Why would they have waited this long and pursued other appeals, rather than going straight to en banc? Just trying to understand the process, new to this. Thanks
It is useful to consider that the Plaintiffs are composed of Institutional Plaintiffs (Perry, Fairholme, Arrowood) and Class Plaintiffs (American European Insurance Company, Cacciapalle, et al., John Cane, Francis Dennis, Marneu Holdings Co., Michelle M. Miller, United Equities Commodities, Co., 111 John Realty Corp., Barry P. Borodkin and Mary Meiya Liao). These two types of Plaintiffs had different claims and different prayers of relief. The difference between these Plaintiffs can be found in the this document: http://bankrupt.com/gselitigationsummary201608.pdf
The significant difference between the two types was that the Institutional Plaintiffs sought, in the main, declaratory and injunctive relief by requesting the court to vacate and set aside the Third Amendment. The Class Plaintiffs, sought, in the main, disgorgement and return of GSE profits to Fannie Mae and Freddie Mac and compensatory relief for class shareholders on the account that the Third Amendment was a breach of contract, breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty. Some plaintiffs of both types argued both ways. Perry Capital, however, argued only for declaratory and injunctive relief.
The result as we know was that the Institutional Plaintiffs arguments to vacate the Third Amendment were denied while the Class and Institutional Plaintiffs contract-based claims regarding common and preferred shareholders liquidation preferences and dividend rights were remanded to the US District, DC. for further proceedings.
As can be readily understood, CADC panel decision, split the Plaintiffs internally. There is little reason and impetus for any of the Class Plaintiffs to seek a CADC rehearing en banc for vacating and setting aside the Third Amendment. That was not their fundamental argument. In one sense, the Class Plaintiffs came out on top in the CADC decision and are now going for the money. That is why the Class Plaintiffs are petitioning the CADC panel for a rehearing to clarify and enhance their position in the US District Court, DC.
This leaves Perry Capital in the position to decide if they could win over the CADC judges in en banc rehearing. Could they convince the CADC judges to take Judge Brown's dissenting opinion, and perhaps, offer new arguments to overturn the two previous losses?
If a petition is not filed by the deadline date, then it will be assumed by many that Perry Capital considered and decided that another appeal 1) is foreclosed by the previous opinions, 2) is over determined by the composition of judges of the CADC (their political leanings, personal biases, legal intelligence, etc.) and 3) that the chances of overturning the previous judgment is significantly less than 50-50.
A decision already may have been made by Perry Capital. There is time to file. We will see what was decided.
Perhaps, they will aim higher and approach SCOTUS.
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