As previously described in our Alert of Oct. 6, 2009, “LBIE Administrators Announce Contractual Alternative to Proposed Scheme of Arrangement,” the Joint Administrators (the “Administrators”) of Lehman Brothers International (Europe) (“LBIE”) have proposed a Claim Resolution Agreement (the “CRA”) to facilitate the return of segregated client assets to LBIE’s creditors and establish a mechanism for terminating and closing out certain financial contracts entered into before Sept. 15, 2008.
Parties Subject to the Proposed CRA
The proposed CRA applies to two classes of LBIE creditors:
- TA Signatories. LBIE clients with ownership claims to assets recorded on LBIE’s books and records, and the relevant sub-custodian or depot, as held in a segregated manner, separate from LBIE’s assets, as of Sept. 15, 2008 (“Trust Assets”).
- NTA Signatories. LBIE clients who do not have ownership claims to Trust Assets but who are party to “Financial Contracts” entered into with LBIE before Sept. 15, 2008. “Financial Contracts” include any bilateral or multilateral contract entered into with LBIE before Sept. 15, 2008 (whether written or not), relating to one or more transactions or positions of a financial nature, including contracts for the delivery and/or custody of assets. Contracts that are purely administrative or service contracts are not Financial Contracts.
LBIE delivered CRA offering materials to parties eligible to participate in the CRA process in late November 2009. Those parties wishing to be signatories to the CRA must elect do so by 5:00 p.m. (London time) on Dec. 29, 2009 (the “Election Deadline”). The CRA will become effective if 90% (in value) of those eligible to become TA Signatories sign the CRA by the Election Deadline. The CRA will lapse if the 90% threshold is not met.
The U.K. High Court in London has ruled that LBIE clients have until March 19, 2010 to file their claims to Trust Assets with the Administrators. If a TA Signatory fails to submit its Trust Asset claim by the Bar Date, LBIE will determine the TA Signatory’s entitlement to the Trust Assets based on information available to LBIE when it makes its determination.
LBIE intends to return Trust Assets on a stock-line-by-stock-line basis (i.e., a pro rata distribution for each stock item). If a shortfall occurs, the TA Signatory will have an unsecured claim against LBIE for the deficiency.
Under the CRA, each TA Signatory releases the other TA Signatories from all claims to Trust Assets distributed to it in accordance with the CRA. The CRA does not bind non-signatories and offers no protection to TA Signatories from claims non-signatories may pursue.
Financial Contracts The CRA establishes a mechanism for the termination and close out of all Financial Contracts between NTA Signatories and LBIE. Financial Contracts that have been closed out will be valued based on the close-out amounts, determined in the manner set out in the contracts. Open financial contracts will be automatically closed out on the last day of business of the month in which the NTA Signatory enters into the CRA. The CRA provides different methodologies to be used in determining the value of close-out amounts under these Financial Contracts.
A copy of the CRA can be accessed through the Administrators’ web site.1
Segregated Assets Not Sufficient to Satisfy Trust Asset Claims
The Administrators have reported identification of approximately $2.1 billion of Trust Asset claims, but only $1 billion of assets held in segregated accounts to satisfy those claims. On May 1, 2009, the Administrators applied to the High Court for guidance in relation to the treatment of client money received before the administration of LBIE began.
On Dec. 15, 2009, the High Court decided that the pre-administration client money pool consists of accounts used by LBIE in order to segregate client money. The basis for a client’s right to share in the client money pool is based on the amount which was actually segregated for the client. The court determined that the pool of client assets that was segregated before the administration can be distributed to clients. Clients whose Trust Assets were not segregated, however, cannot share in the pool of Trust Assets controlled by the Administrators. Their shortfall claims will be treated with other unsecured creditors.
The client money pool does not form part of the general assets of an insolvent firm in administration or liquidation. LBIE may not set off debts owed by clients to LBIE against clients’ distributions from the client money pool in the absence of an agreement to the contrary.
LBIE is not required, under applicable law or regulation, to make adjustments in the following circumstances:
- For LBIE clients for whom no or insufficient money was segregated at the time of administration.
- For movements between the time of last segregation (being the morning of Sept. 12, 2008, based on figures at close of business on Sept. 11, 2008) and the time of administration.
- To rectify any shortfall including, the shortfall arising by reason of the insolvency of LBIE’s deposit holder Lehman Brothers Bankhaus AG (with which LBIE had deposited client money).
A right to appeal this judgment was granted to certain respondents, which include three of LBIE’s affiliates (collectively the “Respondents”) at the time the judgment was made. If the Respondents decide to appeal, they will need to so by Jan. 15, 2010.