FNMA and FMCC preferreds. In search of the elusive 10 bagger.

[Guest cherzeca]

Jacobs responded to the MDL action by saying what we all know:

• Their action has nothing to do with the other ones
  
• The defendants are forum shopping because none of the four cases is even based in DC
  

 

very impressed with potter anderson.  http://gselinks.com/Court_Filings/Judicial_Panel/MDL-2713-0021.pdf

 

Very well written!

Does anyone know the average time for MDL panel to make the decision after hearing? GSELinks says if the parties move fast, hearing will be held in May, but I bet FHFA will drag its reply to the last minute. Do you think we can make the hearing in May?

 

looks like fhfa has 7 days to reply. so i cant think why this isnt heard 5/26  http://www.jpml.uscourts.gov/sites/jpml/files/Summary%20of%20Panel%20Rules_Revised_10-4-2010.pdf

[muscleman]

Jacobs responded to the MDL action by saying what we all know:

• Their action has nothing to do with the other ones
  
• The defendants are forum shopping because none of the four cases is even based in DC
  

 

very impressed with potter anderson.  http://gselinks.com/Court_Filings/Judicial_Panel/MDL-2713-0021.pdf

 

Very well written!

Does anyone know the average time for MDL panel to make the decision after hearing? GSELinks says if the parties move fast, hearing will be held in May, but I bet FHFA will drag its reply to the last minute. Do you think we can make the hearing in May?

 

looks like fhfa has 7 days to reply. so i cant think why this isnt heard 5/26  http://www.jpml.uscourts.gov/sites/jpml/files/Summary%20of%20Panel%20Rules_Revised_10-4-2010.pdf

 

I am sure FHFA will file a motion to extend the deadline, as they have done many times in various other cases.  :D

With that said, even if they extend to April 30th, it still seems to be able to make it to the 5/26 hearing.

 

The link doesn't say when the court will rule after the hearing. Hope it is not too long.

[doughishere]

Peter Chapman.

 

Prof. Yoo filed a request today for permission to file an amicus brief in support of the Class Plaintiffs' request to be able to reference a limited amount of confidential discovery material during oral argument before the D.C. Circuit in Perry v. Lew on Fri., Apr. 15, and copies of his request and proposed amicus brief are attached to this e-mail message.  Prof. Yoo points out that the documents to which the Class Plaintiffs want to refer aren't privileged, or the Class Plaintiffs wouldn't have them, so the reason this handful of documents more than three-years-old isn't public is not because they are privileged but because the government doesn't want the public to second guess its decision to nationalize the GSEs and wants to avoid public criticism. 

 

13-465-0307.pdf

[Guest cherzeca]

Peter Chapman.

 

Prof. Yoo filed a request today for permission to file an amicus brief in support of the Class Plaintiffs' request to be able to reference a limited amount of confidential discovery material during oral argument before the D.C. Circuit in Perry v. Lew on Fri., Apr. 15, and copies of his request and proposed amicus brief are attached to this e-mail message.  Prof. Yoo points out that the documents to which the Class Plaintiffs want to refer aren't privileged, or the Class Plaintiffs wouldn't have them, so the reason this handful of documents more than three-years-old isn't public is not because they are privileged but because the government doesn't want the public to second guess its decision to nationalize the GSEs and wants to avoid public criticism.

 

very interesting.

 

on an investors unite call recently, woo was a speaker on privilege, and bill maloni (former fnma exec) suggested to woo that he write an amicus on the motion to compel.  woo is a recognized scholar on executive branch powers, and on executive privilege.

 

this may be a trial run, to see if judge sweeney is cool to amici

[muscleman]

Any body followed the Piszel case?

I listened to the Appeal arguments today and the judge seems to be heavily sided with the US government.

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-5100.mp3

 

I don't think there is any direct relevance to our cases here though.

[Guest cherzeca]

Any body followed the Piszel case?

I listened to the Appeal arguments today and the judge seems to be heavily sided with the US government.

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-5100.mp3

 

I don't think there is any direct relevance to our cases here though.

 

i havent paid much attention to piszel, but if you listen at about the 10 minute mark, the circuit court talks about resisting the govt's "grand theory"...which is that the conservator can essentially do what it wants under HERA.....when piszel can still bring a simple breach of contract case against fmcc, which permits the court to simply say there is no taking not because fhfa can do what it wants, but because piszel can still sue fmcc

 

the govt's grand theory is very much at issue in perry

[muscleman]

Any body followed the Piszel case?

I listened to the Appeal arguments today and the judge seems to be heavily sided with the US government.

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-5100.mp3

 

I don't think there is any direct relevance to our cases here though.

 

i havent paid much attention to piszel, but if you listen at about the 10 minute mark, the circuit court talks about resisting the govt's "grand theory"...which is that the conservator can essentially do what it wants under HERA.....when piszel can still bring a simple breach of contract case against fmcc, which permits the court to simple so there is no taking not because fhfa can do what it wants, but because piszel can still sue fmcc

 

the govt's grand theory is very much at issue in perry

 

Got it! I think I missed the point when I listened to it.  :D

I kept hearing the judge interrupting the plantiff lawyer "What's been taken here? What's lost?"

