. To do so, the DIP may use cash generated
by the business and it may also seek DIP financing, new financing
that is generally secured by assets of the post-bankruptcy debtor.
Considering the risk that a business already in bankruptcy may
eventually fail, it is often difficult, if not impossible, to find a lender willing to provide substantial post-petition financing to a distressed company on an unsecured basis. To encourage lenders to
provide DIP financing, the Code provides that post-petition loans
will be given seniority and preferential treatment over other
claims.223
Unlike the prepetition creditors who have already invested in the
business, the post-petition lenders bring fresh capital to the struggling enterprise. Because no post-petition lender is required to lend
to the business and because dealing with bankrupt businesses is
often regarded as quite risky, the leverage of the DIP lender is extremely high.224 Some refer to DIP lenders as following the Golden
220 11

U.S.C. § 507.
Warren, Chapter 11: Reorganizing American Business, 61 (Aspen Publishers

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221 Elizabeth

2008).
222 Id.
223 11 U.S.C. § 364(a)–(b). For example, DIP financing is often considered an administrative
expense, which is entitled to payment in full in cash under 11 U.S.C. 1129(a)(9)(A) on the effective date of a Chapter 11 plan of reorganization unless agreed otherwise.
224 Sarah Woo, an SJD candidate at Stanford Law School, writes, ‘‘A concern often raised in
relation to the U.S. bankruptcy regime is the high level of control over proceedings enjoyed by
secured lenders. In particular, through the use of the arsenal of provisions in debtor-in-possession (DIP) financing, secured lenders can quickly effectuate asset sales. While this strategy
minimizes the time taken to realize cash recoveries for the secured lenders, it may not maximize
the value of the estate for all creditors.’’ Sarah P. Woo, Debtor-in-Possession Financing: Looking
Beyond the Debtor (Aug. 1, 2009) (abstract available online at papers.ssrn.com/ sol3/papers.cfm?
abstractlid= 1442854).

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Rule: Those with the gold make the rules.225 There are no statutory limits on the conditions that DIP lenders may impose on the
business. Instead, DIP lending can be undertaken only if the other
creditors are given an opportunity to object and the court, after
hearing those objections, approves of the financing and the terms
on which the financing is proposed. If the court approves the terms
of a DIP loan, then the loan, with all its contractual conditions,
binds the bankruptcy estate.
Because of its leverage, a DIP lender may have the power to decide which contracts—with suppliers, vendors, dealers, etc.—it
wishes the estate to assume and which contracts it wishes the estate to reject.226 This is particularly true where the DIP lender is
also the expected buyer at the 363 sale. The DIP also has the
power to shape the proposed plan of reorganization and to condition its funding on the court’s approval of such plan or another
plan the DIP endorses.
The Code sets out the process by which creditors vote on Chapter
11 plans, and it provides some protection to dissenting creditors.
Plans deal with creditors by classes.227 Each unsecured creditor is
placed into a class with other creditors that have legally-similar
claims. As discussed above, claims are treated differently depending on statutory and contractual priority. Within each class, all
creditors must receive the same treatment. The creditors vote on
the plan by class. A class is deemed to have accepted a plan if
creditors constituting a majority of the claims in the class by number and representing at least two-thirds of the dollar amount of
debt owed to that class vote in favor of the plan.228 Because of the
need to have each class vote in favor of a plan, the allocation of
creditors into classes can become the subject of extensive debate.229
Within a class, dissenting creditors are bound by the majority vote
of their class. Under certain circumstances, a class of dissenting
creditors may nonetheless be required to accept confirmation of the
proposed plan.230
If all classes of creditors have consented to the plan, the bankruptcy court inquires into the feasibility of the plan and whether
the plan is proposed in good faith, and then typically confirms the
plan. Section 1129 of the Code provides that the court may confirm
the plan only if it meets with the many procedural requirements
and safeguards of the Code, including, among many other things,
adherence to the priority of classes of creditors.231
The absolute priority rule, the best interests test and the opportunity to vote constitute the major protections for creditors in a
225 A liquid market for DIP loans would temper the DIP lender’s leverage in the reorganization process by providing the debtor with alternative offers for DIP financing. While this may
be the case in more traditional reorganizations, at the time Chrysler and GM filed bankruptcy
the capital markets were experiencing a credit freeze and the amount of money needed to reorganize the auto companies was very large. This allowed any DIP financer that stepped forward
more leverage than it may have had under ordinary circumstances.
226 If repudiation or cancellation of the contract results in a breach of contract, claims for that
breach become unsecured debt of the estate. 11 U.S.C. § 365(g)(1). Debts of the estate, as contrasted with debts of the prepetition debtor, must be paid in full ahead of other unsecured
claims.
227 11 U.S.C. § 1122.
228 11 U.S.C. § 1126(c).
229 See infra Section (G)(4) of this report.
230 11 U.S.C. § 1129(b).
231 11 U.S.C. § 1129(a)(1).

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Chapter 11. These protections, however, are tempered by the impact of majority vote that binds dissenters and the sharp distinction between prepetition creditors and post-petition DIP financers.
c. Sales under Section 363
As part of the reorganization effort, a debtor may propose to sell
some or all of its assets during the course of the Chapter 11. This
sale, conducted under Section 363(b) of the Code and known as a
‘‘363 sale,’’ authorizes a DIP to sell property of the estate 232 outside the ordinary course of business.233 The proceeds from a 363
sale may be used to fund the continuing operation of the debtor or
to raise capital to pay creditors as part of a plan of reorganization.
The use of 363 sales has evolved in recent years. Today, 363 sales
often dominate the resolution of a Chapter 11 case by selling all
or substantially all of the assets of the business and leaving only
the remainder of the assets for distribution in the Chapter 11 plan.
In bankruptcy, the sale of assets under Section 363 offers substantial advantages over the sale of assets under state law. Under
Section 363, the assets are sold ‘‘free and clear’’ of all liens if the
sale satisfies one of the section’s enumerated conditions.234 This
means a buyer gets clear title to the assets, whereas under state
law, creditors’ claims may cloud the title of the sold assets. Creditors’ claims to assets sold by failing businesses are particularly
worrisome to buyers, thus making bankruptcy protection and 363
sales particularly valuable tools. 363 sales permit the estate to
transfer assets for their best and maximizing use, for the ultimate
benefit of the creditors.
A 363 sale can be held in a relatively short time. Because the
sale separates any disputes over the distribution of assets (arguments among creditors) from the process of realizing the maximum
value of the estate (sale of the assets), the 363 sale often maximizes the total value of the assets. Once a business has filed for
bankruptcy protection, both debtors and creditors often prefer the
speed of 363 sales to the potentially long and drawn out traditional
Chapter 11 plan confirmation process. Thus, 363 sales have been
frequently used to resolve large bankruptcies since the mid
1990s.235
Section 363 does not limit the type or amount of the assets that
may be sold. The courts, however, have developed rules against sub
rosa plans, that is, reorganization plans disguised as sales. These
232 11

U.S.C. § 1107(a).
U.S.C. § 363.
U.S.C. § 363(f). (‘‘The trustee may sell property . . . free and clear of any interest in
such property of an entity other than the estate, only if (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate
value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity
could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such
interest.’’)
235 Stephen J. Lubben, No Big Deal: The Chrysler and GM Cases in Context, (Sept. 1, 2009)
(hereinafter ‘‘No Big Deal: The Chrysler and GM Cases in Context’’) (‘‘[I]n the past ten to fifteen
years, secured lenders have used [Section 363], plus the control inherent in being a secured
lender—particularly control over the debtor’s cash, to take charge of chapter 11 cases. . . . The
lenders are willing to fund a quick sale because Section 363 provides a better mechanism for
selling assets than state foreclosure law . . . The basic structure used to reorganize both GM
and Chrysler was not unprecedented. Indeed, it was entirely ordinary. . . . The notion that the
speed of the sale was unique, or that the use of Section 363 to effectuate a quick sale was novel,
is therefore without merit.’’).
233 11

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courts reason that such uses of 363 would undermine the Chapter
11 rules.236
In 363 sales, designated assets of the debtor are sold to a purchaser. That sale is subject to approval by the bankruptcy court,
which examines whether the sale is a sub rosa reorganization
plan.237 If the court grants approval, the sale will be executed and
the purchaser will typically receive the assets free and clear of any
liens.
Once the purchaser pays the purchase price, typically either in
cash or in the form of a credit bid,238 the purchase price becomes
part of the bankruptcy estate to be distributed to creditors in accordance with the Code’s priority rules. Thus, a 363 sale comprises
two parts: (1) a sale of assets to a new company, and (2) a distribution of the purchase price to the creditors of the old debtor.
Some media reports have conflated these two stages, causing confusion regarding the distribution rights under Chapter 11 by referring to an ‘‘exchange’’ of assets. In the case of GM, as a matter of
law, there was no ‘‘exchange’’ of equity in New GM for claims
against Old GM. Rather, there was a 363 sale of the assets of Old
GM (the bankruptcy automotive company) that were purchased by
New GM (the company formed to buy the assets and financed by
the Treasury). As a part of this transaction, New GM also assumed
certain liabilities of Old GM. The assets purchased and liabilities
assumed from Old GM were used to form New GM, an entirely new
entity that is legally unrelated to Old GM.
In the case of Chrysler, the 363 sale was structured in a similar
manner and had substantially similar effects. The bankruptcy
court in its Chrysler opinion noted,
[T]he UAW, VEBA, and Treasury are not receiving distributions on account of their prepetition claims [against
Old Chrysler]. Rather, consideration to these entities is
being provided under separately-negotiated agreements
with New Chrysler.239
The aggregate result of reorganizations involving 363 sales may
well be that an unsecured creditor of the bankrupt debtor becomes
a large shareholder of the entity purchasing the assets in the
sale.240 This undoubtedly has major policy implications, to be dis236 Section 363 has been used to accomplish a sale of all or a substantial part of the debtor’s
assets in a single transaction. Such sales can effectively reorganize the debtor without complying with the normal process of preparing a disclosure statement and giving creditors the opportunity to vote on the plan. However, the courts generally permit such sales if there is a
sound business purpose for the transaction, unless aspects of the sale restructure the priority
and other rights of creditors. Committee of Equity Sec. Holders v. Lionel Corp. (In re Lionel
Corp.), 722 F.2d 1063 (2d Cir. 1983); Pension Benefit Guar. Corp. v. Braniff Airways, Inc. (In
re Braniff Airways, Inc.), 700 F.2d 935 (5th Cir. 1983).
237 A sale is considered a sub rosa plan if it is essentially a de facto plan that disposes of assets and pays creditors without a formal disclosure statement, written plan, or a meaningful
opportunity for creditors to participate in the negotiation and voting processes. See Section
(H)(4) of this report, discussing factors courts use to determine whether a 363 sale is in fact
a sub rosa plan.
238 Credit bidding is a mechanism used in bankruptcy by which a creditor with a valid security interest in the assets being sold may bid for such assets by proposing to offset its claim
against the purchase price of the assets. The ability to credit bid gives the lien holder protection
against an attempt to sell its collateral too cheaply. 11 U.S.C. § 363(k).
239 In re Chrysler LLC, et al., 405 B.R. 84, 99 (Bankr. S.D.N.Y. 2009).
240 Professors Roe and Skeel question whether Chrysler was in fact sold or whether the transaction constituted sub rosa plans of reorganization. In particular, they argue that because many
of Old Chrysler’s creditors are now creditors of New Chrysler, Chrysler’s 363 sale is more accurately portrayed as a reorganization. Mark J. Roe & David A. Skeel, Assessing the Chrysler

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cussed in further detail below.241 However, understanding that
these transactions are two separate commercial transactions and
that legally there is no exchange of old claims for interests in the
purchasing company is crucial to understanding the policy debate
that ensues.
Proceeds resulting from a 363 sale are distributed to creditors of
the bankruptcy estate in strict accordance with the Code’s priority
laws. By contrast, the purchaser of the assets may deal with those
assets in any way it chooses. Typically, the purchaser of a bankrupt business’s assets—whether structured under Section 363 or
under a confirmed plan of reorganization—allocates its resources in
a manner it believes will make its business profitable. If, for example, the purchaser needs to continue ordering from the bankrupt
business’ trade creditors, then the prepetition trade creditors may
be paid in full by the purchaser, even though the trade creditors’
pro rata distribution in the debtor’s Chapter 11 is very small. Similarly, if the purchaser needs to retain the debtor’s employees, the
purchaser may negotiate a deal that gives the employees substantial interests in the new businesses, in excess of what the employees may have recovered under the debtor’s Chapter 11 distribution.
Neither bankruptcy laws nor the courts are empowered to control
the manner in which assets purchased in a 363 sale are subsequently used by the purchaser in its business. To the extent employees, suppliers, and others with relationships that have carried
over from the debtor to the purchaser received more favorable
treatment than those whose relationships terminated with the
bankruptcy estate, this perceived disparity has a clear business
reason; i.e., the purchaser needs to maintain these relationships to
make its business viable.242
2. HOW THE CHRYSLER AND GM REORGANIZATIONS COMPARE WITH
OTHER LARGE REORGANIZATIONS

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The Chrysler and GM reorganizations involve huge companies.243 When such massive entities are involved, there inevitably
will be a number of issues that must be handled on a case-by-case
basis. Because there is no one-size-fits-all bankruptcy for multi-billion dollar companies, it is difficult to categorize the Chrysler and
GM bankruptcies as being either typical or atypical.
A few aspects of the Chrysler and GM bankruptcies distinguish
them from comparable restructurings. First, the involvement of the
Bankruptcy, 21–24 (Aug. 12, 2009) (online at ssrn.com/abstract=1426530) (hereinafter ‘‘Assessing
the Chrysler Bankruptcy’’). The bankruptcy court and Second Circuit Court of Appeals specifically found that the 363 sale was not a sub rosa plan. Discussed in more detail in Section (G)(4)
of this report below.
241 See Section (G)(4) of this report.
242 With respect to the Chrysler bankrtupcy, Professors Roe and Skeel question whether the
decision to pay Old Chrysler’s debts with the assets of New Chrysler was made after the conclusion of the 363 sale or whether such payment was a de facto condition to the conclusion of 363
sale. They argue that while the former situation is justifiable, the latter may violate the principles underlying the Code. Assessing the Chrysler Bankrtupcy, supra note 240 at 21–24. This
argument is discussed in more detail in Section (G)(4) of this report below.
243 GM was ranked ninth in Fortune Magazine’s Global 500 in 2007, with annual revenues
topping $182 billion and more than 250,000 employees. Global 500: Nine—General Motors, Fortune (accessed Sept. 2, 2009) (online at money.cnn.com/magazines/fortune/global500/2008/snap
shots/175.html). At the end of 2007, Fortune magazine listed Chrysler as the fourth largest private company in the U.S. with $49 billion in annual revenue and 72,000 employees. The 35
Largest U.S. Private Companies, Fortune (accessed Sept. 2, 2009) (online at money.cnn.com/ gal
leries/2008/ fortune/0805/ gallery.privatel companies.fortune/4.html).

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U.S. government was unique. While legally irrelevant because the
law is applied to the government in the same way it is applied to
a private party, the government’s involvement invites higher scrutiny and closer analysis to ensure that it is treated no better—and
no worse—than an ordinary investor. As the automotive companies’
condition deteriorated, the government provided both pre- and postpetition financing. On account of the government’s prepetition
claim, it had the rights of a prepetition creditor entitled only to distributions from the bankruptcy estate in accordance with priority
rules under Chapter 11. On account of its post-petition claim, the
government had the power and leverage as a DIP financer, as previously discussed,244 and its claims were given such preferential
treatment.245 Because Treasury played an important role in negotiating the restructuring of the automotive companies,246 it appears
to have exercised some of its bargaining power as a DIP lender.
Second, the automotive bankruptcies proceeded with greater speed
than was expected. Creditors nearly always push for speed in
Chapter 11 reorganization. In fact, debtors will often file pre-packaged bankruptcies 247 in order to shorten the traditional process of
confirming a reorganization plan. The expediency of the Chrysler
and GM 363 sales may be attributed to the care with which the
bankruptcy package was assembled, leaving little need for additional procedures and negotiation. Nevertheless, Professors Roe
and Skeel comment:
The Chrysler chapter 11 proceeding went blindingly fast.
One of the larger American industrial companies entered
chapter 11 and exited 42 days later. Clearly speed was
achieved because of the governments’ cash infusion of $15
billion on noncommercial terms into a company whose assets were valued at only $2 billion. As a matter of bankruptcy technique, the rapidity of the Chrysler chapter 11
was a tour de force.248
While the speed was noteworthy, it was not unprecedented. The
use of prepacks grew with astonishing speed among large companies in the early 1990s, with bankruptcies wrapped up in a matter
of weeks. In 1993 about 21 percent of the bankruptcies of publicly
traded companies were prepacks, with 1994 not far behind at 17
percent.249 The numbers have leveled off since then, now down to
an estimated 4 percent of all filings.250
To date, however, neither the GM nor Chrysler bankruptcy cases
have closed. Both debtors, Old GM and Old Chrysler, remain to be
wound up, and the proceeds of the 363 sales and any remaining as244 See

Section (E)(1)(b) of this report.

245 Id.

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246 Documents

that Treasury provided to the Panel showed that Task Force members were
involved in a variety of decisions with respect to the planning of the bankruptcy process, the
structure of the asset sales, and the formation of the New Chrysler and New GM entities.
247 A pre-packaged bankruptcy (pre-pack) is a plan for reorganization prepared in advance in
cooperation with creditors that will be filed soon after the petition for relief under Chapter 11.
Debtors do this to shorten and simplify the bankruptcy process and save the company money
for professional fees and other costs associated with bankruptcy. The sooner the restructuring
under Chapter 11 is completed, the sooner the company can return focus to its core operations.
Some of these pre-pack reorganizations are extremely large, but can nevertheless be accomplished in less than two months.
248 Assessing the Chrysler Bankruptcy, supra note 240 at 1.
249 2004 Bankruptcy Yearbook 162.
250 Elizabeth Warren & Jay Lawrence Westbrook, Law of Debtors and Creditors (2009).

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sets will be distributed to each company’s remaining creditors. In
any statistical analysis of Chapter 11 cases, both bankruptcies
would be listed in the ‘‘pending’’ category, with the days in bankruptcy continuing to mount. Professors Roe and Skeel use the term
‘‘exit’’ to loosely refer to the 363 sale, which arguably constitutes
the key transaction of the reorganization and the bulk of the restructuring process for these two businesses. Some have argued
that the use of Section 363 of the Code makes these bankruptcies
unusual. Nevertheless, as discussed above, sales for substantially
all a debtor’s assets are an increasingly popular use of this Section
363.251 The significance of the use of Section 363 of the Code is a
subject of debate, even among bankruptcy scholars, as discussed in
greater detail below.252
3. THE CHOICES AVAILABLE TO CREDITORS OF AN INSOLVENT
BUSINESS

Creditors of a troubled business must make decisions at several
points during the company’s decline. When the business first runs
into trouble, there are usually negotiations between the debtor and
individual creditors. As conditions deteriorate, creditors may join
forces or the debtor may bring them together. At some point, the
focus of creditors shifts, from trying to make sure that their debt
is repaid in full or in part, to calculating what they would get if
the debtor filed for bankruptcy, and then to establishing what particular type of bankruptcy arrangements would best suit the creditor.
Because the purpose of Chapter 11 protection is to try to preserve economic value, it seems logical that most creditors would
prefer that the debtor try to reorganize and operate as a going concern, rather than proceeding to liquidation. Other factors may be
at work. For example, some years ago Professor Henry Hu noted
unusual behavior patterns on the part of some creditors in bankruptcy proceedings.253 Those creditors seemed to favor liquidation,
in which they would receive less money, over reorganization. Professor Hu and others have theorized that these creditors may have
entered into credit default swaps, in essence buying insurance
against the debtor’s failure, and thus causing them to favor liquidation and distort more typical creditor expectations.254 Credit default swaps do not appear to have played a significant role in the
automotive company reorganizations, but they serve as a reminder
that the interests of particular creditors can be far more complex
than those assumed by any simple model.
As discussed above, in bankruptcy, secured creditors look to their
collateral, and unsecured creditors are organized into groups of
similarly situated creditors, who vote by class with respect to pro251 Id.

at 8.
Section (G)(4) of this report.
T. C. Hu, Abolition of the Corporate Duty to Creditors, 107 Colum. L. Rev. 1321,
1402 (2007). Hu’s article introduces the concept of the ‘‘empty creditors,’’ who reduce or eliminate their economic exposure through coupled assets such as credit derivatives and thus behave
differently from more traditional creditors). See also Stephen J. Lubben, Credit Derivatives &
The Future of Chapter 11, 81 Am. Bankr. L.J. 405 (2007) who notes ‘‘[t]he operation of chapter
11 is premised on a perception of ownership that may no longer exist or is at the very least
threatened by the expansion of credit derivatives.’’
254 Special Comment: Analyzing the Potential Impact of Credit Default Swaps in Workout Situations, Moody’s Global Banking (June 2009) (online at www.moodys.com).
252 See

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253 Henry

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posed plans of reorganization. When substantially all the debtor’s
assets are sold in a 363 sale, creditors may object to the sale and
the court will hold a hearing before ruling on whether the sale may
go through. There is no creditor vote in a 363 sale, although the
courts carefully weigh the objections and the support of the creditors in deciding whether to approve a sale. Following the sale, the
remainder of the Chapter 11 case involves the allocation of the proceeds of sale to the creditors.
Many creditors supported—or failed to object—to the proposed
363 sales in both Chrysler and GM. There has been some discussion as to whether certain creditors, especially the secured creditors in Chrysler who were recipients of TARP funds, may have felt
obligated to acquiesce in the government’s restructuring plans, either tacitly or owing to direct government pressure. Because creditors are not given the right to vote on sales,255 any such acquiescence would be in the form of refraining from challenging the sales,
and it is difficult to attribute motive to inaction. The Treasury auto
team has denied applying any such pressure.256 In other contexts,
many TARP recipients have been quite vocal in their criticism of
government actions that they disapprove of, suggesting that if they
objected to the 363 sales, they would have made their views
known.257 It is possible that the creditors did not object because
they believed it was in their own economic best interests. They may
have believed that the 363 sales would give them the best deal possible, and that the likely alternative would be a liquidation of the
companies that would result in far smaller payouts.
Academics have argued that the bidding process in both the
Chrysler and GM bankruptcies was flawed because the court approved of a bidding structure that required that any bidder must
assume certain designated liabilities of the debtors.258 They argue
that this may have prevented a true valuation of both companies,
thereby obscuring the amount of potential return for the creditors
in the event of liquidation.259 These arguments are more thoroughly discussed in Section E4 below.
4. THE IMPACT OF THESE TRANSACTIONS ON THE FINANCIAL MARKETS

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Some would view the Chrysler reorganization as a government
intervention that resulted in the transfer of value from one group
255 There was, however, an informal vote of the unsecured creditors in GM. GM Press Release,
GM Announcement on Bondholder Support (May 31, 2009) (online at media.gm.com/ servlet/
GatewayServlet?target= image.emerald.gm.com/ gmnews/viewmonthly releasedetail.do? domain=
74&docid=54613).
256 Ron Bloom COP Testimony, supra note 36.
257 For instance, New York Times notes Jamie Dimon is ‘‘quick to criticize the administration.’’
In Washington, One Bank’s Chief Still Holds Sway, New York Times (July 20, 2009) (online at
dealbook.blogs.nytimes.com/2009/07/20/in-washington-one-bank-chief-still-holds-sway/#more90287).
258 See generally Barry E. Adler, What’s Good For General Motors (Sept. 1, 2009) (hereinafter
‘‘What’s Good for General Motors’’); Assessing the Chrysler Bankruptcy, supra note 240.
259 An illustration of how the bidding process may have obscured the underlying mechanics
of the transaction is as follows. If a bidder determines that the gross assets of Company X have
a fair market value of $100, the bidder may reasonably enter a bid of up to $100 for the assets,
representing $100 fair market value of the assets, with no assumed liabilities. If the bidding
process, however, requires the bidder to assume $20 of the liabilities of the seller, the bidder
may reasonably enter a bid of up to $80 for the assets, that is, $100 fair market value of the
assets, less $20 of assumed liabilities. In the latter case the seller has $80 to distribute to its
creditors, while in the former it would have $100. If the $20 liability was owed to a junior creditor, it would be possible that a creditor of the seller may not recover its full claim, assuming
the $80 would be insufficient, even though the $20 owed to the junior creditor was paid in full.

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to another based on political considerations. Or, to borrow the description of one participant, the assets of retired Indiana policemen
were given to retired Michigan autoworkers.260 They argue that
not only is Chrysler a bad result, but that the Code was undermined in terms of the treatment of secured creditors under bankruptcy, and, as a result, the case could have adverse effects on the
capital markets.261 Similarly, financial experts such as Warren
Buffett have stated that the federal government’s actions in the
bankruptcies can have ‘‘a whole lot of consequences’’ for deal making.262 According to Buffett, if priorities are tossed aside, ‘‘that’s
going to disrupt lending practices in the future. If we want to encourage lending in this country, we don’t want to say to somebody
who lends and gets a secured position that the secured positioning
doesn’t mean anything.’’ 263
The Panel’s mandate includes looking at the impact of Treasury
decisions on the financial markets, and thus the staff of the Panel
consulted with academics and market participants to determine
whether predictions that the Chrysler decision would result in
changes in market behavior or the cost of capital that were (1) accurate and (2) measurable. The worry is that if the markets perceive that government intervention might, in some cases, interfere
with the absolute priority rule of bankruptcy, investors will demand a higher return on their capital to compensate for the added
uncertainty. The consequence would be higher borrowing costs for
business and a corresponding decline in capital investment for
businesses facing a possible bankruptcy. On the other hand, the infusion of cash into a business that otherwise seemed destined for
liquidation may make government involvement more attractive for
investors and may reduce the capital in otherwise high-risk transactions. Unfortunately, apart from academic opinion, there is little
evidence, empirical or anecdotal, to prove or disprove the claim
that the Chrysler bankruptcy had any effect on the market.
Academics and practitioners with whom the Panel’s staff have
spoken seem to believe that it is both too early and, given the number of variables, perhaps not possible to conclude one way or another as to what effect the government’s involvement in the Chrysler bankruptcy will have on credit markets going forward. Given
the currently impaired state of the credit markets generally, they
argue, it would be difficult to attribute any anomalies to the outcome of a specific bankruptcy transaction. On the other hand,
Treasury’s involvement in the Chrysler bankruptcy, as well as the
General Motors bankruptcy, where the Chrysler approach was mirrored, is likely to cause investors to reevaluate their risk assessment regarding certain companies with similar characteristics.
Large, industrial, heavily unionized companies, especially those
with significant liabilities in the form of pension or healthcare obligations, might be considered to be of special interest to the government. The cost of capital going forward for companies with similar
260 Congressional Oversight Panel, Testimony of Indiana State Treasurer the Honorable Richard E. Mourdock, Financial Assistance Given to the Domestic Automobile Industry Via Treasury’s
Automotive Industry Financing Program (July 27, 2009) (online at cop.senate.gov/ documents/
testimony-072709- mourdock.pdf).
261 What’s Good For General Motors, supra note 258.
262 Assessing the Chrysler Bankruptcy, supra note 240.
263 Assessing the Chrysler Bankruptcy, supra note 240.

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characteristics might go up or down depending on how future creditors view the outcome of the Chrysler bankruptcy—whether government intervention left creditors with more, the same, or less
than they would have received without such intervention.264
F. FOLLOWING

THE

MONEY

1. WHAT HAS TARP SPENT SO FAR AND WHAT CAN TAXPAYERS EXPECT
TO GET BACK?

Earlier in this report the Panel describes the financial transactions and the outcomes of the bankruptcy proceedings for Chrysler and GM including all ‘‘parties in interest’’—the United States
and Canadian governments, the UAW, the UAW Trust, equity
holders, and creditors. This section focuses solely on the financial
stake of U.S. taxpayers. As shown in Figure 3 below, U.S. taxpayers have expended $49.9 billion of TARP funds in conjunction
with GM’s bankruptcy and the subsequent creation of New GM.
The Chrysler transactions have expended $14.3 billion of TARP
funding, of which $10.5 billion remains outstanding. These stakes
were originally in the form of debt, although now Treasury holds
both debt and equity in both companies. Assistance to automotive
suppliers and investments in GMAC, a financial institution substantially dedicated to automotive lending, account for another
$16.9 billion of TARP resources, bringing TARP net support for the
U.S. domestic automotive industry to slightly over $81 billion as of
September 9, 2009. Total TARP funding commitments to the automotive industry reached an estimated $85 billion at one point, but
that figure has been reduced by decreased usage for the auto supplier program, repayments of warranty program loans and the full
repayment of the $1.5 billion loan to Chrysler Financial. As shown
in the following table, of the federal government’s $81 billion exposure to the automotive industry, $76.9 billion had actually been
disbursed as of Aug. 5, 2008.
FIGURE 3: TARP AUTOMOTIVE PROGRAM CURRENT FUNDS OUTSTANDING
[As of August 5, 2009]
Cumulative
obligations 265

Chrysler ..............................................................................................................
General Motors ...................................................................................................
GMAC .................................................................................................................
Loan for GMAC rights offering 267 .....................................................................
Auto supplier supports ......................................................................................
Total .....................................................................................................

$14,312,130,642
49,860,624,198
12,500,000,000
884,024,131
3,500,000,000
81,056,778,971

Amounts advanced

$10,470,000,000
266 49,500,000,000

12,500,000,000
884,024,131
268 3,500,000,000
76,854,024,131

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265 Cumulative obligation amount represents Treasury’s total obligation to the automotive industry under the AIFP. The figure does not reflect repayments, de-obligations or committed funds that are unused. For example, Treasury originally allocated $3.8 billion for Chrysler’s DIP
financing. However, only $1.89 billion of this portion was used. Since Treasury has indicated in discussions with the Panel that the remaining
$1.91 billion was de-obligated, it is not reflected in this metric. The Amounts Advanced are decreased by commitments that were not funded
but includes amounts that are no longer owing such as the amounts credit bid in the GM bankruptcy.
266 This number reflects the $8.8 billion in loans and preferreds outstanding as well as the original loan amounts that are now in the form
of equity.
267 Loans to GM that have been converted to shares of GMAC and are currently not obligations of GM or GMAC. The GM loan was terminated.
268 This figure does not reflect the amount outstanding under the program, but instead is the total amount available under the cap.

264 Assessments of how government action will affect the outcome of a particular investment
are often described as political risk assessments. Generally, political risk refers to the kinds of
issues that political decisions in government create for business planners.

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In Section 123 of EESA, Congress required that both the Office
of Management and Budget (OMB) and the Congressional Budget
Office (CBO) calculate the budget costs of the TARP transactions
under the procedures of the Federal Credit Reform Act of 1990,269
while using discount rates reflecting market risk rather than simply the government’s cost of funds. In publishing their calculations
of TARP budget outlays for 2009 using this ‘‘credit reform’’ methodology, the OMB and CBO offered their estimates of the subsidy
rate which taxpayers are providing.270 OMB calculates separate
subsidy rates for TARP automotive investment debt and equity
transactions at 49 percent and 65 percent, respectively, while CBO
estimates an aggregate credit subsidy rate for all TARP automotive
industry support programs of 73 percent. These subsidy rates,
which represent an estimate of the investment that will not be recouped by the federal government, incorporate assumptions concerning the timing of cash flows (mainly principal and interest or
dividend payments) as well as defaults on, or (partial) losses of, the
amounts invested. However, both sets of estimates that were completed after the initial Chrysler and GM viability plans were rejected by the Obama Administration but before the companies’ respective bankruptcy proceedings had been completed. Nevertheless,
these credit subsidy estimates reflect analysis by the two budget
agencies that imply—at least as of the time they performed their
analyses—there was a high likelihood that a substantial portion of
the initial TARP financing provided to Chrysler and GM in December and January would not be recovered.271 Similarly, the latest
SIGTARP report notes that with respect to DIP financing provided
to Chrysler, ‘‘Treasury does not expect to receive repayment.’’ 272 As
more federal dollars have been devoted to the automotive investment in Chrysler and GM, including funds committed to aid both
companies throughout their bankruptcy proceedings, CBO has increased its estimates as to the dollar amount of the automotive assistance subsidy. In its August report, ‘‘CBO raised its estimate of
the costs of that assistance by nearly $40 billion relative to the
March baseline.’’ 273
Treasury officials have acknowledged to Panel staff that at least
some portion of the initial TARP funds disbursed in conjunction

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269 EESA

§ 123(a).
270 Office of Management and Budget, The President’s Budget for Fiscal Year 2010, 983 (May
2009) (online at www.whitehouse.gov/ omb/budget/ fy2010/assets/ tre.pdf) (hereinafter ‘‘President’s Fiscal Year 2010 Budget’’); See generally Congressional Budget Office, The Troubled Asset
Relief Program: Report on Transactions Through June 17, 2009 (June 2009) (online at
www.cbo.gov/ ftpdocs/ 100xx/doc10056/ 06-29-TARP.pdf) (hereinafter ‘‘CBO June TARP Transactions Report’’).
271 The CBO analysis (see CBO June TARP Transactions Report, supra note 270) is based primarily on the yield of GM-issued preferred stock as observed in financial markets over the
months prior to the GM bankruptcy filing. OMB’s analysis (see President’s Fiscal Year 2010
Budget, supra note 270 at 982–985) was developed by separating the AIFP into categories for
debt and equity, encompassing working capital financing for Chrysler and GM, GMAC debt and
equity, Chrysler Financial debt and the two companies’ respective supplier programs. Subsidy
estimates were calculated for each category using comparable data from both the industry and
other government programs, where available; otherwise the category was assigned a 100 percent
subsidy rate as a placeholder until refined estimates are prepared later this year, representing
a worst case scenario that assumes no projected recovery of TARP funds. These individual calculations were then aggregated with weights reflecting relative funding levels.
272 SIGTARP, Quarterly Report to Congress (July 21, 2009) (online at www.sigtarp.gov/
reports/congress/ 2009/July2009l Quarterlyl Reportltol Congress.pdf).
273 The Budget and Economic Outlook: An Update, supra note 271.

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with the Chrysler and GM bankruptcies may not be recouped.274
They stress, however, that recovery of TARP investments in the
automotive industry will be highly dependent upon the value of the
stock that Treasury holds (or subsequently receives) in the two
companies when they are able to go public. Hence, the prospects for
recovery of the TARP investments depend on the forecast for
Chrysler and GM stock appreciation, which is something they cannot predict. In discussions, Treasury agreed with the Panel’s assessment that the new companies’ stock prices will have to appreciate sharply in order for Treasury, i.e. taxpayers, to be fully repaid
on all of the TARP funds that have been invested.275
With respect to Chrysler, Treasury has invested a combined
$14.3 billion in the new and old entities, including $1.5 billion for
Chrysler Financial and $280 million for the Chrysler warranty program. The bankrupt Chrysler estate (Old Chrysler) is liable for
$3.5 billion of TARP financing, and given the competing claims on
that estate, payment is unlikely.276 Treasury’s interest in the new
Chrysler includes a note for $6.6 billion that includes up to $533
million of payment-in-kind interest and a issuance fee of $288 million, and a $500 million loan assumed from Old Chrysler and an
equity ownership share. While the Panel did not have access to equity valuations for New Chrysler, it is clear that—with $12.5 billion invested ($14.3 billion less Chrysler Financial and the Chrysler
warranty program, which have been repaid) and assuming repayment of both the $7.1 billion of this investment in the form of notes
as well as the fees and payment-in-kind interest of $821 million—
the Chrysler equity interest 277 would need to achieve the remaining investment value of approximately $4.6 billion 278 (implying
total capitalization of New Chrysler of $57.5 billion) in order for
taxpayers to recoup their investment.
With respect to New GM, the sizeable amount of debt for which
the company is responsible means that repayment of the TARP financing will require New GM stock to appreciate to a level that is
highly optimistic.
274 During a meeting with Panel staff on August 11, 2009, Mr. Bloom explained that it was
possible but unlikely that taxpayers would recover all of the money they had invested in Chrysler and General Motors. Mr. Bloom has acknowledged that ‘‘likely scenarios involve a reasonable
probability of repayment of substantially all of the government funding for new GM and new
Chrysler, and much lower recoveries for the initial loans.’’ Ron Bloom COP Testimony, supra
note 36. The Task Force has indicated to the Panel that the ‘‘initial loans’’ refer to the $4 billion
lent to Old Chrysler ($500 million of which was assumed by New Chrysler) and the $19.4 billion
lent to Old GM (which was part of the loans that were credit bid for the assets of New GM).
Over $7.3 billion was originally committed in TARP and DIP financing to Old Chrysler (only
$1.9 billion of the original $3.8 billion DIP financing is outstanding); it is highly unlikely that
these funds will be returned to Treasury by Old Chrysler and any recovery on these amounts
will depend on New Chrysler’s stock price. Deducting $3.5 billion in ‘‘initial loans’’ from the total
amount expended, the 8 percent Treasury stake in New Chrysler stock would have to be worth
$1.1 billion (a total capitalization of $13.75 billion) for the taxpayer to recover the amount that
the auto team believes is reasonably likely to be recovered.
With respect to GM, there is $49.5 billion in government assistance that was initially extended to Old GM and then credit bid for the assets of New GM. Deducting $19.4 billion in ‘‘initial loans’’ from the total amount expended, the Treasury stake in New GM stock would have
to be worth $21.29 billion (a total capitalization of $35.01 billion) for the taxpayer to recover
the amount that the auto team believes is reasonably likely to be recovered.
275 Id.
276 See supra Figure 1.
277 Assuming that Fiat meets its performance targets and the Treasury interest is decreased
to 8 percent.
278 This does not account for the warrants Treasury owns in Chrysler Financial.

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47
The valuation of New GM used by the bankruptcy court estimated that the market capitalization (the price of all outstanding
shares) of the new entity would be worth between $59 and $77 billion in 2012.279 Treasury has invested a combined $49.5 billion in
the New and Old GM and approximately 61 percent of equity in
New GM.280 Assuming full repayment of the $8.8 billion note and
preferred stock issued by New GM to Treasury, the shares in New
GM will have to be worth $40.7 billion (the difference between
$49.5 billion and $8.8 billion) for Treasury’s investment to be repaid when Treasury sells its shares, meaning the market capitalization of the entire company needs to be worth $67.7 billion. In
April 2000, when Old GM shares were at the height of their value
(not adjusted for inflation), the company’s total value was only
$57.2 billion.281 In other words, New GM will have to achieve a
capitalization that is higher than was ever achieved by Old GM if
taxpayers are to break even.282
Of course, preserving portions of Chrysler and GM might have
resulted in savings for the government in other ways. As discussed
in more detail below, Treasury has not clearly explained how the
various competing policy and financial objectives involved in the
rescue of the automotive companies influenced its decisions. Without Treasury clearly articulating these objectives and providing its
analysis, the Panel is unable to discern whether other financial
considerations should be taken into account when analyzing whether taxpayers will be repaid.
The following figures show TARP automotive program funding to
Chrysler, Chrysler Financial, GM, and GMAC; and the funds committed to Chrysler and GM.

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279 Declaration

of J. Stephen Worth, supra note 36.
280 White House March 31 Remarks on GM Restructuring, supra note 100; GM July 16, 2009
8–K, supra note 86.
281 Id.
282 Id.

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FIGURE 4: TARP AUTOMOTIVE PROGRAM FUNDING TO CHRYSLER AND CHRYSLER FINANCIAL

Jkt 51964

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PO 00000

Date

Assisted entity

1/2/2009 ............................

Chrysler Holding LLC ........

1/16/2009 ..........................

Initial assistance
amount

Frm 000054

Repayment/exchange/note

$4,000,000,000

Loan ..................................

$3,500,000,000

1,500,000,000

Loan ..................................

4/29/2009 ..........................
4/29/2009 ..........................

Chrysler Financial Services Americas LLC
Chrysler Holding LLC ........
Chrysler Holding LLC ........

$500,000,000 of 1/2/09 facility assumed by New Chrysler on 5/27/09.
Repaid ($1,500,000,000).

500,000,000
280,130,642

Loan ..................................
Loan (Chrysler warranty) ..

..................................................

Loan

5/1/2009 ............................
5/20/2009 ..........................
5/27/2009 ..........................

Chrysler LLC .....................
Chrysler LLC .....................
New Chrysler ....................

3,043,143,000
756,857,000
286 6,642,000,000

Loan ..................................
Loan ..................................
Loan ..................................

Unused and de-obligated ......................
Repaid
Chrysler
warranty
loan
($280,130,642).
Adjusted by Treasury 284 ........................
Adjusted by Treasury 285 ........................
500,000,000 of 1/2/09 facility assumed
by New Chrysler on 5/27/09.

1,890,000,000
0
7,142,000,000

Loan
Loan
Loan

Total .....................

16,722,130,642

Cumulative assistance amount

Current security type

Loan 283

287 12,532,000,000

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283 Although the original assistance was in the form of the loan, the remaining $3.5 billion can no longer be classified as a loan since it was made to an entity that is now bankrupt. Treasury has indicated that the likelihood of
recoupment of this amount is low, but possible if the equity value of Treasury’s holding increases to a certain level. The $500 million assumed by New Chrysler remains a loan. Overall recovery may also be potentially increazsed by Treasury’s
interest in the equity of Chrysler Financial amounting to the greater of $1.375 billion or 40% of Chrysler Financial’s equity.
284 This information was provided to the Panel by Treasury staff. The amount committed was ultimately unnecessary and adjusted accordingly.
285 Id.
286 Treasury also received equity consideration in New Chrysler. An April 30, 2009 press release by the Administration states that upon the closing of the Chrysler-Fiat alliance, the U.S. government owned an 8 percent equity interest. U.S.
Department of the Treasury, Troubled Asset Relief Program Transactions Report for Period Ending August 5, 2009 (Aug. 5, 2009) (online at www.financialstability.gov/docs/transaction-reports/transactions-reportl08052009.pdf); U.S. Department
of the Treasury, Obama Administration Auto Restructuring Initiative (April 30, 2009) online at www.financialstability.gov/latest/tgl043009.html). See Section (C) of this report for discussion of Treasury’s equity ownership in New Chrysler. Only
$4.58 billion of the committed $6.64 billion has been drawn as of August 18, 2009. Treasury provided de-obligation information in response to specific inquiries relating to the Panel’s oversight of the AIFP. Treasury provided the Panel with
information regarding specific investments made under the AIFP on August 18, 2009. Specifically, this information denoted allocated funds that had since been de-obligated (hereinafter ‘‘Treasury De-obligation Document’’).
287 This figure relfects the de-obligation of $1.91 billion of the allocated $3.8 billion in DIP financing and the de-obligation of an unused $500 million loan facility.

48

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49

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Figure 6: AUTOMOTIVE PROGRAM FUNDING TO GENERAL MOTORS AND GMAC

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Date

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Initial assistance
amount

PO 00000
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Repayment/exchange/note

Cumulative assistance amount

Current security type

Exchange for GMAC equity .........................
Old GM debt credit bid; New GM equity
received.
(*Original loan amount is thus now in the
form of equity).
Old GM debt credit bid; New GM equity
received*.
Old GM debt credit bid; New GM equity
received*.
Old GM debt credit bid; New GM equity
received*.
Old GM debt credit bid; New GM equity
and preferreds received.
Old GM debt credit bid; New GM equity* ..
Old GM debt credit bid; New GM
preferreds received.
Became a New GM loan .............................
Remained Old GM loan ..............................

..............................
13,400,000,000*

GMAC, common equity
New GM common equity, GM
preferred

General Motors Corporation
General Motors Corporation

$884,024,131
13,400,000,000

Loan .....................................
Loan .....................................

4/22/2009 ...............................

General Motors Corporation

2,000,000,000

Loan .....................................

5/20/2009 ...............................

General Motors Corporation

4,000,000,000

Loan .....................................

5/27/2009 ...............................

General Motors Corporation

360,624,198

Loan (GM warranty) .............

6/3/2009 .................................

General Motors Corporation

30,100,000,000

Loan (DIP) ............................

..............................................
..............................................

..............................
..............................

..............................................
..............................................

..............................................
..............................................

..............................
..............................

..............................................
..............................................

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12/29/2008 .............................
12/31/2008 .............................

E:\HR\OC\D964.XXX

Total ..........................
288 $360,624,198

50,744,648,329

of this loan was repaid on June 10, 2009. August 28 TARP Transactions Report, supra note 102.

2,000,000,000*
4,000,000,000*
360,624,198*
30,100,000,000
19,941,511,395*
2,100,000,000
7,072,488,605 288
986,000,000
49,860,624,198

New GM common equity,
preferred
New GM common equity,
preferred
New GM common equity,
preferred
New GM common equity,
preferred, GM loans
New GM common equity
New GM preferred
New GM, loan
Old GM, loan

GM
GM
GM
GM

50

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51

52
2. PERFORMANCE AND FINANCING CHALLENGES FOR THE AUTOMOTIVE
COMPANIES

In order for the taxpayers to recoup their investments in the
automotive companies, the companies need to make enough money
to cover their operating expenses and repay their debt, and then
become profitable enough to be able to sell their shares in initial
public offerings (IPOs). They face several challenges in achieving
these objectives.
a. Cash flow challenges
At the time the automotive companies filed for bankruptcy, they
were ‘‘burning’’ through a substantial amount of money. These are
the amounts by which their operating expenditures (to pay workers
and keep their factories running) exceeded the revenues they were
generating from sales and other sources. More revealing is that
this structural imbalance stemmed primarily from normal operations, and was not attributable to the type of major new capital
spending that both companies will require to become competitive in
the future. Admittedly, as discussed above, this burn rate reflected
extraordinary market conditions.
The Panel reviewed elements of the viability plans approved by
the Treasury auto team. The projected cashflow in those plans,
which drove the determination of viability made by the Treasury
auto team, assumes an increase in overall market size consistent
with independent market analysts’ projections and a market share
that has a rational if optimistic basis.
FIGURE 8: ESTIMATED NEW CHRYSLER DEBT
[U.S., Canada, and UAW]
Lender

Amount

Annual interest rate 289

U.S. government 290 ...............

$2 billion ..............................
5.142 billion 291 ...................
500 million ...........................
1.4 billion 293 .......................
4.587 billion .........................

LIBOR + 5 ............................
LIBOR + 7.91 .......................
CDOR + 5 ............................
CDOR + 5 ............................
9 ...........................................

Canadian government 292 ......
UAW Trust 294 .........................

Maturity

Dec. 2011.
June 2017.
Dec. 2011.
June 2017.
July 2023.

289 For all of New Chrysler’s loans with the U.S. and Canada, interest is accrued and paid on a quarterly basis. Interest accrued through
the first two quarters is considered ‘‘paid in kind,’’ and is added to the principal. Essentially, interest accrues, but is not paid in cash
through the end of 2009. It is paid, however, at maturity.
290 First Lien Credit Agreement between New Carco Acquisitions, LLC (to be named Chrysler Group LLC) and the U.S. Department of the
Treasury (June 10, 2009).
291 Of the $5.142 billion, all but $2.05 billion has been drawn by New Chrysler to date, according to information provided to the Panel by
Treasury.
292 First Lien Working Capital Credit Facility, Summary of Terms and Conditions, In re Chrysler LLC, 405 B.R. 79 (Bankr. S.D.N.Y. 2009) (online at chap11.epiqsystems.com/ docket/ docketlist.aspx?pk= 1c8f7215-f675-41bf- a79b-e1b2cb9c18f0&l=1).
293 The $500 million and $1.4 billion loan amounts presented here are in U.S. dollars based on the exchange rate at the time of issuance.
Amounts owed to the Canadian government are paid in Canadian dollars.
294 Draft Loan Agreement between New Carco Acquisition LLC (to be named Chrysler Holding LLC) and the bank of New York Trust Company
(Trustee for VEBA, presented as UAW Trust Note) (Apr. 29, 2009).

FIGURE 9: ESTIMATED NEW GM DEBT
[U.S., Canada, and UAW] 295
Lender

Amount

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U.S. government .....................
Canadian government ............
UAW Trust ..............................
295 GM

billion 296

$7.1
.....................
1.3 billion .............................
2.5 billion .............................

Interest rate

5 297

LIBOR +
......................
CDOR + 5 298 .......................
299 ......................................
9

Maturity

July 2015.
July 2015.
July 2017.

July 16, 2009 8–K, supra note 86.
million of this amount related to warranty loans repaid on July 10, 2009.

296 $361

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297 According to GM’s August 7, 2009 8–K filing, ‘‘each UST Loan accrues interest at a rate per annum equal to the 3 month LIBOR rate,
which will be no less than 2.0%, plus 5.0% per annum, unless the UST determines that reasonable means do not exist to ascertain the
LIBOR rate or that the LIBOR rate will not adequately reflect the UST’s cost to maintain the loan. In such a circumstance, the interest rate to
be applied shall be the greatest of (1) the prime rate plus 4%, (2) the federal funds rate plus 4.5% or (3) the 3 month LIBOR (which will
not be less than 2%) plus 5%.’’ Supra note 92.
298 According to GM’s August 7, 2009 8–K filing, loans outstanding to the Canadian government ‘‘accrue interest at a rate per annum
equal to the greater of the three-month CDOR rate and 2.0%, plus 5.0%. Accrued interest is payable quarterly.’’ Supra note 92.
299 According to GM’s August 7, 2009 8–K filing, ‘‘the notes under the VEBA Note Agreement (VEBA Notes) are scheduled to be repaid in
three equal installments of $1.4 billion on July 15 of 2013, 2015, and 2017.’’ Supra note 92.

The amount of money to service this debt, even before the companies start to pay for normal operations, such as steel and wages,
is significant. The following tables set out the amounts necessary
to service existing debt obligations:
FIGURE 10: ESTIMATED CONTRACTUAL OBLIGATIONS OF NEW CHRYSLER (IN BILLIONS) 300
’09

’10

’11

’12

’13

’14

’15

’16

’17–’23

Total

U.S. government long-term
debt maturities including
interest payments 301 .......
Canadian government longterm debt maturities including interest 302 ...........
UAW Trust note 303 ................

$0

$.505

$2.56

$.373

$.379

$.386

$.393

$2.87

$1.6

$9.1

$.053
$0

$.094
$.315

$.594
$.3

$.059
$.4

$.059
$.6

$.059
$.65

$.059
$.65

$.464
$.65

$.435
$5.6

$1.877
$9.16

Total .............................

$.053

$.914

$3.45

$.832

$1.04

$1. 1

$1.1

$3.98

$7.64

$20.14

300 The

contractual obligations of New Chrysler presented in this table represent the Panel’s best estimates based on information compiled
from the available loan documents. With respect to New Chrysler’s loan agreement with Canada, the interest rate of the loan is CDOR (or a
minimum of 2 percent) plus 5 percent per annum. The Panel assumes a CDOR rate of 2 percent for the life of the loan.
301 Estimates compiled from the First Lien Credit Agreement between New Carco Acquisitions, LLC (to be named Chrysler Group LLC) and
the U.S. Department of the Treasury (June 10, 2009). Also reflected in these tables are two types of fees that New Chrysler owes the U.S.
First, a ‘‘payment in kind’’ of $17 million every quarter in new notes is added to the principal of $5.142 billion until maturity in 2017. Second, a one-time payment of $288 million is added to the principle of $5.142 billion at issuance. Since both payments are added to the principal, they accrue interest over the length of the loan. New Chrysler pays these fees with interest at maturity in 2017.
302 Estimates compiled from the Summary of Terms and Conditions of Canadian Loan Agreement with Chrysler Holding LLC (Apr. 29, 2009).
Not reflected in these estimates is an additional fee that New Chrysler is expected to owe the Canadian government. According to Panel discussions with Treasury, terms of this fee are still being reviewed.
303 Estimates compiled from Draft Loan Agreement between New Carco Acquisition LLC (to be named Chrysler Holding LLC) and the bank of
New York Trust Company (Trustee for VEBA, presented in the table as UAW Trust note) (Apr. 29, 2009).

FIGURE 11: ESTIMATED CONTRACTUAL OBLIGATIONS OF NEW GM (IN BILLIONS) 304
2010

U.S. government long-term debt maturities including interest payments .............................
Canadian government long-term debt maturities including interest .................................
UAW Trust note ...................................................
Total ...........................................................

