IN THE 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)

NATIONAL PUBLIC FINANCE GUARANTEE CORPORATION’S 

OBJECTION TO THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD 

FOR PUERTO RICO’S MOTION FOR ORDER 

APPROVING PROCEDURE TO RESOLVE COMMONWEALTH-COFINA DISPUTE 

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

listed as a bankruptcy case number due to software limitations 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); and 

(ii) Puerto Rico Sales Tax Financing Corporation (“COFINA”) (Bankruptcy Case No. 17 BK 

3284) (Last Four Digits of Federal Tax ID: 8474).

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TABLE OF CONTENTS

Page

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

COFINA SENIOR REPRESENTATIVES’ JOINT COUNTER-PROPOSAL.............................2

BACKGROUND ........................................................................................................................3

I. The Conflicted Oversight Board Certifies a Non-Compliant Fiscal Plan That 

Disrespects the COFINA Bondholders’ Lawful Liens and Then Files a Suspect 

Title III Petition for COFINA ..........................................................................................3

II. The Oversight Board’s Proposal ......................................................................................5

ARGUMENT..............................................................................................................................6

I. The Oversight Board’s Proposal Merely Furthers The Disabling Conflict That It 

Has Finally Conceded......................................................................................................6

A. The Oversight Board’s Proposal Would Not Resolve the Inherent Conflict 

by the Oversight Board and Its Advisors..............................................................7

B. The Oversight Board’s Conflict Contaminates the Entire COFINA Title III 

Proceeding ...........................................................................................................9

II. Litigation of the Commonwealth-COFINA Dispute Should Not Be Expedited 

Unless the Independent Commonwealth Agent Establishes Grounds for 

Expedition After Providing the Independent COFINA Agent and COFINA 

Creditors Discovery.........................................................................................................9

CONCLUSION.........................................................................................................................11

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TABLE OF AUTHORITIES

Page(s)

Cases

In re Ampal-Am. Israel Corp.,

554 B.R. 604 (S.D.N.Y. 2016), aff’d, 

No. 16-2855-BK, 2017 WL 2274279 (2d Cir. May 24, 2017)................................................8

In re BH & P, Inc.,

103 B.R. 556 (Bankr. D.N.J. 1989), aff’d in part, rev’d in part, 

119 B.R. 35 (D.N.J. 1990), aff’d, 949 F.2d 1300 (3d Cir. 1991).............................................7

Dye v. Brown (In re AFI Holding, Inc.),

355 B.R. 139 (B.A.P. 9th Cir. 2006), aff’d and adopted, 530 F.3d 832 (9th Cir. 2008) ..........8

In re Martin,

817 F.2d 175 (1st Cir. 1987)..................................................................................................8

Woods v. City Nat’l Bank & Trust Co. of Chicago,

312 U.S. 262 (1941)..............................................................................................................7

Statutes

48 U.S.C. § 2162.........................................................................................................................4

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TO THE HONORABLE COURT:

National Public Finance Guarantee Corporation (“National”),2 by and through its 

undersigned counsel, hereby files this objection to the Financial Oversight and Management 

Board for Puerto Rico’s (the “Oversight Board”) Motion for Order Approving Procedure to 

Resolve Commonwealth-COFINA Dispute [ECF No. 303] (the “Motion”), and respectfully 

states as follows:

PRELIMINARY STATEMENT

By filing the Motion, the Oversight Board has finally conceded the point that National 

and other creditors have been making for months: the Oversight Board and its counsel have an 

irreconcilable conflict and cannot fairly represent the interests of the Puerto Rico Sales Tax 

Financing Corporation (“COFINA”).3 But after acknowledging the conflict, the Oversight 

Board’s proposal fails to cure it. It asks the Court to vest the Oversight Board—the conflicted 

party—with both the ability to appoint an “independent Oversight Board agent” to serve as 

COFINA’s representative and veto power over any settlement negotiated by that agent. 

Accepting this proposal would bless the conflict instead of resolving it. Simply put, given its 

now admitted conflict, the Oversight Board cannot continue to pull COFINA’s strings. 

