November 18, 2014
I was on an interesting panel today on the state of the Fannie/Freddie shareholder litigation. Judge Lamberth’s ruling in Perry Capital LLC v. Lew et al. was bad news for the plaintiffs in all of the shareholder suits. The panel was hosted by Michael Kim, CRT Capital Managing Director & Senior Research Analyst, and featured
- John Carney – Wall Street Journal
- Richard Epstein – NYU Law School
- Jonathan Macey – Yale Law School
- David Reiss – Brooklyn Law School
The agenda for the panel included
- an overview of the litigation timeline for the cases in Iowa District Court, the Court of Federal Claims and the U.S. Court of Appeals for the District of Columbia
- a detailed analysis of Judge Lamberth’s Ruling and
- a review of legal strategies and the outlook going forward
The more of these panels I am on, the more I am struck by the passionate intensity of those representing the shareholders. They are convinced that they are not only right, but also that the judiciary will see it their way. I lack this conviction.
It is not that I am so sure that the shareholders will ultimately lose (although that is a good possibility). Rather, it is that the facts and the law are extraordinarily complex in these cases. Because of this complexity, I find it hard to predict how the judges assigned to hear these cases will choose to frame them.
Judge Lamberth and other judges deciding cases arising from government action during the financial crisis often frame their decisions with a narrative of extraordinary government intervention during a period of great uncertainty. As a result, those judges have granted the government as much deference as they can.
Many of the shareholder advocates analogize from precedents drawn from more pedestrian situations and believe that courts will hew closely to them. I am quite skeptical of that approach. Judges lived through the crisis too and are all too aware of the precipice we were on. I think they will think twice before second guessing those who had to call the shots with such severely limited information, and did so while under unrelenting pressure to get it right when the stakes were so high.| Permalink