Puerto Rico’s Recovery Act Ruled Preempted: What Now?

Author:Mr Leonard Weiser-Varon and William Kannel
Profession:Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
 
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At the end of "The Candidate", Robert Redford's title character, having won, famously asks, "What do we do now?"

A similar question can be asked now that the federal district court in Puerto Rico has struck down the Puerto Rico Public Corporation Debt Enforcement and Recovery Act.

In a February 6, 2015 opinion, Judge Besosa rejected enough of Puerto Rico's ripeness and standing arguments to reach the merits of the plaintiffs' challenges to the validity of the Recovery Act. As we had anticipated, Judge Besosa held that the Recovery Act is preempted by Section 903(1) of the federal Bankruptcy Code, which provides that "a State law prescribing a method of composition of indebtedness of [a] municipality may not bind any creditor that does not consent to such composition." The Recovery Act contains provisions that purport to permit changes to the debt obligations of eligible Puerto Rico public corporations without the consent of all affected debtholders. The court held that Section 903(1) applies to Puerto Rico, and that it not only invalidates those provisions of the Recovery Act that purport to bind non-consenting creditors, but preempts the Recovery Act entirely.

Puerto Rico enacted the Recovery Act because the federal Bankruptcy Code precludes Puerto Rico's public corporations from availing themselves of Chapter 9 of the federal Bankruptcy Code to restructure their debts. Puerto Rico's public officers are now asking themselves the Spanish version of Redford's question: "Y ahora que hacemos?" Certain creditors of PREPA and other overleveraged Puerto Rico issuers may be asking variations of that question.

Some potential answers:

1) The Recovery Act may yet recover. In addition to the ripeness and standing issues, Judge Besosa's opinion rests on a textual analysis of Section 903(1), including the definition of the word "creditor" as used therein and elsewhere in the Bankruptcy Code and its applicability to creditors of an entity that is not a debtor in a federal proceeding. Puerto Rico is likely to appeal the federal district court's ruling, both as to the ripeness and standing analysis and as to the applicability of Section 903 to Puerto Rico and the Recovery Act. The ruling is certainly a victory for the plaintiff bondholders and takes the Recovery Act off the table for the near future. In addition, Judge Besosa's discussions of the contract clause and taking clause issues with the Recovery Act highlight...

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