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EXPLORING CHAPTER 11 REFORM: 

CORPORATE AND FINANCIAL INSTITUTION 

INSOLVENCIES; TREATMENT OF DERIVATIVES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MARCH 26, 2014 

Serial No. 113–90 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND ANTITRUST LAW

SPENCER BACHUS, Alabama, Chairman 

BLAKE FARENTHOLD, Texas, Vice-Chairman 

DARRELL E. ISSA, California 

TOM MARINO, Pennsylvania 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

JASON T. SMITH, Missouri 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

DANIEL FLORES, Chief Counsel 
(III) 

C O N T E N T S 

MARCH 26, 2014 

Page 

OPENING STATEMENTS 

The Honorable Spencer Bachus, a Representative in Congress from the State 

of Alabama, and Chairman, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ........................................................................................ 1 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Tennessee, and Ranking Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ................................................. 3 

WITNESSES 

The Honorable Christopher S. Sontchi, United States Bankruptcy Judge for 

the District of Delaware, Wilmington, DE 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

Seth Grosshandler, Partner, Cleary Gottlieb Steen & Hamilton LLP, New 

York, NY 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

Jane Lee Vris, Partner and General Counsel, Millstein & Co., Washington, 

DC 

Oral Testimony ..................................................................................................... 51 

Prepared Statement ............................................................................................. 53 

Thomas H. Jackson, Distinguished University Professor & President Emeritus, University of Rochester, Rochester, NY 

Oral Testimony ..................................................................................................... 94 

Prepared Statement ............................................................................................. 96 

Michelle M. Harner, Professor of Law, Director, Business Law Program, University of Maryland Francis King Carey School of Law, Baltimore, MD 

Oral Testimony ..................................................................................................... 129 

Prepared Statement ............................................................................................. 131 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 161 

Response to Questions for the Record from the Honorable Christopher S. 

Sontchi, United States Bankruptcy Judge for the District of Delaware, 

Wilmington, DE .................................................................................................... 163 

Questions for the Record submitted to Seth Grosshandler, Partner, Cleary 

Gottlieb Steen & Hamilton LLP, New York, NY ............................................... 171 

Response to Questions for the Record from Jane Lee Vris, Partner and General Counsel, Millstein & Co., Washington, DC ................................................ 172 

Response to Questions for the Record from Thomas H. Jackson, Distinguished 

University Professor & President Emeritus, University of Rochester, Rochester, NY ............................................................................................................... 176 
Page

IV 

Response to Questions for the Record from Michelle M. Harner, Professor 

of Law, Director, Business Law Program, University of Maryland Francis 

King Carey School of Law, Baltimore, MD ........................................................ 179 
(1) 

EXPLORING CHAPTER 11 REFORM: 

CORPORATE AND FINANCIAL INSTITUTION 

INSOLVENCIES; TREATMENT OF DERIVATIVES 

WEDNESDAY, MARCH 26, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 4 p.m., in room 2141, 

Rayburn Office Building, the Honorable Spencer Bachus (Chairman 

of the Subcommittee) presiding. 

Present: Representatives Bachus, Marino, Holding, Collins, Johnson, and Jeffries. 

Staff present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Anthony Grossi, Counsel; Jaclyn Louis, Legislative Director for Rep. Marino; Jon Nabavi, Legislative Director for Rep. Holding; Jennifer Lackey, Legislative Director for Rep. Collins; Ashley 

Lewis, Clerk; (Minority) Susan Jensen, Counsel; Norberto Salinas, 

Counsel; and Slade Bond, Counsel; and Rosalind Jackson, Professional Staff Member. 

Mr. BACHUS. The Subcommittee on Regulatory Reform, Commercial and Antitrust Law hearing will come to order. Without objection, the Chair is authorized to declare recesses of the Committee 

at any time. 

I want to welcome our witnesses. This is a little unusual to have 

a 4 hearing, but we have had other scheduling difficulties, so we 

apologize. And there may be a vote on the floor starting fairly soon, 

so I am going to read my opening statement as quick as I can and 

then recognize the Ranking Member, and then we will go to the introduction of our panelists. 

And as Chairman of the Financial Services Committee, obviously 

I had a lot of exposure to these same issues back in 2008, 2009. 

And it is a very important issue, and I know there was a lot of good 

work done bringing us to this hearing by the panelists. And it is 

a real esteemed body of experts that we have here today. 

An integral component of the American economy is the ability of 

companies to turn to chapter 11 of the Bankruptcy Code to overcome unexpected financial troubles. These companies may use 

Chapter 11 to restructure their debt obligations while continuing 

their business operations, which preserves jobs and increases the 
2 

value of return to the company’s creditors, suppliers, customers, 

and the American economy. 

Meanwhile, creditors of companies rely on Chapter 11 to assess 

the risks associated with their investment and can depend on 

Chapter 11’s transparent judicial process to gain a level of certainty regarding their potential recoveries from a bankrupt business. Chapter 11 has evolved since its inception and has adapted 

to changing to changing and emerging markets. It may be time for 

that again. 

Thirty years ago companies did not have complex capital structures with layers of intertwined debt, nor did a robust derivatives 

and repurchase agreement market exist. Similarly, the participants 

in the Chapter 11 process have become increasingly sophisticated. 

Given the constantly developing law and related practices, it is important that the Committee undertake a periodic review of the application of Chapter 11 and related issues. 

In part to assist Congress and this Committee’s oversight of 

Chapter 11, the American Bankruptcy Institute has a similar collection of premiere bankruptcy judges, practitioners, professionals, 

and academics to discuss and debate wide-ranging issues related to 

Chapter 11. While their process is not complete, it will be helpful 

to hear from the ABI regarding their review of the issues that have 

played a central role in the process, and whether there is any 

emerging consensus on particular issues. We are grateful for the 

work that ABI has completed today. I look forward to their report 

at the end of this year. 

In connection with its ongoing oversight of bankruptcy issues, 

the Committee recently held a hearing on whether the Bankruptcy 

Code could be improved to better facilitate the resolution of a financial institution’s insolvency. The witnesses at that hearing 

unanimously agreed that the Bankruptcy Code could be enhanced 

and reformed to achieve this goal. 

Today we will continue this discussion by further examining 

what types of amendments to the Bankruptcy Code and potentially 

Chapter 11 would assist with an efficient, successful resolution of 

a financial institution. The bankruptcy process has long been heralded as the primary means of resolving distress companies’ insolvencies because of its established history of laws and impartial administration. 

It is our responsibility to ensure that the Bankruptcy Code has 

all the tools necessary to address the unique issues presented by 

financial institutions’ insolvency. Today’s hearing should assist the 

Committee in discharging this responsibility. 

An issue that could impact the ability of the Bankruptcy Code to 

effectively administer financial institutions’ bankruptcy is the nature of existing safe harbors for certain financial contracts. These 

safe harbors have been expanded over time, and now apply to a 

wide variety of financial contracts. 

One of the primary rationales for creating the safe harbors was 

to prevent contagion of risk in the financial market. Given the recent financial crisis, it would be beneficial to review the existing 

safe harbors, their effectiveness, and the effect of their continued 

expansion. Safe harbors have a broad impact on liquidity in the 
3 

short-term financial markets. And we will be mindful of this impact as we conduct our review. 

Today’s witnesses collectively have decades of experience on 

these issues, and I look forward to hearing their testimony. 

At this time, I recognize the Ranking Member, Mr. Hank Johnson of Georgia, for his opening statement. 

Mr. JOHNSON. Thank you, Mr. Chairman. Before I begin, I would 

like to take a moment to acknowledge the tragic landslide that occurred this past weekend in Oslo, Washington—excuse me—Oso, 

Washington. Oso is the congressional district of Suzan DelBene, 

our colleague on this Subcommittee. I know that Susan cannot be 

with us today because she is doing everything back home to help 

those in need, and we empathize with her and her community. 

They are going through so much pain and loss. And our thoughts 

and prayers are with the community of Oso, the brave rescuers and 

search parties, and also our colleagues from the State of Washington. 

Now, turning to today’s hearing, I would like to thank Chairman 

Bachus for convening this hearing on such an important topic. This 

July will mark the 4th year since President Obama signed the 

Dodd-Frank Act into law to address the financial crisis that nearly 

brought this country to its knees. Though imperfect, passing the 

Dodd-Frank Act was a crucial step in resetting our Nation’s economic course. 

It addressed the root cause of the financial crisis by reigning in 

too big to fill financial institutions on Wall Street that caused immeasurable hardship to so many American families. It is my belief 

that we could have done more to create financial stability by limiting the size of the largest institutions and holding wrongdoers accountable, both civilly as we have done and also criminally as we 

have not done. 

But opportunities remain to safeguard the public through congressional and regulatory oversight. Today, the Subcommittee is 

exercising its important responsibility of oversight by asking how 

best to perfect and strengthen the Bankruptcy Code to create soft 

landings instead of financial crashes. 

While we may not always agree on matters before this Subcommittee, today’s hearing presents an opportunity to forge a bipartisan consensus and cooperation. I hope that this cooperation 

will guide us to explore the strengths and weaknesses of the Bankruptcy Code in other areas, particularly consumer bankruptcy. 

Perhaps no other area is as important to most Americans as the 

exponential growth and crippling effects of the student loan debt 

that many face. According to the most recent quarterly report by 

the Federal Reserve Bank of New York, student loan debt has tripled in the last decade, rising to over $1 trillion. In my home State 

of Georgia, students graduate with an average of $23,089 according 

to the Institute of College Access and Success. 

And while more people are defaulting on student loans than any 

other form of debt, these loans are practically non-dischargeable. 

Why? Although unsecured debt is typically dischargeable in bankruptcy, the Bankruptcy Code has a specific carve-out that does not 

exempt student loans unless the debtor is able to demonstrate that 
4 

continued repayment of the debt would pose an undue hardship on 

the debtor. 

This standard is nearly impossible for distressed borrowers to establish. In fact, earlier this month, Reuters reported that in 2007, 

courts granted some form of relief to only 81 debtors out of the 

170,000 student loan debtors who filed for bankruptcy protection in 

1 year alone. 

This ballooning problem is already affecting the housing market. 

David Stevens, the chief executive of the Mortgage Bankers Association echoed this concern, noting that ‘‘student debt’’ trumps all 

other consumer debt. It is going to have an extraordinarily dampening effect on young people’s ability to borrow for a home, and 

that is going to impact the housing market and the economy at 

large. 

The goal of bankruptcy long has been to provide debtors a financial fresh start from burdensome debt. The Supreme Court recognized this principle in the 1934 decisions Local Loan v. Hunt, noting that bankruptcy gives the honest, but unfortunate, debtor a 

new opportunity in life, and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. This 

principle applies to businesses and consumers alike. As we work together to improve the Bankruptcy Code, it is imperative that we 

also look at consumer bankruptcy. 

I again thank the Chairman for holding this hearing, and I look 

forward to the testimony from this distinguished panel of witnesses. And I thank you all for coming. 

Mr. BACHUS. Thank you. We have 4 minutes, 54 seconds left on 

a floor vote. And I am thinking just to keep it in an orderly way, 

instead of introducing maybe two of our witnesses, I will come 

back, introduce the entire panel, and then we will have your opening statements, and go from there. 

So I understand none of you have a time constraint as such, 

right? So thank you. One interesting thing, and I appreciate the 

Ranking Member’s statement, he mentioned criminalizing some of 

these things or criminal cases. This Committee has formed a bipartisan group of five Republicans and five Democrats to talk about 

over-criminalization because we continue to add to the long list of 

Federal crimes. And many of them are by regulation. We pass 

something not intending it to be a criminal act, and yet the different departments of the government are interpreting it and turning into criminal acts. 

And so, we have literally filled our prisons with hundreds of 

thousands of inmates, and some of them for actually violations of 

regulations as opposed to laws because of the interpretation, which 

is something we are going to be looking at in a bipartisan way. 

And, of course, mandatory sentencing has added to that, so we 

have to be kind of careful about defining something as a crime if 

there is no mens rea. And you and I agree on that. 

Mr. JOHNSON. We do, and I think we have a discussion coming 

up about two types of crime. One is legal and the other illegal 

crime. And the legal crime tends to wear a white collar, and the 

illegal crime, they tend to wear blue collars. And so, when we can 

get to the point of rectifying the disparity in the two crimes, then 
5 

we can start consolidating offenses and working on other problems 

in our criminal justice system. 

Particularly, I am interested in the effect that the private prison 

industry has on our public policy. 

Mr. BACHUS. I did not mean to start this. [Laughter.] 

Thank you. We will recess this Committee and probably be back 

in about 35 or 40 minutes. Thank you. 

[Recess.] 

Mr. BACHUS. The hearing is reconvened, and we appreciate your 

patience. 

Our first witness is Judge Sontchi. Judge Sontchi, actually Christopher Sontchi, is a United States bankruptcy judge from the District of Delaware and a frequent speaker in the United States and 

Canada on issues relating to corporate reorganizations. He was recently appointed to the Committee on Financial Contracts Derivatives and Safe Harbors of the American Bankruptcy Institution’s 

Commission to Study the Reform of Chapter 11. In addition, he is 

a member of the American Bankruptcy Institute and the National 

Conference of Bankruptcy Judges. 

In 2010 and ’12, he was selected as outstanding bankruptcy 

judge by the magazine Turnarounds and Workouts. He recently 

published Valuation: A Judge’s Perspective in the American Bankruptcy Institution’s Law Review. 

Judge Sontchi received a B.A. with distinction in political science 

from the University of North Carolina at Chapel Hill where he was 

elected to Phi Beta Kappa. He received his J.D. from the University of Chicago Law School. And I guess you have quit watching 

the NCAA tournaments, right? 

Mr. SONTCHI. At least we won one more game than Duke. 

Mr. BACHUS. That is right. Duke was out in the very first round. 

Seth Grosshandler is a partner of Cleary Gottlieb Steen—is it 

Stein or Steen? 

Mr. GROSSHANDLER. Steen. 

Mr. BACHUS. Steen, and Hamilton where he has been practicing 

law for over 30 years. His practice focuses on financial institutions, 

derivative products, securities transactions, secured transactions, 

and structured finance. As an instrumental player in the development of the safe harbor provisions of the Bankruptcy Code, the 

Federal Deposit Insurance Act, and orderly liquidation authority, 

Mr. Grosshandler is regarded as a preeminent expert on derivatives and security transactions, and as well on the risk to 

counterparties of regulated financial institutions in the event of 

their insolvency. 

During and after the financial crisis, he advised major Wall 

Street firms, including Bear Stearns, and Lehman Brothers, and 

various government agencies on market stabilization efforts. Boy, 

you must have been paid well. Bear Stearns and Lehman Brothers. 

You had your hands full. 

Mr. GROSSHANDLER. They are counterparties to Bear Stearns. 

Mr. BACHUS. Oh, they are counterparties. Well, they did pretty 

well. 

Mr. GROSSHANDLER. Probably better than representing the debtors. 
6 

Mr. BACHUS. That is right. Thank you. He received his undergraduate degree from Reed College and his J.D. cum laude from 

Northwestern University. 

Ms. Jane Vris is general counsel and partner at Millstein & Company. And I did do that right. During her legal career, including 

as a partner at Wachtell—is that right, Wachtell—she has advised 

board special committees, creditors, potential purchasers of assets 

from distressed companies, and equity investors and companies 

emerging from Chapter 11. She most recently served as a partner 

at Vincent & Elkins and was a founding partner of Cronin and 

Vris. 

And she is a member of the National Bankruptcy Conference. 

She has been designated by Chambers USA as one of America’s 

leading lawyers for business, named a New York Super Lawyer by 

New York Super Lawyers, and is included in the Guide to the 

World’s Leading Insolvency and Restructuring Lawyers by Legal 

Media Group, and the International Who’s Who of Insolvency and 

Restructuring Lawyers. It is kind of a who’s who of insolvency. I 

am sorry. I am just joking. [Laughter.] 

She received her B.A. magna cum laude from the University of 

Pennsylvania and her J.D. from New York University School of 

Law, where she served as the managing editor of the Law Review. 

Quite impressive. 

Professor Thomas H. Jackson is with the William H. Simon 

School of Business at the University of Rochester. Professor Jackson holds faculty positions in the Simon School of Business and the 

Department of Political Science at the University of Rochester, 

where he also served as president from 1994 to 2005. 

You know, Steve Covey in his book, I do not know if you are 

aware, he says the job of a college president is the most difficult 

job in America. 

Mr. JACKSON. [Off audio.] 

Mr. BACHUS. Thank you. Before he became Rochester’s ninth 

president, Mr. Jackson was vice president and provost at the University of Virginia, where he first joined as dean of Virginia’s 

School of Law. Previously he was professor of law at Harvard and 

served on the faculty at Stanford University. 

He clerked for U.S. District Judge Marvin Frankel in New York 

from 1975 to ’76, and then for Supreme Court Justice and later 

Chief Justice William Rehnquist from 1976 to 1977. 

Professor Jackson is the author of bankruptcy and commercial 

law texts used in law schools across the country, and served as special master for the U.S. Supreme Court in a dispute involving every 

State in the country over the disposition of unclaimed dividends 

held by brokerage houses. 

He received his B.A. from Williams College and his J.D. from 

Yale Law School. Welcome to you. 

Professor Michelle Harner is a professor at University of Maryland Francis King Carey School of Law. She teaches courses in 

bankruptcy and creditors’ rights, business associations, business 

planning, and professional responsibility at the University of Maryland School of Law. 

Prior to joining the University of Maryland, Professor Harner 

served as Assistant Professor of Law at the University of Ne-
7 

braska, and was voted professor of the year by her students during 

the 2006 and 2008 academic years. That is quite an honor. 

Professor Harner is widely published and lectures frequently on 

corporate governance, financially distressed entities, and related 

legal issues. Professor currently is serving as the reporter to the 

ABI Commission to study the reform of Chapter 11. She previously 

was in private practice in the business restructuring insolvency 

bankruptcy and related transactional fields. Most recently as a 

partner of the Chicago office of the International Law Firm Jones 

Day. 

Professor Harner is a member of a number of professional organizations, including the American Law Institute, American Bankruptcy Institute, the American Bar Association, and the International Association of Restructuring, Insolvency, and Bankruptcy 

Professors. 

Professor Harner received her B.A. from Boston College and her 

J.D. from Moritz College of Law at Ohio State University. 

All right. That is a very impressive group of witnesses. Did you 

want to ask them whether they had ever represented the Koch 

brothers? 

Mr. JOHNSON. The Koch Brothers? 

Mr. BACHUS. Koch Brothers, that is right. 

Mr. JOHNSON. Have any of you ever represented the Koch Brothers before? 

Voice. No, sir. 

Mr. JOHNSON. All right. 

Mr. BACHUS. We are in good shape. 

Mr. JOHNSON. How about Sheldon Adelman? 

Mr. BACHUS. No, we will get that out of the way. You only have 

one. [Laughter.] 

I do not know about that. The Koch Brothers, his opening statement normally contains some reference to them, and you did not 

work that into the statement. 

Mr. JOHNSON. Well, I did not want any of that Koch Brothers 

money coming into my reelection campaign. That is the situation. 

Mr. BACHUS. But you got legal crimes in there, which is kind of 

an oxymoron, so that is a new one. Pretty good. 

Each of our witnesses’ written statements will be entered into 

the record in its entirety. I ask each of the witnesses to summarize 

his or her testimony. Actually, we are not going to hold you to 5 

minutes. If you go 6 or 7 minutes, that is fine. This is something 

they tell me to read every time about quitting and everything, but 

we are just going to go with that. 

Now, I will recognize the witnesses to their testimony. And, 

Judge, we will start with you. 

TESTIMONY OF THE HONORABLE CHRISTOPHER S. SONTCHI, 

UNITED STATES BANKRUPTCY JUDGE FOR THE DISTRICT 

OF DELAWARE, WILMINGTON, DE 

Judge SONTCHI. Thank you. Chairman Bachus, Ranking Member 

Johnson, and Members of the Committee, thank you for inviting 

me to testify today. My name is Christopher Sontchi. I am a bankruptcy judge in the District of Delaware, and I have presided over 

a number of cases and issued numerous opinions involving the safe 
8 

harbors for financial contracts, derivatives, and repurchase agreements. 

