Hi Kthompt, I am pretty confident that your explanation of a breach of good faith and fair dealings is wrong and why it would not carry foreword to new claims. As I understand it, the implied covenants arise from common law. In the United States, they are a permanent feature of all contracts imposed on all parties to a contract. Can a judge or court ruling really make it go away because of a prior ruling of 800 million awarded to shareholders? In the case of GSE shareholders, the implied covenants are a permanent feature of the share certificates (contracts). The covenants are separate and distinct from the fiduciary duty to act in good faith. That duty arises from Statutory law, and can be waived and indeed has been waived. Because of the terms of the Conservatorship, the FHFA-C assumes the role of the GSEs as the counter-party to the shareholders in the share certificate contracts. FHFA-C under common law (implied covenants) has a duty to act in good faith and fair dealings in upholding the terms of the share certificates.
Because we still live in a free society based on the rule of law, this inconvenient fact pattern of the common law of contracts is an unmovable barrier to implementing the SPSPAs as they are currently written. The SPSPAs do not square with the letter or spirit of the applicable laws and clearly undermine the terms of the existing (legacy)share certificates. FHFA had the opportunity to put the GSEs in receivership. The implied covenants would not have applied and congress could have drafted new charters and created a new housing finance system. FHFA chose instead to be a conservator. Common law is the foundational law of the United states, upon which all of our statutes are based on. Common law requires that FHFA-C for as long as it remains conservator must act with good faith and fair dealings with respect to the terms of the share certificates. It cannot be satisfied and waived in the future by a court ruling awarding monetary damages. The duties remain. I believe shareholders can continually sue to prevent the terms of the contracts from being undermined by a Conservator who fails to act in good faith and fair dealings. In my opinion the current terms of the SPSPA continue to undermine the shareholders. If I am wrong, please educate me. Be specific, if you know of court cases that support your thesis that the Lamberth Court case puts an end to future litigation of implied covenants because a Jury awarded money damages please let me know.
