"Instead,the correct legal test for determining whether a shareholder may bring a direct Takings claim is much simpler than that. The test is whether the shareholder identified a property right that the shareholder owned, and whether the shareholder has alleged that such property right was taken by the government. If the shareholder has properly alleged those two things, then the shareholder has a right to bring a Takings claim – period. The body of state law addressing when state law claims are direct versus derivative does not govern that question.
The Government has no answer to this argument. In a two-page chart set forth on pages 21-22 of the Cacciapalle Petition, the Cacciapalle Class describes in precise detail the property rights owned by the private preferred shareholders before the Net Worth Sweep, and demonstrates how those property rights were
appropriated by the Government through the Net Worth Sweep. Cacciapalle Pet. at 21-22. The Government never addresses this chart or the allegations it summarizes.
Further, whatever arguments the Government might advance about the merits of the Takings claim, such arguments do not address the Federal Circuit’s error in foreclosing the ability of shareholders even to bring their claim. That decision is misguided and warrants review. Only the shareholders own the property rights
identified; only the shareholders can bring a claim that those rights have been Taken without payment of Just Compensation as required by the Fifth Amendment; and
only the shareholders can recover any Just Compensation owed for that Taking."
CONCLUSION
The Court should grant the Cacciapalle Petition."
REPLY BRIEF IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI
