The Federal Deposit Insurance Corp. has taken the first steps toward resolving nearly half of the regulatory goodwill cases left over from the 1980s thrift crisis.
In a brief filed late Monday in federal court, the agency said it wants to become the plaintiff in 46 cases involving thrifts that failed with regulatory goodwill on their books. The cases were originally brought by investors, but the FDIC said only it has the legal right to sue on a failed thrift's behalf.
The FDIC said it then wants to settle these cases with the government rather than spend millions of dollars on legal fees.
"Far better that the FDIC take over the suits, stay the actions to save attorneys fees, and attempt to negotiate a settlement after a market has developed for the cases," said FDIC associate general counsel John V. Thomas. "If a settlement at a reasonable price is not possible, the FDIC will then litigate the cases to judgment."
Lawyers representing the stockholders of the failed thrifts vowed to fight the FDIC's plans. Charles J. Cooper, a partner at the Washington law firm of Cooper & Carvin, said the agency has no right to prevent the stockholders from pursuing their own claims.
"We don't believe there is any merit to that," said Mr. Cooper, who represents the Winstar Corp. and the Statesman Group. "There are many flaws in their theory, none of which I am going to articulate before I file my brief."
John C. Millian, a partner at the Washington law firm of Gibson, Dunn & Crutcher, questioned the appropriateness of having a federal agency sue the federal government. "Essentially, they're arguing that the government should take money out of one pocket and - instead of giving it to the people who suffered - put it back in another pocket," he said.
But Mr. Thomas, writing in the FDIC's brief, said the investors don't have a right to sue. The law only permits separate suits by investors if the claims are substantially different than the ones brought by the failed thrift. But Mr. Thomas wrote that both groups are alleging identical injuries.
He also argued that the point of litigation is to recover money for creditors, including the deposit insurance funds. Investors, because they are only entitled to what remains after all creditors are paid back, should not be involved in the litigation, he said.
The goodwill cases date back to the 1980s when the Federal Savings and Loan Insurance Corp., desperate to avoid bankruptcy, encouraged healthy thrifts to take over sick ones. In exchange for saving the insurance fund billions of dollars, the agency promised to let these thrifts depreciate over 40 years the difference between the sick institution's assets and liabilities.
Congress, however, outlawed this accounting treatment in 1989. The change left scores of thrifts woefully undercapitalized, setting off a wave of failures and prompting more than 100 breach of contract suits. The Supreme Court ruled in July that the government was liable for breaking its word. The U.S. Court of Federal Claims now must decide whether stockholders of institutions that lost goodwill are entitled to damages. A trial involving Glendale Federal Bank is set for Jan. 13.
