The scope of this lawsuit is slightly different than the scope of the $FAIRX lawsuit.
Fairholme is arguing chiefly that the FHFA both was negligent in its role as conservator (did not conserve the assets but began disposing of them) and acted in concert with Treasury in violation of HERA and its role when it enacted the NWS. Fairholme states that because of that, FHFA was NOT acting in its role as regulator but as an arm of the government and then the Net Worth Sweep (NWS) is hence illegal as a 5th Amendment taking and shareholders are entitled to just compensation for the loss of their property (shareholders rights).
Perry (along with Fairholme in this court DC District Court) is stating that Treasury acted “arbitrarily and capriciously” because its authority to purchase securities in the GSE’s expired in 2009 (the NWS was enacted in 2012) and even if you argue the authority did not expire in 2009, Treasury was required to make “statutorily required determinations upon consideration of statutorily defined criteria” before any alterations to terms and this was not done. Further, FHFA’s acted “arbitrarily and capriciously” as their sole role was to render the GSE’s “sound and solvent and to conserve their assets and property” not begin to dispose of them.
Both similar arguments but different enough to be maintained as separate suits. Oh, Perry’s Attorney is Ted Olson
The government is trying to to have the Judge throw out the Perry suit (motion to dismiss filed) and to “Take Judicial Notice” of certain “facts” in the case and then render a summary judgement in favor of the defendants (gov’t)
Below is Perry’s response to the gov’t motion…
You’ll notice similar features to the work done on behalf of the gov’t from the Fairholme suit discussed yesterday. The gov’t asks for facts to be entered essentially because “we say they are the facts of the case” and then they go about contradicting their own arguments in several places.
This motion for Judicial Notice will be dismissed (plaintiffs will win) and then I’m sure a discovery request will be presented by the plaintiffs like in the Fairholme suit. Again, I expect that to be granted as the Treasury/FHFA arguments for dismissal were the same in both cases and they made the same mistakes (presenting “facts” (that are disputed as fact) outside the scope of the original complaint to support the motion to dismiss) in both filings that basically leave the judge no option but to grant discovery.