WASHINGTON -- Municipal bond investors face major new hurdles in trying to sue participants in defaulted bond deals as a result of a ruling by the Supreme Court that limits the amount of time plaintiffs have to file securities fraud lawsuits, market observers warned yesterday.
In addition, the high court's decision last week in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson will place pressure on bond trustees to step up disclosure about shaky deals before they go under. The ruling also could cripple millions of dollars of pending investor suits, including litigation against nursing home operator First Humanics Corp., lawyers involved in the case said.
The court ruled June 20 that securities fraud cases, including those in the municipal bond arean, must be filed within one year after the fraud is discovered and no later than three years after the fraud took place. Until the ruling, investors have been guided by state laws, many of which give them six years to file suits after discovering possible fraud.
The ruling came in a case brought by a group of investors who bought shares in limited partnerships for the purchase and leasing of computer equipment between 1979 and 1981. The deals, designed as tax shelters, were put together by Lampf Pleva, a New Jersey law firm. The investors sued the firm in 1986 under the antifraud provisions of the federal securities laws when the Internal Revenue Service began barring the federal tax benefits of the deals.
"It's a disaster for the municipal bond market," warned Franklin Gordon Allen 3d, a partner with Allen, Kilmer, Schrader, Yazbeck & Chenoweth in Portland, one of the attorneys representing the investors.
He pointed to an amicus brief filed by the Bond Investors Association in January warning the Supreme Court that investors in the unregulated municipal bond market generally do not have a clue about trouble in their deals until there is an actual default, which occurs on average four and a half years after the issue date -- a year and a half too late according to the high court.
The amicus brief was prepared by municipal default attorneys Ritchie and Rediker of Birmingham, Ala. David Guin, a partner at the firm, yesterday said that the case could affect a dozen of their pending municipal default cases involving roughly $100 million in losses to investors, including the First Humanics case.
"Bond investors rarely have any inkling of even normal economic problems,much less fraud, until a coupon, interest payment is missed," the BIA's amicus brief says. "Typically, interest is paid semiannually. With the minimum 18- to 24-month capitalized interest reserve fund, the first missed interest payment will not occur for at least 24 to 30 months after the initial closing of the bond issue and perhaps longer.
"Accordingly, the earliest point at which bondholders reasonably can be expected to learn that anything at all is amiss with their investment would be near or after the expiration" of the three-year period, brief warns.
"The decision applies to any form of securities fraud but perhaps most dramatically to municipal bond cases," said David Guin, a partner at Ritchie and Rediker. "It grants swindlers a license to steal," he said, noting that bond deals can be deliberately structured to avoid the three-year limit. "The better the swindler, the greater the likelihood that he can cover his tracks for three years."
Attorneys warned that the decision will severely limit the ability of bond investors to bring class action lawsuits against developers and underwriters in federal court and will force them to use state courts more or rely on such federal statutes as the Racketeering Influenced and Corrupt Organizations Act, which has a four-year statute of limitations.
Mr. Guin and Mr. Lehmann also warned that bondholders who find themselves unable to sue the issuers of troubled bonds will turn their wrath more on bond trustees.
"We are going to have to shift focus and sue indenture trustees for failing to timely and promptly advise bondholders of default," Mr. Guin said, noting they would use common law claims charginb breach of fiduciary duty or gross negligence.
"The biggest part of our business is muni bond default cases," said Mr. Guin. "And a lot of those are going to get thrown out" if the ruling is found to be retroactive, he said. "It doesn't matter how much attorney time has been spent or how much is expenses there have been by bondholders. They are just out of luck. There are no extensions for any reason as I read it."