Most notably, I presided over the American Home Mortgage case. 

At the time of its filing in 2007, American Home Mortgage was the 

10th largest home mortgage originator in the country, and as part 

of its origination and securitization business, the company was a 

party to numerous repurchase agreements involving billions of dollars. As you also stated, I have had the honor of serving as a Member of the Committee on Financial Contracts, Derivatives, and Safe 

Harbors of the American Bankruptcy Institute’s Commission to 

Study the Reform of Chapter 11. 

Today I would like to discuss two important issues related to the 

safe harbors. First, I believe Congress should amend Section 546(e) 

of the Bankruptcy Code to significantly narrow its scope. Section 

546(e) exempts from avoidance as preferences or fraudulent conveyance settlement payments. I believe Congress’ intent was to insulate the securities transfer system. Security industry transferees 

are generally not the beneficial owners of the subject transactions, 

but rather are the conduits. Subjecting the conduits to avoidance 

actions could trigger a series of unintended and disastrous defaults 

in the interconnected securities markets. 

As written and applied, however, the Section 546(e) safe harbor 

has insulated settlement payments to the ultimate beneficiaries of 

leveraged buyouts and other transactions, even if the securities 

were privately issued. Absent the safe harbors, these payments 

often made to directors, officers, and other insiders that led the 

company into bankruptcy in the first place would be potentially 

voidable as fraudulent or preferential transfers. 

The safe harbor of Section 546(e) should protect the securities 

transfer system, but not settlement payments or other transfers 

with respect to the beneficial owners of privately placed debtor equity securities. And with regard to publicly-traded securities, Section 546(e) should only protect transfers to the beneficial owners of 

public securities that have acted in good faith. 

I have and continue to be faced with a flurry of motions to dismiss and for summary judgment filed by insiders of bankrupt companies seeking shelter from liability through the 546(e) safe harbor. 

The secret is out, and defense attorneys are seeking to take advantage of the almost too good to be true safe harbor to the fullest 

extent possible. And I respectfully urge Congress to act quickly to 

close this unintended loophole in the safe harbor for the securities 

transfer system. 

The second subject I would like to discuss is more controversial. 

What is the proper scope of the safe harbor’s governing mortgage 

repurchase agreements? I respectfully urge Congress to remove 

mortgages and interests in mortgages from the safe harbors relating to repurchase agreements and securities contracts. 

The genesis of my request is my experience in the American 

Home Mortgage bankruptcy case. One of the primary arguments offered in favor of the safe harbors is that it is important for assets 

subject to the safe harbors to remain liquid. The argument is that 

without the liquidity supplied by the safe harbors, the cost of lending would increase, and in the event of default, there could be a 

cascading series of defaults that might spread to the repo 
9 

counterparty lender and parties to other agreements with the repo 

counterparty. 

It became quickly apparent to me during American Home that 

mortgages and interests in mortgages are not liquid assets. In fact, 

it can take several months to complete the sale of one bundle of 

mortgages. The reality is that the counterparties to repurchase 

agreements, i.e., the lenders, are not interested as much in preserving the liquidity of their investment in the mortgages originated by a debtor as they are in owning what would otherwise be 

property of the estate and the lender’s collateral. 

The business of originating mortgages requires access to a large 

amount of capital. Traditionally, a mortgage lender would borrow 

the money necessary to originate mortgage loans through a warehouse secured line of credit or loan. In the event of a bankruptcy 

by the mortgage lender, the mortgage loans would become property 

of the bankruptcy estate. The automatic stay would prevent the 

warehouse lender from taking control of the mortgage loans. And 

the warehouse lender would both have a secured claim against the 

estate, collateralized by those loans, and be entitled, for example, 

to adequate protection. 

But as part of BAPCPA, Congress expanded the definition of ‘‘repurchase agreement’’ to include mortgages. And since then, the 

bulk of lending to mortgage originators has been through repurchase agreements. The repurchase agreements and warehouse secured loans are really identical in all aspects for the most part, 

other than in a repo the mortgage belongs to the repo counterparty 

lender rather than to the mortgage lender. 

In the event of a default or a bankruptcy by a mortgage lender, 

the repo counterparty has a right to declare a default and require 

the mortgage lender to immediately repurchase the mortgage. And 

in the event the mortgage lender cannot do so, which is normal, the 

repo counterparty would obtain permanent ownership of the loan 

and be able to sell it directly to investors, a securitization trust, or 

keep the repo. 

In my experience, that is what the repo counterparty is interested in doing. Rather than preserving liquidity by selling the 

mortgage, it is likely to hold the loans for later disposition, especially in a crisis such as 2007 through 2009 where the value of the 

mortgage was low. The safe harbors allow the repo counterparty, 

rather than the debtor, to hold the mortgage and obtain the upside 

of any increase in value. As applied to mortgages, the safe harbors 

allow for the repo counterparty to grab what otherwise would be 

its collateral, and prevent the mortgage lender debtor from maximizing the value of those loans for the benefit of the estate. 

This is contrary to the treatment of secured loans in bankruptcy 

and turns the Code on its head. The economic reality is that a 

mortgage lender, such as American Home Mortgage, can be 

stripped of its assets in days or even hours, leaving no ongoing 

business, and denying its creditors in general of the value of its assets, i.e., its mortgage loans. And while these safe harbors may 

make sense in the context of assets that are actually liquid, such 

as U.S. treasuries, they do not in the context of an illiquid assets, 

such as mortgages. 
10 

Based on my experience, I respectfully urge Congress to consider 

removing mortgages and interests in mortgages from the definition 

of repurchase agreement, as well as the definition of securities contract. And thank you again very much for asking me to testify on 

these important issues. I am more than happy to answer any questions you might have. 

[The prepared statement of Judge Sontchi follows:] 
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Mr. BACHUS. Thank you. 

Mr. Grosshandler? 

TESTIMONY OF SETH GROSSHANDLER, PARTNER, CLEARY 

GOTTLIEB STEEN & HAMILTON LLP, NEW YORK, NY 

Mr. GROSSHANDLER. Thank you, Chairman Bachus. Thank you 

for having me here. You have my written testimony. I am not going 

to repeat what is in there. The only reference to the written testimony I want to make is to thank my colleagues Knox McIlwain and 

Timmy Coldorovo who put it together in such short order. 

I was the co-chair with Judge Peck of the Lehman bankruptcy 

of the ABI Safe Harbors Committee that Judge Sontchi was on as 

well. And we started that a few years ago, and we were given by 

the ABI commissioners several pages of topics to cover. We could 

not get to them all. This is a very, very complicated topic, the safe 

harbors, the treatment of financial contracts in bankruptcy. 

Part of that has to do with there are lots of different players involved, and you may have different answers depending on who the 

players are, so you have systemically important financial institutions. You have hedge funds. You have industrial companies. You 

have individuals on the debtor side. It may depend on who the 

creditor is. Is the creditor a securities clearing agency, like DTC, 

or is it a non-dealer party? And there are different policy considerations depending on who you are talking about on the debtor and 

on the creditor side. 

Although we had many disagreements among the committee 

members, there were several things we agreed on. First of all, really complicated. Could not get it all done in the time we had. And 

then, the safe harbors do derogate from the general principles of 

the Bankruptcy Code, and that needs to be justified, right? And the 

justification, and different people on the committee disagreed as to 

what was and was not justified under these standards. But I think 

that the basic standards were agreed to, which is the safe harbors, 

if they promote stability and liquidity, that those are things that 

might justify derogating from the usual rules of the Bankruptcy 

Code. 

I think people generally agreed that the derivatives, creditors, 

and repo creditors, at least some of them, maybe not the whole 

loan repo creditors. I disagree with Judge Sontchi on that, but we 

can talk about that if you would like. But that some of the risks 

they face are different from other creditors under the Bankruptcy 

Code, and, therefore, at least some of the safe harbors were justified under those standards. 

The safe harbors also underpin very important markets. The derivatives market, the repo market, they might not cease to exist if 

you got rid of the safe harbors, but they would certainly shrink a 

lot. And is that good or bad depends on a lot of things. 

And one of the problems with just getting rid of the safe harbors 

is it is a very blunt instrument because it would basically mean everybody is not safe harbored as opposed to, for instance, regulatory 

change. So if you look at short-term funding transactions, like 

repos, the Federal Reserve Board is all over it, in terms of greater 

liquidity requirements, capital requirements, that sort of thing, to 

give a disincentive to over reliance on those kinds of transactions, 
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whereas just getting rid of a safe harbor under the Bankruptcy 

Code, again, would be a very blunt instrument. 

I think an interesting example is insurance insolvency, not the 

subject of this Committee. It is State law. Insurance insolvency is 

governed by State law. 

Little known to most people because why would they be focusing 

on this, but in the past 5 years, at least 10 States have enacted 

new safe harbors for insurance company insolvency for derivatives 

and repos. We are up to about 20, 22 now. But the bulk of that 

has happened since the financial crisis. Why? It is the insurance 

companies, the users of those products that wanted the safe harbors to have access to those markets because Wall Street was unwilling to give them access or limited access because of the risk. 

So this is not only about protecting Wall Street. It is also end users 

like insurance companies who want the safe harbors. 

All that being said, there are clearly issues with everybody liquidating all at once. You want to avoid that if you can. In Lehman, 

I think that that actually helped prevent more contagion. If all the 

creditors had been stayed from exercising their rights, there would 

have been a lot of problems. But the liquidations caused their own 

problems, of course. 

So I think mechanisms that achieve continuity—Chapter 14, the 

Federal Deposit Insurance Act, single point of entry—all of these 

designed to avoid close out and are very, very good things. The key 

to them working from a creditor perspective is that there is somebody who is creditworthy who is able to continue the performance, 

and that is not only balance sheet creditworthiness. It is liquidity, 

liquidity to be able to perform. 