’11

’12

’13

’14

’15

’16–’17

Total

$.47

$.47

$.47

$.47

$.47

$7.18

$0

$9.53

$.09
$0

$.09
$0

$.09
$0

$.09
$1.4

$.09
$0

$1.38
$1.4

$0
$1.4

$1.83
$4.2

$.56

$.56

$.56

$1.96

$.56

$9.96

$1.4

$15.56

304 The

contractual obligations of New GM presented in this table represent the Panel’s best estimates based on information compiled from
GM’s 8–K filed on August 7, 2009. GM August 7 8–K, supra note 92. With respect to New GM’s loan with the U.S. government, the Panel assumes the U.S. will bear an interest of LIBOR plus five percent throughout the life of the loan. LIBOR is assumed to be two percent, therefore the total interest is assumed to be seven percent for the life of the loan. With respect to New GM’s loan with the Canadian government,
the interest rate of the loan is CDOR (or a minimum of two percent) plus five percent per annum. The Panel assumes a CDOR rate of two
percent for the life of the loan, and therefore assumes a total interest rate of seven percent per annum. $361 million of the initial $7.1 billion loan amount was repaid on July 10, 2009.

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The viability plans assume positive cashflow in the relatively
short term. To the extent cash from the sale of automobiles cannot
cover the costs of production and other corporate costs, Chrysler
and GM will have to borrow money from banks, or access the debt
or equity capital markets.
b. Access to the debt and equity markets; Initial public offerings
As discussed above, the Treasury auto team intends that both
companies will eventually access the equity capital markets in the

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form of IPOs,305 and as a result, successful IPOs form the basis for
both repaying taxpayers and Treasury’s exit strategy. This strategy
hinges directly on the ability of the two companies to restructure
and become profitable. At the moment, in a still-constrained credit
market, and with the pressures associated with these two companies (not least the risk of political interference),306 it is unclear
whether either company in its current form could access the banks
or the debt capital markets in the amounts and on the terms that
they would require.
Following the completion of a successful IPO, the Treasury auto
team has made clear it intends to dispose of Treasury’s ownership
stakes in New Chrysler and New GM ‘‘as soon as is practicable,’’
as discussed above. At least with respect to New GM, where Treasury holds 60.8 percent of the company, Treasury does not expect
to sell its entire stake in the IPO.307 The Stockholders Agreement 308 calls for Treasury to use ‘‘reasonable best efforts to exercise [its] demand registration rights under the Equity Registration
Rights Agreement and cause an IPO to occur within one year of the
date of this Agreement, unless the Corporation is already taking
steps and proceeding with reasonable diligence to effect an
IPO.’’ 309 Thus, it is unclear when Treasury will completely exit its
TARP investments in the automotive industry, but it is unlikely to
be at any point in the near future.
The Treasury auto team has not ruled out other ways of exiting
ownership of these companies and returning them to private hands,
but options such as selling Treasury’s stake to private equity investors seem unlikely at present.310
In making the decision—or decisions—to sell the equity stakes
that it holds in the automotive companies, Treasury will have to
balance the desire to exit as soon as practicable (as articulated by
the President and the head of the Treasury auto team) with the
305 See

supra section B.1 and infra section G.2.
supra section E.4.
Bloom COP, supra note 36. For further discussion of Task Force statements concerning its intent to eventually dispose of its ownership stakes, see Sections supra B.1 and infra
G.2.
308 New GM Stockholder Agreement, supra note 87.
309 General Motors Company, Form 8–K (July 10, 2009) (online at www.sec.gov/ Archives/
edgar/ data/1467858/ 000119312509150199/ dex101.htm).
Under the terms of the New Chrysler Shareholders Agreement, Treasury can require New
Chrysler to file a registration statement under the Securities Act of 1933 (a ‘‘demand registration’’); in the case of an IPO, such demand notice can only be delivered by either (a) one or more
holders holding 10 percent or more of the equity securities, or (b) both Treasury and Canada.
Shareholders Agreement Among Fiat Newco, United States Department of the Treasury, UAW
Retiree Medical Benefits Trust, Canada Development Invesment Corporation, and the other
Members Party Hereto, section 3.2(a)(i) (filed May 12, 2009) In Re Chrysler LLC, S.D.N.Y. (No.
09 B 50002 (AJG)) (hereinafter ‘‘New Chrysler Shareholders Agreement’’). Treasury cannot seek
more than one demand registration in any 12-month period, and cannot request more than five.
Id. at Section 3.2(a)(ii).
The New GM Stockholders Agreement directs Treasury to use its reasonable best efforts to
exercise ‘‘[its] demand registration rights under the Equity Registration Rights Agreement and
require an IPO to occur’’ by July 10, 2010 (one year from the date of the Stockholders Agreement). Additionally, pursuant to the terms of the New Chrysler Shareholders Agreement and
the New GM Equity Registration Rights Agreement, each time New Chrysler or New GM proposes to offer any equity securities in a registered underwritten offering under the Securities
Act, they must provide each holder (including Treasury) with the opportunity to include any or
all of their registrable securities in such offering (‘‘piggyback offering’’). Id. at section 3.3(a); New
GM Stockholder Agreement, supra note 87 at section 2.2.1.
310 At a July 29, 2009 briefing with Panel staff, Treasury and Task Force staff indicated that,
at least at that point, no private equity investor has come along with demonstrated interest in
investing in these companies.
However, there are several pre-IPO contractual limitations on the public sale of Treasury’s
ownership stakes in New GM that are set out in the Stockholders Agreement.
306 See

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307 Ron

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need to maximize the return (or minimize the loss) to taxpayers.
It is not easy to time the markets, and Treasury cannot force the
companies’ boards of directors to engage in an IPO. Until the companies go public through the IPO process, Treasury’s only option is
to sell its stake privately (which, as discussed above, remains an
unlikely event). Once the companies become public companies subject to SEC reporting requirements, Treasury’s options would be
somewhat broader. If the company concerned agreed, Treasury
could sell large stakes in SEC-registered secondary offerings.311
With or without the company’s approval, Treasury could also sell
smaller amounts of shares into the public markets.312
G. ISSUES RAISED
1. AUTHORITY TO USE TARP FOR SUPPORT OF THE AUTOMOTIVE
COMPANIES

The funds used by the Treasury auto team in the various transactions associated with the Chrysler and GM reorganizations were
from the $700 billion appropriated for TARP. Treasury, as an executive agency, and the Task Force both acted under presidential direction. Their actions are therefore properly scrutinized as executive actions. Under this scrutiny, the use of TARP funds for the
automotive industry raises questions regarding both presidents’ authority to use these funds under EESA legislation and, more broadly, under the U.S. Constitution. The statutory language is ambiguous and, in light of the language and history of EESA, the question is a close one.
a. The scope of executive authority
Unlike the first article of the Constitution, which clearly enumerates the powers vested in the legislative branch, the second article
says only that ‘‘the executive power shall be vested in a President
of the United States’’ and that it is the president’s duty to ‘‘ensure
that the laws be faithfully executed.’’ 313 With a handful of exceptions, the president’s authority to act will most often derive from
a statute.314 In this case, the relevant statute is EESA.

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311 GM

August 7 8–K, supra note 293.
312 Shareholders that are ‘‘affiliates’’ of a company (in general, those with a significant stake
in the voting equity of the company, or the right to a board seat) may sell their shares in the
public markets without registration of the transaction with the SEC. SEC rules impose volume,
timing and other restrictions on such sales. Commodity and Securities Exchanges, 17 C.F.R.
§ 230.144. Any such sales by the government are likely to have a significant impact on the securities market, which may suspect a signal to the market with respect to the specific companies,
the auto industries, or the economy in general. For this reason (and the general difficulty in
timing the market discussed above), holding these equity stakes in a trust, discussed in more
detail below, might help to manage the taxpayers’ stake more efficiently and maximize returns.
313 U.S. Constitution, art. II, § 1 and 3.
314 The leading authority on how the president’s power should be interpreted is Justice Robert
Jackson’s concurring opinion in the 1952 U.S. Supreme Court case, Youngstown Sheet & Tube
v. Sawyer. Youngstown Sheet & Tube Co. et al. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson,
J., concurring). Youngstown presents three scenarios illustrating the varying scope of executive
power. In the first scenario,when a president acts pursuant to Congressional mandate, the president’s authority ‘‘is at its maximum, for it includes all that he possesses in his own right plus
all that Congress can delegate.’’ Id. at 635. At the other extreme is the scenario in which the
president’s power is ‘‘at its lowest ebb,’’ that is, when the president takes action that has been
specifically proscribed by Congress ‘‘for then he can rely only upon his own constitutional powers
minus any constitutional powers of Congress over the matter.’’ Id. at 637. In the middle is the
case in which the president may act in certain situations when Congress has been silent on an
issue—neither passing legislation to authorize presidential action nor passing legislation proContinued

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b. The Emergency Economic Stabilization Act
EESA does not explicitly state that the TARP is available to provide assistance to the automotive industry (or to any specific industry except arguably the financial and banking industry) but there
may be an interpretation under which such assistance is nonetheless authorized.
EESA states that:
The Secretary [of Treasury] is authorized to . . . purchase, and to make and fund commitments to purchase,
troubled assets from any financial institution, on such
terms and conditions as are determined by the Secretary,
and in accordance with this Act and the policies and procedures developed and published by the Secretary.315
It defines a ‘‘troubled asset’’ as ‘‘residential or commercial mortgages and any securities, obligations, or other instruments that are
based on or related to such mortgages that in each case originated
or issued on or before March 14, 2008, the purchase of which the
Secretary determines promotes financial market stability’’ 316 and
‘‘any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal
Reserve System, determines the purchase of which is necessary to
promote financial market stability, but only upon transmittal of
such determination, in writing, to the appropriate committees of
Congress.’’ 317 A ‘‘financial institution’’ is defined as:
[a]ny institution, including, but not limited to, any bank,
savings association, credit union, security broker or dealer,
or insurance company, established and regulated under
the laws of the United States or any State, territory, or
possession of the United States . . . and having significant
operations in the United States, but excluding any central
bank of, or institution owned by, a foreign government.318
The first question is therefore whether the transactions at issue
constituted the purchase of ‘‘troubled assets’’ under EESA. While
the majority of transactions associated with the Chrysler and GM
deals did not involve residential or commercial mortgages or real
estate-related securities, and therefore do not qualify under EESA
§ 3(9)(A), it appears that the assets purchased by Treasury do meet
the qualifications under EESA § 3(9)(B). Before purchasing any assets from either GM or Chrysler, then-Secretary of the Treasury
Henry Paulson submitted a determination to Congress stating that
he had conferred with Chairman of the Federal Reserve Board Ben
Bernanke and had determined that ‘‘the purchase of obligations of
scribing such action. Id. Despite its lack of one clear rule delineating the outer bounds of executive authority, Youngstown has remained the premier authority on the issue for the last 57
years. Lee Epstein & Tonja Jacobi, Super Medians, 61 Stan. L. Rev. 37, 60 n.85 (2008) (internal
citations omitted). The Youngstown categories are not particularly relevant in this case, however, because there is no inherent executive authority on which the president could plausibly
rely. The president’s authority must therefore derive from statute.
315 EESA § 101(a)(1).
316 EESA § 3(9)(A).
317 EESA § 3(9)(B); see also Congressional Oversight Panel, August Oversight Report: The Continued Risk of Troubled Assets, at 10–22 (August 11, 2009) (discussion of what constitutes a
‘‘troubled asset’’) (online at cop.senate.gov/documents/cop-081109-report.pdf) (hereinafter ‘‘August COP Report’’).
318 EESA § 3(5).

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certain thrift and other holding companies which are engaged in
the manufacturing of automotive vehicles and the provision of credit and financing in connection with the manufacturing and purchase of such vehicles is necessary to promote financial market stability.’’ 319 To the extent that the transactions involved the purchase of assets, these assets appear to qualify as ‘‘troubled assets’’
under the definition provided in the statute.
The next question is whether GM or Chrysler can be called a ‘‘financial institution’’ under EESA. The language of the statute itself
does not provide a clear answer. Although the statute provides a
list of entities that may be considered ‘‘financial institutions,’’ including such patently ‘‘financial’’ institutions as banks, savings associations, and credit unions, it states that the universe of what
may be considered a ‘‘financial institution’’ includes but is ‘‘not limited to’’ those on the list. The ambiguity of this list presents a challenge in determining what types of institutions absent from the list
may still be considered within the statute’s purview.
c. The executive’s interpretation
Both the executive branch and Treasury have spoken on this
issue through various court documents, public statements, and congressional testimony. In the view of the executive branch, the use
of TARP funds for the automotive industry is entirely appropriate.
This was not President Bush’s initial view, however.
At a press conference on November 7, 2008, Tony Fratto, Deputy
White House Press Secretary in the Bush Administration, stated
that:
What we have to deal with here in the federal government, though, are the rules that—or the authorities that
Congress gave us to deal with how we can assist the automakers and other automotive component makers. And that
is the section 136 auto loan program that is being administered by the Department of Energy . . . If Congress has
any interest in going beyond that, that’s a decision that
they’re going to have to make.320
On November 18, 2008, Secretary Paulson reiterated that position during his testimony before the House Financial Services Committee:
[a]gain, you haven’t seen any lack of consistency on my
part with regard to the autos. The TARP was aimed at the
financial system. That is what the purpose is. That is what
we talked about with the TARP. . . I don’t see [preventing the failure of one or more automotive companies]
as the purpose of the TARP. Congress passed legislation
that dealt with the financial system’s stability.321
319 Letter

from Henry Paulson to Representative Charles Rangel (Dec. 23, 2008).
House Office of Press Secretary, Press Briefing by Deputy Press Secretary Tony
Fratto (Nov. 7, 2008) (online at georgewbush-whitehouse.archives.gov/ news/releases/ 2008/11/
20081107-1.html).
321 House Financial Services Committee, Statement of Secretary of the Treasury Henry
Paulson, Oversight of Implementation of the Emergency Economic Stabilization Act of 2008 and
of Government Lending and Insurance Facilities: Impact on the Economy and Credit Availability, 110th Congress, at 18–19 (Nov. 18, 2008).

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320 White

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On December 19, President Bush announced that he would reverse his earlier position and use TARP funds for the automotive
companies. During a press conference, President Bush explained
that his administration had:
[W]orked with Congress on a bill to provide automakers
with loans to stave off bankruptcy while they develop
plans for viability. This legislation earned bipartisan support from majorities in both houses of Congress. Unfortunately, despite extensive debate and agreement that we
should prevent disorderly bankruptcies in the American
automotive industry, Congress was unable to get a bill to
my desk before adjourning this year. This means the only
way to avoid a collapse of the U.S. automotive industry is
for the executive branch to step in . . . So today, I’m announcing that the federal government will grant loans to
automotive companies under conditions similar to those
Congress considered last week.322
The Bush Administration reasoned that that EESA’s definition of
‘‘financial institution’’ was broad enough to include the automotive
companies, whose failures ‘‘would pose a systemic risk to financial
market stability and have a negative effect on the economy of the
United States.’’ 323
Treasury provided additional elaboration on its authority in Mr.
Bloom’s response to questions for the record posed during the Panel’s hearing on the automotive industry in July 2009. In response
to one question, Mr. Bloom wrote:
Each program has guidelines that specify eligibility criteria. These criteria are posted on the financial stability
website, www.financialstability.gov.
For example, in determining whether an institution is
eligible for funding under the Automotive Industry Financing Program, Treasury has identified the following factors
for consideration, among other things:
1. The importance of the institution to production by, or
financing of, the American automotive industry;
2. Whether a major disruption of the institution’s operations would likely have a materially adverse effect on employment and thereby produce negative effects on overall
economic performance;
3. Whether the institution is sufficiently important to
the nation’s financial and economic system that a major
disruption of its operations would, with a high probability,
cause major disruptions to credit markets and significantly
322 President George W. Bush, Statement on Financial Assistance to Automakers, (Dec. 19,
2008)
(online
at
www.washingtonpost.com/
wp-dyn/content/
article/2007/03/19/
AR2007031900867lpf.html).
323 U.S. Department of the Treasury, Section 105(a) Troubled Asset Relief Program Report to
Congress for the Period December 1, 2008 to December 31, 2008, at 3 (Jan. 6, 2009) (online at
www.financialstability.gov/ docs/105CongressionalReports/ 105Reportl010609.pdf). Critics
argue that the executive’s use of money authorized under EESA to assist the automotive industry is a violation of ‘‘the non-delegation doctrine,’’ which stipulates that the separation of powers
laid out in the Constitution implies limits on the size and kind of discretion that Congress may
confer on the executive branch. They contend that Congress did not intend for EESA to cover
automobile manufacturers, citing as evidence proposed legislation that would have explicitly
provided rescue funds to the automakers. If Congress intended EESA to cover automotive companies, then the deliberation over additional legislation would have been unnecessary.

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increase uncertainty or losses of confidence, thereby materially weakening overall economic performance; and
4. The extent and probability of the institution’s ability
to access alternative sources of capital and liquidity,
whether from the private sector or other sources of U.S.
government funds.324
Presumably these criteria also informed the initial decision to
provide support to the automotive industry.325
The Chrysler and GM bankruptcy cases have provided an additional forum for the executive branch to express its view with the
added benefit of in-depth legal analysis. For example, a filing by
the United States in the GM case stated that, according to the statute, a ‘‘financial institution’’ is ‘‘any institution . . . established
and regulated under the laws of the United States or any State,
territory, or possession of the United States . . . and having significant operations in the United States.’’ 326 On this basis, the
United States concluded that ‘‘GM plainly fits within the statutory
language because it is an ‘institution . . . established and regulated under the laws of the United States or any State, territory,
or possession of the United States . . . and having significant operations in the United States.’’ 327
Based on this interpretation, the term ‘‘financial institution’’
means any institution organized under U.S. law with operations in
the United States. This interpretation does not, however, seem to
account for the phrase ‘‘including, but not limited to, any bank,
savings association, credit union, security broker or dealer, or insurance company.’’ It also would seem to lend little weight to Congress’ selection of the term ‘‘financial institution.’’ The canons of
statutory construction, which traditionally provide guidance on how
statutes should be interpreted, generally frown on interpretations
that render any part of the statute superfluous.328 The rule against
superfluities assumes that legislatures, in general, mean what they
say and that the inclusion of certain words or phrases is not accidental.329 Using that assumption, Congress must be presumed to
have had a purpose in listing institutions that might typically be
considered ‘‘financial’’ institutions—banks, credit unions, broker
dealers, and insurance companies.

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324 Ron

Bloom COP Testimony, supra note 36.
325 Mr. Bloom also responded to a question regarding whether Treasury would provide a legal
opinion stating its authority to use the TARP funds for the automotive industry. Mr. Bloom answered by referencing the bankruptcy filing described above, and noted that Judge Gerber’s
final sale order in the GM bankruptcy had stated:
The U.S. Treasury’s extension of credit to, and resulting security interest in, the Debtors, as
set forth in the DIP Facility and the Existing UST Loan Agreement and as authorized in the
interim and final orders approving the DIP Facility, is a valid use of funds pursuant to EESA.
This statement seems at odds with Judge Gerber’s finding in the opinion issued the same day
that found that the party raising the issue lacked standing, and because the question was moot
and therefore not properly before the court. In re General Motors, 407 B.R. 463, 519 (Bankr.
S.D.N.Y. 2009). Given the inconsistency between these two statements, the bankruptcy court’s
views on the issue are at best ambiguous.
326 Statement of the United States of America Upon the Commencement of General Motors
Corporation’s Chapter 11 Case, at 10 (Dec. 19, 2008). In re General Motors Corp., S.D.N.Y. (Dec.
19, 2009) (online at docs.motorsliquidationdocket.com/ pdflib/37l50026.pdf) (hereinafter ‘‘U.S.
December 2008 GM Bankruptcy Statement’’).
327 Id.
328 Knight v. CIR, 128 S. Ct. 782, 789 (2008) (quoting Cooper Indus., Inc. v. Aviall Servs., Inc.,
543 U.S. 157, 166 (2004)).
329 Id.

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It appears that the United States refined its position, perhaps to
address this issue, during oral argument before the Second Circuit
in the Chrysler case. The United States argued that there is a certain connection between the automotive companies’ financing entities and the automotive companies themselves that permits the use
of TARP funds to support the automotive companies, thereby supporting the companies’ financial divisions. During argument, the
United States asserted that:
[T]he Secretary of the Treasury, in determining what is
a financial institution, looks at the interrelatedness [of the
company and its financing arm].
Chrysler Financial can’t survive without Chrysler. Without [Chrysler], the financial institution goes down . . .
[Chrysler Financial] is the financial institution and the relationship [with Chrysler is the one] that the Secretary of
the Treasury based his determination on, and that determination is entitled to deference by this court under administrative law principles.330
In neither the Chrysler nor the GM case was the question resolved because, in each case, the judge determined that the objectors did not have standing to raise the issue or that the issue was
moot.331 In the case of Chrysler, the lower court found that the Indiana pension funds could not raise the issue for two reasons: (1)
they were bound by their Administrative Agent’s acceptance of the
sale; and (2) the value of the collateral at issue was no greater than
the value of the amount that the first lien senior secured lenders
were to receive and that therefore there was no injury that could
be alleged.332 The Second Circuit accepted the lower court’s findings and confirmed its ruling.333 In the GM case, the court simply
noted the transaction at issue was the use of the bidding procedure
and did not directly involve any TARP funds, and also that Judge
Arthur Gonzales of the Bankruptcy Court for the Southern District
of New York had found a lack of standing when the same issue was
raised in the Chrysler case.334
However, if a court had reached the issue in either the GM or
Chrysler case, it may have found guidance from the U.S. Supreme
Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,335 or from the earlier Skidmore v. Swift,336 which together
establish the framework for analyzing whether an agency has correctly interpreted a statute in the face of ambiguous language from
Congress. According to Chevron:
If . . . the court determines Congress has not directly
addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as
would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous
330 In re Chrysler LLC, 2009 WL 2382766, * 10 n. 14, (2d Cir. Aug. 5, 2009) (quoting the transcript of the oral argument at 52).
331 Id. at 11–12; In re General Motors Corp., 407 B.R. 463, 518 (Bankr. S.D.N.Y. 2009).
332 In re Chrysler LLC, 405 B.R. 79, 83 (Bankr. S.D.N.Y. 2009).
333 In re Chrysler LLC, 2009 WL 2382766, *11–12 (2d Cir. 2009).
334 In re General Motors Corp., 407 B.R. 463, 518 (Bankr. S.D.N.Y. 2009).
335 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al., 467 U.S. 837 (1984).
336 Skidmore v. Swift, 323 U.S. 134 (1944).

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with respect to the specific issue, the question for the court
is whether the agency’s answer is based on a permissible
construction of the statute.337
In such circumstances, the court noted it had ‘‘long recognized
that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.’’ 338 This deference, known now as ‘‘Chevron deference,’’ reflects the judiciary’s respect for the specialized and superior skill
and knowledge that an executive agency brings to its area of expertise. A court will therefore honor an agency’s interpretation of such
a statute as long as the interpretation ‘‘represents a reasonable accommodation of conflicting policies that were committed to the
agency’s care by the statute,’’ and will not disturb such interpretation ‘‘unless it appears from the statute or its legislative history
that the accommodation is not one that Congress would have sanctioned.’’ 339
Whether Treasury would be due such deference in this case is
not clear. Later Supreme Court opinions have suggested that an
agency must use some authority that has been, either explicitly or
implicitly, delegated to that agency by Congress and that the authority has been used under ‘‘circumstances that Congress would
expect the agency to be able to speak with the force of law when
it addresses ambiguity in the statute or fills a space in the enacted
law.’’ 340 An agency speaks with the ‘‘force of law’’ when, for example, it engages in rule-making under the Administrative Procedure
Act.341 While Treasury (and President Bush) have made various
statements regarding their interpretations of the statute and the
authority to use the TARP in this way, it is not clear that any of
these statements is sufficient to qualify as speaking with the force
of law, especially since there has not been one coherent statement
but a mix of court filings, oral argument, and statements by Treasury officials. On December 23, 2008, Secretary Paulson submitted
to Chairman Rangel of the House Ways and Means Committee a
determination under section 3(9)(B) of EESA that assets to be purchased from the automotive companies should be treated as ‘‘troubled assets’’ because their purchase was ‘‘necessary to promote financial market stability.’’ The December 23 letter assumes, without
any rationale, that the automotive companies may be treated as ‘‘financial institutions’’ under EESA, so the weight that letter would
be accorded under Chevron is unclear.
In this situation, Skidmore may provide the more appropriate
guidance. The Skidmore court, like the Chevron court, noted that
an agency’s ‘‘policies are made in pursuance of official duty, based
upon more specialized experience and broader investigations and
information than is likely to come to a judge in a particular
337 Id.

at 843.
at 844.
at 845 (quoting United States v. Shimer, 367 U.S. 374 (1961)).
340 United States v. Mead Corp., 533 U.S. 218, 229 (2001).
341 Id. See, by way of analogy, Christensen v. Harris County, 529 U.S. 576, 587 (2000) (interpretation contained in agency’s opinion letter did not merit Chevron deference when the letter
did not follow a formal adjudication or similar procedure).
338 Id.

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339 Id.

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case.’’ 342 Furthermore, the court continued, ‘‘[t]his Court has long
given considerable and in some cases decisive weight to Treasury
Decisions and to interpretative regulations of the Treasury and of
other bodies that were not of adversary origin’’ and that ‘‘rulings,
interpretations and opinions’’ of an agency’s administrator ‘‘do constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance.’’ 343
d. The Congressional Record
While not strictly authoritative, it is often useful also to consider
the Congressional Record when interpreting a statute to determine
whether a particular interpretation seems to forward the goals articulated by Members of Congress while debating the statute.344 Of
course, various Members of Congress may have widely divergent
reasons for passing a piece of legislation and such divergence may
result in purposely vague language in the final bill. Nonetheless,
it is useful to consult the Congressional Record in such cases for
any widespread views that might signal what the intent behind a
statute was in the minds of its proponents.
In this case, the record shows that the Members of Congress who
debated this legislation in late 2008 believed they were debating a
bill aimed at banks and the financial sector. For example, multiple
Senators remarked on the need to unfreeze the credit markets and
their view that EESA was intended to address just those markets.345 The understanding of EESA’s purpose appears to have
been the same in the House, as illustrated by the remarks of Representative Barney Frank, chairman of the House Financial Services Committee: ‘‘[i]n implementing the powers provided for in the
Emergency Economic Stabilization Act of 2008, it is the intent of
Congress that Treasury should use Troubled Asset Relief Program
(TARP) resources to fund capital infusion and asset purchase approaches alone or in conjunction with each other to enable financial
institutions to begin providing credit again[.]’’ 346
On December 4, 2008, however, Senators Dodd and Reid and
Representatives Pelosi and Frank wrote to President Bush, asking
him to reconsider his position on the use of TARP funds and allocate a portion of them to support the automotive industry,347 sug342 Skidmore,

323 U.S. at 139.
at 140.
v. Bottle Blowers Ass’n, 389 U.S. 463, 468 (1968).
345 Congressional Record, Statement of Senator Mitch McConnell, S10190–S10191 (Oct. 1,
2008) (‘‘Right now . . . the credit markets are frozen, so the circulatory system is not working
as it should. If the circulatory system doesn’t work, it begins to choke off the body—the economy. With the step we take tonight, we are confident we will be able to restore the circulatory
system, if you will, and regain health for the economy . . . .’’); Congressional Record, Statement
of Senator Hillary Clinton, S10215 (Oct. 1, 2008) (‘‘We are already seeing the consequences of
a freezing credit market that will only worsen . . . Our economy runs on credit. Underlying that
credit is trust. Both the credit and the trust is running out. Essentially, what we are doing in
an intangible way is restoring trust and confidence, and in a very tangible way helping to restore credit. Banks will refuse to lend to businesses and even to one another; investors continue
to withdraw to the safest investments . . . .’’); Congressional Record, Statement of Senator Judd
Gregg, S10216 (Oct. 1, 2008) (‘‘We also know, regrettably, that the credit markets are basically
locked up and that credit on Main Street is disappearing, that people are not able to get financing for the payrolls, financing for inventory, financing to buy a car, send children to school, rebuild the local hospital, rebuild the local school system . . . .’’).
346 Congressional Record, Statement of Representative Barney Frank, H10763 (Oct. 3, 2008).
347 Letter from Sens. Christopher Dodd and Harry Reid and Reps. Nancy Pelosi and Barney
Frank to President George W. Bush, (Dec. 4, 2008) (online at www.democrats.senate.gov/
newsroom/ record.cfm?id=305476&).
343 Id.

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344 Wirtz

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gesting that at least these four members of Congress believed that
the TARP could be used for the automotive industry.
On December 10, 2008, a bill was passed by a 237 to 170 vote
in the House to provide funds to the automotive industry by diverting $14 billion in loans to Chrysler and GM from a previously enacted program setup for the production of advanced vehicle technology.348 Although a different version of the same bill was subsequently brought to the Senate floor, and debated long into the
night on December 11, 2008, there was never a vote and Congress
left for the December recess without passing any legislation aimed
at the automotive industry.
Congress’s explicit consideration of legislation that ultimately
failed to pass creates a troubling question regarding the Bush Administration’s decision to ‘‘step in’’ and rescue the automotive industry.349 Recently, however, the Senate rejected an attempt by
Senators Lamar Alexander and Bob Corker to use an amendment
to a spending bill to limit the availability of TARP funds for automakers Chrysler and GM, suggesting that the Senate may not disagree with the way TARP funds have been used.350 Given the various actions—and non-actions—by Congress, it is difficult to make
any sweeping statement about ‘‘Congressional intent’’ with regard
to the use of TARP funds to support the automotive industry.
f. Conclusion
At the end of this analysis, the question that remains is whether
the executive should get the benefit of the doubt about a close
question of statutory interpretation when the executive might have
thought in good faith that interpreting the statute in a particular
way was crucial to the national interest. This question may never
be answered with any finality as the Panel is not aware of any
court before which the issue is currently pending and therefore it
may never be resolved.351
2. GOVERNMENT AS OWNER OF COMMERCIAL ENTERPRISES:
MANAGEMENT ISSUES

When government intervenes in business, it creates uncomfortable tensions and the potential for conflicting policy priorities. Nowhere is this more apparent than when considering the government as the owner or significant shareholder of a corporation.
a. Issues implicated in government involvement in commercial enterprises
Few would argue with the objective of achieving the long term
viability of Chrysler and GM in order to protect the government’s
investment. The potential for conflict may, however, arise should
348 H.R.

7321, supra note 14.
v. Chao, 540 U.S. 614, 622 (2004) (declining to interpret Privacy Act of 1974 as not
requiring showing by plaintiffs of actual damages where, inter alia, ‘‘drafting history show[s]
that Congress cut the very language in the bill that would have authorized any presumed damages . . . .’’).
350 Congressional Record, Statements of Senators Alexander and Corker, S8217–S8219 (July
29, 2009).
351 As noted previously, supra note 55, the Indiana State Police Pension Trust filed a motion
for writ of certiorari with the Supreme Court on September 3, 2009. There is no question raising
the issue of Treasury’s authority to use the TARP funds among the questions presented to the
court in the motion.

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349 Doe

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the government decide to use its position in these companies to
promote public policy initiatives. In the case of GM, in which the
government is a controlling shareholder, promoting such initiatives
could raise the issue of fiduciary duty. To whom does the government owe a fiduciary duty? Most courts have found that the controlling shareholder in a publicly held corporation owes a fiduciary
duty to the corporation.352 Others have found that a fiduciary duty
is owed directly to the minority shareholders.353 The pursuit of
public policy objectives using an investee corporation could violate
these duties.354
The prospect of a government using its position of ownership in
companies to pursue public policy matters is not without historical
precedent. During the 1980s, the United Kingdom and other European countries privatized many of their state-controlled industries.
In some cases, they retained what are called ‘‘golden shares.’’ Golden shares are an ‘‘interest retained by a government in a company
that has been privatized after having been in public ownership
state-owned companies.’’ 355 While many of these shares have since
expired, at the time, these shares provided European governments
with a powerful voice in a company’s decision-making.356 It has
been argued that some governments even used their shares to
block potential acquisitions of these companies by outside investors
out of interest ‘‘in maintaining inefficiently high levels of employment or reducing cross-border flows of capital and services.’’ 357 In
some countries where ‘‘mixed’’ public and private ownership of industry is common, the potential for conflicts between private and
public policy objectives is openly acknowledged and accepted.358
Even under the best of intentions, the potential for conflict exists. Unlike other investors, the federal government has the ability
to exert its influence in any number of ways. It has the authority
to negotiate Free Trade Agreements (FTAs) with other countries,
take trade cases before the World Trade Organization (WTO), and
even impose safeguards on imports that it believes may threaten
352 Gatz v. Ponsoldt, 925 A.2d 1265, 1281 (Del. 2007); Cede & Co. v. Technicolor, Inc., 634 A.2d
345, 361 (Del. 1993).
353 Gentile v. Rossette, 906 A.2d 91, 103 (Del. 2006); see also Pfeffer v. Redstone, 965 A.2d 676,
691 (Del. 2009).
354 See, for comparison purposes, Dodge v. Ford Motor Co., 170 N.W. 668, 683–84 (Mich. 1919)
(rejecting as violative of fiduciary duties Henry Ford’s ‘‘humanitarian’’ ambition to ‘‘employ still
more men, to spread the benefits of this industrial system to the greatest possible number, to
help them build up their lives and their homes’’ by reinvesting back into the company profits
that otherwise would have been paid as dividends to other shareholders).
355 BNET Business Dictionary (accessed Aug. 30, 2009) (online at dictionary.bnet.com/
definition/golden+share.html).
356 J J.W. Verret, The U.S. Government as Control Shareholder of the Financial and Automotive Sector: Implications and Analysis, Mercatus Center at George Mason University
(accessed Aug. 30, 2009) (online at www.mercatus.org/ uploadedFiles/ Mercatus/ Events/ CHCll200lFMWGlIIl-lVerretlHandout.pdf) (hereinafter ‘‘U.S. Government as Control Shareholder’’).
357 Id.
358 See, for example, the following disclosure by the partly state-owned Brazilian company
´
Eletrobras:
´
´
Centrais Eletricas Brasileiras S.A.—Eletrobras, Form 20–F, at 15 (July 1, 2009) (online at
www.sec.gov/ Archives/edgar/ data/1439124/ 000119312509142012/d20f.htm# toc51217l7) (‘‘We
are controlled by the Brazilian Government, the current policies and priorities of which directly
affect our operations . . . The Brazilian Government, as our controlling shareholder, has pursued (and may continue to pursue) some of its macroeconomic and social objectives through us
. . . the Brazilian Government has in the past and may in the future require us to make investments, incur costs or engage in transactions (which may include, for example, requiring us to
make acquisitions) that may not be consistent with our objective of maximizing our profits.
. . .’’).

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one of its domestic industries. It has the authority to enforce securities and trade laws, and can bring cases against individuals or
companies found in violation of these laws, which could include the
imposition of fines and imprisonment. In a speech before the Kennedy School of Government in October of 2007, then-SEC Chairman Christopher Cox stated: ‘‘if the powers of government are no
longer used solely to police the securities markets at arm’s length,
but rather are used to ensure the success of the government’s commercial or investment activities, not only retail customers but
every institutional investor could be put at a serious disadvantage.’’ 359 The longer that the government plays the role of regulator and regulated, the greater the opportunity a conflict has to
occur.
There are certain things that the government can do that the private sector cannot. When credit is scarce, the government can act
as a lender of last resort, providing a company with favorable financing through a troubled time. The housing Government Sponsored Enterprises (GSEs—Fannie Mae and Freddie Mac—over the
last two decades were able to use their implicit government guarantees to raise debt cheaply in the markets, and then use that debt
to finance the purchasing of trillions of dollars of housing loans
from originators. Whereas private companies may find it difficult
to borrow under the current conditions of the market, the government, if it chooses, can indefinitely provide financing for its investment and act as the lender of last resort. The ability to borrow
cheaply from the government, however, is not without risk, and
over the long term can potentially undermine the private market
by allowing firms to avoid the discipline of commercial failure—
moral hazard.
In addition to acting as a lender of last resort, the government
has the ability to assist Chrysler and GM indirectly. Unlike other
investors, the government has the authority to enact legislation designed to incentivize certain types of consumer behavior. The passage of the ‘‘Cash for Clunkers’’ legislation, which was included in
the Supplemental Appropriations Act of 2009,360 provided rebates
for consumers who traded in their old fuel inefficient cars to purchase new fuel efficient cars. The $1 billion appropriated for the
program was largely used in the first week of its availability, and
additional funds were appropriated shortly thereafter by passage of
the Consumer Assistance to Recycle and Save Program (H.R.
3435).361 The objective of the program aimed, in part, to promote
higher vehicle fuel efficiency; the program, however, also helped
with declining automotive sales. On August 26, 2009, the Department of Transportation announced that the ‘‘Cash for Clunkers’’
program (which ended on August 25, 2009) generated the purchase
of ‘‘nearly 700,000 vehicles.’’ 362 While the program offered the re359 Chairman Christopher Cox, Speech by SEC Chairman: ‘The Role of Government in Markets’
Keynote Address and Robert R. Glauber Lecture at the John F. Kennedy School of Government
(Oct. 24, 2007) (online at www.sec.gov/news/speech/2007/spch102407cc.htm).
360 Supplemental Appropriations Act, 2009, Pub. L. 111–32, 123 Stat. 1859 (hereinafter ‘‘Pub.
L. 111–32’’).
361 CAR Save Program Supplemental Appropriations Act, 2009, Pub. L. 111–47, 123 Stat.
1972.
362 Department of Transportation, Office of Public Affairs, Press Statement for Transportation
Secretary Ray LaHood: Cash for Clunkers Wraps up with Nearly 700,000 Car Sales and InContinued

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bate to purchases of new fuel efficient vehicles from all automotive
companies, Chrysler and GM were certainly among the beneficiaries of the program.
A further complicating factor is the risk of political interference
in government-owned entities. An example is the pressure the German government is putting onto the U.S. government with respect
to the sale of Opel. Thus far, Congress has not directly become involved in the management of Chrysler and GM. The possibility,
however, exists.363 Management, executive compensation and
bonus issues have become the subject of extensive public debate
and have resulted in compensation restrictions for TARP recipients. Moreover, pressures could mount further given that federal
assistance for the automotive companies is not politically popular.364

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b. Tension Between Acting in a ‘‘Hands-Off Manner’’ and ‘‘Changing
Culture’’
At the Panel’s Detroit field hearing, Mr. Bloom said the following:
Our role has been to act as a potential investor of taxpayer resources, and as such we have not become involved
in specific business decisions like where to open a new
plant or which dealers to close. This is the job of management . . . Our goal is to promote strong and viable companies, which can be profitable and contribute to economic
growth and jobs without government support as quickly as
possible. Using GM or Chrysler as an instrument of broader government policy is inconsistent with these goals.365
On the other hand, the Treasury auto team has stated that in
order to create the conditions most likely to lead to sustained viability for Chrysler and GM, it is necessary to change the culture
within these automotive companies.366
While the Administration’s stated purpose may not be to involve
the federal government in the day-to-day business decisions of
Chrysler or GM, the government will not be entirely absent from
exerting any influence. Mr. Bloom further testified that as a shareholder, Treasury will vote on ‘‘core governance issues, including the
selection of a company’s board of directors and major corporate
events or transactions.’’ According to Mr. Bloom, the Treasury auto
team was ‘‘involved in recruiting’’ many of the new directors who
now sit on the new boards of Chrysler and GM.367 As a shareholder, Treasury cannot escape these fundamental duties. Voting
for directors is a basic right of shareholders, and it establishes the
balance of power between shareholders and management of the
creased Fuel Efficiency, U.S. Transportation Secretary LaHood declares program ‘‘wildly successful’’ (August 26, 2009) (online at www.cars.gov/ files/official-information/ August26PR.pdf).
363 Pub. L. 111–32, supra note 358.
364 Rasmussen Survey, Just 21% Favor GM Bailout Plan, 67% Oppose (May 31, 2009) (online
at www.rasmussenreports.com/ publiclcontent/ business/ autolindustry/ mayl2009/
justl21lfavorlgml bailoutlplanl67loppose).
365 Ron Bloom Prepared COP Testimony, supra note 79.
366 In June 2009, Steven Rattner, then-head of the Task Force, stated: ‘‘[a]ddressing cultural
issues is just as fundamental to our assignment as addressing the balance sheet or financing.’’
Micheline Maynard, U.S. Takes On the Insular Culture of G.M., New York Times (June 10,
2009) (online at www.nytimes.com/ 2009/06/11/ business/11auto.html?dlbk).
367 Ron Bloom Prepared COP Testimony, supra note 78.

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company.368 How Treasury manages these responsibilities without
overstepping, however, is an area that needs careful and continued
monitoring.
Moreover, the Treasury auto team’s decision to dispose of its
ownership stakes in Chrysler and GM ‘‘as soon as practicable’’ also
raises important policy questions regarding the safeguarding of the
taxpayers’ investment, maximizing taxpayer return and the government’s likelihood of achieving the operational, cultural and economic restructuring it seeks. The lingering issue is whether the
government can really change the culture of these companies and
help improve their profitability while it remains a (supposedly) disinterested shareholder with a ‘‘hands-off’’ approach to managing its
investment. Merely exercising the right to vote on slates for boards
of directors and other significant corporate governance issues may
not provide the influence necessary to achieve the level of transformation sought. If the government intends to be a ‘‘silent partner
of sorts,’’ in the words of Senator Richard Shelby (R–AL),369 then
it also remains to be seen how it intends to protect the interests
of the taxpayer as a shareholder.
c. Models of Corporate Governance That Could Be Followed: Private
Equity?
The private equity model could provide a useful template for the
government in managing its investment in New Chrysler and New
GM, and help address some of the tensions that exist when the
government invests in commercial enterprises. A private equity
firm will often invest in a company, put its people in place, set the
operating rules and reporting practices that it believes will maximize its profits, and then let management run the company. A typical investment lasts between three to five years, but can vary anywhere from one to ten years depending on the investment.370 A private equity investor tends to be more involved with management
in the first months of the investment and more hands-off once a
sense of stability at the investee company is achieved. During the
first few months after an acquisition, the lead private equity partner generally spends at least half of its time working with management. The strategy, mission, and purpose of the company are set
in the beginning. Changes in management help establish the new
tone and culture. Together, the investor and management will ‘‘design and execute near-term improvements and develop a detailed
multi-year business plan.’’ 371 Once the plan is established and reporting procedures are put into place, the investor will let management run the day-to-day operations and manage the company.
Compensation is largely performance-based.372 Private equity
firms typically compensate their senior management with holdings

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368 U.S.

Government as Control Shareholder, supra note 356.
369 Senate Committee on Banking, Housing and Urban Affairs, Statement of Ranking Member
Shelby, The State of the Domestic Automobile Industry: Impact of Federal Assistance, 111th
Cong. (June 10, 2009).
370 Driving Growth: How Private Equity Investments Strengthen American Companies, at 11
Private Equity Council (accessed Aug. 30, 2009) (online at: www.privateequitycouncil.org/
wordpress/wp-content/ uploads/ driving-growth-final.pdf).
371 Id.
372 To the extent that there are any changes to compensation, the Panel recommends that
those changes reflect the recommendations made in the its special report on regulatory reform.
Continued

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in the company ranging anywhere from two to ten percent.373 Management salaries tend to be much lower than at publicly traded
companies. The private equity firm Texas Pacific Group, for example, brought in Millard Drexler in 2003 to be the CEO of J. Crew
at an annual salary of $200,000 with no bonuses.374 Instead, the
bulk of his compensation was based on the increase in equity gains
he brought to his equity holders. According to Scott Sperling, CoPresident of Thomas H. Lee Partners, ‘‘around 90 percent of the
compensation the management teams get at our companies is driven by the performance of the equity value. The alignment of management’s interests and our interests is absolute.’’ 375
Three aspects of the private equity model could be useful to
Treasury going forward. First, Treasury should clearly articulate
the duration of its investment. While the Treasury auto team has
said that it plans to divest its holdings in New Chrysler and New
GM ‘‘as soon as practicable,’’ it should clearly articulate the conditions for divestment. Second, Treasury should consider structuring
the compensation of management at New Chrysler and New GM to
be more performance-based. The compensation of the new management is currently under review by Treasury’s Special Master. The
general public has directed outrage at the bonus packages of executives at various TARP recipient institutions. Tying management’s
compensation more closely to the performance of New Chrysler and
New GM reflects current corporate governance best practices and
may provide a more politically palatable alternative.
Finally, Treasury could articulate a mission and strategy for
these companies that is transparent to management, the boards,
and the taxpayers, set up a system for reporting and disclosures,
and leave the business in the charge of management. The Treasury
auto team has approved Chrysler and GM’s viability plans. It has
appointed or reinstated 10 of the 13 board members at New GM.
It has appointed four of the nine board members at New Chrysler.
New management is firmly in place. The longer that Treasury lingers in the decisions of management, the greater the opportunity
that such decisions could become politicized.
Another approach that Treasury could employ to further separate
management from politics is to hold Treasury’s interest in a trust,
not unlike the AIG trust, discussed in more detail below. While the
government’s influence would certainly still be evident, a trust
would provide an additional barrier between the Administration
and management that could serve to prevent any potential or actual politicization of management decisions.
In that report, the Panel discussed the ways in which executive pay has actually become decoupled from performance and provided four recommendations for ensuring that compensation
properly aligns executive and shareholder interests. These recommendations included: 1) creating of tax incentives to encourage long-term oriented pay packages; 2) encouraging financial
regulators to guard against asymmetric pay packages in financial institutions; 3) recommending
that regulators consider requiring executive pay contracts to provide for clawbacks of bonus
compensation for executives of failing institutions, and 4) encouraging corporate governance
structures with stronger board and long-term investor oversight of pay packages. Congressional
Oversight Panel, Special Report on Regulatory Reform: Modernizing the American Financial
Regulatory System: Recommendations for Improving Oversight, Protecting Consumers, and Ensuring Stability, at 37–40 (January 29, 2009) (online at cop.senate.gov/ documents/ cop-012909report- regulatoryreform.pdf).
373 Id.
374 Id.
375 Id.

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d. Differences between automotive industry and financial institution
interventions
In some respects, Treasury’s approach to its involvement with
the domestic automotive industry is similar to its approach to bank
intervention since the passage of EESA in October 2008. Facing a
financial crisis, Treasury recognized the need to take a series of actions necessary to prevent a collapse of the financial system and its
resultant impact on the greater American economy. As part of its
response, Treasury decided to provide capital to viable financial institutions throughout the nation in order to strengthen their balance sheets, foster the provision of business and consumer credit
within the economy, and help stabilize the financial system.376 Its
provision of TARP assistance to both banks and domestic automobile companies was, Treasury states, designed to prevent significant economic disruption.377
Treasury staff indicated to the Panel that they based their decisions to provide TARP assistance to institutions on an entity-by-entity basis, rather than by industry.378 In other words, Treasury reviewed the particular circumstances of each institution before it decided to disburse TARP funding and was not seeking a uniform approach across the same industry. To support this assertion, Treasury pointed to the fact that Treasury is a significant shareholder
of GM and Citigroup as well as a debt holder of Chrysler and the
banks and other financial institutions participating in the Capital
Purchase Program (CPP).
There remains a perception, however, that banks and other financial institutions have been treated rather differently from the
automotive companies with respect to their TARP investments.379
This perception remains despite both Treasury’s assertions that it
has based its decisions on a case-by-case basis, and the Administration’s articulation of a set of uniform principles to govern its ownership interests in financial and automotive companies (one being
that in ‘‘exceptional cases’’ where the government feels it is necessary to respond to a company’s request for substantial assistance,
Treasury will reserve the right to establish upfront conditions as
necessary including requirements for new viability plans as well as
changes to boards of directors and management.) 380 During Secretary Geithner’s testimony before the Panel in April, he stated
that the Obama Administration is prepared to oust top financial
376 U.S. Department of the Treasury, Statement by Secretary Henry M. Paulson, Jr. on Actions
to Protect the U.S. Economy (Oct. 14, 2008) (online at www.treas.gov/press/releases/hp1205.htm).
377 U.S. Department of the Treasury, Secretary Paulson Statement on Stabilizing the Automotive Industry (Dec. 19, 2008) (online at www.treas.gov/ press/releases/ hp1332.htm).
378 Treasury staff discussed this issue, along with the overall status of the AIFP as well as
the Administration’s strategies and plans going forward as New Chrysler and New GM have
completed their purchases of assets through the bankruptcy process, with Panel staff at a Treasury briefing held on July 29, 2009.
379 Senate Finance Committee, Statement of Senator Stabenow, TARP Oversight: Six Month
Update, 111th Cong. (Mar. 31, 2009) (online at www.cq.com/ display.do?dockey=/ cqonline/prod/
data/docs/
html/transcripts/
congressional/111/
congressionaltranscripts111
-000003088824.html@committees&metapub= CQ-CONGTRANSCRIPTS). At the hearing, Senator Stabenow highlighted ‘‘the difference now that we’re seeing between the approach with the
auto industry, which is much more modeled on a reorganization approach, and the approach
that is being used throughout the financial services industry. And that is a straightforward subsidization.’’ She proceeded to ask Professor Elizabeth Warren: ‘‘And what lessons can we learn
from the rigorous oversight of the—of the auto industry to learn from that and place it on the
financial institutions that have been receiving TARP funds?’’ Id.
380 For the set of principles articulated by the Administration, see supra note 183.

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executives if their firms require more public aid. Secretary
Geithner indicated that where Treasury provides capital in the future, it will be done so with conditions ‘‘not just to help protect the
taxpayer, but to try to help ensure that the system emerges stronger, not weaker.’’ 381 Where Treasury provides ‘‘exceptional assistance,’’ ‘‘it will come with conditions to make sure there is restructuring, accountability, to make sure these firms emerge stronger in
the future.’’ 382 Secretary Geithner also indicated that where Treasury has had to do exceptional things, it has replaced management
and boards, and cited the government’s interventions in AIG,
Freddie Mac and Fannie Mae as examples.383 An assessment of
Treasury’s actions, however, suggests that its commitment to this
ideal is doubtful except in those rare circumstances involving government-mandated restructuring efforts.
For example, in order to achieve its goals for the automotive industry at the outset, Treasury determined that it was necessary for
both recipients to formulate long-term viability plans, which required a credible demonstration of future profitability and alterations to business models. In addition to forcing Chrysler and GM
to develop new viability plans in the restructuring process, the
Treasury auto team negotiated a deal that wiped out shareholders,
cut debt, influenced decisions regarding personnel,384 and subjected
creditors to losses. However, while the FDIC has placed some
banks into receivership in the normal exercise of its powers, none
have been forced to develop new viability plans, shareholders have
not been wiped out, and debts have been guaranteed. In addition,
Treasury has not forced TARP-recipient financial institutions to reorganize, nor has it completely changed their boards and managements.
While Treasury has not generally exercised a significant management role with respect to most of the financial institutions that
have received TARP capital investments, it has done so with the
largest and most distressed TARP recipients. For example, Treasury has exercised significant control over AIG, which received $70
billion in TARP funds under the Systemically Significant Failing
Institutions program (SSFI) (in addition to other assistance provided by the Federal Reserve). As with the automotive companies,
some of AIG’s management has been replaced and the company has
undergone a restructuring that has resulted in two of its profitable
foreign insurance divisions being spun-off and its financial products
division significantly cut back. However, Treasury has not required
AIG to submit a forward-looking viability plan, nor has AIG been
forced into reorganization. Additionally, those with equity stakes in
AIG have seen their positions severely diluted by the government,
but they have not been wiped out, in contrast to the treatment of
automotive company shareholders. Companies with contractual ties
to AIG, for instance those that owned AIG-originated credit default
381 Congressional Oversight Panel, Testimony of Treasury Secretary Timothy F. Geithner, at
40 (Apr. 21, 2009).
382 Id.
383 Id. at 40–41.
384 In the case of New Chrysler, the entire management team is new, and in the case of New
GM, some senior managers are no longer with the company and the management team is smaller than it was.

