"Imagine two scenarios. First, the government grabs
all the stock certificates of private shareholders of a
company. Pet.23. Second, a government-controlled
company with both governmental and private share-
holders announces that, henceforth, whenever it is-
sues a dividend, it will pay it only to the government
shareholder. Pet.18–19. In both situations, it would be
clear that the shareholders have a direct claim for just
compensation for the taking of their rights. It would
not be clear whether the company itself, although ef-
fectively nationalized, suffered harm and thus had
any claim. But the shareholders obviously would. And,
in any event, “the right claimed by the shareholder”
would not be “one the corporation could itself have en-
forced.” Daily Income Fund, Inc. v. Fox, 464 U.S. 523,
529, 531 (1984).
Substantively, the Net Worth Sweep is the same—
but on an unprecedented scale. And substance is what
matters. See Stop the Beach Ren. v. Fla. Dep’t of Env.
Prot., 560 U.S. 702, 715 (2010) (“If a legislature or a
court declares that what was once an established right
of private property no longer exists, it has taken that
property, no less than if the State had physically ap-
propriated it or destroyed its value by regulation.”)
(emphasis omitted). The Net Worth Sweep “trans-
ferred the value of [the private shareholders’] prop-
erty rights in [the Companies] to Treasury,” which
“left nothing for” them. Collins v. Yellen, 141 S. Ct.
1761, 1779 (2021). That “injury” “flows directly from”
the Net Worth Sweep. Id. The shareholders thus have
a direct claim for just compensation for that transfer
of their rights—“to redress the United States’ wiping
out of [their] shares in” the Companies “by seizing for itself all earnings of the solvent Companies in perpe-
tuity.” Owl Creek Compl. ¶1, Pet.App.486; id. ¶114
(Count I: “the United States directly appropriated for
itself [their] property interests in the Junior Preferred
Stock ‘to benefit taxpayers.’”), Pet.App.526. Although
the Net Worth Sweep materially changed the nature
of the Companies—from “private firms” to national-
ized ones—it left them operational and (wildly) profit-
able. Pet.5, 25; Collins, 141 S. Ct. at 1774, 1777–78.
And the Companies in any event could not enforce pri-
vate shareholders’ ownership rights. Pet.29."
OWL CREEK ASIA I, L.P., et al.,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit
REPLY BRIEF FOR PETITIONERS
AI
