Ackman (Rafter) just filed a motion For Limited Participation In Discovery from Fairholme case.
Case 1:14-cv-00740-MMS Document 10 Filed 07/15/15 (5:55pm)Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
Louise Rafter, et al.,
Plaintiffs,
v.
The United States,
Defendant.
Case No. 1:14-cv-740
Judge Margaret M. Sweeney
Plaintiffs’ Motion For Limited Participation In Discovery
On July 10, 2015, this Court entered an order partially lifting the stays entered
in four cases (Cacciapalle v. United States (13-466C), Washington Federal, Inc. v.
United States (13-385C), Reid v. United States (14-152C), and Fisher v. United
States (13-608C)) and granting the plaintiffs in those cases limited participation in
the discovery in Fairholme Funds, Inc. v. United States (13-465C). Order,
Cacciapalle (July 10, 2015), Dkt. No. 59 (“Disc. Order”). During a telephonic hearing
that same day, the Court stated that it would entertain a motion for similar relief in
this related case. In accordance with the Court’s statement and its Discovery Order,
Plaintiffs Louise Rafter, Josephine and Stephen Rattien, and Pershing Square Capital
Management, L.P. (“Rafter Plaintiffs”) now respectfully request the right to
participate in the Fairholme discovery, solely for purposes of accessing and using
electronic copies of all discovery materials and documents produced in that case,
without prejudice to the Rafter Plaintiffs’ right to seek additional discovery as may
be necessary after the Fairholme discovery concludes.
Undersigned counsel has consulted with counsel for the Government and
Fairholme. The Government does not oppose the Rafter Plaintiffs’ request for access
to and use of electronic copies of all discovery documents produced in Fairholme.
The Government also recognizes that the Rafter Plaintiffs have a right to request
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additional discovery (to the extent necessary) after the close of discovery in
Fairholme, while it does not consent to additional discovery at this time. Counsel for
Fairholme also does not oppose the Rafter Plaintiffs’ request for limited participation
in the ongoing discovery in their case.
The Court is familiar with these related cases, which challenge the Government’s
conduct in connection with the conservatorships of the Federal National
Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation
(“Freddie Mac”). The Government has moved to dismiss the Fairholme,
Cacciapalle, Washington Federal, and Fisher complaints.1 The Court then suspended
briefing on the Government’s motion in Fairholme pending discovery, and stayed
the remaining cases pending the completion of that discovery. The plaintiffs subject
to the Discovery Order entered last week are now permitted to participate in the
discovery as follows:
? the plaintiffs in Cacciapalle can ask up to one hour’s worth of questions in
each deposition, seek to depose additional witnesses, and participate in motions
practice;
? the plaintiffs in Washington Federal, Reid, and Fisher can attend the depositions
but not ask questions; and
? the plaintiffs in all four cases can access and use electronic copies of documents
produced in Fairholme.
Disc. Order at 1-2.
In this case, the Government has not yet filed a responsive pleading. Instead, it
sought an extension of its due date for responding to the complaint until 60 days af-
1 The Government has not moved to dismiss the complaint in Reid. The Reid
plaintiffs are identical to those in Fisher, and after the Government moved to dismiss
the latter case, the plaintiffs agreed to stay both actions. Derivative Pls.’ Partial
Joinder in Mot. for Limited Disc. at 2-3, Cacciapalle (July 2, 2015), Dkt. No. 56.
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ter the close of discovery in Fairholme. Dkt. No. 8. The Court granted that motion,
effectively placing this case in the same posture as the stayed cases. Dkt. No. 9.
In light of the common issues raised in this case and the cases addressed in the
Discovery Order, the Rafter Plaintiffs respectfully seek a limited right to participate
in the Fairholme discovery. Specifically, the Rafter Plaintiffs request: (1) access to
electronic copies of all discovery materials and documents produced in Fairholme,
including transcripts of all depositions, and (2) the right to use those documents, including
documents subject to the Fairholme protective order (to the extent permitted
by that order).2 The Rafter Plaintiffs do not seek the right to participate in or
attend depositions in Fairholme, or to participate in motions practice. Because this
request is narrower than the discovery the Court is now allowing in four other cases,
granting this motion will not prejudice any party or otherwise hinder any of the related
litigation. To the contrary, because the topics of discovery in Fairholme will
also be relevant here, granting this narrow request would simply serve the Court’s
and the parties’ interest in avoiding duplication of efforts.
In filing this motion, the Rafter Plaintiffs reserve the right to seek additional
discovery as may be necessary after the discovery in Fairholme concludes. There are
material differences between this case and the other cases challenging the Government’s
conduct in connection with the conservatorships of Fannie Mae and Freddie
Mac. Whereas all other plaintiffs have exclusively brought takings claims, the Rafter
Plaintiffs have also brought a claim for breach of an implied contract. Dkt. No. 1
at ¶¶ 107-21. In addition, the Rafter Plaintiffs are all common shareholders of Fan-
2 The Court instructed the parties subject to its Discovery Order to confer regarding
revisions to the protective order. Disc. Order at 2. The Rafter Plaintiffs are
prepared to similarly confer with those parties regarding this issue.
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nie Mae and/or Freddie Mac, unlike many of the preferred shareholders in the other
cases. Id. at ¶¶ 20-22. Other differences could emerge following the Government’s
response to the Rafter Plaintiffs’ complaint. For these and other reasons, additional
discovery may prove necessary. In that event, the Rafter Plaintiffs will of course
make every effort—working with the Government—to avoid duplicating the discovery
already completed. Granting this motion will greatly aid that endeavor and conserve
the resources of this Court, the Government, and the Rafter Plaintiffs.
Accordingly, the Rafter Plaintiffs respectfully request access to and the right to
use electronic copies of all discovery materials and documents produced in
Fairholme, without prejudice to the Rafter Plaintiffs’ right to seek additional discovery
after the discovery in Fairholme concludes.
July 15, 2015 Respectfully submitted,
/s/ Lawrence D. Rosenberg
Lawrence D. Rosenberg
Counsel of Record
Of Counsel
Thomas F. Cullen
James E. Gauch
Paul V. Lettow
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
T: 202-879-3939
F: 202-626-1700
ldrosenberg@jonesday.com
Counsel for Plaintiffs
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Certificate of Service
I hereby certify that on July 15, 2015, the foregoing was electronically filed with
the Clerk of the Court using the CM/ECF system, which will send a notification to
the attorneys of record in this matter, who are registered with the Court’s CM/ECF
system.
Date: July 15, 2015
Respectfully submitted,
/s/ Lawrence D. Rosenberg
Lawrence D. Rosenberg
Case 1:14-cv-00740-MMS Document 10 Filed 07/15/15 Page 5 of 5
AI