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swap (CDS) contracts, have been made whole, unlike some creditors of the automotive companies.
Another significant difference between the various companies in
which the government owns stakes is the manner of holding of equity. The shares that make up the government’s 77.9 percent share
in AIG are held in a trust for the benefit of the United States
Treasury.385 The Trust Agreement provides that the trustees must
act ‘‘in or not opposed to the best interests of Treasury.’’ 386
There are a number of reasons why the Federal Reserve Bank
of New York (FRBNY), and Treasury might have chosen a trust
structure. The stated reason was to avoid conflicts of interest: the
Trust Agreement provides that ‘‘to avoid any possible conflict with
its supervisory and monetary policy functions, the FRBNY does not
intend to exercise any discretion or control over the voting and consent rights associated with the Trust Stock.’’ 387
There is also the possibility that the shares were placed into a
trust so as not to violate the Government Corporation Control Act
(GCCA).388 The GCCA prohibits the government from owning a
corporation without specific Congressional authorization.389 The
trust structure also provides political insulation to shareholder-taxpayers who wear two hats—one as shareholders who want to maximize the return on their investments, and the second as taxpayers
who want the financial system stabilized. The trustees are advised,
however, in exercising their discretion under the Trust Agreement,
that the FRBNY believes that AIG ‘‘being managed in a manner
that will not disrupt financial market conditions, [is] consistent
with maximizing the value of the Trust Stock.’’ 390 Professor J.W.
Verret testified before the House Oversight and Government Reform Committee in May 2009 that the trust is also intended to protect the shares from political influence, by creating ‘‘an independent buffer between the short-term political interests of an ad385 AIG
Credit Facility Trust Agreement (accessed Aug. 30, 2009) (online at
www.newyorkfed.org/ newsevents/news/ markets/2009/ AIGCFTAgreement.pdf) (hereinafter
‘‘AIG Credit Facility Trust Agreement’’). Note also that the trust is for the benefit of the United
States Treasury, not the U.S. Department of Treasury. The AIG Trust Agreement explains that
‘‘any property distributable to Treasury as beneficiary hereunder shall be paid to Treasury for
deposit into the General Fund as miscellaneous receipts.’’ Id. at § 1.01.
386 Id. at § 3.03(a). Professor J.W. Verret testified that usually, fiduciaries are tasked to ‘‘manage . . . wealth to maximize the value for their beneficiaries.’’ House Oversight and Government
Reform Committee, Testimony of Professor J.W. Verret, Panel II, AIG: Where is the Taxpayer’s
Money Going? (May 13, 2009) (hereinafter ‘‘Verret Testimony’’). William Dudley, president and
CEO of the FRBNY, testified in March that the ‘‘trustees have a legally binding obligation to
exercise all of their rights as majority owner of AIG in the best interests of the U.S. taxpayer,
with the proceeds of any ultimate sale of shares going directly to Treasury of the United States.’’
House Committee on Financial Services, Tesimony of William Dudley (Mar. 24, 2009) (online
at www.newyorkfed.org/ newsevents/speeches/ 2009/dud090324.html). Representatives Issa and
Bachus have sent letters to Treasury and SIGTARP calling for an audit of the AIG trust and
setting out criticisms of the trust structure, including the ‘‘lack of standard fiduciary duties,’’
the Trust’s ‘‘broad indemnification of the actions of the trustees,’’ and lack of accountability on
the part of the trustees. Letter from Representatives Spencer Bachus and Darrell Issa to Neil
Barofsky (Aug. 31, 2009); see also Letter from Representatives Spencer Bachus and Darrell Issa
to Secretary Timothy Geithner (Aug. 31, 2009).
387 AIG Credit Facility Trust Agreement, supra note 385.
388 59 Stat. 597, as amended, 31 U.S.C. § 9101 et seq.
389 31 U.S.C. § 9102. It could be argued that EESA, with its authorization to purchase securities in financial institutions, provides this authorization.
390 AIG Credit Facility Trust Agreement, supra note 385 at § 2.04(d). Trustee Chester Feldberg
testified that this clause ‘‘was put in by the Federal Reserve to express their [its] desire that
that issue be considered in the course . . . of the trustee’s deliberations. It was explicitly done
in a way that it does not direct the trustees to do anything.’’ House Committee on Oversight
and Government Reform, Testimony of Chester Feldberg, AIG: Where is the Taxpayer’s Money
Going? (May 13, 2009).

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ministration and the long-term health of the nation’s financial system.’’ 391
There are a number of differences between the government’s
holdings in AIG and the automotive companies. Unlike the relationship between AIG and the FRBNY, Treasury holds no direct
supervisory position over the automotive companies, nor does it
hold the Federal Reserve Banks’ and Board’s monetary policy function.392 AIG also has a more direct effect on U.S. financial markets
than do the automotive companies.393 This may require more of a
buffer to protect against conflicts of interest, whether such conflicts
are potential, actual, or simply based upon appearance. In addition,
Mr. Bloom has announced that Treasury intends to start to sell its
shares in GM by 2010.394 Treasury, therefore, may not have the
long-term ownership in Chrysler and GM that it will likely have
in AIG.395
Treasury or Congress might choose to place the government’s
auto shares into a trust.396 The Panel notes that the TARP Recipient Ownership Trust Act of 2009, currently under consideration in
the Senate, would require Treasury to place into a trust the shares
of any TARP recipient of which the government is more than a 20
percent owner.397 This bill is designed to remove any hint of politics from Treasury’s temporary ownership stakes. Under this proposal, the trust would have a responsibility to sell these assets
within 18 months, with limited exceptions.398 The Panel takes no
view on the specifics of this particular bill, or the details of establishing any such trust, but notes that problems identified with the
391 Verret Testimony, supra note 386. He opines that political considerations might create pressure for a nationally controlled bank to subsidize lending in battleground states. He points to
Italy’s government controlled banks as an example.
392 Like any other automotive company or TARP recipient, GM is still subject to an array of
government regulations.
393 House Committee on Financial Services, Statement of the Chairman of the Board of Governors of the Federal Reserve System Ben S. Bernanke, Oversight of the Federal Government’s
Intervention at American International Group, 111th Cong., at 3 (Mar. 24, 2009) (online at
www.house.gov/ apps/list/ hearing/financialsvcsldem/ statementl-lbernanke032409.pdf) (‘‘At
best, the consequences of AIG’s failure would have been a significant intensification of an already severe financial crisis and a further worsening of global economic conditions. Conceivably,
its failure could have resulted in a 1930s-style global financial and economic meltdown, with
catastrophic implications for production, income, and jobs.’’).
394 Ron Bloom COP Testimony, supra note 36 at 26.
395 Edward Liddy has testified that he expects AIG to take three to five years to complete its
restructuring and repay the Treasury and the FRBNY. House Committee on Oversight and Government Reform, Testimony of AIG Chief Executive Officer Edward Liddy (May 13, 2009) (online at www.cq.com/ display.do?dockey=/ cqonline/prod/data/docs/ html/transcripts/congressional/
111/congressionaltranscripts111000003116243.html@committees&metapub=
CQCONGTRANSCRIPTS&searchIndex= 0&seqNum=17).
396 Treasury already has plans to put its shares in Citigroup into a trust. U.S. Department
of the Treasury, Treasury Announces Participation in Citigroup’s Exchange Offering (Feb. 27,
2009) (online at www.treas.gov/press/releases/tg41.htm); see also U.S. Department of the Treasury, Citigroup Exchange Offering Terms (accessed Aug. 30, 2009) (online at www.treas.gov/
press/releases/ reports/transactionloutline.pdf).
397 Senators Mark Warner (D-VA) and Bob Corker (R-TN) are the original lead sponsors of
the TARP Recipient Ownership Trust Act of 2009. Under this legislative proposal, if the government owns more than 20 percent of a private company, that ownership stake would be placed
in an independent trust supervised by three presidentially appointed trustees (uncompensated)
with a with a fiduciary obligation to U.S. taxpayers. The trust would have a responsibility to
sell these assets within 18 months, while trustees could ask for an extension if they collectively
determine that additional time might provide a way to maximize the return on the taxpayers’
investment. Senator Warner believes that ‘‘this legislation will go a long way toward providing
additional assurances that a political agenda is not being pursued through government ownership in any of these companies and that these companies also are being dealt with fairly.’’ Mark
R. Warner, Exit Strategy Needed (op-ed), Washington Times (July 27, 2009) (online at
www.washingtontimes.com/ news/ 2009/ jul/ 26/ exit-strategy-needed/).
398 Id.

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AIG trust structure should be addressed in any future trust. In his
testimony before the House Oversight and Government Reform
Committee in May, Professor Verret advanced three criticisms of
the AIG trust structure. First, he stated that the AIG trustees are
required to ‘‘manage the trust in the best interests of Treasury,
rather than the U.S. taxpayers specifically.’’ Second, as discussed
above, he believes that the trust should explicitly direct the trustees to act to maximize the value for the trust beneficiaries. Third,
he stated that the Trust Agreement might allow trustees to benefit
personally from investment opportunities that might belong to
AIG.399 All of these criticisms could be addressed in the drafting
of a trust agreement for Chrysler and GM shares.
Fewer inherent conflicts and a shorter timeframe make the need
for a trust for the Chrysler and GM shares less pressing than for
the AIG shares, but it could still provide benefits. Placing the
shares in a trust could also avoid the appearance of conflict. Even
if no direct conflict exists, a trust could prevent the use or appearance of political influence in the government’s ownership. Finally,
placing the shares in a trust could also prevent any potential violation of the GCCA.400
The differences between the current treatment of the automotive
companies and financial institutions might be due to several factors. First, Treasury potentially had greater leverage in its investment in Chrysler and General Motors than it did with the banking
industry, since the automotive companies, being extremely close to
bankruptcy, came to the federal government for assistance, while
at least most of the banks receiving TARP assistance through the
CPP have been perceived as solvent. Second, some of these alleged
differences (i.e., management changes, creditor and shareholder
treatment) were a direct result of Chrysler and GM’s Section 363
sales, which TARP recipient banks have not faced. However, the
state of many banks’ balance sheets (and their potential need to
undergo substantial balance sheet restructuring or face insolvency)
was uncertain when EESA was passed in October 2008. Finally,
these differences underscore the unique role that banks play in the
larger economy. To fix the economy, Treasury recognized the need
to repair the banking system and decided to recapitalize and shore
up the banks.401
3. GOVERNMENT AS INVESTOR: STEWARDSHIP ISSUES

Section F above sets out the amounts of taxpayers’ funds that are
at risk. Section G6 below raises serious doubts that those funds
will ever be recovered. While the ultimate goal, as the Administration recognizes, is to ensure that the companies are on a viable
path to profitability such that they may begin the process for an
IPO, the prudent course is obviously to hold the stock until an IPO
presents an opportunity to at least recoup the government’s investment, if not make some profit. There is no advantage, however, in

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399 Verret

Testimony, supra note 386.
400 The Panel takes no position as to whether the law is being violated if the shares are not
placed in a trust.
401 Henry Paulson Congressional Testimony, supra note 321. Senate Banking Committee, Testimony of Treasury Secretary Timothy Geithner, TARP Oversight, (May 20, 2009) (online at
www.treas.gov/press/releases/tg139.htm).

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rushing toward an IPO while the taxpayers’ investment is still
deeply underwater and all projections suggest that it will be a matter of years before the companies return to profitability.
In the meantime, the government must ensure that the investors—i.e., the U.S. taxpayers—are provided with adequate information to evaluate the companies’ ongoing performance. During the
Panel’s Detroit field hearing, Mr. Bloom testified that both companies will file reports with the government, which will then be disclosed to the public on a quarterly basis.402 He did not say how frequently these reports will be made to the government, except that
they would be ‘‘periodic.’’ 403 Mr. Bloom also testified that New
Chrysler and New GM will become voluntary reporting companies
and file reports with the SEC.404 These filings, he said, would
begin ‘‘shortly’’ although ‘‘not immediately.’’ 405 Neither during public testimony nor during meetings with members of the Panel or
Panel staff has Treasury stated a date on which such filings or reports will begin. It is understandable that assembling the data and
analysis that such filings require is challenging given that both
companies—in particular New GM—are large and complex and
that their creation through bankruptcy has rendered each company’s financial structure even more complex. Chrysler’s recent history as a non-filing company must also be acknowledged. However,
companies in the private sector are often required to assemble such
data and analysis on a very tight timeline. The Panel expects that
New Chrysler and New GM, which are answerable to a much wider
segment of the public than any other public company, will endeavor
to meet the same type of deadline.
It is also unclear what will be included in these reports. Mr.
Bloom testified that the first reports from New Chrysler and New
GM will not contain all of the information that an SEC filing would
typically include.406 The reports will include ‘‘traditional measures
of revenue and profitability that a normal investor would want to
know about.’’ 407 Mr. Bloom did not provide any additional information about what might be included in these reports, such as information about risks, management, major events, or any other data
that is typically required to be included in SEC filings.
In addition to information about revenues and profitability, New
Chrysler and New GM should provide the taxpayer investors with
a set of metrics by which the companies’ success can be measured,
along with periodic updates regarding progress toward those
goals.408 The companies should also disclose to what extent internal controls, that is, clearly defined processes and procedures relating to the communication of information, accountability for individual employees, etc., have been established to ensure the companies’ plans are being properly implemented and executed. To date,
neither Treasury nor either company has disclosed such information.
402 Ron

Bloom COP Testimony, supra note 36.
Bloom COP Testimony, supra note 36.
Bloom COP Testimony, supra note 36.
405 Ron Bloom COP Testimony, supra note 36.
406 Ron Bloom COP Testimony, supra note 36.
407 Ron Bloom COP Testimony, supra note 36.
408 A forthcoming GAO report, due to be made public in mid-October, will recommend the provision of such metrics.
403 Ron

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404 Ron

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Other corporate governance changes have begun with the appointment of well-qualified and independent 409 directors.410 Given
the large public investment in these companies, it may be appropriate to require even stricter guidelines than current law mandates. For example, the companies could require all of their directors to be independent, instead of only a portion of them. Board
members could be restricted from serving on the boards of other
companies, or could at least be restricted in the number or type of
other board positions they could hold. The companies could impose
term limits on board members, to ensure that no director becomes
too entrenched in the company or too close to its management. As
TARP recipients, the automotive companies are already subject to
restrictions on executive compensation 411 and would be covered by
the SEC’s recent ‘‘say-on-pay’’ proposals.412 The automotive companies could adopt their own more tailored compensation guidelines,
however, and ensure that compensation for both executives and
board members is based on clearly articulated performance criteria
and aligned to long-term performance. Board members could, for
example, be required to hold a certain amount and type of company
stock to ensure the best alignment of director and shareholder (i.e.,
taxpayer) interests.
4. GOVERNMENT INVOLVEMENT IN BANKRUPTCY PROCEEDINGS

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Bankruptcy law is intended to provide for an orderly reorganization or liquidation of failing businesses. While the various stakeholders in a failed business may generally be expected to feel
strongly about the treatment of their claims, the intensity of public
debate surrounding the Chrysler and GM reorganizations was
high. Proponents of the plan denounced bondholders holding out for
larger equity stakes in exchange for retiring their debt 413 and
409 See supra notes 71 and accompanying text. See also the recommendations regarding alignment of interests through compensation guidelines discussed in the Panel’s special report on
regulatory reform, discussed at note 372 supra.
410 See supra note 71. See also discussion of this issue supra Section B.
411 The Stimulus Bill imposed executive compensation restrictions on all TARP recipients.
American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111–5, § 7001. Treasury announced in February that companies receiving subsequent TARP assistance would be subject to
certain limitations on executive compensation including, most notably, a $500,000 cap on executive annual salaries; any compensation above this amount would have to be made in the form
of restricted stock. U.S. Department of the Treasury, Treasury Announces New Restrictions on
Executive Compensation (Feb. 4, 2009) (online at www.financialstability.gov/ latest/tg15.html)
(hereinafter ‘‘Treasury Executive Compensation Statement’’). If the new automobile companies
are to provide SEC-style disclosures, these disclosures would presumably include Compensation
Discussion and Analysis (CD&A), which provides information about and the rationale behind
the process by which executive compensation is determined.
412 The proposed ‘‘say-on-pay’’ regulations would require public companies to subject decisions
regarding executive compensation to a non-binding shareholder vote. Securities Exchange Commission, Shareholder Approval of Executive Compensation of TARP Recipients, Release No. 34–
60218 (July 1, 2009) (online at www.sec.gov/ rules/ proposed/ 2009/34–60218.pdf) (hereinafter
‘‘SEC Release No. 34–60218’’).
413 See, e.g., Felix Salmon, Time for Chrysler’s bondholders to man up and move on, Reuters
(May 4, 2009) (online at blogs.reuters.com/ felix-salmon/2009/05/04/ time-for-chryslers- bondholders-to-man-up- and-move-on/) (hereinafter ‘‘Felix Salmon May 4 Reuters Report); Executive
Office of the President, Remarks by Lawrence H. Summers at the 2009 National Conference of
the Council on Foreign Relations, at 4 (June 12, 2009) (online at www.cfr.org/publication/ 19618/
preparedllremarksllbyll lawrencellhll summerslldirectorll ofllthell nationallleconomicll council.html? breadcrumb= %2Fbios%2F1001%2 Flawrencellhll
summers) (hereinafter ‘‘Lawrence Summers Council on Foreign Relations Remarks’’) (‘‘There is
nothing at all remarkable about the way in which finance was provided during the Chrysler
or General Motors transactions.’’); Floyd Norris, Why Chrysler’s Bondholders Should Stop WhinContinued

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President Obama declared, ‘‘[the holdout bondholders] were hoping
that everybody else would make sacrifices, and they would have to
make none. Some demanded twice the return that other lenders
were getting. I don’t stand with them.’’ 414 One disclosed e-mail allegedly reveals a Task Force member angrily asking, ‘‘You’re telling
me to bend over to a terrorist like Lauria [the lead attorney for
Chrysler bondholders]?’’ 415 Representative John Carter (R–TX)
noted on the House floor that according to Thomas Lauria, ‘‘Perella
Weinberg Partners was directly threatened by the White House
and, in essence, compelled to withdraw its opposition to the Obama
Chrysler restructuring deal under the threat that the full force of
the White House press corps would destroy its reputation if it continued to fight.’’ 416 Recalcitrant bondholders and their supporters
struck back, alleging that the ‘‘government is penalizing people
. . . for having funded [their] retirement with . . . bonds’’ and that
bondholders, especially small bondholders, were ‘‘being ignored in
negotiations and singled out to bear the greatest share of the cost
of restructuring.’’ 417 Others noted how the ‘‘mauling of GM creditors tells investors not to invest in TARP banks because everything
this Treasury touches turns to politics.’’ 418
The rhetoric in the legal debate is perhaps more tempered but
positions are just as strongly held. The Panel does not second guess
court decisions and this report is not a law review article, but the
extensive involvement of Treasury in structuring 419 and defending
the two transactions throughout the bankruptcy process, and the
impact of the court decisions on the financial markets, requires
that the Panel inquire into the legal issues involved.
There remains an ongoing challenge to the Chrysler bankruptcy.
Both the Chrysler and GM 363 sales were approved by the respective courts,420 and on appeal the Second Circuit affirmed the
Chrysler opinion.421 The Supreme Court did not 422 intervene in
the Chrysler bankruptcy. However, on September 3, 2009, the Indiana Pension Funds filed a petition for certiorari to the Supreme
ing, New York Times (May 1, 2009) (online at www.nytimes.com/2009/05/02/business/
02norris.html?dlbk) (hereinafter ‘‘Floyd Norris May 1 New York Times Report’’).
414 White House April 30 Remarks on Auto Industry, supra note 111.
415 Neil King Jr. and Jeffrey McCracken, US Pushed Fiat Deal on Chrysler, Wall Street Journal (June 6, 2009) (online at online.wsj.com/ article/ SB124424451815990495.html) (hereinafter
‘‘Neil King Jr. and Jeffrey McCracken June 6 Wall Street Journal Report’’). See especially
emails between Task Force officials and Chrysler legal counsel posted with article.
416 Congressional Record, Statement of Representative John Carter (R–TX), H5086 (May 4,
2009) (hereinafter ‘‘Representative Carter May 4 Statement’’).
417 Dennis Buchholtz, GM Bondholders Are People Like You and Me, Wall Street Journal (oped), (May 27, 2009) (online at online.wsj.com/ article/ SB124338330278956585.html) (hereinafter
‘‘Buchholtz May 27 WSJ Op-Ed’’) ; see also Statement from Non-TARP Lenders of Chrysler, Wall
Street Journal (Apr. 30, 2009) (online at blogs.wsj.com/ deals/ 2009/ 04/ 30/ statement- from-nontarp- lenders-of-chrysler/) (hereinafter ‘‘Statement from Non-TARP Chrysler Lenders’’).
418 Gettelfinger Motors, Wall Street Journal (May 4, 2009) (online at online.wsj.com/ article/
SB124105303238271343.html) (hereinafter ‘‘WSJ May 4 Report’’).
419 See Sections B and D of this report.
420 In re Chrysler LLC, et al., 405 B.R. 84 (Bankr. S.D.N.Y. 2009) and In re GMC, 407 B.R.
463 (Bankr. S.D.N.Y. 2009).
421 Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).
422 The Supreme Court issued a temporary stay of the bankruptcy court’s sale order pending
appeal. Shortly thereafter, the Court removed the stay, noting that the appellants failed to meet
their burden of showing that the delay was justified. However, the Court noted that the ‘‘denial
of stay is not a decision on the merits of the underlying legal issues.’’ Indiana State Police Pension Trust, et al v. Chrysler LLC, et al, 129 S. Ct. 2275 (2009).

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Court to appeal the Second Circuit’s decision. As of the date of this
Report, it is unknown whether the Court will grant cert.423
The two cases have nonetheless attracted both both criticism and
support among leading academics. The issues center on the use of
the 363 sale in the auto bankruptcies.424 It would be misleading to
suggest that there are only two sides to the academic debate surrounding the Chrysler and GM bankruptcies, but academics generally agree on certain points. Scholars acknowledge that 363 sales
had been used to resolve Chapter 11 cases long before the recent
Chrysler and GM bankruptcies and that such sales have grown increasingly popular in the last few years.425 Scholars also agree that
the Code does not restrict the manner in which post-petition financing is used, including distributions made to certain creditors.
Moreover, no academic disagrees that the government’s additional
loans of approximately $4.96 billion to Chrysler on April 29, 2009
and $30.1 billion to GM on June 3, 2009 constituted post-petition
financing.
Instead, the debate among academics focuses more narrowly on
the way in which the 363 sale was structured and the impact of
the sale on GM’s and Chrysler’s prepetition creditors. In Chrysler,426 the United States Bankruptcy Court for the Southern District of New York reviewed the 363 sale procedures. Relying on the
Lionel case,427 the bankruptcy court noted that the Second Circuit
rejected a literal interpretation of Section 363, which would impose
no limitations on the sale of estate assets, reasoning that such an
interpretation would undermine ‘‘the congressional scheme’’ established for corporate reorganization.428 The bankruptcy court also
observed in Lionel the policy issues involved in balancing the debtor’s ability to sell assets and a creditor’s right to an informed vote
on confirmation of a plan. Noting that the Lionel court held there
must be some articulated business justification for a sale of property outside the normal course of business,429 the bankruptcy court

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423 See

supra note 55.
424 In both the Chrysler and GM cases, parties argued that the Secretary of Treasury exceeded
his statutory authority and violated the Constitution by using TARP money to finance the transactions. In each case, the presiding court held that the objectors lacked standing to raise this
issue or that the issue was moot. For more in depth discussion, see Section G(1)(b) of this report.
425 See, generally, What’s Good For General Motors, supra note 258 at 10, where, referring
to the use of Section 363, Professor Adler writes, ‘‘bankruptcy courts have increasingly, and usefully conducted all asset sales.’’ See also Assessing the Chrysler Bankruptcy, supra note 240,
where Professors Roe and Skeel note that (‘‘in time courts became more comfortable with [363
sales], partly because it makes sense for a failing business, partly because the general merger
market deepened and thickened in the 1980s. Such sales became frequent in Chapter 11.’’).
426 In re Chrysler LLC, et al., 405 B.R. 84 (Bankr. S.D.N.Y. 2009).
427 In re Lionel Corp., 722 F.2d 1063 (2d Cir. 1983) (finding that a bankruptcy judge must
have substantial freedom to tailor his orders to meet differing circumstances and concluding
there has to be some articulated business justification for the use, sale or lease of property outside the ordinary course of business).
428 In re Chrysler LLC, et al., 405 B.R. 84, 94 (Bankr. S.D.N.Y. 2009).
429 The GM court lists seven factors the Lionel court provided to determine whether a good
business reason exists. The GM court adds four more factors in its opinion that are also to be
taken into consideration. ‘‘In making the determination as to whether there is a good business
reason to effect a 363 sale before confirmation, the Lionel court directed that a court should consider all of the ‘salient factors pertaining to the proceeding’ and ‘act to further the diverse interests of the debtor, creditors and equity holders.’ It then set forth a nonexclusive list to guide
a court in its consideration of the issue: (1) the proportionate value of the asset to the estate
as a whole; (2) the amount of elapsed time since the filing; (3) the likelihood that a plan of reorganization will be proposed and confirmed in the near future; (4) the effect of the proposed disposition on future plans of reorganization; (5) the proceeds to be obtained from the disposition
vis-a-vis any appraisals of the property; (6) which of the alternatives of use, sale or lease the
proposal envisions; and ‘most importantly perhaps,’ (7) whether the asset is increasing or deContinued

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found that the proposed sale of assets to an entity sponsored by
Fiat was necessary to preserve the value of Chrysler’s business and
maximize the value of the bankruptcy estate.
In examining whether the Fiat sale was a sub rosa plan of reorganization, or a plan that violated bankruptcy’s priority rules, the
bankruptcy court focused on the fact that the bankruptcy estate received fair value for the assets being sold. The bankruptcy court
also noted that the $2 billion paid by New Chrysler for the assets
would be distributed entirely to the secured creditors, thus creating
a bigger payout for these creditors than they would receive in liquidation. The bankruptcy court recognized that some creditors of
the prepetition debtor (Old Chrysler), specifically the UAW Trust
and the UAW, entered into agreements with the buyer of the assets
(New Chrysler), and these creditors received ownership interests in
the buyer (New Chrysler). Nonetheless, the bankruptcy court concluded that this fact did not ‘‘transform a sale of assets into a sub
rosa plan’’ 430 because neither the UAW Trust nor the UAW received any distributions on account of their prepetition claims. Instead, these payments and ownership interests were the result of
negotiations with the buyers (New Chrysler). The bankruptcy court
observed:
In negotiating with those groups essential to its viability, New Chrysler made certain agreements and provided
ownership interests in the new entity, which was neither
a diversion of value from the Debtors’ assets nor an allocation of the proceeds from the sale of the Debtors’ assets.
The allocation of ownership interests in the new enterprise
is irrelevant to the estates’ economic interests.431
On appeal, the Second Circuit Court of Appeals adopted the
bankruptcy court’s reasoning and affirmed the lower court’s ruling.
The appellate court reiterated that Lionel does not require an
‘‘emergency’’ to justify a 363 sale, but merely requires that a court
find there is a ‘‘good business reason.’’ The appellate court agreed
with the bankruptcy court that the 363 sale did not constitute a
sub rosa plan. It also agreed that the transaction was consistent
with creditor priority rules because all equity stakes in New Chrysler were entirely attributable to new value, including government
loans, new technology contributed by Fiat, and new management—
none of which were assets of the debtor’s bankruptcy estate.432
The Second Circuit rejected appellants’ argument that the 363
sale violates the Code by impermissibly subordinating appellants’
interests as secured lenders on the ground that they lacked standing to make such objection. On this point, the Chrysler bankruptcy
contains a twist that makes the bankruptcy ruling more comcreasing in value. As the Lionel court expressly stated that the list of salient factors was not
exclusive, this Court might suggest a few more factors that might be considered, along with the
preceding factors, in appropriate cases: (8) Does the estate have the liquidity to survive until
confirmation of a plan?; (9) Will the sale opportunity still exist as of the time of plan confirmation?; (10) If not, how likely is it that there will be a satisfactory alternative sale opportunity,
or a stand-alone plan alternative that is equally desirable (or better) for creditors?; and (11) Is
there a material risk that by deferring the sale, the patient will die on the operating table?’’
In re GMC, 407 B.R. 463, 490 (Bankr. S.D.N.Y. 2009).
430 In re Chrysler LLC, et al., 405 B.R. 84, 99 (Bankr. S.D.N.Y. 2009).
431 In re Chrysler LLC, et al., 405 B.R. 84, 99 (Bankr. S.D.N.Y. 2009).
432 Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).

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plicated to follow. The appellate court noted that long before the
Chrysler bankruptcy, the appellants and the other first lien-holders
had agreed by contract that, in the event of bankruptcy, an agent
could be authorized to act on their behalf at the request of lenders
holding a majority of Chrysler’s debt. By the terms of the agreement, any action taken by the agent is binding on all lenders, including those in disagreement.433 After Chrysler filed for bankruptcy, the majority of first lien-holders authorized the agent to
act,434 and the agent subsequently consented to the sale under Section 363(f)(2).435 Because the consent was binding on appellants as
per their credit agreement, the appellate court found that they
lacked standing to make this objection. Appellants asserted that
the majority of lenders were bullied into approving the sale, but
they could produce no evidence to support the claim. As a result,
the Second Circuit dismissed this allegation.
The General Motors bankruptcy court followed the Second Circuit appellate court in holding that a 363 sale was appropriate in
that case.436 The cases were similar in many respects, including
the assertion that a quick sale would maximize the amount to be
received by the bankruptcy estate. A major practical difference between the two cases, however, is that the assets of the debtor (Old
GM) were sufficient that its secured creditors could be paid in full,
which eliminated many of the objections that had been raised in
Chrysler. Again, the court focused on the difference between the
amount that creditors of Old GM would receive in liquidation and
the higher amount that the bankruptcy estate would receive by
reason of the sale. Evercore, GM’s financial advisor, issued a fairness opinion that concluded that the purchase price was fair to GM
from a financial point of view and the court stated that no contrary
evidence was submitted. The court noted that Section 363 imposed
no limits on the proportion of the debtor’s estate that could be sold
under that section. ‘‘If . . . the transaction has ‘a proper business
justification’ which has the potential to lead toward confirmation of
a plan and is not to evade the plan confirmation process, the transaction may be authorized.’’ 437 The court specifically noted that all
or substantially all the debtor’s assets may be sold in a 363 sale.
The court found that a proper business justification existed in the
GM case. As in the Chrysler case, the court found that there was
no sub rosa plan arising from the fact that contracts with certain
creditors of the debtor (Old GM) were assumed by the buyer (New
GM) or that some creditors received ownership interests in the
buyer (New GM). Once again, the court found that the dealings
with the buyer (New GM) were part of the post-bankruptcy negotiations that were designed to promote the survival of the business.
The court observed:
433 Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).
434 Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).
435 ‘‘The trustee may sell property . . . free and clear of any interest in such property of an
entity other than the estate, only if—such entity consents.’’ 11 U.S.C. § 363(f)(2).
436 Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).
437 In re GMC, 407 B.R. 463, 491 (Bankr. S.D.N.Y. 2009).

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The Court senses a disappointment on the part of dissenting bondholders that the Purchaser did not choose to
deliver consideration to them in any manner other than by
the Purchaser’s delivery of consideration to GM as a
whole, pursuant to which bondholders would share like
other unsecured creditors—while many supplier creditors
would have their agreements assumed and assigned, and
new GM would enter into new agreements with the UAW
and the majority of dealers. But that does not rise to the
level of establishing a sub rosa plan. The objectors’ real
problem is with the decisions of the Purchaser, not with
the Debtor, nor with any violation of the Code or
caselaw.438
Professor Adler contends that the sale in Chrysler was irregular
and inconsistent with the principles that undergird the Code. He
notes that assets can under appropriate circumstances be sold ‘‘free
and clear’’ in a 363 sale, but that in Chrysler, the buyer (‘‘New
Chrysler’’) took the assets subject to specified obligations to the
UAW Trust. He argues that if such obligations had not been a part
of the sale, then the price for the assets might have been higher.
Money that might otherwise have been available to repay secured
creditors may thus have been withheld, in Professor Adler’s view,
by the purchaser in order to satisfy obligations to the UAW, with
the result being that the purported sale was also a distribution of
the sale proceeds seemingly inconsistent with contractual priority
among the creditors. Professor Adler does not dispute that 363
sales are a common and effective means of resolving Chapter 11 reorganizations,439 but he does argue that the Chrysler sale in particular was conducted in a manner inconsistent with the Code.
In response to the assertion that the bondholders received more
than they would in liquidation, Professor Adler states that the nature of the process meant that the issue of whether the secured
bondholders received the return that was due to them cannot be
known: there was no market test because of the short amount of
time permitted for the Section 363 bid and the unusual requirement in the bidding procedures that the purchaser assume the obligations to the UAW Trust.440 The bankruptcy court’s approval of
the 363 sale meant that the rules governing more traditional bankruptcies that involve the confirmation of a reorganization plan did
not apply.441
Professor Adler argues that the bidding process in the GM bankruptcy, following the blueprint of the Chrysler bankruptcy, also did
not allow for a true market valuation. As in the Chrysler case, the
court required that any bidders, absent special exemption, must assume liabilities to the UAW as a condition of purchase. Professor
Adler differentiates the two cases on the grounds that in GM there
was no dissent by holders of the senior secured debt, much of
438 In

re GMC, 407 B.R. 463, 496 (Bankr. S.D.N.Y. 2009).
Good For General Motors, supra note 258 at 9–10 (Sept. 1, 2009) (‘‘So long as a
sale of a firm’s assets is subject to a true market test, a sale may be the best and most efficient
way to dispose of an insolvent debtor. Indeed, bankruptcy courts have increasingly and usefully
conducted all-asset-sales. The key is to ensure a true market test. . . .’’).
440 Professors Roe and Skeel also adopt this opinion in their paper. Assessing the Chrysler
Bankruptcy, supra note 240.
441 See, generally, Section (C)(1)(b) of this report.

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which belonged to the U.S. and Canadian governments. He argues
that even though this made approval easier, the decision still set
a dangerous legal precedent.442
Professor Adler does not object to the eventual outcome of either
transaction 443 as much as the fact that the process used does not
make it clear whether the creditors were equitably treated.444 He
suggests a change to the Code to provide that Section 363 could not
be used to sell all or substantially all of a debtor’s assets on condition that the purchaser assume or pay some but not all of the
claims of prepetition creditors; he would also have the bankruptcy
law require that such a sale comply with applicable state law.445
Professors Roe and Skeel assert that the 363 sale in Chrysler
amounted to a sub rosa plan, in that it allocated billions of dollars
without the checks that a plan of reorganization requires.446 They
argue that the appellate courts have developed a strong set of
standards for 363 sales, applying makeshift remedies to compensate for the fact that Section 363 does not provide for the procedural safeguards embodied in Section 1129.447 They argue that the
safeguards are particularly important if the transaction appears to
be a sub rosa plan, determining critical Section 1129 features; and
if the plan does determine critical Section 1129 features, such as
judicial valuation, creditor consent, and an auction, it can only do
so if the court fashions a makeshift safeguard.448 There was no
such safeguard in the Chrysler case, they argue, and Section 1129
was hardly mentioned.449 Similar to Professor Adler’s views discussed above, Professors Roe and Skeel contend that the bidding
process was flawed because it prevented a fair valuation of the
company. They conclude that the Chrysler bankruptcy does not
comply with good bankruptcy practice.

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442 What’s

Good For General Motors, supra note 258, at 7–8.
443 Professor Adler stated, ‘‘[M]y criticism is not with the sale. It is with the restrictions on
the sale.’’ Congressional Oversight Panel, Testimony of Charles Seligson Professor at New York
University School of Law Barry E. Adler, at 124 (July 27, 2009) (hereinafter ‘‘Barry Adler COP
Testimony’’).
444 Douglas Baird, the Harry A. Bigelow Distinguished Service Professor at the University of
Chicago Law School, testified on Automotive Industry bankruptcies in front of the U.S. House
of Representatives Subcommittee on Commercial and Administrative Law Committee on the Judiciary. Baird testified that he believed the bankruptcy process was flawed and that Chrysler
and GM decisions set potentially dangerous precedents. However, he also stated that government intervention and an aggressive use of the bankruptcy code was necessary to minimize the
cost to the taxpayer of keeping those companies alive. House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law, Testimony of Harry A. Bigelow Distinguished Service Professor at University of Chicago Law School Douglas Baird, Ramifications of
Auto Industry Bankruptcies, Part III (July 22, 2009) (judiciary.house.gov/ hearings/pdf/
Baird090722.pdf) (hereinafter ‘‘Douglas Baird Congressional Testimony’’).
445 What’s Good For General Motors, supra note 258 at 9–11.
446 Assessing the Chrysler Bankruptcy, supra note 240.
447 Section (C)(1)(b) of this report.
448 Professor Lubben notes that while all circuits developed safeguards to prevent sub rosa
plans, the precise safeguards vary by circuit. For example, ‘‘in the second circuit the rule seems
to be a subpart of that jurisdiction’s larger requirement that a pre-plan sale be supported by
a good business justification.’’ While the Fifth Circuit requires ‘‘pre-plans to comply with the
Bankruptcy Code’s rules for plan confirmation.’’ He notes that the Second Circuit has expressly
rejected this approach. No Big Deal: The Chrysler and GM Cases in Context, supra note 235.
449 The Second Circuit addresses some of these ‘‘safeguards’’ and finds them to be present in
the Chrysler transaction. For instance, the court found that ‘‘to preserve resources’’ and because
the ‘‘business was hemorrhaging cash,’’ was a valid business reason justifying the expedient sale
under 363. The court also found that the plan did not constitute a sub rosa plan because ‘‘all
equity stakes in New Chrysler were entirely attributable to new value . . . ’’ Moreover, in determining that secured creditor’s rights were not infringed upon under section 1129, the court finds
that the parties lack standing to raise such issue because the furnished consent under an agency
theory. Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).

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Professor Lubben, who furnished a paper titled No Big Deal: The
Chrysler and GM Cases in Context, which appears at Annex B 450
of this report, and gave testimony at the Panel’s Detroit field hearing,451 takes a practical view of the reorganizations. Commenting
on the arguments of academics speaking against the automotive
bankruptcy cases, he asserts that their arguments ‘‘are not bankruptcy arguments but rather rhetorical arguments.’’ 452 Professor
Lubben points out that liquidation was the only practical alternative to the Section 363 sales in both cases because no financer
other than the federal government would have stepped forward.
Moreover, in the event of liquidation, the recovery received by
creditors by reason of the sale would clearly be less than what they
received as a result of the sale. Professor Lubben is of the opinion
that neither the use of Section 363 to sell substantially all Chrysler
and GM’s assets nor the speed by which the 363 sales were executed was unusual. He details the many bankruptcy proceedings
that have used this structure, which has been employed with increasing frequency since the mid 1990s.453 Professor Lubben concludes, ‘‘Congress may well decide, as a matter of policy, that this
should end, but until it does, there is little to the idea that these
cases are ‘unprecedented’ in their structure. The identity of the
DIP lender is novel, but what happened is routine. And the identity
of the lender is not a bankruptcy issue.’’ 454
Two courts have reviewed the 363 sale. Although the objections
to the sale were vigorously argued by the creditors, the courts specifically determined that there was no factual basis for concluding
either that the sales were defective or that they constituted a sub
rosa plan of reorganization that deprived the creditors of their
Chapter 11 protections. While a number of bankruptcy commentators agree with Professor Adler that the bankruptcy laws regarding
363 sales should be amended, few have criticized either the factual
findings of the bankruptcy court or the application of current law
to those facts.
The bankruptcy court addressed the bidding process issues
raised by Professor Adler in its opinion. The court noted Chrysler’s
inability to find a company to merge with after an extensive twoyear search and concluded that the Fiat transaction in addition to
government protection was an ‘‘opportunity that the marketplace
alone could not offer.’’ 455 Capstone’s Executive Director provided
expert valuation testimony, which was not rebutted, and indicated
the $2 billion Chrysler’s first lien creditors would receive following
the sale exceeded the value they would recover in immediate liquidation.456 Moreover, the value of the company continued to decrease because it was burning through cash, thus further reducing
the value creditors would collect as time went on.457 Lastly, the

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450 No

Big Deal: The Chrysler and GM Cases in Context, supra note 235.
451 Congressional Oversight Panel, Testimony of Daniel J. Moore Professor of Law at Seton
Hall University School of Law Stephen J. Lubben (July 27, 2009).
452 No Big Deal: The Chrysler and GM Cases in Context, supra note 235.
453 Stephen Lubben COP Testimony, supra note 451 at appendix A.
454 No Big Deal: The Chrysler and GM Cases in Context, supra note 235 at 3.
455 In re Chrysler LLC, et al., 405 B.R. 84, 96 (Bankr. S.D.N.Y. 2009). No restrictions were
placed on the sale of Chrysler’s assets during the two year period it was marketed prior to filing
for bankruptcy, whereas under the the 363 sale, New Chrylser assumed particular liaibities of
Old Chrysler.
456 In re Chrysler LLC, et al., 405 B.R. 84, 97 (Bankr. S.D.N.Y. 2009).
457 In re Chrysler LLC, et al., 405 B.R. 84, 97 (Bankr. S.D.N.Y. 2009).

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court states that the first lien credit holders 458 could have refused
to consent to the sale or could have credit bid instead of agreeing
to take cash, without directly mentioning the objections of the minority first lien holders.459
There was a specific finding of fact in the bankruptcy court that,
according to the court, permitted bids to be made without restrictions, which differs from the conclusion advanced by Professor
Adler.460 In the bankruptcy court’s Bidding Procedures Order, ‘‘language was added to indicate that a ‘Qualified Bid’ included not only
bids that met the previously set forth requirements but, in addition, any bid that after consultation with the Creditor’s Committee,
Treasury and the UAW, [was] determined by the Debtors in the exercise of their fiduciary duties to be a Qualified Bid.’ ’’ 461 According
to the bankruptcy court, the procedures adopted were adequate to
‘‘encourage’’ any sophisticated party to bid on the Chrysler assets.462 This means that the issue of bidding procedures was fully
presented to the court and argued by the parties. The Panel has
no access to information that was not presented to the court and
no basis for concluding that the courts’ factual findings were
wrong.
The Second Circuit did not discuss the bidding procedures in its
opinion. In laying out the facts, the opinion briefly states that the
bankruptcy court approved the bidding procedures and, apart from
New Chrysler, no other bids were forthcoming.463 The Indiana Pensioners appealed the bankruptcy courts’ conclusion to the Second
Circuit, but that court, with the full record before it, did not sustain any such objection.
Other commentators have moved past the legal analysis to the
political and policy implications of the automobile bankruptcies,
dubbing the auto bankruptcies as ‘‘Obama’s Orwellian interventions.’’ 464 They are particularly disturbed by what they see as the
Administration’s arm-twisting of Chrysler’s TARP creditors and
what they claim is a violation of the absolute priority rule to save
the politically favorable union and its pension.465 In their view, the
‘‘sham sale’’ of Chrysler, even if not per se unconstitutional, violates at least the spirit of the Takings 466 and Contracts 467 Clauses
of the United States Constitution. As they see it, the Administration’s interference may be ineffectual in the long-run; although
‘‘Obama may have helped save the jobs of thousands of union workers whose dues, in part, engineered his election,’’ the Administra458 These lenders included receipients of TARP money, as discussed in Section (C)(1) of this
report.
459 In re Chrysler LLC, et al., 405 B.R. 84, 98 (Bankr. S.D.N.Y. 2009).
460 In re Chrysler LLC, et al., 405 B.R. 84, 108–09 (Bankr. S.D.N.Y. 2009).
461 In re Chrysler LLC, et al., 405 B.R. 84, 109 (Bankr. S.D.N.Y. 2009).
462 In re Chrysler LLC, et al., 405 B.R. 84, 109 (Bankr. S.D.N.Y. 2009).
463 Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766
(2d Cir. Aug. 5, 2009).
464 Richard A. Epstein, The Deadly Sins of the Chrysler Bankruptcy, Wall Street Journal (May
11, 2009) (online at www.forbes.com/ 2009/05/11/chrysler- bankruptcy-mortgage- opinionscolumnists- epstein.html) (‘‘Richard Epstein May 11 Wall Street Journal Op-Ed’’).
465 Id.; see also Peter Morici, Treasury Prepares for Chrysler Bankruptcy, FinFacts (Apr. 24,
2009) (online at www.finfacts.com/ irishfinancenews/ articlell1016519.shtml) (hereinafter
‘‘Treasury Prepares for Chrysler Bankruptcy’’).
466 Richard Epstein May 11 Wall Street Journal Op-Ed supra note 464.
467 Todd J. Zywicki, Chrysler and the Rule of Law, Wall Street Journal (May 13, 2009) (online
at online.wsj.com/ article/ SB124217356836613091.html) (hereinafter ‘‘Chrysler and the Rule of
Law’’).

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tion has instigated an ‘‘untold number of job losses in the future
caused by trampling the sanctity of contracts today.’’ 468 The current Administration, however, is not alone to blame in their opinion; rather, ‘‘long ago Chrysler and GM should have been allowed
to bleed to death under ordinary bankruptcy rules, without government subsidy or penalty.’’ 469
The Panel agrees with commentators on all sides of the political
spectrum that whether the government should have moved to rescue the automotive industry is a policy question with wide-reaching
implications. However, the Second Circuit Court of Appeals held
that the legal issues were correctly decided, and the Panel has no
evidence to the contrary.
5. THE ROLE PLAYED BY TREASURY AND TRANSPARENCY WITH
RESPECT TO THAT ROLE

This section assesses the transparency of Treasury’s decisionmaking and evaluates its performance during its involvement with
the automotive industry, keeping in mind its stated objectives with
respect to these TARP investments, as discussed above in Section
D.
In many respects, Treasury has presented its plans and decisions
with respect to its TARP investments in Chrysler and General Motors on a prompt and regular basis. Mr. Bloom has recently testified before House and Senate congressional committees as well as
the Panel, and various documents (e.g., loan agreements, program
guidelines) were released concerning particular aspects of Treasury’s investments. Given the gravity of the challenges and issues
that Treasury has faced during the financial crisis, the Panel recognizes Treasury’s attempts to keep the public informed as to the decisions it has made.
The Panel does question, however, some aspects of Treasury’s
transparency with respect to the process. Treasury has failed to follow a consistent and cohesive message with respect to its rationale
for extending TARP to the automotive industry and its stated objectives in doing so. Treasury’s intervention in the automotive industry could be attributed to one of (or a combination of) three
broad policy objectives: (1) the prevention of a systemic threat to
the U.S. financial markets and broader economy; (2) the advancement of social policy (such as tempering the impact of unemployment, environmental improvement, or provision of retirement benefits); or (3) the maintenance of a viable American automotive presence in the United States. At varying times, Treasury’s public
statements have addressed the merits of each of these objectives
and their benefits to the overall economy; however, it is unclear
which objective, or combination thereof, Treasury deems most important—or if all three carry equal weight.470 As such, in the ab468 Id.

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469 Richard

Epstein May 11 Wall Street Journal Op-Ed supra note 464.
470 See, for example, U.S. Department of Treasury, Remarks by Interim Assistant U.S. Secretary for Financial Stability Neel Kashkari at the Brookings Institution (Jan. 8, 2009) (online
at www.financialstability.gov/ latest/ hp1347.html) (hereinafter ‘‘Neel Kashkari Brookings Institute Remarks’’) (‘‘Treasury was forced to act to prevent a significant disruption of the automotive
industry that would pose a systemic risk to financial markets and negatively affect the real
economy.’’); Congressional Oversight Panel, Testimony of Assistant U.S. Secretary of the Treasury for Financial Stability Herbert Allison, at 53 (June 24, 2009) (online at cop.senate.gov/
documents/ testimony-062409- allison.pdf) (hereinafter ‘‘Herb Allison COP Testimony’’) (‘‘What

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sence of a clearly articulated unifying strategy, it is difficult for
outside observers to determine which metrics are the best indicators of Treasury’s performance.
The Panel recognizes that thorough diligence was conducted by
Treasury in evaluating each company’s viability plan. In his speech
on the automotive industry on March 30, President Obama noted
that ‘‘after careful analysis [of the Chrysler and GM initial viability
plans submitted on February 17], we’ve determined that neither
[automotive company] goes far enough to warrant the substantial
new investments that these companies are requesting.’’ 471 The
Panel requested access to certain documents from Treasury in
order to determine the scope of the Treasury’s due diligence and
evaluations of Chrysler and GM’s viability plans. The information
shared with the Panel includes Treasury’s assessment of the viability plans submitted by Chrysler and GM and the evaluation of the
long-term economic viability of both companies as prepared by
Treasury and its financial advisors. On the basis of the information
that Treasury provided to the Panel, it appears they conducted extensive and thorough due diligence on the viability plans, asked the
companies to consider other variables, criticized the companies’
plans, and questioned their assumptions. The materials shared
with the Panel also support Mr. Bloom’s statements that Treasury
used its own assumptions to conduct stress tests on these plans,
looked at a variety of scenarios in order to formulate cash flow capability and the likely earnings capacity of the companies, challenged the companies to look forward, and created models of ‘‘potential enterprise value.’’ 472 The scope and parameters of Treasury’s review of these initial viability plans seem appropriate for the
role Treasury found itself in—as a potential investor of taxpayers’
money.
Nonetheless, while Treasury’s diligence was detailed and thorough (and recognizing the difficulty posed by releasing sensitive
corporate information), this does not mean that Treasury has been
transparent and accountable during the process. Congress, and ultimately the American taxpayer, have been ‘‘left in the dark’’ 473
we’re trying to do is to allow the automobile industry and encourage the automobile industry
to restructure so that it is again a highly-competitive sector of our economy and can grow and
create more jobs over time . . .’’); Ron Bloom COP Testimony, supra note 36 at 34 (‘‘[T]he administration and the prior administration believe that the centrality of the automobile industry
to the broader economy justified this intervention.’’).
471 March 30 Presidential Remarks, supra note 91.
472 Ron Bloom Senate Testimony, supra note 170 at 11–12.
473 At the July 21, 2009 House Judiciary Subcommittee on Commercial and Administration
Hearing on the Ramifications of Automotive Industry Bankruptcies, Part II, Representative Dan
Maffei (D–NY) stated that ‘‘the Congress and the American public were left in the dark as to
how the task force, then led by Steven Rattner, reached its conclusion and I think that is the
underlying problem. There simply has not been very good communication between the president’s Task Force and Congress. The decisions were implemented without the auto manufacturers or the task force presenting evidence publicly or even privately to Congress that some aspects of this reorganization would actually benefit the automotive companies financially.’’ At the
same hearing, Representative Bill Delahunt (D–MA) also noted that ‘‘[t]here have been significant complaints about transparency’’ and that ‘‘everyone is entitled to a full explanation of the
rationale for decisions that are made.’’ Furthermore, as Senator Mike Johanns (R–NE) noted
at the June 10, 2009 Senate Banking Committee Hearing on the State of the Domestic Automobile Industry, ‘‘Hard decisions are best made in a transparent sort of way. For Congress to
wake up like the rest of the American public on Monday and find that, over the weekend, we
had bought General Motors, with all of the problems associated with it, is really outrageous,
really outrageous.’’ Such concerns led the House Financial Services Committee to approve a resolution on July 17, 2009 seeking information from the Task Force regarding major decisions
made on the Chrysler and GM restructurings, including its decisions to extend bankruptcy fiContinued

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concerning the details of Treasury’s review process and its methodology and metrics at a time when Treasury committed additional
TARP funds to these companies. Treasury failed to disclose to the
public both the factors and criteria it used in its viability assessments, the scope of outside involvement in its evaluations, and its
basis and reasoning for selecting particular benchmarks. Simply,
its disclosures did not go far enough. This is especially unfortunate
given Treasury’s apparent commitment to ‘‘ensure thorough transparency and accountability for [its] actions.’’ 474 Without an open
process, attempts by policymakers and the general public to objectively assess AIFP as well as New Chrysler and New GM’s performance and progress are substantially impeded. Even after the
Panel’s review of documents from Treasury, some questions remain, including:
• What happens if New Chrysler and New GM fail to live up to
the Treasury auto team’s expectations? More specifically, if the
companies do not begin to produce automobiles that will compete
in the marketplace, what is Treasury’s role at that point as the investor of taxpayers’ money in these enterprises?
• What is the likelihood that the private sector will lend to, or
do business with, these companies, particularly while Treasury retains an ownership interest in them? What were the predictions
that the Treasury auto team relied on?
• What possible exit strategies did Treasury evaluate before
making its investments?
Just as risk is an important variable to examine when making
an investment, so too is the establishment of a feasible strategy for
the disposition of an ownership position. While it is part of this
Panel’s responsibility to inquire as to how and when Treasury
plans to unwind its ownership stakes in Chrysler and GM and return the money to the taxpayers where it properly belongs, Treasury has avoided sufficient public disclosure regarding its exit strategy for the investment in the automobile industry.475 Officials have
maintained the position that Treasury will dispose of its ownership
stake in Chrysler and General Motors ‘‘as soon as is practicable.’’
However, the meaning of ‘‘practicable’’ has yet to be defined, and
it remains unclear whether Treasury is unwilling or simply unable
to define specifically the timetable and method for ending its ownership position in the automobile industry. The elusive nature of
this issue is typified in a recent statement by Mr. Bloom: ‘‘The definition of ‘practicable’ is a bit like ‘pornography,’ though; we’ll know
it when we see it.’’ 476 While Treasury has stated its intent to sell
its ownership stakes ‘‘as soon as practicable,’’ Senator Lamar Alexander (R–TN), noted that Fritz Henderson, president and chief executive officer of New GM, told Senators and Congressmen in a
telephone call on June 1, 2009 that while it is Treasury’s decision,
nancing to both companies, Treasury’s assumption of equity stakes, and decisions on debt reduction. While the House Financial Services Committee voted unanimously to send its request to
the full House of Representatives for consideration, the full House has not yet taken action on
the measure. As Ranking Member Spencer Bachus (R–AL) stated, ‘‘It’s not about taking sides.
It’s about acquiring information about the process. I think the American people and Congress
have questions.’’
474 Ron Bloom Prepared COP Testimony, supra note 78 at 3.
475 See Part F of Section One of this report for further discussion of factors involved in Treasury’s exit from its investment in the Automotive Industry, infra.
476 Nick Bunkley August 5 New York Times Report, supra note 80.

