Louisiana Municipal Police ERS v. Richard Syron

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cv-00773-LMB-TCB Copies to all parties and the district court/agency. [998583604].. [09-1973]

Appeal: 09-1973

Document: 81

Date Filed: 05/05/2011

Page: 1 of 8

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1973

LOUISIANA MUNICIPAL POLICE EMPLOYEES RETIREMENT SYSTEM,
derivatively and on behalf of Federal Home Loan Mortgage
Corporation; R.S. BASSMAN, derivatively on behalf of
Freddie Mac aka Federal Home Loan Mortgage Corporation and
its shareholders,
Plaintiffs - Appellants,
and
ADAMS FAMILY TRUST, derivatively on behalf of nominal
defendant Federal Home Loan Mortgage Corporation; ELNA
ADAMS, Trustee, derivatively on behalf of nominal defendant
Federal Home Loan Mortgage Corporation; KEVIN TASHJIAN,
derivatively on behalf of nominal defendant Federal Home
Loan Mortgage Corporation,
Plaintiffs,
v.
FEDERAL HOUSING FINANCE AGENCY,
Plaintiff - Appellee,
and
RICHARD F. SYRON; PATRICIA COOK; ANTHONY PISZEL; EUGENE M.
MCQUADE; STEPHEN A ROSS; SHAUN F. O’MALLEY; FEDERAL HOME
LOAN MORTGAGE CORPORATION; PRICEWATERHOUSE COOPERS, LLP;
FREDDIE MAC, nominal defendant also known as Federal Home
Loan Mortgage Corporation; ROBERT R. GLAUBER; BARBARA T.
ALEXANDER; MARTIN F. BAUMANN; WILLIAM M. LEWIS, JR.;
JEFFREY M. PEEK; GEOFFREY T. BOISI; RONALD F. POE; MIKE
PERLMAN; KIRK S. DIE; JAMES R. EGAN; PAUL G. GEORGE;
MICHAEL MAY; HOLLIS S. MCLOUGHLIN; PAUL E. MULLINGS; ANURAG
SAKSENA; JERRY WEISS; RALPH F. BOYD, JR.; JOSEPH A.
SMIALWOSKI; ROBERT Y. TSIEN; ROBERT E. BOSTROM; MICHELLE

Appeal: 09-1973

Document: 81

Date Filed: 05/05/2011

Page: 2 of 8

ENGLER; THOMAS S. JOHNSON; NICHOLAS P. RETSINAS; JEROME P.
KENNEY,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:08-cv-00773-LMB-TCB)

Argued:

January 28, 2011

Before TRAXLER,
Judges.

Chief

Decided:

Judge,

and

MOTZ

and

May 5, 2011

KEENAN,

Circuit

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew Evan Miller, CUNEO, GILBERT & LADUCA, LLP,
Washington, D.C., for Appellants.
Howard N. Cayne, ARNOLD &
PORTER, LLP, Washington, D.C., for Appellees.
ON BRIEF:
Jonathan W. Cuneo, CUNEO, GILBERT & LADUCA, LLP, Washington,
D.C.; Steven E. Fineman, Daniel P. Chiplock, LIEFF, CABRASER,
HEIMANN & BERNSTEIN, LLP, New York, New York; Richard D.
Greenfield, Marguerite R. Goodman, GREENFIELD & GOODMAN, LLC,
New York, New York, for Appellant R. S. Bassman; Kevin Oufnac,
Lewis S. Kahn, Albert M. Myers, KAHN, SWICK & FOTI, LLC, New
Orleans,
Louisiana,
Mark
Hanna,
MURPHY
ANDERSON
PLLC,
Washington, D.C., for Appellant Louisiana Municipal Police
Employees Retirement System. David B. Bergman, Ian S. Hoffman,
Christopher A. Jaros, ARNOLD & PORTER, LLP, Washington, D.C.;
Stephen E. Hart, FEDERAL HOUSING FINANCE AGENCY, Washington,
D.C., for Appellee Federal Housing Finance Agency.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 09-1973

Document: 81

Date Filed: 05/05/2011

Page: 3 of 8

PER CURIAM:
This appeal arises out of consolidated derivative actions
that

shareholders

Mortgage
and

filed

Corporation

officers. 1

The

breached

their

grossly

mismanaged

behalf

(“Freddie

the

of

Mac”)

shareholders

fiduciary

financial losses.

on

duties,

the

Federal

against

former

allege

that

wasted

company

company,

resulting

Home

the

in

Loan

directors
defendants

assets,

and

significant

Acting as conservator of Freddie Mac pursuant

to federal law, the Federal Housing Finance Agency successfully
moved in the district court to substitute itself as plaintiff in
those actions.

