Fannie Mae-No Politics (FNMA)

[FOFreddie]

Thanks for taking the time to explain:

Just to be clear - you do not think the Feb DC Court of Appeals opinion changed any precedent for Lamberth?

Here is the excerpt from the DC Court of Appeals Opinion regarding the contractual claims - it seems to be consistent with your point - correct?

"In succeeding to the Enterprises' private contractual agreement with Cacciapalle, we conclude the FHFA does not retain its governmental character. Unlike the FHFA's adoption of the net worth sweep—which, as discussed above, necessarily required the FHFA to exercise its statutory power to subordinate the Enterprises' and shareholders' best interests to its own, see supra, at –––– – ––––—succeeding to the preexisting contracts between the Enterprises and Cacciapalle does not implicate any such governmental activity. To be sure, Cacciapalle's complaint makes clear that the FHFA's succession to the Enterprises' obligations only involves interpreting contractual terms, not federal law. See J.A. 856 (¶ 153) (“FHFA assumed the responsibility to act consistently with the [Enterprises'] contractual obligations when it became the [Enterprises'] conservator.”). Because Cacciapalle's breach of contract claim fails to implicate any governmental activity on the FHFA's part, the requisite privity of contract with the United States is absent. See Erickson Air Crane Co. of Wash. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) (holding that the “government consents to be sued only by those with whom it has privity of contract”). We, thus, affirm the Claims Court's decision to dismiss these claims on standing (privity) grounds. To the extent Cacciapalle has a contract claim, it cannot be asserted against the United States."

The key seems to be that the implied covenant is a contractual right that was "preexisting" to the Conservatorship. Is this correct? It can not be asserted against the Government or the COFC claims but it can be asserted against the GSEs in their corporate capacity?

If so - you would think that the Plaintiffs would survive the Motion for Summary Judgement ?