"I'm worried that you may not have realized it was 5 pages long. "
Haha, you are correct. I didn't not notice that there was a "Next" button to keep reading. Boy this guy writes long opinion pieces! Impressive!
Alright...let's keep going then...
Conservator vs. Receiver
This section of the article re-articulates what I said in my last post around the use of the word "may". I believe the court misstated how to interpret the word "may" in a legal document. As such, it gives the Conservator a lot of Receivership powers without having to declare a receivership. Epstein is wrong in one instance, however, to say that the Conservator can "wipe out" investors with receiver powers without declaring a receivership. While the court interpretation does give the Conservator a lot of powers of a receiver, it would still need to declare a receivership to fully wipe out shareholders. I don't agree with Epstein though...A conservator and receiver are not supposed to mix in the way the courts allowed. However...though the court made this error (in my opinion), a reversal of the error would not undo the NWS. So, its moot as to the actual claim. It did set precedent, however, that I don't like.
After this, he goes into the individual powers for a bit...I won't discuss that, since it's pretty much just a recap and a restatement of his previous claims...
It is, of course, conceptually conceivable that a conservator or receiver need do nothing at all, which is a rather odd assignment for a fiduciary charged with management duties.
Agree... goes to the "may" argument again. However, I disagree with his assessment that the Conservator is a fiduciary. In fact, it has been historically supported that Conservators are NOT fiduciaries. However, that aside, I agree with his assessment about the "may" issues.
"The biggest WTF I had was on page 4 where he talks about skipping the term incidental powers when quoting the statute, essentially changing the intent of the statute as it reads by intentionally skipping the words as written..
and then using that bastardized reading as justification for the ruling.."
So, the biggest issue that Epstein has is the biggest issue I have. The use of the word "may". I fully agree with him that the court has taken great liberties with the word "may".
Like I said before, if anything is going to get the ruling overturned, it is that.
