UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of

THE COMMONWEALTH OF PUERTO RICO, et al.,

Debtors.1

PROMESA

Title III

No. 17-BK-3283-LTS

(Jointly Administered)

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of

PUERTO RICO ELECTRIC POWER AUTHORITY,

Debtor.

PROMESA

Title III

No. 17-BK-4780-LTS

(Jointly Administered)

Re: ECF No. 3581

PUERTO RICO ELECTRIC POWER AUTHORITY,

Movant,

 v.

1 The Debtors in these Title III Cases, along with each Debtor’s respective Title III case 

number and the last four (4) digits of each Debtor’s federal tax identification number, as applicable, 

are the (i) Commonwealth of Puerto Rico (Bankruptcy Case No. 17-BK-3283-LTS) (Last Four 

Digits of Federal Tax ID: 3481); (ii) Puerto Rico Sales Tax Financing Corporation (“COFINA”) 

(Bankruptcy Case No. 17-BK-3284-LTS) (Last Four Digits of Federal Tax ID: 8474); (iii) Puerto 

Rico Highways and Transportation Authority (“HTA”) (Bankruptcy Case No. 17-BK-3567-LTS) 

(Last Four Digits of Federal Tax ID: 3808); (iv) Employees Retirement System of the Government 

of the Commonwealth of Puerto Rico (“ERS”) (Bankruptcy Case No. 17-BK-3566-LTS) (Last 

Four Digits of Federal Tax ID: 9686); (v) Puerto Rico Electric Power Authority (“PREPA”) 

(Bankruptcy Case No. 17- BK-4780-LTS) (Last Four Digits of Federal Tax ID: 3747); and (vi) 

Puerto Rico Public Buildings Authority (“PBA”) (Bankruptcy Case No. 19- BK-5523-LTS) (Last 

Four Digits of Federal Tax ID: 3801) (Title III case numbers are listed as Bankruptcy Case 

numbers due to software limitations). 

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AD HOC GROUP OF PREPA BONDHOLDERS, 

ASSURED GUARANTY CORP., ASSURED 

GUARANTY MUNICIPAL CORP., SYNCORA 

GUARANTEE, INC., U.S. BANK NATIONAL 

ASSOCIATION AS PREPA BOND TRUSTEE,

Respondents.

REPLY IN SUPPORT OF DEBTOR’S MOTION IN LIMINE TO EXCLUDE EVIDENCE

CHALLENGING OVERSIGHT BOARD’S CERTIFICATION DETERMINATIONS

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT ................................................................................................................................. 4

CONCLUSION............................................................................................................................... 9

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TABLE OF AUTHORITIES

Page(s)

CASES

Ambac Assurance Corp. v. Puerto Rico (In re Fin. Oversight & Mgmt. Bd. for 

P.R.),

297 F. Supp. 3d 269 (D.P.R. 2018), aff’d, 927 F.3d 597 (1st Cir. 2019) ..................................5

Fin. Sec. Assurance, Inc. v. T-H New Orleans Ltd. P’ship (In re T-H New Orleans 

Ltd. P’ship),

188 B.R. 799 (E.D.La. 1995), aff’d, 116 F.3d 790 (5th Cir. 1997) ...........................................7

In re BSA,

642 B.R. 504 (Bankr. D. Del. 2022), aff’d, 650 B.R. 87 (D. Del. 2023)...............................7, 9

In re Celotex Corp.,

204 B.R. 586 (Bankr. M.D. Fla. 1996) ......................................................................................7

In re Fin. Oversight & Mgmt. Bd. for P.R.,

432 F. Supp. 3d 25 (D.P.R. 2020), aff’d, 954 F.3d 1 (1st Cir. 2020) ........................................8

Mendez-Nunez v. Fin. Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & 

Mgmt. Bd. for P.R.),

916 F.3d 98 (1st Cir. 2019)........................................................................................................5

