Guido, I'm going to the Appellate hearing on April 22nd with a fellow beleaguered shareholder.
I think Judge Ginsburg is one of 3 hearing the Appeal, you remember him?
From Chat gpt: "Q:Didn't Judge Ginsburg rule against Fannie Mae shareholders on an appeal in an earlier case in a 2-1 decision that (now retired and I believe with the NCLA) Judge Brown in her Dissent said, "The Government has acted no better than a Banana Republic"? That case preceded the Collins decision and was another legal issue."
A: Yes—you’re remembering that correctly.
---
# ⚖️ The earlier case you’re thinking of
It’s:
> Perry Capital LLC v. Mnuchin (decided 2017)
Panel included:
* Douglas H. Ginsburg
* Patricia A. Millett
* Janice Rogers Brown (dissent)
---
# 🧾 What the majority (including Ginsburg) held
The court ruled **against Fannie/Freddie shareholders** and upheld the government.
Key holdings:
### 1) HERA bars most shareholder claims
* The statute gives FHFA broad powers as conservator
* Includes **anti-injunction provisions**
👉 Meaning:
> Courts cannot second-guess many FHFA actions
---
### 2) Net worth sweep allowed (under HERA)
* The Third Amendment (sweep) was within FHFA authority
* Even if economically harsh
---
### 3) Shareholders had limited recourse
* Many claims dismissed outright
---
# 🔥 Judge Brown’s famous dissent
Janice Rogers Brown wrote a very forceful dissent, including:
> “The Government has acted no better than a banana republic.”
Her core argument:
* FHFA was supposed to **preserve and conserve assets**
* Instead, it:
> diverted all profits to Treasury
👉 She viewed it as:
* an abuse of conservatorship power
* effectively **expropriation**
---
# 🧠 Why this matters for your current case
This is critical context:
### ✔ Ginsburg already ruled for the government once
* In a closely related dispute
* Interpreting the **same statute (HERA)**
👉 That’s a **meaningful headwind** for shareholders now
---
# ⚠️ But there are key differences
## 1) Legal theory is different
**Perry Capital:**
* Administrative / statutory claims
* Attempt to block the sweep
**Fairholme case:**
* **Contract-based damages claim**
* After the fact
👉 That distinction matters a lot
---
## 2) Post-Collins landscape
After Collins v. Yellen:
* Courts are:
* more nuanced
* less willing to grant blanket immunity
---
## 3) Jury verdict now exists
In Perry:
* No jury verdict
Now:
* **8–0 jury finding breach of contract**
👉 That adds weight on appeal
---
# 🧠 How to interpret Ginsburg today
This is the subtle part:
### He is NOT a blank slate
* Already accepted:
> broad FHFA authority under HERA
---
### But he might distinguish this case if:
He sees:
> “This isn’t about stopping the sweep—it’s about honoring contracts.”
👉 That’s the shareholders’ best path
---
# 📊 Updated read on Ginsburg specifically
### Lean:
* Slightly toward **government (based on Perry Capital)**
### But:
* Not locked in
* Could pivot if convinced:
* contract rights are independent of HERA immunity
---
# 🧾 Bottom line
> Yes—Judge Ginsburg previously ruled against Fannie/Freddie shareholders in **Perry Capital**, rejecting challenges to the net worth sweep under HERA.
But:
> This case gives him an **off-ramp** to rule differently—because it’s framed as a **contract damages case rather than a direct challenge to FHFA authority**.
---
# 🎯 One-line takeaway
> Ginsburg has sided with the government before—but this case is structured in a way that lets him **rule for shareholders without contradicting his earlier decision**, if he chooses.
---
If you want, I can lay out:
* exactly how the **Fairholme lawyers will try to distinguish Perry Capital in oral argument**
* and the **best one or two sentences they need to land with this panel to win**"
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