I was shocked that SCOTUS did not permit the APA statutory claim to go forward. The constitutional claim portion of the case was presaged by oral argument questioning, so while I do not agree with that outcome either, I cant say that I was totally surprised. On a day on which SCOTUS states that a farmer can exclude from his private property union organizers, SCOTUS also decides that the conservator has the statutory authority to appropriate over $100 billion of shareholder property.
How broadly are you reading Alito's Succession Clause analysis (see 2 possibilities below)?
Relatedly, how much of what he saying, if any, is also a binding precedent?
(1) A narrow reading is that he rejects Amicus' claim, but makes no affirmative statement about which constitutional claims HERA might cut off in this or all cases; rather he only states that HERA at its broadest clearly cannot cut off a general citizens' claim of separation of powers.
(2) A broader reading is that HERA bars all claims that arise only within shareholder rights (takings, contract), i.e., those that a non-shareholder would not have. So a shareholder could bring a First Amendment right as a general citizen in a different context, but could not bring a First Amendment claim in relation to his rights as a shareholder.
1)There are 11,000 documents that supposedly contain strong evidence against the government. Will these ever be used in court? 2)Yes, the NWS was stopped, but at the same increased with an equal increase in the Treasury's liquidation preference. Isn't this just "sleight of hand"? How could SCOTUS ignore this? 3)Can the application of the Recovery Act be challenged?
Why stop at Watt? We should go back to Lockhart, and invalidate the whole PSPA. Or at least argue for better terms than the TBTF banks got under TARP, since FnF were in much better shape - didn’t really need the money except for show of confidence - and had implicit government guarantee.
QUOTE "To my mind, Ps should argue that there are exactly zero instances in the history of shareholder capitalism where the terms similar to the NWS have been implemented and upheld."
The flaw in your argument is congress has made the law that allowed for the NWS. The following is directly from the opinion. So the Recovery Act is what needs to be litigated not the NWS as this section of the law seems to be pretty solid in its meaning/intention. But Is it constitutional?
"(a) The Recovery Act grants the FHFA expansive authority in its
role as a conservator and permits the Agency to act in what it determines is “in the best interests of the regulated entity or the Agency.”
§4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a conservator, it may aim to rehabilitate the regulated entity in a way that,
while not in the best interests of the regulated entity, is beneficial to
the Agency and, by extension, the public it serves. This feature of an
FHFA conservatorship is fatal to the shareholders’ statutory claim."
Thank you for the quick reaction on the Scotus ruling. Any thoughts on Section 6.7 of the SPSPA.
6.7. Effect of Order; Injunction; Decree. If any order, injunction or decree is issued by any court of
competent jurisdiction that vacates, modifies, amends, conditions, enjoins, stays or otherwise affects the appointment of Conservator as conservator of Seller or otherwise curtails Conservator’s powers as such conservator (except in each case any order converting the conservatorship to a receivership under Section 1367(a) of the FHE Act), Purchaser may by written notice to Conservator and Seller declare this Agreement null and void, whereupon all transfers hereunder (including the issuance of the Senior Preferred Stock and the Warrant and any funding of the Commitment) shall be rescinded and unwound and all obligations of the parties (other than to effectuate such rescission and unwind) shall immediately and automatically terminate.
ROLG.
How broadly are you reading Alito's Succession Clause analysis (see 2 possibilities below)?
Relatedly, how much of what he saying, if any, is also a binding precedent?
(1) A narrow reading is that he rejects Amicus' claim, but makes no affirmative statement about which constitutional claims HERA might cut off in this or all cases; rather he only states that HERA at its broadest clearly cannot cut off a general citizens' claim of separation of powers.
(2) A broader reading is that HERA bars all claims that arise only within shareholder rights (takings, contract), i.e., those that a non-shareholder would not have. So a shareholder could bring a First Amendment right as a general citizen in a different context, but could not bring a First Amendment claim in relation to his rights as a shareholder.
Thank you
1)There are 11,000 documents that supposedly contain strong evidence against the government. Will these ever be used in court? 2)Yes, the NWS was stopped, but at the same increased with an equal increase in the Treasury's liquidation preference. Isn't this just "sleight of hand"? How could SCOTUS ignore this? 3)Can the application of the Recovery Act be challenged?
Why stop at Watt? We should go back to Lockhart, and invalidate the whole PSPA. Or at least argue for better terms than the TBTF banks got under TARP, since FnF were in much better shape - didn’t really need the money except for show of confidence - and had implicit government guarantee.
ROLG, how does the opinion help other lawsuits in Federal and DC Circuits?
3 questions with SCOTUS:
1. Use 2 private companies to serve public interest is NATIONALIZATION.
2. Agency is not equivalent to public interest. Agency may have its own hidden agenda.
3. "in the best interest of the regulated entity or Agency" follows the order of the regulated entity and then the Agency.
The SCOTUS ruling is a joke to me.
Do lower courts need to respect only the "main" court opinions of SCOTUS? Can they ignore everything else in the document?
So is FHFA now considered part of the government? Any doors open as a result?
QUOTE "To my mind, Ps should argue that there are exactly zero instances in the history of shareholder capitalism where the terms similar to the NWS have been implemented and upheld."
The flaw in your argument is congress has made the law that allowed for the NWS. The following is directly from the opinion. So the Recovery Act is what needs to be litigated not the NWS as this section of the law seems to be pretty solid in its meaning/intention. But Is it constitutional?
"(a) The Recovery Act grants the FHFA expansive authority in its
role as a conservator and permits the Agency to act in what it determines is “in the best interests of the regulated entity or the Agency.”
§4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a conservator, it may aim to rehabilitate the regulated entity in a way that,
while not in the best interests of the regulated entity, is beneficial to
the Agency and, by extension, the public it serves. This feature of an
FHFA conservatorship is fatal to the shareholders’ statutory claim."
ROLG, what next? will 5th Circuit issue an updated opinion? Or does Texas district court issue a new order?
Thank you for the quick reaction on the Scotus ruling. Any thoughts on Section 6.7 of the SPSPA.
6.7. Effect of Order; Injunction; Decree. If any order, injunction or decree is issued by any court of
competent jurisdiction that vacates, modifies, amends, conditions, enjoins, stays or otherwise affects the appointment of Conservator as conservator of Seller or otherwise curtails Conservator’s powers as such conservator (except in each case any order converting the conservatorship to a receivership under Section 1367(a) of the FHE Act), Purchaser may by written notice to Conservator and Seller declare this Agreement null and void, whereupon all transfers hereunder (including the issuance of the Senior Preferred Stock and the Warrant and any funding of the Commitment) shall be rescinded and unwound and all obligations of the parties (other than to effectuate such rescission and unwind) shall immediately and automatically terminate.
https://www.fhfa.gov/Conservatorship/Documents/Senior-Preferred-Stock-Agree/FNM/SPSPA-amends/FNM-SPSPA_09-07-2008.pdf