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‘‘this is a ‘very large amount’ of stock,’’ and that ‘‘orderly offering
of [Treasury’s] shares to establish a market may have to be managed over a period of years.’’ 477
Although the issue of Treasury’s strategy, or lack thereof, for
exiting its ownership positions is still a concern, comments by Mr.
Bloom have shed some light on the future plans for those investments. In a remark during a question and answer segment of the
Panel’s recent Detroit field hearing, Mr. Bloom highlighted a series
of practical issues for Treasury to consider regarding the disposition of its ownership stakes.478 He maintained, however, that the
disclosure of specific timetables and milestones regarding Treasury’s exit strategy could ultimately negatively affect the taxpayers’
interests.479 First, the company’s board determines the timing of
an IPO, not the government. Moreover, to force a company to have
an IPO would be inconsistent with Treasury’s ‘‘hands off’’ approach.
Second, in order to maximize the taxpayers’ investments, Treasury
expects to divest its ownership stakes at a future point when the
companies become profitable and when Treasury can take advantage of a rise in markets.480 For Treasury to do otherwise could
have a negative effect on its ability to sell into the market and obtain maximum value—the so-called ‘‘overhang.’’ Since Treasury’s
plans are hardly a secret, however, the market ‘‘overhang’’ concern
might not appear to be so troubling, but the timing of sale certainly
remains an issue so that the value of the taxpayers’ investment is
maximized. The Panel also recognizes, however, that there are
other critical factors involved in the proper formulation and timing
of an exit strategy. Private sector interest and involvement are essential elements of a successful Treasury exit strategy.481 In order
for this success to be achieved, the private sector must also be interested in doing business with these companies and demonstrate
interest in owning these companies, even while Treasury retains an
ownership interest. Although Mr. Bloom’s points seem fundamentally reasonable and prudent, the Panel is concerned that the only
viable metrics that Treasury will provide regarding its investments
in Chrysler and GM will be provided in initial quarterly reports
that will (at least until the companies become public) not be as
comprehensive as filings required by the SEC. Without the release
of additional specific milestones or markers on each company’s path
towards an IPO, the likelihood that taxpayers will be able to assess
the chances of seeing the return of their money is slim, at best.
The Panel is also mindful of particular shortcomings in transparency with respect to the Administration’s negotiations with the
companies and various stakeholders in the bankruptcy process. Although such justification is legally irrelevant,482 at least one of the
companies—Chrysler—has defended its decision to enter into
agreement with the UAW Trust on the grounds that to continue as
477 Congressional Record, Statement of Senator Lamar Alexander, S6152 (June 4, 2009) (hereinafter ‘‘Senator Alexander June 4 Statements’’).
478 See Part F of Section One of this report for further discussion of factors involved in Treasury’s exit from its investment in the automotive industry, infra.
479 Ron Bloom Prepared COP Testimony, supra note 79 at 3, stating that ‘‘[t]he judgment was
made that to put out a more specific timeline would create an overhang in the market that
would be deleterious to receiving the best price.’’
480 Ron Bloom Prepared COP Testimony, supra note 79 at 3.
481 Ron Bloom Senate Testimony, supra note 170.
482 See discussion of this issue supra Section E(1)(b).

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a going concern and return to profitability, it would need workers.483 Without the UAW’s support for the sales, the belief has
been, there would be insufficient workers for the plants. The majority of the industries manufacturing operations are in Michigan,484
a state whose unemployment rate stood at more than 15 percent
as of June 2009, the highest of any state in the country.485 The
Treasury auto team has explained to the Panel that maintaining
a stable pre-existing and experienced workforce was paramount in
light of the difficulty of individually hiring and training many thousands of workers.
In its assessment of government actions to deal with the current
financial crisis, the Panel has regularly called for transparency, accountability, and clarity of goals. Treasury must commit itself to
those same principles when implementing TARP projects and administering the AIFP. Undoubtedly, the guidelines for the AIFP
are expansive in order to maximize Treasury’s potential options
and facilitate rapid intervention in the midst of economic uncertainty. Treasury, therefore, maintains the authority to determine
its involvement in stabilizing companies on a case-by-case basis
and ‘‘may invest in any financial instrument, including debt, equity, or warrants, that the Secretary of the Treasury determines to
be a troubled asset.’’ 486 In both the AIFP and the Capital Purchase
Program (CPP), Treasury has utilized all available financial instruments in order to stabilize the respective industries as it saw necessary. With such expansive discretion, the Panel believes it is imperative for Treasury to disclose its methodology and rationale
since any use of taxpayer funds warrants comprehensive justification.
6. HAS THE CAN BEEN KICKED DOWN THE ROAD?

The day GM filed for bankruptcy protection, President Obama
told the American people that he refused ‘‘to let these companies
become permanent wards of the state, kept afloat on an endless
supply of taxpayer money.’’ ‘‘In other words,’’ President Obama
said, ‘‘I refuse to kick the can down the road.’’ 487 The governmentorchestrated bankruptcies of Chrysler and GM did not resolve the
complex underlying problems facing the domestic automotive industry in the United States. It is therefore unclear whether the
new entities will be able to overcome the historical shortcomings
that led to their predecessors’ failure. If they are unable to do so,
either the government will need to step in again, or the companies

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483 In

re Chrysler LLC, 405 B.R. 84, 99 (Bankr. S.D.N.Y. 2009).
484 GM U.S. Facilities (online at www.gmdynamic.com/ company/gmability/ environment/
plants/facilitylldb/ facilities/list); Chrysler’s U.S. Parts and Assembly Plants, USA Today (Apr.
30, 2009) (online at www.usatoday.com/ money/autos/ 2009–04–30–chrysler-plants
-mapllN.htm). At the Panel’s Detroit field hearing held on July 27, 2009, Representative
Carolyn C. Kilpatrick (D–MI) noted: ‘‘Here in Michigan, we are the epicenter of the manufacturing that is kind of eroding itself in America.’’ Congressional Oversight Panel, Statement of
Rep. Carolyn C. Kilpatrick, at 7 (July 27, 2009).
485 Bureau of Labor Statistics, Local Area Unemployment Statistics (online at www.bls.gov/
lau/home.htm).
486 U.S. Department of the Treasury, Guidelines for Automotive Industry Financing Program
(accessed
Aug.
31,
2009)
(online
at
www.financialstability.gov/
docs/AIFP/
AIFPllguidelines.pdf).
487 White House June 1 Remarks on GM Restructuring, supra note 89.

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will need to liquidate, with much of the attendant misery that the
government sought to avoid in 2008 and 2009.
The factors that led to the insolvency of Chrysler and GM were
no secret.488 The overcapacity of the global automotive manufacturing industry and the fierce competition it creates has plagued
American automotive manufacturers for decades.489 In addition,
the healthcare and pension obligations of large corporations in the
United States have created costs that put American automotive
manufacturers at a disadvantage compared to foreign competitors.490 These factors, coupled with the drastic decline in demand
for new cars and trucks in the United States in 2008 and 2009,
made the financial condition of Chrysler and GM untenable.491
In deciding to rescue these firms with taxpayer money, the Panel
would expect the Treasury auto team to analyze several key considerations in the normal course of performing its due diligence as a
prospective investor:
1. Revenue forecasts and market share. The viability of these
companies is still dependent on sales volume, which, as a result of the global economic downturn, remains at historically
low levels.492 The projections provided by GM in SEC filings
assumed New GM would maintain a market share ranging between 17.5 percent and 18.5 percent between 2009 and 2014,
while the number of cars sold in the United States was projected to climb steadily from 10.5 million to 16.8 million during
that period.493 With these numbers, New GM projected that it
could maintain a positive cash flow, the definition of viability
used by the Treasury auto team.494 But GM has been steadily
losing market share for decades and it is unclear whether the
projections provided adequately reflect this trend. Some analysts believe that New GM could see its market share decline
to between 15 percent and 16 percent over the next several
years.495
Moreover, declining confidence in Chrysler and GM vehicles,
as a result of their financial difficulties, creates a challenge to
new sales that must be overcome if either new company is to
survive.496 Market share in the North American market has
historically been driven by the number of new products auto
manufacturers bring to market.497 While reducing capacity reduces fixed costs, it also reduces the number of new cars and
trucks New Chrysler and New GM can bring to market in the
488 Fortune magazine ran a cover story predicting the General Motors bankruptcy in 2006.
Carol Loomis, The Tragedy of General Motors, Fortune (February 6, 2006) (online at
money.cnn.com/ magazines/fortune/ fortunelarchive/ 2006/02/20/ 8369111/index.htm).
489 The annual reports of the major public auto manufacturers repeatedly reference the overcapacity in the North American market as one of their most significant challenges. See, for example, General Motors, Form 10–K, I–17 (March 28, 2006) (hereinafter ‘‘GM Fiscal Year 2005
10–K’’); Ford Motor Company, Form 10–K, 3 (March 1, 2006) (hereinafter ‘‘Ford Fiscal Year 2005
10–K’’).
490 Affidavit of Frederick A. Henderson Pursuant to Local Bankruptcy Rule 1007–2, 5–6 (June
1, 2009), In Re General Motors Corp., (09–50026) (hereinafter ‘‘Frederick Henderson GM Bankruptcy Affidavit’’).
491 Id; Ronald Kolka Declaration, supra note 113 at 4–5.
492 GM July 16, 2009 8–K, at 20–21, supra note 86.
493 Stephen Worth Declaration, supra note 36 at appendix. 18.
494 New Path to Viability for GM & Chrysler, supra note 37.
495 Merrill Lynch, Car Wars 2010–2013 (July 15, 2009).
496 Id. at 21.
497 Id.

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short-term, which is likely to have a negative effect on the
market share of these companies. As market share declines,
these companies will need to earn more profit per vehicle to
maintain projected revenues.
2. Cost controls. There is no question that New Chrysler and
New GM are better positioned companies than their pre-bankruptcy counterparts. Both have shed billions of dollars in debt
and other liabilities, improving their ability to make profits
and invest in new products and technology.498 Both companies
have renegotiated their agreements with the UAW, reducing
labor costs dramatically. The closing of manufacturing plants
and the shedding of unprofitable brands has somewhat reduced
overcapacity. In addition, both companies are still hoping to
achieve various post-bankruptcy cost reductions.499 Achieving
these reductions may prove to be critical to the ability of the
new companies to fully realize their viability plans.500 The cost
reductions made to date were necessary for the viability of the
new companies but it is unclear whether they will prove to be
sufficient.
3. External shocks to revenue and cost projections. Viability
plans for auto makers should be tested for the potential impact
of sudden shocks to revenue and cost projections. The most obvious, but by no means only, sources of such shocks for the
automotive industry are: (1) a sharp economic downturn—or,
under current circumstances, another economic contraction before any recovery has a chance to take hold; (2) a surge in oil
prices, most likely tied to a supply interruption; and (3) a
sharp change in regulatory requirements, particularly environmental controls or fuel efficiency standards. Energy price
trends would appear to be particularly critical for the prospects
of the automotive industry; if they continue to fluctuate to the
extent they have over the last five years, it may be difficult,
if not impossible, for auto manufacturers to invest profitably in
bringing energy efficient cars to market. In the case of New
Chrysler, its alliance with Fiat was predicated on Fiat’s providing technology to produce fuel efficient vehicles in the
American market.501
The Panel requested access to certain documents from Treasury
in order to determine the extent to which the Treasury auto team
conducted due diligence. The information shared with the Panel involves the auto team’s assessment of the viability plans submitted
by Chrysler and GM and the evaluation of the long-term economic
viability of both companies by the Treasury auto team and its advisors. On the basis of the information that Treasury has provided
to the Panel, it appears that the auto team conducted due diligence
as a private investor would and were fully informed when making
its investment decisions. The auto team seems to have had a reasonable basis to believe in the long-term viability of the two companies. This does not necessarily mean that the investment decision
498 See Moody’s Auto Navigator (July 15, 2009) (describing the reduction of General Motors
debt from $43 billion to $26 billion).
499 Id.
500 Id.
501 Chrysler Release, supra note 41.

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will prove to be a profitable one; the automotive sector in the
United States is risky and these companies have a legacy of failure.
Additionally, while Treasury followed the process that a private investor would follow, that does not mean its objectives were those
of a private investor. A private investor seeks to establish it is receiving a reasonable rate of return on its investment through the
due diligence process. As discussed above, there are significant obstacles to the two companies’ ever achieving the level of profitability that would permit the return of all the taxpayer funds expended, and Treasury’s best estimates are that some significant
portion of those funds will never be recovered.502 Treasury may
not, however, have been seeking to maximize profits.503
A significant portion of the American automotive industry had
failed by December 2008. Treasury, using TARP funds, effectively
granted a reprieve to a large part of that sector. Treasury has
taken significant and far-reaching actions that are intended to permit New Chrysler and New GM to function on their own without
any further government assistance.504 The specter of future government bailouts has gone. The possibility of failure (and the loss
of taxpayer money), however, remains until these two companies
can show that they are producing cars people want to buy.
H. CONCLUSION

AND

RECOMMENDATIONS

The Panel will continue to monitor Treasury’s use of TARP funds
in its assistance to the automotive industry. In particular, the
Panel will focus its attention on the issues described below.
1. TREASURY’S ROLE IN PROTECTING TAXPAYER INVESTMENT

Treasury’s performance in protecting the interests of the taxpayers in the support of the auto companies is somewhat mixed.
On one hand, Treasury negotiated aggressively in these transactions, demanding significant concessions from other stakeholders,
and protecting taxpayer interests as if it were a private investor.
On the other hand, the decisions to enter into the transactions in
the first place suffer from a lack of transparency.
Treasury was instructed to act in a ‘‘commercial manner’’ by the
White House,505 and there can be no doubt that Treasury robustly
defended its interests (and thus those of taxpayers) like any other
stakeholder. There is also no doubt that the other parties involved
were sophisticated and well-represented, and more than equal to
intense negotiations. Some feel that the government was too
tough,506 or too tough with the wrong parties. Others wish the gov502 See

discussion of this issue supra Section F(1).
Bloom’s comments to Panel staff, supra note 274.
House June 1 Remarks on GM Restructuring, supra note 89.
505 Ron Bloom Prepared COP Testimony, supra note 78; Ramifications of Automotive Industry
Bankruptcies, Part II, supra note 10 at 1.
506 The negotiations gave rise to allegations of threats and bullying. Some of the more extreme
alleged threats have been impossible to prove, and have been vigorously denied by Treasury.
Specifically, Thomas Lauria, a bankruptcy attorney with White & Case maintains Mr. Rattner
threatened an official of Perella Weinberg Partners, an investment bank, that the White House
press corps would smear Perella’s reputation if they did not support the Administration’s plan
on the Chrysler bankruptcy. Joseph A. Giannone, Perella Denies White House Threat Over
Chrysler, Reuters (May 4, 2009) (online at www.reuters.com/ article/ idUSN0441888520090504).
Bloom, in his appearance before the Panel, denied this allegation. Ron Bloom Prepared COP
Testimony, supra note 78. Because dealing with the U.S. government is not the same as dealing
Continued
503 Ron

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ernment had been equally tough in negotiating the investment of
TARP funds in banks. The assertiveness displayed by the government in the reorganizations reduces the ‘‘moral hazard’’ implicit in
using public money as a funding option for failing businesses.
It appears that Treasury to some degree acted as a private investor would in making the decision to support the automotive companies in the first place. However, the lack of transparency, as discussed in detail above,507 also makes it difficult to determine the
priorities of Treasury’s primary objectives, including which competing policy considerations, if any, informed its actions. Based on
Treasury’s presentation to the Panel, the due diligence performed
with respect to the ultimate viability of the automotive companies
was extensive and thorough, and consistent with what a private investor would have done in the protection of its own interests. The
ultimate decision to invest in the automotive companies, however,
could have been made on policy grounds, regardless of their profitability, which would change the metrics for success. In the absence
of a clear consensus of Treasury’s objectives, it is difficult to assess
their success.
2. TREASURY’S ROLE AS OWNER OF SIGNIFICANT STAKES IN
AUTOMOTIVE COMPANIES

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The tension between government intervention in the automotive
companies and the hands-off approach that the government intends
to take with respect to its ownership stake is examined above.508
The Panel recommends that Treasury acknowledge the inherent
conflicts that arise from its multiple roles and address the following issues:
• Treasury should clarify its policy objectives, reasonable expectations, and the implications of these policy decisions in the
automotive bailouts. If Treasury’s objectives include more than
the rescue of Chrysler and GM but also other aims, such as environmental improvement, support for pension obligations, or
continued employment, Treasury should make this clear, and
also provide transparency on the costs of such objectives. Given
with other credit bidders or DIP finance providers, and when the government accuses a bondholder, who may be under a fiduciary obligation to get the best price for its bonds, and in any
case has the right to protect its own interests the best way it can, of failing to assume some
correct proportion of ‘‘shared sacrifice,’’ some may feel that a line has been crossed. It would
be hypocritical for Treasury to have its agents act in a commercial manner, protecting their own
interests, without expecting its counterparties to do the same. However ‘‘commercial’’ Treasury’s
objectives, the U.S. government has a throw weight that its counterparties cannot match as
there is little in the regular commercial arsenal that can counter a charge of ‘‘unpatriotic’’ behavior by the President of the United States. The Panel staff contacted many of the parties involved in these transactions to substantiate the allegations of threats and bullying, however
none of the Panel’s inquiries received a response. Zach Lowe, White & Case’s Tom Lauria Reflects on Non-TARP Lenders Crazy Chrysler Week, The AmLaw Daily, (May 11, 2009) (online
at amlawdaily.typepad.com/ amlawdaily/2009/05/nontarp.html) (hereinafter ‘‘Thomas Lauria
Statements’’); Preliminary Objection of the Chrysler Non-Tarp Lenders to Motion of Debtors in
Possession, Pursuant to Sections 105, 363 and 365 of the Bankruptcy Code and Bankruptcy
Rules 2002, 6004 and 6006, For (I) An Order (A) Approving Bidding Procedures and Bidder Protections for the Sale of Substantially All of the Debtors’ Operating Assets (B) Scheduling a Final
Sale Hearing and (C) Approving the Form and Manner of Notice Thereof; and (II) An Order
(A) Authorizing the Sale of Substantially All of the Debtors’ Operating Assets, Free and Clear
of Liens, Claims, Interests and Encumbrances, (B) Authorizing the Assumption and Assignment
of Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related
Procedures and (C) Granting Related Relief, In Re Chrysler LLC, S.D.N.Y. (No.09 B 50002
(AJG)) (online at chap11.epiqsystems.com/ docket/docketlist.aspx?pk= 1c8f7215–f675–41bf-a79be1b2cb9c18f0&l=1).
507 See supra Section G5.
508 See supra Section G.2.

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the tension inherent in the government’s overlapping roles and
the fiduciary responsibility it has assumed in its disbursement
of TARP funds, the Panel believes it is necessary for Treasury
to provide more information regarding its decision-making and
administration of the AIFP. The Panel is particularly concerned with the lack of publicly disclosed information regarding Treasury’s evaluation of the viability of the automotive
companies and its exit strategy with respect to the substantial
investments it has made in those companies in order to ensure
that ‘‘these companies—and this industry—must ultimately
stand on their own, not as wards of the state.’’ 509
• Treasury must provide more detail about Treasury’s corporate governance policies with respect to the automotive companies,510 including how the government will deal with conflicts of interest between its role as an equity holder or creditor
and as regulator. In addition, Treasury should establish policies prohibiting Treasury employees from accepting employment with either company for a period of at least one year following the termination of their employment at Treasury.
• Treasury should consider the unparalleled opportunity it
has been handed to set an example of corporate governance
best practices in the companies in which it is now a major investor. Changes in corporate governance have begun with the
appointment of well-qualified and independent directors.511
Rules governing matters such as independence of directors,
their service on other boards, term limits, stock ownership requirements and retirement should all reflect best efforts on
corporate governance excellence. As TARP recipients, the automotive companies are already subject to restrictions on executive compensation, but they could adopt their own more tailored compensation guidelines, and ensure that compensation
for both executives and board members are based on clearly articulated performance criteria and aligned to long-term performance. Because accurate financial reporting to the taxpayers is both essential and likely to be challenging in light of
the reorganization of the two companies, special attention
should be paid to the audit committees, possibly having all of
their members being required to be ‘‘financial experts.’’ 512
Equally important, internal controls that affect inputs into financial statements should conform to best practices. Particular
attention should be paid to efforts to enhance shareholders’
participation in corporate governance.513 The Panel recommends that the automotive companies’ bylaws and policies
provide for full disclosure of all dealings with its significant
shareholders (including, of course, the government).514
• With respect to disclosure of the performance of the automotive companies, Treasury has indicated that the two new
509 March

30 Presidential Remarks, supra note 91.
supra Section G.2.a.
notes 181–183 and accompanying text. See discussion of this issue supra Section B.
512 The Sarbanes-Oxley Law requires only one such expert. 15 U.S.C. 7265(a).
513 This would only be possible within the government’s corporate governance guidelines if the
shares were held in a trust, as suggested below.
514 The Panel recommends that the CEO and chairman of each company certify each quarter
as to the absence of government direction or intervention in their day-to-day business, or the
nature of such direction or intervention.
510 See

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companies will file periodic reports with the SEC.515 These reports will, in essence, determine how the ultimate shareholders
(the taxpayers) will share in the success of the auto bailout
and the stewardship of their money. It is therefore essential
that these reports be provided on a timely basis, and be as
complete as possible. The Panel recommends that the companies produce reports to the standard and in compliance with
the timing that applies to SEC reporting companies,516 and
that they do so as soon as possible. In particular, the Panel
recommends that these reports include a ‘‘management’s discussion and analysis,’’ as SEC-reporting companies are required to do, which identifies known ‘‘trends and uncertainties’’
with respect to the company’s financial performance and outlook. In the case of the automotive companies, in addition to
discussing the issues outlined above,517 these reports should
include measurement of the companies’ progress against the viability plans on the basis of which the government invested
taxpayers’ money. The discussion should also disclose any divergence of performance from the assumptions on which the viability plans were based.
• The Panel recommends that Treasury consider holding its
interests in the automotive companies through a trust managed by an independent trustee.518 This would have several
advantages. First, it would send a clear message to the markets that the government was not interfering (and could not
interfere) in private commerce. Second, decisions as to voting,
holding, or the timing and volume of sales of government holdings could be made by an independent entity, in the best interests of the taxpayer, free of interference by any branch of government and not swayed by political expediency. Third, without a trust, the taxpayers’ interest in the companies will be silenced, leaving disproportionate power in the hands of the minority shareholders.519 Fourth, creating a trust with timeframes could provide taxpayers with confidence that they will
not still retain large ownership stakes in these companies five,
ten or twenty years down the road.
• As discussed above, there are serious policy implications in
the government ownership of commercial entities. President
Obama has stated that he doesn’t think taxpayer subsidies to
the automakers should continue indefinitely.520 The Panel
urges that divestment take place as soon as commercially reasonable. Divestment need not mean outright sale, however.
The determination of what is ‘‘commercially reasonable’’ might
be improved if the equity in the automotive companies were
placed in a trust managed by an independent trustee, as discussed above, thus taking political considerations out of the

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515 Ron

Bloom Prepared COP Testimony, supra note 78 at 33.
516 Exhibits required in such filings would include material contracts; the Panel assumes ‘‘material’’ would involve any transactions with the government.
517 See discussion of this issue supra section G.3.
518 See discussion of this issue supra text accompanying note 212.
519 This point is particularly applicable to GM because of the large proportion of shares held
by taxpayers.
520 White House Office of Press Secretary, News Conference by the President (Apr. 29, 2009)
(online at www.whitehouse.gov/ thelpressloffice/ News-Conference-by-the- President-4/29/
2009/).

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equation, and permitting independent analysis of the timing of
sale.
3. COMPLIANCE WITH BANKRUPTCY CODE

Turning to Treasury’s conduct in the bankruptcy proceedings, it
appears that accusations of ‘‘illegal’’ behavior 521 are overblown and
that allegations that statutory bankruptcy law priorities were overturned 522 are not accurate. The courts found that Section 363 sales
occurred in accordance with the Code, and that no statutory priorities were overturned. Dissenting creditors may have been disappointed with what they received in the Chrysler bankruptcy, and
they may feel that unsecured creditors, such as the UAW Trust, received more generous terms, but nothing in bankruptcy law takes
away the leverage of those with whom the bankrupt company must
do business going forward. The UAW agreed to substantial changes
in its contracts that would improve the profitability of the automotive companies in return for the companies’ continued support of
the health benefit plans of their retirees and an ownership stake
in New Chrysler. The secured creditors made no similar concessions. Thus, New Chrysler, a totally new entity that purchased the
assets of Old Chrysler, was able to bargain directly with the UAW
in the same way that any company can bargain, without any restraints imposed by bankruptcy laws. To mandate a different result
would risk undermining the certainty of the bankruptcy and contract laws on which commerce in the United States relies.523
To the extent that Congress objects to the use of Section 363 in
Chapter 11 reorganizations or the results that such use can
produce, legislative fixes, including that suggested by Professor
Adler, are available.524
4. TREASURY’S AUTHORITY

With respect to the question of authority, the authority of Treasury to use TARP for support of the automotive companies seems
unclear. It is clear that at one point, neither President Bush nor
Secretary Paulson believed TARP was available for this purpose
and there is a strong suggestion in the Congressional Record that
many in Congress also believed that EESA was a statute aimed
specifically at the financial sector. Given the lack of serious opposition from Congress on the current approach or any party with
standing to challenge it, however, it is unlikely that there will be
any definitive finding on the constitutionality of this use. These
issues are thus unlikely to affect future administration of the program. The Panel recommends that Treasury provide a legal opinion
justifying the use of TARP funds for the automotive bailouts.

521 Thomas

Lauria Statements, supra note 506.
Lauria Statements, supra note 506.
fact that a different result would likely undermine commercial markets is ironic in
light of the criticisms that some have leveled that the failure to follow these well-established
rules would upset commercial markets.
524 What’s Good for General Motors, supra note 258.
522 Thomas

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523 The

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ANNEX A: ‘‘WHAT’S GOOD FOR GENERAL MOTORS’’

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What’s Good for General Motors
Barry E. Adler *
The recent bankruptcy cases of Chrysler and General Motors
were successful in that they quickly removed assets from the burden of unmanageable debt, but the price of this achievement was
unnecessarily high because the cases established a precedent for
the disregard of creditor rights. As a result, the automaker bankruptcies may usher in a period where the specter of insolvency will
increase the cost of capital in an economy where affordable credit
is sorely needed.
After brief analysis of the Chrysler and GM cases, below, and a
brief description of potentially negative consequences, I describe
how bankruptcy courts might disadvantageously extend these
precedents and I offer a proposal for an amendment to the Bankruptcy Code to curb potential excesses. The proposal is designed to
ensure that future bankruptcy courts honor the entitlement for
which creditors contract and without which one cannot expect them
to lend on favorable terms.
I. THE CHRYSLER BANKRUPTCY

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The rapid disposition of Chrysler in Chapter 11 was formally
structured as a sale under 363 of the Bankruptcy Code.1 While that
provision does, under some conditions, permit the sale of a debtor’s
assets, free and clear of any interest in them, the sale in Chrysler
was irregular and inconsistent with the principles that undergird
the Code.
The most notable irregularity of the Chrysler sale was that the
assets were not sold free and clear, but rather the purchaser, ‘‘New
Chrysler’’—an affiliation of Fiat, the U.S. and Canadian governments, and the United Auto Workers (‘‘UAW’’)—took the assets
subject to specified liabilities and interests. More specifically, New
Chrysler assumed about $4.5 billion of Chrysler’s obligations to,
and distributed 55% of its equity to, the UAW’s voluntary beneficiary employee association (‘‘VEBA’’) in satisfaction, perhaps full
satisfaction, of old Chrysler’s approximately $10 billion unsecured
obligation to the VEBA (which is a retired workers benefit fund).2
So long as New Chrysler remains solvent, this means that at least
half of its obligation to the VEBA will be paid. This, while Chrysler’s secured creditors are to receive only $2 billion in satisfaction
of about $7 billion in claims, about 30 cents on the dollar. That is,
money that might have been available to repay these secured creditors was withheld by the purchaser to satisfy unsecured obligations
* Petrie Professor of Law and Business, New York University. This article is based on testimony given before the Congressional Oversight Panel’s July 27, 2009 hearing on assistance to
the automobile industry under the Troubled Asset Relief Program. I thank Steve Choi, Marcel
Kahan, Troy McKenzie, and Mark Roe for conversation that was valuable in the preparation
of that testimony and this article. The article’s title comes from a famous, or infamous, quote
by Charles Erwin Wilson, General Motors president and later Secretary of Defense, who testified in 1953 before the Senate Armed Services Committee that ‘‘for years I thought that what
was good for the country was good for General Motors and vice versa.’’
1 The Bankruptcy Code appears in Title 11 of the United States Code.
2 Although there is a distinction, legal as well as practical, between the UAW and its VEBA
fund for retired union workers, for simplicity of exposition, such distinction is generally ignored
in this article, which sometimes treats as interchangeable payments to the UAW on account of
its claims in bankruptcy and transfers to the VEBA.

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owed the UAW. Thus, the sale of Chrysler’s assets was not merely
a sale, but also a distribution—one might call it a diversion—of the
sale proceeds seemingly inconsistent with contractual priority
among the creditors.
To be sure, the situation is more complicated than may first appear. The purchaser in this case was funded primarily by the U.S.
government, which had previously advanced $4 billion in funds
from the Troubled Asset Relief Program (‘‘TARP’’) and, along with
the Canadian government, agreed to loan the new enterprise billions more. The government had political reasons to assure continuation of auto production and toward that end may have been
willing to pay more for the assets than they were worth. For purposes of bankruptcy law, then, the question is not whether the government paid the UAW (or holders of other assumed obligations)
too much, but whether the process deprived the secured creditors
of a return to which the law entitles them. Some of these creditors,
albeit a minority, objected to the sale because they believed they
should have received more and would have but for the orchestration of the sale by the U.S. Treasury and automotive task force.
Proponents of the Chrysler sale argue that the sale was proper
despite the protests. They contend that the secured creditors who
objected to the sale were a minority of such creditors and as a minority lacked standing to complain, a point to which I return below.
More fundamentally to the bankruptcy analysis, the proponents of
the transaction insist that the company’s assets would have been
worth little in liquidation and so the secured creditors should have
been satisfied with the return the bankruptcy sale provided them.
But there was no market test of this proposition because Judge
Gonzalez, who presided over the Chrysler case, permitted only days
for a competitive bid to challenge the proposed sale and restricted
bids to those that were willing to have the bidder assume specified
liabilities, including Chrysler’s obligation to the VEBA.3 (There was
an exception to this restriction for specially approved bids, but by
the court’s order, the UAW had to be consulted before a noncompliant bid would be approved.)
Given the constraint on bids, it is conceivable that the liquidation value of Chrysler’s assets exceeded the company’s going-concern value but that no liquidation bidder came forward because the
assumed liabilities—combined with the government’s determination to have the company stay in business—made a challenge to
the favored sale unprofitable, particularly in the short time frame
afforded. It is also possible that, but for the restrictions, there
might have been a higher bid for the company as a going concern,
perhaps in anticipation of striking a better deal with workers.4
Thus, the approved sale may not have fetched the best price for the
Chrysler assets. That is, the diversion of sales proceeds to the assumed liabilities may have been greater than the government’s
subsidy of the transaction, if any, in which case the secured creditors would have suffered a loss of priority for their claims. There
3 The bankruptcy court opinion in Chrysler appears at 405 B.R. 84 (Bankr. S.D.N.Y. 2009).
This opinion has now been affirmed, 2009 WL 2382766 (2’d Cir.).
4 Note that these restrictions would have prevented credit bidding even if the secured bondholders had collectively desired to make such a bid because the required assumption of liabilities
effectively eliminated the secured lender priority that is necessary for a credit bid.

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is nothing in the Bankruptcy Code that allows a sale for less than
fair value simply because the circumstances benefit a favored group
of creditors.
Against this criticism, the sale is defended on the ground that
quick action was required to preserve the company’s going concern
value, but it is not certain that this was so or that the company’s
going concern value exceeded its liquidation value. Moreover, restrictions placed on the bidding process do not appear to be sensible even given a time constraint. The sale served the government’s desire to assure continuation of the company and to protect
the union’s interest, but it is not apparent that the sale was designed to maximize the return to the bankruptcy estate and there
seems no legitimate reason to have restricted bids based on the
bidders’ willingness to assume favored liabilities. The approved
sale, therefore, ran afoul of the Supreme Court’s admonition, in an
analogous case, North LaSalle Street, that a court should not settle
a valuation dispute among parties with a determination ‘‘untested
by competitive choice.’’ 5
Viewed another way, the approved transaction was not a sale at
all, but a disguised reorganization plan, complete with distribution
to preferred creditors. In this light, the secured creditors who objected to the sale and distribution did not necessarily have a complaint with the amount paid (by the government) for the assets. Indeed the objecting creditors may well concede that the amount paid
to the UAW was quite high; they objected to the distribution, which
favored others at their expense. That is, the, objection was to the
fact that the approved transaction—a de facto reorganization
plan—illegitimately distributed assets inconsistently with the priorities established under the Bankruptcy Code.6
Although the emphasis in this article is on the distribution of
value creditors rather on the propriety of a sale in the first instance, the case law does address the latter. Under the law, the
proponents of an all or almost all asset sale must demonstrate a
business reason to hold a sale rather than reorganize the debtor in
the traditional way, with assets in place. This was true, for example, in the Chrysler case itself, where the bankruptcy court (as well
as the court of appeals) was satisfied that there was a valid business reason for the § 363 sale. In this article, which critiques the
Chrysler and GM bankruptcy cases, I don’t question whether the
business justification requirement was satisfied in the cases I examine simply because I think that the requirement is ill-advised.
In my view, an unconditional auction designed to achieve the highest return for the bankruptcy estate should always be permitted;
I would not interpose the vague obstruction of business justifica5 Bank of America v. 203 North LaSalle Street Partnership, 526 US 434, 458 (1999). In North
LaSalle Street, the prebankruptcy shareholders of an insolvent debtor in bankruptcy offered to
pay for a continuing equity interest in the reorganized entity. When a creditor protested, the
shareholders asked the bankruptcy court to affirm the exchange over the objection. The Supreme Court ruled that even if the bankruptcy judge believed the price offered to be a fair, the
court lacked the authority to approve the transaction absent a market test of the price. The
Bankruptcy Code provisions in the case were not entirely the same as those at issue in the
Chrysler, or General Motors, case, but the principle applies equally well.
6 As well summarized by Mark J. Roe and David Skeel, Assessing the Chrysler Bankruptcy
(working paper, July 27, 2009), many bankruptcy courts have determined that a de facto reorganization plan is improper. See also, Scott D. Cousins, Chapter 11 Asset Sales, 27 Del. J. Corp.
L. 835 (2002). For an example of a recent decision, see In re Iridium Operating LLC, 478 F.3d
452 (2d Cir. 2007).

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tion. My concern with the Chrysler case, and the GM case, described below, is that there was no such auction.
Analysis turns next, then, to whether the objecting secured creditors could have blocked the transaction had the distributions in the
case been subject to the rules prescribed by Chapter 11 rather than
as part of a § 363 sale.7 One who would defend the approved transaction would say ‘‘no,’’ relying again on the contention that the liquidation value of Chrysler was so small that the secured creditors
received at least their due from the sale, an amount that the judge
deemed satisfactory. What this argument overlooks, however, is
that Chapter 11 contains rules designed precisely to protect creditors from a judicial determination with which the creditors disagree. When Judge Gonzalez approved the Chrysler sale, he
stripped these protections from the secured creditors.
More specifically, the Chapter 11 rules that shield creditors from
judicial error are called ‘‘fair and equitable’’ and ‘‘no unfair discrimination’’ provisions, which appear in § 1129(b) of the Code and
govern the confirmation of reorganization plans. The requirement
that a reorganization plan be fair and equitable means that if a
class of claims objects to the distribution under the plan, the plan
may not be confirmed if the objecting class is not paid in full while
a lower-priority class receives anything under the plan. The requirement that a plan not discriminate unfairly means that if a
class of claims objects to the distribution under the plan, the plan
may not be confirmed if a class of equal priority receives a higher
rateable return under the plan. When applicable, these provisions
prevent confirmation even if a judge is convinced that the claims
in the dissenting class are receiving at least what they would receive in liquidation. Whether the dissenting class believes that the
judge is mistaken as to the true liquidation value of the firm or
merely demands its share of what it believes to be a firm’s going
concern surplus over liquidation value, the class can decide for
itself whether to accept the plan.
In Chrysler, the dissenting secured creditors attempted to invoke
the protection against unfair discrimination. Whatever the judge
might deem to be the liquidation value of their collateral, § 506 of
the Bankruptcy Code bifurcates an undersecured claim—a claim
that exceeds the value of its collateral—into a secured portion and
an unsecured portion. The secured portion is equal to the judicially
determined value of the collateral; the unsecured portion is equal
to the deficiency claim. The secured creditor objectors to the Chrysler sale based a legal challenge on the treatment of their deficiency
claims. A deficiency claim, like the UAW claims, is a general unsecured obligation and these claims have the same priority. Yet while
the sale and distribution approved in Chrysler paid the deficiency
claims nothing, it paid the UAW claims with billions of dollars.
This, the objectors argued, is an unfair discrimination that would
have rendered unconfirmable a formal reorganization plan and
should have rendered illegitimate what they saw as a de facto reorganization embodied in the sale and distribution.
7 For a similar analysis, which reaches many, though not all, of the same conclusions, see Roe
& Skeel, id.

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There is merit in the dissenters’ argument. To be sure, proponents of the pro-UAW distribution can argue that the right to
veto a plan on the basis of unfair discrimination is a class-based
right—not available to individual dissenters within an accepting
class of claims—and that a large majority of the secured creditors
accepted the distribution.8 But the accepting secured creditors were
largely recipients of government TARP funds and thus arguably beholden to the government, which engineered the distribution to the
UAW. Therefore, under § 1122 of the Bankruptcy Code and relevant precedent, in a formal reorganization, the judge might have
been obliged to classify the TARP lenders separately from the nonTARP creditors, thereby giving the dissenters control over their
own class and, perhaps, the right to veto the UAW distribution as
unfairly discriminatory. Against this unfair discrimination contention, plan proponents can argue further that the payment to the
VEBA not as a distribution on account of an unsecured claim at all,
but rather as prospective expense that assured the company a
needed supply of UAW workers, with the union thus portrayed as
a critical vendor of labor. However, even if one assumed that the
automaker’s value was greater as a going concern than in liquidation, one wonders whether so large a transfer to its labor force
would have been necessary in this depressed economy. In any case,
because the court characterized the transfer of assets from Chrysler to New Chrysler as a sale rather than as reorganization, it
didn’t need to reach the classification issue or the critical vendor
issue. Consequently, this characterization improperly denied the
dissenters the chance at the full protections of the Bankruptcy
Code.
The foregoing assumes that the dissenting secured creditors had
standing to object to the proposed, and ultimately approved, sale of
Chrysler’s assets. As noted above, proponents of the sale argued
that the dissenters, as a minority of the secured creditors, lacked
such standing. The proponents pointed to a provision of the secured
creditors’ loan agreement that arguably granted an agent of the
creditors the right to sell their collateral on behalf of the group. According to this argument, because the creditors’ agent was obliged
to represent the secured creditor majority that favored the sale, the
agent properly consented to the transaction on behalf of all secured
creditors. Judge Gonzalez agreed and approved the sale, despite
the lack of a true auction, in part because, in his opinion, given the
agent’s consent, there was no objection. The judge rejected the dissenters’ claim, among others, that the influence of the TARP lenders among the secured creditors tainted the agent’s authority.
Whether Judge Gonzalez was correct to rule that the secured
creditor dissenters should be deemed to have consented to the sale
of their collateral is a matter of state contract law rather than
bankruptcy law. But even if the judge correctly interpreted state
law, Chrysler remains an unsettling bankruptcy precedent because
approval of a sale of assets under § 363 is not limited to a case
where the affected parties consent. Some courts permit a sale free
and clear of liens despite the objection of a secured creditor who
8 Section 1126 of the Bankruptcy Code provides that a class of claims accepts a plan if a majority of claim holders, holding at least two-thirds of claims by amount, accepts the plan.

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will not be fully repaid by the proceeds.9 Moreover, a § 363 sale of
a debtor’s assets may occur over the objection of an unsecured class
of claims, one that disputes the efficacy of a sale because the creditors believe they would, despite their lack of priority, receive a better distribution if the sale is disallowed. Thus, given the holding in
Chrysler, if a sale of a firm’s assets is to occur without a market
test, there remains the opportunity for courts to approve a de facto
reorganization plan that fails to protect creditor entitlements even
over the objection of the disadvantaged creditors.
There are at least two negative consequences from the disregard
of creditor rights. First, at the time of the deviation from contractual entitlement, there is an inequitable distribution of assets.
Take the Chrysler case itself, where the approved transaction welltreated the retirement funds of the UAW. If such treatment deprived the secured creditors of their due, one might well wonder
why the UAW funds should be favored over other retirement funds,
those that invested in Chrysler secured debt. Second, and at least
as importantly, when the bankruptcy process deprives a creditor of
its promised return, the prospect of a debtor’s failure looms larger
in the eyes of future lenders to future firms. As a result, given the
holding in Chrysler, and the essentially identical holding in the
General Motors case, discussed next, one might expect future firms
to face a higher cost of capita1,10 thus dampening economic development at a time when the country can least well afford impediments to growth.
II. GENERAL MOTORS

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Chrysler was a blueprint for the General Motors bankruptcy,
which, like that of Chrysler, included a sale of the debtor’s valuable
assets to an entity that assumed unsecured obligations owed its
workers or former workers. In the case of GM, the purchaser, ‘‘New
GM,’’ owned largely by the United States Treasury, agreed to satisfy General Motors’ approximately $20 billion pre-bankruptcy obligation to the VEBA with a new $2.5 billion note as well as $6.5
billion of the new entity’s preferred stock, 17.5% of its common
stock, and a warrant to purchase up to an additional 2.5% of the
equity; depending on the success of New GM, the VEBA claim
could be paid in full. As in the Chrysler case, the sale procedures
required that, absent special exemption, any competing bidder was
to assume liabilities to the UAW as a condition of the purchase.
Therefore, once again, there was no true market test for the sale.
The primary difference between the cases, other than much larger size of General Motors, is that in GM there were no objections
to the sale by holders of senior-secured claims, which were held by
Unites States or Canadian governments or were to be assumed by
the purchaser. Rather, in the case of General Motors, the United
9 Section 363(f) of the Bankruptcy Code, which provides the conditions for a sale of assets free
and clear of interests in those assets, is poorly drafted and internally inconsistent. On one reading of the provision, property cannot be sold free of liens unless the sale proceeds are sufficient
fully to satisfy those liens. On another reading, there is no such requirement. See In re PW,
LLC, 391 B.R. 25 (9th Cir. BAP 2008), which describes the varying judicial interpretive approaches.
10 Although I am unaware of empirical support for the claim that the Chrysler and General
Motors cases will increase the cost of capital to corporate debtors, the cases are still new and
it is not clear whether they will be extended, a topic to which I return in Part IV, below.

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States and, to a lesser extent, Canadian governments were both
the sponsors of the asset purchase that favored the UAW and the
senior lenders from whose pockets any consequent diversion of
value likely came. In particular, the United States Treasury, under
TARP authority, lent GM about $50 billion in a combination of preand post-petition secured transactions; the governments assigned
these obligations to New GM, which then credit bid for the assets.
Some unsecured creditors objected to the transaction. But while the
unsecured claims are substantial—including about $27 billion in
unsecured bonds alone—the GM bankruptcy estate will receive between 10% and 12% of the shares of New GM plus warrants for
additional shares. The value of these shares and warrants, plus
that of other assets not tendered to New GM, may well exceed any
plausible bid—net of the secured claims—that GM could have received from anyone else for the GM assets.
Still, just as in the case of Chrysler, the approval of a restricted
bid process establishes a dangerous precedent, one that went unnoticed, or at least unnoted, by the court. In his opinion approving
the GM sale, Judge Gerber addresses the objections of some unsecured creditors and makes the following observation:
A 363 sale may . . . be objectionable as a [disguised reorganization] plan if the sale itself seeks to allocate or dictate the distribution of sale proceeds among different classes of creditors. But none of those factors is present here.
The [sale and purchase agreement] does not dictate the
terms of a plan of reorganization, as it does not attempt
to dictate or restructure the rights of the creditors of this
estate. It merely brings in value. Creditors will thereafter
share in that value pursuant to a chapter 11 plan subject
to confirmation by the Court.11
In this passage, however, Judge Gerber ignores the sales procedure, which, like that in Chrysler, strictly limited the time for competing bids and restricted bidders to those willing to assume significant UAW liabilities. The process thus precluded a potentially
higher bid by a prospective purchaser who was unwilling to make
the same concessions to the UAW that the government-sponsored
purchaser was willing to endure. Thus, there remained the theoretical possibility that the process impermissibly transferred asset
value from the company’s other creditors to the UAW. This is merely a theoretical possibility. As noted above, it may well be that no
creditor other than the government secured lenders suffered a loss
of priority from the transaction. But the case stands as precedent
that might cause later lenders to doubt whether future debtors will
be forced to live up to their obligations. And as also noted above,
wary lenders are inhospitable to economic development.
III. POTENTIAL EXTENSION

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It is tempting to dismiss the Chrysler and General Motors bankruptcy cases as sui generis. The government insinuated itself into
the process with cash in hand, and it may be that the cash was
sufficient to pay everyone at least its due. The dissenters may have
11 In

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104
been greedy, not victims. And if the judges saw things this way,
they may have been willing to approve a process that would not
have survived their scrutiny under ordinary circumstances. But
even if this is all true, the cases establish a precedent that could
undermine the bankruptcy process in the future, even if the government recedes from the scene.
Consider the following illustration, where the government as
lender or purchaser is nowhere to be found. Imagine a simple firm,
Debtor, with only two creditors, each unsecured: Supplier, owed
$60, and Bank, owed $20. After Debtor runs out of working funds
and files a bankruptcy petition, Bank offers $40 for all of Debtor’s
assets (which Bank intends to resell). Bank contends that this is
the best offer Debtor is going to get and that if Debtor does not accept the offer immediately it will be forced to liquidate piecemeal
for $10. The court agrees and approves the sale over Supplier’s objection even though there is no auction or other market test for the
value of the assets. After the sale, Debtor moves through the ordinary bankruptcy process and distributes the $40 proceeds ratably
between Supplier and Bank, with $30 to Supplier and $10 to Bank.
As long as the court is correct to accept Bank’s valuation, the
sale and the distribution are appropriate. But what if the court is
wrong? Assume that Debtor’s assets are worth $60. In this case,
Supplier should receive $45 and Bank $15. But the sale and distribution approved by the court has different consequences. Instead, Bank pays $40 for assets worth $60 (i.e., gains $20) then receives a $10 distribution from Debtor’s bankruptcy estate, for a
total effective distribution of $30, half the true value of Debtor’s assets, twice the amount to which it is entitled. All this while, as a
formal matter, it is correct to say, as the courts did in Chrysler and
GM, that the sale proceeds were distributed fairly among the creditors. The problem, of course, is not with the distribution of sale
proceeds received; the problem is with the diversion of value to the
purchaser, which paid the estate too little and thus, in its role as
a creditor, received too much. This is Supplier’s complaint in this
illustration and the dissenting creditors’ complaint in the Chrysler
and General Motors case.
In this illustration, an auction would solve the problem—because
a bidder would offer $60 foiling Bank’s scheme—as would granting
Supplier a veto over the sale to reflect its dominant position in
what would be the unsecured creditor (and only) class were the
proposed distribution part of a reorganization plan. With neither
protection in place, Supplier is left to suffer the consequences of judicial error, which can occur no matter how skilled or well meaning
the judge; skilled and well meaning are not synonymous with omniscient.
As Mark Roe and David Skeel observe in their own criticism of
the Chrysler bankruptcy, the ability of a court to approve an untested sale at the behest of some creditors over the objection of others without the safeguards prescribed by the Bankruptcy Code returns us to a past centuries’ practice referred to as the equity receivership, where it was widely believed that powerful, favored

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creditors routinely victimized the weak and unconnected.12 The
Chrysler and General Motors cases are a step back and in the
wrong direction.
IV. PROPOSED REFORM

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The Chrysler and General Motors bankruptcy cases are objectionable because they include a sale of virtually all of the debtors
assets under § 363 of the Bankruptcy Code without a market test
for the value of those assets. In Chrysler and in GM, had the price
paid for the assets been undeniably fair, dissenting creditors would
have had no basis for complaint so long as they received a ratable
share of the sale proceeds consistent with their levels of priority.
In neither case, however, was the price undeniably fair. It is problematic that in each case the process favored some creditors over
others through the assumption of some claims and the consequent
relegation of others to receive perhaps inadequate sales proceeds.
A response to this problem could be a ban on the use of § 363 to
sell all or substantially all of the assets of a debtor in bankruptcy.
Without a sale as a tool for de facto reorganization, a court would
be forced to follow the Bankruptcy Code’s procedural provisions in
an actual reorganization of a debtor and could not easily deprive
creditors of the Code’s protections. This response would be excessive, however. As long as a sale of a firm’s assets is subject to a
true market test, a sale may be the best and most efficient way to
dispose of an insolvent debtor. Indeed, bankruptcy courts have increasingly, and usefully, conducted all-asset sales.13 The key is to
ensure a true market test.
State courts have significant experience in deciding whether a
proposed sale of a firm is likely to achieve the best price for investors. Under a line of cases that comprise what is referred to as the
Revlon doctrine, the Delaware courts have imposed a standard that
directors must meet when a corporation is up for sale. While this
standard does not require any particular process in every case, the
courts have suggested that there is a general obligation for the directors of the firm to hold an auction or conduct some other form
of market test if there is a doubt about the true value of the firm.14
Congress would do well to establish as a minimum procedural safeguard state law requirements for § 363 sales of all or substantially
all of a debtor’s assets, at least where the debtor is large enough
to justify the administrative expense of such a process.
In addition, as described above, the requirement that a bidder
assume some of a debtor’s liabilities dictates the distribution of sale
proceeds, and cannot enhance the amount of those proceeds. Therefore, a condition of liability assumption is not a proper part of any
sale, and should not be permitted, regardless of applicable state
law.
12 See Roe & Skeel, cited in note 7; see also David A. Skeel, Jr., Debt’s Dominion: A History
of Bankruptcy Law in America 48–70 (2001) (describing the equity receivership and its faults).
13 This trend is noted in the Second Circuit’s affirmation of Chrysler, 2009 WL 2382766, which
sites, e.g., Douglas G. Baird and Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev.
751 (2002).
14 The recent Delaware Supreme Court case of Lyondell Chemical Co. v. Ryan, 970 A.2d 235
(Del. 2009) summarizes the current state of the Revlon doctrine (though the holding of Lyondell
addresses only a narrow issue of director liability).

