One might call it ”chutzpah,” as several irate lawmakers did, or ”rubbing salt in the wounds” of the American taxpayer. But to a fewWall Street financiers, a lawsuit that accuses the government of shortchanging theAmerican International Group in its 2008 bailout is something else: a promising investment in a cause they support.
Maurice R. Greenberg, 89, the former A.I.G. chief executive who still holds a large stake in the insurance company, filed the lawsuit on behalf of fellow shareholders. He has now raised several million dollars from threeWall Street companions to help cover the cost of the case. The investors, who are entitled to a cut of any damagesMr. Greenberg collects from the government, contributed about 15 percent of the tens of millions of dollars in legal costs, according to people with knowledge of the arrangement.
Six years after the government savedWall Street from the brink of collapse, the lawsuit is coming to trial, reopening one of the ugliest chapters in modern financial history. The trial, which begins next week inWashington, will most likely hinge on testimony from the policy makers who orchestrated A.I.G.’s rescue, including former Federal Reserve ChairmanBen S. Bernanke and former Treasury SecretaryTimothy F. Geithner.
With the legal bills mounting in the three-year case,Mr. Greenberg sought support from a certain breed of investor — those who have misgivings about the government.Kenneth G. Langone, the former director of theNew York Stock Exchange who spent years fending off accusations from theNew York attorney general’s office, contributed toMr. Greenberg’s legal fund, the people said.Steven A. Cohen, whose hedge fund was indicted on charges of insider trading last year, considered investing, too, but ultimately declined.
The investments fromMr. Greenberg’s friends — their decisions and the details of their arrangement have not been previously reported — have breathed new life into a case that the government thought would never reach trial. After all, by the government’s reckoning, A.I.G. had only one alternative to the bailout: bankruptcy.
The lawsuit, which seeks more than $40 billion from the government, does not dispute that A.I.G. needed a $182 billion lifeline to survive the financial crisis. It instead challenges the onerous nature of the rescue. The government took what became a 92 percent stake in the company — a step it did not pursue with other bailed-out Wall Street giants — imposed a steep interest rate and steered billions of dollars to the insurer’s trading partners. Those decisions, the suit says, cheated A.I.G. shareholders and violated the Fifth Amendment, which prohibits the taking of private property for ”public use, without just compensation.”
Mr. Greenberg also contends that the Fed lacked the legal authority to demand a stake in A.I.G. That argument stems partly from past rulings, including aSupreme Court case that challengedPresident Truman’s takeover of the steel industry during the Korean War.
The case thrusts A.I.G. into a fight that the company itself does not support. For the insurer, which has since repaid the bailout and regained its footing,Mr. Greenberg’s case is a reminder of a time when it was synonymous with the excessive risk-taking that nearly imploded the economy.
The trial, at theUnited States Court of Federal Claims inWashington, will also place an unwelcome spotlight on the government, forcingMr. Bernanke andMr. Geithner to justify their unconventional policies. The government, which turned a$22.7 billion profit on the A.I.G. bailout, senses a broader public policy threat from the case as well, warning that a verdict inMr. Greenberg’s favor could set a precedent thatWall Street firms are legally entitled to bailouts on their own terms.Mr. Greenberg’s lawyers dispute that notion.
At times, the case has pitted one government agency against another.The Treasury Department, dismayed that the case made it to trial, briefly considered hiringNeil H. MacBride, a prominent former prosecutor now at the law firm Davis Polk, to supplement theJustice Department lawyers assigned to the case, according to people with knowledge of the matter. That idea irritated someJustice Department officials, the people said, particularly since the law firmDebevoise & Plimpton was already advising the government. Ultimately,Mr. MacBride was not retained.
For his fight,Mr. Greenberg hiredDavid Boies, the litigator who led theJustice Department’s antitrust trial againstMicrosoft and later helped overturnCalifornia’s ban on same-sex marriage.
Mr. Boies, 73, has become de facto counsel forMr. Greenberg, steering him through accusations of accounting impropriety during his tenure as chief executive and handling his litigation with A.I.G. after his departure. Their ties extend toYale Law School, where professorships are named for both men.Mr. Boies, an alumnus, and his wife, Mary, financed the professorship inMr. Greenberg’s name.
