There are only TWO possible logical remedies I can think of:
1) The first would be Plaintiffs ideal remedy request, to put shareholders back into position they would have been if Trump had 4 years to complete GSE privatization and monetized the government's stake for billions. Jr pfds should get made whole in this scenario ($25/shr), and I have no idea how to calculate value for common in this scenario.
2) This remedy is much more straightforward and should be a worst case scenario if Judges agreed we are entitled to remedy. While judges can disagree that privatization would have been hypothetically completed in time, it is no hypothetical that under Calabria not 1 cash NWS payment was made to the government as it all stayed on the GSEs balance sheet under his and Mnuchins orders. So at a minimum the judges should reverse Watt's implementation of the NWS for 2 years that saw ~$45b move over from GSEs to the government. If Calabria was in that seat day 1 that $45b would still be on the GSE balance sheet taking total capital from ~$67b today to ~$112b (will be $120b shortly as this quarter is pretty much over). More importantly it will require the government to write a cash check for $45b to fulfill this remedy obligation which might prompt settlement.
It is interesting to think about. Whether it's fair or not the courts in this country are extremely politically motivated. The 5th circuit en banc panel is made up of 12 conservatives and 5 democrats. 6 of those conservatives are also fresh Trump appointees. Before it was shareholders vs Trumps DOJ, today it's shareholders vs Bidens DOJ and Trump is publicly siding with shareholders. 9 of those judges were already ok siding with shareholders that the NWS was illegal, 7 of them were ok saying the remedy for a constitutional violation was to vacate the NWS.
If you read the en banc majority ruling re: unconstitutional remedy closely, the 9 judges who ruled against vacating the NWS claimed to do so because President Trump wasn’t opposed to the NWS as one of their main points so they believed only prospective relief to be appropriate… This rationale is completely disproven by the recent Trump letter as well as the fact that the ruling was written in September 2019 and the admin promptly ended the cash payments of the NWS shortly after the ruling was released with the Trump picked Calabria/Mnuchin duo in charge (to my recollection not 1 cash NWS payment was made under Trump appointed Calabria). How can those 9 judges square that ruling with the Trump letter and SCOTUS instructions re: shareholders being entitled to retrospective remedy if Trumps agenda was aggravated by the unconstitutional provision?
It's interesting to see how little faith the market is putting into this case. Collins oral arguments are on Jan 19 with a ruling expected by the end of Q1. If the Willet & Co en banc judges agree with shareholders (again), the jr pfds are worth $25/shr vs $3 today. If we lose (as market expects) these probably go back to $2 when the SCOTUS ruling first hit ($1 down $22 up or <5% implied odds). Seems low given a) the trump letter development and b) the makeup of the en banc judge panel who have previously ruled in our favor and now have the green light from SCOTUS/TRUMP. Less than 5% odds seem extreme (w/o assigning any value to Lambeth or takings case or organic recap path the GSEs are currently on).
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