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To accomplish these ends, Congress could add to the Bankruptcy
Code a new subsection of § 363, one that would provide:
The trustee may sell property under subsection (b) or (c)
of this section only if—
(1)(A) where the debtor is not a small business debtor, the
sale of all or substantially all of the debtor’s assets complies with the requirements that would be imposed on the
debtor by applicable nonbankruptcy law if the debtor were
a corporation that was not a debtor and if such corporation’s equity interest were publicly traded and subject to a
bid for control; and (B) the process for the sale of such
property imposes no condition, whether or not subject to exception, that an offeror agree to assume or pay some but not
all claims; or
(2) no holder of a claim, except a claim that will receive
on account of such claim cash equal to the allowed amount
of such claim upon distribution of the property of the estate
or as of the effective date of the debtor’s confirmed plan, objects to the sale.
This provision, if adopted, would not apply to a small business
debtor,15 which cannot be expected to absorb the expense of auctioning its assets, and would have no effect on a debtor that, while
too large to qualify as a small business debtor under the Bankruptcy Code, is still small enough that applicable state law would
not impose a market test. For large debtors such as Chrysler or
GM, however, whether or not publicly traded,16 the provision would
grant any creditor with a claim that will not be paid in full a right
to insist on the sort of process that state law would provide shareholders of a solvent firm. This would include, where appropriate,
the right to insist on an openly contested auction with ample time
for potential bidders to assess the assets on which they may bid.
Reliance on applicable state law—a common feature elsewhere in
the Bankruptcy Code—would provide a debtor with the flexibility
to opt out of an auction or other market test if exigent and unusual
circumstances would allow a firm to opt out outside of bankruptcy.
Yet, the provision would advantageously prevent a debtor from concluding a sale pursuant to a process that state law would disallow
even if a bankruptcy judge believed, perhaps mistakenly, that the
sale would be in the interest of the bankruptcy estate. That is, for
a large firm, the bankruptcy sale process could not be more permissive than that required by applicable state law. And under no circumstance could the sale of a debtor’s assets be conditioned on a
bidder’s willingness to assume some but not all of the debtor’s liabilities, as this practice is illegitimate, and was the crux of the
problem in the Chrysler and GM cases.
15 This

term is defined by § 101(51D) of the Bankruptcy Code.
proposed provision is designed to apply and to protect creditors in large, privately held
firms just as it would apply to a publicly traded firm. The reference in the proposed provision
to a ‘‘publicly traded’’ controlling interest is designed as a hypothetical test that would trigger
the applicability of the provision; such tests are common in the Bankruptcy Code. A related provision might be desirable to define ‘‘publicly traded’’ for these purposes, though this term might
be plain enough for courts to interpret in context.

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16 The

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ANNEX B: ‘‘NO BIG DEAL: THE GM AND CHRYSLER
CASES IN CONTEXT’’

(107)

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NO BIG DEAL: THE GM AND CHYSLER CASES IN
CONTEXT
Stephen J. Lubben 1
INTRODUCTION

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In the past summer, two historically important North American
corporations—Chrysler and General Motors—entered reorganization proceedings to address their longstanding financial and operational difficulties. Both debtors were provided with substantial
governmental financing from both Canada and the U.S.,2 and both
cases involved a quick sale of the ‘‘good’’ parts of the debtors’’ operating assets, while the remainder was left behind for liquidation.3
Almost every leading corporate bankruptcy academic has spoken
against the automotive bankruptcy cases. And the Chrysler and
GM chapter 11 cases have been vilified in every major finance-focused media outlet—by everyone from Ralph Nader 4 to Richard
Epstein.5 Why?
Many of the arguments against these cases, particularly those
made in the press and by some of the participants in the cases, are
hopelessly vague and amount, at heart, to a statement that the
government should prefer investors over unions.6 These are essentially political questions that do not support their related arguments, including that these cases somehow violated the ‘‘rule of
law.’’ The rule of law is not violated by a policy disagreement.
The academic critics of these chapter 11 cases make arguments
that appear more credible. But they are not any more convincing
upon close examination. For example, in his testimony before Congress,7 Professor Douglas Baird argued that the bidding procedures
approved by the courts in connection with the sale of both companies amounted to an impermissible, stealth reorganization plan because bidders were required to treat the unions in the same manner as the initial, government-sponsored bidder.
This might be true if there had been alternative bidders, but in
the absence of any evidence of such a bidder, the bidding procedures are irrelevant. The bidding procedures could require a competitive bidder to stand on its head, but if there is no such bidder
the contents of the procedures are purely academic. In a period
when the credit markets have been essentially ‘‘closed,’’ 8 those who
take for granted the existence of unknown or theoretical bidders
1 Daniel J. Moore Professor of Law, Seton Hall University School of Law. As always, Jennifer
Ruth Hoyden made this article much better than it would have been.
2 In the case of Canada, financial assistance came from both the federal and provincial (Ontario) governments.
3 E.g., In re General Motors Corp 2009 Bankr. LEXIS 1687 (Bankr. S.D.N.Y. July 5, 2009).
4 http://online.wsj.comiarticle/SB124355327992064463.html.
5
http://www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgage-opinions-colunmistsepstein.html.
6
http://
www.bloomberg.com/apps/
news?pid=20601039&refer=columnistlwoolner&sid=aNl5hvVlxqHM.
7 Because of the newness of this issue, few academics have published formal articles on these
issues. Instead, they have engaged these issues in the form of testimony and editorial writings,
which I respond to herein.
8 http:// www.ft.com/cms/s/0/8174765a–6058–11de-a09b–00144feabdc0.html.

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have some obligation to explain how such a bidder would have
bought GM, a company with $27 billion of secured debt.9
I use this short paper to address the key arguments against the
automotive cases and contextualize what happened in these two
chapter 11 cases. Stripped of their speculation and ‘‘what ifs,’’ I
show that these arguments are no more persuasive than the loose,
unsupported arguments thrown about in the popular press.10 But
first, I show how these cases, and particularly their structure—a
quick lender-controlled § 363 sale—are entirely within the mainstream of chapter 11 practice for the last decade.11
Congress may well decide, as a matter of policy, that this should
end, but until it does there is little to the idea that these cases are
‘‘unprecedented’’ in their structure.12 The identity of the DIP lender
is novel,13 but what happened is routine.14 And the identity of the
lender is not a bankruptcy issue.
I. MODERN CHAPTER 11 PRACTICE: ASSET SALES BEFORE PLANS

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There are two sections of the Bankruptcy Code applicable in
chapter 11 that explicitly authorize the sale of property. Section
363(b) authorizes a trustee, and thus the chapter 11 debtor in possession,15 to sell property of the estate outside the ordinary course
of business.16 And section 1123 provides that a chapter 11 plan
may include provisions for sale of all or any part of the property
of the estate.17 The latter course presupposes the drafting of a complete plan and disclosure statement, creditor voting, and a confirmation hearing.18 Section 363 sales are thus considered much
9 See In re General Motors Corp 2009 Bankr. LEXIS 1687, *36–37 (Bankr. S.D.N.Y. July 5,
2009)(‘‘There are no merger partners, acquirers, or investors willing and able to acquire GM’s
business. Other than the U.S. Treasury and EDC, there are no lenders willing and able to finance GM’s continued operations. Similarly, there are no lenders willing and able to finance GM
in a prolonged chapter 11 case.’’).
10 For an example of the latter, see David Brooks, The Quagmire Ahead, N.Y. Times, June
1, 2009 (arguing that ‘‘the Obama plan rides roughshod over the current private investors’’).
11 Douglas G. Baird & Robert K. Rasmussen, Chapter 11 at Twilight, 56 Stan. L. Rev. 673,
674 (2003). See also Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2331
n.2 (2008).
12 http://www.msnbc.msn.com/id/30507066/ (quoting Professor Skeel). In this article Skeel argues that government’s role in the case is unprecedented in bankruptcy history, a contention
which seems to neglect the Penn Central case in the 1970s. See In re Penn Central Transportation Co., 596 F.2d 1127, 1149 (3d Cir. 1979) (‘‘The sheer size of the expenses of administration,
the unprecedented scope and number of compromises preceding adoption of the Plan, and legislative intervention are all factors which require a unique approach. . . .’’).
13 U.S.C. § 364 (authorizing post-petition or ‘‘DIP’’ lending). In chapter 11, the debtor retains
possession or control of its bankruptcy estate, because no trustee is appointed, and is referred
to as the ‘‘debtor in possession’’ or the ‘‘DIP.’’ 11 U.S.C. § 1107(a). See David A. Skeel, Jr., The
Past, Present and Future of Debtor-In-Possession Financing, 25 Cardozo L. Rev. 1905, 1920–29
(2004).
14 Rachael M. Jackson, Comment, Responding to Threats of Bankruptcy Abuse in a Post-Enron
World: Trusting the Bankruptcy Judge as the Guardian of Debtor Estates, 2005 Colum. Bus. L.
Rev. 451, 452 (2005).
15 11 U.S.C. § 1107(a).
16 John J. Hurley, Chapter II Alternative: Section 363 Sale of all of the Debtor’s Assets Outside
a Plan of Reorganization, 58 Am. Bankr. L.J. 233, 24–41 (1984) (Noting more than twenty years
ago, that ‘‘it has become generally accepted that section 363(b) empowers a trustee or debtor
in possession to sell all of the property of the debtor outside a plan of reorganization.’’).
17 11 U.S.C. § 1123(b)(4).
18 Cf. Timothy D. Cedrone, A Critical Analysis Of Sport Organization Bankruptcies In The
United States And England: Does Bankruptcy Law Explain The Disparity In Number Of Cases?,
18 Seton Hall J. Sports & Ent. L. 297, 310–12 (2008) (explaining the chapter 11 plan process).

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faster alternatives, and the Bankruptcy Code provides no guidance
on when either procedure should be used.19
To prevent abuse of the 363 process, courts have developed rules
that prevent imposition of a reorganization plan through the sale
process.20 This is the so-called rule against ‘‘sub rosa’’ plans—that
is, plans disguised as sales.21 While all Circuits seem to follow the
rule against covert plans, the precise content of the rule varies by
Circuit.22 For example, in the 2d Circuit the rule seems to be a
subpart of that jurisdiction’s larger requirement that a pre-plan
sale be supported by a good business justification.23 Shortcutting
the Bankruptcy Code is not a business justification, good or otherwise.24
At the other end of the spectrum, the 5th Circuit seems to have
adopted a sense of the rule against disguised plans as requiring
pre-plan sales to comply with the Bankruptcy Code’s rules for plan
confirmation, particularly when all of the debtor’s assets are being
sold.25 The 2d Circuit, on the other hand, has expressly rejected
this equivalence, and has held that a pre-plan settlement can even
violate the ‘‘absolute priority rule’’ 26 if the debtor puts forth a sufficiently compelling business justification.27 In short, until the Supreme Court or Congress weighs in on this matter, the location of
the chapter 11 cases can have some bearing on the law applied in
the case.28
Once a debtor in possession elects to sell its assets in a section
363 sale, the process typically involves identifying an initial bidder,
frequently called a ‘‘stalking horse,’’ and approval of bidding procedures.29 These bidding procedures provide structure for the solicitation of competing bids, followed by an auction if any competing bids
materialize.30 Throughout the process it is widely recognized that
the bankruptcy courts have wide discretion in structuring sales of

19 See J. Vincent Aug et al., The Plan of Reorganization: A Thing of the Past?, 13 J. Bankr.
L. & Prac. 3, 45 (2004) (‘‘A Section 363 sale is generally the preferred method for selling assets
because it is quicker and less expensive, and provides a quick fix to address continuing losses,
rapidly depleting assets, and loss of cash flow.’’).
20 Jason Brege, An Efficiency Model of Section 363(b) Sales, 92 Va. L. Rev. 1639, 1650 (2006).
21 The phrase was first used in In re Braniff Airways, Inc., 700 F.2d 935 (5th Cir. 1983), but
seems to add little to the discussion.
22 James J. White, Death and Resurrection of Secured Credit, 12 Am. Bankr. Inst. L. Rev. 139,
161–63 (2004).
23 Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d
Cir. 1983).
24 In re Chrysler LLC, 2009 WL 2382766, *6 (2d Cir. Aug 05, 2009).
25 See, e.g., In re Babcock and Wilcox Company, 250 F.3d 955 (5th Cir. 2001); In re Continental Air Lines, Inc. 780 F.2d 1223 (5th Cir. 1986); see also In re Gulf Coast Oil Corp., 404
B.R. 407 (Bankr. S.D. Tex. 2009).
26 The rule that each layer of debt be paid in full, starting with the most senior debt, before
any junior claim receives any recovery. See generally Douglas G. Baird & Thomas H. Jackson,
Bargaining After the Fall and the Contours of the Absolute Priority Rule, 55 U. Chi. L. Rev. 738
(1988).
27 Motorola, Inc. v. Official Comm. of Unsecured Creditors and J.P. Morgan Chase Bank, N.A.
(In re Iridium Operating LLC), 478 F.3d 452, 466 (2d Cir. 2007).
28 Cf. Stephen J. Lubben, Delaware’s Irrelevance, 16 A.B.I. L. Rev. 267 (2008).
29 See In re O’Brien Environmental Energy, Inc., 181 F.3d 527, 530 (3rd Cir. 1999).
30 See C.R. Bowles & John Egan, The Sale of the Century or a Fraud on Creditors?: The Fiduciary Duty of Trustees and Debtors in Possession Relating to the ‘‘Sale’’ of a Debtor’s Assets in
Bankruptcy, 28 U. Mem. L. Rev. 781, 805–36 (1998).

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estate assets,31 and prospective purchasers are often counseled to
expect a ‘‘malleable’’ process.32
In particular, the ultimate goal is maximizing the value of the
estate, to increase the return to creditors.33 Thus, there is substantial caselaw to support the notion that ‘‘non-conforming’’ bids must
be considered by bankruptcy courts if doing so will increase the return to creditors.34
For much of the early years of the Bankruptcy Code and chapter
11, section 363 sales were of limited interest. Indeed, a review of
the many cases in Lynn LoPucki’s Bankruptcy Research Database 35 shows that only about a half-dozen cases before 1995 involved important 363 issues.36 But in the past ten to fifteen years,
secured lenders have used this provision, plus the control inherent
in being a secured lender—particularly control over the debtor’s
cash,37 to take charge of chapter 11 cases.38 Among the well-known
debtors that have used 363 sales in their cases are TWA, Vlasic
Foods, Polaroid and Bethlehem Steel.39
In the new world of sale-driven chapter 11 cases, the secured
lender drives the process by the simple fact that it has no obligation to fund the debtor’s reorganization attempts, and thus funding
will be provided only if it also benefits the controlling lender.40 The
lenders are willing to fund a quick sale because section 363 provides a better mechanism for selling assets than state foreclosure
law.41
Other secured lenders are protected from ‘‘low ball’’ sales by their
ability to credit bid their claim,42 and take over control of the collateral.43 Likewise, other creditors who think the sale price is too
31 In re Financial News Network, Inc., 980 F.2d 165, 169 (2d Cir. 1992) (holding that the
Bankruptcy Court may consider additional evidence pertaining to a bid after the official close
of bidding, stating that ‘‘we have observed that ‘[f]irst and foremost is the notion that a bankruptcy judge must not be shackled with unnecessarily rigid rules when exercising the undoubtedly broad administrative power granted him under the [Bankruptcy] Code) (quoting In re Lionel Corp., 722 F.2d 1063, 1069 (2d Cir. 1983)).
32 In Food Barn Stores, Inc., 107 F.3d 558, 565 (8th Cir. 1997).
33 In re Chung King, Inc., 753 F.2d 547, 549 (7th Cir. 1985).
34 See, e.g., Corp. Assets, Inc. v. Paloian, 368 F.3d 761 (7th Cir. 2004); In re Financial News
Network, Inc., 126 B.R. 152 (S.D.N.Y. 1991); In re Wintex, 158 B.R. 540 (D. Mass 1992); In re
Edwards, 228 B.R. 552 (Bankr. E.D. Pa. 1998).
35 http://lopucki.law.ucla.edu/.
36 A complete list of cases is attached as Appendix A to my testimony before the TARP Congressional Oversight Panel, available at http://cop.senate.gov/ hearings/ library/ hearing-072709detroithearing.cfm.
37 Douglas G. Baird & Robert K. Rasmussen, Private Debt and the Missing Lever of Corporate
Governance, 154 U. Pa. L. Rev. 1209, 1229 (2006).
38 Jay Lawrence Westbrook, The Control of Wealth in Bankruptcy, 82 Tex. L. Rev. 795 (2005).
39 Cf. Lynn M. LoPucki & Joseph W. Doherty, Bankruptcy Fire Sales, 106 Mich. L. Rev. 1
(2007).
40 Baird & Rasmussen, Missing Lever, supra note 37, at 1239–40. See also In re Decora
Indus., 2002 WL 32332749, at *3 (D.Del. May 20, 2002).
41 See In re Trans World Airlines, Inc., 322 F.3d 283, 28890, 293 (3d Cir. 2003).
42 In Chrysler, where the ability to credit bid was most relevant, the dissenting lenders had
no independent right to credit bid, indeed they were arguably not even secured creditors when
acting independently. Instead, all of the security interests in this loan were held by a collateral
trustee, for the benefit of all lenders. Under the loan documents, the trustee was instructed to
take orders from the agent bank upon default—Chase. At the Chrysler sale hearing, the government testified that Chase had been told it could credit bid if it did not like the deal. The dissenting lenders, representing less than 5% of the total loan, had no right under the load documents to override Chase’s decision in this regard. The government certainly could have explained this before the sale hearing, as the apparent inability to credit bid appeared to represent
a problem with these cases. http://www.creditslips.org/ creditslips/ 2009/05/ chryslercreditbidding-again.html.
43 See Bruce A. Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan. L. Rev. 69, 121–22 (1991).

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low can orchestrate a competing bid. Once the sale is completed,
the creditors are further protected during the distribution of the
sale proceeds by the normal rules of chapter 11, including the absolute priority rule 44 and the rule against ‘‘unfair discrimination.’’ 45
The basic structure used to reorganize both GM and Chrysler
was not unprecedented. Indeed, it was entirely ordinary.46 In both
cases the ‘‘good’’ assets were sold to new entities.47 The consideration for that sale goes to the ‘‘old’’ debtor, and will be distributed
according to the absolute priority rule. None of this constitutes a
covert reorganization plan or a corruption of the bankruptcy process.48
The drawn-out, debtor-controlled chapter 11 process of Eastern
Airlines and Pan Am is long gone.49 Whether this is a good thing
is open to debate, but it clearly reflects current reality 50 and creditor preference.51 Moreover, the 2005 Amendments to the Bankruptcy Code, which increased the difficulty of pursuing a traditional chapter 11 reorganization plan arguably suggest a Congressional ‘‘push’’ in favor of quicker, sale-driven chapter 11 cases.52
The notion that the speed of these cases was unique, or that the
use of section 363 to effectuate a quick sale was novel, is therefore
without merit.53 As Judge Gonzalez noted in Chrysler, ‘‘[t]he sale
transaction . . . is similar to that presented in other cases in which
exigent circumstances warrant an expeditious sale of assets prior
to confirmation of a plan. The fact that the U.S. government is the
primary source of funding does not alter the analysis under bankruptcy law.’’ 54
Of course, the academic critics of theses cases have largely avoided this line of argument. Since many of the critics were among
those to first discuss the new face of chapter 11 in an academic setting,55 and were generally supportive of the new order,56 or have
otherwise long argued for chapter 11 to move away from traditional
reorganizations in favor of market-based solutions, it could hardly
44 11 U.S.C. § 1129. Cf. John D. Ayer, Rethinking Absolute Priority After Ahlers, 87 Mich. L.
Rev. 963, 969–70 (1989).
45 Bruce A. Markell, A New Perspective on Unfair Discrimination in Chapter 11, 72 Am.
Bankr. L.J. 227, 228 (1998).
46 Douglas R. Baird, The New Face of Chapter 11, 12 Am. Bankr. Inst. L. Rev. 69, 80–82
(2004).
47 Cf. In re Dial-A-Mattress Operating Corp., 2009 Bankr. LEXIS 1801 (Bankr. E.D.N.Y. June
24, 2009) (approving 363 sale to newly created corporation).
48 See In re Trans World Airlines, Inc., 2001 Bankr. LEXIS 980, 2001 WL 1820326, *11
(Bankr. D. Del. Apr. 2, 2001).
49 Douglas G. Baird & Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751,
751 (2002) (‘‘Corporate reorganizations have all but disappeared. Giant corporations make headlines when they file for Chapter 11, but they are no longer using it to rescue a firm from imminent failure. Many use Chapter 11 merely to sell their assets and divide up the proceeds.’’).
50 Stephen J. Lubben, The ‘‘New and Improved’’ Chapter 11, 93 Ky. L.J. 839, 841–42 (2005)
(‘‘[I]t is not clear that this development promotes social welfare. Rather, lender control may only
benefit lenders.’’).
51 Harvey R. Miller & Shai Y. Waisman, Is Chapter 11 Bankrupt?, 47 B.C. L. Rev. 129, 156–
57 (2005).
52 Lubben, Stephen J., Systematic Risk & Chapter 11 (May 4, 2009). Temple Law Review,
2009; Seton Hall Public Law Research Paper No. 1399015. Available at SSRN: http://ssrn.com/
abstract=1399015.
53 Indeed, the Lehman Brothers sale was completed in even less time, with no government
involvement. Stephen J. Lubben, The Sale of the Century and Its Impact on Asset Securitization:
Lehman Brothers, 27 Am. Bankr. Inst. Journal No. 10, page 1 (2009).
54 In re Chrysler LLC, 405 B.R. 84, 87 (Bankr. S.D.N.Y. 2009), aff’d, 2009 WL 2382766 (2nd
Cir. Aug 05, 2009).
55 E.g., David A. Skeel, Jr., Creditors’ Ball: The ‘‘New’’ New Corporate Governance in Chapter
11, 152 U. Pa. L. Rev. 917, 935–38 (2003).
56 Barry E. Adler, Bankruptcy Primitives, 12 Am. Bankr. Inst. L. Rev. 219, 224–25 (2004).

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be otherwise.57 In the next part of this paper I address the more
specific arguments that these leading scholars have made in the
press and before Congress and the TARP Congressional Oversight
Panel.
II. THE ACADEMIC ARGUMENTS

In this section I address the arguments that bankruptcy academics have made against the automotive bankruptcies. These arguments are generally more sophisticated than those presented in
the cases themselves, yet I contend they still suffer from serious
flaws. I make little effort to engage the criticisms mounted by nonbankruptcy legal academics, like Professor Richard Epstein, a wellknown torts expert at the University of Chicago Law School.58 As
part of his critique of these bankruptcy cases, Professor Epstein
notes that President Obama is ‘‘no bankruptcy lawyer.’’ 59 The
same, of course, can be said for Professor Epstein—and the suggestion that the President personally negotiated these cases is silly.60
More generally, I have previously argued that many of these critiques of the chapter 11 cases show little understanding of how
chapter 11 works.61 The following arguments suffer from no such
deficiencies.

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A. Bidding Procedures and ‘‘Sub Rosa’’ Plans (Douglas Baird)
In his recent testimony before the House Subcommittee on Commercial and Administrative Law,62 Professor Baird advanced a
neat argument that the bidding procedures approved in the automotive cases so ‘‘locked in’’ a particular deal that they amounted
to a plan of reorganization, in violation of the caselaw discussed in
the prior section of this paper.
In both automotive cases, the approved bidding procedures provided that a bidder would only become a ‘‘Qualified Bidder’’ if they
agreed to assume the same collective bargaining agreements that
the initial bidder intended to assume. Because this requirement
could have led a bidder to offer less cash for the debtors’ assets—
since they would have been forced to assume this additional liability—Baird argues that the process became ‘‘both a sale and a sub
rosa plan.’’ 63
The requirement in the bidding procedures that any bidder assume the UAW agreements smacks of overreaching. But was another bidder willing to pay more than $2 billion for Chrysler’s assets or otherwise top the proffered bids? I doubt it, and if not the
bidding procedures are irrelevant.
A bidding procedure that only applies to competing bidders is a
dead letter if there are no competing bidders—the terms of the bid57 See Barry E. Adler & Ian Ayres, A Dilution Mechanism for Valuing Corporations in Bankruptcy, 111 Yale L.J. 83, 101–03 (2001); Mark J. Roe, Bankruptcy and Debt: A New Model for
Corporate Reorganization, 83 Colum. L. Rev. 527, 559 (1983).
58 http://www.law.uchicago.edu/faculty/epstein.
59 http://www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgage-opinions-columnistsepstein.html.
60 The full quote is ‘‘President Obama—no bankruptcy lawyer—twisted the arms of the banks
that have received TARP money to waive their priority.’’ Id. As I discuss infra, the ‘‘strong arming’’ argument is a contention without any supporting evidence.
61 http://www.creditslips.org/ creditslips/2009/06/the-absolute-priority-rule.html.
62 http://judiciary.house.gov/hearings/pdf/Baird090722.pdf.
63 Testimony at page 5.

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ding procedures are no more relevant than the instructions for inflating a life vest on a plane you will never fly on. The dissenting
Chrysler lenders,64 and some academic commentators,65 have argued that the bidding procedures may have deterred an unknown
bidder, thus undermining the process.
The deterrence argument presumes that the procedures have
more ‘‘stickiness’’ than they actually do. As noted in Part I, the
caselaw is abundant and clear that bankruptcy courts have an obligation to consider the highest bid presented, even if it does not conform with previously approved bidding procedures. Any investor
who contemplates buying a multi-billion dollar distressed corporation will know this—the contrary presumption is not credible.
Irrespective of the potential effects of the bidding procedures,
there are good independent reasons to think that there were no inhibited bidders who failed to appear. The automotive industry, both
domestic and foreign, is presently heavily distressed. At the same
time, the credit markets show no ability to provide the kind of financing that would be needed to purchase either GM or Chrysler.66
And why should we not trust the market information that is
available to us? The senior lenders—who could have ‘‘credit bid’’
their claim 67—showed no interest in taking on these assets. Chrysler had been trying to sell itself for months before the chapter 11
case, with no success at all.68 And recall that in 2007, a time of
easy credit and stable markets, Daimler essentially paid somebody
to take Chrysler off its hands.69 This does not suggest a group of
assets with a lot of hidden value.
Professor Baird acknowledges the theoretical nature of his concern,70 but still worries that the bankruptcy court could have done
more. It is doubtful that such a move would have had any purpose,
and thus seems to be an argument for more window dressing.
B. Plan-Sale Equivalence (Barry Adler)
In his remarks before the TARP Congressional Oversight Panel
hearing in Detroit this past July,71 Professor Adler argued
that Chapter 11 contains rules designed precisely to protect creditors from a judicial determination with which the
creditors disagree. When Judge Gonzalez approved the
Chrysler sale, he stripped these protections from the secured creditors.72
Adler goes on to argue that the requirements of chapter 11—particularly the ‘‘fair and equitable’’ and ‘‘no unfair discrimination’’
provisions of section 1129(b)—should have been applied to protect
the interests of senior creditors.
There are two problems with this analysis. First, this is not the
law in the 2d Circuit, where both GM and Chrysler’s cases were
64 http://www.forbes.com/feeds/afx/2009/05/05/afx6380833.html.
65 For

example, Mark Roe in the commentary I discuss, infra.

66 http://www.ft.com/cms/s/0/33dbf8a6-82a3-11de-ab4a-00144feabdc0.html.
67 That

is, forgiven their debt in exchange for the companies’ assets. 11 U.S.C. § 363(k).
apps/news?pid= 20601103&sid=aCWc52l2KMYs&refer=us.
timesonline.co.ulcitol/ business/industrylsectors/engineering/article1786611.

68 http://www.bloomberg.com/
69 http://business.

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ece.
70 Testimony

at pages 5–6.
documents/testimony-072709-adler.pdf.
at page 4 (discussing the Chryslers case).

71 http://cop.senate.gov/
72 Testimony

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filed. As previously discussed in Part I, the 2d Circuit has never
held that 363 sales are subject to the full requirements of chapter
11, and has affirmatively held that one key part of section 1129(b),
the absolute priority rule, can be ignored in situations where there
is a suitable justification.73 In short, Adler’s position is a fair statement of the law of the 5th Circuit, and there could be good arguments for why this is what the law in the 2d Circuit should be, but
it hardly seems fair to fault a bankruptcy court for following the
(binding) opinions issued by its own Circuit Court.
More importantly, Adler has to rely on conjecture to even invoke
the provisions of section 1129(b). As he notes, the tests he points
to are class protections that are only applicable if the class in question rejects the debtor’s plan.74 Given that more than 90% of the
Chrysler lenders supported the transaction, the reasons for imagining this class rejecting the plan are somewhat unclear.
Professor Adler argues ‘‘the accepting secured creditors were
largely recipients of government TARP funds and thus arguably beholden to the government, which engineered the distribution to the
UAW.’’ 75 This, he argues, means that the lenders would have to be
split into two classes, giving the non-TARP parties a means of rejecting the plan and invoking section 1129(b).76
The problem is that after extensive discovery and depositions,
there is still no evidence to support the claim that the TARP lenders were bullied into accepting the proffered deal in Chrysler. In
other contexts, like that of home mortgage modifications, it appears
that some of the biggest recipients of TARP funds have been the
ones least likely to bend to Administration policy.77 And if these
lenders were not ‘‘beholden’’ to the Treasury, the entire argument
evaporates.
It has to be remembered that all of the key players in these cases
were highly sophisticated. GM’s board—represented by Cravath,
Swaine & Moore—is hardly a group to be easily cowed by some
hard bargaining. And Chrysler’s senior lenders had agreed by contract to have JPMorgan Chase, the lead lender, negotiate on their
behalf.78 We would have heard if Jamie Dimon felt Chase was
being strong-armed into supporting the sale—he’s not known to be
shy.79
Likewise, it was entirely rational for the bulk of Chrysler’s secured lenders to believe that $2 billion in cash, on their $6.9 billion
claim, was, by far, the highest possible recovery they could obtain.
73 Motorola, Inc. v. Official Comm. of Unsecured Creditors and J.P. Morgan Chase Bank, N.A.
(In re Iridium Operating LLC), 478 F.3d 452, 466 (2d Cir. 2007).
74 11 U.S.C. 1129(b)(1) (‘‘if all of the applicable requirements of subsection (a) of this section
other than paragraph (8) are met with respect to a plan, the court, on request of the proponent
of the plan, shall confirm the plan notwithstanding the requirements of such paragraph if . . .’’);
see also 11 U.S.C. 1129(a)(8) (requiring all classes to accept the plan).
75 Testimony at page 5 (emphasis added).
76 See G. Eric Brunstad, Jr. & Mike Sigal, Competitive Choice Theory and the Unresolved Doctrines of Classification and Unfair Discrimination in Business Reorganizations Under the Bankruptcy Code, 55 Bus. Law. 1, 24–32 (1999).
77 http://www.bloomberg.com/apps/news?pid=20601103&sid=a7kYntqozaKo.
78 Under section 6.12 of the Chrysler collateral agreement, Chase, as agent, has the power to
release the liens granted under the loan agreements. Indeed, upon default the agent has full
control over any ‘‘Collection Enforcement Action,’’ defined to include ‘‘exercising any other right
or remedy under the [UCC] . . . or under any Bankruptcy Law or other applicable law.’’ This
is not a problem created by TARP, the Bankruptcy Code, or the federal government, but by the
loan agreement to which the lenders themselves voluntarily agreed to be bound.
79 http://www.businessweek.com/careers/managementiq/archives/2008/10/
ceoslonlthelcou.html.

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Indeed, a nearly 30% recovery is clearly better than these lenders
could have done if they had liquidated the debtor’s assets. And liquidation was the lenders’ only real alternative.
While commentators often imply that liquidation is a costless endeavor, liquidating a company the size of Chrysler would have cost
millions of dollars. Liquidation would thus only make sense if the
lenders could be sure to recover more than $2 billion plus the costs
of liquidation. Given the distressed state of the automotive industry, and the attendant effects this reality had for the value of
Chrysler’s assets, the lenders no doubt saw the wisdom of a riskfree $2 billion.
C. A return to the (Bad) old days? (David Skeel)
In testimony before Congress,80 and as more fully explained in
an article written for the American Enterprise Institute,81 David
Skeel has argued that the automotive cases represent a resurrection of the worst features of corporate reorganization from 100
years ago. In particular, Professor Skeel argues that the sale transaction in both automotive cases amounted to the kind of ‘‘sham’’
sale that was once a common feature of railroad receiverships, a
type of corporate reorganization Congress ended in the New Deal
by federalizing corporate bankruptcy.82
Skeel is undoubtedly correct that railroad receiverships involved
stylized sales of the railroad’s assets,83 but he is wrong to identify
that as the key problem with the receiverships.84 Indeed, Professor
Skeel himself previously explained that the problem with receiverships was that
[t]he Wall Street professionals who organized protective
committees in order to negotiate the reorganization
seemed to focus more on obtaining generous fees for themselves than on striking a good bargain on behalf of the
scattered investors whom they purported to represent. The
big losers, of course, were small, individual investors.85
In addition, the process was generally designed to ‘‘squeeze out’’
small bondholders, benefiting the shareholders (who were typically
large institutions) and management.86 None of this really has
much to do with the sale structure.

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80 http://judiciary.house.gov/hearings/pdf/Skeel090521.pdf.
81 http://www.american.com/archive/2009/may-2009/why-the-chrysler-deal-would-horrify-a-newdealer.
82 David A. Skeel, Jr., Debt’s Dominion: A History of Bankruptcy Law in America 48–70
(2001).
83 In particular, receiverships involved the initiation of a foreclosure action by a secured lender, the credit bid by that secured lender of its claim, and the transfer of the debtor’s assets to
a new shell corporation, capitalized as agreed by the prior holders of the debtor’s securities. Edward Sherwood Mead, Corporation Finance 406–12 (rev. ed. 1920) (describing the process used
to commence a receivership).
84 See Stephen J. Lubben, Railroad Receiverships and Modern Bankruptcy Theory, 89 Cornell
L. Rev. 1420, 1445–51 (2004).
85 David A. Skeel, Jr., Vern Countryman and the Path of Progressive (and Populist) Bankruptcy Scholarship, 113 Harv. L. Rev. 1075, 1089 (2000)(footnote omitted).
86 Stephen J. Lubben, Out of the Past: Railroads & Sovereign Debt Restructuring, 35 Geo. J.
Int’l L. 845, 850 (2004). See also In re Wabash Valley Power Ass’n, 72 F.3d 1305, 1314 (7th
Cir. 1995) (‘‘In its origins, the absolute priority rule was a judicial invention designed to preclude the practice in railroad reorganizations of ‘‘squeezing out’ intermediate unsecured creditors
through collusion between secured creditors and stockholders (who were often the same people).’’).

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And it clearly is not Professor Skeel’s primary concern either—
instead the receivership analogy simply serves as a frame for his
larger arguments that the automakers assets were undervalued
and that the structure of the sale process unduly favored the
unions over other creditors.87
But in neither case were the objecting creditors able to produce
any credible evidence that the debtors were worth more than was
being paid, and in fact the evidence presented suggested that strategy promoted by the Automotive Task Force was all that stood between these investors and a substantially lower recovery.88 In addition, before presuming that these cases were some sort of intrigue
to buy the automakers’ assets on the cheap, it once again bears
looking at the available market information. For example, the dissenting Chrysler lenders—the Indiana Pension funds—paid $17
million for their stake in the senior debt that had a face value of
$43 million. They received $15 million through the Chrysler bankruptcy process.89 That is, their claim was paid at more than 88%
of its market value, measured at the time the funds bought their
claim. If the market price was roughly accurate, then the notion
that the purchaser underpaid for Chrysler’s assets falls apart.
And if the purchaser did not underpay for the assets, then the
idea that the bankruptcy court should concern itself with the companies’ post-sale transactions with the unions also becomes suspect. The UAW is getting better treatment than other unsecured
creditors. But that better treatment is not coming from the debtor.
It is coming from the government, passing through the purchaser
of the ‘‘good’’ assets in each case. Asset buyers have no obligation
to buy anything more than they want to buy, and no obligation to
absorb any claims other than those the buyer feels it needs to operate the purchased assets.
We can debate whether it is wise for the government to bail out
the UAW, but it does not implicate the bankruptcy process unless
this bail out is being funded by value that should have gone into
the debtors’ estates. But if the assets were not undervalued, Skeel’s
argument that the funds going to the unions should have instead
gone into the estates amounts to little more than a claim that the
buyers (and thus the U.S. and Canadian governments) should have
overpaid for the debtors’ assets.90
D. Government overinvestment and the bidding procedures, again
(Mark Roe).
In a recent editorial in Forbes,91 Mark Roe criticizes the government’s decision to ‘‘flood Chrysler with money on non-commercial
terms’’ and argues that the results in that case should not be taken
at face value since ‘‘there was a market test here, but in form only,
because the bidding was for the proposed plan.’’ The first claim accuses the government of overinvestment in the automakers, the
87 This

is particularly clear from the American Enterprise Institute paper, supra note 81.
In re Chrysler LLC, 405 B.R. 84, 105–06 (Bankr, S.D.N.Y. 2009), aff’d), aff’d, 2009 WI
2382766 (2nd Cir. Aug 05, 2009)
89 http://www.creditslips.org/creditslips/2009/06/what-did-the-indiana-funds-want.html
90 Or, alternatively, that the creditors should have received a bailout too—a policy question,
and not one that demonstrates a violation of the Bankruptcy Code or the ‘‘rule of law.’’
91 http://www.law.harvard.edu/news/2009/06/15lroe.html.

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88 See

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second reanimates the argument that the bidding procedures
mattered in these cases.
It is not clear that the overinvestment argument is a bankruptcy
issue; rather, it seems like another way of saying that Professor
Roe does not agree with the Administration’s policy choices. It is
also not clear that it is an issue confined to government as DIP
lender. Most DIP financing comes from the debtor’s pre-petition
lender,92 and while these loans are often individually profitable,
one might also wonder if there were not many cases of overinvestment by banks looking to postpone the consequences of an earlier
lending mistake. Moreover, while Roe characterizes the automotive
cases as an example of the government propping up defective companies, that alone does not tell us if the move was rational or socially efficient. For example, if the government faced an even greater cost upon liquidation of the debtors through unemployment payments, unpaid environmental cleanup costs, and other analogous
expenses, providing bankruptcy financing to these debtors was the
right move.93 Indeed, unlike a private lender who can largely ignore these costs since they will be absorbed by the government, the
government as lender has a better set of incentives in this instance.
And as noted earlier, the idea that the bidding procedures prevented a ‘‘market test’’ of the value of the debtors’ assets presupposes that there was a market for these assets.
CONCLUSION

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The current reality of chapter 11 is undeniable—it is a sale-driven process, where courts seek to maximize the return to creditors.
Chrysler and GM sit contentedly within this arrangement.
In analyzing these cases, it is helpful to consider if a proffered
objection would be tenable if a private lender had structured the
cases. If not, one has to consider if the special nature of the government, and the powers inherent therein, make a difference or if the
critique in question is simply being advanced because of the proponent’s discomfort with government involvement in corporate finance.
The objecting creditors in these cases had several options. They
could have brought another buyer to the table, they could have
credit bid, and they could have even sued the agent banks or indenture trustees that allegedly let them down. The fact that the objecting creditors did not pursue any of these more traditional options, and instead chose melodrama, is quite telling. Insisting that
the buyer pay more than the debtor’s assets are worth, or that the
buyer pay specific creditors, or that the buyer not pay specific
creditors, are not bankruptcy arguments but rather rhetorical arguments.
In short, by and large, I think that the criticism of the automotive bankruptcy cases does not stand up to careful scrutiny. In
the future, Congress may choose to consider the policy implications
of a chapter 11 process that has become heavily driven by quick
92 A. Mechele Dickerson, Privatizing Ethics In Corporate Reorganizations, 93 Minn. L. Rev.
875, 908–09 (2009).
93 http://www.nytimes.com/2009/06/01/business/01deese.html.

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asset sales and lender control.94 But given the reality of current
chapter 11 practice, both GM and Chrysler’s chapter 11 cases were
not all that exceptional.

94 See George W. Kuney, Let’s Make it Official: Adding an Explicit Preplan Sale Process as
an Alternative Exit from Bankruptcy, 40 Hous. L. Rev. 1265, 1267–68 (2004).

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SECTION TWO: ADDITIONAL VIEWS

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A. REPRESENTATIVE JEB HENSARLING
Although I commend the Panel and its staff for their efforts in
producing the September report, I do not concur with all of the
analysis and conclusions presented and, thus, dissent. I would like,
however, to thank the Panel for incorporating several of the suggestions I offered during the drafting process.
I offer the following summary of my Dissenting Views:
• Over the past several months the American taxpayers have involuntarily ‘‘invested’’ over $81 billion in Chrysler, General Motors
(GM) and the other auto programs. According to the latest estimate
from the Congressional Budget Office (CBO), the investment of
TARP funds in the auto industry is expected to add $40 billion
more to the deficit than CBO calculated just five months earlier in
March 2009. This data supports Ron Bloom’s—the head of Treasury’s Auto Task Force recent comment that it is unlikely the taxpayers will recover all of their TARP funded investments in Chrysler and GM.
• By making such an unprecedented investment in Chrysler and
GM, the Administration by definition chose not to assist other
Americans who are in need. With the economic suffering the American taxpayers have endured during the past two years one wonders why Chrysler and GM merited such generosity to the exclusion of other taxpayers. The government clearly picked winners
and losers.
• In my view, the Administration used taxpayer funds to orchestrate the bankruptcies of Chrysler and GM so as to promote its economic, social and political agenda.
• A number of bankruptcy law academics at top-tier law schools
have questioned the Chrysler and GM bankruptcies. In the Chrysler and GM proceedings, Section 363 of the United States bankruptcy code was used by the Administration to upset well-established commercial law principles and the contractual expectations
of the parties. A summary of the bankruptcy issues is provided in
Annexes A and B.
• On a ‘‘before’’ v. ‘‘after’’ basis, the Chrysler and GM bankruptcy
cases make little legal or economic sense. How is it possible that
the Chrysler and GM pension funds (VEBAs)—unsecured creditors—received a greater allocation of proceeds than the Chrysler
senior secured creditors or the GM bondholders? In other words,
why did the United States government spend tens of billions of dollars of taxpayer money to bail out employees and retirees of the
UAW to the detriment of other non-UAW employees and retirees—
such as retired schoolteachers and police officers from the State of
Indiana—whose pension funds invested in Chrysler and GM indebtedness?
• A plain reading of the Emergency Economic Stabilization Act
of 2008 (EESA) would necessarily preclude the employment of
TARP funds for the benefit of the auto industry.
• The private sector must now consider incorporating the concept
of ‘‘political risk’’ into its analysis before engaging in any direct or
indirect transaction with the United States government. While private sector participants are accustomed to operating within a com-

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plex legal and regulatory environment, many are unfamiliar with
the emerging trend of public sector participants to bend or restructure rules and regulations so as to promote their economic, social
and political agenda as was clearly evident in the Chrysler and GM
bankruptcies.
• I recommend that SIGTARP investigate: (i) whether it was appropriate for the Administration to use TARP funds in the Chrysler
and GM transactions; (ii) Tom Lauria’s claim that his client,
Perella Weinberg, ‘‘was directly threatened by the White House
and in essence compelled to withdraw its opposition to the deal
under threat that the full force of the White House press corps
would destroy its reputation if it continued to fight;’’ and (iii) the
assertion that the Administration assisted with the negotiation of
a ‘‘sweetheart deal’’ for the benefit of Platinum Equity in the Delphi transaction.
• Additional recommendations are provided in my Dissenting
Views.
1. POLICY ISSUES AND FUNDAMENTAL QUESTIONS ARISING FROM THE
USE OF TARP PROCEEDS IN THE CHRYSLER AND GM BANKRUPTCIES

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Over the past several months the American taxpayers have involuntarily ‘‘invested’’ over $81 billion 525 in Chrysler, GM and the
other auto programs. Recently, in a discussion with staff members
of the Panel, Ron Bloom, the head of Treasury’s Auto Task Force,
stated that it is unlikely the taxpayers will recover all of their
TARP-funded investments in Chrysler and GM.526 In addition,
auto assistance provided by the Administration has added tens of
billions of dollars to the budget deficit, and the losses are continuing to increase above and beyond initial expectations. According to the latest estimate from the Congressional Budget Office
(CBO), the investment of TARP funds in the auto industry is expected to add $40 billion more to the deficit than CBO calculated
just five months earlier in March 2009.527 A reasonable interpreta525 According to the Panel’s report, as of August 5, 2009, over $73 billion of TARP funds remain outstanding with respect to the auto programs.
526 Following Mr. Bloom’s statement, Treasury staff contacted COP staff and attempted to
clarify Mr. Bloom’s comments. The Treasury staff members stressed that the recovery of the
TARP funds invested in Chrysler and GM will ultimately depend upon the financial success or
failure of Chrysler and GM and whether a favorable market develops for the sale of the equity
interests held by the United States government in the automakers. In addition, they stated that
although Mr. Bloom may have appeared ‘‘personally pessimistic’’ during his meeting with COP
staff, it is simply not possible for the Auto Task Force to predict the future value of Chrysler
and GM stock. The Treasury staffers did acknowledge that the equity interests of Chrysler and
GM will have to ‘‘appreciate sharply’’ for the American taxpayers to receive repayment in full.
This attempt to explain Mr. Bloom’s remarks is not particularly helpful because it is apparent
that the TARP funds will not be repaid unless Chrysler and GM perform in an extraordinary
manner—something they have not done in a long time. That Mr. Bloom—the head of the Auto
Task Force—may be ‘‘personally pessimistic’’ regarding these prospects remains significant.
527 See ‘‘The Budget and Economic Outlook: An Update,’’ Congressional Budget Office, August
2009, pages 55–56, at www.cbo.gov/ftpdocs/105xx/doc10521/08–25–BudgetUpdate.pdf. The report
provides in part:
The improvement in market conditions results in a reduction in the subsidy rate associated
with the Capital Purchase Program (CPP—a major initiative through which the government
purchases preferred stock and warrants (for the future purchase of common stock) from banks.
CBO has dropped the projected subsidy for the remaining investments in that program from
35 percent in the March baseline to 13 percent. The decrease in the estimated CPP subsidy cost
also reflects banks’ repurchase of $70 billion of preferred stock through June. Similarly, the estimated subsidy cost for other investments in preferred stock (for example, that of American
International Group) has also been reduced. Partially offsetting those reductions in projected
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tion of such estimate provides that the American taxpayers may
suffer a loss of over 50 percent of the TARP funds invested in
Chrysler, GM and the other auto programs. How is it possible that
with the economic challenges facing our nation the Administration
chose to allocate such a significant share of the TARP to such questionable investments? 528 How much additional funding will be provided by the Administration for Chrysler and GM? What is the
strategy and timeline for recouping taxpayer dollars? What are the
metrics for determining whether or not Chrysler and GM are ‘‘successful,’’ and will the Administration continue to provide assistance
until this is attained? If the Administration now equates TARP
funds with Stimulus funds, why not direct the resources in the
most efficient, equitable and transparent manner by granting tax
relief to small businesses—the economic engine that creates approximately three out of every four jobs—and other American taxpayers?
By making such an unprecedented investment in Chrysler and
GM 529 the Administration by definition chose not to assist other
Americans who are in need. With the economic suffering the American taxpayers have endured during the past two years, one wonders why Chrysler and GM merited such generosity to the exclusion of other taxpayers.530 Why, indeed, did the United States government choose to reward two companies that have been arguably
mismanaged for many years at the expense of other hardworking
taxpayers? 531 More poetically, The New York Times on July 25
costs is the expansion of assistance to the automotive industry; CBO has raised its estimate of
the costs of that assistance by nearly $40 billion relative to the March baseline. [emphasis added.]
In addition, our country faces a staggering deficit of $1.6 trillion in 2009, and a debt that
more-than triples in ten years.
528 Section 113 of EESA discusses the ‘‘[m]inimization of long-term costs and maximization of
benefits for taxpayers.’’ It gives a clear mandate that the Treasury Secretary must consider the
burdens and benefits to taxpayers in assessing initial outlays as well as potential long-term returns and economic benefits.
529 In the bankruptcy proceedings for Chrysler and GM, (i) ‘‘Old Chrysler’’ sold substantially
all of its assets to ‘‘New Chrysler’’ and (ii) ‘‘Old GM’’ sold substantially all of its assets to ‘‘New
GM,’’ each pursuant to Section 363 of the United States Bankruptcy Code. For purposes of simplicity, I generally refer to these entities as ‘‘Chrysler’’ or ‘‘GM,’’ but occasionally employ other
terms as appropriate.
530 In a written response to the Panel the Administration stated:
Outright failure of GM and Chrysler would likely have led to uncontrolled liquidations in the
automotive industry, with widespread devastating effects. Importantly, the repercussions of such
liquidations could have included immediate and long-term damage to the U.S. manufacturing/
industrial base, a significant increase in unemployment with direct harm to those both directly
and indirectly related to the auto sector (e.g., dealerships being shuttered, plant closings, supplier failures, service centers closing, etc.), and further damaged our financial system, as automobile financing accounts for a material portion of our overall financial activity.
Under the direction of the President, the Administration sought to avoid such disruptions to
the financial system and the economy as a whole by providing the minimum capital necessary
to these companies to facilitate their restructurings. Prior to advancing new funds, the Administration has relied on commercial principles in determining the viability of these businesses and
in structuring the terms of its investments.
The President’s March 30th, April 30th, and June 1st speeches detail the rationale for further
investments in the companies.
Unfortunately, the Administration’s response does not address how the $81 billion allocated
to the auto programs could have been spent to assist other American taxpayers, including small
businesses.
531 In a written response to the Panel neither Chrysler nor GM acknowledged that by rescuing
the two distressed and arguably mismanaged automakers the United States government chose
not to assist other American taxpayers.
Chrysler response:
Please refer to (1) the materials submitted to the U.S. Congress by Chrysler LLC on December
2, 2008, (2) the Restructuring Plan for Long-Term Viability submitted by Chrysler LLC to the
U.S. Treasury on February 17, 2009, and (3) the testimony and supporting materials from
Chrysler LLC and its advisors that are part of the public record in the bankruptcy proceedings

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asked: ‘‘Why, after all, should the automakers receive the equivalent of a Technicolor dreamcoat, giving them favorite-son status,
when other industries, like airlines and retailers, also have suffered from the national recession?’’ More bluntly, the September
2009 issue of The Atlantic simply cut to the bottom line: ‘‘Essentially, the government was engineering a transfer of wealth from
TARP bank shareholders to auto workers, and pressuring other
creditors to go along.’’ 532 The Chrysler and GM reorganizations
represent a sad day for the rule of law, the sanctity of commercial
law principles and contractual rights, long term economic growth,
and the ideal that the United States government should not pick
winners and losers.
Given the unorthodox reordering of the rights of the Chrysler
and GM creditors, a fundamental question arises as to whether the
Administration directed that TARP funds be used to advance its
economic, social and political objectives rather than to stabilize the
American economy as required by EESA. It has long been my view
that the United States government should not engage in the business of picking winners and losers and certainly should not allocate
its limited resources to favor one group of taxpayers over another.
Following the Chrysler and GM bankruptcies one has to question
what’s next in the Administration’s playbook—a bailout of the airline industry and its unionized workforce? What about Starbucks?
2. TRANSFER OF TARP PROCEEDS AND RETIREMENT SAVING OF INDIANA SCHOOL TEACHERS AND POLICE OFFICERS TO THE UAW AND
THE VEBAS

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On a ‘‘before’’ v. ‘‘after’’ basis the Chrysler and GM bankruptcy
cases make little legal or economic sense.533 How is it possible that
of Chrysler LLC pending in the U.S. Bankruptcy Court for the Southern District of New York.
These public materials provide comprehensive information detailing the sudden and drastic effects of the global credit crisis on the U.S. auto industry, the potential disastrous effects on the
U.S. economy of a liquidating bankruptcy of Chrysler, and the potential for the new Chrysler
to preserve tens of thousands of jobs and generate billions of dollars of federal, state and local
tax revenues in the U.S.
GM response:
The government’s provision of debtor-in-possessing financing when none was available in the
private market, along with its other support for General Motors, enabled the company to go
through bankruptcy without liquidation. As Mr. McAlinden testified, the government’s actions
probably avoided millions of job losses and billions of dollars of lost income and lost tax revenue.
These millions of taxpayers, along with the state and local governments which their taxes support, benefited substantially from the government’s involvement. Beyond this, the soundness of
the government’s investment will only be proved out over time.
532 See
‘‘The Final Days of Merrill Lunch,’’ The Atlantic, September 2009, at
www.theatlantic.com/doc/200909/bank-of-america.
533 The Chrysler and GM bankruptcy rearranged the rights of the creditors and equity holders
as follows:
Chrysler. Pursuant to the Chrysler bankruptcy, the equity of New Chrysler was allocated as
follows:
(i) United States government (9.846% initially, but may decrease to 8%),
(ii) Canadian government (2.462% initially, but may decrease to 2%),
(ii) Fiat (20% initially, but may increase to 35%), and
(iii) UAW (comprising current employee contracts and a VEBA for retired employees)
(67.692%, but may decrease to 55%).
The adjustments noted above permit Fiat to increase its ownership interest from 20% to 35%
by achieving specific performance goals relating to technology, ecology and distribution designed
to promote improved fuel efficiency, revenue growth from foreign sales and U.S. based production.
Some, but not all, of the claims of the senior secured creditors were of a higher bankruptcy
priority than the claims of the UAW/VEBA.
Continued

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the Chrysler and GM VEBAs 534—unsecured creditors—received a
greater allocation of proceeds than the Chrysler senior secured
creditors or the GM bondholders? In other words, why did the
United States government spend tens of billions of dollars of taxpayer money to bail out employees and retirees of the UAW to the
detriment of other non-UAW employees and retirees—such as retired school teachers and police officers from the State of Indiana 535—whose pension funds invested in Chrysler and GM indebtThe Chrysler senior secured creditors received 29 cents on the dollar ($2 billion cash for $6.9
billion of indebtedness).
The UAW/VEBA, an unsecured creditor, received (x) 43 cents on the dollar ($4.5 billion note
from New Chrysler for $10.5 billion of claims) and (y) a 67.692% (which may decrease to 55%)
equity ownership interest in New Chrysler.
GM. Pursuant to the GM bankruptcy, the equity of New GM was allocated as follows:
(i) United States government (60.8%),
(ii) Canadian government (11.7%),
(iii) UAW (comprising current employee contracts and a VEBA for retired employees) (17.5%),
and
(iv) GM bondholders (10%).
The bankruptcy claims of the UAW/VEBA and the GM bondholders were of the same bankruptcy priority.
The equity interest of the UAW/VEBA and the GM bondholders in New GM may increase
(with an offsetting reduction in each government’s equity share) to up to 20% and 25%, respectively, upon the satisfaction of specific conditions. It is important to note, however, the warrants
received by the UAW/VEBA and the GM bondholders are out of the money and it’s possible they
will not be exercised. As such, it seems likely that the UAW/VEBA and the GM bondholders
will hold 17.5% and 10%, respectively, of the equity of New GM.
The GM bondholders exchanged $27 billion in unsecured indebtedness for a 10% (which may
increase to 25%) common equity interest in New GM, while the UAW/VEBA exchanged $20 billion in claims for a 17.5% (which may increase to 20%) common equity interest in New GM and
$9 billion in preferred stock and notes in New GM.
534 The Chrysler and GM VEBAs (voluntary employee benefit associations) administer and
fund the health and retirement plans of Chrysler and GM retirees.
535 The Chrysler senior secured debt and the GM bonds were held by pension funds (for the
benefit of retirees such as the Indiana school teachers and police officers), individuals (including
the retirees who have contacted my office to ask why they lost their savings but UAW employees
benefited) as well as different types of business entities.
Mr. Richard E. Mourdock, the Indiana State Treasurer tirelessly challenged the Administration’s attempt to abrogate commercial and contractual law principles in the Chrysler Section 363
sale on behalf of, among others, pension funds for retired Indiana school teachers and police
officers.
Mr. Mourdock has not conceded the match and on September 3, 2009 filed a Petition for Writ
of Certiorari with the United States Supreme Court on behalf of the Indiana pension funds for
retired school teachers and police officers. The Petition may be found at www.in.gov/ tos/files/
Inl rel ChryslerlLLCl Certl Petition.pdf.
The Petition (at page i) asks the Court to consider the following question:
Chrysler’s first lien lenders received a liquidation based recovery while unsecured creditors
received over $20 billion of going-concern value in cash, new notes and stock from the reorganized business. Affirming, the Second Circuit declared that ‘‘[t]he ‘side door’ of § 363(b) may well
‘replace the main route of chapter 11 reorganization plans.’’
The question presented is whether section 363 may freely be used as a ‘‘side door’’ to reorganize a debtor’s financial affairs without adherence to the creditor protections provided by the
chapter 11 plan confirmation process.
The Petition (at pages 37–39) argues:
Regardless of its outcome, the Chrysler bankruptcy carries profound implications for the Nation’s economy. Going forward, nearly everyone will feel the impact, from auto workers and suppliers to pensioners and bondholders to unrelated companies who hope to raise money through
the sale of secured debt in the future. This is all the more true because this case is but one
of the most extreme manifestations of an increasingly common occurrence—the use of a section
363 sale to bypass the chapter 11 plan confirmation process.
With these results, it is hard to imagine why other companies facing mounting debt and possible bankruptcy would not take this path, even without Government financing. See Roe &
Skeel, supra, at 26 (‘‘a coalition of creditors, managers, and (maybe) shareholders could present
a § 363 ‘plan’ to the court for approval, and the plan could squeeze out any creditor class.’’); see
also Micheline Maynard, Automakers’ Swift Cases in Bankruptcy Shock Experts, N.Y. Times,
July 6, 2009 (‘‘For businesses that follow similar legal strategies, the G.M. and Chrysler cases
could pave the way for a faster trip through court.’’).
Any struggling company could, after having made side deals with its favorite creditors or equity holders that the bankruptcy court imposes on other potential bidders, use section 363 to
‘‘sell’’ its valuable assets to a shell company at a deflated price, and in so doing eliminate all
of its other debt obligations.