And then the final thing I would say is to the extent that Congress believes that changes to the fundamental safe harbor provisions are necessary, we need to be very careful. It is really complicated. There are a lot of international aspects to this. There are 

safe harbors around the world, capital implications for financial institutions. 

And the final thing is on the committee we dealt with a number 

of issues, the really hard issues like the scope of the repo exemption. There was a lot of division. There were several other issues 

that we picked first because it was so-called low hanging fruit 

where there was actually a lot of agreement about changes that 

would make the safe harbors better for America. Thank you. 

[The prepared statement of Mr. Grosshandler follows:] 
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Mr. BACHUS. Thank you. 

Ms. Vris? 

TESTIMONY OF JANE LEE VRIS, PARTNER AND GENERAL 

COUNSEL, MILLSTEIN & CO., WASHINGTON, DC 

Ms. VRIS. Thank you. Thank you, Chairman Bachus—— 

Mr. BACHUS. Maybe pull that mike a little closer. It will actually 

put less of a strain on—— 

Ms. VRIS. There we go. Is that better? 

Mr. BACHUS. Yes, there you go. 

Ms. VRIS. Okay, great. Thank you, and thank you, Ranking 

Member Johnson, as well for this opportunity to speak on behalf 

of the National Bankruptcy Conference. I am the chair of the Capital Markets Committee there, and I am submitting for our testimony today position papers and proposed changes to the Bankruptcy Code that the conference has previously prepared. And 

these topics cover both safe harbors for, let us call them, the qualified financial contracts. By that I mean the derivatives, the swaps, 

the repos that you have been hearing about, as well as some form 

of bankruptcy proposal for treatment of SIFIs, the systemically important financial institutions. 

So in a sense, I sort of appropriately sit in the middle here because I am dealing both with the QFCs and safe harbors, as well 

as the Chapter 14 topic that I think you are going to be hearing 

more about. 

I will start with the SIFIs. We recognize in the conference that 

SIFIs face extraordinary challenges in bankruptcy. Ordinarily the 

mission in bankruptcy, and I think the Bankruptcy Code does a 

good job of this, is to preserve asset value for the benefit of all of 

the constituents. The automatic stay is a key component of that 

protection. It protects the debtor’s assets from actions of creditors 

that would otherwise allow them to get at the assets, favor the first 

to act creditors, and leave less value behind for the other creditors. 

When a SIFI files, we are concerned that to some extent the reverse happens, that the filing itself can trigger a loss of asset value 

to the detriment of all parties concerned. I think it is important to 

think for a moment what we mean when we say ‘‘when a SIFI 

files.’’ By that I mean a parent holding company whose assets are 

the equity in operating subsidiaries, institutions like banks, insurance companies, broker dealers. So it is the parent that we are focusing on when we talk about bankruptcy solutions, including, I 

think you will hear, for Chapter 14 type solutions. 

The parent when it files has its assets protected by the automatic 

stay, but the operating subsidiaries do not have the benefit of the 

same protection. First, many of them are not eligible to file. Insurance companies, banks, they cannot file for bankruptcy under any 

chapter. Some subsidiaries can file, but only liquidation, and one 

conducted by a trustee, which is not really conducive to maximizing 

asset value for anybody. 

So for these reasons when the parent files, the regulated subsidiaries may be seized by their regulators, both here in the U.S. and 

abroad. Even if they are not seized, parties who have deposits with 

the banks are likely to demand their deposits back, a lack of confidence in the SIFI. And parties who may previously have been ex-
52 

tending short-term financing are likely to stop extending that financing to those enterprises. All of this increases the need for liquidity at the subsidiaries at the same time that liquidity is no 

longer available to those subsidiaries. In these circumstances, 

value dissipates quickly. 

We think that the safe harbors for QFCs to some degree contributes to this dynamic. Even at the parent level the counterparties 

are not bound by the automatic stay. They may seize collateral, as 

you heard from the judge. They may sell the collateral, and they 

may terminate contracts. Not only at the parent level, but because 

the parent often guarantees these qualified financial contracts on 

behalf of its subsidiaries, when the parent files, because it is a 

guarantor, that can trigger the rights of the counterparties down 

at the subsidiaries to also terminate contracts, grab collateral. So 

as a consequence, when the parent files, there is a ripple effect 

throughout the entire enterprise that can cause assets to dissipate 

and also increase the need for the liquidity. 

We have thought about the ways in which the Bankruptcy Code 

could be modified to help a SIFI when it files. We support some 

limited modifications to the safe harbors. We think that would be 

beneficial. But we do not support the wholesale revocation of those 

safe harbors. We do recognize the single point of entry, and I think 

you will hear more about this, framework for a bankruptcy solution 

for SIFIs. Its chief component is allowing assets to be moved rapidly away from the parent, and to allow new management, and 

with the help and the input of regulators, to make fundamental decisions about how best to stabilize those subsidiaries away from the 

battleground that bankruptcy can sometimes be and that the parent will be under. 

However, even for the single point of entry solution to work, we 

think there must be a temporary stay of the safe harbors for the 

qualified financial contracts. And we also believe that the entire 

enterprise will need access to liquidity of some sort. And so, we 

think while the Chapter 14 single point of entry is a very positive 

development in the thinking about how to resolve SIFIs in bankruptcy and the Bankruptcy Code can be amended to incorporate 

that, we think it also requires some changes to the safe harbors 

and requires some access to liquidity. 

On behalf of the National Bankruptcy Conference, again I want 

to thank you for allowing us to present this testimony today. 

[The prepared statement of Ms. Vris follows:] 
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Mr. BACHUS. Professor Jackson? And thank you. 

TESTIMONY OF THOMAS H. JACKSON, DISTINGUISHED UNIVERSITY PROFESSOR & PRESIDENT EMERITUS, UNIVERSITY 

OF ROCHESTER, ROCHESTER, NY 

Mr. JACKSON. Chairman Bachus, and Ranking Member Johnson, 

and other Members of the Subcommittee, thank you for inviting me 

here this afternoon. And it is an honor to have an opportunity to 

testify before you on a subject near and dear to my heart, which 

is bankruptcy law, and specifically the role bankruptcy law can and 

should play in the best possible resolution of a troubled large financial institution, and how modest, but important, amendments to 

the Bankruptcy Code can facilitate that outcome. 

First, what do I mean by the best possible resolution of a troubled financial institution? I mean a resolution process that meets 

three important tests: first, one that both minimizes losses and 

places them on appropriate pre-identified parties; second, one that 

minimizes systemic consequences; third, one that does not result in 

a government bailout. 

In reflecting on the 2008-’09 financial crisis, everyone seemed to 

acknowledge that bankruptcy law should play a major role, but few 

had confidence that it was up to the task. The Dodd-Frank Act, 

while placing bankruptcy at the core of a resolution regime, nonetheless created an administrative backstop to it. Bankruptcy’s core 

role in Dodd-Frank is reflected in two places, first in the requirement of resolution plans—living wills—under Title I, which are focused on and tested against a bankruptcy resolution process. It is 

also reflected in the statutory requirements for implementing an 

administrative resolution proceeding, the orderly liquidation authority under Title II. 

Such a resolution proceeding cannot be commenced without a 

finding that use of bankruptcy law would have serious adverse effects on U.S. financial stability. It is widely acknowledged that 

bankruptcy is the preferred resolution mechanism. 

But there is a disconnect between those premises in today’s 

Bankruptcy Code. There is an emerging consensus that the best 

resolution system, one that meets the three standards I noted 

above, involves, first, loss bearing capacity known in advance that 

can be jettisoned in a rapid recapitalization of a financial institution. In the United States, this system is represented by the FDIC’s 

single point of entry proposal for the recapitalization via a bridge 

company of a SIFI holding company under Title II. 

Compared to this administrative resolution proposal, the current 

Bankruptcy Code is, in my view, kind of ‘‘close but no cigar.’’ Yes, 

Chapter 11 of the Bankruptcy Code is increasingly used to effectuate a going concern sale of a business, sometimes rapidly through 

a pre-packaged plan. But it will struggle to do this in the case of 

a large financial corporation. The essence of the recapitalization is, 

first, leaving behind equity and the loss-absorbing debt, presumably long-term, unsecured debt, to bear the losses. And second, the 

transfer of everything else—assets, liabilities, rights, and subsidiaries—to a bridge company that because of the stripping off the 

loss-absorbing debt is presumably both solvent and in a position to 

deal with the needs of its subsidiaries. And this must be done with 
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great speed so as to restore market confidence without a contagionproducing run. 

Yet because of the exemption of qualified financial contracts from 

most bankruptcy’s provisions, including the automatic stay, and because of the lack of clear statutory language permitting the assignment of liabilities or the override of cross defaults or change of control provisions, the current Bankruptcy Code cannot provide the 

necessary assurance of a rapid recapitalization. This will lead, in 

my view, either to ineffective resolution plans and/or the reality 

that Title II will, contrary to desires, become the default resolution 

mechanism. 

In my view, amending bankruptcy law is the solution. Doing so 

can harmonize resolution plans with what currently is perceived to 

be the best way to deal with a troubled large financial institution, 

and those fixes can assure that Title II of Dodd-Frank becomes, in 

fact, a process of last resort to deal with emergencies that we are 

simply not able to foretell. 

What is required? In addition to specified loss absorbency capacity known in advance, and that I understand the Federal Reserve 

Board is working on, it requires explicit statutory authorization for 

a rapid transfer of the holding company’s assets, liabilities, rights, 

and subsidiaries, minus the loss absorbing debt and equity to a 

bridge institution, and stays and overrides of certain provisions to 

enable that to happen. 

In my written statement, in a proposed Subchapter 5 to Chapter 

11, and there are other proposals that are called Chapter 14 that 

are referenced in it as well, goes into detail as to how to accomplish 

this. And while the details are many, the concept is simple. 

Through modest amendments to the Bankruptcy Code it indeed can 

become the primary resolution vehicle for large financial institutions as envisioned by the Dodd-Frank Act. 

And because it is a judicial proceeding, bankruptcy places primacy on the rule of law, on market-based solutions rather than 

agency control, and on a process that is fair and known in advance, 

indeed planned for via resolution plans. I urge that you consider 

amending the Bankruptcy Code along these lines. 