Rossello Nevares v. Fin. Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & 

Mgmt. Bd. for P.R.),

330 F. Supp. 3d 685 (D.P.R. 2018)........................................................................................5, 6

STATUTES

11 U.S.C. § 1129..............................................................................................................................6

PROMESA § 106(e) .............................................................................................................. passim

PROMESA § 201.............................................................................................................................1

PROMESA § 201(b)................................................................................................................2, 4, 6

PROMESA § 201(b)(1)(H)..............................................................................................................5

PROMESA § 201(b)(1)(I) ...............................................................................................................7

PROMESA § 201(c)(3)....................................................................................................................2

PROMESA § 201(d)(2) ...................................................................................................................2

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PROMESA § 314(b)....................................................................................................................2, 6

PROMESA § 314(b)(7) ......................................................................................................... passim

OTHER AUTHORITIES

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts (2012) ...........................................................................................................................8, 9

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To the Honorable United States District Court Judge Laura Taylor Swain:

The Oversight Board1 respectfully submits this reply in further support of its Motion in

Limine to Exclude Evidence Challenging Oversight Board’s Certification Determinations [ECF 

No. 3581] (the “Motion”) and in reply to Response of the Ad Hoc Group of PREPA Bondholders, 

Assured Guaranty Corp., Assured Guaranty Municipal Corp., Syncora Guarantee, Inc., and U.S. 

Bank National Association as PREPA Bond Trustee to Debtor’s Motion in Limine to Exclude 

Evidence Challenging Oversight Board’s Certification Decisions [ECF No. 3746] (“Opposition” 

or “Opp.”).

PRELIMINARY STATEMENT

1. The Bondholders’ Opposition is entirely based on their erroneous premises that a 

plan of adjustment must pay them “all that it can afford to pay,” Opp. at ¶ 2, and that the 

requirement in PROMESA § 314(b)(7) that the plan of adjustment be consistent with the fiscal 

plan, actually means the plan of adjustment must be consistent with what the Court believes the 

fiscal plan should have provided. The Bondholders compound their erroneous premises by 

submitting the Court should interpret the Bankruptcy Code’s fair and equitable requirement to 

override the fiscal plan. If the Bondholders are correct, PROMESA §§ 106(e), 201, and 314(b)(7) 

have no meaning because the outcome the Bondholders desire would be the same if those sections 

were deleted from PROMESA. The General/Specific Canon quickly dispenses with the notion 

that a statute as specific as section 314(b)(7) can be overridden by a general fair and equitable

requirement. That the Court previously held it must determine whether the plan of adjustment is 

consistent with the fiscal plan for purposes of PROMESA § 314(b)(7), demonstrates the Oversight 

1 Capitalized terms used but not defined herein have the meaning ascribed to them in the 

Motion.

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Board is correct here, and does not help the Bondholders. The Oversight Board totally supports 

its previous representations that the Court need not confirm a plan if it does not satisfy confirmation 

requirements. Not confirming a plan because it is consistent with a fiscal plan the Court would 

change, would be wrong because it is not a confirmation requirement that the plan be consistent 

with a different fiscal plan the Court would prefer. Additionally, under the guise of honoring

congressional intent, the Bondholders defy it. As they would have it, a district court can find the 

certified fiscal plan is wrong, so long as the court reaches that conclusion in the context of a Title 

III confirmation. That outcome is the opposite of what Section 314(b)(7) provides and requires 

the Court to exercise the precise jurisdiction Section 106(e) carves out. The bondholders’ 

contention that fiscal plan certifications do not apply outside PROMESA Title II, does not survive 

the most elemental analysis. What does the debt sustainability analysis in the certified fiscal plan 

do, if it does not apply in Title III? Nothing. Similarly, PROMESA §§ 201(c)(3) and 201(d)(2),

providing the Oversight Board determines “in its sole discretion” whether a fiscal plan satisfies 

the requirements of PROMESA § 201(b), including the debt sustainability analysis, has no 

meaning under the Bondholders’ contention that the Court determines the debt sustainability 

analysis despite Sections 106(e) and 201(c) and (d). 

