The auction has been pulled by JPM / PXD in every single attempt that has been made to auction the properties thus far. Their entering argument seems it has always been that their liability needs to go away first, before they'll engage any of the subsequent steps of surrendering the value resident in the unit holders ownership of the properties in the trust to Texas Standard. As long as there is still an iron in the fire sustaining the risk their liability hasn't been disposed of, I doubt that they will be willing to proceed to complete any sale.
The obvious reason for that is that the claims made by the unit holders, in terms of the potential $ value of the claims to be considered at trial, isn't irrational. A worst case outcome for them is to have a large judgment of that sort entered against them only after they have disposed of the underlying assets. It appears they expect, until the liability is eliminated in fact, that they can always re-attack settlement with the majority by making some sort of a non-punitive deal with the majority of unit holders, and by doing that can eliminate the primary basis of the action, based on a simple restoration of the status quo that restores the trust and keeps it alive rather than killing it.
I expect it is true that there are a significant number of unit holders, if still not a majority now, who would be willing to settle for a simple result in the restoration of a more proper effort in trust management... but, I also think that is a window that is very rapidly closing now, if it has not already been disposed of entirely by the impact of other efforts. For now, we just don't know. I suppose the only obstacles to having that sort of thing work out would be that in the agreement of unit holders to allow it... and that in a level of trust on the part of defendants that it could ever work. Others are better qualified than I am to judge whether that sort of potential might exist. I tend to doubt the lawyers would allow it... even if it did make for the most practical result for all parties.
Defendants liability clearly hasn't gone away, yet, and will not as long as there is still any action underway, or any potential for action, that might preserve those risks. In my opinion, it is still more likely that their liability will not be going away than it is likely that it will. I've been saying that for a long time now... that, given what we see now, there is not a viable settlement that is likely to survive a challenge... and there is still a lot of potential for new challenges that isn't being addressed, yet.
I also think JPM et al know all of that... they understand that the settlement that is on the table now isn't sustainable... won't happen... that it won't stand up to any number of obvious tests... and I judge they are simply continuing to play the clock, now, while allowing Texas Standard et al to squirm, while they attempt to come to grips with the fact of their own failure to structure a viable settlement. Defendants likely greatly appreciate the effort being made by Texas Standard et al now... which seems to me mostly to have them positioning in a way that will be likely to result in them "volunteering" to help the defendants cover the eventual costs of resolution, post trial.
I've noted here already that I see multiple errors made in the "result" that has been postured... enough to make the problem in addressing the shortcomings in that result one of needing to do a proper sort in a "target rich environment".
I do expect it will be interesting to see where this goes, next... to see which of the many available targets will be addressed first... but, it ain't over.
Still more likely, IMO, that this will end only when the trial that is being demanded by some occurs, and comes to a proper end in a result, than it is likely that the current settlement will be sustained. It seems likely to me still that the current action may end without any resolution... that we may see a change of venue before proceeding on to trial. It seems this will not be ended with a self interested settlement that wrongly excuses defendants liabilities while allowing some few unit holders to benefit by violating other unit holders rights.
As always, JMHO. My financial interest here is still only a minor one. I recognize that others have far larger and longer held interests here than I do... and I accept they have every right to seek to have their trust be properly kept, and every right to seek to defend their rights using every avenue available to them. I will never agree that my recent interest in a seeking financial gain from a change in Trust fortunes, here, should outweigh their interest in having their Trust be properly governed, fairly treated, and well and fairly represented. Whatever it is that I observe in the facts and in the elements of process, I will continue to be patient, here, now expecting that I will be adding to my position here only after it is made more clear that the settlement effort that is on the table now... will NOT be sustained.
I think the game changed when the settlement effort failed / was killed... and the game now isn't a $0.10 bet on a $0.15 return... rather than a $0.10 bet on a much, much larger potential return. The facts are on intervenors side... as is the balance in what is at risk vs. the reward, and the degree of persistence. I'm still betting the Goliaths JPM/PXD will lose this one to Mr. Stampers David.
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