Replies to post #531146 on Fannie Mae-No Politics (FNMA)

[obiterdictum]

In a civil claim pursuing such damages, harm must be demonstrably actual. Hypothetical, possible or impending harm does not count.

I would appreciate your thoughts on a theory that I have heard, and repeated, regarding hypotheticals and the warrants.

There are three scenarios in play here:

1) FnF stay in conservatorship as they are now
2) Treasury exercises the warrants and allows FnF to be released
3) Treasury cancels the warrants and allows FnF to be released

Treasury has veto power over any release from conservatorship by section 5.3 of the original SPSPAs. Therefore, if they insist that exercising the warrants is one of their conditions of granting release, scenario #3 above cannot happen.

However if scenario #2 happens, a common shareholder's claim of harm would be based on the idea that they lost money in scenario #2 as compared to scenario #3 and therefore Treasury is liable. Due to the previous paragraph, I don't think this argument would work because scenario #3 is impossible (a counterfactual). Instead it must be scenario #1 compared to scenario #3 to calculate harm, and if no loss of share value occurs then there is no harm and thus no taking.

Can plaintiffs really compare to a counterfactual (scenario #3) like this?

What existing or future plaintiffs claim or will claim is what they have claimed or will claim. The US Treasury will or will not exercise the GSE warrants at some time in the future under the conditions that will exist at that time.

What is done and will be done is far beyond the control and influence of anyone not active as a plaintiff in an ongoing or future court case. So what will be, will be.

Besides an active or overactive imagination driven by some known and/or unknown condition or conditions, there is no fundamental need or specific requisite driving speculation about future events.

Que será, será
Whatever will be, will be
The future's not ours to see
Que será, será
What will be, will be.