WASHINGTON – A federal appeals court has ruled that the former CEO of American International Group lacks the legal right to challenge the government's bailout of the insurance giant in the heat of the financial crisis.
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The ruling Tuesday by the U.S. Court of Appeals for the Federal Circuit overturned a lower-court decision and handed a victory to the government.
The next stop for the case may be the Supreme Court. David Boies, the attorney for ex-AIG chief Maurice Greenberg, said they will appeal the ruling. The unusual case raised the issue of limits on the government's power in responding to financial catastrophe.
In a lawsuit filed by his company, Starr International, Greenberg had alleged that the $85 billion bailout of the teetering AIG in September 2008 violated the Constitution's Fifth Amendment by taking control of the company without "just compensation."
The previous decision by a judge in the U.S. Court of Federal Claims validated Greenberg's allegations in principle, though the judge rejected Greenberg's demand for $40 billion in damages from the government for himself and other AIG shareholders.
Writing the new opinion for a three-judge panel of the appeals court, Chief Judge Sharon Prost said any claims against the government rightfully belong to AIG, not Starr. AIG "has exercised its business judgment and declined to prosecute this lawsuit," Prost wrote. "The alleged injuries to Starr are merely incidental to injuries to AIG, and any remedy would go to AIG, not Starr."
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Starr failed to show that it, rather than AIG, directly suffered harm from the taxpayer bailout, the judges said.
In a statement, Boies noted that the appeals court didn't rule on the constitutional issue itself. At the same time, he said, the court asserted "that the shareholders have no remedy and that the government is entitled to retain more than $18 billion in ill-gotten gains."
"We respectfully disagree and will ask the Supreme Court for review," said Boies, who has argued landmark cases before the high court.
An eight-week trial in the fall of 2014 brought the rare spectacle of back-to-back courtroom testimony by three former leaders of the government's bailout — then-Federal Reserve Chairman Ben Bernanke, Treasury Secretary Henry Paulson and New York Fed President Timothy Geithner.
They and other officials asserted that the government imposed losses on shareholders of bailed-out companies that were in proportion to the bad decisions made by their managers. That would appear to explain the big equity stake the government took in AIG and the interest rate on the taxpayer-backed loan, which was set at about 12 percent annually. That was much higher than what other big financial companies paid in the bailout.
Greenberg's suit, filed in 2011, had been deemed a long shot by many legal experts.
But Judge Thomas Wheeler of the federal claims court ruled partly in Greenberg's favor in June 2015. He called the government's conduct in taking control of 80 percent of AIG's stock an "illegal exaction" and cited its "unduly harsh treatment of AIG in comparison to other institutions."
New York-based AIG, which had operations around the globe, buckled after making huge bets on mortgage securities that soured. Government officials were concerned that if AIG were allowed to fail it would send shock waves through the financial system, which was already reeling after Lehman Brothers collapsed. The government initially stepped in with an $85 billion loan from the New York Fed. The aid eventually grew to nearly $185 billion.
AIG has since returned to financial health and fully repaid the bailout.