2. Far from “obliterat[ing]” Title III (Opp. ¶ 2), the Oversight Board’s position carries 

out each section of PROMESA mentioned above. The Court must confirm a plan of adjustment if 

it satisfies the seven elements listed in Section 314(b), including that “the plan [of adjustment] is 

consistent with the applicable Fiscal Plan certified by the Oversight Board under title II.” 

PROMESA § 314(b)(7). It is the Bondholders’ position that requires an interpretation of 

PROMESA that yields the same outcome that would exist if PROMESA §§ 106(e), 201(c), 201(d), 

and 314(b)(7) were each deleted. Congress envisioned a battle in which the debtor argues the plan 

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of adjustment is consistent with the fiscal plan, and the creditor argues the plan of adjustment is 

inconsistent with the fiscal plan. Nothing in PROMESA supports the Bondholders’ view that 

Congress envisioned the creditor could argue the plan of adjustment cannot be confirmed because 

it is consistent with a fiscal plan it does not like. Consistency with a certified fiscal plan is the 

issue, not whether the creditors or the Court would have drafted the certified fiscal plan differently. 

3. Moreover, the Bondholders make their argument about the fiscal plan to support 

their contention that the plan of adjustment must pay them all it can afford. In the context of 

PROMESA, the Commonwealth and people could more forcefully argue the plan of adjustment 

must provide for all the improvements to PREPA’s antiquated and decrepit infrastructure that 

PREPA can afford, so the people do not have to suffer all the blackouts and brownouts plaguing 

the Commonwealth. Repairing PREPA’s infrastructure is directly tied to attaining fiscal 

responsibility and market access. Moreover, whichever might be considered “the best” plan, is 

not a confirmation requirement, as decades of jurisprudence has shown. The Oversight Board 

respects both the creditors’ view and the Commonwealth and people’s view. It cannot, however, 

follow either view to the exclusion of the other.

4. The Bondholders talk about reading Section 106(e) “in the context of” the Court’s 

authority to adjust debts and “in the context of” the Oversight Board’s Title II authority. (Opp. 

¶ 11.) For all that context, the Bondholders have neglected to simply apply the law as written. 

Section 314(b)(7) requires the plan of adjustment to be consistent with the certified fiscal plan, not 

a different plan. It is inconceivable Congress wrote that, and enacted Section 106(e) precluding

judicial review of a fiscal plan, with the intent that the Court should not abide by the certified fiscal 

plan for which it granted the Oversight Board “sole discretion” in PROMESA §§ 201(c) and (d).

5. There is no need to delay decision of the Motion. The Bondholders have already 

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submitted expert reports previewing their contention that the Commonwealth and PREPA Fiscal 

Plans were improperly constructed. To adjudicate this material at trial only causes exercise of 

subject matter jurisdiction Congress carved out and an interpretation of PROMESA as if sections 

201(b), 201(c), 201(d), and 314(b)(7) do not exist. 

ARGUMENT

6. The Motion made clear, and the Bondholders do not contest and thus concede, that 

the Oversight Board used the GNP forecast the Bondholders challenge, and related analyses they 

challenge, to meet the Oversight Board’s obligations to formulate a fiscal plan in accordance with

PROMESA § 201(b). (E.g., Motion ¶ 18.) The Bondholders’ complaint that the Oversight Board 

is using its fiscal plans to “adjust debts, by unilaterally setting the amount PREPA can pay,” (Opp. 

¶ 10.), is a complaint they should send to Congress, and cannot send to the Court because Congress 

carved out the Court’s power to preside over challenges to certified fiscal plans. 

7. To no avail, the Bondholders attempt to paint their challenge to the debt 

sustainability analysis in the certified fiscal plan as a challenge to “aspects of the models 

underlying the Board’s Fiscal Plan.” (Id. ¶ 12 (emphasis in original).)

