merkhet

FWIW, I heard back from Justice Steele this morning indicating that he also thinks the procedural concerns are the tougher hurdle, though he said he was not surprised by their arguments.

As much as I agree that discovery is likely providing damning evidence against the government, I have to reiterate my worries here about procedural versus substantive law. This is a bit difficult for the non-lawyers to understand, but just being right on the merits is not enough. You also have to be procedurally (jurisdiction, standing, etc.) allowed to bring the case. Although, despite my procedural worries, I did slightly increase my position yesterday.

you may be right, but sleet may want oral argument. if so that will move the decision back a couple of months. on a case like this, i sure would want oral arg Good point. There could also be a delay in terms of the "conflict of interest" re shareholder rights. If that's the case, I could see the court delaying things a little bit by asking for some proof of the conflict from the discovery documents in Fairholme.

I'm thinking we hear one way or another from the Delaware court in March. The MTD is fully briefed as of yesterday and the certification application will be fully briefed by February 26. Can't imagine it will take too long to get a response.

The main worries here remain procedural. If the 4617(f) bar and succession to both derivative and direct shareholder rights continue to hold up for the Government, then the courts never get to the merits.

True, but I am neither Soros nor Druck.

Probably a spillover emotional result of the "reversal" of the "denial" of the MTD in the Saxton case. At least that's what I think my current worries are attributed to at the moment. I also increased my position this morning, so that might be it as well.

This is very odd...

That's the quandary. They're supposed to have one a priori. They can't just make one up now. Yes and yes. Although, I would temper our enthusiasm because it's still possible for us to lose the summary judgment on the merits...

No idea on the timeline. In 1.5 years, I have been 100% wrong on the timeline for this thing to play out. So, you know -- I'm going to accept the feedback that I have zero timeline forecasting ability. Also no idea about near term pops. Neither positive news nor negative news seems to have much effect on other securities prices in this environment, so I haven't the faintest clue on near term pops.

It's a motion asking the court to decide the case without a full trial.

This is likely because Saxton figured either Defendants would provide an entire administrative record, which would support their case, or they would file a record inadequate to defend against a motion for summary judgment -- despite what happened in the Lamberth court. From the motion to dismiss: http://gselinks.com/Court_Filings/Saxton/15-00047-0019.pdf The Defendants basically asserted two things: (1) HERA precludes the Court from having jurisdiction, and (2) the Perry court has already decided these issues. So when I read that the most recent order denied the pending motions to dismiss as moot, that reads to me like the Court has decided that HERA does not preclude the Court from having jurisdiction AND that they have decided (for whatever reason) that the Perry court erred in its decision. (Possibly because the record was incomplete based on misleading facts and/or lying.) That's big. It now sets up another run at the merits of the case through a summary judgment motion rather than having to fight all this procedural crap. thanks for your thoughts merkhet (which means what btw?), you are thinking along my way of thinking. but 2 things: 1. why moot? moot for nonlawyers means that some element of the motion to dismiss no longer exists or applies, so the motion to dismiss is no longer appropriate for judicial consideration. this is different from just rejecting the motion to dismiss on the merits. so what happened? what is judge reade thinking? fhfa must be going apeshit now. without an opinion, it is impossible to understand this turn of events. 2. Judge reade has the reputation for being a hardass, fair, smart but tough on the parties and their lawyers. good luck to fhfa if it wants extension to file admin record. recall that judge reade rejected plaintiffs attempts to file amicus briefs before plaintiffs rushed in with their amended complaint. Yea, the moot thing is a bit of a curve ball. That's why I think it's so interesting. My guess is that it primarily relates to thinking that "even if there would have been issue preclusion, it's moot because Lamberth didn't have all the evidence" -- though the way that she did it may also indicate that she has rejected the idea that HERA precludes the Court from having jurisdiction. Because otherwise, she could have still decided to grant the motion on the HERA basis? I think this is the first motion to dismiss that hasn't gone their way since the Lamberth opinion, no? I've been getting more bullish ever since the Delaware filing. :)

