Fannie Mae-No Politics (FNMA)

[obiterdictum]

You misunderstood the implied-in-fact contract issue

Please specify the misunderstanding.

For 2 companies entering into a implied-in-fact contract there has to be a consent of the BOD and that is something the government cannot prove in implied-in-fact

1. Judge Sweeney's opinion upheld the Plaintiffs' allegation that there were implied-in-fact contracts between the FHFA and the GSEs because the FHFA bargained for the boards’ consent and that evidence of negotiations supports the existence of the FHFA and GSEs Boards intending to contract.

2. Judge Sweeney found that Defendants contention that the FHFA and the GSE Boards of Directors lacked the requisite mutual intent to contract and that the FHFA did not need to obtain consent unpersuasive.

3. Since the Defendants were unable to support the contention that there was no mutuality of intent to contract between the FHFA and GSEs Boards, Judge Sweeney declined to dismiss the Plaintiffs' derivative breach-of-implied-contract claims.

4. An implied-in-fact contract is a contract that is implied from facts and circumstances showing a mutual intent to contract (https://www.law.cornell.edu/wex/contract_implied_in_fact).

As stated by Judge Sweeney in the Opinion and Order,

A party alleging an implied-in-fact contract with the government must plead four elements:
“(1) ‘mutuality of intent to contract,’ (2) ‘consideration,’ (3) ‘lack of ambiguity in offer and acceptance,’ and (4) ‘actual authority’ of the government representative whose conduct is relied upon to bind the government.” p.47 - https://www.courtlistener.com/recap/gov.uscourts.uscfc.28224/gov.uscourts.uscfc.28224.449.0.pdf

Using this standard, the Defendants attempted to undermine the Plaintiffs' derivative implicit-in-fact contract claim by arguing that the FHFA and the GSE Boards of Directors lacked the requisite mutual intent to contract.

5. Judge Sweeney opined that there was mutuality of intent to contract between the FHFA and the GSE Boards of Directors and that the Defendants were unable to argue persuasively that there was no mutuality of intent to contract between the FHFA and the GSE Boards. See pp. 47-49 - https://www.courtlistener.com/recap/gov.uscourts.uscfc.28224/gov.uscourts.uscfc.28224.449.0.pdf

6. Considering the above, why would the Defendants have to prove that GSE Boards consented when mutuality of intent to contract proved to be sufficient for Judge Sweeney?

7. Did the GSE Boards not officially consent in writing as evidenced by Fannie Mae's board? See Fannie Mae - Certificate of Corporate Secretary about 25 pages into the document - https://www.judicialwatch.org/wp-content/uploads/2013/07/F_D_2009_520_FHFA_appealresponse_9_22_2009.pdf

8. If the assertion made above that the Defendants cannot prove that the GSE Boards consented is true, can the Plaintiffs prove that they consented or did not consent? And is evidence of oral or written consent by the GSEs Boards required for implicit-in-fact-contracts when the existence of an implied-in-fact contract is officially recognized by the behavior of the parties rather than through oral or written agreements or contracts?

9. Plaintiffs argued that there was mutuality of intent to contract between the FHFA and GSE Board and succeeded.

Is there an argument being made above that such mutuality of intent to contract between FHFA and the GSE Boards is void because the oral or written consent of the GSE boards cannot be proved by the Defendant?