Fannie and Freddie Boards did not consent, cont.

The following exchange is from Tim Howard’s blog:

The Takeover and the Terms

  1. That’s the first I’ve heard of this, and I would be surprised if it were true. Who would have put such an order in place, and what mechanisms would they have for enforcing it? If any readers have contrary information, however, they should correct me.

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    1. Hi Tim. I may not have the definitive information that would set the record straight. However, the board members at the time would be able to clarify.

      As we both exchanged related messages on a previous post here, I referenced a blog post of my own which discussed board consent (http://wp.me/p5jYux-eq).

      On a side note, I speculate that the plaintiff lawyers are disinterested in the possibility that board directors did not vote to approve the c-ships. If the directors did not approve (which Lockhart and Paulson both said they did), then they should have publicly denounced the action. Further, they should have filed lawsuits against the Gov. I assert that plaintiff lawyers ignore this point as that would make Fan and Fred themselves at least partially culpable (through their directors) for the take-over. If my conjecture is correct, I disagree with the plaintiffs’ strategy. The point is the Gov coerced the boards.

      So, to now postulate on the gag order question… Would you agree that it’s plausible that Paulson & Co. told the small groups he met with (CEO, GC, outside counsel) for each company that they should inform their board members not to fight the illegal take-over? Is it possible that non-disclosure agreements were received in exchange for the Gov not pursuing fraud, breach of fiduciary responsibility, etc. etc. etc. personally against each board member?

      Paulson was hellbent to intimidate and control everyone…!

      And of course Paulson also pointed out to the board directors the following passage in HERA in further exchange for the board members’ non-disclosure agreements (aka “Gag Order”):

      DIRECTORS NOT LIABLE FOR ACQUIESCING IN APPOINTMENT
      OF CONSERVATOR OR RECEIVER.—The members of the
      board of directors of a regulated entity shall not be liable
      to the shareholders or creditors of the regulated entity for
      acquiescing in or consenting in good faith to the appointment
      of the Agency as conservator or receiver for that regulated
      entity.

      I’m no doubt a lone wolf on this one… not really sure why… Seems highly relevant and incredibly significant to me. And yes, I’ve heard the “Fog of War” argument many times, but I’m not buying it! What happened was wrong, no…illegal… and all of the facts should be made public.

      ______________

    2. jtimothyhoward
      FEBRUARY 25, 2016 AT 7:58 PM
      Fanofred: You may in fact be a lone wolf on this one. I’ve been on corporate boards, and the last thing a board member wants to do is get into a fight with a government regulator. Paulson knew that, which is why somebody–I’m not sure we’ll ever know who–put the clause into HERA you cited above and I’ve cited previously, exempting Fannie’s and Freddie’s board members from shareholder lawsuits if they caved to Paulson’s demands that they consent to conservatorship. I don’t think it would have made a bit of difference if there had been a full board vote or not; either way, they would have consented. (And this is “inside baseball,” but Paulson’s book mentions that when he was pushing Fannie’s executives and board members to give in to conservatorship, they had their legal advisor, Rodgin Cohen of Sullivan & Cromwell, with them. I know Cohen, and he’s as good as they come. He knew there was no way Fannie could fight this.)

      1. fanofred
        FEBRUARY 25, 2016 AT 8:41 PM
        Thanks Tim. Yes, according to the official Treasury calendar Rodgin Cohen was in attendance at the meeting with Paulson, Bernanke and Lockhart, but not with a full board of either company. I am sure the gentleman is very smart…

        Evidently, we disagree on whether the point is relevant. From my understanding, the Delaware case if based completely on following corporate law.

        So, what is different in asking a) is a company allowed to pay in dividend it’s entire net worth to only one class of shareholder vs b) is the government allowed to claim that boards of directors consented (procedurally and legally voted in favor of) a conservatorship which in effect nationalized their companies?

        I don’t mind being the lone wolf here. One day the truth will be known.

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U.S. Government Must Make a Decision on Freddie, Fannie

It’s time for the Federal government to make a decision about Fannie and Freddie — to let them die a gradual death or to help them resurrect.