The Oversight Board’s Motion also asks the Court to expedite litigation of the so-called 

“Commonwealth-COFINA dispute” because the Commonwealth allegedly faces imminent cash 

 2 National insures more than $690 million of general obligation bonds issued by the 

Commonwealth and more than $1.1 billion in senior sales tax revenue bonds issued by COFINA, 

and has the right to assert bondholders’ rights in these Title III Cases under applicable bond and 

insurance documents. National and other COFINA creditors hold liens in revenues that were 

pledged as security for the bonds issued by COFINA.

3 Hours before this objection was due, the Oversight Board provided still further evidence of the 

conflict by providing an extension to respond to the Motion to general obligation bondholders 

but not to COFINA bondholders. 

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management issues. This request, which serves only the Commonwealth’s interests, just 

exacerbates the admitted conflict even further. The Oversight Board asks the Court to order 

expedited treatment before an independent COFINA agent has been appointed, without any 

evidentiary showing to support the Oversight Board’s assertions. 

As set forth more specifically below, the independent COFINA agent should be selected 

by COFINA creditors, not by the Oversight Board. In addition to its role in the CommonwealthCOFINA dispute, this agent should be empowered to review all actions taken by the conflicted 

Oversight Board “on behalf of” COFINA. 

Accordingly, National respectfully requests that the Court deny the Oversight Board’s 

Motion and, instead, appoint a COFINA agent according to the procedures outlined below. 

COFINA SENIOR REPRESENTATIVES’ JOINT COUNTER-PROPOSAL

The COFINA Senior Bondholders’ Coalition, Ambac Assurance Corp., and National 

(collectively, the “COFINA Senior Representatives”) have been working diligently to coordinate 

a joint response to the Motion and, while unable to reach complete agreement on every issue, 

particularly given the short time frame in which to object, the COFINA Senior Representatives 

have identified several areas upon which they unanimously agree.

4

 The COFINA Senior 

Representatives submit that any order approving the Motion (the “Procedures Order”) should 

include the following: 

• The COFINA Senior Representatives Must Unanimously Agree on the 

Selection of A COFINA Agent. The COFINA Agent must be an individual upon 

whom the COFINA Senior Representatives unanimously agree. The COFINA 

Senior Representatives will submit the nominee to serve as the COFINA Agent 

within 10 days of entry of the Procedures Order, who shall be appointed as the 

COFINA Agent. 

 4 Attached hereto please find the COFINA Senior Representatives’ Order Approving Procedure 

To Resolve Commonwealth-Cofina Dispute (attached hereto as Exhibit A). 

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• Court Approval of Any Settlement of the Commonwealth-COFINA Dispute 

Shall Be Required. Any settlement reached pursuant to the Procedures Order 

shall not be effective unless and until the Court has entered an order approving 

such settlement.

• COFINA Senior Representatives Shall Be Granted Intervention in Any 

Litigation Commenced Pursuant to the Procedures Order. The COFINA Senior 

Bondholders’ Coalition, Ambac, and National shall be authorized to intervene in 

any litigation commenced pursuant to the Procedures Order without any further 

order of the Court.

• The COFINA Agent Shall Owe Fiduciary Duties to COFINA. The COFINA 

Agent shall owe fiduciary duties to COFINA, and not to any individual creditor or 

creditor group. For the avoidance of doubt, no Agent shall have the authority to 

litigate or settle any matter other than the Commonwealth-COFINA Dispute.

• Pre-Petition Mediation Shall Resume. The mediation that began prior to the 

commencement of the Title III Cases among the COFINA senior bondholders, 

COFINA subordinate bondholders, monolines, GO Bondholders, and the 

Oversight Board, among others, shall resume promptly. The mediator shall be 

selected from among the members of the Court-appointed mediation team.

