merkhet

Yes, I think that the breach claims are easier to decide than the other claims. I think those other claims are fine, but there are more hurdles to clear than for the breach claims, IMO.

Are you starting to think that the breach (K, fiduciary duty, etc.) claims are more likely to be decided favorably than the other claims?

Very solid briefs, and the class plaintiffs responded essentially how I expect them to respond on question 2.

I have made inquiries on this, and it seems like Sleet is slammed on his docket. I am more wondering about Sweeney's court at the moment. She has had the motion to compel on her desk for a while now. I would love to see some more documents come through.

I've met Comey before in person, and I don't think that he made this as a political calculation of any sort. Regardless, I agree w/ steve that extremely careless probably doesn't seem to rise to the level of gross negligence, but I can see why people would think it might.

I think this is mainly an optics issue -- they're both well off, so it's not that unlikely that they would be in the same fund invested in something neither of them knew about. But, this is politics, and them's the breaks -- I suspect this is additional pressure being put on by some of the people who are in this investment. Would be nice to get a resolution on this soon. Markets are looking wobbly again.

Corker & Warner http://finance.yahoo.com/news/goldman-abacus-144604786.html

I don't believe Lamberth addressed these questions nor were these things briefed. Unclear as to motive. I'm curious to read the briefs on both sides.

Ah, right. They moved the class brief when they moved the response date. Forgot to adjust my calendar.

Agree. Well drafted reply. Agree. Looking forward to reading the class plaintiffs' brief this weekend.

That's my thought as well.

It's not filed in the Delaware Court of Chancery. It's filed in the District Court of Delaware. The former is a state level court; the latter is a federal level court.

I'm continually surprised at the sloth of the District Court of Delaware. The MDL rejection came in almost a month ago, and yet, there has been no movement whatsoever from that court.

It's being raised with respect to both.

I think the concern on Liberty Global is that the U.K. is responsible for 1/3 of their revenues.

filed with judge sweeney in fairholme case, seeking lifting of seal so that robinson can argue it in her response to motion to dismiss. @merkhet as to the perry order question 1 re jurisdiction to hear fiduciary duty claim against treasury, it seems to me after a brief look that this is really an APA section 706 claim, that treasury as a controlling shareholder (preferred and warrants) owed a fiduciary duty to common under delaware corp law, and that treasury violated this duty, and there is no federal preemption. interested to hear your view. i agree with your analysis re question 2 btw. I haven't spent much time on Q1, but I could see diversity jurisdiction for SMJ & APA as a waiver of sovereign immunity.

I think those docs were already published - http://fanniefreddiesecrets.org/resources/ May 11, 2016 Docs.

Okay, so I took some time to go over some of the case law, and I think that we will win the "other claims" or Section (2) of the order. First, let's tackle the source of subject matter jurisdiction since it's the simplest one. The court has subject matter jurisdiction under the Class Action Fairness Act of 2005 (http://codes.lp.findlaw.com/uscode/28/IV/85/1332) which expanded federal jurisdiction to cover class actions with: (1) Minimal diversity - where the class comprises at least 100 plaintiffs, and where any members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed, and (2) Amount in controversy - over $5 million Both of these requirements were pled in the Initial Opening Brief for Class Plaintiffs on page 17. (http://gselinks.com/Court_Filings/Perry/14-5243-1560310.pdf) My guess is they did not fuck up on this given that it's pretty easy to fulfill. Next, let's tackle the issue of sovereign immunity. The main thing to realize is that there are two worlds here: World #1, defendant is the government: (1) You need to have some statute that allows for the suit, or (2) Some other waiver of sovereign immunity World #2, defendant is not the government: (1) You can then sue In this particular case, the argument is that the breach of contract was not regulatory in nature but rather conservatorship in nature. (If anyone can make a cogent argument for why the breach of K was regulatory, I'd be interested to hear it.) In fact, FHFA makes this case on our behalf in their motion to dismiss in the Fairholme case in front of Judge Sweeney (http://gselinks.com/Court_Filings/Fairholme/13-465-0020.pdf) on page 13: Importantly, the federal circuits of DC have some precedents concerning what happens when the FHFA is acting as a conservator. See Herron v. Fannie Mae for the stance from the trial level (https://www.gpo.gov/fdsys/pkg/USCOURTS-dcd-1_10-cv-00943/pdf/USCOURTS-dcd-1_10-cv-00943-0.pdf): Moreover, Herron repeats this again: What's interesting here is the citation to American National Insurance Company happens to be a case from the court of appeals for the D.C. Circuit (the court for the Perry Appeal)!

I haven't a clue who wrote the order. On the one hand, it could be "why shouldn't I just dismiss the common law claims?" On the other hand, it could be "I'm looking for a way to get to the common law claims on the merits." Anyhow, the first part of the question is just trying to figure out whether the Federal Tort Claims Act applies or if something else does. The second part of the question deals with various exceptions to the FTCA: http://biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm I believe regulatory actions are excepted. Moreover, if FHFA is acting as a private entity as a conservator, then that's a whole different issue.

Unclear. They could just be more thorough than Lamberth. My best guess is that they think the common law claim has merit, but they're uncertain about the jurisdictional aspects.

Attached. Here's the focus on the common law claims that people were asking about from before. I suspect that plaintiffs' response will be that FHFA was stepping into the shoes of F&F as a private entity when it was a conservator -- defendants will argue the opposite. Unfortunately for FHFA, they've argued in other cases that when the FHFA acts as a conservator, it acts as a private actor. However, even if they argue the opposite in this case, I'd expect Fairholme to immediately file in the Takings case that FHFA is a government actor. 2016-06-21_Order_for_Supplemental_Briefing_on_Jurisdiction_for_Common_Law_Claims.pdf

On the one hand, sure, it's helpful to have been assured that it wasn't sent anywhere. On the other hand, why was it in the form of an email then? Why bother with that formatting? If you guys can recall, back about a year ago, there were people leaving messages on Sweeney's answering machine and faxing things to her court. Doesn't really matter whether they try to do it through the court clerk or directly. It's a bad idea. At this point in the game, it's in the government's interest to seize on any opportunity to delay and/or throw a wrench in the process.

We live in a brave new word, merk. Why shouldn't they be doing this, just curious? Because ex parte communications like this run the possibility of prejudicing the case, leading to dismissals of cases, might get judges involuntarily recused from the case... Do I really need to go on? My apologies. I dont spend a lot of time in litigation and law. This is my first real experience in such things. No worries. My frustration isn't aimed at you. It's aimed at the guy who is trying to snatch defeat from the jaws of victory.

We live in a brave new word, merk. Why shouldn't they be doing this, just curious? Because ex parte communications like this run the possibility of prejudicing the case, leading to dismissals of cases, might get judges involuntarily recused from the case... Do I really need to go on?

Ugh, people should not be reaching out to the court directly. But I suppose there is no way to stop them.