Here is a copy of the Complaint in Louise Rafter et al. v. U.S., Pershing Square’s Takings case in the U.S. Court of Federal Claims. I will blog about it later, but thought that some might want to see it as soon as possible because it is not widely available yet.
Judge Sweeney of the Court of Federal Claims issued an Opinion and Order regarding jurisdictional discovery as well as a related Protective Order in the GSE Takings Case brought by Fairholme against the United States. I had previously discussed the possibility of a protective order here.
By way of background, and as explained in the Opinion and Order,
Defendant [the U.S.] has filed a motion to dismiss, contending that the court lacks jurisdiction to hear this case, that plaintiffs’ claims are not ripe, and that plaintiffs [Fairholme et al.] have failed to state a claim for a regulatory taking. Plaintiffs respond that defendant’s motion relies upon factual assertions that go well beyond, and in many respects, conflict with, their complaint. The court thus entered an order on February 26, 2014, allowing the parties to engage in jurisdictional discovery. (1-2)
Judge Sweeney discussed the likely scope of jurisdictional discovery in a hearing on June 4th. She suggested that the big issue would be the extent to which she was going to defer to the federal government as to its request the discovery be limited in order to allow the government discretion in its operational and policy roles in the housing finance system. The judge indicated that she might be open to a limited protective order that allowed the plaintiffs to examine documents under certain restrictions so that they are not made public.The judge also made clear that she was not going to authorize a fishing expedition.
The Opinion and Order is pretty consistent with what she had suggested in June, but I would characterize it as a tactical win for the plaintiffs. Judge Sweeney signaled that she was not going to be overly deferential to the federal government. This was clear throughout the Opinion and Order, regarding the scope of the Court’s jurisdiction over matters involving the FHFA, regarding the scope of the deliberative process privilege and regarding the overall scope of jurisdictional discovery that the Court will allow. The plaintiffs should very happy with this result.
Bloomberg Industries Litigation Analyst Emily Hamburger interviewed me about The Government as Defendant: Breaking Down Fannie-Freddie Lawsuits (link to audio of the call). The blurb for the interview is as follows:
As investors engage in jurisdictional discovery and the government pleads for dismissals in several federal cases over Fannie Mae and Freddie Mac stock, Professor David Reiss of Brooklyn Law School will provide his insights on the dynamics of the lawsuits and possible outcomes for Wall Street, the U.S. government and GSEs. Reiss is the author of a recent article, An Overview of the Fannie and Freddie Conservatorship Litigation.
Emily questioned me for the first half of the one hour call and some of the 200+ participants asked questions in the second half.
Emily’s questions included the following (paraphrased below)
- You’re tracking several cases that deal with the government’s role in Fannie Mae and Freddie Mac, and I’d like to go through about 3 of the major assertions made by investors – investors that own junior preferred and common stock in the GSEs – against the government and hear your thoughts:
- The first is the accusation that the Treasury and FHFA’s Conduct in the execution of the Third Amendment was arbitrary and capricious. What do you think of this?
- Another claim made by the plaintiffs is that the government’s actions constitute a taking of property without just compensation, which would be seen as a violation of the 5th Amendment – do you think this is a stronger or weaker claim?
- And finally – what about plaintiffs asserting breach of contract against the government? Plaintiffs have said that the Net Worth Sweep in the Third Amendment to the Preferred Stock Purchase Agreement nullified Fannie and Freddie’s ability to pay dividends, and that the two companies can’t unilaterally change terms of preferred stock, and that the FHFA is guilty of causing this breach.
- Is the government correct when they say that the section 4617 of the Housing and Economic Recovery Act barred plaintiff’s right to sue over the conservator’s decisions?
- Former Solicitor General Theodore Olson, an attorney for Perry Capital, has said that the government’s powers with respect to the interventions in Fannie and Freddie “expired” – is he correct?
- Can you explain what exactly jurisdictional discovery is and why it’s important?
- Do we know anything about what might happen if one judge rules for the plaintiffs and another judge rules for the government?
- Is there an estimate that you can provide as to timing?
- Are there any precedents that you know of from prior crises? Prior interventions by the government that private plaintiffs brought suit against?
- How do you foresee Congress and policymakers changing outcomes?
- What do we need to be looking out for now in the litigation?
- How does this end?
You have to listen to the audiotape to hear my answers, but my bottom line is this — these are factually and legally complex cases and don’t trust anyone who thinks that this is a slam dunk for any of the parties.