But I missed the relevant point to Grand Theory.

[Guest cherzeca]

this may be a theory too far, but if you think about legal movements and mini-revolutions in the law, it is usually not the situation where there is only one case, you usually see strength in numbers more than one.

 

in the DC circuit court of appeals next week, on tuesday there will be the PHH case and friday fnma/fmcc.  each to be argued by ted olson of gibson dunn.  both involve what might be called judicial engagement cases, meaning cases that invite the court to restrain administrative agency overreach, as opposed to exercising judicial deference to administrative agency discretion.

 

the PHH case involves overreach by the CFPB, when he turned a $9 million judgment by an ALJ, for PHH requiring customers to buy its own reinsurance, into a $119 million judgment, on a theory of continuing violation each time a reinsurance premium payment was made. this judgment should be struck down on the merits, as a matter of statutory construction and the APA.

 

but there is something more interesting afoot.

 

this past week, the merits panel issued an order asking parties to address at oral argument whether the CFPB is unconstitutional, insofar as it violates the separation of powers doctrine (single administrator, not removable except for cause by president, who is outside congressional appropriation limits since he is funded by fed).  i wont get too deep into the merits here and now, but this is an analysis that would very much invoke the kind of judicial inquiry championed by originalists and legal libertarians (think richard epstein, and possibly judges brown and ginsburg, who will sit on the fnma/fmcc merits panel on friday).

 

from a realist point of view, my simple point is that it will be easier for judges brown and ginsburg to "do the right thing" in fnma/fmcc if they see the PHH merits panel (led by superstar judge kavanugh) "do the right thing" in PHH

[Luke 532]

Feds forced to hand over "Fast and Furious" documents.  Here's hoping for the same with GSE's.

[doughishere]

Feds forced to hand over "Fast and Furious" documents.  Here's hoping for the same with GSE's.

 

Huh? Fast and furious documents?

[Luke 532]

Feds forced to hand over "Fast and Furious" documents.  Here's hoping for the same with GSE's.

 

Huh? Fast and furious documents?

 

http://www.cnn.com/2016/04/08/politics/obama-administration-turns-over-fast-and-furious-documents/index.html

[merkhet]

http://www.politico.com/story/2016/04/obama-relents-in-fight-over-fast-and-furious-documents-221741

 

In her ruling, U.S. District Court Judge Amy Berman Jackson did not turn down Obama's privilege assertion on the merits. Instead, she said authorized public disclosures about the operation in a Justice Department inspector general report essentially mooted the administration's drive to keep the records secret.

 

I haven't read the opinion directly yet, but if the Politico reporting is accurate, that could be interesting for our pending motion to compel.

[doughishere]

Justice Department spokesman Patrick Rodenbush confirmed that the administration does not plan to appeal. He argued that Jackson's ruling validated Obama's initial claim of privilege.

 

Merk, where do you get the opinion.

 

 

The Department of Justice is pleased that the district court ... continued to recognize that the deliberative process component of the executive privilege exists and was a valid basis for the Department to withhold certain documents when requested by the House in 2011. Although the Department disagrees with the district court's conclusion that the privilege was overcome in this particular case by disclosures and statements made in other contexts, the Department has decided not to appeal the court’s judgment and has provided a production of documents to the House Committee on Oversight and Government Reform," Rodenbush said in a statement.

 

 

Talk about saving face.

 

 

"As we've long asserted, the Committee requires and is entitled to these documents," Chaffetz said in a statement. "They are critical to the Committee’s efforts to complete meaningful oversight. The Committee has a duty to understand and shine light on what was happening inside DOJ during the time of this irresponsible operation. Yet DOJ has obstructed our investigative work for years."

 

God. That sounds familiar. To bad theres no House committee working for share holders.

[merkhet]

https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2016

 

Opinion is from January 19, 2016.

[doughishere]

https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2016

 

Opinion is from January 19, 2016.

 

 

Yeah. I read that in the article. Fascinating website. Thx

[Luke 532]

Below is from Peter Chapman today... interesting that some documents will be unsealed.

 

Judge Sweeney entered two Orders this afternoon:

 

    -- Doc. 310, denying Prof. Yoo's motion to file an amicus brief; and

 

    -- Doc. 311, granting in part and denying in part the Shareholders' request to unseal the handful of documents lodged with the D.C. Circuit.

 

Both orders are under seal and are not available to the public at this time. How this affects oral argument before the D.C. Circuit Friday morning is unknowable at this time.

[merkhet]

Below is from Peter Chapman today... interesting that some documents will be unsealed.

 

Judge Sweeney entered two Orders this afternoon:

 

    -- Doc. 310, denying Prof. Yoo's motion to file an amicus brief; and

 

    -- Doc. 311, granting in part and denying in part the Shareholders' request to unseal the handful of documents lodged with the D.C. Circuit.

 

Both orders are under seal and are not available to the public at this time. How this affects oral argument before the D.C. Circuit Friday morning is unknowable at this time.

 

Beat me to it. My guess is that it allows them to reference the materials at oral arguments before the courts, but that it did not allow for the removal of the protected designation from the documents wholesale.