5

BACKGROUND

I. The Conflicted Oversight Board Certifies a Non-Compliant Fiscal Plan That 

Disrespects the COFINA Bondholders’ Lawful Liens and Then Files a Suspect Title 

III Petition for COFINA

The Oversight Board’s disabling conflict has been apparent since its inception. During 

the development of the Fiscal Plan, the Oversight Board flatly refused to engage in good-faith 

discussions with National or, for that matter, any creditor, and repeatedly ignored creditor 

suggestions and requests for information. See First Day Hr’g Tr. at 138–40, 143. The only party 

the Oversight Board was apparently willing to consult was the Puerto Rico Fiscal Agency and 

 5 While the Commonwealth and Oversight Board did not engage in good faith mediation 

discussions, National is amenable to continuing that mediation process, but in order for there to 

be a successful mediation, the Commonwealth and Oversight Board must provide appropriate 

financial disclosures. Their repeated refusal to provide appropriate disclosures has prevented 

any serious settlement discussions, and if not addressed, will only result in another failed attempt 

at mediation.

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Financial Advisory Authority (“AAFAF”) and its counsel, which is similarly conflicted. Cf. id.

at 25:23–25 (counsel for AAFAF stating that “[t]he fiscal plan as certified by the Oversight 

Board on March 13 is a product of cooperative discussions and dialogue between AAFAF and 

the Oversight Board”). 

Ultimately, the Oversight Board certified a non-compliant and unconstitutional Fiscal 

Plan that, as the Court already noted, assumes that the Commonwealth can seize revenues 

pledged to COFINA bondholders. See First Day Hr’g Tr. at 50:6–8 (“[t]he Commonwealth plan 

doesn’t work unless the COFINA funds can be invaded.”); cf. Assured Guaranty Corp., et al. v. 

Commonwealth of Puerto Rico, et al. (Case No. 17-00125, Dkt. No. 1). 

Needless to say, a Fiscal Plan that raids COFINA’s funds is not in the interest of 

COFINA or any of its stakeholders. But after certifying the Fiscal Plan and filing a Title III case 

as representative of the Commonwealth, the Oversight Board relied on the same Fiscal Plan to 

file a Title III case as representative of COFINA. And it did so even though COFINA is a fully 

functioning and fully solvent entity with a spotless payment record.6

 National and other 

COFINA creditors immediately pointed out the conflict by the Oversight Board and its advisors. 

See, e.g., First Day Hr’g Tr. at 142:5–7 (“I think the conflict is just starkly in front of us today, 

and I just think it’s one of the important things that needs to be addressed as we go forward.”);

id. at 48–49, 53–54, 59–62, 142; see also May 30, 2017 Hr’g Tr. at 39:19-40:4 (“One of the 

issues that we raised with your Honor before has to deal with the conflict that we perceive 

 6 PROMESA expressly requires, as a precursor to a Title III petition, that a debtor “desires to 

effect a plan to adjust its debts.” 48 U.S.C. § 2162. But did COFINA, a fully solvent entity, ever 

independently express a desire to restructure its debt? Or did AAFAF, in concert with the 

Oversight Board, make this decision for COFINA and then base the Title III case on a Fiscal 

Plan that assumes all the assets pledged to COFINA creditors are handed over to the 

Commonwealth instead? These are questions the COFINA Agent, creditors and the Court must 

understand and seriously consider. 

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between AAFAF and the Oversight Board on the one hand and their claim to represent the 

interests of COFINA on the other. COFINA, as an entity, is missing from this hearing today. As 

your Honor knows, the resolution commits COFINA to defending the pledge on the sales tax 

and, therefore, COFINA has fiduciary duties, as well as contractual duties, that we think are 

irreconcilably conflicted from those of the Oversight Board and AAFAF.”). 

In response, the Oversight Board asserted at the First Day Hearing that COFINA has an 

independent board of directors. First Day Hr’g Tr. at 62:7–8 (“COFINA already has an 

independent board, and by that I mean the government of Puerto Rico can’t tell it what to do.”); 

see id. at 19:2-6.

7

 Nevertheless, acknowledging that the purportedly “independent” board might 

not be quite independent enough, see id. at 62:14–15, the Oversight Board represented that it 

planned to proffer a solution to the Court that would ensure vigorous litigation on behalf of 

COFINA, see id. at 18:25–19:6, 50:12–15, 62:25–63:4.8 National (among others) stated that any 

party acting on behalf of COFINA must be satisfactory to National and other creditors. Id. at 

59:25–60:2 (“[I]f there’s going to be a fiduciary for COFINA, we want to have a part in the 

selection and understanding of the true independence.”).