Again, I want to thank the Subcommittee for allowing me this 

opportunity to present my views. I would, of course, be delighted 

to answer any questions you may have. 

[The prepared statement of Mr. Jackson follows:] 
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Mr. BACHUS. Thank you very much, Professor Jackson. 

Professor Harner? 

TESTIMONY OF MICHELLE M. HARNER, PROFESSOR OF LAW, 

DIRECTOR, BUSINESS LAW PROGRAM, UNIVERSITY OF 

MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, BALTIMORE, MD 

Ms. HARNER. Thank you. Chairman Bachus, Ranking Member 

Johnson, and Members of the Subcommittee, thank you for the opportunity to testify today. I am honored to appear before you. 

My research at the University of Maryland Francis King Carey 

School of Law focuses on corporate governance and financial distress, so I am very familiar with the topic of today’s hearing. I 

want to note, however, that I am testifying in my capacity as reporter to the ABI Commission to Study the Reform of Chapter 11. 

My comments are on behalf of the commission and not my personal 

capacity. 

The commission was formed in 2012 to study the utility of the 

Bankruptcy Code. The commission comprises 20 of the Nation’s 

leading practitioners, judges, and academics, and it was constituted 

by the American Bankruptcy Institute, the largest multidisciplinary, non-partisan organization dedicated to research and education on matters related to insolvency. 

My testimony will summarize the potential need for Chapter 11 

reform, the commission study process, and certain testimony and 

research received by the commission. 

The Bankruptcy Code has served us well for many years. Nevertheless, today’s financial markets, credit and derivative products, 

and corporate structures are very different than what existed in 

1978 when the Bankruptcy Code was enacted. Companies’ capital 

structures are more complex and rely more heavily on leverage. 

Their asset values are driven less by hard assets and more by services, contracts, and intangibles. And both their internal business 

structures and their external business models are more global. In 

addition, claims trading and derivative products have changed the 

composition of creditor classes. 

These developments are not necessarily unwelcome or unhealthy, 

but the Bankruptcy Code was not designed to rehabilitate companies in this environment. Moreover, anecdotal evidence suggests 

that Chapter 11 has become too expensive, particularly for small 

and middle market companies, and is no longer achieving certain 

policy objectives, such as stimulating economic growth, preserving 

jobs and tax bases, and helping to rehabilitate viable companies. 

The commission study process was designed to explore the new 

environment in which financially distressed companies operate, 

and to determine what is and is not working as effectively as possible. Notably, the commission study process has involved over 250 

individuals who work in or are affected by business insolvency. 

These individuals are serving as commissioners or advisory committee members or have testified as hearing witnesses. 

The commission has been actively engaged in the study process 

since January of 2012. It has received detailed research reports 

from its advisory committees on 12 broadly defined areas of Chapter 11 practice, such as governance, finance, financial contracts and 
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derivatives, sales, and plans. It also has received a comparative 

analysis of many of these issues from an international working 

group representing over 12 different countries. The commission is 

currently reviewing this impressive body of work. 

In addition, the commission has held 16 public field hearings in 

11 different cities. The testimony at each of these hearings has 

been substantively rich and diverse and has covered a variety of 

topics. Several common themes have emerged from the field hearings, including an acknowledgment that Chapter 11 cases have 

changed over time, that Chapter 11 may no longer work effectively 

for small and middle market companies, that the safe harbors for 

financial contracts and derivatives have in some respects been extended beyond the original intent of that legislation, and that despite some issues, Chapter 11 continues to be an important restructuring tool for U.S. companies. 

The commission’s study process is winding down, and the commission is beginning its deliberations. It currently anticipates producing a preliminary report in December of this year. Although the 

commission does not yet know what it ultimately will recommend, 

it is guided by its mission statement to study and propose reforms 

to Chapter 11 and related statutory provisions that will better balance the goals of effectuating the effective reorganization of business debtors with the attendant preservation and expansion of jobs, 

and the maximization and realization of asset values for all creditors and stakeholders. 

Again, I want to thank the Subcommittee for this opportunity to 

testify, and I, of course, am happy to answer any questions. 

[The prepared statement of Ms. Harner follows:] 
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Mr. BACHUS. Thank you very much. At this time, with consent 

of Mr. Marino, we are going to Congressman Collins first. Is that 

right? 

Mr. COLLINS. Thank you, Mr. Chairman. I do appreciate my dear 

friend, Congressman Marino, for allowing me to go here. Professor 

Jackson, in looking—— 

Mr. BACHUS. He has been in the back listening on TV, so he 

is—— 

Mr. COLLINS. You all make great television stars. You all ought 

to think about this. You look good back there. 

Mr. BACHUS. And they are wondering, this guy shows up and he 

starts asking questions, and he has not heard a thing. 

Mr. COLLINS. Yes, I have heard every bit of it back there. It is 

great. But again, Professor Jackson, your testimony indicates, and 

also your written statement, that transparency, certainty, judicial 

oversight of the bankruptcy process make it the preferred method 

for resolution of a financial firm. I just have a question. Could 

those same attributes make bankruptcy the ideal process for the 

resolution of Fannie and Freddie? 

Mr. JACKSON. I am not an expert on the details of Fannie and 

Freddie, but in general it seems to me the structure of bankruptcy 

law, with well-defined rules about how you deal with assets and liabilities and priorities, a huge body of judicial law and judicial review of the processes, in my view, generally makes it the preferred 

resolution mechanism for almost any institution. 

That does not mean that there will not be perturbations to a system if a Fannie or Freddie went into a bankruptcy proceeding, but 

bankruptcy is pretty good at knowing how to deal with this. Trust 

assets will be set aside, priorities will be determined by the kind 

of priorities that they should have had. 

So as I said at the start, I am a big fan of bankruptcy law because I think it, in general, we have decades of decision making 

under it. We have strict priority rules. We have a judicial process 

that I think is pretty free from political pressure most of the time, 

that does a wonderful job of adhering to the rule of law. 

Mr. COLLINS. Okay. And I think that is the interesting, you 

know, process here of amending the Bankruptcy Code because it 

does have the history, for not only Fannie and Freddie, but also 

large and middle-sized banks as well. Would that follow along that 

same pattern of your answer? 

Mr. JACKSON. Yes. When you are talking about depository banks, 

they are historically done under the Federal Deposit Insurance 

Corporation, but there is an actual feature of depository banks that 

makes them distinguishable from other kinds of even financial institutions. The Federal Government is, in fact, the residual owner 

of these institutions almost anyway because of the deposit insurance guarantees. So it is really their own institution that they are 

resolving at the end of the day, and that is very different from all 

other financial institutions. 

Mr. COLLINS. I am very glad you all are here. Just on the question line now, Professor Jackson, doing that, especially with Fannie 

and Freddie, I am looking at derivatives, the bigger issues that we 

have here, whether stockholder equity and enterprise is meeting its 

financial obligations to creditors, but it needs to be restructured or, 
149 

you know, put into a run-off. This is where the bankruptcy if we 

amend it would probably work in situations like that given its history, given its structure. Would that be a fair statement? 

Mr. JACKSON. That would be a fair statement. Again, what bankruptcy would do is impose losses first on the shareholders, on the 

equity. And then if any company was, in fact, insolvent, it would 

impose those losses on the lower tiered debt in the first instance. 

For example, in the SIFI process, the stripped off long-term debt 

that is left behind will be the group that bears losses in case the 

entity is insolvent so that you have to go deeper than wiping the 

equity out. But all of that is firmly established by priority rules in 

the Bankruptcy Code, which is one of the reasons I am such a fan 

of it. 

Mr. COLLINS. Okay. And a final part here just is looking at this 

and continuing on this sort of theme that we have developed here. 

And after this, if anybody else would like to jump in on this question. I see that bobble head going. 

Financial obligations. Are Fannie and Freddie right now meeting 

the financial obligations to creditors? If we did have a process like 

this, you know, should a bankruptcy filing leaves derivatives contracts and other financing arrangements in place? Would that be 

something that could be done through this? 

Mr. JACKSON. Well, again, leaving them in place requires something like what I have been talking about with the single point of 

entry. It requires you to transfer everything to a new entity. 

Mr. COLLINS. Right. 

Mr. JACKSON. Currently under the Bankruptcy Code if you did 

not have a stay to allow that continuation process to occur, and the 

others who were talking about the qualified financial contracts, 

under the Bankruptcy Code, those people can run. So you do need 

amendments to the Bankruptcy Code to at least allow you to transfer these to an entity where everything could stay in place. 

Mr. COLLINS. Go ahead. 

Mr. GROSSHANDLER. Yes. I agree with everything Professor Jackson said, but I wanted to put one important point, extra point, 

which is Fannie and Freddie, of course, issue guaranteed securities, 

right? 

Mr. COLLINS. Right. 

Mr. GROSSHANDLER. And those securities consist of the holder 

has a right to the payments on the mortgage loans that they are 

holding in trust, plus the Fannie and Freddie guarantee. What is 

going to happen to that guarantee in the bankruptcy? And the 

usual Bankruptcy Code rule is there is a long time to determine 

what happens to that guarantee in bankruptcy. It is a contingent 

claim. You do not know whether those mortgages are going to default or not, whether you need to draw on it. And it is very complicated. I think that kind of extended uncertainty in a regular 

bankruptcy proceeding would make the value of those securities 

tank. 

Mr. COLLINS. Well, even though this is the late hour and all, this 

is something that needs to be looked at, I think, as we look at the 

vast derivatives and other things that need to be looked at possibly 

in the structure bankruptcy. And I thank you, and I do thank my 
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colleagues for allowing to question. And I hope you all have a wonderful evening. Thank you. 

Mr. BACHUS. I thank the gentleman. Now, Ranking Member 

Johnson is recognized. 

Mr. JOHNSON. Thank you, Mr. Chairman. To be clear, Title II of 

Dodd-Frank is only triggered by the determination of the Treasury 

Secretary that a non-bank financial institution is systemically important. Could an entity like Lehman Brothers, whose impending 

failure puts the financial marketplace into a free fall and freezes 

the lending market? Is that enough to trigger a Title II orderly liquidation? 

