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  Case Updates for 2008

Prior Case Updates for:  2012—2011—2010—2009—2008—2007—2006—2005—2004—2003—2002—2001
 
Posted: December 10, 2008 "The United States Court of Appeals for the Federal Circuit has denied our motion for reconsideration from its earlier decision that the government and Benj. Franklin did not make a contract in 1982 in connection with the acquisition of Equitable Saving and Loan. The Court continues to disregard the sworn affidavits which we submitted from all three government officials who represented the government in the transaction in 1982 and the 1986 modification, all of which said that they intended and understood that there was a contract. We continue to believe that the Court's decision is incorrect.

There is the possibility of seeking review by the United States Supreme Court, but the Supreme Court only grants review to very few cases which involve differences of opinion among the various Circuit Courts of Appeal or major issues of national policy.

The case will now be sent back to the U. S. Court of Federal Claims to determine whether money is owed to Benj. Franklin in connection with the acquisition of Western Heritage Savings and Loan in 1985. The government concedes that it made a contract with Benj. Franklin in connection with the acquisition of Western Heritage which it breached. That contract granted Benj. Franklin certain forbearances permitting the exclusion of losses, liabilities and scheduled items attributable to Western Heritage for five years in computing Benj. Franklin's minimum capital requirements, which had not expired at the time of the passage of FIRREA in 1989, or the wrongful seizure of Benj. Franklin in 1990.

Our Washington D.C. attorneys who handled the appeal, with my help, will now be reviewing the options, but this analysis will take some time."
Posted: October 2, 2008 "The government has moved for a 29 day extension to file its Response until November 7, 2008.  This motion will probably be granted.”
Posted: September 23, 2008

"On September 23rd our petition for rehearing was filed with the U.S. Court of Appeals for the Federal Circuit. Yesterday, September 25th, the Court asked the government to respond. This means that at least one member of the Court believed that our motion may have merit.  It is still uphill, but this is an important first step, since most petitions are denied without the Court asking for a response. Even where a response is requested and filed, the petitions for rehearing are usually denied, but at least now we can have some hope.

The case was decided against us by a three Judge panel, and we are requesting the entire Court to consider our case.

Our Washington, D.C. attorneys, with my help, are making these major arguments:

1.      This decision is contrary to three other decisions of the Federal Circuit and therefore should be reviewed for consistency by all of the Judges, not just the three Judge panel.

2.      All three government regulators provided affidavits in 1997 that they intended to make a contract with Benj. Franklin, but the three Judge panel disregarded these affidavits.

3.      Intent is usually a factual issue.  Since the three Judge panel has reversed the Summary Judgment granted by the Claims Court in our favor after reviewing only the documents, the case should at least be sent back to the Claims Court to hear live testimony.

I filed this case in September, 1990, almost exactly 18 years ago, and the good fight goes on.”
Posted: August 10, 2008
"Yesterday, August 8, 2008, almost 18 years after I filed the Benj. Franklin Complaint against the government, the United states Court of Appeals for the federal Circuit decided that there never was a contract between Benj. Franklin and the government for the long term amortization of good will in connection with the acquisition of Equitable.  The court disregarded the Sworn Declarations which we submitted from the government officials who negotiated with the Benj. Franklin that there was a contract.  The case was remanded to the United States Court of Federal Claims to decide whether damages were owed for breach of contract over the much smaller  Western Heritage acquisition. 
 
After we have carefully analyzed the lengthy decision, I will be consulting early next week with our Washington, D. C. appellate Counsel about further strategy.   I will up-date this report when we have decided upon our next step.  The case was decided by a three judge panel and there is a possible appeal to the full Court.
 
The decision does not change the $31 million which FDIC has distributed to the shareholders from the tax claim, nor the $3 million which I have returned to the contributors to the litigation fund.  It does overturn the $52 million Claims Court judgment unless we get the decision changed."
Posted: June 9, 2008

"The United States District Court for the District of Columbia has now set a timetable for briefs on Second Motions for Summary Judgment on the long-pending attorneys’ fees petitions.  The opening brief is due on June 23, 2008 and the final brief on September 22, 2008.  The Court will hopefully make decisions on the motions soon thereafter.  This should result in some money being distributed by FDIC to the shareholders.

As I have previously advised you, the United States Court of Appeals for the Federal Circuit usually makes its decisions on Savings & Loan cases in three to six months, so the decisions on all pending matters could come about the same time.”
Posted: May 9, 2008

"A three Judge panel of the United States Court of Appeals for the Federal Circuit heard oral argument on the Benj. Franklin appeal on Wednesday, May 7th in Washington, D.C.  Since government attorneys often read our website, I cannot give you my impressions about how the arguments were received by the Judges.  Eric Bloom of the Washington, D.C. law firm of Winston and Strawn argued for the plaintiff shareholders and Ashley Doherty argued briefly for the FDIC.  Our argument in support of the Claims Court decision was that the facts were similar to other previously decided Federal Circuit Court cases which had upheld the contracts of other Savings and Loans.  We also stressed that all three officials who had represented the government in the negotiations had submitted affidavits or declarations supporting the existence of a contract.

There were also many questions about the proper level of damages.  We argued that the $52 million Claims Court Judgment should be increased by the $50 million tax settlement paid out of Receivership Funds to the IRS because there would have been no tax owed if Benj. Franklin had not been seized.  The government argued that no money should be paid to Benj. Franklin (for the shareholders) because there never was a contract.

If past practice is followed, it should take three to six months for a decision.”
Posted: May 2, 2008

This is a reminder that the oral argument on the Benj. Franklin appeal will take place on Wednesday, May 7, 2008 before the United States Court of Appeals for the Federal Circuit at 10:00 a.m. EDT at 717 Madison Place NW, Washington, D.C.

Eric Bloom of the Washington, D.C. law firm of Winston & Strawn will argue the appeal for Benj. Franklin and our Oregon attorney, Don Willner will be present to help
Posted: March 24, 2008 "The Benj. Franklin appeal will be argued to the United States Court of Appeals for the Federal Circuit in Washington, D.C. at 10:00 a.m. on May 7, 2008.  Each side will be allowed fifteen minutes to argue.  The address of the Court is 717 Madison Place NW, Washington, D.C. 20439.  The oral argument is open to the public.”
Posted: March 15, 2008 "Benj. Franklin's Reply Brief for the appeal was filed on February 12, 2008. Next comes oral argument before the United States Court of Appeals for the Federal Circuit. There is no way of knowing when the argument will be set. The best guess is late summer or early fall 2008."

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Last modified: February 13, 2012