Here are high points of the Hearing I found interesting and some of my own thoughts. (Quotation marks are included where statements are actual quotes rather than the “sense” of what was said.)
BARNEY FRANK, Democrat & Financial Services Committee Chairman. As major stockholders, the US Government should try to recoup $165 million in bonuses by filing a lawsuit alleging “poor performance” on the part of bonus recipients. He also demanded the names of bonus recipients and updates when bonus recipients either return or refuse to return bonus money. (Although New York’s Attorney General Andrew Cuomo is in receipt of these names, Liddy expressed a need to protect bonus recipients because of deadly threats made against them and their families.) (According to the Center for Responsive Politics, Frank received $202,548 in contributions from the Insurance Industry.)
OLYMPIA SNOW, (R) Maine. Offered AIG bailout provisions which would have disallowed most of the oversized bonuses. (Received $5,000, according to the Center for Responsive Politics.)
CHRISTOPHER DODD, (D) Connecticut. Snow’s amendment was (allegedly) struck by Connecticut’s Chris Dodd. How he did it is unclear. At first, he denied the act. Subsequently, he said he received instructions from Treasury and/or The White House. Regardless, striking the provision resulted in Congressional approval of bonus contracts entered into before February 11, 2009. As a result, 165 million taxpayer dollars have been paid to architects of the debacle. Reportedly, Dodd received $852,556 from insurance lobbyists. (Center for Responsive Politics)
STEPHEN LYNCH, Massachusetts: “We amend contracts all the time. My auto workers were badgered and badgered…. These [AIG] guys lost billions of dollars and still believe they’re entitled to these bonuses.” (Lynch received $35,299 according to the Center for Responsive Politics)
PAUL KANJORSKI, Chairman, Financial Services Subcommittee on Capital Markets (D-PA). Admitted to knowing about the incipient bonus payments two months ago and “warned Liddy that paying the bonuses would be a big mistake.” “You [CEO Edward Liddy] should have told the bonus recipients to ‘sue us.'” (Kanjorksi did not mention warning anyone else and according to the Center for Responsive Politics, received $345,548 in donations from the insurance industry.)
Joel Ario, State of Pennsylvania Insurance Commissioner and Chairperson of the National Association of Insurance Commissioners. Ario believes that AIG’s toxic holdings could be walled off from its healthy funds-at-large. (NB: Therefore, the company at-large could survive if its sick subsidiaries were permitted to fail.) (Also see: [Funny] Side of the [Wall] Street: Obamanomics.)
Neither the Government Accountability Office (GAO) nor the federal Office of Thrift Supervision (OTS) have investigated whether AIG fraudulently misrepresented its health and wealth at the time it was creating “retention” and other bonus contracts “to the tune of $400 + million with the division that was bleeding to the tune of $40 billion.”
Another committee member asserted, [“The distribution of these bonuses] borders on fraud and criminality.”
According to Scott Polakoff of OTS, his agency knew the risk of the credit default swaps in 2004 and did nothing to avert the collapse. OTS did not close AIG’s toxic financial products division even though “the agency had a complete picture and oversight authority” to do so. Polakoff further stated that “OTS had sufficient expertise and personnel” but in effect, since Congress didn’t instruct OTS to review the bonus contracts before AIG’s bailout was approved, the agency didn’t do the research.
Rodney Clark of Standard & Poor’s (S & P) rating agency was asked, “How can we depend on you and were mistakes made?” Clark answered, “Hindsight being 20-20…, our conclusions [of AIG’s solvent value] changed rapidly once the market started to collapse. Market values are important as a guideline. We could not understand how quickly the value of mortgage backed securities would decline…. (NB: On what basis, then, did S & P justify its AA- rating until September 15, 2008 if ?) S & P hedged its bets. Ratings are based on current value and give prospective investors a factual basis for predicting future performance.) Clark went on to say, “In 2008, excluding investment losses, AIG would’ve been profitable.”
Really? Does that mean S&P didn’t see the looming losses or didn’t consider them relevant to the total value of the company? (See: Ratings Agencies falsify reports or search CSPAN’s archives for quotes from ratings agents who knew full-well that the mortgage-backed securities were toxic but provided healthy ratings because…that was the outcome corporations paid them to obtain. (See: previously-cited statement from Joel Ario.)
Edward LIDDY, AIG insurance Chairman & CEO (temporarily appointed in 2008 to detoxify AIG). Prior to Mr. Liddy taking his witness seat, he was stopped by “pink lady demonstrators” who questioned him (in part) about consequences to returning war veterans whose savings were invested with AIG. If he answered, it wasn’t televised.
He did tell us that the risk to AIG was unacceptably high if we did not pay the $165 million in bonuses. “It was my determination,” he said, “that AIG-FP would unravel if employees weren’t retained to wind down the projects they were working on. Which they did. They’ve reduced $2.7 trillion in toxic assets to $1.6 trillion. It’s my intention to reduce those debts, sell AIG’s insurance companies and strengthen the healthy portions of our business. If we don’t pay our debts, that triggers bankruptcy. I’ve asked AIG-FP (financial product) employees to return a portion of the bonuses. Believe me, I wouldn’t have approved the contracts if I’d been CEO at the time they were created.”
Liddy further asserted that Federal Reserve Chairman Ben Bernanke acquiesced to the payment of retention bonuses.
