This is a final follow up on my recent posts, Fannie and Freddie: The NWS and the Implied Covenant of Good Faith and Fair Dealing and Some Further Thoughts on the Implied Covenant. (Yes, I get three swings at a pitch.) I want to spend just a little more time on the comment by Francis G. X. Pileggi in his Delaware Corporate & Commercial Litigation Blog, that I highlighted previously:
Thanks for all your insightful analysis. What do you think the remedy would likely be if the shareholders win this case? Would it be paid to the companies or to the shareholders directly? Would it be equal to (or based on) how much the government has been overpaid as a result of the Third Amendment relative to the original deal with a 10/12% dividend rate? Would there likely be a discount/haircut to that? Or would it be based on something else?
ROLG - thanks for that explanation regarding the reasoning behind the existence of the implied covenant. I admittedly have read many contracts over the years and don't believe I've received as good of an explanation!
I do have a question regarding the GSE litigation that I would appreciate your insight, if you are so inclined. I think I recall in some context earlier in the Lamberth related case a pleading or ruling that essentially spoke to, either implied or expressly stated, that a shareholder of the GSEs should have known or at least contemplated that ownership of the GSE shares was "different" (than say owning Apple) given the nature of the GSEs (that the charters provide or come along with a public policy or mission). I may be wrong, but I took that as saying 'you as an owner of the junior preferreds' need to recognize that this publicly traded security (that has a special charter to carry out a public mission) may incur certain conditions that require or warrant appointment of a conservator or receiver which represents additional inherent risk.
My questions is the following: Let’s assume a prospective buyer of the preferreds was aware of the risk that a conservator (or receiver) could be appointed under certain conditions that may or would negatively impact their interest, BUT a ruling by Scotus (in Collins on the APA) essentially broadened/re-defined/expanded (not sure the right word there) THIS conservator's powers beyond any previously appointed conservator in U.S. history, how was one to have contemplated that prior to purchase of the securities? In what context or litigation would that kind of 'argument' apply with the GSEs, if at all? I may likely be way off base, but it has been something I've been thinking about post the Scotus Collins ruling. I feel as if a prospective investor was being asked to understand the "definition" of the powers and latitudes of a conservator, but they have now changed/expanded the definition after the fact. Thank you, Jack