Fairholme's Fannie filings are a fabulous failure.
This case began as a simple, 28 page complaint citing a taking of property from preferred stockholders in violation of the Fifth Amendment of the U.S. Constitution. Had Cooper & Kirk stayed this course before the Court of Claims, Judge Sweeney could have and likely would have issued a ruling favorable to plaintiffs regarding the sweep.
Instead, this case became just one cog in a triumvirate of litigation trying to attack the government on several fronts, each from a different angle. The Fairholme suit was not content to remain true to its takings claim. No. It allowed itself to devolve into documentgate and an exhausting discovery process that involves seeking information with little apparent impact on the takings claim on which its original filing was based. All this wrangling over discovery and protected documents may be highly relevant to other suits pending against the government. But I see very little-to-no value to it in the Fairholme matter.
A taking claim, at face, is not much different from a car theft claim. Something was either taken, or it wasn't. Period. The motives for the theft are not material to the question of taking. Fairholme has failed before Judge Sweeney because it has become a stalking horse for other plaintiffs in other suits looking for proof of claims other than the Fifth Amendment taking. All of these experts writing books, blogs, articles, columns, papers and even films about Fannie Mae and devoting endless, mindless commentary on the 11,000 documents simply avoid the simple truth. None of this discovery material debate and motion-wrestling that continues to go round-and-round thee mulberry bush matters in the takings suit.
I have said it before. I am saying it again. The takings claim is the valid case against government's actions. It has been hijacked by lawyers in other related cases who may really benefit from release of those documents. And it has been overwhelmed by verbiage from pundits trying to sell blog content that only obscures the departure from a workable outcome for preferred investors. How about letting the other legal teams fight their own battles? Bruce Berkowitz needs to pull the plug on this charade and get his legal team back on the track to SIMPLIFY the Court of Claims matter and litigate the takings complaint as it originally was spelled out. Enough of this BS.
JMHO.
