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AIG Suing Uncle Sam? So Crazy It Just…Might…Work (In Court)

Daily Ticker

Updated from 11:00 a.m. EST

Update: AIG's board decided to not join the lawsuit against the U.S. government, The Wall Street Journal reports.

Earlier: AIG’s (AIG) board is meeting this morning to discuss a seemingly outrageous and offensive proposal: Whether the insurer should join a lawsuit against the Federal government brought by its former chairman Maurice “Hank” Greenberg.

Since the government bailed out AIG in a series of rescues that ultimately totaled $182 billion in 2008 and 2009, the idea of the firm suing its savior seems, at best, totally farcical.

Related: Should AIG Pursue Lawsuit Against the Government That Saved It?

AIG is “standing up for one of the most precious American rights of all: the right to sue someone who has just saved your life,” writes comedian Andy Borowitz. “Let’s say that you’re trapped in a burning building and a fireman pulls you out to safety. Once you’re out of the fire, though, you notice that the fireman carelessly ripped the lapel of your Armani jacket. Shouldn’t you be able to sue the fireman for the full cost of its replacement?”

But there may actually be some legal merit to the case, as Henry and I discuss in the accompanying video with our new Daily Ticker colleague, Lauren Lyster, who joins our team this week.

The thrust of Greenberg’s claim is that the government unlawfully seized AIG in 2008 and simultaneously prevented potential foreign buyers from bidding on its assets. In addition, Greenberg claims the terms of the government’s loans to AIG were so onerous they bordered on extortion. Furthermore, the case says the government acted illegally by paying AIG’s counterparties, most notably Goldman Sachs (GS) but also several foreign banks, at par vs. negotiating a more favorable settlement.

There’s also a somewhat technical, but important, argument that the Fed’s stake in AIG was unauthorized because it violated AIG’s charter regarding the number of shares outstanding, as CNBC’s John Carney details.

Related: Banks Win! Banks Win! (New Year, Same Old Story)

“Greenberg's lawyer is David Boises, one of the finest legal minds and trial lawyers around,” Jim Rickards, an attorney as well as an investor and author, writes in an email exchange. “He's not going to waste time on a junk lawsuit.” (Correction: The original version incorrectly identified Boises as AIG's attorney.)

Clearly, the events of 2008 were extraordinary and the government did some extraordinary things and some that clearly tested the limits of the law (See: bondholders, Chrysler). You can't make an omlette without breaking a few eggs, as the saying goes. But we are (presumably) a nation of laws and if the government violated the law, then AIG has every right to pursue legal remedies.

Rich With Irony

Even if AIG’s board declines to join the suit, Rickards says Greenberg could bring the case in the corporation’s name under Delaware law. The term for this is a "derivative suit." This has nothing to do with the complex financial instruments that brought AIG to its knees and almost destroyed the global economy, but it sure is ironic.

A further bit of irony: AIG is currently running ads “thanking” the American taxpayer for the bailout and noting the government ultimately made a $22 billion profit. (Please don’t get me started on the fallacy of all the “profits” we made on the bailout.)

“AIG has paid back its debt to America with a profit, and we mean it when we say ‘thank you’ to the American people,” AIG CEO Robert Benmosche, said in a statement.

Related: What's Inside America's Banks? No One Knows, Says ProPublica's Jess Eisinger

Benmosche and the company may indeed be sincere. And the company certainly does have rights and obligations to pursue this case, as noted above. But given the history here, it sure seems like AIG is flipping American taxpayers “a giant middle finger” by even considering this move, as Neil Barofksy, former TARP inspector general and author of Bailout, tells Politico.

Aaron Task is the host of The Daily Ticker and Editor-in-Chief of Yahoo! Finance. You can follow him on Twitter at @aarontask or email him at altask@yahoo.com

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