Mr. JACKSON. Everybody can jump in on this. I think actually 

Title II designed precisely for an entity such as Lehman. I mean, 

if you look at when Dodd-Frank was being enacted, Lehman was 

the elephant in the room because of the Lehman bankruptcy, and 

a sense that Lehman had done zero pre-bankruptcy planning. 

And so, I think a lot of effort that went into Dodd-Frank and 

Title II was trying to design a process that could, in fact, happen 

for Lehman. So, yes, I would assume that the Treasury and the 

Fed and the FDIC would conclude that Lehman was a systemically 

important financial institution for purposes of triggering Title II. 

Mr. GROSSHANDLER. I think that is right certainly if Title II was 

in effect in 2008. Today the question would be, because the standard is would there be severe and adverse effects on the economy 

if there were not a Bankruptcy Code proceeding. If, in fact, the 

Bankruptcy Code were changed along the lines of Chapter 14, et 

cetera, in fact, and given the resolution planning that is happening, 

it might be that Lehman today or tomorrow, assuming changes to 

the Bankruptcy Code, would not require the Title II intervention. 

Mr. JACKSON. I think that is completely correct. I was playing 

with the world that exists today where I think you have a disconnect between the desire of the Dodd-Frank Act, which is bankruptcy takes primacy. You cannot trigger a Title II proceeding until 

you have found the bankruptcy is not up to the task. And the reality is, which is because have not changed bankruptcy law, I think 

today if a Lehman Brothers was to fail, it is almost inevitable that 

the trigger would be pulled on Title II 

The proposals I have talked about today, it seems to me, are explicitly designed to reduce almost to the vanishing point the need 

to implement Title II, and instead use a judicially-based proceeding 

in bankruptcy. So that I believe if you went in the direction I 

talked about today with a Chapter 14 or Chapter 5 of Chapter 11, 

you today would use bankruptcy and not Title II for Lehman 

Brothers. 

Mr. JOHNSON. Well, Professor Jackson, it is clear that you believe 

that the judicial system would be better equipped to deal with the 

resolution of a SIFI as opposed to a regulatory body. Can I ask 

each of you what you think—— 

Mr. BACHUS. But he is saying with the changes that he has proposed. 

Mr. JOHNSON. Yes. Yes. But what Professor Jackson is saying is 

that we need to do this judicially as opposed to administratively. 

And I would like to get the other witnesses’ opinions on that. 

Judge SONTCHI. Well, I think that—— 
151 

Mr. JOHNSON. And I would also point out the case of GM bankruptcy and the government money that went into that. And, of 

course, Professor Jackson, you do not want any bailouts, any government bailouts. And so, how can you restructure a company like 

GM in a bankruptcy proceeding without public dollars? So in light 

of that, what is the best way to deal with this? 

Mr. JACKSON. Do you want me to take that one on, and I think 

the other question went to the other people at the table. The difference between General Motors, I think, and what we are talking 

about here is I am explicitly talking about a system in which there 

is loss absorbency built into the financial structure so that what 

you do in the financial institution case, it is like a bail-in. You strip 

the debt out, leave it behind in the bad company, and you start out 

with a new company that is solvent again. 

That option was not really available at the time of General Motors, nor was it available at the time of the 2008-2009 financial crisis for other institutions. The beauty of this, and it does require 

regulatory requirements that there is loss absorbency capacity built 

into the system, is that by doing that, you get away from what I 

think is the Hobson’s choice that they faced in 2008-2009, which 

is either allow the financial system to crater or to bail them out. 

And what this does is I think it allows you to get away from that 

Hobson’s choice. 

It is a very different thing because the financial institutions have 

a different sort of structure and importance than a General Motors 

so that I am not really talking now about what you do with corporate reorganization. 

Mr. JOHNSON. I understand. I understand. Could I, Mr. Chairman? 

Mr. BACHUS. You want to—— 

Mr. JOHNSON. Yes, if the others could respond. 

Mr. BACHUS. That is all right. 

Mr. JOHNSON. Thank you. 

Ms. HARNER. Certainly. Thank you, Ranking Member Johnson, 

for that question. So first, I will say in my personal capacity, I, like 

Professor Jackson, am a true believer in the bankruptcy system. I 

think the transparency, the due process, the certainty and the judicial oversight hold tremendous value when you are trying to restructure any company, including SIFIs and companies like GM. 

Do we need to change the Bankruptcy Code to accommodate those 

types of companies? Yes, I think we do. 

Now, from the commission’s perspective, we have not made any 

determinations about the type of issues Professor Jackson or you, 

sir, have raised, but we are looking at them. In fact, we have asked 

the Subcommittee that Judge Sontchi and Mr. Grosshandler are on 

to help us consider ways to handle issues that come up in a Chapter 14 and SIFI type situation. 

I also will just point out that one of the themes we are hearing 

continuously is that a one-size-fits-all approach in bankruptcy may 

not be the most effective or best approach. So we may be considering ways to think differently about very large corporations, very 

small corporations, and then what constitutes the majority of U.S. 

companies and U.S. debtors, the small middle market companies. 
152 

Judge SONTCHI. If I may very quickly. First of all, it is nice to 

hear everybody trusts the bankruptcy system. [Laughter.] 

I do not know if we deserve it, but I will take it. 

Mr. GROSSHANDLER. You may hear a little dissent. 

Judge SONTCHI. I think one of the primary problems is time is 

your enemy. Time is your enemy in almost every Chapter 11. But 

when you are talking about these SIFIs, you are talking about trying to close out billions dollars in very short order, time becomes 

a very difficult thing to deal with. And what the bankruptcy court 

gives you is transparency. It gives you due process, but it takes 

time. 

So the difficult balance in trying to figure out how you can handle a SIFI in a bankruptcy process I think has a lot to do with the 

balance of due process, which takes time, and the need, the real 

economic need, to move very, very quickly. 

We actually do this every day. Every Chapter 11 case I have, 

when you have an operating business under court supervision, time 

is critical. And we are required to, and I think we do a pretty good 

job, of balancing the issue about due process with the emergent nature of the case. And why I say that is because you will hear that 

a regulatory position or a regulatory answer might be better for it 

because things can happen more quickly because we cannot wait 

around for a court to get around to doing things. 

And I would counter that, yes, there is a tension there. There is 

no question. But I think the bankruptcy system does a pretty good 

job of handling that on a day-to-day basis in all our cases. And I 

think it would be a challenge, but I think we would be more likely 

than not to handle it in a SIFI type situation that we are talking 

about. 

Ms. VRIS. I think that the bankruptcy judges are very good at 

some tasks and some missions, and that the regulators are better 

for other tasks and other missions. I think if we are talking about 

a claims dispute process resolving disputes, I think the bankruptcy 

judges are better for that. I think if we are talking about a planned 

process or valuation, I think the bankruptcy judges are better suited for that. 

I think if we say for resolution of SIFIs we are broadening the 

mission and we want to also try and safeguard the disruptive effect 

on our entire financial system and the economy of the country, I 

think that is a lot to put on the shoulders of our bankruptcy judges, 

as wonderful as they are. In Lehman, Judge Peck had an extraordinarily short period of time to decide whether or not to approve 

the sale of the broker dealer to Barclays. He did an admirable job. 

Everybody and their brother objected. He had, as I said, very little 

time. 

And ultimately he made a decision, which I think most people 

would say was the right decision, notwithstanding that people later 

tried to upset that decision. But I do not think that is really what 

we should ask of the bankruptcy courts if, as I say, our mission 

with the SIFIs is to look at the broader effect on the economy as 

a whole, and to do so quickly. 

But I would also note that I think with any of the sort of Chapter 

14 or bridgeco solutions that we are thinking of, those require extraordinarily fast action at the beginning of the case. Twenty-four 
153 

hours, 48 hours. If you are anywhere in that kind of timeframe, it 

is very hard, as the judge has said, for the judges to really provide 

due process and make all the decisions they will be asked to make 

in that process. 

So I think that it is hard to ask the judges to make too many 

concrete decisions for approving the transfer of assets and certain 

liabilities to bridgeco. 

I do want to address your GM question, but if you will allow me, 

I will speak instead to Chrysler since I was involved in that. I represented the equity there, so I can speak more from personal 

knowledge. 

I think it was the same situation in the sense that there was no 

one else who would have provided the liquidity that was needed. 

There was testimony presented that Chrysler needed $100 million 

a month just to keep the lights on, and there was no one who was 

willing to do that. If the government had not stepped in, I think 

everyone there who had heard that testimony would agree the company would have to have been shut down, including the people who 

were objecting to the whole process in Chrysler. They acknowledged that there was no one else there to step in and provide that 

liquidity. 

And perhaps a little less optimistically than Professor Jackson, 

I think we at the conference believe that with a SIFI, they are 

going to need liquidity, too. I do not think that the single point of 

entry structure removes the need for liquidity. And so, the question 

is who provides that liquidity. And, you know, I cannot speak to 

that today, and I do not know how much would be needed and 

what the private markets would or would not be willing to do at 

that point. But some liquidity and access to it will be needed we 

think. 

Mr. JOHNSON. Thank you. 

Mr. GROSSHANDLER. I agree very much with Judge Sontchi and 

Ms. Vris. Time is the enemy, and also the bankruptcy courts, I 

think, are very well situated for sort of the after the fact adjudication of things. But approving that transfer is a lot to put on a 

bankruptcy judge. And I am just not so wary of the Federal regulators’ ability to make those decisions. 

Mr. BACHUS. Thank you. 

Ms. VRIS. I am sorry. Could I just interject briefly? 

Mr. BACHUS. Sure. 

Ms. VRIS. I would just also point out that with the living will 

process, hopefully regulators will have had access to more information. They will know more about the assets and the liabilities. And 

even if the living wills are not a perfect blueprint to solve the problem, it is at least a huge head start. 

Mr. BACHUS. Thank you. And what we did, and I think it is good. 

I mean, instead of just shoehorning everything into 5 minutes, we 

actually went 15 minutes with this, but I think that is good because we can get into the substance. And so, you can have as long 

as you want. I mean, 15 minutes. 