2 The Bondholders’ attempt 

is unavailing because they are not requesting an order determining the certified fiscal plan should 

use a different model. They are requesting an order determining the fiscal plan is wrong because 

its debt sustainability analysis comes up with a purportedly wrong debt amount. Absent such an 

order, the Bondholders cannot have a meritorious confirmation objection that the plan fails to issue 

enough debt. “[Section] 106(e) bars district courts from reviewing the reasons for certification 

2 Bondholders’ experts plainly reject and criticize these models. The suggestion that PREPA 

actually adopts the new models the Bondholders’ experts contrive (such as the “alternative 

forecast” advocated by Dr. Tierney (see Opp. ¶ 12 n.4)) is belied by the PREPA fiscal plan itself. 

(See Motion ¶ 8.) 

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determinations as much as the certification determinations themselves.” Mendez-Nunez v. Fin. 

Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 916 F.3d 98, 113 

(1st Cir. 2019) (emphasis added); see also Ambac Assurance Corp. v. Puerto Rico (In re Fin. 

Oversight & Mgmt. Bd. for P.R.), 297 F. Supp. 3d 269, 289 n.11 (D.P.R. 2018), aff’d, 927 F.3d 

597 (1st Cir. 2019) (Section 106(e) bars challenges to “Oversight Board determinations that are 

inherent in the certification of a Fiscal Plan.”).

8. The Bondholders suggest they are not really challenging the fiscal plans, because, 

they say, if the Court agrees with them that the fiscal plans were wrongly constructed (if, for 

example, the Commonwealth’s GNP forecast were incorrect), then it would be up to the Oversight 

Board, not the Court, to actually discard the fiscal plans. (Opp. ¶ 19.) That construct turns 

PROMESA upside down. The certified fiscal plan’s debt sustainability analysis, combined with 

the Congressional grant to the Oversight Board of “sole discretion” to develop it and the 

requirement that the plan of adjustment be consistent with it, together with the carveout of the 

Court’s power to preside over a challenge to it, all have no meaning whatsoever if the debt 

sustainability analysis is up for grabs as the Bondholders contend. The Bondholders seem to

imagine (i) the Court will decide, for example, that the Oversight Board’s certified “independent 

forecast[ ] of revenue for the period covered by the Fiscal Plan,” PROMESA § 201(b)(1)(H), was

wrong and, at the same time, (ii) the Court’s decision is not a “review [of a] challenge[] to the 

Oversight Board’s certification determination[ ],” PROMESA § 106(e). This makes no sense as a 

matter of statutory interpretation or common sense. If the Court were to decide the Oversight 

Board did a bad job in certifying a fiscal plan, that is a review of the fiscal plan.

3

3 Rossello Nevares v. Fin. Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. 

Bd. for P.R.), 330 F. Supp. 3d 685 (D.P.R. 2018) does not hold otherwise. (Contra Opp. ¶ 14.) 

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9. For all their talk about the purposes and structure of PROMESA (Opp. ¶¶ 9-11) and 

a foray into legislative history about the value of settlement (id. ¶ 13 n.5), the Bondholders fail to

explain why the Court should read into Section 106(e) a carveout applicable in the Title III context. 

Unlike in this Court’s disposition of the motion in limine in the Commonwealth’s Title III case 

(Case No. 17-BK-03283, ECF No. 20146 (D.P.R. Feb. 15, 2022)), no textual conflict between 

Sections 106(e) and 314(b)—or any other statute—requires a carveout to harmonize the 

provisions. On the contrary, harmonization of Section 106(e) with Section 314(b)(7)’s “consistent 

with” element requires that Section 106(e) apply precisely in this context, to bar review of a fiscal 

plan in a confirmation hearing. (Motion ¶ 20.) This has always been the Oversight Board’s and 

its counsel’s position throughout Title III litigation, as the record attests. (Contra Opp. ¶ 17; see 

Opp. Ex. 1.)