“We didn’t tell Congress because nobody told us to,” Liddy explained. “We’re partners with the Federal Reserve. They participate in activities leading up to board meetings and they attend board meetings. I asked if they had comments or different points of view as far as bonuses and everything else. The Federal Reserve did not disagree with our assessment that AIG-FN was at risk of jeopardizing the monies already given if we didn’t pay the bonuses. We were told by our attorneys that the contracts were unbreakable. I assumed they shared with Treasury and Congress information they gained from us. The Secretary of the treasury did not know we were going to make the [bonus] payments though the Federal Reserve did. It’s up to the Federal Reserve to discuss” salient issues with the Secretary of the Treasury.
Later, Treasury Secretary Timothy Geithner said he didn’t know about the bonus contracts until two weeks ago.
Countering assertions of possible fraud, Liddy said he believes, “AIG was solvent when the retention contracts were drawn.” (On what factual basis did he develop this assessment? Or, is he just repeating assessments from ratings agencies which regurgitated AIG’s own corporate projections? Isn’t that the same self-quoting claptrap that got us into Iraq?)
Liddy continued, “AIG has problems besides the mortgage-backed securities. There’s oil accounts and other utilities in trouble.” (This appears to contradict his assertions of fundamental solvency.)
ED PERLMUTTER, Committee Member. “There’s a whole fraud concept that says ya’ can’t be handing out bonuses when you’re insolvent. I don’t think these bonuses should have been paid.”
Some legal issues, AIG’s Employee Retention Plan and relevant case and statutory findings.
Currently, some members of Congress are promoting tax legislation which would target bonuses paid by corporations that received stipulated bailout funds. Their idea is to re-appropriate the funds already disbursed. (There is every reason to believe such targeting is unconstitutional. Seeing as how Congress writes the laws and has more than its fair share of attorneys, you’d think they’d know that.)
(Importantly, there is no signing date on the Retention Plan although it specifically covers 2008 and 2009.) According to CEO Liddy’s Executive Summary of the retention plan in which he discusses the bonuses, “The plan was implemented because there was a significant risk of departures among employees at AIGFP, and given the $2.7 trillion of derivative positions at AIGFP at that time, retention incentives appeared to be in the best interest of all of AIG’s stakeholders…. This resulted in a $313 million total for 2008 and a $327 million total for 2009… The 2008 awards range from $1,000 to slightly less that $6.5 million. Only seven employees will receive more than $3 million…. The retention plan is governed by Connecticut Wage Act. (Section 4.04)” (NB: The law provides for the recovery of double damages and attorneys’ fees when wages are improperly withheld and the employer’s refusal to pay wages lack a good faith basis. Conn. Gen. Stat sections 31-72.) “In addition,” states Liddy, “individual managers who decide to withhold wages that are due are individually liable for violation of the Wage Act…We have been advised that the bonus provisions of the American Recovery and Reinvestment Act of 2009 prohibiting certain bonuses specifically exclude bonuses paid pursuant to pre-February 11, 2009 employment contracts.” (Apparently, this is the alleged “Dodd Provision.”)
NB: The definition of “executive employee” rests largely on whether an employee is salaried, is required to exercise personal discretion in performance of duties, earns in excess of certain dollar amounts and has (usually) some supervisory responsibilities.
According to the Connecticut Wage Statute (sec. 31-71(e). “No employer may withhold or divert any portion of an employee’s wages unless (1) the employer is required or empowered to do so by state or federal law and (i) “Wage” means compensation due to an employee by reason of his employment. (Italics added for emphasis.)
Liddy’s Executive Summary referenced Schoonmaker v Lawrence Brunoli, Inc. 828 A.2d64 (Conn.2003). Schoonmaker established that double damages could be paid when salaries are withheld for reasons of “bad faith, arbitrariness or unreasonableness.”
The courts have also established that, “Punitive damages may be awarded in suits in which it is proven by clear and convincing evidence that the defendant’s [employer’s] actions showed willful misconduct, malice, fraud, wantonness, oppression or [lack of care] which would raise the presumption of conscious indifference to consequences. Under O.C.G.A. 51-12-5.1(b), it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be certain circumstances of aggravation or of outrage.”
New York’s Attorney General Andrew Cuomo may attempt to use the Fraudulent Conveyance Act to recover the bonuses.
In order to pursue Fraud charges, “… the misrepresentation [or omission] must be made knowingly and intentionally, not as a result of mistake or accident; that is, that the person either knew or should have known of the falsity of the misrepresentation [or the false effect of the omission], or that he made the misrepresentation [or omission] in negligent disregard of its truth or falsity.
NB: Under the Bankruptcy Code, insolvency exists when the sum of the debtor’s debts exceeds the fair value of the debtor’s property, with some exceptions. It is a balance sheet test. 11 USC § 101(32)
Therefore, the two most important facts to ascertain are, “What was AIG’s actual state of solvency when the bonuses were contracted and did its officers misrepresent that state?”
More Answers Needed:
Which Congress people received campaign finances from AIG and other financial corporations? How much did they receive? How did those congress people vote or speak on salient congressional actions? (You can find some of the answers at the Center for Responsive Politics and RollCall. Feel free to vote accordingly in upcoming elections.)
At the time of AIG’s bailout or request for a bailout, what was the corporation’s actual worth?
Was the United States coerced by fear and intimidation into awarding bailout funds?
Besides Christopher Dodd, who was involved in exempting bonuses agreed to before February 11, 2009? To what extent were Treasury and The White House involved?
As always, you can view the hearings at CSPAN.