Replies to post #744059 on Fannie Mae-No Politics (FNMA)

[jeddiemack]

they had no investment-backed expectation -

who are they to say what our or my expectation is or would be? What stupidity.

[kthomp19]

You know, I just roll my eyes upward in disbelief that the USSCT can let the biggest theft in US Corporate History go on right in front of everyone and deny the Plaintiff Shareholders their day in court on the issue!

We are just going to have to get used to it. The Supreme Court has now said that not only was the NWS legal (an authorized act of a conservator), it wasn't even a taking!

As bizarre, incomprehensible, and stupid as I think those rulings are (and I know I am not alone in that opinion), that's the reality we have to deal with. I have always found talk of what one thinks should happen is useless compared to talk of what will happen. This is where I will continue to focus: what is the path forward for FHFA and Treasury in light of today's denial of cert on the takings cases?

I find talk of what should have happened to be even more useless.

[jrydaf]

How to take property without just compensation:

1) Pass law to make property “not property”.
2) Take the not property.

Stupid judges.

[Guido2]

Thanks Robert. Waiting to hear from Bryndon Fisher. Judge Sweeney already ruled that his two cases should proceed to trial. They were held in abeyance while the direct claims were in appeal.

Don’t believe the three-judge panel can rule on something that wasn’t argued before them.

[basesloaded]

Welcome to the land of the free n the home of the brave.

[Donotunderstand]

right to exclude

ok - that is precedent

would love to better understand that - as it seems to be the loss of the right to keep them out of your offices or to keep them from reading your books.

how the "logic" - definition - etc. jumps to net worth --- is not cited with prior cases

[clarencebeaks21]

Robert, to your points in Fairholme.

1 “Basically financial institutions regulated by the federal government can't exclude the federal government from coming on their property and inspecting their books, therefore no right of exclusive use of their property therefore no taking”

You missed the power to affect ownership.
You can reason that physical entry as Agency power is insufficient because its sole effect would be analogous to an easement on the real property (title). There would be no effect on intangible property.

“but that's about physical real property not the economic rights property inherent in shares of stock, right?”

It’s about both. This is the key. The Agency has a statutory right to entry *and* power to declare Conservatorships (etc.).

2. “…Isn’t that a taking?”

The CAFC panel did a poor job explaining its answer.

The answer is ‘no’ the NWS cannot constitute a physical fifth amendment taking. The reason is based on the physical takings doctrine: shareholders could not have developed “a historically rooted expectation of compensation for such an action” (*) from HERA.

*This principle comes from Loretto Teleprompter, which is still the bedrock case for physical “per se” takings. And it was shareholders the who positioned their claim as a per se (not regulatory) taking.

I suggest digging deeper and reading the leading case (from the CAFC in 1992) that the CAFC panel cited, because IMHO this 1992 case contains a longer & more nuanced explanation:

California Hous. Sec., Inc. v. United States, 959. F.2d 955 (Fed. Cir.), cert. denied, 506 U.S. 916. (1992) .

https://cite.case.law/f2d/959/955/3384520/