(Crain’s) — Lehman Bros. Holdings Inc.’s bankruptcy examiner pointedly objected to efforts byCME Group Inc. to keep confidential the names of bidders and buyers for positions sold by the exchange in an “emergency” auction as the New York bank was failing.
Attorneys for the examiner, Jenner & Block LLP Chairman Tony Valukas, argued in a court filing Tuesday that not only does CME have no legal grounds for proposing the only redaction in the 2,220-page report, but also that a CME official, Tim Doar, previously disclosed the information without conditions in meetings with the examiner and other parties.
Tuesday’s filing, submitted by Jenner partner Robert Byman in the Bankruptcy Court for the Southern District of New York, maintains that the release of the names is an important part of creating a public record of the facts surrounding Lehman’s collapse and Sept. 15, 2008, bankruptcy filing.
The filing notes that sales were part of a “private auction that resulted in a $1.2 billion loss to Lehman.”
Chicago-based CME, the world’s largest derivatives exchange, is seeking to keep confidential information about six bidders and the three ultimate buyers for Lehman’s proprietary positions in energy, foreign exchange, interest rate, equity and agricultural contracts sold on Sept. 18, 2008.
The positions were sold after an emergency meeting of CME’s top executives, who decided to liquidate the bank’s positions for the financial security of the exchange, according to the report.
While the examiner said in his report that the exchange and its officials most likely wouldn’t be liable for a fraudulent sale because the exchange was acting as a self-regulator and within bankruptcy law, the filing Tuesday suggests that related issues of liability remain.
The filing notes that the only information CME is seeking to keep confidential is “the identity of the persons who were permitted to participate in a private auction that apparently resulted in a highly favorable gain to the successful bidders.”
“The examiner’s conclusions do not bind the parties or the court,” the examiner’s filing said. “The public has a right to have, and the examiner has a duty to provide, the full factual detail.”
A CME spokesman declined to comment on the examiner’s latest filing.
CME argued in a court filing last week that the names should be kept confidential because such commercial information can be shielded under bankruptcy law and the bidders expected such confidentiality. The exchange also said releasing the names might deter firms from being helpful in such a crisis in the future.
Lawyers at Chicago-based Jenner doubt the disclosure would have such a chilling effect and point out the rarity of such an emergency exchange sale, noting that this was the first time the CME had taken such action.
“The court can safely take note of the undeniable fact that where there are billions (of dollars) to be made, traders will step up, publicity or not,” attorneys for the examiner said in Tuesday’s filing.
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