II. The Oversight Board’s Proposal

On June 10, 2017, the Oversight Board filed its proposal to resolve the CommonwealthCOFINA dispute. The Oversight Board’s Motion seeks Court approval of “independent 

Oversight Board agents” to act on behalf of COFINA and the Commonwealth—agents that the 

Oversight Board will appoint. The conflicted Oversight Board also proposes to retain complete 

 7 On May 19, 2017, National sent a letter to COFINA, in which National requested a meeting 

with the COFINA Board to discuss the representation of COFINA’s interests. See May 19, 2017 

Letter (attached hereto as Exhibit B). As of the date of this filing, National has not received a 

response.

8 The Oversight Board reiterated its intention to submit such a proposal at the May 30, 2017 

Interpleader Hearing. See May 30, 2017 Hr’g Tr. at 36:8–12. 

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control over any settlement of litigation between the COFINA agent and the Commonwealth 

agent. See Motion at 16 (a settlement between the agents “shall only be effective upon . . . 

consent of the Oversight Board”). And the Oversight Board’s proposal assumes—without any 

evidentiary showing—that there is a fiscal emergency that requires the entire litigation to be 

resolved or settled by November 1, 2017.

9 This expedited treatment is supposedly needed to 

serve only the Commonwealth’s interests, but the conflicted Oversight Board accepts, without 

explanation, the need for expedition on behalf of COFINA as well. 

The Oversight Board is admittedly tainted with conflict, and that conflict has infected all 

matters leading up to and within these Title III Cases. The only remedy can be to appoint a truly 

independent third party who will act in the best interests of COFINA, with no allegiance to the 

Commonwealth or anyone else.10

ARGUMENT

I. The Oversight Board’s Proposal Merely Furthers the Disabling Conflict That It Has 

Finally Conceded

By the Motion, the Oversight Board and its counsel have finally and publicly conceded

that an inherent conflict of interest exists due to their representation of both the Commonwealth 

and COFINA in these Title III Cases. See Motion at 13 (arguing that its proposed procedure will 

ensure, among other things, that COFINA’s “rights are protected and independently represented” 

 9 According to the Oversight Board, “[t]ime is of the essence to resolve the CommonwealthCOFINA dispute because, if the Commonwealth is not entitled to any of the Pledged Sales 

Taxes, it will, absent borrowing or further slashing expenses to a counterproductive extent, face 

acute cash management issues shortly after November 1, 2017.” Motion at 12. Neither the

Oversight Board nor the Commonwealth has provided any information that would allow 

creditors to test the validity of this claimed urgency.

10 National does not seek to modify or alter how the Commonwealth’s agent is appointed. 

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(emphasis added)). Now that its conflict is acknowledged, the Oversight Board cannot exert any 

control over the outcome of the Commonwealth-COFINA dispute. 

A. The Oversight Board’s Proposal Would Not Resolve the Inherent Conflict by 

the Oversight Board and Its Advisors 

Instead of solving the conflict, the Oversight Board’s proposal doubles down on it. It 

proposes not only that the Oversight Board shall select COFINA’s independent agent but also 

that the Oversight Board will have ultimate settlement authority over any negotiated resolution. 

See Proposed Order at 3; Motion at 13 (admitting that the Oversight Board’s proposed 

procedures would “mak[e] sure that the Oversight Board remains in control of the overall 

restructuring of the Commonwealth and its instrumentalities”). The Oversight Board’s proposal 

to “resolve” the conflict issue is, therefore, just a fig leaf. In one breath it admits the inherent 

conflict that disables the Oversight Board and its advisors, and in the next it asks the Court to 

ensure that these same conflicted parties remain involved in—and in control of—all material

aspects of the Commonwealth-COFINA Dispute.

The proposal therefore contravenes basic notions of conflicts and ethics. As the old

saying goes, “[n]o man can serve two masters.” In re BH & P, Inc., 103 B.R. 556, 560 (Bankr. 

