Reconceptualizing Lehman

32 Pages Posted: 22 Jun 2013 Last revised: 14 Jun 2014

See all articles by Stephen J. Lubben

Stephen J. Lubben

Seton Hall University - School of Law

Sarah P. Woo

New York University School of Law

Date Written: July 2013

Abstract

In this paper we explain how Lehman can be simplified.

The tendency to date has been to focus on the large number of insolvency cases resulting from Lehman, as it justifies Lehman’s supposed uniqueness and the work done to resolve Lehman. And it makes good copy in the financial press.

We argue instead that Lehman is best understood as two or three operating companies, with many, many special purpose entities supporting these operating companies.

Reconceiving Lehman in this way has several important implications. First and foremost, it illustrates the problem that we term structural dependency, which is endemic in financial institutions. The vast majority of individual subsidiaries of Lehman and other financial institutions were never designed to operate as stand-alone entities, and instead function as little more than tools to finance the core operating companies. Addressing a financial institution as a series of corporations ignores the unique structure and balance sheets that exist in the entities that make up global financial institutions.

Additionally, once the structure of financial institutions is understood, it becomes clear that an international approach to financial distress amongst financial institutions is vital.

Finally, once Lehman is reconceptualized as we have suggested, we argue that the outlines of a possible solution begin to appear. We term this model the "turtle" approach to reorganization, inasmuch as we suggest that financial institutions can be best saved by retreating into their core operating companies in times of crisis, leaving the so-called structurally dependent subsidiaries to their own fate.

Keywords: Lehman, OLA, too big to fail, Dodd-Frank, resolution, Chapter 14, systemic risk, banking crisis, risk management, bailout

JEL Classification: D8, G11, G12, G13, N00, G24, G33, G38, K22, K29

Suggested Citation

Lubben, Stephen J. and Woo, Sarah P., Reconceptualizing Lehman (July 2013). Texas International Law Journal, Vol. 49, 2014, Forthcoming; Seton Hall Public Law Research Paper No. 2282751; NYU Law and Economics Research Paper No. 13-24; NYU School of Law, Public Law Research Paper No. 13-47. Available at SSRN: https://ssrn.com/abstract=2282751

Stephen J. Lubben (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8857 (Phone)

Sarah P. Woo

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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