Mr. MARINO. I have one issue that I want to zero in on. I was 

a prosecutor for 18 years, and I was a U.S. attorney, so I am used 

to the Federal court system. And I actually shared an office with 
154 

one of the bankruptcy judges because we needed room, and we split 

things. [Laughter.] 

So I have heard a lot of war stories. And I am going to ask each 

of you to respond to this. I am going to ask Professor Harner, 

would you respond first, and I am going to set up the scenario. 

Whatever position you take, whether we need to change the 

Bankruptcy Code particularly concerning safe harbors or not, what 

impact would the change or not having the change have on our 

international financial system, particularly dealing with the EU at 

this point, because my area of expertise-ish concerning finance is 

international finance. So could you please address that? 

Ms. HARNER. Certainly. Thank you, Congressman, for the question. So I think you raise a key point. Markets are no longer domestic. They certainly are global in nature. And that was one reason the commission felt so strongly about constituting an international working group. 

And so, we are working with academics and practitioners in the 

following countries, Austria, Australia, Belgium, Canada, France, 

Germany, Italy, Japan, the Netherlands, People’s Republic of 

China, South Africa, Spain, and the United Kingdom, to help consider possible reform if the commission would determine it is necessary. And they have been giving us very thoughtful research reports on issues that would integrate and impact the financial markets just as you mentioned. 

So I think like any change to the Bankruptcy Code, it is a matter 

of finding that sweet spot, finding the balance where we are not 

disrupting the financial markets either domestically or globally significantly. But we are actually giving companies an opportunity to 

rehabilitate. 

Mr. MARINO. Okay. Thank you. Professor Jackson, please? Thank 

you, Professor Harner. 

Mr. JACKSON. Not particularly my expertise area, but I have a 

couple of comments on it. 

Mr. MARINO. Please. 

Mr. JACKSON. I think we need to think about doing what we 

think is right with respect to qualified financial contracts. I think 

even if you wanted to modify, the world is not going to look like 

they have been repealed. I think you want to look at what the rest 

of the world does particularly with, I will go to the large financial 

institutions, these holding companies and subsidiaries. Lehman 

had over a thousand different subsidiaries. That is probably too 

complicated. But the reality is these are global companies, and anything we try to do that is going to work for these, even at the holding company level, is going to require the cooperation of the subsidiaries and the regulators of the subsidiaries to go along. 

We can solve that domestically, but when we are dealing with 

foreign subsidies, and if our rules look weird to the foreign regulators, we are going to have a hard time getting them to play by 

our rules. And so, I think those cross-border issues, particularly at 

the large financial institutions, is something we need to be very 

sensitive to. 

Mr. MARINO. Thank you, sir. Ms. Vris? 

Ms. VRIS. I agree with what Professor Jackson said. And the conference believes that any kind of resolution will require discussion 
155 

between the U.S. and the foreign regulators. They have to have 

confidence in whatever we are proposing to do. If they do not, then 

they are going to circle the fences around the assets in their country. This happened in Lehman. It has happened in other cases. And 

so, cash that is overseas is going to stay there. Those creditors are 

going to get favored. 

Mr. MARINO. Yes. 

Ms. VRIS. And you have to put it in context. Even with the best 

of coordination, you may still encounter that in countries. It is a 

natural instinct of the regulators to want to hold the cash in their 

own country. But if you do not at least work with them up front, 

you are going to have no chance at cooperation. 

Some of our big SIFIs, I think, Lehman did have subsidiaries 

around the world. I had the pleasure of representing the Central 

Bank of Germany in that case. But you have to look a little more 

carefully. Not all foreign subsidiaries are necessarily critical to the 

long-term survival of some of our SIFIs. So it is a case by case situation. 

Mr. MARINO. Sir. Thank you. 

Mr. GROSSHANDLER. Yes. I have two basic points to make. The 

first is, as I had indicated earlier, the safe harbors are an international phenomenon in Europe as well as Asia. Most of the developed countries have safe harbors for financial contracts. And so if 

one were to get rid of them here or substantially narrow them, that 

would have competitive issues, all of those sorts of things. 

Also the single point of entry mechanism, one of the reasons for 

it is because of the very difficult cross-border issues. So the idea 

is the holding company goes under, but the operating bank, broker 

dealer does not, and, therefore, the operating banks and broker 

dealers overseas do not go under. Great thing if it works. It requires cooperation. 

At a very technical level, I think it is very important to think 

about cross-border recognition. So Europe, the European Union, is 

considering the BRRD, the Banking Recovery and Resolution Directive, which in Article 85 gives local regulators in Europe the ability 

to recognize U.S. law. So, for instance, if U.S. law, like under Title 

II overrides defaults and cross-defaults in financial contracts, Article 85 allows recognition of that. 

There is no comparable vice versa. So if the U.S. wants to recognize a European law, which the BRRD also has that overrides defaults and cross-defaults, it is just basic comity law, which in many 

courts very, very difficult. It would be wonderful if there were a 

centralized bankruptcy court kind of mechanism like Chapter 15, 

which does not apply to many of these contexts because it does not 

apply to financial institutions, but a Chapter 15 expansion to recognize European law. 

Mr. MARINO. Thank you. Judge? 

Judge SONTCHI. First of all, I think you just found out how incredibly knowledgeable Mr. Grosshandler is about these issues. His 

encyclopedic knowledge is amazing, and I have a lot of respect for 

him. 

I think about it just maybe a little differently. I was at a conference in Vancouver last month, and one of the main issues was 

corporate groups. What do we do about cases like this where we 
156 

have holding companies, we have subsidiaries, they may be in different countries? How do we deal with that on a cross-border basis? 

And the Chapter 15 we have today that covers cross-border cases 

does not deal with that. 

So UNCITRAL, which is the UN organization that came up with 

Chapter 15 in the first place, and the European Union, and people 

in those entities, are today exploring, and there is a lot of talk 

about how do we deal with corporate groups on an international 

level. 

And I do not know frankly whether anyone in the United States 

is sort of on board with that discussion. But the discussion is going 

forward, and I would hope and I think that as that moves forward, 

I think you are going to start to see an international consensus 

growing, at least on a procedural way, to deal with some of these 

issues from a cross-border perspective. 

Mr. MARINO. Thank you all very much. I could talk with you for 

hours, but I am sure that you folks have important things to do 

as well. But thank you very much, and I yield back. 

Mr. BACHUS. Thank you. Listening to the testimony, I had written several things down. And the second thing I wrote down was 

international institutions during the testimony, and then Mr. 

Marino went into that. I was actually thinking I might want to 

move that up to number one, and I think this discussion has gotten 

around it. 

When we talk about SIFIs, we are talking about international institutions. I am not sure we knew that before 2007, 2008, Members 

of Congress, but we sure did after that because with AIG, you had 

a British subsidiary that caused all the problems. The insurance 

business was fully reserved, so bailout was not of AIG. It was the 

counterparties, and they were paid 100 cents on the dollar. 

And that money went through AIG within a matter of hours. It 

went to the counterparties. Most of those were in Europe. And then 

many of them then had agreements back with Goldman, had 

agreed to ensure that. So you had the credit default swaps. So you 

had money coming in here, going out there, coming back to the 

United States. And it took literally a year before the public and 

many Members of Congress knew where the money went. 

If you are talking SIFI, you could not possibly have a chapter 

that you used on middle and small or even large companies, and 

these too big to fail. That is another word for that. And, you know, 

there is a big debate here whether or not we are going to allow too 

big to fail or SIFIs significantly. 

There is tremendous debate on does that give them a preference. 

Does that give them an advantage? And of course the regulatory 

agencies are saying, well, we are going to protect them by requiring 

more capital of them. And then they are saying, well, you know, 

that makes us less efficient. So there are all these subplots. 

But sitting here, I believe when it comes to the SIFIs, maybe not 

the only, but the most rational approach would be a Chapter 16 or 

whatever, you know, a chapter for this because Chapter 15 is not 

designed for that. And it is going to be an international agreement 

because there are some that I have disagreed with that say we do 

not need financial institutions that big. Well, they are going to 

exist. They will exist in other countries if they do not exist here. 
157 

And those are maybe the first choices, but I think they are going 

to exist. 

When it comes to them getting in trouble, there is going to have 

to be an international resolution because if you try to change Title 

11 to fit that, then you are going to have smaller companies. You 

are going to have them structuring different things to fall under 

safe harbor. And you are going to have all kinds of abuses because, 

according to the judge, we are already having some market distortions or people designing things to take advantage or to get a preference when that was not what was intended. 

The second thing I wrote down, and this is sort of reminiscing, 

but the American Securitization Forum, I asked one of the staffers, 

I said, that was about 10 years ago. Find out when their first annual conference of the American Securitization Forum was because 

I spoke at their first conference, and it was 2004. 

And the reason I went is because Chairman Oxley said, we were 

sitting around, and the Subcommittee Chair of securities, Chairman Oxley, said, do you want to go and speak. And he said, well, 

what would I speak about? And he said, CDOs, and CDSs, and 

mortgage-backed securities. And he said, you know, I do not think 

I want to go. [Laughter.] 

And I had read sort of a book like derivatives for idiots. And so, 

I was able to—what is a credit default swap? I said, well, it is a 

form of insurance. So that one question got me a trip to Arizona 

because we were dealing with things that we really did not know 

what they were. I mean, Members of Congress did not know the 

difference in a CDS and a CDO and a mortgage-backed. 

And if you think about it, the Budget Control Act, 1978, a lot of 

things we now have instruments we did not have then. And 2005 

we may have had them, but I am not sure we knew we had them, 

and we certainly did not know how prevalence they were. And the 

OTS who regulated Thrift regulating, they were the regulator for 

the AIG. And they may have been the least qualified, and I do not 

mean that in a bad sort of way. 

I will say this. Dodd-Frank, half of it was written in a 2-week 

period in the Senate. But one thing that we actually in a bipartisan 

way discussed—Chairman Frank, myself, others—we worked on a 

living will, Title I. Does everybody agree that is a good thing? And 

I think that you again, we have talked. I have very little debate 

since then, and everybody agrees that is a good thing. 

