Globe and Mail Update Published on Tuesday, Aug. 19, 2008 4:42PM EDT Last updated on Tuesday, Mar. 31, 2009 8:30PM EDT
In Purdy Crawford's words, the plan for restructuring Canada's commercial paper market “can now move forward to completion.”
It's been a huge job tackling the problem - what to do with $32-billion in frozen asset-backed commercial paper? Financial institutions want to avoid lawsuits, investors want their money back, and regulators want to ensure a situation of this type never occurs again.
On Monday, a three-judge panel of the Ontario Court of Appeal deemed the plan fair and legal. In making that unanimous ruling, it rejected the argument by a group of ABCP holders - with an estimated $1-billion tied up - who were upset about legal releases that are tied to the restructuring plan.
Those investors say they are reviewing the decision, and will consider an appeal to the Supreme Court of Canada.
And in the meantime, Mr. Crawford says the committee is preparing to conclude the plan, and will deal with any further court challenges as they occur.
Mr. Crawford was online Tuesday for a discussion about the ABCP plan, and what happens next. Your questions and his answers appear at the bottom of this page.
Editor's Note: globeandmail.com editors will read and allow or reject each question/comment. Comments/questions may be edited for length or clarity. HTML is not allowed. We will not publish questions/comments that include personal attacks on participants in these discussions, that make false or unsubstantiated allegations, that purport to quote people or reports where the purported quote or fact cannot be easily verified, or questions/comments that include vulgar language or libellous statements. Preference will be given to readers who submit questions/comments using their full name and home town, rather than a pseudonym.
Virginia Galt, globeandmail.com: Good afternoon, Mr. Crawford. Thanks so much for joining us to take questions on the emotionally-charged issue of investors, and the $32-billion of their money that has been tied up in frozen asset-backed commercial paper for more than a year.
The restructuring process -- endorsed yesterday by the Ontario Court of Appeal -- has been long, arduous and controversial. Your committee has accomplished far more than many thought possible in clearing the way for investors to get their money back.
Yet one contentious issue remains -- the provision that protects most of the market's major players from lawsuits. The Court of Appeal yesterday upheld the use of legal releases, but acknowledged they can be distasteful.
Why did you have to insist on immunity from lawsuits, given that the court fight over the issue has delayed resolution of the ABCP situation for many months? Just today, ABCP-holder Ivanhoe Mines announced that it now plans to seek leave to appeal to the Supreme Court of Canada.
Purdy Crawford:Our goal with this plan was to achieve a compromise solution that would be timely, fair and equitable for noteholders.
A number of key participants, many of whom are making substantial contributions or agreeing to significant concessions, and who are under no obligation to co-operate or participate in the restructuring, require comprehensive releases as a condition of their participation.
If releases were not given, it is unlikely that concessions would have been made, and investors would face significant losses and years of litigation and uncertainty in the absence of a plan. The releases allow us to settle all outstanding issues so everyone - investors, sponsors, and counterparties - can move forward.
Virginia Galt: What does the Ivanhoe challenge mean for the process, and for investors who were hoping to get their new bonds on Sept. 30?
Purdy Crawford: Ivanhoe's announced intention to seek leave to appeal does not affect our determination to complete the restructuring on our announced proposed timetable.
Ivanhoe's counsel has advised that it proposes to seek accelerated consideration of the matter by the SCC, and our counsel will be supportive of those efforts.
If Ivanhoe (or any other party) takes any steps to delay the completion of the restructuring pending the Supreme Court's determination, we will resist those attempts unless any delay is on terms that fully protect the interests of all noteholders.
DJ Claeys, Canada: What is the latest date that the corporate investors can appeal to The Supreme Court of Canada?
Purdy Crawford: Investors have up to 60 days from August 18 to seek leave to appeal to the Supreme Court, but we would expect any applicant to expedite the process.