The shareholders appeal this ruling.

We affirm.

I.
In

1970,

Congress

established

Freddie

Mac

to

promote

homeownership by competing with the Federal National Mortgage
Association (“Fannie Mae”) in the secondary residential mortgage
market.

See Fed. Home Loan Mortgage Corp. Act, Pub. L. No. 91-

351, § 301, 84 Stat. 450, 451 (1970) (codified as amended at 12

1

Two of the actions -- Adams Family Trust v. Syron, and
Louisiana Municipal Police Employees Retirement System v. Syron
-- were filed in the Eastern District of Virginia in July and
August 2008, respectively, and consolidated on October 15, 2008.
The third action -- Bassman v. Syron -- was originally filed in
the Southern District of New York in March 2008, ordered
transferred to the Eastern District of Virginia on November 20,
2008, and consolidated with the other two cases on December 12,
2008.
3

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Date Filed: 05/05/2011

Page: 4 of 8

U.S.C. §§ 1451 et seq.); Fed. Nat’l Mortgage Ass’n Charter Act,
ch. 847, § 301, 48 Stat. 1246, 1252 (1934) (codified as amended
at 12 U.S.C. §§ 1716 et seq.).

Although both enterprises are

structured as private corporations, Freddie Mac and Fannie Mae
are

government-sponsored

institutions.

Id.

They

“have

an

affirmative obligation to facilitate the financing of affordable
housing

for

low-

and

moderate-income

families

in

a

manner

consistent with their overall public purposes, while maintaining
a strong financial condition and a reasonable economic return.”
12 U.S.C. § 4501(7).
To provide “more effective Federal regulation” of Freddie
Mac

and

Fannie

Mae,

Congress

created

the

Office

of

Housing Enterprise Oversight (the “Office”) in 1992.

Federal
See Pub.

L. No. 102-550, §§ 1302, 1311, 106 Stat. 3672, 3941-44 (1992);
12 U.S.C. § 4501(2).
annual

reports

to

The Office was responsible for making

Congress

on

“the

financial

safety

and

soundness” of Freddie Mac and Fannie Mae.

Pub. L. No. 102-550,

§§ 1317, 1319B, 106 Stat. at 3949, 3950.

In 2007 and 2008, the

Office conveyed positive reports on the fiscal health of both
enterprises, describing them as “adequately capitalized.”

See

In re Fed. Home Mortgage Corp. Derivative Litig., 643 F. Supp.
2d 790, 792 (E.D. Va. 2009) (“In re Freddie Mac”).

In reality,

however, Freddie Mac was poised to report considerable losses:
$3.1 billion in 2007 and $50.1 billion in 2008.
4

See id.

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Date Filed: 05/05/2011

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In 2008, amid these extensive losses, Congress passed and
President

George

W.

Bush

signed

Recovery Act of 2008 (the “Act”).
and

another

government

entity,

the

Housing

and

Economic

The Act abolished the Office
the

Federal

Housing

Finance

Board, and in their stead created the Federal Housing Finance
Agency (the “Agency”).

See Pub. L. No. 110-289 §§ 1301-1314,

122 Stat. 2654, 2794-99 (2008).

The shareholders allege, and

the Agency does not dispute, that the Agency’s leadership and
staff is “substantially unchanged” from that of the Office.
Appellants’ Br. at 10.

See

Indeed, the Agency’s director, James

Lockhart, is the former director of the Office.
The

Act

grants

the

Agency’s

director

the

authority

to

appoint the Agency as conservator or receiver of Freddie Mac in
the event the enterprise becomes “critically undercapitalized.”
12 U.S.C. § 4617.