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edness? 536 Chrysler and GM were restructured with taxpayer
money, that is, funds from the TARP. After New Chrysler and New
GM purchased the assets of the old auto makers, it’s relatively
clear that the new entities had little choice but to enter into collective bargaining agreements with the UAW—the companies needed
workers. But what’s not clear is why the new entities transferred
a substantial amount of equity to the VEBAs of New Chrysler and
New GM.
Do the Administration and the UAW/VEBAs expect the American people to believe that the UAW employees would have refused
to work for New Chrysler and New GM without receiving ‘‘the
equivalent of a Technicolor dreamcoat’’? I suspect the employees
would have been grateful for a job at a decent wage even if the
VEBAs had ‘‘only’’ received proceeds in accordance with commercial
law principles and the contractual expectations of the various
bankruptcy claimants. Yes, I appreciate that Old Chrysler and Old
GM owed substantial sums to their respective VEBAs and, yes, I
agree that the claims should have been paid in full, but, no, I do
not concur that the VEBAs should have received a windfall at the
expense of Indiana school teachers and police officers and the other
creditors of Old Chrysler and Old GM. The ‘‘company needs skilled
workers’’ defense only goes so far given the adverse economic conditions affecting American manufacturing these days. Such an excuse
cannot be used to obfuscate the transfer of taxpayer-sourced TARP
funds to a favored political constituency.
If you trace the funds, TARP money was employed by New
Chrysler and New GM to purchase assets of the old auto makers,
yet a substantial portion of the equity in the new entities was
transferred to the VEBAs and, thus, not retained for the benefit of
The high profile of this case and the extremes to which the courts below went to bless the
Chrysler sale have shone a light on issues critical to many bankruptcy cases and the capital
markets. There can be little doubt that these issues demand the Court’s attention. There will
be no better chance to address them than this, the case that most profoundly presents them;
and there will be no better time to review them than now, when the urgency of an impending
sale has passed and there is time for cool reflection about the implications of what has transpired.
The Petition (at pages 40–42) seeks the following relief:
The Indiana Pensioners, however, do not seek to unwind that sale by this appeal, and section
363(m), by its express terms, contemplates that a sale order can be reversed—even where a sale
has been consummated—so long as ‘‘a remedy can be fashioned that will not affect the validity
of the sale.’’
The Second Circuit itself has observed that it is not ‘‘clear why an appellate court, considering
an appeal from an unstayed but unwarranted order of sale to a good faith purchaser, could not
order some form of relief other than invalidation of the sale.
Such is the case here, where the Indiana Pensioners seek reversal of the Transaction Orders
only to the extent that the distribution of proceeds was inequitable. The effect of those unwarranted orders could be remedied without disturbing the validity of the sale to New Chrysler,
for example, by compelling the VEBA and the UAW to return to the bankruptcy estate the $4.6
billion note and common stock that they received under the transaction to be properly distributed pursuant to a chapter 11 plan of reorganization.
536 In a written response to the Panel the Administration stated:
The President directed the auto team to take a commercial approach to the restructuring process of these companies. As a result, the Administration dealt with the various creditors to GM/
Chrysler as a commercial actor would. The final division of debt, preferred, and equity securities
between the various creditors was the result of arm’s length negotiations.
The UAW/VEBA had many billions of dollars of claims and labor agreements governing the
companies’ active workforces. As part of this process the Union agreed to major modifications
in their labor agreements. Under the new contracts, the VEBA received a stake in the reorganized companies without any immediate payment. The cooperation and support of the UAW is
essential to the ability of the reorganized companies to succeed.
This response carefully avoids the fundamental issue—why were the UAW/VEBAs preferred
to the Indiana school teachers and police officers, among other creditors?

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the American taxpayers (who funded the TARP) or shared with
other creditors of Old Chrysler and Old GM. Accordingly, it’s hardly a stretch to conclude that TARP funds were transferred to the
UAW and the VEBAs after being funneled through New Chrysler
and New GM. In addition, New Chrysler and New GM entered into
promissory notes and other contractual arrangements for the benefit of the VEBAs, but not for the benefit of the other creditors of
Old Chrysler and Old GM. Why did the United States government—the controlling shareholder of New Chrysler and New GM—
direct New Chrysler and New GM to make an exclusive gift of taxpayer funds to the VEBAs? Why didn’t New Chrysler and New GM
transfer more of their equity interests to the creditors of Old
Chrysler and Old GM? Why were Indiana school teachers and police officers and other investors in the Chrysler senior secured indebtedness and the GM bonds in effect forced by the Administration to transfer a portion of their claims against Chrysler and GM,
respectively, to the UAW and the VEBAs? That is, why did the Administration orchestrate two bankruptcy plans whereby one group
of employees and retirees was preferred to another?
Over the past two weeks the Administration has undertaken to
educate the Panel regarding the due diligence investigation undertaken by the Auto Task Force and its advisors with respect to the
Chrysler and GM transactions. That Mr. Bloom and the CBO now
believe the American taxpayers may lose part of their TARP investments in the auto industry seems to negate both the seriousness
and the effectiveness of any due diligence undertakings. I have little doubt that many detailed memos were prepared and that a multitude of attorneys, CPAs and other advisors worked long hours
producing prodigious due diligence files. But to what purpose were
these efforts directed? How is it possible that the Administration—
based upon its putative due diligence—invested $81 billion in the
auto industry only to discover less than three months later that it
overinvested and may suffer substantial losses? What intervening
event occurred to cause such a loss in value? Absence total incompetence on behalf of Treasury and its advisors—a theory I do not
accept—only one answer follows—the Administration was determined to bail out the auto industry and the UAW/VEBAs regardless of the cost to the American taxpayers and the due diligence
undertakings served as nothing more than expensive window
dressing.

smartinez on DSKB9S0YB1PROD with HEARING

3. MESSAGES TO NON-UAW EMPLOYEES AND THE FINANCIAL MARKETS

What message does the Chrysler and GM holdings send to nonUAW employees whose pension funds invested in Chrysler and GM
indebtedness—you lose part of your retirement savings because
your pension fund does not have the special political relationships
of the UAW? What message does the Chrysler and GM bankruptcies send to the financial markets—contractual rights of investors may be ignored when dealing with the United States government?
In written testimony submitted to the Panel, Barry E. Adler,
Professor of Law and Business at New York University, noted:

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smartinez on DSKB9S0YB1PROD with HEARING

There are at least two negative consequences from the
disregard of creditor rights. First, at the time of the deviation from contractual entitlement, there is an inequitable
distribution of assets. Take the Chrysler case itself, where
the approved transaction well-treated the retirement funds
of the UAW. If such treatment deprived the secured creditors of their due, one might well wonder why the UAW
funds should be favored over other retirement funds, those
that invested in Chrysler secured bonds. Second, and at
least as importantly, when the bankruptcy process deprives a creditor of its promised return, the prospect of a
debtor’s failure looms larger in the eyes of future lenders
to future firms. As a result, given the holding in Chrysler,
and the essentially identical holding in the General Motors
case, discussed next, one might expect future firms to face
a higher cost of capital, thus dampening economic development at a time when the country can least well afford impediments to growth.
In a recent article analyzing the Chrysler and GM bankruptcies,
Mark J. Roe and David A. Skeel, Professors of Law at Harvard
University and the University of Pennsylvania, respectively, noted:
Warren Buffett worried in the midst of the reorganization that there would be ‘‘a whole lot of consequences’’ if
the government’s Chrysler plan emerged as planned,
which it did. If priorities are tossed aside, as he implied
they were, ‘‘that’s going to disrupt lending practices in the
future.’’ ‘‘If we want to encourage lending in this country,’’
Buffett added, ‘‘we don’t want to say to somebody who
lends and gets a secured position that the secured position
doesn’t mean anything.’’ 537
In a recent Op-Ed in The Wall Street Journal, Todd J. Zywicki,
Professor of Law at George Mason University, noted:
By stepping over the bright line between the rule of law
and the arbitrary behavior of men, President Obama may
have created a thousand new failing businesses. That is,
businesses that might have received financing before but
that now will not, since lenders face the potential of future
government confiscation. In other words, Mr. Obama may
have helped save the jobs of thousands of union workers
whose dues, in part, engineered his election. But what
about the untold number of job losses in the future caused
by trampling the sanctity of contracts today? 538
In the September 2009 issue of The Atlantic, William D. Cohan
notes:
The rules as to how the government will act are not
what we learned,’’ explained Gary Parr, the deputy chairman of Lazard and one of the leading mergers-and-acquisi537 Roe, Mark J. and Skeel, David A., Assessing the Chrysler Bankruptcy (August 12, 2009).
U of Penn Law School, Public Law Research Paper No. 09–17; U of Penn, Inst for Law & Econ
Research Paper No. 09–22. Available at SSRN: ssrn.com/abstract=1426530.
538 The
Wall
Street
Journal,
May
13,
2009,
at
online.wsj.com/article/
SB124217356836613091.html.

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smartinez on DSKB9S0YB1PROD with HEARING

tions advisers to financial institutions. ‘‘In the last 12
months, new precedents have been set weekly. The old
rules often don’t apply as much anymore.’’ He said the recent examples of the government’s aggression are ‘‘a really
big deal,’’ but adds, ‘‘I am not sure it is going to last a long
time. I sure hope not. I can’t imagine the markets will
function properly if you are always wondering if the government is going to step in and change the game.539
In his testimony before the Judiciary Committee of the United
States House of Representatives on May 21, 2009, Andrew M.
Grossman, Senior Legal Policy Analysts, The Heritage Foundation,
stated:
Also detrimental to General Motors and Chrysler is the
difficulty that they will have accessing capital and debt
markets. Lenders know how to deal with bankruptcy—it’s
a well understood risk of doing business. But the tough
measures employed by the Obama Administration to cram
down debt on behalf of the automakers were unprecedented and will naturally make lenders reluctant to do
business with these companies, for fear they could suffer
the same fate. Even secured and senior creditors, those
who forgo higher interest rates to protect themselves
against risks, suffered large, unexpected losses. So nothing
that either company can offer, no special status or security
measure, can fully assuage lenders’ fears that, in an economic downturn, they could be forced to accept far less
than the true value of their holdings. At best, if General
Motors and Chrysler have access to debt markets at all,
they will have to pay dearly for the privilege. At worst,
even high rates and tough covenants will not be enough to
attract interest.
The Obama Administration’s transparent favoritism toward its
political supporters in the United Auto Workers Union may lead
other unions to demand the same: hefty payouts and ownership
stakes in exchange for halfhearted concessions. Lenders know now
that the Administration is unable to resist such entreaties. As one
hedge fund manager observed, ‘‘The obvious [lesson] is: Don’t lend
to a company with big legacy liabilities, or demand a much higher
rate of interest because you may be leapfrogged in bankruptcy.’’
Perhaps the most affected will be faltering corporations and
those undergoing reorganization—that is, the enterprises with the
greatest need for capital. Lending money to a nearly insolvent company is risky enough, but that risk is magnified when bankruptcy
ceases to recognize priorities or recognize valid liens. With private
capital unavailable, larger corporations in dire straits will turn to
the government for aid—more bailouts—or collapse due to undercapitalization, at an enormous cost to the economy.
Financial institutions—enterprises that the federal government
has already spent billions to strengthen—will also be affected.
Many hold debt in domestic corporations that could be subject to
539 See
‘‘The Final Days of Merrill Lynch,’’
www.theatlantic.com/doc/200909/bank-of-america.

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government rescue, rendering their obligations uncertain. It is that
uncertainty which transforms loans into impossible-to-value toxic
assets and blows holes in balance sheets across the economy.
Finally, there are the investors, from pension funds and school
endowments to families building nest eggs for their future. General
Motors bonds, like the debt of other long-lived corporations, has
been long regarded as a refuge from the turmoil of equity markets.
The once-safe investment held directly by millions of individuals
and indirectly, though funds and pensions, by far more, are now at
risk, which will be reflected in those assets’ values.540
4. THE USE OF TARP FUNDS IN THE CHRYSLER AND GM BANKRUPTCIES

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As part of its review of auto industry TARP financing, the Panel
must investigate Treasury’s rationale for using funding from a program intended to prevent systemic meltdown in the financial sector
to support failing automakers. Section 101(a)(1) of the EESA states
that:
The Secretary [of the Treasury] is authorized to . . .
purchase, and to make and fund commitments to purchase,
troubled assets from any financial institution, on such
terms and conditions as are determined by the Secretary,
and in accordance with this Act and the policies and procedures development and published by the Secretary. [emphasis added.]
A plain reading of the statute would necessarily preclude the employment of TARP funds for the benefit of the auto industry because, among other reasons, neither Chrysler nor GM qualifies as
a ‘‘financial institution.’’ If Chrysler and GM are somehow deemed
to qualify as ‘‘financial institutions,’’ then what business enterprise
will fail to so qualify? If Congress had intended for TARP to cover
all business enterprises it would not have incorporated such a restrictive term as ‘‘financial institution’’ into EESA.
Further, a funding bill specifically aimed at assisting the auto industry was not approved by Congress. Nevertheless, the Bush Administration extended credit to Chrysler and GM and the Obama
Administration orchestrated the Chrysler and GM bankruptcies
which resulted in an investment of over $81 billion in the auto industry.
Since the authority for such an investment remains unclear, I request that the Administration provide the Panel with a formal
written legal opinion justifying.541
540 Andrew M. Grossman, Senior Legal Policy Analyst, The Heritage Foundation, ‘‘Bailouts,
Abusive Bankruptcies, And the Rule of Law,’’ Testimony before the Judiciary Committee of the
United States House of Representatives, May 21, 2009, at www.heritage.org/Research/Economy/
tst052209a.cfm.
541 In a written response to the Panel the Administration stated:
The Treasury described the authority to use TARP funds to finance the old Chrysler and GM
in bankruptcy court filings made on its behalf by the Department of Justice, specifically in the
Statement of the United States of America Upon The Commencement of General Motors Corporation’s Chapter 11 Case filed June 10, 2009, a copy of which has been provided to the Panel.
In Judge Gerber’s final sale order in the GM bankruptcy case dated July 5, 2009, also provided
to the Panel, he wrote:
The U.S. Treasury and Export Development Canada (‘‘EDC’’), on behalf of the Governments
of Canada and Ontario, have extended credit to, and acquired a security interest in, the assets
of the Debtors as set forth in the DIP Facility and as authorized by the interim and final orders
Continued

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(i) the use of TARP funds to support Chrysler and GM prior to
their bankruptcies;
(ii) the use of TARP funds in the Chrysler and GM bankruptcies;
(ii) the transfer of equity interests in New Chrysler and New GM
to the UAW/VEBAs; and
(iii) the delivery of notes and other credit support by New Chrysler and New GM for the benefit of the UAW/VEBAs.542
5. HOW THE CHRYSLER AND GM BANKRUPTCIES HAVE BEEN RECEIVED
BY BANKRUPTCY SCHOLARS

smartinez on DSKB9S0YB1PROD with HEARING

A number of bankruptcy law academics at top-tier law schools
have questioned the Chrysler and GM bankruptcies. In the Chrysler and GM proceedings, Section 363 of the United States bankruptcy code was used by the Administration to upset well established commercial law principles and the contractual expectations
of the parties. As Professors Adler, Roe and Skeel note, the Chrysler and GM bankruptcy courts required each Section 363 bidder to
assume certain obligations of the UAW/VEBAs as part of its bid.
This means that potential purchasers could not simply acquire the
assets free and clear of the liabilities of the seller, but, instead,
were also required to assume certain of those liabilities. This requirement most likely chilled the bidding process and precluded
the determination of the true fair market value of the assets held
by Chrysler and GM. By disrupting the bidding process it’s entirely
possible that TARP proceeds were misallocated away from the
Chrysler senior secured creditors and the GM bondholders to the
UAW/VEBAs. Although I do not concur that EESA authorized the
use of TARP proceeds in the Chrysler and GM bailouts, it’s nevertheless important to follow the TARP funds once they were committed.
A summary of the analysis of Professors Adler, Roe, Skeel and
Lubben as well as a set of examples are included in an Annex to
approving the DIP Facility (Docket Nos. 292 and 2529, respectively). Before entering into the
DIP Facility and the Loan and Security Agreement, dated as of December 31, 2008 (the ‘‘Existing UST Loan Agreement’’), the Secretary of the Treasury, in consultation with the Chairman
of the Board of Governors of the Federal Reserve System and as communicated to the appropriate committees of Congress, found that the extension of credit to the Debtors is ‘‘necessary
to promote financial market stability,’’ and is a valid use of funds pursuant to the statutory authority granted to the Secretary of the Treasury under the Emergency Economic Stabilization
Act of 2008, 12 U.S.C. §§ 5201 et seq. (‘‘EESA’’). The U.S. Treasury’s extension of credit to, and
resulting security interest in, the Debtors, as set forth in the DIP Facility and the Existing UST
Loan Agreement and as authorized in the interim and final orders approving the DIP Facility,
is a valid use of funds pursuant to EESA.
The rationale and determination of the ability to use TARP funds applies equally to the financing provided to the new Chrysler. There was no new financing provided to New GM. Instead, cash flowed from old GM to new GM as part of the asset sale, and new GM assumed
a portion of the loan that Treasury had made to old GM.
The interests received by other stakeholders of Chrysler and GM including the UAW/VEBAs
were a result of negotiations between all stakeholders as described in detail by myself and
Harry Wilson in our depositions in the bankruptcy cases, transcripts of which have been provided to the Congressional Oversight Panel.
I find the response unhelpful and ask the Administration to provide a formal written legal
opinion supporting its position. Since Congress specifically rejected the bailout of Chrysler and
GM, under what theory and precedent did the Executive unilaterally invest $81 billion in these
non-financial institutions?
542 The promissory notes issued to the UAW/VEBAs are senior to the equity issued to the
United States government. Since the government controlled New Chrysler and New GM at the
time the notes were issued, it’s apparent that the government agreed to subordinate the TARP
claims held by the American taxpayers to the claims held by the UAW/VEBAs. What was the
purpose of the subordination except perhaps to prefer the claims of a favored class over the
claims of the taxpayers who funded the TARP program?

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these Dissenting Views. The examples illustrate how the Administration manipulated Section 363 of the bankruptcy code to achieve
its economic, social and political objectives at the expense of the
American taxpayers and the Chrysler senior secured creditors and
GM bondholders.
6. PRESSURE ON TARP RECIPIENTS AND A HIGHER STANDARD OF
CONDUCT FOR THE UNITED STATES GOVERNMENT

smartinez on DSKB9S0YB1PROD with HEARING

The technical bankruptcy laws issues illustrated in the Annex
are exacerbated because the winning purchaser in the Chrysler and
GM cases—entities directly or indirectly controlled by the United
States government—had virtually unlimited resources, which is
certainly not the case in typical private equity transactions. The
matter becomes particularly muddled when you consider that a majority in interest of the Chrysler senior secured debt was held by
TARP recipients at a time when there was much talk in the press
about ‘‘nationalizing’’ some or all of these institutions. It is not difficult to imagine that these recipients felt direct pressure to ‘‘get
with the program’’ and support the Administration’s proposal.543
In addition, the United States government should have held
itself to a higher standard of conduct. This was not the time for
brass-knuckles negotiating tactics where, yes, the rights of UAW
employees and retirees were ultimately preferred to the rights of
retired Indiana school teachers and police officers—notwithstanding the priority of their respective contractual claims under
well accepted commercial law principles. That the United States
government was part of the process—in fact, the driving force in
the process—is distressing. Through the clever use of Section 363
of the bankruptcy code an ultra-wealthy and sophisticated party—
the United States government—orchestrated and rammed-through
a plan whereby a politically favored class of creditors—the UAW
and the VEBAs—prevailed to the detriment and disenfranchisement of another class of creditors—retired Indiana school teachers
and police officers, among others.
Based upon the analysis of Professors Adler, Roe and Skeel, the
bankruptcy courts should have called a time-out and changed the
bidding procedure (i.e., no assumption of liabilities required), ex543 TARP recipients who were also Chrysler senior secured creditors included Citigroup, JP
Morgan Chase, Morgan Stanley and Goldman Sachs.
See ‘‘Dissident Chrysler Group to Disband,’’ The New York Times, May 8, 2009, at
dealbook.blogs.nytimes.com/2009/05/08/oppenheimer-withdraws-from-dissident-chrysler-group/
?scp=1&sq=TARP%20lender%20Chrysler%20pressure&st=cse. The article provides:
After a great deal of soul-searching and quite frankly agony, Chrysler’s non-TARP lenders
concluded they just don’t have the critical mass to withstand the enormous pressure and machinery of the US government,’’ Thomas E. Lauria, a partner of Mr. Kurtz’s and the lead lawyer
for the group. ‘‘As a result, they have collectively withdrawn their participation in the court
case.’’
With the group’s disbanding, a little over a week since it made itself public, a vocal obstacle
to Chrysler’s reorganization has subsided. The committee’s membership has shrunken by the
day as it faced public criticism from President Obama and others. That continued withdrawal
of firms led Oppenheimer and Stairway to conclude that they could not succeed in opposing the
Chrysler reorganization plan in court, the two firms said in separate statements.
In its first public statement last week, the ad hoc committee said that it consisted of about
20 firms holding $1 billion in secured debt. But hours after Mr. Obama criticized the firms as
‘‘speculators,’’ the group lost its first major member, Perella Weinberg Partners, which changed
its mind and signed onto the Chrysler plan.

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tended the time to submit a bid 544 and applied the protections afforded under the Chapter 11 reorganization rules. With those
changes the judicial holdings would have most likely appeared fair
and reasonable and could have served as a model for high-pressure
bankruptcies that followed. Without such changes, however, the
process was inherently flawed because we will never know if another bidder would have paid more for the gross assets (without
the assumption of any liabilities) of Chrysler or GM.545 As intentionally structured by the Administration, the bidding procedures
ultimately adopted for the Section 363 sales necessarily precluded
the determination of the true fair market value of the assets held
by Chrysler and GM. Without such determination, the appropriateness of the price paid for the assets of Old Chrysler and Old GM
as well as the appropriateness of the distribution made by Old
Chrysler and Old GM to the Chrysler senior secured creditors and
GM bondholders will remain in doubt.
7. ‘‘POLITICAL RISK’’ IN AMERICAN BUSINESS

smartinez on DSKB9S0YB1PROD with HEARING

I anticipate that the Chrysler and GM holdings will not age well
as more corporate and commercial law attorneys, hedge and private
equity fund managers and corporate finance officers learn of their
intricacies. As previously noted, many bankruptcy scholars believe
the cases were ill considered. This process will take some time to
mature, but counsel will certainly add a ‘‘political risk’’ section to
their diligence check-lists and businesspersons will price their
deals accordingly.
I am troubled that the private sector must now consider incorporating the concept of ‘‘political risk’’ into its analysis before engaging in any direct or indirect transaction with the United States
government. While private sector participants are accustomed to
544 Mr. Richard E. Mourdock, the Indiana State Treasurer, whose pension funds invested in
Chrysler senior secured indebtedness, provided the following testimony to the Panel:
The principal restriction was imposed by the time requirement that mandated the bankruptcy
be completed by June 15, 2009. Throughout the bankruptcy process, the government maintained
if the deal was not completed by that date that Fiat would walk away from its ‘‘purchase’’ of
20% of the Chrysler assets. From the beginning, the June 15 date was a myth generated by
the federal government. Fiat was being given the assets at no cost at a minimum value of
$400,000,000. Why would Fiat establish or negotiate such a date when they were to receive such
a bonanza? On the very day that the Chrysler assets were transferred to Fiat, the company’s
chairman stated to the media that the June 15th date never originated from them. The artificial
date drove the process in preventing creditors from having any opportunity to establish true values, prepare adequate cases, and therefore failed to protect their rights to the fullest provisions
of the law. The artificial date also forced the courts to act with less than complete information.
The U.S. [Second Circuit] Court of Appeals in its written opinion of August 9th, 2009, denied
our pensioners standing pursuant to the argument that we could not prove, under any other
bankruptcy plan, we could have received more than the $0.29 we were offered. We believe this
was an error because the court used a liquidation value for the company rather than an ‘ongoing concern’ basis. We received written notice from the U.S. Bankruptcy Court of New York
by certified letter of our rights to file a claim on Monday, May 18, 2009, at 10:00 a.m. We were
advised in the letter that any evidence we wished to submit to make a claim against the submitted plan, (in part, the $0.29), would have to include trade tickets, depositions, affidavits, documents of evidence to substantiate claims, and etc. and would have to be filed with the bankruptcy court on Tuesday, May 19, 2009, by 4:00 p.m. The bankruptcy of Chrysler was frequently
referred to as ‘‘the most complex bankruptcy in American history,’’ and yet we were given thirty
hours to respond. We feel this was clearly an error in the process that helped to reduce the
wealth of our beneficiaries.
545 It’s also important to note that for these purposes it’s irrelevant if certain Chrysler or GM
creditors happened to have purchased their securities at a cheap price. Who cares? The substantive legal issue concerns whether their contractual rights were honored. Courts should not
abrogate well established commercial law principles and contractual expectations simply because an investor has earned a ‘‘reasonable return’’ on its investment. That’s not the rule of
law, but the law of political expediency.

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operating within a complex legal and regulatory environment,
many are unfamiliar with the emerging trend of public sector participants to bend or restructure rules and regulations so as to promote their economic, social and political agenda as was clearly evident in the Chrysler and GM bankruptcies. The realm of political
risk is generally reserved for business transactions undertaken in
developing countries and not interactions between private sector
participants and the United States government. Following the
Chrysler and GM decisions it is possible that private sector participants may begin to view interactions with the United States government through the same jaundiced eye they are accustomed to
directing toward third-world governments. It’s disingenuous for the
Administration to champion transparency and accountability for
the private sector but neglect such standards when conducting its
own affairs.546 How is it possible for directors and managers of private sector enterprises to discharge their fiduciary duties and responsibilities when policy makers legislate and regulate without respect for precedent and without thoughtfully vetting the unintended consequences of their actions?
8. MANAGEMENT DECISIONS BY THE FEDERAL GOVERNMENT

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The President, in his June 1, 2009 remarks on the forthcoming
bankruptcy of GM, called the government a ‘‘reluctant’’ shareholder
that will ‘‘take a hands-off approach, and get out quickly.’’ 547 Questions still remain on exactly the level of the Administration’s involvement in operational decisions. If the Auto Task Force’s conduct during the unique bankruptcies of Chrysler and GM is any indication of a heavier-handed approach to come, the Panel should
carefully follow the taxpayer’s TARP investment in the auto industry very closely.
For example, in an April 2009 interview with NPR, Environmental Protection Agency Administrator Lisa Jackson said the following:
Jackson: ‘‘The President has said and I couldn’t agree
more that what this country needs is one single national
road map that tells auto makers who are trying to become
solvent again, what kind of car it is they need to be designing and building for the American people.’’
NPR reporter (interrupting): ‘‘Is that the role of the government, though? I mean that doesn’t sound like free enterprise.’’
Jackson: ‘‘Well . . . it is free enterprise in a way. . . you
know, first and foremost the free enterprise system has us
where we are right this second . . . and so some would
argue that the government already has a much larger role

546 I have little doubt that the tepid response from the private sector regarding the Term
Asset-Backed Securities Loan Facility (TALF) and the Public-Private Investment Partnership
(PPIP) programs is attributable in significant part to the political risk issue.
547 See
the following speech: www.whitehouse.gov / thelpressloffice / Remarks-by-thePresident-on-General-Motors-Restructuring/.

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than we might have when Henry Ford rolled the first cars
off the assembly line.’’ 548
Lately, the Administration’s policy goals have been explicit in its
contractual dealings. At the government’s discretion, Fiat may increase its ownership stake in Chrysler to 35 percent if, among
other performance goals, it builds a car that gets 40 miles per gallon or more in the U.S.549 What does this requirement have to do
with stabilizing the American economy as required by EESA? Will
the Administration demand any other specifications from Fiat or
any other party, including Chrysler or GM? If so, how will these
requirements correlate with the EESA mandate? It is also worth
noting that in the latest United Kingdom JD Power survey, Fiat
ranks last in overall satisfaction rankings (28th out of 28), which,
according to one trade magazine, ‘‘is a roundabout way of saying
Fiat’s car’s aren’t exactly renowned for their reliability in Europe. . .’’ 550 Will the Auto Task Force require that Chrysler and
GM produce and sell certain types of vehicles, even if demand for
them is weak or reliability and performance are poor?
Below, I discuss several recommendations for the Panel to follow
in discharging its duty to provide proper oversight for the Administration’s financing of the auto industry. It is especially important
that the Panel ensure that the Administration match its actions
with its words and preclude its own day-to-day management decisions with respect to Chrysler and GM.
9. RECOMMENDATIONS FOR INVESTIGATIONS BY SIGTARP

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I request that SIGTARP promptly investigate the following three
matters.
1. In the September 2009 issue, The Atlantic—hardly a bastion
of the conservative establishment—reported:
As the crisis has receded this year, the government has
remained aggressive, seeking business outcomes it finds
desirable with some apparent indifference to contractual
rights. In Chrysler’s bankruptcy negotiations in April, for
example, Treasury’s plan offered the automaker’s seniordebt holders 29 cents on the dollar. Some debt holders, including the hedge fund Xerion Capital Partners, believed
they were contractually entitled to a much better deal as
senior creditors holding secured debt. But four TARP
banks—JPMorgan Chase, Citigroup, Morgan Stanley, and
Goldman Sachs—which owned about 70 percent of the
Chrysler senior debt at par (100 cents on the dollar), had
agreed to the 29-cent deal. By getting these banks and the
other senior-debt holders to accept the 29-cent deal and
give up their rights to push for the higher potential payout
they were entitled to, the government could give Chrysler’s
workers, whose contracts were general unsecured claims—
548 See the April 28, 2009 transcript of the interview between National Public Radio and Lisa
Jackson at: www.npr.org/templates/story/story.php?storyId=103582546.
549 See ‘‘Chrysler Said to Set Board Review of Models, Fiat Integration,’’ Bloomberg, August
28, 2009, at: bloomberg.com/apps/news?pid=20601109&sid=aelgNcQurQuA.
550 See ‘‘Fiat ranks last in UK JD Power survey, bodes poorly for Chrysler,’’ MotorAuthority,
May 4, 2009, www.motorauthority.com/blog/1033084lfiat-ranks-last-in-uk-jd-power-surveybodes-poorly-for-chrysler#comments.

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and therefore junior to the banks’—a payout far more generous than would otherwise have been possible or likely.
Essentially, the government was engineering a transfer of
wealth from TARP bank shareholders to auto workers, and
pressuring other creditors to go along.
A somewhat similar story played out during GM’s bankruptcy—
the government again put together a deal that looked to many like
a gift to the United Auto Workers at the expense of bondholders,
who were pressed hard to quickly take a deal that would leave
them with 10 percent of the equity of the reorganized company
(plus some out-of-the-money warrants) when they likely would
have been able to negotiate for more in a less well-orchestrated
bankruptcy proceeding.551 [emphasis added.]
If the Administration fails to submit a satisfactory formal written
legal opinion justifying its investment of TARP funds in Chrysler,
GM and the other auto programs, I recommend that SIGTARP undertake an investigation to determine:
(i) if the Administration inappropriately employed TARP funds in
the Chrysler and GM bankruptcies;
(ii) if the Administration inappropriately influenced the actions
of any TARP recipient in the Chrysler and GM bankruptcies;
(iii) if the Administration inappropriately engineered a ‘‘transfer
of wealth from TARP bank shareholders’’ to the UAW/VEBAs in
the Chrysler and GM bankruptcies; and
551 See
‘‘The Final Days of Merrill Lynch,’’ The Atlantic, September 2009, at
www.theatlantic.com/doc/200909/bank-of-america.
The Atlantic article also includes the following observations:
On April 30, when President Obama announced the bankruptcy, he forcefully stated the White
House position: ‘‘While many stakeholders made sacrifices and worked constructively,’’ he said,
‘‘I have to tell you, some did not. In particular, a group of investment firms and hedge funds
decided to hold out for the prospect of an unjustified taxpayer-funded bailout. They were hoping
that everybody else would make sacrifices, and they would have to make none. Some demanded
twice the return that other lenders were getting. I don’t stand with them. I stand with Chrysler’s employees and their families and communities.’’
In the face of this kind of political pressure, Perella Weinberg, the owner of Xerion, backed
down. ‘‘In considering the President’s words and exercising our best investment judgment,’’ the
firm said in a statement, ‘‘we concluded that the risks of potentially severe capital loss that
could arise from fighting this in bankruptcy court far outweighed any realistic potential upside.’’
Tom Lauria, an attorney who was representing the firm during the negotiations, said in a May
1 radio interview that his client had been told by the administration that the White House press
corps would destroy Perella Weinberg’s reputation if it continued to fight the deal. He later told
ABC News that Treasury adviser Steven Rattner had made the threat. (The White House denied making any threats, and Perella Weinberg denied Lauria’s account of events, without
elaboration.) Lauria said, in his radio interview, ‘‘I think everybody in the country should be
concerned about the fact that the president of the United States, the executive office, is using
its power to try to abrogate that contractual right.’’
The Obama administration also famously browbeat AIG employees, who had a contractual
right to some $165 million in bonuses, to void that right. (In the face of the government’s pressure and the public outcry, some 15 of the top 20 recipients of the retention bonuses agreed
to give back a total of more than $30 million in payments.) Curiously, the government has put
no pressure on Merrill executives to return their $3.6 billion in bonuses that were paid out in
December 2008, even though the company had suffered those huge losses.
The rules as to how the government will act are not what we learned,’’ explained Gary Parr,
the deputy chairman of Lazard and one of the leading mergers-and-acquisitions advisers to financial institutions. ‘‘In the last 12 months, new precedents have been set weekly. The old rules
often don’t apply as much anymore.’’ He said the recent examples of the government’s aggression are ‘‘a really big deal,’’ but adds, ‘‘I am not sure it is going to last a long time. I sure hope
not. I can’t imagine the markets will function properly if you are always wondering if the government is going to step in and change the game.’’ One former Treasury official in the Bush
administration told me he believes that the Obama administration has been disturbingly heavyhanded with the automobile companies and those who have lent to them. ‘‘It’s very easy, when
you’re holding all the cards, to impose your will,’’ he said. ‘‘And when you are the only source
of financing, forget it.

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(iv) if the Administration otherwise inappropriately orchestrated
the transfer of TARP funds to the UAW/VEBAs in the Chrysler
and GM bankruptcies?
In conducting its investigation I recommend that SIGTARP subpoena the appropriate parties and ask them to respond under oath.
2. Thomas E. Lauria, the Global Practice Head of the Financial
Restructuring and Insolvency Group at White & Case LLP, represented a group of senior secured creditors, including the Perella
Weinberg Xerion Fund (‘‘Perella Weinberg’’), during the Chrysler
bankruptcy proceedings.
On May 3, The New York Times reported:
In an interview with a Detroit radio host, Frank Beckmann, Mr. Lauria said that Perella Weinberg ‘‘was directly
threatened by the White House and in essence compelled to
withdraw its opposition to the deal under threat that the
full force of the White House press corps would destroy its
reputation if it continued to fight.’’
In a follow-up interview with ABC News’s Jake Tapper, he identified Mr. [Steven] Rattner,552 the head of the auto task force, as
having told a Perella Weinberg official that the White House
‘‘would embarrass the firm.’’ [emphasis added.]
I recommend that SIGTARP undertake an investigation to determine if Mr. Rattner made such statement to Mr. Lauria or Perella
Weinberg.
In conducting its investigation I recommend that SIGTARP subpoena Mr. Rattner, Mr. Lauria and representatives of Perella
Weinberg and ask them to respond under oath.553
Mr. Beckmann’s interview with Mr. Lauria is available at
www.760wjr.com/article.asp?id=1301727&spid=6525. It’s definitely
worth taking a few minutes to listen to Mr. Lauria.554
3. Regarding the reorganization of the auto parts manufacturer,
Delphi, on July 17, The New York Times reported:
Delphi’s new proposal [reached with its lender group] is
similar to its agreement with Platinum [Equity, a private
equity firm], which was announced June 1, the day GM
filed for bankruptcy. But hundreds of objectors, including
the company’s debtor-in-possession lenders, derided that
552 For a further discussion of the interactions between Mr. Rattner and Perella Weinberg see:
‘‘The Final Days of Merrill Lynch,’’ The Atlantic, September 2009, at www.theatlantic.com/doc/
200909/bank-of-america, and ‘‘Exit the Czar,’’ New York Magazine, August 2, 2009, at
nymag.com/news/featuers/58193/.
553 In a written response to the Panel the Administration stated:
As [Mr. Bloom—the head of Treasury’s Auto Task Force] testified during the July 27 Field
Hearing of the Congressional Oversight Panel, [he has] spoken to Mr. Rattner about this matter,
and he categorically denies Mr. Lauria’s allegations. [Mr. Bloom has] no knowledge of any other
contact with Mr. Lauria or with people at Perella Weinberg regarding the issues mentioned
above. SIGTARP will determine the appropriate use of its subpoena power.
The response is not acceptable because the Administration has refused to conduct a proper
due diligence investigation of this matter by contacting Mr. Lauria and representatives of
Weinberg Perella. I recommend that SIGTARP promptly investigate this matter.
554 I have read reports to the effect that Perella Weinberg denied the veracity of the statements made by Mr. Lauria. Perhaps that’s true, but the press release issued by Perella
Weinberg does no such thing. The press release merely states that Perella Weinberg did not
change ‘‘its stance on the Chrysler restructuring due to pressure from White House officials,’’
which is entirely different from simply denying Mr. Lauria’s statements. See The New York
Times, May 3, 2009, at dealbook.blogs.nytimes.com/2009/05/03/white-house-perella-weinbergdeny-claims-of-threat-to-firm/#statement.

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proposal as a ‘‘sweetheart deal’’ that gave the private equity firm control of Delphi for $250 million and a $250 million credit line. [emphasis added.]
On June 24, The New York Times reported that ‘‘Delphi worked
with GM and the Obama administration to negotiate with Platinum . . .’’
I recommend that SIGTARP undertake an investigation to determine if the Administration assisted with the negotiation of a
‘‘sweetheart deal’’ for the benefit of Platinum Equity.
In conducting its investigation I recommend that SIGTARP subpoena the appropriate parties and ask them to respond under
oath.555
10. ADDITIONAL RECOMMENDATIONS

smartinez on DSKB9S0YB1PROD with HEARING

I offer the following additional recommendations:
1. In order to end the abuses of EESA as evidenced by the Chrysler and GM bankruptcies the TARP program must end. These
bankruptcies clearly show that the program is beyond capable oversight. Further, the TARP program should be terminated due to:
• The desire of the American taxpayers for the TARP recipients to repay all TARP related investments sooner rather than
later;
• The troublesome corporate governance and regulatory conflict of interest issues raised by Treasury’s ownership of equity
and debt interests in the TARP recipients;
• The stigma associated with continued participation in the
TARP program by the recipients; and
• The demonstrated ability of the Administration to use the
program to promote its economic, social and political agenda
with respect to, among others, the Chrysler and GM bankruptcies.556
555 In a written response to the Panel the Administration stated:
The Delphi transactions were negotiated between GM and Delphi. GM determined a failure
of Delphi would have led to high losses at GM. The auto team was involved in discussions to
the extent necessary to avoid potential destruction of equity value of GM, which would have
led to large losses to the Treasury investment and for the U.S. taxpayer.
Again, this response is particularly vague and inappropriate and avoids the key issue—did
the Administration advocate a ‘‘sweetheart’’ deal for the benefit of Platinum Equity. I recommend that SIGTARP promptly investigate this matter.
556 See ‘‘BofA Seeks to Repay a Portion of Bailout,’’ The Wall Street Journal, September 1,
2009, at online.wsj.com/ article/ SB125176546582274505.html#mod= todaysl usl moneyland
linvesting.
The article provides:
The discussions between Bank of America and the government are the latest example of large
corporations trying to wrestle themselves free of the government’s grip after extraordinary federal assistance last year. Some other large firms, such as Goldman Sachs Group Inc., have already repaid the government’s investment, but Bank of America’s situation was seen as much
more complex.
In addition to giving Bank of America extra TARP money, the government agreed in January
to absorb a chunk of losses on a $118 billion pool of assets owned by BofA and Merrill. The
bank would be on the hook for the first $10 billion in losses, and the U.S. would cover 90%
of the remainder.
In exchange for this protection, the bank would issue to the Treasury $4 billion in preferred
stock carrying an 8% dividend, costing the bank about $320 million a year. BofA also would
pay the Federal Reserve two-tenths of a percent on the $118 billion, or $236 million.
If the bank wanted to end the arrangement, an ‘‘appropriate fee’’ was required. The Treasury
and the Federal Reserve are asking the bank to pay between $300 million and $500 million to
end this plan and pushing executives to consider a number on the high end of that spectrum,
said a person close to the situation. The bank is now considering the request.
Continued

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Some of the adverse consequences that have arisen for TARP recipients include, without limitation:
• Although necessary, uncertain executive compensation restrictions;
• Corporate governance and conflict of interest issues;
• Employee retention difficulties; and
• The distinct possibility that TARP recipients—including
those who have repaid all Capital Purchase Program advances
but have warrants outstanding to Treasury—may be subjected
to future adverse rules and regulations.
I introduced legislation—H.R. 2745—to end the TARP program
on December 31, 2009. In addition, the legislation:
• Requires Treasury to accept TARP repayment requests from
well capitalized banks;
• Requires Treasury to divest its warrants in each TARP recipient following the redemption of all outstanding TARP-related preferred shares issued by such recipient and the payment of all accrued dividends on such preferred shares;
• Provides incentives for private banks to repurchase their
warrant preferred shares from Treasury; and
• Reduces spending authority under the TARP program for
each dollar repaid.
2. As previously noted, according to the latest estimate from the
CBO, the investment of TARP funds in the auto industry is expected to add $40 billion more to the deficit than CBO calculated
just five months earlier in March 2009.557 A reasonable interpretation of such estimate provides that the American taxpayers may
suffer a loss of over 50 percent of the TARP funds invested in
Chrysler, GM and the other auto programs. I request that the CBO
release its latest estimates regarding the subsidy rate for the investment of TARP funds in the auto industry.
3. The Administration should provide the Panel with the criteria
it uses to determine which entities or types of entities are allowed
to receive assistance through TARP. The Administration should
also provide the Panel with a formal written legal opinion justifying the use of TARP for any such entities.558
The bank and the government never signed a final contract on the loss-sharing pact amid disagreement about what it would cover, and BofA said in May that it wanted out. Its view was
that regulators ‘‘tried to change the game,’’ said a person familiar with the bank’s position.
The bank balked at the idea of an exit fee, saying that its positions had never actually been
covered. Regulators argued that the bank benefited from the implied protection, and thus the
bank should pay as if the agreement had been legally in place from January through May.
557 See ‘‘The Budget and Economic Outlook: An Update,’’ Congressional Budget Office, August
2009, pages 55–56, at www.cbo.gov/ ftpdocs/ 105xx/doc10521/08-25-BudgetUpdate.pdf. The report provides in part:
The improvement in market conditions results in a reduction in the subsidy rate associated
with the Capital Purchase Program (CPP)—a major initiative through which the government
purchases preferred stock and warrants (for the future purchase of common stock) from banks.
CBO has dropped the projected subsidy for the remaining investments in that program from
35 percent in the March baseline to 13 percent. The decrease in the estimated CPP subsidy cost
also reflects banks’ repurchase of $70 billion of preferred stock through June. Similarly, the estimated subsidy cost for other investments in preferred stock (for example, that of American
International Group) has also been reduced. Partially offsetting those reductions in projected
costs is the expansion of assistance to the automotive industry; CBO has raised its estimate of
the costs of that assistance by nearly $40 billion relative to the March baseline. [emphasis added.]
558 In a written response to the Panel the Administration stated:
Each program has guidelines that specify eligibility criteria. These criteria are posted on the
financial stability website, www.financialstability.gov.

