merkhet

Off the top of my head, Winstar. https://en.m.wikipedia.org/wiki/United_States_v._Winstar_Corp. There are others, but I would have to dig.

Hume covered this in his oral arguments before the appeals court on April 15. The issue is that prior to the NWS, if the government wanted more than its 10% dividend on the senior preferred, it would have had to declare dividends on the junior preferred first, and then collect the remainder based on its 79.9% ownership of the equity of the GSEs. Instead, they leapfrogged the junior preferred. Alternatively, under a liquidation scenario, the government has essentially taken more than it was supposed to take under the original 10% dividend and repayment of the government preferred at par. If you plot out the cash flows based on this, you'll see that this also breaches the liquidation preference on the junior preferred shares based on their certificate.

What do you mean by split decision? If one of the claims is denied and the other claim is not, then that's the claim that goes through. I guess I don't understand the question. Alternatively, it may be difficult to provide an answer to the question because it's difficult to know which claim, under what reasoning, etc.

As someone who was also asked in PM re percentages, my percentage estimates are closer to @Steve_Berk than @cherzeca -- though I have a much higher chance for breach of K to work out and therefore a concomitantly higher chance for reversal vs remand. Again, as much as I would like to believe judges are immune to the herd, I know that's not true -- so the last few days have been inauspicious for us. I would also hazard to say that I think that Judge Sleet's view in Delaware is that even if Delaware law does not allow for the kind of dividend implicated here in the NWS, that may not matter if 4617(f) acts as a total removal of jurisdiction. (As opposed to there being some other provision that allows FHFA to create a NWS.) So that if there is a ruling showing that 4617(f) does not cover actions that are ultra vires, then he might then allow for certification.

It's better to have three uncorrelated bets than two -- and the merits on Delaware are incredibly easy.

It's definitely a negative. I was somewhat flabbergasted by the same thing that Steve pointed out about how knowing the general question as to whether DE law allows for this kind of a security does not answer the specific question. In fact, it seems like the judge might be hinting that FHFA might have been granted some ability to do something that is generally prohibited as a result of HERA. My initial thought is that this sort of collapses the DE case into the same inquiry as the Perry case, which is unfortunate. In other words, what might have been two uncorrelated bets is now the same linked bet.

Just to clarify, my comments on the judicial herd are meant to focus on the APA claims brought by the Institutional Plaintiffs. The Class Plaintiffs have made an argument concerning monetary damages due to a breach of contract, which are specifically carved out of 4617(f). So Judge Caldwell's decision, which leans heavily on the lack of equitable relief available to plaintiffs is inapplicable.

In theory, no. This should not affect other cases. However, it makes it psychologically more difficult for the appeals judges to break from the herd. I think the original plan was to file a bunch of lawsuits to see which one would stick, but the downside is that every time you lose one, the government lawyers will (shortly) petition the appeals court for judicial notice of that loss.

Judge Steele filed to amend Hindes' complaint in the Delaware District Court 2016-09-07_Hindes_Motion_for_Leave_to_Amend_Complaint.pdf

I don't think we should be reading tea leaves. There are a number of variables that go into why things take a while in the courts -- any one of them could have a dominant effect.

They all have the same/similar language in Section 9. Priority. Basically Series D can't possible have foreshadowed the existence of Series E/F/G, etc. So therefore, in each successive Series, there is language putting that Series on parity with the prior Series.

From the Series S Circular:

She's been doing in camera review of the documents that US treasury refused to turn over. Who know how long that's gonna take. A little under three months since the June deadline for presidential privilege.

I usually go for incompetence over conspiracy.

Having just re-read Pagliara, I haven't the faintest clue how it would be possible to have standing to bring a direct claim... and yet not actually have the right to the direct claim itself. The whole point of the injury-in-fact prong of standing is that the plaintiff had a legally cognizable protected interest that was violated. This is a really poorly written decision.

For the reasons @hardincap mentioned

I notice that they stopped short of saying that direct claims were transferred. I think there are too many cooks in this kitchen. On balance, the Pagliara thing is a negative. Not a huge one, but one we probably could have done without.

@cherzeca, IIRC, there was no discussion that the direct claims were taken away because that would have automatically implicated the Takings clause @hardincap, same response as above -- if the direct claims were taken, then based on Piszel, we have a Takings clause issue

If it's a unanimous decision, I wouldn't be surprised to see Millett writing it. But there's no way to know who will be writing it beforehand.

I would throw in a small point that other people haven't noted yet. The Court of the Federal Circuit is the appeals court to the Court of Federal Claims, which means that this Piszel case is direct precedent to the Fairholme case before Judge Sweeney. Meaning that if the appellants lose the breach of K case because of the reasons that FHFA argues in terms of "all is all," then, automatically, the Fairholme case gets to move forward with their Takings claims.

http://www.bloomberg.com/news/articles/2016-08-18/the-fix-is-out-fannie-and-freddie-heading-for-new-troubles

Geographical breakdowns are key. How much of this subprime business is the fallout from oil/mining related workers that are now having a hard time keeping up with their bills?

http://blogs.wsj.com/moneybeat/2016/08/12/someone-pretending-to-be-charlie-sheens-character-from-wall-street-has-a-question-about-harambe/

http://www.bloomberg.com/view/articles/2016-08-08/fannie-and-freddie-will-be-profitable-after-their-next-bailouts-too