10. Confirmation under Title III is a narrower inquiry than confirmation under 11 

U.S.C. § 1129. That is simply the scheme Congress legislated. What “debtors . . . [do] all the 

time”—like when “they must go back to the drawing board and craft plans that are confirmable”—

has no relevance here. (Id. ¶ 19.) Here, if a fiscal plan has been certified, its debt sustainability 

analysis cannot be challenged.4 Notably, the Bondholders nowhere explain what purpose the debt 

sustainability analysis serves, other than limiting the debt to be issued under a Title III plan. If 

That case distinguished between “the Oversight Board’s determination that a plan or budget meets 

the requirements for certification or is compliant with particular aspects of PROMESA Section 

201(b)” (unreviewable) and “litigation seeking clarification as to the effect of particular provisions 

of a certified fiscal plan or budget on preexisting Puerto Rico law, or on the powers of the executive 

and legislative branches of the government of Puerto Rico” (reviewable). Id. at 695. Here, the 

Bondholders’ assertion is that the Oversight Board did not do its job properly under Section 201(b). 

It is therefore a precluded challenge to “the propriety[ ] of the certification of the Fiscal Plan. . . . 

.” Id.

4 That the Oversight Board has the power to change a fiscal plan (see Opp. ¶ 17 n.6) does 

not give the Court that power or the power to review a fiscal plan. It does not have these powers. 

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PREPA proposes a plan issuing less debt than the debt sustainability analysis allows, then the 

Bondholders might argue the plan is not confirmable. But attacking the debt sustainability analysis 

is not available to them. 

11. As mentioned above, the Bondholders’ premise is wrong in any event. There is no 

requirement in PROMESA Title III that a plan of adjustment issue all the debt the debtor can 

afford. That would be totally inconsistent with PROMESA § 314(b)(7) requiring the plan of 

adjustment to be consistent with the fiscal plan. Significantly, PROMESA § 201(b)(1)(I) nowhere 

provides the debt sustainability analysis must yield the maximum amount of debt PREPA can 

afford to issue. Indeed, that would maximize the likelihood of default. As explained above, the 

Commonwealth and people can make a stronger case that to attain fiscal responsibility and market 

access, PREPA should maximize the overhaul of its antiquated and decrepit infrastructure plaguing 

the people with blackouts and brownouts in a hot climate. Indeed, the law has consistently been 

that plans are confirmable even if they do not yield the “best” return to creditors. In re BSA, 642 

B.R. 504, 660 (Bankr. D. Del. 2022), aff’d, 650 B.R. 87 (D. Del. 2023) (“The Plan fosters a result 

consistent with the Code, is proposed for the purpose of reorganizing and delivers value to 

creditors. That there might be another plan, or even a better one, is not grounds to find a lack of 

good faith.”); In re Celotex Corp., 204 B.R. 586, 611–12 (Bankr. M.D. Fla. 1996) (“The Court 

need not and ought not consider if a proposed plan is the ‘best’ plan of reorganization that could 

be promulgated, providing for the highest return to creditors of the Debtors’ Estates.”); Fin. Sec. 

Assurance, Inc. v. T-H New Orleans Ltd. P’ship (In re T-H New Orleans Ltd. P’ship), 188 B.R. 

799, 806 (E.D.La. 1995), aff’d, 116 F.3d 790 (5th Cir. 1997) (“The plan need not be the best 

alternative for the creditor, but only one that is fair, equitable and feasible under the Code.”). This 

is particularly true in PROMESA, where this Court and the First Circuit have repeatedly observed 

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“[t]he goal of these PROMESA cases ... is not merely to maximize creditors’ recoveries.” In re 

Fin. Oversight & Mgmt. Bd. for P.R., 432 F. Supp. 3d 25, 30 (D.P.R. 2020), aff'd, 954 F.3d 1 (1st 

Cir. 2020)); see, also Findings of Fact and Conclusions of Law in Connection with Confirmation 

of the Modified Eighth Amended Title III Joint Plan of Adjustment of the Commonwealth of Puerto 

Rico, the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, 

and the Puerto Rico Public Buildings Authority [Case No. 17-bk-3283, ECF No. 19812] ¶ 211 

(The best interests test in PROMESA does not to “impose a litmus test or establish a floor for 

creditor recoveries.”). 

