gave it a quick read, and that is how it look's to me. Pershing wants the documents needs discovery to continue for their case.
Louise Rafter, Josephine and Stephen Rattien, and Pershing Square Capital
Management, L.P. (collectively, “Amici”) respectfully move for leave to file an
amicus brief, attached as Exhibit A, regarding the Government’s motion to stay the
proceedings in Fairholme v. United States, No. 13-465 (Fed. Cl.). Amici, who are
common shareholders of the Federal National Mortgage Association (“Fannie Mae”)
and the Federal Home Loan Mortgage Corporation (“Freddie Mac”), have a direct
and distinct interest in this matter. Their own complaint challenging the Net
Worth Sweeps is currently pending before this Court. Complaint, Rafter v.
United
States, No. 14-740 (Fed. Cl. Aug. 14, 2014), Dkt.
No. 1. Amici consented to the
Government’s request to extend its deadline for responding to that complaint until
after jurisdictional discovery concluded in Fairholme, on the premise that the
Fairholme jurisdictional discovery involved issues directly relevant to Amici’s case,
that the Fairholme discovery would continue, and that an extension would help
avoid duplicative discovery. Now, however, the Government seeks an indefinite
stay of all proceedings in Fairholme—and, by extension, Amici’s case—based on a
preclusion argument against the Fairholme Plaintiffs that, even if correct, would
not apply to Amici. The Government’s motion thus affects Amici’s interests while
ignoring the broader context of these related cases. Amici’s proposed amicus brief
brings this context into proper focus.
This Court has broad discretion to permit the filing of an amicus brief. Fluor
Corp. & Affiliates v. United States, 35 Fed. Cl. 284, 285 (Fed. Cl. 1996). Where, as
here, an amicus “has an interest … that may be affected by the decision in the
Case 1:13-cv-00465-MMS Document 107 Filed 11/21/14 Page 2 of 6
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present case” or “unique information or perspective that can help the court,” that
discretion should be exercised favorably. Ryan v. CFTC, 125 F.3d 1062, 1063 (7th
Cir. 1997). This Court traditionally examines several factors in determining
whether to permit amicus participation. See Wolfchild v. United States, 62 Fed. Cl.
521, 537 (Fed. Cl. 2004) (listing factors such as timeliness, usefulness, ability of
counsel, interest, partisanship, and the positions of the parties), rev’d in part on
other grounds, 559 F.3d 1228 (Fed. Cir. 2009). These factors favor granting Amici’s
motion.
First, the amicus brief must be timely. Fluor, 35 Fed. Cl. at 286. To be
timely, the brief should be filed before the relevant hearing. Id.; see also Tafas v.
Dudas, 511 F. Supp. 2d 652, 660 (E.D. Va. 2007). Here, Amici have submitted their
proposed amicus brief four days after the Fairholme Plaintiffs filed their response to
the Government’s motion, thereby enabling the Government to reply to Amici’s
submission in the ordinary course. Thus, this factor weighs in favor of granting
Amici leave to file.
Second, the amicus brief must be useful. To be useful, the amicus should not
merely rehash the presentations of the parties, but instead should offer additional
insights—often based on a unique position—that can contribute to the Court’s
understanding of the issues. Wolfchild, 62 Fed. Cl. at 537; Bryant v. Better
Business Bureau of Greater Maryland, Inc., 923 F. Supp. 720, 728 (D. Md. 1996).
Here, from their perspective as Net Worth Sweep plaintiffs to whom the
Government’s preclusion arguments could not apply, Amici provide unique reasons
Case 1:13-cv-00465-MMS Document 107 Filed 11/21/14 Page 3 of 6
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why a stay is not justified. Specifically, the Government’s motion ignores the fact
that Amici’s related case would remain pending before this Court and would raise
the need for jurisdictional discovery similar to that already ongoing in the
Fairholme case. Thus, this factor also weighs in favor of granting leave.1
Third, the amici should have an interest in the case without being overtly
partisan. See Wolfchild, 62 Fed. Cl. at 537; Fluor, 35 Fed. Cl. at 286. In other
words, “as an impartial friend of the court, a party may still be adversarial; indeed,
it must if it is to make its point. The critical point is that an impartial friend of the
court steps out of the role of amicus when it essentially assumes the role of being
not just adversarial but a ‘party in interest to the litigation.’” Wyatt v. Hanan, 868
F. Supp. 1356, 1358 (M.D. Ala. 1994); see also, e.g., Tafas, 511 F. Supp. 2d at 661;
Yip v. Pagano, 606 F. Supp. 1566, 1568-69 (D.N.J. 1985). Here, the Government’s
request for a stay directly affects Amici’s interests, because Amici’s case currently
cannot proceed until after jurisdictional discovery in this case is completed. In light
of their own pending litigation, Amici offer additional considerations stemming from
their position as Net Worth Sweep plaintiffs whose claims would not be affected by
the Government’s preclusion arguments. Thus, this factor, too, weighs in favor of
granting leave.
1 A related factor is the adequacy of the parties’ representation. Fluor, 35
Fed. Cl. at 286. An amicus brief can be useful by providing cogent argument in
support of the position adopted by an inadequately represented party. Here, there
can be no question that the parties are ably represented. But Amici’s proposed brief
adds value by providing insights from the unique perspective of Net Worth Sweep
plaintiffs to whom the Government’s preclusion arguments do not apply.
Case 1:13-cv-00465-MMS Document 107 Filed 11/21/14 Page 4 of 6
Finally, the Court should consider the parties’ positions on amicus
participation. Unanimous opposition should be given great weight, whereas a
single party’s opposition renders this factor neutral. Fluor, 35 Fed. Cl. at 285;
Wolfchild, 62 Fed. Cl. at 537. The Fairholme Plaintiffs have consented to Amici
filing their amicus brief. The Government, however—having procured Amici’s
consent to an extension that was premised on the continuation of discovery in
Fairholme before subsequently moving to stay Fairholme indefinitely—informed
Amici that it opposes this motion to file an amicus brief. The Government has not
provided any reason for its opposition.
Amici offer this Court the benefit of additional information from their
perspective as Net Worth Sweep plaintiffs whose claims could not be affected by the
Government’s preclusion arguments against the Fairholme Plaintiffs. We
respectfully request that the Court grant Amici leave to file their timely and useful
amicus brief.
$$ FNMA $$
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