D.N.J. 1989) (quoting Matthew 6:24), aff’d in part, rev’d in part, 119 B.R. 35 (D.N.J. 1990), 

aff’d, 949 F.2d 1300 (3d Cir. 1991). No less so in bankruptcy court. See id.; Woods v. City Nat’l 

Bank & Trust Co., 312 U.S. 262, 269 (1941) (“A fiduciary who represents security holders in a 

reorganization may not . . . insist[] that although he had conflicting interests, he served his 

several masters equally well or that his primary loyalty was not weakened by the pull of his 

secondary one. Only strict adherence to these equitable principles can keep the standard of 

conduct for fiduciaries ‘at a level higher than that trodden by the crowd.’”). 

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But as long as the Oversight Board and its counsel retain any control or influence over 

the Commonwealth-COFINA dispute, they will be presented with choices that could help one 

debtor at the expense of the other. Because, as the Oversight Board itself acknowledges, the 

interests of the Commonwealth and COFINA are diametrically opposed, the Oversight Board 

simply cannot have any involvement in selecting the COFINA Agent, much less be the sole 

appointer and supervisor of the “independent” agents tasked with resolving that dispute. See Dye 

v. Brown (In re AFI Holding, Inc.), 355 B.R. 139, 147-48 (B.A.P. 9th Cir. 2006), aff’d and 

adopted, 530 F.3d 832 (9th Cir. 2008) (A fiduciary “must have no interest adverse to the 

estate.”). 

The Oversight Board’s actions also trample on the statutory and contractual duties 

COFINA owes to creditors. Under Section 705 of the Amended and Restated COFINA Bond 

Resolution of June 10, 2009 (the “COFINA Resolution”), which was executed pursuant to 

COFINA’s enabling legislation, Act 91-2006, COFINA pledged to, at all times, “defend, 

preserve and protect the pledge of the Pledged Property and all the rights of the . . . Bondowners” 

against “all claims and demands of all persons whomsoever.” COFINA Resolution § 705. The 

independent COFINA agent should have the same duties. To ensure that those duties are 

fulfilled, the conflicted Oversight Board cannot exert any influence over the independent 

COFINA agent or control the resolution of the Commonwealth-COFINA dispute. 

In short, the Oversight Board’s acknowledgment of its inability to advocate on behalf of 

COFINA—coupled with its predilection toward the Commonwealth—should necessarily 

disqualify the Oversight Board and its advisors from continued participation. See In re Martin, 

817 F.2d 175, 182–83 (1st Cir. 1987) (“The bankruptcy judge is on the front line, in the best 

position to gauge the ongoing interplay of factors and to make the delicate judgment calls which 

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such a decision entails. If he perceives a materially adverse interest, he has at his disposal an 

armamentarium of permissible remedies, including (but by no means limited to) disqualification, 

disallowance of all or some fees, and invalidation of the security interest.”); In re Ampal-Am. 

Israel Corp., 554 B.R. 604, 618 (S.D.N.Y. 2016) (“A court should disqualify counsel where it is 

plausible that the representation of another interest may cause the debtor’s attorneys to act any 

differently than they would without that other representation.” (internal quotation marks 

omitted), aff’d, No. 16-2855-BK, 2017 WL 2274279 (2d Cir. May 24, 2017).

B. The Oversight Board’s Conflict Contaminates the Entire COFINA Title III 

Proceeding 

The Oversight Board’s admitted conflict not only disqualifies the Board from all future 

involvement in the Commonwealth-COFINA dispute but also calls into question every decision

that has been made on COFINA’s behalf, including the decision to file a Title III petition for 

COFINA. Indeed, the Oversight Board’s conflict of interest appears to be the only plausible 

motivation behind that filing. COFINA has plenty of money to pay its debts. If it were truly 

independent, it would have had no reason to file a Title III petition at all. And it certainly would 

not have done so based on a Fiscal Plan that assumes that all its money is taken away from it. 