The government’s disingenuous measures that have kept the lending institutions afloat have been unlawful and dangerous for taxpayers and for the organizations’ investors. Congress should insist that Fannie and Freddie be wound down through receivership or be allowed to recapitalize and resume operations.

The ongoing litigation brought by private shareholders against the government for its alleged looting of Fannie Mae and Freddie Mac has finally started receiving media attention. Respected financial journalists have highlighted the contradiction between the Federal Housing Finance Agency’s (FHFA) decision to give the U.S. Treasury all of Fannie’s and Freddie’s profits in perpetuity with Congress’s mandate under theHousing and Economic Recovery Act of 2008 (HERA) that the FHFA act as conservator to restore the companies to sound condition.

In exchange for providing the companies $187 billion in capital, the Treasury received preferred stock paying a quarterly dividend of 10% of the companies’ profits, and 79% of the common stock in the form of warrants. This arrangement was a great deal for Treasury and was totally appropriate.

Taxpayers deserved to be compensated for the risks taken.

In 2012, around the time that Fannie and Freddie returned to profitability, the FHFA unilaterally changed the terms of the conservatorship to give the Treasury all of the companies’ profits in perpetuity-now over $240 billion and climbing, although HERA explicitly stated that the FHFA’s job as conservator was to restore the companies and preserve their assets.

This action by the Administration created the worst of all worlds. Instead of trying to restore the companies to health, as HERA requires, the government’s actions stripped Fannie and Freddie of all their capital. The result: They again pose a substantial risk to taxpayers.

When faced with litigation and demands from the public to know why it took this action, the government initially told the courts that the profit giveaway was intended to save the companies and avoid an upcoming “death spiral.” But documents released in litigation have proven that assertion to be false. The truth, it seems, is that the profit giveaway was intended to facilitate the companies’ demise while providing windfall profits for the Treasury. As former Treasury Secretary Geithner colorfully testified, the government actually wanted to dismember the companies.

Even to a layperson, dismemberment does not heed the mandate of a conservator to restore the companies to sound condition and preserve their assets. Faced with litigation, the government is floating a new rationale — that its actions would protect taxpayers. Certainly, alleged taxpayer protection will test better in focus groups. However, it is even more fundamentally at odds with the government’s role as conservator.

The idea of conservatorship has been around for thousands of years. The ancient Greeks, Romans and English all understood that a conservator had fiduciary duties to protect the property of its ward. English law precedent from 700 years ago forms the basis of U.S. conservatorship law. Distilled, no conservator may take assets for its benefit, or to the detriment of the conservatee.

Notably, the conservatorship standard in the case of Fannie and Freddie comes verbatim from the Federal Deposit Insurance Act, which courts have interpreted as placing the FDIC in a fiduciary relationship with a bank under conservatorship. Since the FDIC was created in 1933, bank regulators have understood conservatorship to mandate a fiduciary duty to the entity in conservatorship. The conservator must act in the best interests of that entity.

By the FHFA’s own admission and the government’s newly concocted litigation rationale, the government’s goal in stripping the companies of future profits was to fill the government’s coffers while ushering in the demise of Fannie and Freddie. But despite its supposed intent to wind the companies down, the government is keeping them alive and stripping them of all of their capital. This is incompatible with both current law and millennia of conservatorship history.

While taxpayer protection may sound good, it does not relieve the FHFA of its legal obligations to place the companies in sound condition, preserve their assets, and restore them to normal operations. The FHFA itself argued in a 2013 lawsuit that stripping capital has left the GSEs “effectively balance-sheet insolvent, a textbook illustration of financial instability.” As a result, taxpayers must continually support these entities. What should be immensely valuable warrants held by Treasury are rendered valueless.

The only lawful recourse at this point is to return to conservatorship law as it has existed traditionally.

http://www.thestreet.com/story/13453191/2/u-s-government-must-make-a-decision-on-freddie-fannie.html

William M. Isaac was the Chairman of the Federal Deposit Insurance Corporation (FDIC) from 1981 to 1985.