This seemed convincing in the Plaintiff Shareholders brief (page 6-7): "The Court in Collins, after finding standing, did not expressly discuss whether the
plaintiffs’ separation-of-powers claim was direct or derivative, and concluded that the
claim could proceed because the substantive right the plaintiffs asserted was not
“distinctive to shareholders of Fannie Mae and Freddie Mac.” Collins, 141 S. Ct. at 1781.
The same is true for the Private Shareholders’ takings claims. Unlike shareholder rights
to choose management, inspect books and records, and participate in annual meetings, a
right in the Fifth Amendment is one shared by “everyone in this country.” Id. The
government argues that the ability to deploy the procedural device of a derivative lawsuit
is a right “distinctive to shareholders” that transfers to the Agency during
conservatorship. Gov. Supp. Br. 13. But that cannot be correct. Otherwise, the Collins Court could not have ruled as it did without first expressly holding that the separation-
of-powers claim was direct, not derivative.
Finally, the government badly misses the mark if it means to suggest that, after
Collins, the Succession Clause extends to direct shareholder claims. Collins left
undisturbed the uniform rule in the lower courts, which is that the “rights . . . of any
stockholder . . . with respect to the regulated entity and [its] assets” do not include direct
shareholder claims. 12 U.S.C. § 4617(b)(2)(A); see, e.g., Perry Capital LLC v. Mnuchin,
864 F.3d 591, 624 (D.C. Cir. 2017). A contrary rule would effect a taking of the Private
Shareholders’ direct claims and dramatically expand a statutory provision that the
government was already reading “too broadly.” Collins, 141 S. Ct. at 1780."
