Investors in Washington Mutual Inc.'s trust-preferred securities and die-hard litigants pursuing cases stemming from the largest collapse in U.S. banking history are readying for a last-ditch fight against the company's $7 billion Chapter 11 plan.
The former parent of Washington Mutual Bank, or WaMu, will makes its third attempt to win plan confirmation Feb. 16. The polls close Thursday on voting on the distribution scheme, the latest version of a Chapter 11 exit strategy that has twice been rejected.
Two groups of investors in the trust-preferred securities filed objections to the Chapter 11 plan by a Tuesday deadline, along with two sets of plaintiffs in suits linked to WaMu.
Mostly financial institutions, the plaintiffs have been doggedly pursuing their cases in federal court for years and contend it is unfair to let provisions of Washington Mutual's Chapter 11 plan cramp their litigation.
Objectors are hoping for a third confirmation loss, or at least rulings that the company must set aside hundreds of millions of dollars in case they win lawsuits over WaMu's wreckage.
Distressed-debt investors are betting on a win this time for Washington Mutual, with most bond issues trading above par. If the Chapter 11 plan is confirmed, hedge funds that bought Washington Mutual's debt at a deep discount stand to collect the face value of their holdings, with interest.
Trouble for the Chapter 11 plan comes from lower-ranking creditors, mostly trust-preferred investors who will be treated as preferred shareholders under the Chapter 11 plan.
Shareholders are getting stakes in the reorganized Washington Mutual, an enterprise that will run a fading insurance operation. Trust-preferred investors say they're entitled to $4 billion worth of securities instead.
In spite of a series of losses in bankruptcy court, trust-preferred investors are fighting Washington Mutual's decision to give the securities to JPMorgan Chase & Co. as part of the deal underpinning the Chapter 11 plan.
Trust-preferred investors say confirmation of Washington Mutual's Chapter 11 plan can't cut them out of their chance to get the issue before a higher court. They labeled the plan a "death trap" that forces them to sacrifice their rights or risk a total loss.
One group of trust-preferred investors has already laid the groundwork for a race to the Third Circuit Court of Appeals after confirmation. The other is threatening to revive allegations of insider trading that stung four major hedge funds into a deal in Washington Mutual's Chapter 11 case.
The hedge funds deny wrongdoing, but they agreed to relinquish value so shareholders could get something out of the hard-fought bankruptcy.
Washington Mutual filed for Chapter 11 protection in September 2008 after regulators marched in and took over WaMu, fearing its collapse would undermine the U.S. financial system.
Much of the legal trouble spawned by that act will be settled if Washington Mutual wins confirmation of its Chapter 11 plan. However, litigants who claim their suits will survive objected to the plan, warning it could dent their chances of collecting.
Led by Boilermakers National Annuity Trust Fund, one collection of litigants recently won the right to vote on the Chapter 11 plan. The so-called Boilermakers say Washington Mutual can't get out of bankruptcy unless it leaves behind $435 million--the amount the so-called "Boilermakers" say they're entitled to get if they win their securities class-action lawsuit.
Filed in 2009, the Boilermakers case in federal court in Seattle tags WaMu's former parent with blame for losses in mortgage-backed securities. Washington Mutual says the case won't stick.
A second group of objecting plaintiffs led by American National Insurance Co. say Washington Mutual's Chapter 11 plan poses a threat to the case they're pursuing in federal court in Washington D.C.
Their case is premised on a theory that J.P. Morgan set WaMu up for failure as part of a scheme to get the thrift on the cheap. JPMorgan denies wrongdoing.
The Federal Deposit Insurance Corp., which brokered the sale of WaMu to J.P. Morgan, is part of the settlement that is at the core of Washington Mutual's Chapter 11 plan. The American National plaintiffs say their case can't be extinguished under the plan because the FDIC allegedly participated in the wrongdoing and has its own reasons for wanting the litigation to go away.