Editor: David Reiss
Brooklyn Law School

November 29, 2017

Another FHFA Win Against Shareholders

By David Reiss

The U.S. Court of Appeals for the Sixth Circuit issued an opinion in Robinson v. FHFA et al. (No. 16-6680, Nov. 22, 2017) that is another win for the federal government in the fight with shareholders over Fannie and Freddie’s profits. The Court summarizes the issue presented as follows:

Appellant Arnetia Joyce Robinson is a stockholder in the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”; collectively, the “Companies”). During the economic recession in 2007–2008, Congress enacted the Housing and Economic Recovery Act of 2008 (“HERA”), which created an agency, Appellee Federal Housing Finance Agency (“FHFA”), and authorized FHFA to place the Companies in conservatorship. The Companies, through FHFA as their conservator, entered into agreements with Appellee Department of the Treasury (“Treasury”) that allowed the Companies to draw funds from Treasury in exchange for dividend payments and other financial benefits. The Third Amendment to those agreements modified the dividend payment structure and required the Companies to pay to Treasury, as a quarterly dividend, an amount just short of their net worth. The Third Amendment effectively transferred the Companies’ capital to Treasury and prevented dividend payments to any junior stockholders, such as Robinson. Robinson brought suit against FHFA, its Director, and Treasury, alleging that the Third Amendment violated the Administrative Procedure Act (“APA”). The district court found that Robinson’s claims were barred by HERA’s limitation on court action and that Robinson had failed to state a claim upon which relief can be granted. We AFFIRM. (2)

As I have argued previously, I think that courts have been getting these cases right — HERA granted the FHFA broad authority to act as conservator. In the words of the Court, “Congress granted to the Companies ‘unprecedented access’ to guaranteed capital from Treasury. And, in exchange, Congress also granted FHFA unparalleled authority to manage the Companies’ business.” (17) While I would not count out the plaintiffs in these cases, courts have been coming up with pretty consistent results based upon their reading of HERA.

A lot of what you read on the web about these cases is filled with a certainty about the wrongfulness of the government’s actions that borders on the fanatical. I recommend that those who want to get a sense of the legal issues at stake read the cases themselves. The judges have been struggling with the structure and text of the relevant statutes and have been making very reasonable determinations about their meaning.

But these cases are far from over. We still have to see what the Supreme Court has to say on these issues, and plaintiffs may get a more sympathetic hearing there.

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