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Fed Draws Court's Eyes in Lehman Bankruptcy


Billing records filed with the court show the examiner is investigating an issue that has angered many of Lehman's creditors: how the Federal Reserve and the New York Fed -- which lent Lehman $46 billion in cash and securities before its bankruptcy filing last September -- were paid promptly and in full, while tens of billions of dollars in other debts were left to be sorted out in court. It remains unclear when and how much Lehman creditors will be repaid.

The examiner, Anton Valukas, chairman of law firm Jenner & Block LLP and a former U.S. attorney, said, "I am under a court order not to discuss what we are doing or how we are doing it."
Fed loans were crucial to propping up Lehman during its final days, and were part of an extraordinary government attempt to stabilize Lehman in the chaotic weeks of mid-September 2008. The government ultimately quashed a rescue of Lehman, which filed for bankruptcy protection. But its earlier steps now are open to scrutiny in bankruptcy court.

Many legal experts said bringing claims against the Fed would be an uphill battle, because the Fed would qualify under a long-held standard of sovereign immunity. That concept generally holds that the government can't be held legally accountable for its actions.

But Lehman's estate could have an opening, because by the standards of bankruptcy law, the government isn't supposed to receive immunity, said Richard Levin, a partner at law firm Cravath, Swaine & Moore LLP who helped write the U.S. bankruptcy code. "The Lehman estate could sue the Fed," Mr. Levin said, adding that the Fed would likely argue it can't be held liable.
Running hundreds of pages, the records are for the first five months of 2009, and touch a gamut of issues. For instance, the May 20 billing records also show research for possible claims against J.P. Morgan Chase & Co., though it remained unclear what actions might be brought against the Wall Street bank. J.P. Morgan declined to comment.

One Lehman creditor said the concern is "whether the government used its power and influence to make sure it got paid back in full, while the rest of us get dimes on the dollar."

The requests for payment show the court examiner researching what are called "preference" claims against the Fed.

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