So, from my caffeine-fueled review of the Saxton case, these are the things that I found particularly interesting... From the order staying the need for an administrative record: http://gselinks.com/Court_Filings/Saxton/15-00047-0023.pdf This is likely because Saxton figured either Defendants would provide an entire administrative record, which would support their case, or they would file a record inadequate to defend against a motion for summary judgment -- despite what happened in the Lamberth court. From the motion to dismiss: http://gselinks.com/Court_Filings/Saxton/15-00047-0019.pdf The Defendants basically asserted two things: (1) HERA precludes the Court from having jurisdiction, and (2) the Perry court has already decided these issues. So when I read that the most recent order denied the pending motions to dismiss as moot, that reads to me like the Court has decided that HERA does not preclude the Court from having jurisdiction AND that they have decided (for whatever reason) that the Perry court erred in its decision. (Possibly because the record was incomplete based on misleading facts and/or lying.) That's big. It now sets up another run at the merits of the case through a summary judgment motion rather than having to fight all this procedural crap.

Ha! I'm not sure anyone would have ever called me not bullish on Fannie. :) merkhet has always been bullish. I think you have him confused with somebody else. Being cautious, as we all should be, does not mean one is neutral or bearish... it simply means one is wise. Whoa now... let's not get ahead of ourselves! I'll take the cautious label, though.

Ha! I'm not sure anyone would have ever called me not bullish on Fannie. :)

[edited for more clarity post-coffee] I would expect the government to try and seek an extension. Except, if I remember correctly, the defendants indicated in the DC litigation that they didn't have an administrative record. (Pretty jet lagged, so I might be misremembering.) In any case, if I'm remembering correctly, that puts them in a pickle. If they file for an extension, then they'd better be putting something together that was more than what they filed in the DC case. (If they just file the same stuff, judge is going to wonder why the hell they needed an extension.) However, if they file something different than the DC case, that is probably bad for them since the DC case in on appeal, and one of the contentions is that they were "bad actors" in terms of not presenting a full record. However, if they only file the exact same declarations here (maybe minus the stuff where there's evidence that they were misleading/lying), then the Saxton platiniffs file for summary judgement because, presumably, the briefs showed "Fairholme evidence" that was bad enough to "moot" the motion to dismiss and probably bad enough to favor odds of a successful summary judgment motion.

I've gone through a few of the prior filings in Saxton, and it looks like the plaintiffs were originally planning to cross-file for a motion for summary judgment in response to the motion to dismiss. This could get interesting fast once FHFA has responded by March 10th.

I've been running around Los Angeles all day, so I just now was able to respond. Yes, the fact that the Iowa judge is now asking for an administrative record post-amendment w/ the Fairholme discovery items is a big deal -- I would wait to see FHFA's next move before getting too excited, but it will be interesting to see how they respond, because, as stated before, their position in DC was they didn't need to file an administrative record before the courts.

TH717 has gone dark because it's a bad idea to violate Protective Orders. I'm not sure what the consequence here will be -- but judges generally are not happy when their orders aren't followed.

That explains why the Tim Howard site has gone dark since the end of January...

Always an option: http://45.media.tumblr.com/582ac648525bb1a49c5b62526a60875b/tumblr_nzbt19UjjB1rrrncdo1_250.gif

https://www.frbatlanta.org/cqer/research/gdpnow.aspx?panel=1

let's remember that conversations between lawyer and client are privileged, so whatever conversation cooper & kirk may have had with berkowitz would not be discoverable, unless berkowitz were to waive privlege...which he wouldn't i fully expect that berkowitz has a fair idea what is in the discovery. not details of course, but color, body language. we are talking about real life and big bucks here. To be clear, Berkowitz probably knows IF the documents are favorable, but he probably doesn't know HOW/WHY the documents are favorable -- my comment was towards whether Cooper & Kirk is feeding Berkowitz document content (even w/ a wink & a nudge) with the idea that their conversations wouldn't ever see the light of day. My guess is no.

I don't think the lawyers would want to take the risk.

Nope, Chapman has a site? I got that from http://www.gselinks.com