Richard Scott, Mississauga, Ont.: I would like Mr. Crawford to explain how it is that justice is served by denying a group of legitimate complainants the right to sue the perpetrators of this ill-conceived product. . .
Retail investors have every right to expect that the underwriting and credit rating institutions who passed judgment on this product are competent and uphold professional standards. Investors have a right to seek damages from those who caused this enormous level of financial damage and hardship.
How can any legal professional support a decision which denies citizens their access to justice through our courts? This is a very serious matter, the magnitude of which seems to be lost in the rush to come to a flawed solution.
Of course I support the idea of getting funds back to investors as quickly as possible. What I do not support, and the courts should also not support, is the condition imposed that a basic democratic right be forfeited in the process.
Purdy Crawford: I have said all along this challenge was one of negotiating the art of the possible.
Participants, many of whom are making substantial contributions or agreeing to significant concessions but who are under no obligation to co-operate or participate in the restructuring, required comprehensive releases as a condition of their participation.
Without the co-operation of those plan participants there could no restructuring. The Courts fully considered all of the issues that have been dealt with in reaching their decision and concluded that the plan was fair and reasonable.
Geoff Cowper-Smith, London, Ont.: Do you think that government regulation of the rating agencies would be an appropriate step as a means of restoring consumer confidence and as a way to prevent a similar problem from occurring in the future?
If so, is regulation feasible?
Purdy Crawford: That is a question to be answered in the future. I have personally committed to participate in those discussions.
If there is to be any reform relating to credit rating agencies it has to be done on a global basis.
Jon Stone, Canada: Mr. Crawford, can you provide an estimate of the total cost of the committee and receiver, including your efforts, and detail how the costs will be allocated to investors?
Purdy Crawford: Committee members have borne certain costs to date. If the plan is implemented the total costs will be pro rated among the noteholders based on the nominal value of the notes.
Those costs are not significant in relation to the value of the notes being restructured.
Ken Kivenko, Toronto: Questions: 1. Why was DBRS not excluded as it is not putting any money on the table and is at the root of the flawed ABCP notes?
2. Are regulators now prevented from enforcing securities laws and rules?
3. What message does this send to Wall and Bay Streets about accountability, ethics, investor protection, the role of regulators?
Purdy Crawford: 1. The Plan participants insisted upon comprehensive releases which included DBRS.
2. The regulators are not precluded whatsoever from enforcing the law.
3. A similar message is sent all around the western world. On the whole Bay Street comes through this looking very good comparatively. In Canada investors are protected by the industry on a voluntary basis.
Rick Spence, Toronto Port Carling: So what have we learned that will prevent financial companies from dumping bundles of junk like this on unsuspecting investors again?
Is the key going to be increasing regulation, or increased investor skepticism? If so, do you think investors have learned (or can learn) anything from this mess?
Purdy Crawford: I have committed to appear before the House of Commons finance committee to review what reforms if any should be made in this matter.
At this stage we have been working to complete the restructuring and have not focused on what the reforms, if any, should be.
Brian Witt, United States: In the U.S., approximately 5 institutions have agreed to buy back frozen Auction Rare Securities from their customers.
Why didn't Canadian regulators or the Committee pursue the same type of agreements?
Purdy Crawford: The circumstances are very different. In Canada we have arrived at a private sector solution without the involvement of governments.
The paper in the U.S. is worth 90 to 95 per cent of its face value, so the solution in the U.S. was more straightforward.
For the most part, Canadian retail investors will receive the full face amount of their paper plus accrued interest.
Virginia Galt, globeandmail.com: Mr. Crawford, thanks for taking time out of your busy schedule. It has been a long run for you and the ABCP investors.
You won a major victory at the Ontario Court of Appeal yesterday, but the restructuring process is not over yet.
Do you have any closing thoughts to leave with us today?
Purdy Crawford: This has been an arduous 12 months and we look forward to a successful implementation of the Plan at the earliest possible date.
We thank everyone for their patience.
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