WILMINGTON, Del. — Washington Mutual Inc. on Tuesday bowed to shareholder demands for a probe of the deal at the heart of its Chapter 11 plan, a proposed settlement of the storm of litigation spawned by the 2008 seizure and sale of its prized thrift, Washington Mutual Bank, or Wamu.
After weeks of fighting, Wamu's former parent agreed to the appointment of an investigator but urged a speedy schedule for the investigation of the largest banking collapse in U.S. history. Shareholders have been battling the bankruptcy settlement, which leaves them with nothing. They demanded a probe by an independent outsider, called an examiner.
Judge Mary Walrath, who earlier refused to authorize a probe on the grounds Wamu's troubles had already been "investigated to death," later invited shareholders to renew the request. The key question at confirmation of the Chapter 11 plan of Wamu's former parent will be whether the settlement is fair or not, the judge said.
Unless she has an independent review of how the settlement was struck, Walrath said, she can't be sure whether it's worthy of approval.
Faced with a judge poised to inaugurate a probe whether the company liked it or not, Wamu's former parent conceded to the appointment of an examiner at a hearing in the U.S. Bankruptcy Court in Wilmington, Del.
"The case would benefit from having an examiner," said Susheel Kirpalani of Quinn Emanuel Urquhart & Sullivan, special litigation counsel to Wamu's former parent.
The proposed settlement is an agreement among Wamu's former parent; its new owner, JPMorgan Chase & Co. (JPM); and the Federal Deposit Insurance Corp., which brokered the sale of Wamu to JPMorgan.
The deal calls for the three to drop lawsuits over rights to $4 billion in cash, more than $5 billion in tax refunds and hundreds of millions of dollars of other assets tied to Wamu, a mortgage-laden thrift swept under in the collapse of the housing market.
Wamu's former parent filed for Chapter 11 bankruptcy about 24 hours after it lost the thrift. It says it's losing $30 million each month it remains in bankruptcy. The company says the settlement is a decent end to lawsuits that would be time-consuming and chancy to fight in the courts.
Wamu's seizure touched off battles over everything from cash in bank accounts to alleged regulatory collusion in predatory behavior that exploited anxiety over the strength of the U.S. financial system. Wamu was ailing, but not a candidate for a seizure, shareholders say.
Even if Wamu's former parent wins fights with the FDIC, with JPMorgan and with others, it will then have to fight with creditors of Wamu itself, Kirpalani said. Not counting shareholders, Wamu's former parent estimates its debts will run about $8 billion. Wamu itself has an estimated $14 billion worth of unpaid debts.
Shareholder attorney Justin Nelson of Susman Godfrey said Tuesday the legal claims that will be shut down in the settlement are worth as much as $30 million. He said Washington Mutual has done virtually no investigation and that something "more than a whitewash" is needed.
Creditors want the settlement to go through quickly. It adds $6.1 billion to $6.8 billion to the pile of assets that Wamu's former parent will be able to distribute. Many creditors will get paid in full, and even subordinated debt holders will get about 80 cents on the dollar for debt that was selling for pennies in the wake of the loss of Wamu.
The proposed settlement is built into a Chapter 11 plan that Wamu's former parent hoped to have in place by the end of September. Appointment of an examiner means delay, which translates into more interest for senior debt holders, owed $4.1 billion, leaving less for those at the bottom of the debt rankings in the bankruptcy case.
Thomas Lauria of White & Case, attorney for some bondholders, accused shareholders of playing for delay in hopes of taking over the Chapter 11 proceeding. Sealed case documents, Lauria said, indicate that shareholders don't really care what an examiner does as long as the probe takes long enough for them to convene a meeting and vote out the board of Wamu's former parent.
Shareholders want to "redirect this case," Lauria said, by dragging out the bankruptcy proceeding until they're in charge of the company.
"What the examiner will effectively be is a filibuster," Lauria said.