Pursuant to this authority, on September 6,

2008, Lockhart appointed the Agency as conservator of Freddie
Mac.
the

See In re Freddie Mac, 643 F. Supp. 2d at 793.
Agency

“succeed[ed]

to

all

rights,

titles,

As such,

powers,

and

privileges of [Freddie Mac], and of any stockholder, officer, or
director of [Freddie Mac] with respect to [Freddie Mac] and the
assets of [Freddie Mac],” and is empowered to “take over the
assets of and operate [Freddie Mac] with all the powers of the
shareholders, the directors, and the officers of [Freddie Mac]
and

conduct

all

business

of

[Freddie
5

Mac].”

12

U.S.C.

Appeal: 09-1973

Document: 81

Date Filed: 05/05/2011

§ 4617(b)(2)(A)(i),

(B)(i).

The

Page: 6 of 8

Act

further

provides

that,

except under limited circumstances not at issue here, “no court
may take any action to restrain or affect the exercise of powers
or functions of the [Agency] as a conservator or a receiver.”
Id. § 4617(f).
After

its

successfully

appointment

moved

to

as

substitute

conservator,
itself

as

the

plaintiff

consolidated actions in place of the shareholders.
upon

the

Agency’s

motion,

the

district

court

Agency
in

the

Thereafter,

dismissed

the

actions without prejudice.

II.
The district court, interpreting the Act, concluded that
“the plain meaning of the statute is that all rights previously
held by Freddie Mac’s stockholders, including the right to sue
derivatively, now belong exclusively to the [Agency].”

In re

Freddie Mac, 643 F. Supp. 2d at 795 (emphasis in original).

The

court found support in the Act’s provision explicitly granting
conservators

and

receivers

“all

rights,

titles,

powers,

and

privileges” of “any stockholder,” 12 U.S.C. § 4617(b)(2)(A)(i),
and

the

provision

barring

courts

from

“restrain[ing]

or

affect[ing] the exercise of powers or functions of the [Agency]
as a conservator or receiver,” id. § 4617(f).

See In re Freddie

Mac, 643 F. Supp. 2d at 797 (“This language clearly demonstrates
6

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Page: 7 of 8

Congressional intent to transfer as much control of Freddie Mac
as

possible

to

behalf

of

the

relied

on

case

the

[Agency],

including

corporation.”).
law

any

Further,

interpreting

the

right

the

to

sue

district

Financial

on

court

Institutions

Reform, Recovery, and Enforcement Act of 1989, which has similar
provisions transferring stockholders’ “rights, titles, powers,
and privileges” to federal bank receivers and conservators.

See

12 U.S.C. § 1821(d)(2)(A)(i), (B)(i); see also Pareto v. FDIC,
139 F.3d 696, 700 (9th Cir. 1998) (“Congress has transferred
everything

it

stockholder’s
action

or

could

to

the

right,

power

or

sue

directors

to

FDIC,

and

privilege
or

others

that

to

includes

demand

when

a

corporate

action

is

not

forthcoming.”).

III.
The shareholders appeal the substitution order, contending
that under the Act the appointment of a receiver or conservator
does

not

preclude

a

shareholder’s

derivative

action.

Our

jurisdiction to hear this appeal arises under 28 U.S.C. § 1291.
See Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir.
2005) (explaining voluntary dismissal of entire action without
prejudice is a final decision appealable under § 1291).
review questions of statutory interpretation de novo.
States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003).
7

We

United

Appeal: 09-1973

Document: 81

Having

Date Filed: 05/05/2011

carefully

considered

the

Page: 8 of 8

record,

the

briefs

and

arguments of the parties, and the controlling and persuasive
authorities, we conclude that the district court’s analysis was
correct.

Accordingly, we affirm on the basis of the district

court’s well reasoned opinion.

See In re Freddie Mac, 643 F.

Supp. 2d 790. 2
AFFIRMED

2

The shareholders originally sought immediate review of the
substitution order, noting their appeal before the district
court entered the dismissal order. The Agency moved to dismiss
the appeal, contending this court lacked jurisdiction to review
the merits of the interlocutory order.
Because, during the
pendency of this appeal, the district court entered a final
order dismissing the action, we deny as moot the Agency’s motion
to dismiss the appeal.
See Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 868 (1994) (describing “general
rule” that “claims of district court error at any stage of the
litigation may be ventilated” upon entry of final judgment).
8