How to Not Pay the AIG Bonuses

March 16, 2009

Barack Obama is a lawyer — and a very good one, too, by all accounts. Andrew Cuomo, too, is a lawyer, and is attorney general of New York. And neither of them seem remotely impressed by AIG’s protestations that it’s contractually obliged to pay out $165 million in bonuses to members of the very financial products group which brought the company to its knees.

Is there a legal way to stop these payments being made? I don’t know. Cuomo’s attempt to paint the bonuses as "fraudulent conveyance" seems like a bit of a stretch, while a legislation trying to retroactively claw the bonuses back would easily pass Congress, only to face certain appeal on the grounds of being unconstitutional.

But right now, even Cuomo hasn’t seen the contracts which AIG is convinced are so ironclad. And it might just be the case that AIG’s contractual obligation to make the bonus payments is a bit like an underwater homeowner’s contractual obligation to make his mortgage payments. If AIG simply didn’t pay the bonuses, would the employees of the financial products arm really fancy their chances in court were they to sue to receive them?

It’s possible that they would "win" such a court case — if by winning you mean having your picture splashed across every TV screen in the land as an exemplar of out-of-control greed and avarice. Which is why AIG could probably have quite a persuasive conversation with the AIGFP employees, along these lines:

"We know we promised you this money, but it’s clearly politically impossible for us to pay it to you. So you’re not getting the bonus you were counting on. Sorry about that. At this point, you have three choices. You can continue to work for us, and keep your job. You can quit, and find a better-paying job elsewhere. Or you can quit, and sue us for the bonus that we promised you. Your call. But if you choose the third option, you’ll probably want to hire a PR person at the same time as you hire a lawyer."

I suspect that most of the affected employees would not sue AIG, and that the bonus payments would therefore be saved. It’s hardball, but it might well be effective.

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