12. The Bondholders effort to thwart the certified fiscal plan’s debt sustainability 

analysis by purporting to enforce the fair and equitable requirement quickly fails under common 

sense and the General/Specific Canon. See Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 183-188 (2012). Common sense dictates that Congress would not 

impose a confirmation requirement that would render a plan unconfirmable. But that is exactly 

what the Bondholders contend. When Congress writes into PROMESA that the plan of adjustment 

must be consistent with the certified fiscal plan, it defies common sense and the canon that the 

general fair and equitable requirement can mean the plan of adjustment cannot be consistent with 

the debt sustainability analysis in the fiscal plan. Besides, the fair and equitable requirement is 

known for imposing the absolute priority requirement whereby junior classes cannot be paid until 

senior classes are paid in full. To stretch the fair and equitable requirement into forcing the 

Oversight Board to change its debt sustainability analysis to have a confirmable plan would be 

contrary to fundamental statutory interpretation. It does not simply violate the General/Specific 

Canon, it violates others. For instance, it violates the Harmonious Reading Canon that one part of 

a statute is not to be read to defeat another because section 314(b)(7) and the fair and equitable 

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requirement should be interpreted to render them compatible. Id. at 180-182. 

13. The Motion is ripe. (Contra Opp. ¶¶ 20-22.) The Bondholders’ expert reports were 

filed in April [ECF No. 3424], rebuttals were filed in May [ECF No. 3503], and Dr. Edwards, Dr. 

Tierney, Dr. Chakraborty have all been deposed. Their reports, testimony, and the Opposition 

establish the Bondholders intend to challenge fiscal plans the Oversight Board has certified for the 

Commonwealth and PREPA. That evidence is irrelevant to the confirmation proceedings because 

PROMESA § 314(b)(7) requires that the plan of adjustment be consistent with the certified fiscal 

plan, and that plan sets the debt sustainability. Additionally, the Court has no jurisdiction to review 

any challenge to the Oversight Board’s certification determinations, but even if it did, the other 

sections of PROMESA discussed above require adherence to the debt sustainability analysis in the 

certified fiscal plan. 

CONCLUSION

14. For the foregoing reasons and those set forth in the Motion, the Oversight Board 

respectfully requests the Court enter the Proposed Order excluding all evidence that challenges 

the Oversight Board’s certification determinations inherent in the Fiscal Plans and grant such 

other and further relief as is just.

[Remainder of Page Intentionally Left Blank]

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Dated: June 20, 2023

New York, New York

Respectfully submitted,

/s/ Martin J. Bienenstock

Martin J. Bienenstock

Paul V. Possinger

Ehud Barak

Margaret A. Dale

Michael T. Mervis

Julia D. Alonzo

Laura Stafford

Adam Farbiarz

(Admitted Pro Hac Vice)

PROSKAUER ROSE LLP

Eleven Times Square

New York, NY 10036

Tel: (212) 969-3000

Fax: (212) 969-2900

Attorneys for the Financial Oversight and 

Management Board, as representative for 

PREPA

/s/ Hermann D. Bauer 

Hermann D. Bauer

USDC No. 215205

O’NEILL & BORGES LLC

250 Muñoz Rivera Ave., Suite 800

San Juan, PR 00918-1813

Tel: (787) 764-8181

Fax: (787) 753-8944

Co-Attorneys for the Financial 

Oversight and Management Board, as 

representative for PREPA

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CERTIFICATE OF SERVICE

I hereby certify that, on this same date, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which will send notifications of such filing to all 

CM/ECF participants in this case. 

/s/ Hermann D. Bauer 

Hermann D. Bauer

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