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4. The Administration should inform the Panel whether it intends to recycle TARP funds that have been repaid by TARP recipients and, if so, provide the Panel with a formal written legal opinion justifying the treatment of TARP as a revolving credit and equity facility.
5. The Administration should inform the Panel whether it intends to extend the TARP program beyond December 31, 2009.
6. The Administration should continue to describe in detail what
meaningful due diligence it conducted before investing $81 billion
in Chrysler, GM, GMAC and the auto suppliers.
7. The Administration should disclose how much additional funding and credit support (and the source of such amounts) it expects
to ask the American taxpayers to provide each of Chrysler, GM,
GMAC and the auto suppliers (i) by the end of this year and (ii)
during each following year until all investments have been repaid
in full in cash and all credit support has been terminated. The Administration should clearly state that the U.S. government will not
in any manner directly or indirectly guarantee the indebtedness,
obligations or undertakings of Chrysler, GM, GMAC or any of the
auto suppliers.559
8. The Administration should forthrightly answer the following
question: If Chrysler and GM are unable to sell a substantial number of cars at an appropriate profit margin will they be permitted
to fail and liquidate or will they remain wards of the state?
9. The Administration should provide the American taxpayers
with monthly reports describing in sufficient detail the full extent
of their investments in Chrysler, GM, GMAC and the auto suppliers. The reports should also address the following matters:
• When does the Administration anticipate that Chrysler,
GM, GMAC and the auto suppliers will return to profitability; 560
For example, in determining whether an institution is eligible for funding under the Automotive Industry Financing Program, Treasury has identified the following factors for consideration, among other things:
1. The importance of the institution to production by, or financing of, the American automotive industry;
2. Whether a major disruption of the institution’s operations would likely have a materially
adverse effect on employment and thereby produce negative effects on overall economic performance;
3. Whether the institution is sufficiently important to the nation’s financial and economic system that a major disruption of its operations would, with a high probability, cause major disruptions to credit markets and significantly increase uncertainty or losses of confidence, thereby
materially weakening overall economic performance; and
4. The extent and probability of the institution’s ability to access alternative sources of capital
and liquidity, whether from the private sector or other sources of U.S. government funds.
I find the ‘‘anything goes,’’ ‘‘we know it when we see it’’ response unhelpful and ask the Administration to provide a formal written legal opinion.
559 In a written response to the Panel the Administration stated:
The Administration does not plan to provide any additional funds to GM and Chrysler beyond
those that have already been committed. GM and Chrysler may draw additional amounts under
the loan agreements relating to the supplier support program. This amount is expected to be
up to $500 million in total.
After allocating $81 billion of taxpayer funded TARP proceeds I sincerely doubt that the Administration will be able to resist ‘‘spending only a few more billion’’ if either Chrysler or GM
hit a bump along the road.
560 In a written response to the Panel the Administration stated:
The Administration reviewed Chrysler’s and GM’s business plans, which were developed by
the companies. As part of this review process, the Administration’s financial advisors performed
sensitivity analyses by varying the assumptions underlying the business plans. These scenarios
helped the Administration with its decision making process.
Continued

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• What are the Administration’s financial and business projections for Chrysler, GM, GMAC and the auto suppliers over
the next five years;
• When does the Administration anticipate that Chrysler
and GM will go public;
• What is the Administration’s exit strategy regarding
Chrysler, GM, GMAC and the auto suppliers; 561 and
• When does the Administration anticipate that Chrysler,
GM, GMAC and the auto suppliers will repay in full in cash
all TARP funds advanced by the American taxpayers? 562
The Administration has not projected dates by which the companies will return to profitability,
which is dependent on the overall market conditions and economic recovery
GM, which will probably go public before Chrysler, is expected to go public over the next
twelve months, but the final decision will be made in both cases by the companies’ boards of
directors and will be dependent, among other things, on the state of the public securities markets. [emphasis added.]
It is simply amazing to me that the Administration would invest over $81 billion of taxpayer
sourced TARP funds without even projecting when Chrysler and GM may return to profitability.
561 In a written response to the Panel the Administration stated:
The Administration plans to be a responsible steward of taxpayer money, and will periodically
evaluate both public and private options to exit these investments. For GM the most likely exit
strategy is a gradual sell off of shares following a public offering. For Chrysler, the exit strategy
may involve either a private sale or a gradual sell off of shares following a public offering.
The American taxpayers deserve a more thoughtful response for their $81 billion investment
of TARP funds.
562 In a response to the Panel the Administration stated:
The Administration evaluated various scenarios and believes that, under certain assumptions,
GM may be able to pay off a high percentage of the total funds advanced by the taxpayers. Less
optimistic, and in Treasury’s view more likely scenarios involve a reasonable probability of repayment of substantially all of the government funding for new GM and new Chrysler, and
much lower recoveries for the initial loans. Such analyses are obviously sensitive to the overall
market and the economy.
Based upon this vague response it appears that Chrysler and GM will most likely not repay
all of the TARP funds advanced by the American taxpayers.
In a written response to the Panel representatives of GM stated:
Question: When do you anticipate that your company will return to profitability?
Response: On July 10, GM’s CEO announced that our Viability Plan projections contemplate
breakeven Adjusted Earnings Before Interest and Tax (EBIT) by 2010 and positive Adjusted Operating Cash Flow by 2011.
Question: What are your projections for your company over the next five years?
Response: Business plan projections for GM were included in the Stephen Worth Declaration
filed in Bankruptcy court on June 4, 2009, in support of the proposed 363 sale. These projections
contemplate adjusted Earnings Before Tax (EBT) of ($1.3)B, $3.0B, $5.3B, $6.9B and $7.8B for
CY 2010—2014 and at the time were based on current assumptions including total U.S. industry
sales projections of 12.5M units, 14.3M units, 16.0M units, 16.4M units and 16.8M units for CY
2010—CY 2014.
Question: When do you anticipate that your company will go public?
Response: The timing of an initial public offering will be heavily influenced by conditions in
the equity markets and continued recovery in the auto industry, but we’d like to see the company in a position to launch a public offering as soon as sometime next year if the market conditions are suitable. Ultimately, General Motor’s Board of Directors will determine when an IPO
would be in the best interest of the Company and its stockholders.
Question: What is the Administration’s exit strategy regarding the investment of TARP funds
in your company?
Response: We do not have any information to add to the testimony of Mr. Bloom at the hearing.
Question: When do you anticipate that your company will repay in full in cash all TARP funds
advanced by the American taxpayers?
Response: The American taxpayer will be repaid as GM repays the United States Department
of the Treasury loan and as the United States Department of the Treasury monetizes its equity
in GM post our IPO. While we are required to repay the United States Department of the Treasury loan by 2015, our goal is to repay this loan much sooner. We expect the company will be
taken public as soon as practical sometime next year. Ultimately, General Motor’s Board of Directors will determine when an IPO would be in the best interest of the Company and its stockholders.
In a written response to the Panel representatives of Chrysler stated:
Question: When do you anticipate that your company will return to profitability? What are
your projections for your company over the next five years? When do you anticipate that your
company will go public?

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10. The Administration should treat the American taxpayers as
bona fide investors in Chrysler and GM and provide them with at
least the same level of disclosure they would receive under the securities laws and state corporate law if Chrysler and GM were public companies and each American taxpayer a common shareholder.
Such materials should include, without limitation, Forms 10–K,
10–Q and 8–K, annual reports, management’s discussion and analysis (MD&A), projections, proxy materials, offering documents, and
the like.
11. Chrysler and GM should promptly disclose all contractual arrangements with the U.S. government, together with a detailed description of the contract, its purpose, the transparent and open
competitive bidding process undertaken and the arm’s length and
market-directed nature of the contract.563
12. Chrysler and GM should not receive favorable government
contracts or other direct or indirect subsidies the award of which
is not based upon competitive, objective and transparent criteria.564
13. The U.S. government should establish transparent procedures to resolve any conflict of interest issues arising from its role
as a creditor or equity holder in Chrysler and GM and as a supervising governmental authority for Chrysler and GM.565
14. The IRS, SEC and other governmental agencies should be
permitted to discharge their regulatory and enforcement responResponse: As part of the 363 sales process, Chrysler LLC submitted a business plan (the ‘‘363
plan’’). Currently, Chrysler Group LLC is elaborating its 5-year business plan, the results of
which are expected to represent an improvement on the 363 plan outcome.
Decisions with respect to an initial public offering are within the province of the Members
(equity holders).
Question: What is the Administration’s exit strategy regarding the investment of TARP funds
in your company?
Response: The $7 billion secured loan to Chrysler Group LLC from the US Treasury requires
repayment of all amounts borrowed by June 2017. Decisions with respect to an initial public
offering are within the province of the Members (equity holders).
Funds advanced under the Warranty Support Program were repaid in July 2009, and funds
advanced under the Supplier Support Program in May 2009 are scheduled to be repaid in 2010.
Question: When do you anticipate that your company will repay in full in cash all TARP funds
advanced by the American taxpayers?
Response: The $7 billion secured loan to Chrysler Group LLC from the US Treasury requires
repayment of all amounts borrowed by June 2017. Decisions with respect to an initial public
offering are within the province of the Members (equity holders).
Funds advanced under the Warranty Support Program were repaid in July 2009, and funds
advanced under the Supplier Support Program in May 2009 are scheduled to be repaid in 2010.
563 In a written response to the Panel the Administration stated:
Chrysler and GM will be subject to the same reporting requirements with respect to contractual arrangements as are any other similarly situated business entity. The companies are also
subject to audit, including by SIGTARP and GAO.
564 In a written response to the Panel the Administration stated:
Chrysler and GM will not receive any special treatment when competing for government contracts or any direct or indirect subsidies as a result of the government’s investments in these
companies. They will have to win contracts based on their commercial strengths like any other
auto manufacturer. As a principle, the Administration does not plan to manage these businesses
or get involved in day to day management.
It is critical that the Panel continue to monitor this issue.
565 In a written response to the Panel the Administration stated:
The Administration has already separated its role as investor/lender from that of regulator.
The Administration has completely different teams working in these capacities, and decisionmaking in these areas is very purposefully separated. For matters related to the financial interests of taxpayers, the team overseeing the investments and loans will continue to act like any
commercial actor in terms of protecting taxpayer capital. For regulatory matters, those functions
will continue as if the GM and Chrysler interventions had not taken place.
It is critical that the Panel continue to monitor this issue.

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sibilities with respect to Chrysler and GM without political influence.566
15. The Administration should disclose its corporate governance
policies regarding Chrysler and GM as well as the vetting process
for new directors of Chrysler and GM.567
16. The Chair of the Board and CEO of Chrysler and GM should
certify each quarter that the government has not in any manner
directed or influenced the policies or day-to-day management and
affairs of either company.
17. The management of Chrysler and GM should provide the
American taxpayers with a quarterly business plan that addresses,
without limitation, the following challenging issues:
• Without a growing SUV market, how do Chrysler and GM plan
to compete against the Asian and European manufacturers who
566 In a written response to the Panel the Administration stated:
The companies will be subject to the same regulatory and enforcement requirements as are
any other similarly situated business entity.
It is critical that the Panel continue to monitor this issue.
567 In a written response to the Panel the Administration stated:
The Treasury auto team used a commercial process to vet directors as would be expected of
any well-managed corporation. In the end, the auto team is comfortable that it has brought together world-class boards that are focused on being responsible stewards of taxpayer dollars and
creating shareholder value.
In a written response to the Panel representatives of GM stated:
Question: How frequently does communication occur between any member of the Administration and the directors and executives from your company?
Response: Communications between the Administration and General Motors Company has
been reduced significantly since July 10, 2009. The number of members on the President’s Automotive Task Force has been reduced significantly.
Question: What is the nature of such communication?
Response: The contact has focused on questions related to regular financial reporting requirements under the UST loan as well as the amendment of the UST loan document to further clarify certain reps and warranties related to GM and its covered group members.
Question: Is the Administration in any manner providing input regarding corporate policy
and/or the day-to-day management of your company?
Response: There are some areas regarding corporate policy in which we communicate with the
Administration such as executive compensation. The Administration does not provide input regarding day-to-day management of our company.
Question: If so, what input is being provided and under what authority?
Response: Generally, input has been provided by the United States Department of the Treasury and we expect input from the TARP Special Compensation Master.
Question: Does your company seek the approval of the Administration regarding any matter?
Response: Yes, under the terms of the United States Department of the Treasury loan we
must seek approval on items such as withdraws from the escrow account as well as TARP Special Compensation Master approval of compensation plans and payments for our senior executive officers and the next 20 highest compensated employees.
In a written response to the Panel representatives of Chrysler stated:
Question: How frequently does communication occur between any member of the Administration and the directors and executives from your company? What is the nature of such communication?
Response: There is no established schedule for communications. Since June 10, 2009, interactions with the US Treasury have occurred a few times a week and have related to, among
other things, the formation and composition of the Board, financial reporting requirements, efforts to finalize a long-term business plan and an executive compensation program, and the
Warranty Commitment Program and Supplier Receivables Program sponsored by the US Treasury.
Question: Is the Administration in any manner providing input regarding corporate policy
and/or the day-to-day management of your company? If so, what input is being provided and
under what authority? Does your company seek the approval of the Administration regarding
any matter?
Response: The US Treasury has no role in the company’s day-to-day management or policy
making, except that (1) the US Treasury included a requirement in its First Lien Credit Agreement with the company that requires the company to maintain an expense policy prohibiting
or limiting certain expenditures, and (2) the company’s executive compensation program is required to be approved by the US Treasury’s Special Master for Executive Compensation, Mr.
Kenneth Feinberg.

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have all but perfected the design and manufacture of well-built fuel
efficient cars? 568
• How do Chrysler and GM plan to stop the deterioration of
their market share?
• How do Chrysler and GM plan to decrease their time from design to market?
• How do the all-in wage costs of Chrysler and GM compare with
those of Asian automakers both within and outside the United
States?
• How do Chrysler and GM plan to develop the design and technical expertise necessary to build vehicles with the fit-and-finish
568 In a written response to the Panel representatives of GM stated:
GM continuously assesses the automotive market and consumer behavior from three viewpoints: historical lessons, current realities and future projections. History provides insight re:
consumer behavior relative to actual market conditions—the end result of economic factors such
as overall economic health, gas prices, regulatory impacts; new product entries; societal trends,
etc. Current realities provide insight to real-time behaviors—for example, the dramatic shift to
compact sized vehicles during the gas price spike of 2008 when consumers expected fuel prices
to continue to climb to the $5/gal level. Future projections assess the expected impact of the
economic and regulatory outlook, demographic and societal trends and expected supply side influences. This ‘‘scanning’’ process leverages consumer surveys, primary research and product
clinics, internal models and external academic and industry experts from various fields.
As part of both the vehicle and marketing development processes, GM leverages extensive consumer and expert opinion research. The research may include full scale models of future entries
in a competitive showroom environment with a representative sample of current new vehicle
owners, ‘‘garage visits’’ (ethnography) in competitive owners’’ homes or focus groups in a neutral
setting. All research is constructed to eliminate bias and GM’s sponsorship of the research is
masked.
In a written response to the Panel, representatives of Chrysler stated:
Analysis of industry trends indicate that over the past five years small and compact vehicles
have captured a larger portion of the U.S. light vehicle industry (2004 14%; 2008 22%). Industry
forecasts predict a continuation of this growth over the next five years.
Based on our propriety web-based survey about powertrains, Americans feel that fuel prices
will be, on average, $2.89 per gallon in one year and $4.50 in five years. This supports the expectation that more fuel efficient vehicles will grow in demand as we have seen with recent fuel
price spikes. With technology, consumers will also have a choice of getting large vehicles that
are more fuel efficient but with the likely price premium of the technology, small car demand
will rise.
Since 2004, there has been a gradual increase in purchase intentions for smaller vehicles and
a gradual decrease for larger vehicles. The gas price spike in 2008 magnified (and possibly accelerated) this trend.
Based on our dedicated, proprietary i-community that monitors consumer perceptions of automotive propulsion and small cars, 41% of consumers would likely consider a small car in the
future. Fifty percent indicated they were unlikely to consider a small car.
Chrysler does not currently offer A/B segment vehicles, however, we are successful in the segments in which we offer vehicles:
Chrysler Share of Segment (Chrysler Segmentation) b Full Size Luxury 17.8 % (Chrysler 300/
C)
Compact SUV 43.5% (Wrangler, Compass, Patriot)
MPV 40.1% (Town & Country, Grand Caravan)
Large Pick-Up 17.8% (Ram)
Research shows that for small car buyers the top five primary reasons for purchase are the
following (2008 New Vehicle Experience Study, Strategic Vision Inc.):
Fuel Economy 42.7%
Value for the Money 17.6%
Price/Monthly Payment 6.0%
Fun to Drive 4.2%
Reliability 3.7%
Having access to Fiat’s technology will enable Chrysler to compete in the small vehicle segments with these needs.
Fiat’s success in highly competitive small car segments in markets such as Europe and Brazil
helped establish Fiat as a highly competitive global manufacturer. The small car technology that
Fiat will transfer to Chrysler will lead to similar success in the growing U.S. small car segment.
In addition, Fiat will make available to Chrysler Group its C platform technology, which will
be the basis for the renewal of the Chrysler product offerings in both the C and D market segments. These actions by Fiat will provide Chrysler with technologically updated and more competitive products in the most important segments in the U.S. market.

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and price-point of, for example, a Honda Accord or Civic or a Toyota Camry or Corolla, not to mention a Toyota Prius? 569
• What progress have Chrysler and GM made with respect to the
development of global car platforms?
• Will the Chevrolet Volt materially assist GM’s turn-around efforts or is its anticipated price-point too high? 570
• Will American consumers embrace very small Fiat-type cars?
• After the treatment of the Chrysler senior secured creditors
and the GM bondholders in the bankruptcy proceedings, how do
Chrysler and GM anticipate that they will raise private sector financing?
18. Why does it appear that Chrysler and GM failed to place any
vehicle in the top-ten list of cars purchased under the ‘‘Cash for
Clunkers Program’’? 571 It has been reported that Asian manufac569 See ‘‘Fiat ranks last in UK JD Power survey, bodes poorly for Chrysler,’’ MotorAuthority,
May 4, 2009, at: www.motorauthority.com/blog/1033084—fiat-ranks-last-in-uk-jd-power-surveybodes-poorly-for-chrysler#comments. The article provides:
Chrysler’s vehicles, like all of America’s cars, have improved greatly in recent years. But nottoo-distant memory reminds us of the Le Baron and even of another ill-fated Italian tie-up and
its Maserati-branded spawn. So Fiat’s poor scores in the most recent JD Power survey in the
United Kingdom gives cause to wonder if the Fiat-Chrysler union might ultimately be a tragic
one.
Fiat’s role in helping to save Chrysler post-bankruptcy was applauded by President Obama
just days ago, but already the naysayers are building their case. And unfortunately, it’s shaping
up to be a decent one. The latest JD Power figures put Fiat at the bottom—28th of 28—in UK
satisfaction rankings. Lexus, Skoda, Honda, Toyota and Jaguar filled out the top 5 spots, while
Citroen, Kia, Chevrolet, Mitsubishi and Fiat rounded out the bottom five.
Which is a roundabout way of saying Fiat’s car’s aren’t exactly renowned for their reliability
in Europe, nor are those of sister brand Alfa Romeo though the brand wasn’t separated in the
results list. The last time either car was sold in the U.S. they had developed and suffered from
a reputation for unreliability that ultimately contributed to their retreat from our shores.
Now the continued poor performance of Fiat in markets where it’s already established calls
into question whether the Italian company will be able to turn things around at Chrysler, or
whether the partnership will just degenerate into a downward spiral of poor design feeding poor
execution. On the other hand, Fiat also makes brilliant cars like the 500, which slots into a
segment where Chrysler is completely absent.
Will the synergies make both companies better than they are on their own? Or will the FiatChrysler partnership make the DaimlerChrysler era seem like a golden age?’’
See also ‘‘Chrysler Said to Set Board Review of Models, Fiat Integration,’’ Bloomberg.com, August 28, 2009, at bloomberg.com/apps/news?pid=20601109&sid=aelgNcQurQuA.
570 See ‘‘GM’s Long, Hard, Bumpy Road to the Chevrolet Volt,’’ The New York Times, July 10,
2009, at www.nytimes.com/cwire/2009/07/10/10climatewire-gms-long-hard-bumpy-road-to-thechevrolet-vo–40366.html?scp=3&sq=volt%20chevrolet%20july%20prius&st=cse. See also ‘‘Sticker
Shock,’’ The Economist, August 21, 2009, at www.economist.com/sciencetechnology/
displaystory.cfm?storylid=14292008.
571 GM, however, placed second overall with 17.6 percent of total sales under the program.
Toyota was the lead manufacturer (19.4 percent) and Ford was third (14.4 percent) followed by
Honda (13 percent) and Nissan (8.7 percent). See www.huffingtonpost.com/2009/08/26/cash-forclunkers-topselllnl269700.html.
See an AP article on the ‘‘Cash for Clunkers Program’’ at www.google.com/hostednews/ap/article/ALeqM5h4OJw5vl4nQapaKrl9XOdfTLhElwD9A5CE1O2.
See also, ‘‘Toyota Tops List of Cash-for-Clunkers Winners,’’ The New York Times, August 26,
2009, at www.nytimes.com/2009/08/27/business/27clunkers.html?lr=1&emc=eta1.
See also, ‘‘Next for Auto Sector, Post-Clunker Hangover,’’ The Wall Street Journal, September
1,
2009,
at
online.wsj.com/article/SB125175596718373969.html#mod=todayslusl
moneylandlinvesting.
The article provides:
That could help send some car sales downward in coming months, offsetting somewhat the
benefit to car makers and retailers of the governments’ $2.9 billion of rebates given to customers
who traded in 700,000 old, gas-guzzling cars, for new ones in the cash-for-clunkers program.
‘‘We expect sales for the remainder of the year to fall well below August results,’’ wrote Brian
Johnson, analyst at Barclays Capital.
Mr. Johnson warned that investors may use Tuesdays sales figures to take profits in auto
stocks. Already, auto stocks that appeared to get a boost from the program have begun to sell
off.
Now investors need signs of more solid repair to consumer confidence and growth in demand
for cars absent government coupons.
See ‘‘GM, Chrysler to Advance Cash for Clunker Rebates,’’ The Wall Street Journal, August
20, 2009, at online.wsj.com/article/SB125077503806246225.html.

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turers claimed eight spots and Ford took the remaining two. The
program served as a real-world market-check for the products offered by Chrysler and GM, and the news does not appear overly
reassuring. Is it possible that in its haste to develop and expand
the Cash for Clunkers Program the Administration actually
harmed the prospects for Chrysler and GM? To the extent the program expedited the purchase of cars—primarily foreign cars—it’s
possible that future sales including those by Chrysler and GM—
will be unusually sluggish.572 The management of Chrysler and
GM should address their performance under the Cash for Clunkers
Program and whether the program had the unintended consequence of depressing future demand for their products.
19. It has been reported that GM may be developing a plan to
retain Opel and its British affiliate Vauxhall.573 The Administration should disclose if TARP funds will be used in such endeavor
or if the U.S. government will directly or indirectly guarantee any
related financings or contractual undertakings. The Administration
should also explain how the retention of Opel and Vauxhall will
create or save any jobs in this country or facilitate the repayment
of TARP funds previously invested in GM.
20. The Panel should address the following questions: (i) did the
Administration force Chrysler to accept a deal with Fiat,574 and (ii)
572 See ‘‘Bangers and Cash,’’ The Economist, August 24, 2009, at www.economist.com/
businessfinance/displaystory.cfm?storylid=14296297. The article provides:
Rebate schemes like this tend to encourage buyers to advance purchases that they would have
made anyway, thus cannibalising future sales. The termination of a car-scrappage scheme in
France in the 1990s led to sales plunging by 20%. Nor is it certain that the scheme provides
a more general boost to the economy, as buyers may have been put off other purchases in order
to afford a new vehicle. That said, there is a case to be made that, given the depth of the crisis
a few months ago, the boost to total demand prompted by the scrappage scheme did at least
help to avert a Keynsian ‘‘liquidity trap’’, leading to a depression.
The green benefits are also hotly contested. The scheme should help to make America’s car
fleet slightly less fuel inefficient, but there are significant environmental costs in scrapping perfectly good cars and building new ones.
At least the scheme may have persuaded Americans to consider the whole cost of owning a
vehicle, beyond the sticker price. Early figures showed that over 80% of the vehicles traded in
were trucks and SUVs and that 59% of the vehicles bought were cars. That may be a sign of
more trouble for American carmakers which are particularly reliant on sales of SUVs and trucks
and which have been bailed out at huge cost to taxpayers. The top ten clunkers traded in are
all products of Detroit’s big three and the greater gains have come for foreign car companies
(mainly American-built vehicles at non-unionised factories).
Only Ford, which did not seek a government bail-out, partly because it was making and selling cars more in tune with America’s new tastes, features in the top five of models bought under
the programme. GM and Chrysler, hoping to reinvent themselves as greener car firms, may find
that cash-for-clunkers, by turning more American heads towards Asia’s carmakers, is a present
they regret receiving.
573 See ‘‘GM is Developing an Option to Keep Opel,’’ The Wall Street Journal, August 24, 2009,
at online.wsj.com/article/SB125114535906254779.html. See also ‘‘Looking for Reverse,’’ The
Economist,
August
27,
2009,
at
www.economist.com/businessfinance/
displaystory.cfm?storylid=14327351.
574 In a written response to the Panel the Administration stated:
The Administration made the determination that Chrysler’s business plan submitted on February 17th was not viable and that, in order for Chrysler to receive taxpayer funds, it needed
to find a partner with whom it could establish a successful alliance. Chrysler identified Fiat as
a potential partner after conducting a lengthy search process that began before Treasury made
its initial loan to Chrysler and in which Treasury had no involvement. Fiat was the only potential partner to offer to enter into such an alliance, and ultimately the Chrysler Board made the
determination that forming an alliance with Fiat was the best course of action for its stakeholders.
In a written response to the Panel representatives of Chrysler stated:
Chrysler pursued an alliance with Fiat because it viewed Fiat’s products and distribution network as complementary to Chrysler’s and capable of strengthening Chrysler for the long-term.
The US Treasury indicated that it would provide financing in support of an alliance with Fiat—
first in the context of an out-of-court restructuring that required significant concessions by key
Continued

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did the Administration impede any potential merger or business
combination or arrangement between Chrysler and GM? 575
21. Representatives of the UAW were invited to testify at the
auto bailout hearing held by the Panel at Wayne State University
School of Law in Detroit on July 27. Even though the headquarters
of the UAW—Solidarity House—is a mere fifteen minute drive from
the location of the hearing,576 no representative from the UAW
agreed to testify. In addition, the CFOs of Chrysler and GM declined to appear and for some reason the Panel failed to invite the
CEOs. Since the leadership of the UAW and senior management of
Chrysler and GM have experienced little difficulty in arranging
their schedules to travel to Washington, DC—hat-in-hand—in
search of bailout funds, you would think they could find time to
drive across town to testify before the Panel. You might also think
they would welcome the opportunity to thank the American taxpayers for their profound generosity in rescuing two insolvent and
grossly mismanaged companies from liquidation. With respect to
all future hearings, the Panel should issue a press release noting
the names and affiliations of all invitees who decline to testify.

constituencies, and later in the context of a sale transaction under Section 363 of the U.S. Bankruptcy Code.’’
I would have expected a simple ‘‘no’’ or ‘‘yes’’ followed by an explanation.
575 See ‘‘Unions Express Unease Over Potential G.M.-Chrysler Deal,’’ The New York Times,
October 14, 2008, at dealbook.blogs.nytimes.com/2008/10/14/unions-express-unease-over-potential-gm-chrysler-deal/?scp=24&sq=chrysler%20gm%20merger&st=cse. The article reports:
According to Bloomberg News, United Auto Workers President Ron Gettelfinger, told a Detroit
radio station on Tuesday, ‘I personally would not want to see anything that would result in a
consolidation that would mean the elimination of additional jobs.
In a written response to the Panel the Administration stated:
The Administration allowed GM and Chrysler to work toward a commercial solution they
thought made sense for their businesses. Each company made its own determination to pursue
a future independent of the other.
In a written response to the Panel representatives of Chrysler stated:
GM advised Chrysler it would discontinue merger discussions due to the need to address its
own pressing liquidity issues.
In a written response to the Panel representatives of GM stated:
No, the Obama Administration did not thwart or discourage any arrangements between GM
and Chrysler.
576 See MapQuest driving directions from Solidarity House to Wayne State University School
of
Law
at
www.mapquest.com/maps?1a=8000+Jefferson+Avenue
%2C+Detroit%2C+Michigan+48214&2a=471+W.+Palmer+Avenue%2C+Detroit%
2C+Michigan+48202+.

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ANNEX TO CONGRESSMAN JEB HENSARLING’S
ADDITIONAL VIEWS
1. ANALYSIS OF CHRYSLER AND GM CASES BY BANKRUPTCY SCHOLARS

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The following analysis indicates that a number of well respected
bankruptcy scholars believe the Chrysler and GM reorganizations
were not legally well founded.577 Instead of simply paraphrasing
577 Other bankruptcy law scholars have commented on the Chrysler and GM cases, including:
(i) Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law, The
University of Chicago, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and
a visiting law professor at New York University Law School, offered the following analysis in
the May 12, 2009 issue of Forbes, at www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgageopinions-columnists-epstein.html:
The proposed bankruptcy of the now defunct Chrysler Corp. is the culmination of serious policy missteps by the Bush and Obama administrations. To be sure, the long overdue Chrysler
bankruptcy is a welcomed turn of events. But the heavy-handed meddling of the Obama administration that forced secured creditors to the brink is not.
A sound bankruptcy proceeding should do two things: productively redeploy the assets of the
bankrupt firm and correctly prioritize various claims against the bankrupt entity. The Chrysler
bankruptcy fails on both counts.
In a just world, that ignominious fate would await the flawed Chrysler reorganization, which
violates these well-established norms, given the nonstop political interference of the Obama administration, which put its muscle behind the beleaguered United Auto Workers. Its onerous
collective bargaining agreements are off-limits to the reorganization provisions, thereby preserving the current labor rigidities in a down market.
Equally bad, the established priorities of creditor claims outside bankruptcy have been cast
aside in this bankruptcy case as the unsecured claims of the union health pension plan have
received a better deal than the secured claims of various bond holders, some of which may represent pension plans of their own.
President Obama—no bankruptcy lawyer—twisted the arms of the banks that have received
TARP money to waive their priority, which is yet another reason why a government ownership
position in banks is incompatible with its regulatory role. Yet the president brands the nonTARP lenders that have banded together to fight this bogus reorganization as ‘‘holdouts’’ and
‘‘speculators.’’
Both charges are misinformed at best. A holdout situation arises when one party seeks to get
a disproportionate return on the sale of an asset for which it has little value in use. Thus the
owner of a small plot of land could hold out for a fortune if his land is the last piece needed
to assemble a large parcel of land. But the entire structure of bankruptcy eliminates the holdout
position of all creditors, secured and unsecured alike, by allowing the court to ‘‘cram’’ the reorganization down their throats so long as it preserves the appropriate priorities among creditors
and offers the secured creditors a stake in the reorganized business equal to the value of their
claims. Ironically, Obama’s Orwellian interventions have allowed unsecured union creditors to
hold out for more than they are entitled to.
His charge of ‘‘speculation’’ is every bit as fatuous. Speculators (who often perform a useful
economic function) buy high-risk assets at low prices in the hope that the market will turn in
their favor. By injecting unneeded uncertainty into the picture, Obama has created the need for
a secondary market in which nervous secured creditors, facing demotion, sell out to speculators
who are better able to handle that newly created sovereign risk. He calls on citizens to buy
Chrysler products, but patriotic Americans will choose to go to Ford, whose own self-help efforts
have been hurt by the Chrysler and GM bailouts.
Sadly, long ago Chrysler and GM should have been allowed to bleed to death under ordinary
bankruptcy rules, without government subsidy or penalty. Libertarians have often remarked on
these twin dangers in isolation. The Chrysler fiasco confirms their deadly synergistic effect.
(ii) Professor Todd J. Zywicki, Professor of Law, George Mason University, offered the following analysis in the May 13, 2009 issue of The Wall Street Journal, at online.wsj.com/article/
SB124217356836613091.html:
The rule of law, not of men—an ideal tracing back to the ancient Greeks and well-known to
our Founding Fathers—is the animating principle of the American experiment. While the rest
of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was
established to circumscribe arbitrary government power. It would do so by establishing clear
rules, equally applied to the powerful and the weak.
Continued

(147)

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the analysis of the bankruptcy scholars, I thought it best to let
them describe the problems raised by the Chrysler 578 and GM decisions in their own words. The next section contains a set of examples that illustrate certain of the fundamental objections raised by
the bankruptcy law professors.
1. Barry E. Adler, the Petrie Professor of Law and Business, New
York University, offered the following testimony to the Panel:
The rapid disposition of Chrysler in Chapter 11 was formally structured as a sale under § 363 of the Bankruptcy
Code.579 While that provision does, under some conditions,
permit the sale of a debtor’s assets, free and clear of any
interest in them, the sale in Chrysler was irregular and inconsistent with the principles that undergird the Code.
The most notable irregularity of the Chrysler sale was
that the assets were not sold free and clear . . . That is,
money that might have been available to repay these secured creditors was withheld by the purchaser to satisfy
unsecured obligations owed the UAW. Thus, the sale of
Chrysler’s assets was not merely a sale, but also a distribution—one might call it a diversion—of the sale proceeds
Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation
and business from a failure to toe a political line? We might expect this behavior from a Hugo
´
Chavez. But it would never happen here, right?
Until Chrysler.
The close relationship between the rule of law and the enforceability of contracts, especially
credit contracts, was well understood by the Framers of the U.S. Constitution. A primary reason
they wanted it was the desire to escape the economic chaos spawned by debtor-friendly state
laws during the period of the Articles of Confederation. Hence the Contracts Clause of Article
V of the Constitution, which prohibited states from interfering with the obligation to pay debts.
Hence also the Bankruptcy Clause of Article I, Section 8, which delegated to the federal government the sole authority to enact ‘‘uniform laws on the subject of bankruptcies.’’
The Obama administration’s behavior in the Chrysler bankruptcy is a profound challenge to
the rule of law. Secured creditors—entitled to first priority payment under the ‘‘absolute priority
rule’’—have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims,
will get about 50 cents on the dollar.
The absolute priority rule is a linchpin of bankruptcy law. By preserving the substantive property and contract rights of creditors, it ensures that bankruptcy is used primarily as a procedural mechanism for the efficient resolution of financial distress. Chapter 11 promotes economic
efficiency by reorganizing viable but financially distressed firms, i.e., firms that are worth more
alive than dead.
Violating absolute priority undermines this commitment by introducing questions of redistribution into the process. It enables the rights of senior creditors to be plundered in order to
benefit the rights of junior creditors.
The U.S. government also wants to rush through what amounts to a sham sale of all of Chrysler’s assets to Fiat. While speedy bankruptcy sales are not unheard of, they are usually reserved
for situations involving a wasting or perishable asset (think of a truck of oranges) where delay
might be fatal to the asset’s, or in this case the company’s, value. That’s hardly the case with
Chrysler. But in a Chapter 11 reorganization, creditors have the right to vote to approve or reject the plan. The Obama administration’s asset-sale plan implements a de facto reorganization
but denies to creditors the opportunity to vote on it.
By stepping over the bright line between the rule of law and the arbitrary behavior of men,
President Obama may have created a thousand new failing businesses. That is, businesses that
might have received financing before but that now will not, since lenders face the potential of
future government confiscation. In other words, Mr. Obama may have helped save the jobs of
thousands of union workers whose dues, in part, engineered his election. But what about the
untold number of job losses in the future caused by trampling the sanctity of contracts today?
578 The United States Court of Appeals for the Second Circuit recently affirmed the decision
of the bankruptcy court in the Chrysler proceedings. In re Chrysler LLC, 2009 WL 2382766 (2d
Cir. 2009). The court accepted the bankruptcy court’s finding that the assets of Old Chrysler
had a fair market value of approximately $2 billion, but, unfortunately, did not address the ‘‘bidding procedure’’ irregularities raised by Professors Adler, Roe and Skeel which are discussed in
the text below. The court also declined to address whether the Bush and Obama Administrations had the authority to use TARP funds with respect to Chrysler and GM.
579 Professor Adler: The Bankruptcy Code appears in Title 11 of the United States Code.

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seemingly inconsistent with contractual priority among the
creditors.
Given the constraint on bids, it is conceivable that the
liquidation value of Chrysler’s assets exceeded the company’s going-concern value but that no liquidation bidder
came forward because the assumed liabilities—combined
with the government’s determination to have the company
stay in business—made a challenge to the favored sale unprofitable, particularly in the short time frame afforded. It
is also possible that, but for the restrictions, there might
have been a higher bid for the company as a going concern, perhaps in anticipation of striking a better deal with
workers.580 Thus, the approved sale may not have fetched
the best price for the Chrysler assets. That is, the diversion of sales proceeds to the assumed liabilities may have
been greater than the government’s subsidy of the transaction, if any, in which case the secured creditors would
have suffered a loss of priority for their claims. There is
nothing in the Bankruptcy Code that allows a sale for less
than fair value simply because the circumstances benefit a
favored group of creditors.
Viewed another way, the approved transaction was not
a sale at all, but a disguised reorganization plan, complete
with distribution to preferred creditors.
Chrysler was a blueprint for the General Motors bankruptcy, which, like that of Chrysler, included a sale of the
debtor’s valuable assets to an entity that assumed unsecured obligations owed its workers or former workers.
Still, just as in the case of Chrysler, the approval of a
restricted bid process [in GM] establishes a dangerous
precedent, one that went unnoticed, or at least unnoted, by
the court.
Judge Gerber [in GM] ignores the sales procedure,
which, like that in Chrysler, strictly limited the time for
competing bids and restricted bidders to those willing to
assume significant UAW liabilities. The process thus precluded a potentially higher bid by a prospective purchaser
who was unwilling to make the same concessions to the
UAW that the government-sponsored purchaser was willing to endure. Thus, there remained the theoretical possibility that the process impermissibly transferred asset
value from the company’s other creditors to the UAW. This
is merely a theoretical possibility. As noted above, it may
well be that no creditor other than the government secured
lenders suffered a loss of priority from the transaction. But
the case stands as precedent that might cause later lenders to doubt whether future debtors will be forced in bankruptcy to live up to their obligations. And as also noted
above, wary lenders are inhospitable to economic development.
568 Professor Adler: Note that these restrictions would have prevented credit bidding even if
the secured bondholders had collectively desired to make such a bid because the required assumption of liabilities effectively eliminated the secured lender priority that is necessary for a
credit bid.

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150
2. Mark J. Roe and David A. Skeel, Professors of Law, Harvard
University and the University of Pennsylvania, respectively, offered
the following analysis in their paper ‘‘Assessing the Chrysler Bankruptcy’’ (which also addresses the GM bankruptcy):
Chrysler entered and exited bankruptcy in 42 days,
making it one of the fastest major industrial bankruptcies
in memory. It entered as a company widely thought to be
ripe for liquidation if left on its own, obtained massive
funding from the United States Treasury, and exited
through a pseudo sale of the main assets to a new government funded entity. Most creditors were picked up by the
purchasing entity, but some were not. The unevenness of
the compensation to prior creditors raised considerable
concerns in capital markets.
Appellate courts had previously developed a strong set of
standards for a § 363 sale: The sale must have a valid
business justification, the sale cannot be a sub rosa plan
of reorganization, and if the sale infringes on the protections afforded creditors under Chapter 11, the court can
only approve it after fashioning appropriate protective
measures.
The Chrysler reorganization failed to comply with these
requirements. Although Chrysler needed to be repositioned, and needed to be repositioned quickly, it had a few
weeks, maybe a month, to get the process done right in a
way that would neither frighten credit markets nor violate
priorities. Chrysler’s facilities were already shut down and
not scheduled to reopen immediately. Fiat, the nominal
buyer, was providing no cash. The party with the money
was the U.S. Treasury, and it wasn’t walking away.
The plan surely was a sub rosa plan, in that it allocated
billions of dollars—the core determination under § 1129—
without the checks that a plan of reorganization requires.
The informal, makeshift checks that courts had previously required when there were strong § 1129 implications were in Chrysler weak or nonexistent. The courts did
not even see fit to discuss § 1129 in their opinions. There
was de facto consent from a majority of the bank lenders
(although not from products liability claimants), but that
consent came from parties afflicted with serious conflicts of
interest and who may well be viewed as controlled by the
player controlling the reorganization—the United States
Treasury. There was a pseudo-market test, not a real market test, because the plan only marketed the reorganization plan itself, when the issue at stake was whether the
assets alone had a higher value.
Worse yet, it’s quite plausible to view the Chrysler bankruptcy as not having been a sale at all, but a reorganization. The New Chrysler balance sheet looks remarkably
like the old one, sans a couple of big creditors. Courts will
need to develop rules of thumb to distinguish true § 363
sales from bogus ones that are really reorganizations. We
suggest a rough rule of thumb to start with: if the new balance sheet has creditors and owners who constituted more

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151
than half of the selling company’s balance sheet, but with
some creditors left behind, the transaction should be presumed not to be a sale at all, but a reorganization. The
Chrysler transaction would have failed that kind of a test.
One might be tempted to dismiss the inquiry as needless
worry over a few creditors. But we should resist that easy
way out. Much corporate and commercial law has to do
with the proper treatment of minority creditors and minority shareholders. For minority stockholders, there’s an
elaborate corporate law machinery for freezeouts when a
majority stockholder seeks to engineer a transaction that
squeezes out minority stockholders. For minority creditors,
there’s a century of bankruptcy and equity receivership
law designed to balance protection from the majority’s potential to encroach on the minority and squeeze them out
from their contractual priority against the minority’s potential to hold out perniciously. These are neither small
nor simply fairness-based considerations: Capital markets
depend on effective mechanisms that prevent financial majorities from ousting financial minorities from their ratable
position in an enterprise. That’s what’s at stake.
It’s in that light that the Chrysler bankruptcy was pernicious, in that it failed to comply with good bankruptcy
practice, reviving practices that were soundly rejected
nearly a century ago. Going forward, the extent of Chrysler’s damage to bankruptcy practice and financial markets
will depend on how it is construed by other courts, and
whether they will limit its application, as they should.’’
We can hope that bankruptcy judges will come to see
Chrysler as flawed, but unique. They should require a better bidding process and attend better to priority. They can
be more skeptical of the facts when parties say that the
new entity is sua sponte recognizing the bulk of the old entity’s debts; this is a strong signal that they are witnessing
a sub rosa reorganization plan, designed to avoid § 1129.
They could latch onto the fact that in Chrysler there was
an unrebutted liquidation value study and, if they are
faced with a contested valuation, require a more open auction and better makeshift substitutes for the § 1129 protections. Or they might simply say that the government’s involvement made Chrysler sui generis. Better yet, the
courts could develop rules of thumb, such as the 50% rule
we suggested above to cull presumed pseudo sales from the
real ones.
Whatever promising signs can be gleaned from Delphi
and Phoenix Coyotes, are offset by the General Motors
bankruptcy court’s invocation of Chrysler as controlling
law in the Second Circuit. The government used the same
template for the § 363 sale in GM as it did in Chrysler. As
in Chrysler, the buyer was not a true third party, the ostensible immediacy to the urgency of the sale was debatable, and the § 363 bidding procedures required that
would-be bidders agree to the retiree settlement negotiated
by the government and GM. But GM’s secured creditors,

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unlike their counterparts in Chrysler, were paid in full.
The GM sale was in this dimension thus easier to reconcile
with ordinary priority rules than Chrysler. It’s plausible
that the Treasury adjusted to the pushback from capital
markets and the media criticism that accompanied the
Chrysler deal.581
3. Stephen J. Lubben, the Daniel J. Moore Professor of Law,
Seton Hall University, offered the following testimony to the Panel:
In short, by and large, I think that the criticism of the
automotive bankruptcy cases does not stand up to careful
scrutiny. In the future, Congress may choose to consider
the policy implications of a chapter 11 process that has become heavily driven by quick asset sales and lender control. But given the reality of current chapter 11 practice,
both GM and Chrysler’s chapter 11 cases were not all that
exceptional.582
2. EXAMPLES THAT ILLUSTRATE THE ISSUES RAISED BY PROFESSORS
ADLER, ROE AND SKEEL

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The following examples 583 illustrate the issues noted above by
Professors Adler, Roe and Skeel:
Example 1. Professor Adler offered the following example in the
paper he submitted to the Panel:
Consider the following illustration, where the government as lender or purchaser is nowhere to be found. Imagine a simple firm, Debtor, with only two creditors, each unsecured: Supplier, owed $60, and Bank, owed $20. After
Debtor runs out of working funds and files a bankruptcy
petition, Bank offers $40 for all of Debtor’s assets (which
Bank intends to resell). Bank contends that this is the best
offer Debtor is going to get and that if Debtor does not accept the offer immediately it will be forced to liquidate
piecemeal for $10. The court agrees and approves the sale
over Supplier’s objection even though there is no auction
or other market test for the value of the assets. After the
sale, Debtor moves through the ordinary bankruptcy process and distributes the $40 proceeds ratably between Supplier and Bank, with $30 to Supplier and $10 to Bank.
581 Roe, Mark J. and Skeel, David A., Assessing the Chrysler Bankruptcy (August 12, 2009).
U of Penn Law School, Public Law Research Paper No. 09–17; U of Penn, Inst for Law & Econ
Research Paper No. 09–22. Available at SSRN: ssrn.com/abstract=1426530.
582 I don’t believe Professor Lubben’s testimony is particularly instructive. I concur that Section 363 sales have become more commonplace, but I’m not sure the significance of that conclusion. He neglects the link between the procedural error in the bidding process and the sub rosa
plan and concludes without support that the error was harmless.
583 Another example: If a bidder determines that the gross assets of Company X have a fair
market value of $100, the bidder may reasonably enter a bid of up to $100 for the assets ($100
FMV of the assets, less $0 of assumed liabilities). If the bidding process, however, requires the
bidder to assume $20 of the liabilities of the seller, the bidder may reasonably enter a bid of
up to $80 for the assets ($100 FMV of the assets, less $20 of assumed liabilities). In the latter
case the seller only has $80 (not $100) to distribute to its creditors. So, it’s possible that a senior
creditor of the seller may not recover its full claim (because a distribution of $80 is insufficient)
even though the claim of the $20 junior creditor that was assumed by the purchaser pursuant
to the Section 363 bidding process may quite likely be paid in full. Due to the required assumption of the $20 claim, $20 of purchase consideration has been redirected and applied outside the
provisions of the bankruptcy code that are charged with protecting commercial law priority rules
and the contractual expectations of the parties.

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As long as the court is correct to accept Bank’s valuation, the sale and the distribution are appropriate. But
what if the court is wrong? Assume that Debtor’s assets
are worth $60. In this case, Supplier should receive $45
and Bank $15. But the sale and distribution approved by
the court has different consequences. Instead, Bank pays
$40 for assets worth $60 (i.e., gains $20) then receives a
$10 distribution from Debtor’s bankruptcy estate, for a
total effective distribution of $30, half the true value of
Debtor’s assets, twice the amount to which it is entitled.
All this while, as a formal matter, it is correct to say, as
the courts did in Chrysler and GM, that the sale proceeds
were distributed fairly among the creditors. The problem,
of course, is not with the distribution of sale proceeds received; the problem is with the diversion of value to the
purchaser, which paid the estate too little and thus, in its
role as a creditor, received too much. This is Supplier’s
complaint in this illustration and the dissenting creditors’
complaint in the Chrysler and General Motors case.
In this illustration, an auction would solve the problem—because a bidder would offer $60 foiling Bank’s
scheme—as would granting Supplier a veto over the sale
to reflect its dominant position in what would be the unsecured creditor (and only) class were the proposed distribution part of a reorganization plan. With neither protection
in place, Supplier is left to suffer the consequences of judicial error, which can occur no matter how skilled or well
meaning the judge; skilled and well meaning are not synonymous with omniscient.
As Mark Roe and David Skeel observe in their own criticism of the Chrysler bankruptcy, the ability of a court to
approve an untested sale at the behest of some creditors
over the objection of others without the safeguards prescribed by the Bankruptcy Code returns us to a past centuries’ practice referred to as the equity receivership,
where it was widely believed that powerful, favored creditors routinely victimized the weak and unconnected.584
The Chrysler and General Motors cases are a step back
and in the wrong direction.
Example 2. Assume Oldco (i.e., Old Chrysler or Old GM) has (i)
assets with a fair market value (FMV) of $70, (ii) secured debt
(with liens on $40 FMV of assets) in an outstanding principal
amount of $90 held by Creditor 1, and (iii) unsecured debt in an
outstanding principal amount of $50 held by Creditor 2. Creditor
1 in effect holds two claims, a $40 secured claim (equal to the FMV
of the assets securing Creditor 1’s claim) and a $50 unsecured
claim (which together equal Creditor 1’s total claim of $90); and
Creditor 2 holds a $50 unsecured claim. Any distribution on the
unsecured claims should be shared 50/50% (because each creditor
holds a $50 unsecured claim) under the ‘‘no unfair discrimination’’
rule of Chapter 11.
584 See Roe & Skeel, cited in note 7; see also David A. Skeel, Jr., Debt’s Dominion: A History
of Bankruptcy Law in America 48–70 (2001) (describing the equity receivership and its faults).

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If, in a Section 363 sale, Newco (i.e., New Chrysler or New GM)
purchased the Oldco assets (with no assumption of Oldco liabilities)
for $70 FMV, then the $70 cash proceeds would be distributed as
follows: Creditor 1 would receive $55 ($40 secured position, plus
$15 unsecured position), and Creditor 2 would receive $15.
Conversely, if in the Section 363 sale the bankruptcy court required Newco to assume Creditor 2’s debt of $50, then Newco
would only pay $20 cash for the Oldco assets ($70 FMV of assets,
less $50 required assumption of Creditor 2’s debt). In such event,
Creditor 1 would only receive $20 (representing 100% of the cash
sales proceeds from the Section 363 sale, but leaving a shortfall of
$70 ($90, less $20)). Creditor 2 would receive no proceeds from the
Section 363 sale, but would quite possibly receive $50 in the future
from Newco (the amount of Creditor 2’s debt assumed by Newco).
Thus, without the required assumption of the $50 claim by
Newco, Creditor 1 (the senior creditor) would receive $55 and Creditor 2 (the junior creditor) would receive $15. This result is consistent with commercial law principles and the contractual expectations of the parties. With the required assumption, however, Creditor 1 would only receive $20 and Creditor 2 would receive $50. The
required assumption results in a shift of $35 from Creditor 1 to
Creditor 2, a result that is not consistent with commercial law
principles, the contractual expectations of the parties and the
Chapter 11 reorganization rules.
Example 3. If the FMV of the Oldco assets was only $30 (instead
of $70), is it possible that Newco would pay $30 cash for the assets
AND assume Creditor 2’s debt of $50. Creditor 1 would, thus, receive $30 (representing 100% of the cash sales proceeds from the
Section 363 sale, but leaving a shortfall of $60 ($90 outstanding
principal balance, less $30)), and Creditor 2 would quite possibly
receive $50 in the future from Newco (the amount of Creditor 2’s
debt assumed by Newco). No buyout group (other than one that legally controls the printing press—the United States government)
would agree to pay full FMV for Oldco’s assets AND assume
Oldco’s liabilities. A solvent buyout group might very well agree to
pay FMV for the Oldco assets but would generally expect a dollarfor-dollar purchase price reduction for any liabilities assumed.
Newco may argue that since it paid $30 FMV for the Oldco assets it discharged its obligations under Section 363. Newco may
further argue that it’s of no concern to Creditor 1 that Newco also
elected to assume Creditor 2’s debt.
In response, Creditor 1 may argue that (i) another purchaser
might have paid, for example, $35 or more for the Oldco assets
(with no assumption of Creditor 2’s debt), (ii) another purchaser
(other than the United States government) would never have paid
$30 FMV for the Oldco assets AND assumed Creditor 2’s debt (and
that any such requirement would have chilled the bidding process),585 (iii) without a market auction or compliance with the applicable Revlon/Lyondell standards established by the Delaware
courts, it’s impossible to know if $30 or $35 or another amount represents the true FMV of the Oldco assets (with no assumption of
585 A purchaser may conclude, however, that it’s in its best interest to assume some of Creditor 2’s debt.

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Creditor 2’s debt),586 and (iv) to the extent the true FMV of the
Oldco assets exceeds $30, Newco redirected its purchase price away
from Creditor 1 to Creditor 2 by using funds to assume Creditor
2’s debt that would have ordinarily been used to purchase the
Oldco assets.

586 As noted in Professor Adler’s proposed legislative fix to the problems created by the Chrysler and GM cases (discussed below), it’s important that the bidding procedures approved by the
courts not require potential purchasers to assume some or all of Oldco’s indebtedness to Creditor
2.

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SECTION THREE: CORRESPONDENCE WITH TREASURY
UPDATE

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On behalf of the Panel, Chair Elizabeth Warren sent a letter on
July 20, 2009,587 to Secretary of the Treasury Timothy Geithner
and Federal Reserve Board Chairman Ben Bernanke requesting
copies of confidential memoranda of understanding involving informal supervisory actions entered into by the Federal Reserve Board
and the Office of the Comptroller of the Currency with Bank of
America and Citigroup. The letter further requests copies of any
similar future memoranda of understanding executed with Bank of
America, Citigroup, or any other bank holding companies that were
subject to the Supervisory Capital Assessment Program (SCAP). Finally, the letter asks that the Panel be apprised of any other confidential agreements relating to risk and liquidity management
that Treasury, or any of the bank supervisors, has or will enter
into with any of the SCAP bank holding companies. Secretary
Geithner responded on August 12, 2009.588 The Panel has not received a response from Chairman Bernanke.

587 See
588 See

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Appendix I of this report, infra.
Appendix II of this report, infra.

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SECTION FOUR: TARP UPDATES SINCE LAST REPORT
A. TARP REPAYMENT
Since the Panel’s prior report, additional banks have repaid their
TARP investment under the Capital Purchase Program (CPP). CVB
Financial Corp. repaid $97,500,000 in TARP funds. Bank of Commerce repaid $12,500,000 in TARP funds. As of August 28, 2009,
neither has repurchased their warrants. A total of 37 banks have
repaid their preferred stock TARP investment provided under the
CPP to date. Of these banks, 22 have repurchased the warrants as
well.
B. CPP MONTHLY LENDING REPORT
Treasury releases a monthly lending report showing loans outstanding at the top 20 CPP recipient banks. The most recent report, issued on August 17, 2009, includes data up through the end
of June 2009 and shows that CPP recipients had $4.29 trillion in
loans outstanding as of June 2009. This represents a 1.1 percent
decline in loans outstanding between the end of May and the end
of June.

