UPDATE 2-San Bernardino, California, gets bankruptcy protection
Wed, Aug 28 2013
* Judge: city was clearly insolvent
* Calpers considering options for appeals
By Tim Reid
RIVERSIDE, Calif., Aug 28 (Reuters) - A U.S. federal judge on Wednesday
granted bankruptcy protection to the California city of San Bernardino, paving
the way for a precedent-setting battle between bondholders and California's
giant public pension system.
The case is being closely watched by other U.S. cities, including Detroit,
which declared the biggest U.S. municipal bankruptcy last month, where budgets
are burdened by soaring pension costs.
Judge Meredith Jury of the U.S. Bankruptcy Court for the Central District of
California ruled that San Bernardino was eligible for Chapter 9 bankruptcy
protection despite opposition by the California Public Employees' Retirement
System, or Calpers. The $260 billion pension fund is the city's biggest creditor
and America's largest pension fund.
"I am ruling as a matter of law that the city is eligible," Jury said. "I
don't think anyone in this courtroom seriously thought the city was anything but
insolvent."
A city must be insolvent and have proof to have negotiated in good faith with
creditors to be eligible for Chapter 9 municipal bankruptcy.
Michael Gearing, an attorney appearing for Calpers, called Jury's decision a
"dangerous precedent" that will encourage other cities to "create a crisis
because they have a large number of creditors."
Amy Norris, a Calpers spokeswoman, said in an emailed statement: "Calpers is
considering its options for appeals."
San Bernardino, a city of 210,000 located 60 miles east of Los Angeles, filed
for bankruptcy protection in August 2012, citing a $46 million deficit and
arguing that it had effectively run out of cash to meet its daily
obligations.
The city must negotiate with its creditors and produce a final bankruptcy
plan on which the judge will ultimately have to rule. Whether pension and other
debt payments, including to holders of $50 million in pension obligation bonds,
will have to be treated equally or not will remain a key issue - one that could
eventually reach the U.S. Supreme Court.
LIKE OTHER CREDITORS?
Calpers argues that it should not be treated like other creditors and must be
paid in full because California state law says the fund must always be fully
paid, even in a bankruptcy. Bondholders argue that federal bankruptcy law trumps
state statutes and say Calpers should be forced to fight with other creditors
over how much they are paid under an exit plan.
Another California city, Stockton, which was also found eligible for
municipal bankruptcy protection in April, is expected to present an exit plan in
September. Creditors will be asked to vote on the plan.
The judge overseeing that case said dealing with Stockton's obligations to
Calpers will probably be unavoidable under an exit plan.
In an unprecedented move, San Bernardino stopped paying its $1.2 million
bimonthly employer payments to Calpers for a year after declaring bankruptcy,
the first California city to halt payments to the fund.
It resumed paying Calpers last month but continues to renege on payments to
other creditors, including holders of $50 million in pension obligation
bonds.
Calpers said the city still owes the fund $14.3 million in arrears and that
it will "aggressively pursue all past due contributions, resulting interest and
penalties."
"These payments are statutorily required and necessary to deliver on the
pension benefits promised to San Bernardino employees as a form of deferred
compensation," the powerful pension system said.
But the judge questioned who will provide for those payments.
"If Calpers gets all the money they want, under what they say is their
statutory right, who isn't going to get paid? All the employees? How is that
going to help Calpers?" she said.
The case is In re San Bernardino, 12-bk-28006, U.S. Bankruptcy Court, Central
District of California (Riverside).