* Greenberg had sued for $25 bln, claiming unlawful bailout
* Judge: AIG acted out of "corporate desperation" in
* Greenberg may appeal, pursues separate lawsuit
By Jonathan Stempel
NEW YORK, Nov 19 The Federal Reserve Bank of New
York won the dismissal of former American International Group
Inc Chief Executive Maurice "Hank" Greenberg's $25
billion lawsuit accusing it of unlawfully bailing out the
insurer during the 2008 financial crisis.
The decision issued Monday by U.S. District Judge Paul
Engelmayer in Manhattan was a ringing endorsement of broad
central bank power to try to preserve the global financial
system from systemic threats.
It was also a defeat for Greenberg, 87, and his Starr
International Co. Before the bailout, AIG had been the world's
largest insurer by market value and Starr was its largest
shareholder, with a 12 percent stake.
"The decision vindicates the Fed at every turn," said David
Skeel, a law professor at the University of Pennsylvania. "It
shows a willingness, now and in the future, to give the Federal
Reserve extraordinary flexibility to respond to a financial
crisis without a serious risk of potential legal liability."
Starr accused the New York Fed of engineering a "backdoor"
bailout for Wall Street banks including Goldman Sachs Group Inc
at the expense of AIG shareholders, by forcing the
insurer to unwind its bets on mortgage debt through hundreds of
billions of dollars of credit default swaps.
It also contended that the New York Fed breached its duties
to shareholders under the law of Delaware, where New York-based
AIG is incorporated.
But Engelmayer said AIG acted out of "corporate desperation"
in accepting the $182.3 billion rescue. He also rejected Starr's
likening the New York Fed to a "loan shark" for providing an
initial $85 billion credit line at a 14.5 percent interest rate.
"Merely because the AIG board felt it had 'no choice' but to
accept bitter terms from its sole available rescuer does not
mean that that rescuer actually controlled the company,"
The judge also found nothing to suggest that AIG directors
who approved the unwinding of the swaps were "in any way less
than 100 percent independent."
Starr and Greenberg sued over the bailout last November and
are still suing the New York Fed in the U.S. Court of Federal
Claims in Washington, D.C., under different legal theories.
NO OPTIMAL SOLUTION
Robert Dwyer, a partner at Boies, Schiller & Flexner who
represents Greenberg, said Starr may appeal Engelmayer's
decision to the 2nd U.S. Circuit Court of Appeals in New York.
He said the decision will not affect the Washington, D.C. case.
Greenberg's office had no immediate comment.
The New York Fed said in a statement: "We are pleased with
the court's decision to dismiss this case, which we have always
believed to be without merit."
Richard Epstein, a professor at New York University School
of Law, said the ruling was not surprising because the New York
Fed could not be held legally responsible to always craft
perfect solutions in times of crisis.
"It's just too much to demand of anybody that in the face of
all these kinds of turmoil, you come up with the optimal
solution when no one is clear about what the optimal solution
is," he said.
AIG was bailed out on Sept. 16, 2008, one day after Lehman
Brothers Holdings Inc went bankrupt, as losses soared from the
credit default swaps.
Greenberg, who led AIG for nearly four decades before he was
ousted in 2005, accused the New York Fed of wasting more than
$60 billion of AIG and taxpayer funds through the bailout.
He said the rescue terms improperly benefited banks such as
Goldman, Deutsche Bank AG and Societe Generale
, allowing favored counterparties to be repaid in full
and freed from legal liability.
Greenberg also said the New York Fed improperly let the U.S.
Treasury take a 79.9 percent stake in AIG without giving a vote
to existing shareholders who would be diluted. The government
stake has since fallen to about 15.9 percent.
At the time of the bailout, Henry Paulson headed the U.S.
Treasury Department, and his successor Timothy Geithner was
president of the New York Fed.
Engelmayer found that the New York Fed appropriately
exercised its authority to try to preserve the banking system,
reduce the threat of "grave national and international financial
repercussions" and minimize losses to the public.
"While driving a hard bargain with the counterparties might
have saved AIG and its shareholders money, (the New York Fed)
could reasonably conclude that its statutory mission of
stabilizing the economy made speed and closure a top priority,"
"It could reasonably conclude that it was time for the cycle
of collateral calls and mammoth rescue loans to end; that the
stability of the U.S. economy required decisively terminating
AIG's exposure to counterparties; and that paying par value - as
opposed to opening up a bazaar of uncertain and maybe protracted
negotiations with counterparties - was the best means to attain
Engelmayer also said Delaware law should not be used to
impose duties on the New York Fed that "squarely conflict" with
the New York Fed's federal responsibilities.
He dismissed Starr's claims "with prejudice," meaning they
cannot be brought again.
"The judge is saying that an instrument of government such
as the New York Fed serves interests much broader than the
private interest of any single party," said James Cox, a law
professor at Duke University in Durham, North Carolina.
In the case before the Court of Federal Claims, which
handles lawsuits seeking money from the government, Starr said
the AIG bailout deprived shareholders of their due process and
equal protection rights through an illegal "taking" of property.
The presiding judge, Thomas Wheeler, in July allowed Starr
to pursue that lawsuit.
But Skeel, the University of Pennsylvania law professor,
questioned its prospects in light of Engelmayer's findings.
"The fact that this was so decisively rejected raises doubts
about the likelihood of success of the takings case," he said.
Shares of AIG were up 1.6 percent, at $32.31 in afternoon
trading on the New York Stock Exchange. They have lost more than
97 percent of their value since credit conditions began to
tighten in the middle of 2007.
The cases are Starr International Co v. Federal Reserve Bank
of New York, U.S. District Court, Southern District of New York,
No. 11-08422; and Starr International Co v. U.S., U.S. Court of
Federal Claims, No. 11-00779.