Second Circuit Court of Appeals Narrows Interpretation of the TIA

March 30, 2017 by Alexa P. Stephenson, Esq.

In Marblegate Asset Management v. Education Management Finance Corp., the U.S. Court of Appeals for the Second Circuit reversed a 2014 U.S. District Court decision, narrowing the court’s interpretation of Section 316(b) of the Trust Indenture Act of 1939 (TIA). The Court of Appeals held that an out-of-court debt restructuring that impaired the practical ability of noteholders to be repaid did not violate Section 316(b) since it did not amend an indenture’s core payment terms. By ruling that only non-consensual amendments would violate Section 316(b) of TIA, the Court of Appeals clarified its broad interpretation of out-of-court restructurings when they involve public bonds.

The purpose of enacting TIA was to provide protections to holders of debt securities whose bonds qualified under the statute. Section 316(b) provides that:

“The right of any holder of any indenture security to receive payment of the principal of and interest on such indenture security, on or after the respective due dates expressed in such indenture security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder.”

Section 316(b) shields minority bondholders by requiring the consent of each minority bondholder, rather than a majority, to amend a bondholder’s right to receive payment. However, in Marblegate Asset Management, LLC v. Education Management Corp., the U.S. District Court for the Southern District of New York broadened the interpretation of Section 316(b) to not only prohibit transactions that impair a non-consenting bondholder’s legal ability, but also their practical ability to receive principal and interest payments, including transactions that do not specifically modify any of the indenture’s payment terms. Before Marblegate, the interpretation of Section 316(b) of TIA protected the legal right, but not the practical right, for a bondholder to recover payment under a bond.

Case History

In 2014, Education Management Corporation (“EDMC”), an education provider that profits from federal student aid programs, reorganized approximately $217 million in unsecured notes and $1.3 billion in secured debt issued by EDMC’s subsidiaries through an out-of-court exchange offer that was guaranteed by EDMC. Under the restructuring, secured creditors of EDMC’s subsidiaries foreclosed and transferred those assets to a newly formed subsidiary of EDMC.

Moreover, the secured creditors released the guaranty of their debt by EDMC, putting into motion a series of EDMC’s guaranty releases of the unsecured notes, which was permissible under the terms of the indenture. Despite no amendments to the payment terms, dissenting noteholders had no recourse except against the smaller EDMC subsidiaries. Unfortunately, those affiliates were left with no assets.

In the U.S. District Court case, two funds collectively known as “Marblegate” holding a combined $20.3 million sued to order the exchange offer, alleging that it violated Section 316(b) by depriving them of the practical ability to collect on the notes. The District Court ruled in Marblegate’s favor, thereby broadening the interpretation of Section 316(b) as it practically left non-consenting noteholders with worthless claims. The District Court confirmed that Section 316(b) of TIA was meant to force bond restructuring into bankruptcy when the holders of notes could not reach a unanimous decision.

After the decision, EDMC went ahead with the intercompany sale, but protecting Marblegate’s rights in the process. The EDMC also filed an answer with the District Court concerning the counterclaim of declaratory relief on the parent guarantee so that the Court could make a final determination.

The Second Circuit Decision

EDMC appealed the District Court decision, asserting its actions complied with Section 316(b) by agreeing to a foreclosure sale and release of the parent guarantee. However, in January 2017, the Second Circuit held that Section 316(b) of TIA “prohibits only nonconsensual amendments to an indenture’s core payment terms.” Although the Court of Appeals was divided, the majority wrote that “[a]bsent changes to the indenture’s core payment terms… Marblegate cannot invoke section 316(b) to retain an ‘absolute and unconditional’ right to payment of its notes.” The Court of Appeals held that the transaction did not amend terms of the indenture nor prevent any holders from suing to collect, and therefore did not violate TIA.

Conclusion

The Second Circuit’s decision not to uphold the District Court’s ruling prevents noteholders from pursuing out-of-court restructuring in cases where public bonds are at stake. By reversing the decision of the lower court, the Second Circuit ensures that endless litigation delays will not prevent an entity from negotiating satisfactory terms outside of bankruptcy.

Marblegate still has the right to petition for a writ of certiorari (i.e. rehearing) to the U.S. Supreme Court. However, until then, the Second Circuit Court of Appeal’s ruling will give clarity to an otherwise uncertain interpretation of Section 316(b), and will provide greater flexibility for restructuring negotiations. The Second Circuit has ensured that both issuers and holders of U.S. bonds can now act with greater confidence and clarity in regards to the protections provided under Section 316(b).