WASHINGTON - Now that a federal appeals court has ruled resoundingly that they were wronged by the government, scores of thrifts with goodwill claims are turning their minds to money.
"We're sharpening our pencils now on the damages number," said Jerry Stouck, lawyer for Glendale Federal Bank, the big winner in last week's 9-2 ruling by the U.S. Court of Appeals for the Federal Circuit.
Glendale is refining its demands and will probably ask for about $1.5 billion. In all, said thrift analyst James Marks of Hancock Institutional Equity Services in San Francisco, thrifts can hope to win as much as $12 billion in the goodwill cases.
If the government were to settle out of court now, Mr. Marks said, it might get away with paying as little as $3 billion to $4 billion. But, he added, "I see little incentive in a presidential election year for anyone to pay that kind of bill."
In his majority opinion, appeals court Chief Judge Glenn L. Archer Jr. said Congress had breached a contract with Glendale and two now-defunct thrift companies when it passed the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. That law put a halt to regulators' much-criticized practice of letting the acquirers of failing thrifts count "supervisory goodwill" toward their capital requirements.
The Justice Department can appeal this decision to the Supreme Court but hasn't said whether it will. The goodwill plaintiffs, meanwhile, needn't wait before pressing their damage claims in the U.S. Court of Claims.
"We have a good, strong opinion in our favor from the court of appeals," said Mr. Stouck, a partner in the Washington law firm of Spriggs & Hollingsworth. "We're going to press this litigation forward just as aggressively as we can."
The goodwill plaintiffs want money damages, not a return of their supervisory goodwill. Mr. Marks estimates that two-thirds of the 90-odd plaintiffs that have sued are holding companies or stockholders of failed thrifts - who won't be helped by anything but cash.
And surviving thrifts such as Glendale say they've had to spend money to cope with the consequences of the 1989 law, so they should get money in return.
Judge Archer's opinion clearly came down on the side of cash awards.
"Congress was always free to deem supervisory goodwill a bad idea and legislate it out of existence," he wrote. "Where that legislation breached the government's prior contractual obligations regarding the treatment of supervisory goodwill, however, the government remains liable for money damages in the breach."
Glendale, which had $566 million in supervisory goodwill on its books when the measure became law, bases most of its $1.5 billion damages estimate "on the notion that the loss of capital created a loss of capacity to generate earnings," said Richard Fink, senior executive vice president of the thrift. Most other plaintiffs have not yet specified the amount of damages they will claim.
Where would the government find the money to pay the damage claims?
Mr. Fink said he expects it to come from the Judgment Fund, which is administered by the Justice Department and continuously funded by Congress in order to pay judgments against the U.S. government. "I think, mechanically, a damage award has to come out of that fund," he said.
Ricki Helfer, the chairman of the Federal Deposit Insurance Corp., has advocated using the Judgment Fund. But Rep. John LaFalce, D-N.Y., has introduced legislation that would pay goodwill damages out of Resolution Trust Corp. funds.