Case 1:13-cv-00465-MMS Document 109 Filed 11/25/14 Page 1 of 6

UNITED STATES COURT OF FEDERAL CLAIMS

FAIRHOLME FUNDS, INC., et al.,

Plaintiffs,

Case No. 13-cv-00465C

v.

Judge Margaret M. Sweeney

THE UNITED STATES OF AMERICA,

Defendant.
MOTION FOR LEAVE TO FILE AMICUS BRIEF
REGARDING DEFENDANTS MOTION TO STAY

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Washington Federal, Michael McCredy Baker, and City of Austin Police Retirement
System, plaintiffs in Washington Federal, et al. v. United States, Fed. Cl. No. 13-cv-00385
(collectively, Amici), respectfully move for leave to file an amicus brief regarding the
Governments motion to stay the proceedings in this action. Amici requested on February 7,
2014, that the Court stay the Washington Federal action which, along with several other actions,
is coordinated with the Fairholme action, to promote the efficient administration of justice and
to prevent inconsistent rulings, as well as to maintain [their] action on a schedule similar to
those actions with which it is coordinated and [] give [Amici] the opportunity to review any
discovery obtained in the Fairholme action and, if necessary, supplement their opposition to the
Governments motion to dismiss. No. 13-cv-00385, Dkt. No. 42 at 2. On that basis, this Court
granted that request, effectively staying the Washington Federal action until the completion of
jurisdictional discovery in Fairholme. See No. 13-cv-00385, Dkt. No. 43. The Governments
requested stay of the Fairholme action relies on a preclusion argument that is inapplicable to
Amici, and granting a stay on that basis would directly and unnecessarily halt progress in
Amicis case, which involves claims and interests unique to that action. Accordingly, Amici
request leave to file an amicus brief on Friday, December 5, 2014, that will elaborate on the
implications of the Governments stay request on Amicis interests.
This Court should exercise its broad discretion to permit Amici to file an amicus brief,
see Fluor Corp. v. United States, 35 Fed. Cl. 284, 285 (1996), taking into account factors such as

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timeliness, whether the parties oppose the motion, Amicis interest, partisanship, and adequacy
of representation. Id.1 Each of these factors weighs in favor of granting Amicis motion.
Amici have timely requested leave to file their amicus brief on December 5, 2014, and
this brief extension of time will not unreasonably prolong the litigation. The Government has
not yet filed any reply in further support of its stay motion. Counsel for Amici contacted counsel
for Fairholme and the Government seeking their consent or non-opposition with respect to this
motion. Counsel for Fairholme have consented to Amicis motion, and have expressed their
willingness to work with the Government should it seek additional time to address Amicis
arguments in a reply. As of this filing, counsel for the Government has not responded. Even if
the Government expressed opposition to Amicis request to file an amicus brief, such unilateral
opposition should receive little weight,2 particularly given that any minor delay attributable to
Amici would have the same effect as the stay the Government seeks. Thus, granting Amicis
motion to file an amicus brief would not unreasonably delay the litigation. See id. at 286.
Moreover, the Governments proposed stay directly affects Amicis interests, as the
Washington Federal action cannot proceed until after the Fairholme parties complete
jurisdictional discovery. Because, as noted above, the preclusion arguments the Government
raises do not apply to Amici, and because the Washington Federal action raises additional claims

See also Wolfchild v. United States, 62 Fed. Cl. 521, 536 (2004), revd in part on other grounds, 559
F.3d 1228 (Fed. Cir. 2009) ([C]ourts have considered such factors as: whether the parties oppose the
motion, the strength of information and argument presented by the potential amicus curiaes interests, the
partisanship of the moving entity, the adequacy of the current representation, the timeliness of the motion,
and, perhaps most importantly, the usefulness of information and argument presented by the potential
amicus curiae to the court.).

At most, any opposition or indifference expressed by the Government should render the opposition
factor neutral, or nearly so, given Fairholmes consent. Wolfchild, 62 Fed. Cl. at 537.

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exclusive to that action, Amicis brief will offer additional insights concerning the implications
and propriety of a stay in Fairholmenot merely to allow[] the amic[i] to litigate [their] own
views or present [their] version of the facts in a partisan manner, id. (quoting Am. Satellite
Co. v. United States, 22 Cl. Ct. 547, 549 (1991)), but to fully apprise the Court of a stays impact
in light of these relevant considerations.
Finally, although Amici take no issue with the quality of counsel for Fairholme or the
Government, because the Washington Federal action raises claims not addressed in any other
action before the Court (i.e., challenges to the Governments placement of Fannie Mae and
Freddie Mac into conservatorship, the establishment of the senior preferred stock agreements,
and other actions taken with respect to Fannie Mae and Freddie Mac while in conservatorship),
there is a legitimate question as to whether Amicis interests are adequately represented. Trial
courts have allowed amicus filings when the court was concerned that one of the parties is not
interested in or capable of fully presenting one side of the argument. Fluor, 35 Fed. Cl. at 286
(quoting Am. Satellite, 22 Cl. Ct. at 549).

Although Amici share certain claims with the

Fairholme plaintiffs, the Washington Federal action, as noted above, raises claims concerning a
much broader array of conduct than the other actions before the Court. Because it is not clear
that the parties to the Fairholme action share Amicis interest in advancing all of these claims,3
the adequacy-of-representation factor also weighs in favor of granting Amicis motion.

The Government is plainly adverse to these claims and, at the time of this filing, Amici have been
unable to review Fairholmes response to the Governments stay motion: that response was filed under
seal, and a redacted version has not yet been filed.

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Amici contend that, in evaluating the Governments stay motion, the Court would benefit
from their perspective. Accordingly, Amici respectfully request that the Court grant their motion
and allow them to file an amicus brief on December 5, 2014.

Dated: November 25, 2014

By /s / Steve W. Berman
Steve W. Berman
Attorney of Record
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com

OF COUNSEL:
Jennifer Fountain Connolly
HAGENS BERMAN SOBOL SHAPIRO LLP
1629 K St. NW, Suite 300
Washington, D.C. 20006
Telephone: (202) 355-6435
Facsimile: (202) 355-6455
E-mail: jenniferc@hbsslaw.com
Robert M. Roseman
Joshua B. Kaplan
SPECTOR ROSEMAN KODROFF &
WILLIS, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Telephone: (215) 496-0300
Facsimile: (215) 496-6611
E-mail: rroseman@srkw-law.com
E-mail: jkaplan@srkw-law.com

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Mark S. Willis
James McGovern
SPECTOR ROSEMAN KODROFF &
WILLIS, P.C.
1101 Pennsylvania Avenue, N.W.
Suite 600
Washington, D.C. 20004
Telephone: (202) 756-3601
Facsimile: (202) 756-3602
E-mail: mwillis@srkw-law.com
E-mail: jmcgovern@srkw-law.com
Attorneys for Plaintiffs Washington Federal,
Michael McCredy Baker, and City of Austin Police
Retirement System