But we also, and you have talked about this, another thing I 

wrote down is ‘‘panic/stable economic environment.’’ You know, a 

lot of what works in a stable economic environment in a panic, you 

know, it is a different environment, much of what was done then. 

And I, for instance, received a call from Speaker Boehner, who may 

have been minority leader—no, he was Speaker then—that had I 

lost my mind because I had said we needed to get warrants from 

these institutions. And the his staffer called and said he is saying 

we need to get arrest warrants for these people. [Laughter.] 

And I was talking about warrants, you know, the money that we 

loaned them, which was not an arrest warrant. 

So, you are dealing with Members of Congress who simply on an 

ordinary day are overwhelmed. But on a day like this, we do not 

understand. We were listening, and, you know, to varying degrees 
158 

we understand what we are talking about. But something this complex has got to have your institutions and your groups to tell us 

what to do. 

Safe harbor to most of us that have a legal background means 

shielding from liability. That is usually how we consider it. It 

shields us, not that it gives a preference to one asset or one creditor or one over another. So we are going to need an awful lot of 

guidance on these things. And that is what we are going to depend 

heavily on you for. And I think part of it we may could do this 

year, but when it comes to the SIFI part, it is going to have to be 

some international agreement because, you know, a lot of the 

things that were put in as a safe harbor, the original intent was 

not to allow some of the things that happened. 

But I found everything else said has been very helpful to us. And 

what I think this Congress does best is not when it makes sweeping changes in a crisis, but if you can come to agreement on a few 

things, it can be done now. Not a reform bill to reform a whole 

thing, but something to address a few specifics. And we might 

could actually accomplish that this year. 

So I am not going to ask any questions. You have answered the 

question that needed to be asked without anybody asking it. But 

if any of you want to make final comments, we would love to hear 

those. 

Judge SONTCHI. Well, Chairman Bachus, what you said at the 

very end about being able to deal with perhaps discrete items, I 

would take you back to what I talked about, which is amending 

Section 546(e) of the Bankruptcy Code. I think that is not a very 

controversial topic. There are some, you know, bumps about how 

exactly you treat public shareholders, for example. But I think for 

the most part it is not controversial. 

And I think frankly there is an immediate need to deal with that 

safe harbor because as it is being applied now, and we have really 

no choice given how it is drafted, there are people who are directors, officers, insiders who are using 546(e) to shield themselves 

from potential fraudulent conveyance liability in private transactions. 

Mr. BACHUS. And that undermines the people’s trust—— 

Judge SONTCHI. I think so. 

Mr. BACHUS [continuing]. When they hear things of that nature. 

And obviously it is not fair to shareholders. It is not fair to creditors, you know. Anybody else? 

Ms. VRIS. Yes. The conference agrees with that, and, in fact, we 

did propose some specific statutory changes to, I think, pretty 

much, in fact, what you are discussing, Judge. And, you know, we 

would be more than pleased to dust that off and work with your 

staff on that. 

Mr. GROSSHANDLER. And the Committee on Safe Harbors, in addition to mostly agreeing on changes to 546(e), and the differences 

are in some of the details that are very detailed. There were a 

number of other items where we agreed on things. But when you 

get to issues of the scope of the repo safe harbor, there was a lot 

of disagreement, but there was a lot of agreement on a number of 

things. 
159 

And I think the process is that the full commission is going to 

take the committee’s recommendations and come out with something. But I would be surprised if they did not take the recommendations that were pretty much unanimous. 

Ms. HARNER. And, Chairman Bachus, I will just add onto that 

the commission would be more than happy to work with the Subcommittee in any way that would be helpful. And to the extent that 

there are issues that you would like us to prioritize, certainly let 

us know. And the safe harbor issues may be a starting point. 

Mr. BACHUS. Well, obviously, Judge, what you said in your testimony was disturbing that that is going on, that there are people 

that are sort of insulating or looking out for themselves as opposed 

to the corporation. 

I personally would rather you make the determination of what 

is a priority because you know much more than I do on this subject. Now, if it is railroad law, come to me and I will give you some 

advice, but most of it will be 22 years old. 

Mr. JOHNSON. Well, Mr. Chairman, you told me about that railroad case, and I find those country experiences to be inconsistent 

with your knowledge in this particular area. [Laughter.] 

And so I am perplexed, but I am also intrigued. And I look forward to our Committee doing some good work in this area. This 

has been a great panel, and I have learned a lot myself. And I realize that our process often impedes our ability to learn from the private sector, the academic sector, the commercial sectors. And when 

we can take a few minutes to let ourselves question and try to understand outside of the 5-minute period that many so rigorously 

adhere to, it gives us a better chance of coming to some sound decision making. So I definitely appreciate you. 

Mr. BACHUS. Let me say this. In a bipartisan way, the Congress 

was concerned over not following rule of law, you know, not going 

by an established Bankruptcy Code. What Professor Jackson—I am 

not saying yes, yes, yes. You know, this is the preferred method. 

This is rule of law. This is precedent. This is people. There is predictability. There are all these things, the transparency. It is not 

politics or somewhat insulated, I mean, I think, to a great extent. 

And you would really be doing, I think, a great service to the 

American people because if this issue is not resolved, I mean, then 

there is going to be an outcry from the American people to do 

things that I think would damage our free market system and our 

capitalism, and would be damaging to our financial system. 

What you are saying is people are beginning to think, well, the 

government owns the banks anyway, which I hope that is not the 

case. But I can understand exactly what you meant. And so, you 

would be doing a great service, even if we were able to make a few 

changes to the things that most all of you agree with. And we 

would have a much greater likelihood of enacting some law this 

year. So I think this hearing is adjourned. 

But I think your testimony has been excellent. The interchange 

between the panel I think has been most helpful. And where you 

can reach a reasonable consensus, if you can do that, I think we 

can do our part. 

So thank you very much, and this concludes today’s hearing. I 

thank all the witnesses for attending. 
160 

Without objection, Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials for the record. 

This hearing is adjourned. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Voices. Thank you. 

[Whereupon, at 6:28 p.m., the Subcommittee was adjourned.] 
(161) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

This is the second hearing examining whether current law would adequately address the insolvency of a significant financial institution given what we learned from 

the near collapse of our Nation’s economy just five years ago. 

As we consider this issue, it is critical that we keep in mind exactly what precipitated the Great Recession. 

Basically, it was the regulatory equivalent of the Wild West. 

In the absence of any meaningful regulation in the mortgage industry, lenders developed high risk subprime mortgages and used predatory marketing tactics that 

targeted the most vulnerable by promising them that they could finally share in the 

Great American Dream of homeownership. 

This proliferation of irresponsible lending caused home prices to soar even higher, 

ultimately resulting in a housing bubble. 

In the absence of any meaningful regulation in the financial marketplace, these 

risky mortgages were then bundled and sold as investment grade securities to 

unsuspecting investors, including pension funds and school districts. 

Once the housing bubble burst, the ensuing 2008 crash stopped the flow of credit 

and trapped millions of Americans in mortgages they could no longer afford, causing 

vast waves of foreclosures across the United States, massive unemployment, and 

international economic upheaval. 

And, to this day, we are still dealing with the lingering effects of the Great Recession of 2008 in the form of a sluggish national economy, neighborhoods blighted by 

vast swaths of abandoned homes, and municipalities struggling with reduced revenues. 

As I noted, this is the second hearing at which this Subcommittee is exploring 

how the Bankruptcy Code could be improved to deal with systemically significant 

financial institutions. 

Indeed, the Committee and Subcommittee combined have held 23 hearings since 

the last Congress on various anti-regulatory matters and measures that have absolutely no hope of becoming law. 

But when it comes to examining how the bankruptcy law can better accommodate 

the needs of consumers and municipalities struggling with financial distress, the 

Subcommittee has not held a single hearing on any of these critical issues: not during the last Congress and not during the current Congress as of this date. 

And, these are not frivolous issues. They include, for example: 

• exploring ways to give homeowners who are victims of predatory lending relief from excessive mortgage interest rates and hidden ‘‘gotcha’’ penalties; 

• determining how to provide relief to well-meaning students ensnared by profit-driven schools and private educational loan lenders into obligations they 

will never be able to repay; and 
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• conducting a long-overdue examination of the various ways how Chapter 9 of 

the Bankruptcy Code, which deals with municipal bankruptcies, could be improved. 

Accordingly, I implore the esteemed Chairman of Subcommittee to focus on these 

other issues that are more than equally deserving of being considered before the end 

of the current Congress. 

Finally, as one who was here during the consideration of the 2005 amendments 

to the Bankruptcy Code, I can attest that measure illustrates just what happens 

when special interests control the legislative process. 

One of the issues that will be addressed at this hearing is whether the expansion 

in 2005 of the Bankruptcy Code’s safe harbors for derivatives—in the aftermath of 

the Great Recession—may have, in fact, contributed to the Nation’s near economic 

collapse. 

Over the course of prior hearings, we have learned how these derivative safe harbors not only destroyed billions of dollars of value in the Lehman Brothers bankruptcy case, but how the precipitous collapse of that entity nearly froze the Nation’s 

financial marketplace. 

As I recall, these safe harbors were included in the 2005 law at the special insistence of the industry, which later was very much traumatized by them. 

I would hope that this could be at least one area where there may be the potential 

for bipartisan resolution. 

In particular, the National Bankruptcy Conference has a number of thoughtful 

suggestions about how we can restore the original intent of these safe harbors, 

namely, to protect the stability of the financial marketplace not the bottom lines of 

private parties. 

For example, the Conference recommends: 

• closing the financial contract loophole that allows creditors to foreclose collateral consisting of the debtor’s operating assets; and 

• limiting recourse for settlement payments that otherwise constitute constructive fraudulent transfers. 

Accordingly, I look forward to hearing the testimony from our witnesses about 

these and other recommendations to improve the bankruptcy process. 

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*The Subcommittee had not received a response to these questions at the time this hearing 

record was finalized and submitted for printing on September 25, 2014. 

Questions for the Record submitted to Seth Grosshandler, Partner, 

Cleary Gottlieb Steen & Hamilton LLP, New York, NY* 

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