Legal Fault Lines Over Puerto Rico Restructuring Law Come Into Focus

Puerto Rico's also argues that its public entities "are not currently governed by any federal bankruptcy law," similar to banks and insurance companies who are expressly excluded from the Bankruptcy Code's eligibility provisions set forth in section 109(b). In this case, Puerto Rico argues that while Congress enacted federal bankruptcy law in the form of the Bankruptcy Code, Puerto Rico is excluded as a debtor from the Bankruptcy Code and its publicly owned business entities are "governmental units" ineligible to seek relief under chapter 11. Based on these exclusions, Puerto Rico argues that the Recovery Act is an appropriate exercise of its police power because it is effectively filling the gap created by the Bankruptcy Code.


The battle against Puerto Rico's independent restructuring efforts is becoming more clear as a third opponent, BlueMountain, joined Franklin Templeton and Oppenheimer in litigation challenging the recently enacted Public Corporation Debt Enforcement and Recovery Act. With BlueMountain's complaint, funds managing more than $2.1 billion of the $8.6 billion PREPA bonds outstanding, the litigating parties represent a heavy percentage of PREPA bondholders actively opposed to the Recovery Act.

When viewed together, the complaints provide a clear picture both of what is at stake and what challenges the Recovery Act will face. The theme of the opposition is that the Recovery Act violates both the U.S. Constitution and the Puerto Rico Constitution as well as federal law. While both complaints seek to invalidate the law, BlueMountain also requests injunctive relief against any attempts by Puerto Rico or its publicly owned corporations to enforce or implement the Recovery Act.

The recently filed motions to dismiss filed by the Commonwealth of Puerto Rico and the Puerto Rico Electric Power Authority, or PREPA, also display the legal roadmap for efforts to defend the Recovery Act. PREPA and Puerto Rico stress that the Recovery Act is a valid exercise of the legislature, as evidenced by language introducing the legislation, which provides that the Recovery Act "is not a bankruptcy act, but an orderly debt enforcement act for the eligible public corporations."