For this reason and others, National submits that the true “gating issue” is not, as the 

Oversight Board urges, the Commonwealth-COFINA dispute but, rather, the validity of the 

Fiscal Plan and, relatedly, the COFINA Title III petition. To that end, National and other 

creditors have challenged the Fiscal Plan and expect to object to the petition, and National 

respectfully requests that the Court and the COFINA Agent consider those matters before 

addressing the merits of the Commonwealth-COFINA dispute. 

II. Litigation of the Commonwealth-COFINA Dispute Should Not Be Expedited Unless 

the Independent Commonwealth Agent Establishes Grounds for Expedition After 

Providing the Independent COFINA Agent and COFINA Creditors Discovery

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In light of the Oversight Board’s acknowledged conflict, the Court should also reject the 

Oversight Board’s implicit urgent motion for expedition of forthcoming litigation between the 

appointed Commonwealth and COFINA agents.

The Motion states that the Commonwealth-COFINA dispute must be resolved right away

because the Commonwealth may otherwise “face acute cash management issues shortly after 

November 1, 2017.” Motion at 12. This request can only be made to serve the Commonwealth’s 

interests, not COFINA’s. But the Motion asks the Court to grant the implicit request for 

expedition without any evidentiary showing from the Commonwealth, and before an independent 

COFINA agent has even been appointed. In effect, the Oversight Board in its role as 

Commonwealth representative demands relief without even trying to prove the factual predicate 

for it, and at the same time the Oversight Board in its role as COFINA representative concedes 

that the relief is needed. This is yet another example of how even after owning up to its conflict 

the Oversight Board continues to try to exert control over the Commonwealth-COFINA dispute.

If there is to be a request for expedition of litigation between the Commonwealth and 

COFINA, the request should come from the Commonwealth’s independent agent, not from the 

conflicted Oversight Board. And COFINA’s independent agent and the COFINA creditors must 

be given a fair opportunity to oppose that request. If the Commonwealth agent asserts the same 

ground for expedition as the Oversight Board has—an urgent fiscal problem by November 1—

the COFINA agent and creditors should be afforded discovery to test the veracity of this 

assertion. COFINA creditors, among others, have long been seeking similar financial 

information from the Oversight Board and the Oversight Board has yet to provide any. In 

reviewing any request for expedited treatment, the Court should also consider alternatives to 

expedition such as the availability of financing from COFINA creditors or other lenders. 

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CONCLUSION

For the foregoing reasons, the Oversight Board’s Motion should be denied and the Court 

should instead order the appointment of a COFINA agent and other relief as set forth herein.

RESPECTFULLY SUBMITTED, in San Juan, Puerto Rico, this 16th day of June, 

2017.

WE HEREBY CERTIFY that on this same date, we electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, which will provide notice to all counsel 

of record.

Dated: June 16, 2017

San Juan, Puerto Rico

/s/ Eric Pérez-Ochoa

Eric Pérez-Ochoa 

USDC-PR No. 206314

/s/ Alexandra Casellas-Cabrera

Alexandra Casellas-Cabrera 

USDC-PR. No. 301010

/s/ Lourdes Arroyo-Portela

Lourdes Arroyo Portela 

USDC-PR 226501

ADSUAR MUÑIZ GOYCO.

SEDA & PEREZ-OCHOA, P.S.C.

208 Ponce de León Avenue, Suite 1600

San Juan, Puerto Rico 00936

Telephone: 787. 756.9000

Facsimile: 787. 756.9010

Email: epo@amgprlaw.com

acasellas@amgprlaw.com

larroyo@amgprlaw.com

– and –

Marcia Goldstein (admitted pro hac vice)

Jonathan Polkes (admitted pro hac vice)

Salvatore A. Romanello (admitted pro hac vice)

Gregory Silbert (admitted pro hac vice)

Kelly DiBlasi (admitted pro hac vice)

Gabriel A. Morgan (admitted pro hac vice)

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WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

Telephone: (212) 310-8000

Facsimile: (212) 310-8007

Email: marcia.goldstein@weil.com

jonathan.polkes@weil.com

salvatore.romanello@weil.com

gregory.silbert@weil.com

kelly.diblasi@weil.com

gabriel.morgan@weil.com

Attorneys for National Public Finance Guarantee 

Corporation

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