In the A.I.G. case, Mr. Greenberg is sparing no expense. His legal team, which has taken over nearly an entire floor of a downtown Washington hotel near the courthouse, also includes the Wall Street law firm Skadden, Arps, Slate, Meagher & Flom.
To help finance the fight,Mr. Greenberg turned to his friends onWall Street, putting a personal twist on so-called litigation financing, a growing industry for hedge funds and specialty firms.
His pitch resonated withMr. Langone, a close friend and vocal supporter ofMr. Greenberg.J. Christopher Flowers, a private equity executive who happened to warn theTreasury Department inSeptember 2008 that A.I.G. was careering toward collapse, also invested in the legal fund, the people with knowledge of the financing arrangement said. The identity of the third investor could not be learned.
Mr. Greenberg’s effort came to light in a report byFox Business Network in June. While it is unclear whether that report scared off some potential investors,Mr. Cohen, the hedge fund manager, declined to invest.Peter G. Peterson, an outspoken fiscal conservative who served in the Nixon administration and helped found the giant private equity firmthe Blackstone Group, also turned downMr. Greenberg.
Mr. Greenberg delivered his pitch to the investors at a meeting in his office this March, according to the people with knowledge of the financing arrangement. He also made personal appeals.Mr. Greenberg was seen having lunch withMr. Cohen at the Four Seasons restaurant inManhattan in April.
The trial is the latest front inMr. Greenberg’s long campaign to keep a finger on A.I.G., a company he presided over for nearly 40 years and fashioned into the most valuable insurer in the world. Since his resignation in 2005 in the face of accounting investigations — he settled an S.E.C. action in 2009 and is going to trial next year in a 10-year-old lawsuit from theNew York Attorney General’s Office –Mr. Greenberg has fought to maintain his influence.
The bailout presented a threat to that power. When the government took what became a 92 percent equity stake, it diluted the value and voting rights of shares belonging to existing stockholders, includingMr. Greenberg’s company,Starr International. At the time of the bailout, Starr was A.I.G.’s largest investor.
Mr. Greenberg, a veteran of two wars who continues to lift weights well into his 80s, registered his complaint withMr. Geithner, who was president of the Federal Reserve Bank ofNew York before becoming Treasury secretary. He calledMr. Geithner at least six times, according toTreasury Department calendars, and met him in 2010 to suggest restructuring the bailout.
Unsatisfied, Mr. Greenberg filed suit a year later. Initially, the case hit a dead end. A federal judge in Manhattan dismissed the case, a decision that a federal appeals court upheld.
Now, however, Mr. Greenberg’s legal team could benefit from trying the case before the claims court in Washington, which typically hears more obscure lawsuits over issues like tax rebates and government contracts. Recently, the court has become a go-to site for Wall Street to pursue its grievances with the government, including hedge funds that filed claims over the bailout of the mortgage finance companies Fannie Mae and Freddie Mac.
Driving Mr. Greenberg’s case is the argument that the government singled out A.I.G. to receive the harshest of bailouts.
For one, it initially paid more than 14 percent interest on a line of credit from the government, which the lawsuit contends was ”an extortionate interest rate.” The decision to use taxpayer and A.I.G. money to repurchase soured mortgage deals that the company insured for big banks in the form of credit-default swaps amounted to a ”backdoor bailout” of Wall Street, the lawsuit says. And the government’s equity stake ”took control of A.I.G. away from its shareholders.”
The final straw, according to the lawsuit, came when the government ”deliberately ignored and evaded” a shareholder vote against an increase in shares that would accommodate the government’s equity stake. A.I.G. created a reverse stock split, the lawsuit claims, that effectively allowed the company to circumvent that vote.
The government has dismissed that argument as a ”conspiracy theory.” And government lawyers note that A.I.G.’s board accepted the terms of the bailout, which they argue benefited Mr. Greenberg in the long run, saying that ”the common shareholders’ 20.1 percent equity stake in A.I.G. after the rescue was worth more than their 100 percent equity stake before the rescue.”
”Neither the Constitution nor the Federal Reserve Act required American taxpayers to rescue A.I.G. and cushion the fall of its shareholders, much less to do so on terms even more favorable to Starr,” the government said in court papers.
Michael Corkery, Jessica Silver-Greenberg and Andrew Ross Sorkin contributed reporting.
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