 

We will see how this translates into the oral arguments on Friday. As mentioned before, I plan on attending, and I'll report back what transpires.

[doughishere]

Below is from Peter Chapman today... interesting that some documents will be unsealed.

 

Judge Sweeney entered two Orders this afternoon:

 

    -- Doc. 310, denying Prof. Yoo's motion to file an amicus brief; and

 

    -- Doc. 311, granting in part and denying in part the Shareholders' request to unseal the handful of documents lodged with the D.C. Circuit.

 

Both orders are under seal and are not available to the public at this time. How this affects oral argument before the D.C. Circuit Friday morning is unknowable at this time.

 

Beat me to it. My guess is that it allows them to reference the materials at oral arguments before the courts, but that it did not allow for the removal of the protected designation from the documents wholesale.

 

We will see how this translates into the oral arguments on Friday. As mentioned before, I plan on attending, and I'll report back what transpires.

 

 

Appreciate it Merk

[Luke 532]

My guess is that it allows them to reference the materials at oral arguments before the courts, but that it did not allow for the removal of the protected designation from the documents wholesale.

 

Good enough for me.  Making progress slowly but surely.

 

[Guest cherzeca]

the request for the woo amicus seemed completely misplaced.  arguing that these materials are not privileged, and by the way couldn't be. well duh of course they are not privileged, they are under seal.  no problem with that being denied.  i assume that Ps counsel thought it was too late for woo to amicus the motion to compel, so they would try to sneak it in on request re oral arg.  seemed weird.

 

as for order granted in part, i think merkhet has it exactly right.  remember the motion was in alternative:  **SEALED**Joint MOTION JOINT MOTION TO REMOVE THE PROTECTED INFORMATION DESIGNATIONS FROM DOCUMENTS FILED IN THE D.C. CIRCUIT CITED IN THE MERITS BRIEFING, AND, IN THE ALTERNATIVE, JOINT MOTION TO MODIFY THE PROTECTIVE ORDER TO PERMIT REFERENCE TO THESE MATERIALS AT ORAL ARGUMENT.  so if sweeney goes halfway, references permitted in oral arg would be the halfway stop

 

edit:  btw, if you think about it, if this is what sweeney granted, this is a big win for Ps.  all Ps really wanted was to refer to discovery in oral args, as it already is in the briefs.  so the motion was smartly drafted, in the sense that it gave sweeney (who seems to be an incrementalist) cover to say no in connection with the granting of motion Ps really wanted

[Grenville]

Below is from Peter Chapman today... interesting that some documents will be unsealed.

 

Judge Sweeney entered two Orders this afternoon:

 

    -- Doc. 310, denying Prof. Yoo's motion to file an amicus brief; and

 

    -- Doc. 311, granting in part and denying in part the Shareholders' request to unseal the handful of documents lodged with the D.C. Circuit.

 

Both orders are under seal and are not available to the public at this time. How this affects oral argument before the D.C. Circuit Friday morning is unknowable at this time.

 

Sorry if I missed this, but where do you find the Peter Chapman info regarding the orders this afternoon? I don't see it yet on GSElinks (Is there a site or another msg board?)

[Guest cherzeca]

Below is from Peter Chapman today... interesting that some documents will be unsealed.

 

Judge Sweeney entered two Orders this afternoon:

 

    -- Doc. 310, denying Prof. Yoo's motion to file an amicus brief; and

 

    -- Doc. 311, granting in part and denying in part the Shareholders' request to unseal the handful of documents lodged with the D.C. Circuit.

 

Both orders are under seal and are not available to the public at this time. How this affects oral argument before the D.C. Circuit Friday morning is unknowable at this time.

 

Sorry if I missed this, but where do you find the Peter Chapman info regarding the orders this afternoon? I don't see it yet on GSElinks (Is there a site or another msg board?)

 

sealed order from fairholme docket.  **SEALED** ORDER granting in part and denying in part 304 Motion. Signed by Judge Margaret M. Sweeney. (ta) Copy to parties. (Entered: 04/11/2016)

[Luke 532]

Pulitzer Prize winner Morgenson with another article...

http://www.nytimes.com/2016/04/13/business/fannie-mae-suit-bailout.html?smid=tw-share

[Luke 532]

Pulitzer Prize winner Morgenson with another article...

http://www.nytimes.com/2016/04/13/business/fannie-mae-suit-bailout.html?smid=tw-share

 

My favorite part:

In her deposition, Ms. McFarland said that she believed her conversation with the Treasury propelled the government to change the terms of the bailout to seize Fannie’s and Freddie’s profits. "When the amendment went into place," Ms. McFarland testified, "part of my reaction was they did that in response to my communication of our forecasts and the implication of those forecasts, that it was probably a desire not to allow capital to build up within the enterprises and not to allow the enterprises to recapitalize themselves."

[merkhet]

Pulitzer Prize winner Morgenson with another article...

http://www.nytimes.com/2016/04/13/business/fannie-mae-suit-bailout.html?smid=tw-share

 

Looks like they made a few documents public. This will make Friday very interesting.