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C. REGULATORY REFORM PROPOSALS
On August 11, 2009, the Obama Administration sent a legislative
proposal to Congress which seeks to regulate over-the-counter
(OTC) derivatives. The proposed legislation will require standardized OTC derivatives to be centrally cleared by a derivatives clearing organization regulated by the Commodities Futures Trading
Commission (CFTC) or a securities clearing agency regulated by
the Securities and Exchange Commission (SEC). The proposed legislation would also require standardized OTC derivatives to be
traded on a CFTC- or SEC-regulated exchange or a CFTC- or SECregulated alternative swap execution facility, as well as higher capital and margin requirements for non-standardized derivatives. In
addition, the proposal seeks to allow financial regulatory agencies
access to confidential information on OTC derivative transactions
and open market positions, require supervision and regulation of
any firm that deals in OTC derivatives and any other firm that
takes large positions in OTC derivatives. The proposal would require the SEC, CFTC, and federal banking regulators to supervise
and regulate all OTC derivatives dealers and major market participants within their respective jurisdictions. The SEC, CFTC, and
federal banking regulators would create and enforce margin and
capital requirements for all OTC derivatives dealers and major
market participants. The SEC and the CFTC would also issue and
enforce strong business conduct, reporting, and recordkeeping (including audit trail) rules for all OTC derivative dealers and major
market participants, as well as limit the number of investors eligible to engage in OTC derivative transactions. Finally, the proposal
would grant the SEC and CFTC authority to set position limits and
large trader reporting requirements for OTC derivatives and to
deter market manipulation, fraud, insider trading, and other
abuses in the OTC derivative markets.

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D. TERM ASSET-BACKED SECURITIES LOAN FACILITY (TALF)
On August 17, 2009, the Federal Reserve Board and Treasury
announced their approval of an extension to the Term AssetBacked Securities Loan Facility (TALF). With the extension, the
deadline for TALF lending against newly issued asset-backed securities (ABS) and legacy commercial mortgage-backed securities
(CMBS) was extended from December 31, 2009 to March 31, 2010.
Additionally, the deadline for TALF lending against newly issued
CMBS was extended to June 30, 2010.
Also on August 17, 2009, the Federal Reserve Board and Treasury announced that they are holding in abeyance any further expansion in the types of collateral eligible for the TALF. The securities already eligible for collateralizing TALF loans include the
major types of newly issued, triple-A-rated ABS backed by loans to
consumers and businesses, and newly issued and legacy triple-Arated CMBS. Nevertheless, the Federal Reserve and Treasury have
indicated that they are prepared to reconsider their decision if financial or economic developments indicate that providing TALF financing for investors’ acquisitions of additional types of securities
is warranted.
At the August 20, 2009 facility, $2.15 billion in legacy CMBS
were settled (though $2.3 billion in loans were requested). At the
September 3, 2009 non-CMBS facility, $6.5 billion in loans were requested to support the issuance of ABS collateralized by loans in
the auto, credit card, equipment, property and casualty, small business, and student loan sectors. There were no requests supported
by floorplan or residential mortgage loans.
E. MAKING HOME AFFORDABLE PROGRAM MONTHLY SERVICER
PERFORMANCE REPORT
On August 4, 2009, the Treasury released its first monthly
Servicer Performance Report detailing the progress to date of the
Making Home Affordable (MHA) loan modification program. The
report discloses that as of July 31, 2009, 85 percent of mortgages
are covered by a Home Affordable Modification Program (HAMP)
participating servicer. The report also indicates that as of July 31,
2009, 230,000 trial loan modifications have occurred out of 406,542
trial plan offers extended.

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F. METRICS
The Panel continues to monitor a variety of financial market indicators that provide insight into the current economic conditions.
In recent months, the Panel’s oversight reports have highlighted a
number of metrics that the Panel and others, including Treasury,
Government Accountability Office (GAO), Special Inspector General
for the Troubled Asset Relief Program (SIGTARP), and the Financial Stability Oversight Board consider useful in assessing the effectiveness of the Administration’s efforts to restore financial stability and accomplish the goals of the EESA. This section discusses
changes that have occurred in several indicators since the release
of the Panel’s August report.
• Interest Rate Spreads. Key interest rate spreads have continued to flatten since the Panel’s August report. Numerous officials

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have cited tightening credit spreads as a sign of the improving
economy.589 It is of particular note that the 3 Month LIBOR–OIS
spread, an important measure of the cost of capital, has nearly rebounded to its pre-crisis level of .09 in January 2007.590
FIGURE 12: INTEREST RATE SPREADS
Current
Spread
(as of
8/31/09)

Indicator

3 Month LIBOR–OIS Spread 591 .......................................................................
1 Month LIBOR–OIS Spread 592 .......................................................................
TED Spread 593 (in basis points) ....................................................................
Conventional Mortgage Rate Spread 594 .........................................................
Corporate AAA Bond Spread 595 ......................................................................
Corporate BAA Bond Spread 596 ......................................................................
Overnight AA Asset-backed Commercial Paper Interest Rate Spread 597 ......
Overnight A2/P2 Nonfinancial Commercial Paper Interest Rate Spread 598 ..

Percent Change
Since Last Report
(8/05/09)

¥37.04
0
¥29.08
5.06
1.73
¥4.94
14.29
¥11.11

0.17
0.09
20.75
1.66
1.76
3.08
0.24
0.16

591 3

Mo LIBOR-OIS Spread, Bloomberg (online at www.bloomberg.com/apps/quote?ticker=.LOIS3:IND/) (accessed Aug. 31, 2009).
Mo LIBOR-OIS Spread, Bloomberg (online at www.bloomberg.com/apps/quote?ticker=.LOIS1:IND/) (accessed Aug. 31, 2009).
Spread, Bloomberg (online at www.bloomberg.com/apps/quote?ticker=.TEDSP:IND) (accessed Aug. 31, 2009).
594 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.15: Selected Interest Rates: Historical Data (Instrument:
Conventional
Mortgages,
Frequency:
Weekly)
(accessed
July
9,
2009)
(online
at
www.federalreserve.gov/releases/h15/data/WeeklylThursdayl/H15lMORTGlNA.txt); Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.15: Selected Interest Rates: Historical Data (Instrument: U.S. Government Securities/Treasury Constant
Maturities/Nominal
10-Year,
Frequency:
Weekly)
(accessed
July
9,
2009)
(online
at
www.federalreserve.gov/releases/h15/data/WeeklylFridayl/H15lTCMNOMlY10.txt) (hereinafter ‘‘Fed H.15 10-Year Treasuries’’).
595 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.15: Selected Interest Rates: Historical Data (Instrument:
Corporate
Bonds/Moody’s
Seasoned
AAA,
Frequency:
Weekly)
(online
at
www.federalreserve.gov/releases/h15/data/WeeklylFridayl/H15lAAAlNA.txt) (accessed Aug. 31, 2009); Fed H.15 10-Year Treasuries, supra
note 594.
596 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.15: Selected Interest Rates: Historical Data (Instrument:
Corporate
Bonds/Moody’s
Seasoned
BAA,
Frequency:
Weekly)
(online
at
www.federalreserve.gov/releases/h15/data/WeeklylFridayl/H15lBAAlNA.txt) (accessed Aug. 31, 2009); Fed H.15 10-Year Treasuries, supra
note 594.
597 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release: Commercial Paper Rates and Outstandings: Data
Download
Program
(Instrument:
AA
Asset-Backed
Discount
Rate,
Frequency:
Daily)
(online
at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (accessed July 9, 2009); Board of Governors of the Federal Reserve System, Federal
Reserve Statistical Release: Commercial Paper Rates and Outstandings: Data Download Program (Instrument: AA Nonfinancial Discount Rate,
Frequency: Daily) (online at www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (accessed Aug. 31, 2009) (hereinafter ‘‘Fed CP AA Nonfinancial Rate’’).
598 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release: Commercial Paper Rates and Outstandings: Data
Download
Program
(Instrument:
A2/P2
Nonfinancial
Discount
Rate,
Frequency:
Daily)
(online
at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (accessed Aug. 31, 2009); Fed CP AA Nonfinancial Rate, supra note 597.
592 1

593 TED

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• Commercial Paper Outstanding. Commercial paper outstanding, a rough measure of short-term business debt, is an indicator of the availability of credit for enterprises. While asset-backed
commercial paper outstanding had a modest increase since the last
report, the total outstanding is still more than 55 percent below its
level in January 2007.599 Financial commercial paper outstanding
increased in June, leaving the measure less than 20 percent below
its January 2007 level.600
589 Herbert Allison COP Testimony, supra note 470. Allison noted that ‘‘[t]here are tentative
signs that the financial system is beginning to stabilize and that our efforts have made an important contribution. Key indicators of credit market risk, while still elevated, have dropped
substantially.’’
590 3
Mo LIBOR–OIS Spread, Bloomberg (online at www.bloomberg.com/apps/
quote?ticker=.LOIS3:IND/) (accessed Aug. 31, 2009).
599 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release:
Commercial Paper Rates and Outstandings: Data Download Program (Instrument: Asset-Backed
Commercial Paper Outstanding, Frequency: Weekly) (accessed Aug. 31, 2009) (online at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (hereinafter ‘‘Fed CP and AssetBacked Commercial Paper Outstanding’’).
600 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release:
Commercial Paper Rates and Outstandings: Data Download Program (Instrument: Financial
Commercial Paper Outstanding, Frequency: Weekly) (accessed Aug. 31, 2009) (online at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (hereinafter ‘‘Fed CP and Financial
CP Outstanding’’).

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160
FIGURE 13: COMMERCIAL PAPER OUTSTANDING
Current Level (as
of 8/31/09) (dollars billions)

Indicator

Asset-Backed Commercial Paper Outstanding (seasonally adjusted) 601
Financial Commercial Paper Outstanding (seasonally adjusted) 602 .....
Nonfinancial Commercial Paper Outstanding (seasonally adjusted) 603

Percent Change Since Last
Report (8/05/09)

$457.8
579.7
116.7

4.56
12.03
¥5.66

601 Fed

CP and Asset-Backed Commercial Paper Oustanding, supra note 599.
CP and Financial CP, supra note 600.
of Governors of the Federal Reserve System, Federal Reserve Statistical Release: Commercial Paper Rates and Outstandings: Data
Download Program (Instrument: Nonfinancial Commercial Paper Outstanding, Frequency: Weekly) (accessed Aug. 31, 2009) (online at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP).
602 Fed

603 Board

• Lending by the Largest TARP-recipient Banks. Treasury’s
Monthly Lending and Intermediation Snapshot tracks loan originations and average loan balances for the 21 largest recipients of CPP
funds across a variety of categories, ranging from mortgage loans
to commercial and industrial loans to credit card lines. Originations increased across nearly all categories of bank lending in June
when compared to May.604 Lenders surveyed by Treasury attribute
this increase to attractive rates that increased mortgage originations.605 The return of mortgage originations to October 2008 levels
is due in large measure to the increase in mortgage refinancings,
which comprise over 63 percent of mortgage originations since that
date.606 The noticeable increases in commercial, industrial, and
commercial real estate originations are particularly noteworthy,
with originations in both categories increasing by over 20 percent.607 Average loan balances decreased by one percent from June
to May, with banks reporting that borrowers are paying down existing debt.608 The data below exclude lending by two large CPPrecipient banks, PNC Bank and Wells Fargo, because significant
acquisitions by those banks since last October make comparisons
difficult.
FIGURE 14: LENDING BY THE LARGEST TARP-RECIPIENT BANKS 609
Most Recent Data (June
2009) (in millions)

Indicator

Total Loan Originations ......................................
Mortgage Total Originations ...............................
Commercial Real Estate New Commitments ......
Commercial & Industrial New Commitments .....
Total Average Loan Balances .............................
609

$226,898
89,703
3,701
40,978
3,311,902

Percent Change Since
May 2009

Percent Change Since
October 2008

13.28
15.31
24.6
22.4
¥0.76

4.00
102.53
¥64.83
¥30.5
¥3.24

Id.

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• Loans and Leases Outstanding of Domestically-Chartered
Banks. Weekly data from the Federal Reserve Board track fluctuations among different categories of bank assets and liabilities. The
Federal Reserve Board data are useful because they separate out
large domestic banks and small domestic banks. Loans and leases
outstanding for large and small domestic banks both fell last
604 U.S. Department of the Treasury, Treasury Department Monthly Lending and Intermediation Snapshot Data for October 2008–April 2009 (Aug. 31, 2009) (online at
www.financialstability.gov/docs/surveys/SnapshotlDatalJune%202009.xls).
605 U.S. Department of the Treasury, Treasury Department Monthly Lending and Intermediation Snapshot: Summary Analysis for June 2009 (Aug. 31, 2009) (online at
www.financialstability.gov/docs/surveys/SnapshotAnalysisJune2009.pdf).
606 Id.
607 Id.
608 Id.

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161
month.610 However, total loans and leases outstanding at small domestic banks remain near last October’s level, while total loans and
leases outstanding at large banks have dropped by over 6.7 percent
since that time.611
FIGURE 15: LOANS AND LEASES OUTSTANDING 612
Current Level (as of
8/31/09) (in billions)

Indicator

Large Domestic Banks—Total Loans and Leases
Small Domestic Banks—Total Loans and Leases

Percent Change Since Last
Report (8/5/09)

Percent Change Since EESA
Signed into Law
(10/3/08)

¥1.13
¥.86

$3,780
2,496

¥6.73
¥.87

612 Id.

• Housing Indicators. Foreclosure filings increased by roughly
seven percent from May to June and are roughly 25 percent above
the level of last October. Housing prices, as measured by the S&P/
Case-Shiller Composite 20 Index, increased slightly in June. The
index remains down over 10 percent percent since October 2008.
FIGURE 16: HOUSING INDICATORS
Indicator

Most Recent Monthly Data

Monthly Foreclosure Filings 613 .........................
Housing Prices—S&P/Case-Shiller Composite
20 Index 614 ..................................................

Percent Change From Data Available at
Time of Last Report (8/5/09)

360,149

Percent Change
Since October
2008

7.13
.86

141.3

28.8
¥10.05

613 RealtyTrac,

Foreclosure
Activity
Press
Releases
(accessed
Aug.
31,
2009)
(online
at
www.realtytrac.com//ContentManagement/PressRelease.aspx). The most recent data available is for July 2009.
614 Standard & Poor’s, S&P/Case-Shiller Home Price Indices (Instrument: Seasonally Adjusted Composite 20 Index) (accessed Aug. 31, 2009)
(online at www2.standardandpoors.com /spf/pdf/ index/SAlCSHomePricelHistoryl082562.xls). The most recent data available is for June
2009.

G. FINANCIAL UPDATE
Each month since its April oversight report, the Panel has summarized the resources that the federal government has committed
to economic stabilization. The following financial update provides:
(1) an updated accounting of the TARP, including a tally of dividend income and repayments the program has received as of July
31, 2009; and (2) an update of the full federal resource commitment
as of August 28, 2009.
1. TARP

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a. Costs: Expenditures and commitments 615
Treasury is currently committed to spend $531.2 billion of TARP
funds through an array of programs used to purchase preferred
shares in financial institutions, offer loans to small businesses and
automotive companies, and leverage Federal Reserve loans for fa610 Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.8:
Assets and Liabilities of Commercial Banks in the United States: Historical Data (Instrument:
Assets and Liabilities of Large Domestically Chartered Commercial Banks in the United States,
Seasonally adjusted, adjusted for mergers, billions of dollars) (accessed Aug. 31, 2009) (online
at www.federalreserve.gov/releases/h8/data.htm).
611 Id.
615 Treasury will release its next tranche report when transactions under the TARP reach
$450 billion.

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162
cilities designed to restart secondary securitization markets.616 Of
this total, $369.5 billion is currently outstanding under the $698.7
billion limit for TARP expenditures set by EESA, leaving $329.2
billion available for fulfillment of anticipated funding levels of existing programs and for funding new programs and initiatives. The
$369.5 billion includes purchases of preferred and common shares,
warrants and/or debt obligations under the CPP, TIP, SSFI Program, and AIFP; a $20 billion loan to TALF LLC, the special purpose vehicle (SPV) used to guarantee Federal Reserve TALF loans;
and the $5 billion Citigroup asset guarantee, which was exchanged
for a guarantee fee composed of additional preferred shares and
warrants and has subsequently been exchanged for Trust Preferred
shares.617 Additionally, Treasury has allocated $21.5 billion to the
Home Affordable Modification Program, out of a projected total program level of $50 billion.
b. Income: Dividends, interest payments, and CPP repayments
A total of 32 institutions have completely repaid their CPP preferred shares, 22 of which have also repurchased warrants for common shares that Treasury received in conjunction with its preferred stock investments. The rapid pace of preferred shares and
warrant repayments has slowed considerably since the issuance of
the Panel’s August report—out of a total preferred shares and warrant repayment of $70.3 billion, only $200 million has been repaid
since July 29, 2009.618 In addition, Treasury is entitled to dividend
payments on preferred shares that it has purchased, usually five
percent per annum for the first five years and nine percent per
annum thereafter.619 Treasury has begun to report dividend payments made by all TARP recipients. In addition to $7.3 billion in
dividend payments, Treasury has received $206 million in interest
from its assistance provided under the AIFP and over $2 million
in interest stemming from the ASSP. In total, the Treasury has received approximately $85 billion in income from repayments, warrant repurchases, dividends, and interest payments deriving from
TARP investments.620

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c. Citigroup Exchange
Treasury has invested a total of $49 billion in Citigroup through
three separate programs: the CPP, TIP, and AGP. As noted in the
Panel’s March report, Treasury announced on February 27, 2009
that it would convert up to $25 billion of its preferred stock holdings in Citigroup into common stock, which would provide additional tangible common equity for Citigroup. On June 9, 2009,
Treasury agreed to terms to exchange its CPP preferred stock hold616 EESA, as amended by the Helping Families Save Their Homes Act of 2009, limits Treasury
to $698.7 billion in purchasing authority outstanding at any one time as calculated by the sum
of the purchase prices of all troubled assets held by Treasury. EESA § 115(a)-(b), supra note 2;
Helping Families Save Their Homes Act of 2009, Pub. L. 111–22, § 402(f) (reducing by $1.26 billion the authority for the TARP originally set under EESA at $700 billion).
617 August 28 TARP Transactions Report, supra note 102.
618 August 28 TARP Transactions Report, supra note 102.
619 See, for example, U.S. Department of the Treasury, Securities Purchase Agreement: Standard Terms (online at www.financialstability.gov/docs/CPP/spa.pdf).
620 U.S. Department of the Treasury, Cumulative Dividends Report as of July 31, 2009 (Sep.
2,
2009)
(online
at
www.financialstability.gov/docs/dividends-interest-reports/
072009lreport.pdf).

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163
ings for 7.7 billion shares of common stock priced at $3.25/share
(for a total value of $25 billion) and also agreed to convert the form
of its TIP and AGP holdings.
On July 23, 2009, Treasury, along with both public and private
Citigroup debt holders, participated in a $58 billion exchange,
which resulted in the conversion of Treasury’s $25 billion CPP investment from preferred shares to interim securities to be converted to common shares upon shareholder approval of a new common stock issuance. The $25 billion exchange substantially dilutes
the equity holdings of existing Citigroup shareholders and was subject to shareholder approval on September 2, 2009. Treasury’s common stock investment in Citigroup, when finalized, will have a
paper value of about $34.96 billion based on the company’s September 1, 2009 $5.54 share price.621 On July 30, Treasury exchanged its $20 billion of preferred stock holdings in Citigroup
under the TIP and its $5 billion investment in the AGP 622 from
preferred shares to Trust Preferred Securities (TruPS). The conversion allows Citigroup to improve its Tangible Common Equity
ratio—a key measure of bank solvency and a component of the
stress tests—60 percent.623
d. TARP Accounting
FIGURE 17: TARP ACCOUNTING (AS OF JULY 31, 2009)
TARP initiative (in billions)

Anticipated funding

Total ............................................
CPP ..............................................
TIP ...............................................
SSFI Program ...............................
AIFP .............................................
AGP ..............................................
CAP ..............................................
TALF .............................................
PPIP .............................................
Supplier Support Program ...........
Unlocking SBA Lending ...............
HAMP ...........................................
(Uncommitted) .............................

$531.3
218
40
69.8
80
5
TBD
20
30
628 3.5
15
50
167.4

Purchase
price

Repayments

$444.1
204.3
40
69.8
80
5
0
20
0
3.5
0
630 21.5
N/A

$72.4
70.3
0
0
2.1
0
N/A
0
N/A
0
N/A
0
N/A

Net current investments

Net available
624 $329.26

$369.5
134.2
40
69.8
626 75.5
5
0
20
0
3.5
0
21.5
N/A

625 13.7

0
0
627 0
0
N/A
0
30
629 0
15
28.5
631 242.2

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624 This figure is the summation of the uncommitted funds remaining under the $698.7 billion cap ($167.4 billion) and the difference between the total anticipated funding and the net current investment ($168.8 billion).
625 This figure reflects the repayment of $70.3 billion in CPP funds. Secretary Geithner has suggested that funds from CPP repurchases will
be treated as uncommitted funds upon return to the Treasury. This Week with George Stephanopoulos, Interview with Secretary Geithner, ABC
(Aug. 2, 2009) (online at www.abcnews.go.com/print?id=8233298) (‘‘[W]hen I was here four months ago, we had roughly $40 billion of authority left in the TARP. Today we have roughly $130 billion, in partly [sic] because we have been very successful in having private capital
come back into this financial system. And we’ve had more than $70 billion . . . come back into the government’’). The Panel has therefore
presented the repaid CPP funds as uncommitted (i.e., generally available for the entire spectrum of TARP initiatives). The difference between
the $130 billion of funds available for future TARP initiatives cited by Secretary Geithner and the $239.8 billion calculated as available here
is the Panel’s decision to classify certain funds originally provisionally allocated to TALF and PPIP as uncommitted and available for TARP
generally. See infra notes xiv and xvi.

621 The Panel continues to account for Treasury’s original $25 billion CPP investment in
Citigroup under the CPP until formal approval of the exchange by Citigroup’s shareholders and
until Treasury specifies under which TARP program the common equity investment will be classified.
622 The AGP provides certain loss protections to select pools of mortgage or related assets held
by financial institutions viewed as critical to the functioning of the financial system, and whose
portfolios of distressed or illiquid assets pose a risk to market confidence. Similar to a typical
insurance plan, Treasury insures these assets by providing guarantees or non-recourse loans
with respect to the assets in exchange for a premium paid by the institution in preferred stock.
623 The key components of the old and new TIP and AGP financial agreements between
Citigroup and Treasury, including the amount outstanding and the coupon rate (8 percent), are
essentially the same. U.S. Department of Treasury, Transaction Outline (Feb. 27, 2009) (online
at www.treas.gov/press/releases/reports/transactionloutline.pdf).

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164
626 This figure reflects the amount invested in the AIFP as of August 18, 2009. This number consists of the original assistance amount of
$80 billion subtracted by de-obligations ($2.4 billion) and repayments ($2.1 billion), $2.4 billion in apportioned funding has been de-obligated
by Treasury ($1.91 billion of the available $3.8 billion of DIP financing to Chrysler and a $500 million loan facility dedicated to Chrysler that
was unused). U.S. Department of Treasury, TARP Transactions Report (Aug. 26, 2009).
627 Treasury has indicated that it will not provide additional assistance to GM and Chrysler through the AIFP. Nick Bunkley August 5 New
York Times Report, supra note 80. The Panel therefore considers the repaid and de-obligated AIFP funds to be uncommitted TARP funds.
628 On July 8, 2009, Treasury lowered the total commitment amount for the program from $5 billion to $3.5 billion, this reduced GM’s portion from $3.5 billion to $2.5 billion and Chrysler’s portion from $1.5 billion to $1 billion. August 28 TARP Transactions Report, supra note
102.
629 Treasury has indicated that it will not provide additional funding to auto parts suppliers through the Supplier Support Program. Nick
Bunkley August 5 New York Times Report, supra note 80.
630 This figure reflects the total of all the caps set on payments to each mortgage servicer. August 28 Transactions Report, supra note
102.
631 This figure is the summation of the uncommitted funds remaining under the $698.7 billion cap ($167.4 billion), the repayments ($72.4
billion), and the de-obligated portion of the AIFP ($2.4 billion). Treasury provided de-obligation information in response to specific inquiries relating to the Panel’s oversight of the AIFP. Treasury provided the Panel with information regarding specific investments made under the AIFP
on August 18, 2009. Specifically, this information denoted allocated funds that had since been do-obligated. (hereinafter ‘‘Treasury
De-obligation Document’’).

FIGURE 18: TARP REPAYMENTS AND INCOME (AS OF AUGUST 28, 2009)
TARP Initiative
(in billions)

Repayments

Total .......................................................................
CPP .........................................................................
TIP ..........................................................................
AIFP ........................................................................
AGP .........................................................................

Dividends 632

$72.4
70.3
0
2.1
0

Warrant
Repurchases 633

$9.1
7.3
1.5
.16
.17

Total

$2.9
2.9
0
N/A
0

634 $84.6

80.5
1.5
2.46
.17

632 U.S.
Department of the Treasury, Cumulative Dividends Report as of July 31, 2009 (Sep. 2, 2009) (online at
www.financialstability.gov/docs/dividends-interest-reports/072009lreport.pdf).
633 This number includes $1.6 million in proceeds from the repurchase of preferred shares by privately-held financial institutions. For
privately-held financial institutions that elect to participate in the CPP, Treasury receives and immediately exercises warrants to purchase additional shares of preferred stock. August 28 Transactions Report, supra note 102.
634 This includes interest payments made by recipients under the ASSP ($2 million) and AIFP ($200 million).

2. OTHER FINANCIAL STABILITY EFFORTS

Federal Reserve, FDIC, and other programs
In addition to the direct expenditures Treasury has undertaken
through TARP, the federal government has engaged in a much
broader program directed at stabilizing the U.S. financial system.
Many of these initiatives explicitly augment funds allocated by
Treasury under specific TARP initiatives, such as FDIC and Federal Reserve asset guarantees for Citigroup, or operate in tandem
with Treasury programs, such as the interaction between PPIP and
TALF. Other programs, like the Federal Reserve’s extension of
credit through its section 13(3) facilities and SPVs and the FDIC’s
Temporary Liquidity Guarantee Program, operate independent of
TARP.

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3. TOTAL FINANCIAL STABILITY RESOURCES (AS OF AUGUST 28, 2009)

Beginning in its April report, the Panel broadly classified the resources that the federal government has devoted to stabilizing the
economy through a myriad of new programs and initiatives as outlays, loans, or guarantees. Although the Panel calculates the total
value of these resources at over $3.1 trillion, this would translate
into the ultimate ‘‘cost’’ of the stabilization effort only if: (1) assets
do not appreciate; (2) no dividends are received, no warrants are
exercised, and no TARP funds are repaid; (3) all loans default and
are written off; and (4) all guarantees are exercised and subsequently written-off.
With respect to the FDIC and Federal Reserve programs, the
risk of loss varies significantly across the programs considered
here, as do the mechanisms providing protection for the taxpayer
against such risk. The FDIC, for example, assesses a premium of

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165
up to 100 basis points on Temporary Liquidity Guarantee Program
(TLGP) debt guarantees. The premiums are pooled and reserved to
offset losses incurred by the exercise of the guarantees, and are
calibrated to be sufficient to cover anticipated losses and thus remove any downside risk to the taxpayer. In contrast, the Federal
Reserve’s liquidity programs are generally available only to borrowers with good credit, and the loans are over-collateralized and
with recourse to other assets of the borrower. If the assets securing
a Federal Reserve loan realize a decline in value greater than the
‘‘haircut,’’ the Federal Reserve is able to demand more collateral
from the borrower. Similarly, should a borrower default on a recourse loan, the Federal Reserve can turn to the borrower’s other
assets to make the Federal Reserve whole. In this way, the risk to
the taxpayer on recourse loans only materializes if the borrower enters bankruptcy. The only loans currently ‘‘underwater’’—where the
outstanding principal amount exceeds the current market value of
the collateral—are the non-recourse loans to the Maiden Lane
SPVs (used to purchase Bear Stearns and AIG assets).
FIGURE 19: FEDERAL GOVERNMENT FINANCIAL STABILITY EFFORT (AS OF AUGUST 28, 2009)
Program
(in billions)

Treasury
(TARP)

Total .....................................................................................
Outlays i ................................................................................
Loans ....................................................................................
Guarantees ii ........................................................................
Uncommitted TARP Funds ...................................................
AIG ........................................................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................
Bank of America ..................................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees vi ........................................................................
Citigroup ...............................................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

Federal
Reserve

$698.7
388
40.5
25
245.2
69.8

FDIC

$1,630.8
0
1401
229.8
0

Total

$834.6
35.6
0
799
0

0
0

v 98

0

0
0
0
0

45

0
0
0
0

0
0
0
0

iv 69.8

vii 45

0
0

167.8
69.8
98
0
45
45
0
0
289.8
45
0
244.8

0
0

0
0
0
0

0
0
0
0

97.7
97.7
0
0

Capital Assistance Program ................................................

TBD

0

0

xiii TBD

TALF ......................................................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

20
0
0
xiv 20

180
0
0

0
0
0
0

200
0
180
20

0
ix 5

97.7
xii 97.7

xv 180

PPIP
....................................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................
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(Loans) xvi

viii 45

229.8
0
0
x 229

423.6
1441.5
1053.8
245.2

10
0
0
xi 10

Capital Purchase Program (Other) ......................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

50

98
0

iii $3,164.1

0
0
0
0

0
0
0
0

0
0
0
0

PPIP (Securities) ...................................................................
Outlays .................................................................................

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0
0
0
0
xvii 30

0
0

0
0

30
12.5

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166
FIGURE 19: FEDERAL GOVERNMENT FINANCIAL STABILITY EFFORT (AS OF AUGUST 28, 2009)—
Continued
Program
(in billions)

Treasury
(TARP)

Loans ....................................................................................
Guarantees ...........................................................................

Federal
Reserve

FDIC

Total

17.5
0

0
0

0
0

50

0
0
0
0

0
0
0
0

22
0

0
0
0
0

0
0
0
0

77.5
55.5
22
0

$3.5
0
xxi 3.5
0

0
0
0
0

0
0
0
0

3.5
0
3.5
0

$15
0
0

0
0
0
0

0
0
0
0

15
15
0
0

Temporary Liquidity Guarantee Program .............................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

0
0
0
0

0
0
0
0

789
0
0
xxiii 789

789
0
0
789

Deposit Insurance Fund .......................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

0
0
0
0

0
0
0
0

Other Federal Reserve Credit Expansion .............................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

0
0
0
0

1,123
0
xxv 1,123
0

0
0
0
0

0

0

Home Affordable Modification Program ...............................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................
Automotive Industry Financing Program .............................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................
Auto Supplier Support Program ...........................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................
Unlocking SBA Lending ........................................................
Outlays .................................................................................
Loans ....................................................................................
Guarantees ...........................................................................

Uncommitted TARP Funds ...................................................

xviii 50

0
0
77.5
xx 55.5

xxii 15

xxvi 245.2

17.5
0
xix 50

50
0
0

35.6
xxiv 35.6

0
0

1,123
0
1,123
0
245.2

i The

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35.6
35.60
0
0

term ‘‘outlays’’ is used here to describe the use of Treasury funds under the TARP, which are broadly classifiable as purchases of
debt or equity securities (e.g., debentures, preferred stock, exercised warrants, etc.). The outlays figures are based on: (1) Treasury’s actual
reported expenditures; and (2) Treasury’s anticipated funding levels as estimated by a variety of sources, including Treasury pronouncements
and GAO estimates. Anticipated funding levels are set at Treasury’s discretion, have changed from initial announcements, and are subject to
further change. Outlays as used here represent investments and assets purchases and commitments to make investments and asset purchases and are not the same as budget outlays, which under section 123 of EESA are recorded on a ‘‘credit reform’’ basis.
ii While many of the guarantees may never be exercised or exercised only partially, the guarantee figures included here represent the federal government’s greatest possible financial exposure.
iii This figure is roughly comparable to the $3.0 trillion current balance of financial system support reported by SIGTARP in its July report.
SIGTARP Quarterly Report to Congress, supra note 272, at 138. However, the Panel has sought to capture additional anticipated exposure and
thus employs a different methodology than SIGTARP.
iv This number includes investments under the SSFI Program: a $40 billion investment made on November 25, 2008, and a $30 billion investment committed on April 17, 2009 (less a reduction of $165 million representing bonuses paid to AIG Financial Products employees). August 28 Transactions Report, supra note 102.
v This number represents the full $60 billion that is available to AIG through its revolving credit facility with the Federal Reserve ($37.8
billion had been drawn down as of August 28, 2009) and the outstanding principle of the loans extended to the Maiden Lane II and III SPVs
to buy AIG assets (as of August 28, 2009, $16.9 billion and $20.9 billion respectively). Board of Governors of the Federal Reserve System,
Federal Reserve Statistical Release H.4.1: Factors Affecting Reserve Balances (Aug. 27, 2009) (accessed Sep. 2, 2009) (online at
www.federalreserve.gov/releases/h41/Current/) (hereinafter ‘‘Fed Balance Sheet August 27’’). Income from the purchased assets is used to pay
down the loans to the SPVs, reducing the taxpayers’ exposure to losses over time. Board of Governors of the Federal Reserve System, Federal
Reserve System Monthly Report on Credit and Liquidity Programs and the Balance Sheet, at 16–20 (Aug. 2009) (online at
www.federalreserve.gov/monetarypolicy/files/monthlyclbsreport200908.pdf) (hereinafter ‘‘Fed August 2009 Credit and Liquidity Report’’).exposure
to losses over time. See Board of Governors of the Federal Reserve System, Federal Reserve System Monthly Report on Credit and Liquidity
Programs and the Balance Sheet, at 16–20 (Aug. 2009) (online at www.federalreserve.gov/monetarypolicy/files/monthlyclbsreport200908.pdf).

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vi Beginning in our July report, the Panel excluded from its accounting the $118 billion asset guarantee agreement among Bank of America,
the Federal Reserve, Treasury, and the FDIC based on testimony from Federal Reserve Chairman that the agreement was never signed and
was never signed or consummated and the absence of vi Beginning in our July report, the Panel excluded from its accounting the $118 billion asset guarantee agreement among Bank of America, the Federal Reserve, Treasury, and the FDIC based on testimony from Federal Reserve Chairman that the agreement was never signed and was never signed or consummated and the absence of the guarantee from Treasury’s TARP accounting. House Committee on Oversight and Government Reform, Testimony Federal Reserve Chairman Ben S. Bernanke, Acquisition of Merrill Lynch by Bank of America, 111th Cong., at 3 (June 25, 2009) (online at oversight.house.gov/documents/20090624185603.pdf)
(‘‘The ring-fence arrangement has not been consummated, and Bank of America now believes that, in light of the general improvement in the
markets, this protection is no longer needed.’’); Congressional Oversight Panel, July Oversight Report: TARP Repayments, Including the Repurchase of Stock Warrants, at 85 (July 7, 2009) (online at .cop.senate.gov/documents/cop-071009-report.pdf). According to a recent news report,
it now appears that the U.S. government is seeking at least $500 million from Bank of America to shelve the tentative agreement. Dan
Fitzpatrick, B of A Seeks to Repay a Portion of Bailout, Wall Street Journal (Sept. 1, 2009) (online at online.wsj.com/article/SB125176546582274505.html). The account reports the government as taking the position that even though the guarantee
deal was never signed, the government believes that because Bank of America benefited in the marketplace from its implied protection between from January to May 2009, Bank of AmericaBank of America benefited in the marketplace from its implied protection between from
January to May 2009, Bank of America should be responsible for the payment of dividends and other fees, including a program exit fee, associated with the program. Id. While the past and current status of the program is in some doubt, in the absence of official guidance, the
Panel continues to follow Treasury and exclude it from our accounting, in part because the putative protection offered by the program is no
longer in place. The Panel will include in its accounting premiums or fees, if any, that Bank of America ultimately agrees to pay the U.S.
government in relation to the guarantee program.
vii August 28 TARP Transactions Report, supra note 102. This figure includes: (1) a $15 billion investment made by Treasury on October
28, 2008 under the CPP; (2) a $10 billion investment made by Treasury on January 9, 2009 also under the CPP; and (3) a $20 billion investment made by Treasury under the TIP on January 16, 2009.
viii August 28 TARP Transactions Report, supra note 102. This figure includes: (1) a $25 billion investment made by Treasury under the
CPP on October 28, 2008; and (2) a $20 billion investment made by Treasury under TIP on December 31, 2008.
ix U.S.
Department of the Treasury, Summary of Terms: Eligible Asset Guarantee (Nov. 23, 2008) (online at
www.treasury.gov/press/releases/reports/cititermsheetl112308.pdf) (hereinafter ‘‘Citigroup Asset Guarantee’’) (granting a 90 percent federal
guarantee on all losses over $29 billion of a $306 billion pool of Citigroup assets, with the first $5 billion of the cost of the guarantee borne
by Treasury, the next $10 billion by FDIC, and the remainder by the Federal Reserve). See also U.S. Department of the Treasury, U.S. Government Finalizes Terms of Citi Guarantee Announced in November (Jan. 16, 2009) (online at www.treas.gov/press/releases/hp1358.htm) (reducing
the size of the asset pool from $306 billion to $301 billion).
x Citigroup Asset Guarantee, supra note ix.
xi Citigroup Asset Guarantee, supra note ix.
xii This figure represents the $218 billion Treasury has anticipated spending under the CPP, minus the $50 billion investment in Citigroup
($25 billion) and Bank of America ($25 billion) identified above, and the $70.3 billion in repayments that will be reflected as uncommitted
TARP funds. This figure does not account for future repayments of CPP investments, nor does it account for dividend payments from CPP investments.
xiii Funding levels for the CAP have not yet been announced but will likely constitute a significant portion of the remaining $245.2 billion
of TARP funds.
xiv This figure represents a $20 billion allocation to the TALF SPV on March 3, 2009. August 28 Transactions Report, supra note 102. Consistent with the analysis in our August report, see COP August Report, supra note 317, and the fact that only $43 billion has been lent
through TALF as of September 2009, the Panel continues to predict that TALF subscriptions are unlikely to surpass the $200 billion currently
available by year’s end.
xv This number derives from the unofficial 1:10 ratio of the value of Treasury loan guarantees to the value of Federal Reserve loans under
the TALF. U.S. Department of the Treasury, Fact Sheet: Financial Stability Plan (Feb. 10, 2009) (online at
www.financialstability.gov/docs/fact-sheet.pdf) (describing the initial $20 billion Treasury contribution tied to $200 billion in Federal Reserve
loans and announcing potential expansion to a $100 billion Treasury contribution tied to $1 trillion in Federal Reserve loans). Because Treasury is responsible for reimbursing the Federal Reserve Board for $20 billion of losses on its $200 billion in loans, the Federal Reserve Board’s
maximum potential exposure under the TALF is $180 billion.
xvi It now appears unlikely that resources will be expended under the PPIP Legacy Loans Program in its original design as a joint
Treasury-FDIC program to purchase troubled assets from solvent banks. In June, the FDIC cancelled a pilot sale of assets that would have
been conducted under the program’s original design. Federal Deposit Insurance Corporation, FDIC Statement on the Status of the Legacy
Loans Program (June 3, 2009) (online at www.fdic.gov/news/news/press/2009/pr09084.html). In July, the FDIC announced that it would rebrand
its established procedure for selling the assets of failed banks as the Legacy Loans Programs. Federal Deposit Insurance Corporation, Legacy
Loans Program—Test of Funding Mechanism (July 31, 2009) (online at www.fdic.gov/news/news/press/2009/pr09131.html). These sales do not
involve any Treasury participation, and FDIC activity is accounted for here as a component of the FDIC’s Deposit Insurance Fund outlays.
xvii U.S. Department of the Treasury, Joint Statement By Secretary of the Treasury Timothy F. Geithner, Chairman of the Board Of Governors
Of The Federal Reserve System Ben S. Bernanke, and Chairman of the Federal Deposit Insurance Corporation Sheila Bair: Legacy Asset Program (July 8, 2009) (online at www.financialstability.gov/latest/tgl07082009.html) (‘‘Treasury will invest up to $30 billion of equity and debt
in PPIFs established with private sector fund managers and private investors for the purpose of purchasing legacy securities.’’); U.S. Department of the Treasury, Fact Sheet: Public-Private Investment Program, at 4–5 (Mar. 23, 2009) (online at
www.treas.gov/press/releases/reports/ppiplfactlsheet.pdf) (hereinafter ‘‘Treasury PPIP Fact Sheet’’) (outlining that, for each $1 of private investment into a fund created under the Legacy Securities Program, Treasury will provide a matching $1 in equity to the investment fund; a
$1 loan to the fund; and, at Treasury’s discretion, an additional loan up to $1). In the absence of further Treasury guidance, this analysis
assumes that Treasury will allocate funds for equity co-investments and loans at a 1:1.5 ratio, a formula that estimates that Treasury will
frequently exercise its discretion to provide additional financing.
xviii GAO, Troubled Asset Relief Program: June 2009 Status of Efforts to Address Transparency and Accountability Issues, at 2 (June 17,
2009) (GAO09/658) (online at www.gao.gov/new.items/d09658.pdf) (hereinafter ‘‘GAO June 29 Status Report’’). Of the $50 billion in announced
TARP funding for this program, $21.5 billion has been allocated as of August 28, 2009, and no funds have yet been disbursed. August 28
Transactions Report, supra note 102.
xix Fannie Mae and Freddie Mac, government-sponsored entities (GSEs) that were placed in conservatorship of the Federal Housing Finance
Housing Agency on September 7, 2009, will also contribute up to $25 billion to the Making Home Affordable Program, of which the HAMP is a
key component. U.S. Department of the Treasury, Making Home Affordable: Updated Detailed Program Description (Mar. 4, 2009) (online at
www.treas.gov/press/releases/reports/housinglfactlsheet.pdf).
xx August 28 Transactions Report, supra note 102. A substantial portion of the total $80 billion in loans extended under the AIFP has since
been converted to common equity and preferred shares in restructured companies. $22 billion has been retained as first lien debt (with $7.7
billion committed to GM and $14.3 billion to Chrysler). This figure represents Treasury’s cumulative obligation under the AIFP, the total does
not reflect the aid provided under the Auto Supplier Support Program or any de-obligations or repayments. Treasury De-obligation Document,
supra note 286. See also GAO June 29 Status Report, supra note xviii at 43.
xxi August 28 Transactions Report, supra note 102.
xxii Treasury PPIP Fact Sheet, supra note xvii.
xxiii This figure represents the current maximum aggregate debt guarantees that could be made under the program, which, in turn, is a
function of the number and size of individual financial institutions participating. $320.1 billion of debt subject to the guarantee has been
issued to date, which represents about 41 percent of the current cap. Federal Deposit Insurance Corporation, Monthly Reports on Debt
Issuance Under the Temporary Liquidity Guarantee Program: Debt Issuance Under Guarantee Program (July 31, 2009) (online at
www.fdic.gov/regulations/resources/tlgp/totallissuance7-09.html) (updated Sep. 2, 2009).

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xxiv This figure represents the FDIC’s provision for losses to its deposit insurance fund attributable to bank failures in the third and fourth
quarters of 2008 and the first quarter of 2009. Federal Deposit Insurance Corporation, Chief Financial Officer’s (CFO) Report to the Board: DIF
Income Statement (Fourth Quarter 2008) (online at www.fdic.gov/about/strategic/corporate/cfolreportl4qtrl08/income.html); Federal Deposit
Insurance Corporation, Chief Financial Officer’s (CFO) Report to the Board: DIF Income Statement (Third Quarter 2008) (online at
www.fdic.gov/about/strategic/corporate/cfolreportl3rdqtrl08/income.html); Federal Deposit Insurance Corporation, Chief Financial Officer’s
(CFO)
Report
to
the
Board:
DIF
Income
Statement
(First
Quarter
2009)
(online
at
www.fdic.gov/about/strategic/corporate/cfolreportl1stqtrl09/income.html). This figure includes the FDIC’s estimates of its future losses
under loss share agreements that it has entered into with banks acquiring assets of insolvent banks during these three quarters. Under a
loss sharing agreement, as a condition of an acquiring bank’s agreement to purchase the assets of an insolvent bank, the FDIC typically
agrees to cover 80 percent of an acquiring bank’s future losses on an initial portion of these assets and 95 percent of losses of another portion of assets. See, for example Federal Deposit Insurance Corporation, Purchase and Assumption Agreement Among FDIC, Receiver of Guaranty
Bank,
Austin,
Texas,
FDIC
and
Compass
Bank
at
65–66
(Aug.
21,
2009)
(online
at
www.fdic.gov/bank/individual/failed/guaranty-txlplandlalwladdendum.pdf). The FDIC does not publish aggregated data on the total
amount of assets subject to these agreements and the amount that the FDIC has guaranteed, and it does not disaggregate anticipated
losses from loss share agreement from total losses under the Deposit Insurance Fund. But, in contrast, see Damian Paletta, Raft of Deals for
Failed
Banks
Puts
U.S.
on
Hook
for
Billions,
Wall
Street
Journal
(Aug.
31,
2009)
(online
at
http://online.wsj.com/article/SB125166830374670517.html) (calculating the total insolvent bank assets subject to loss sharing agreements at
$80 billion and reporting an FDIC estimate of the FDIC’s anticipated losses from its guarantees on these assets at $14 billion).
xxv This figure is derived from adding the total credit the Federal Reserve Board has extended as of August 27, 2009 through the Term
Auction Facility (Term Auction Credit), Discount Window (Primary Credit), Primary Dealer Credit Facility (Primary Dealer and Other Broker-Dealer
Credit), Central Bank Liquidity Swaps, loans outstanding to Bear Stearns (Maiden Lane I LLC), GSE Debt Securities (Federal Agency Debt Securities), Mortgage Backed Securities Issued by GSEs, Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility, and Commercial Paper Funding Facility LLC. Fed Balance Sheet August 27, supra note v. The level of Federal Reserve lending under these facilities
will fluctuate in response to market conditions. The Federal Reserve has earned significant amounts of interest in these lending and purchase
programs. Fed August Report on Credit and Liquidity, supra note v, at 23–24, Tables 30–32 (showing partial income statement for various
Federal Reserve programs, including $1.88 billion interest earned from Jan. 1–June 30, 2009 on Central Bank Liquidity Swaps, $614 million
interest earned from Jan. 1–June 30, 2009 on GSE Debt Securities, $4.97 billion interest earned from Jan. 1–June 30, 2009 on Mortgage
Backed Securities, and $4.18 billion interest earned from Jan. 1–June 30, 2009 under the CPFF).
xxvi As discussed in the Panel’s August report, we do not account for the Temporary Guarantee Program for Money Market Mutual Funds
because it does not involve TARP funds and this program will expire September 18, 2009. August COP Report, supra note 317.

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SECTION FIVE: OVERSIGHT ACTIVITIES
The Congressional Oversight Panel was established as part of
the Emergency Economic Stabilization Act (EESA) and formed on
November 26, 2008. Since then, the Panel has produced nine oversight reports, as well as a special report on regulatory reform,
issued on January 29, 2009, and a special report on farm credit,
issued on July 21, 2009. Since the release of the Panel’s August
oversight report on the continued risk of troubled assets, the following developments pertaining to the Panel’s oversight of the
Troubled Asset Relief Program (TARP) took place:
• The Panel has received responses to its June 2009 letters to
the largest mortgage servicing companies that had not signed a
contract to formally participate in the Making Home Affordable
foreclosure mitigation program. Fourteen of the fifteen servicing
companies responded. These letters will assist the Panel in its evaluation of the foreclosure mitigation efforts.
• The Panel and Panel staff have held meetings with and requested documents from Treasury regarding the Automobile Industry Financing Program. The information obtained has assisted the
Panel in its preparation of the September report, on the Automobile Industry Financing Program.
UPCOMING REPORTS AND HEARINGS

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The Panel will release its next oversight report in October. The
report will provide an updated review of TARP activities and continue to assess the program’s overall effectiveness. The report will
also examine the effectiveness of foreclosure mitigation efforts.
The Panel will hold its second hearing with Secretary Geithner
on September 10, 2009. The Secretary has agreed to testify before
the Panel once per quarter. His first hearing was on April 21, 2009.
Additionally, the Panel is planning a field hearing in Philadelphia on September 24, 2009 to hear testimony on foreclosure mitigation efforts.

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SECTION SIX: ABOUT THE CONGRESSIONAL OVERSIGHT
PANEL
In response to the escalating crisis, on October 3, 2008, Congress
provided Treasury with the authority to spend $700 billion to stabilize the U.S. economy, preserve home ownership, and promote
economic growth. Congress created the Office of Financial Stabilization (OFS) within Treasury to implement a Troubled Asset
Relief Program. At the same time, Congress created the Congressional Oversight Panel to ‘‘review the current state of financial
markets and the regulatory system.’’ The Panel is empowered to
hold hearings, review official data, and write reports on actions
taken by Treasury and financial institutions and their effect on the
economy. Through regular reports, the Panel must oversee Treasury’s actions, assess the impact of spending to stabilize the economy, evaluate market transparency, ensure effective foreclosure
mitigation efforts, and guarantee that Treasury’s actions are in the
best interests of the American people. In addition, Congress instructed the Panel to produce a special report on regulatory reform
that analyzes ‘‘the current state of the regulatory system and its
effectiveness at overseeing the participants in the financial system
and protecting consumers.’’ The Panel issued this report in January
2009. Congress subsequently expanded the Panel’s mandate by directing it to produce a special report on the availability of credit
in the agricultural sector. The report was issued on July 21, 2009.
On November 14, 2008, Senate Majority Leader Harry Reid and
the Speaker of the House Nancy Pelosi appointed Richard H.
Neiman, Superintendent of Banks for the State of New York,
Damon Silvers, Associate General Counsel of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO),
and Elizabeth Warren, Leo Gottlieb Professor of Law at Harvard
Law School to the Panel. With the appointment on November 19
of Congressman Jeb Hensarling to the Panel by House Minority
Leader John Boehner, the Panel had a quorum and met for the
first time on November 26, 2008, electing Professor Warren as its
chair.

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ACKNOWLEDGEMENTS

The Panel thanks Professor Steven Lubben, the Daniel J. Moore
Professor of Law at Seton Hall School of Law; and, Professor Barry
E. Adler, the Bernard Petrie Professor of Law and Business and
Associate Dean for Information Systems and Technology at New
York University School of Law for their papers discussing the
Chrysler and GM bankruptcy cases. Special thanks also go to Professor Mark J. Roe, the David Berg Professor of Law at Harvard
Law School; Professor David Arthur Skeel, the S. Samuel Arsht
Professor of Corporate Law at University of Pennsylvania Law
School; and, Professor Richard A. Fallon, the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School for reviewing
drafts of this report and providing invaluable comments. The Panel
also wishes to express thanks to the following individuals for their
thoughts and suggestions: Edward Altman, Max L. Heine Professor
of Finance at the Stern School of Business, New York University;
Susan R. Helper, AT&T Professor of Economics at the

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Weatherhead School of Management, Case Western Reserve University; Mr. Howard Wial, Fellow for the Metropolitan Policy Program at the Brookings Institute; Dr. Sean McAlinden, Vice President for Research and Chief Economist at the Center for Automotive Research; Professor Clayton S. Rose, Senior Lecturer of
Business Administration at the Harvard Business School; Jonathan
Rosenthal, Partner at Saybrook Capital; Professor Malcolm Salter,
James J. Hill Professor of Business Administration, Emeritus, Harvard Business School; Professor Michael A. Cusumano, Professor at
the MIT Sloan School of Management and Co-director of the International Motor Vehicle Program; and, Mr. Dan Luria, Research Director at the Michigan Manufacturing and Technology Center.

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APPENDIX I: LETTER FROM CHAIR ELIZABETH WARREN
TO SECRETARY TIMOTHY GEITHNER AND CHAIRMAN
BEN BERNANKE, RE: CONFIDENTIAL MEMORANDA,
DATED JULY 20, 2009

(172)

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APPENDIX II: LETTER FROM SECRETARY TIMOTHY
GEITHNER TO CHAIR ELIZABETH WARREN, RE: CONFIDENTIAL MEMORANDA, DATED AUGUST 12, 2009

(175)

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