in the united states court of federal claims€¦ · · 2016-05-02in the united states court of...

IN THE UNITED STATES COURT OF FEDERAL CLAIMS FAIRHOLME FUNDS, INC., et al., ) ) Plaintiffs, ) ) No. 13-465C v. ) (Judge Sweeney) ) THE UNITED STATES, ) ) Defendant. )

DEFENDANT’S PROPOSED PLAN FOR DISCOVERY

In accordance with the Court’s order dated March 19, 2014, and the parties’ Joint Status

Report filed earlier today, the United States respectfully submits this plan for limited discovery.

In submitting this plan, we reserve our objections that discovery is inappropriate at this stage of

the litigation for the reasons stated in our February 12, 2014, and March 17, 2014 filings.1 We

present below our plan for the limited discovery directed by the Court, followed by an

assessment of plaintiffs’ proposed plan.

I. United States’ Discovery Plan And Schedule

A. Discovery Plan With Respect To The Ripeness Of Plaintiffs’ Claim

We argue in our motion to dismiss that plaintiffs’ claim is not ripe because the future

profitability and ultimate disposition of Fannie Mae and Freddie Mac (the Enterprises) – which

are still in conservatorship – are unknown. In its February 26, 2014 Order, the Court permitted

1 We also reserve our rights to (1) request discovery from plaintiffs during any

discovery period permitted by the Court, and (2) object to any specific discovery requests propounded under this or any other discovery plan adopted by the Court, as permitted under the Rules of the Court of Federal Claims (RCFC). In addition, our discovery plan provides for discovery with respect to both the Department of the Treasury (Treasury) and the Federal Housing Finance Agency (FHFA). We do this to facilitate compliance with the Court’s discovery order, but in no way waive or forfeit our position that FHFA – when acting as conservator – is not the United States and not subject to this Court’s jurisdiction.

Case 1:13-cv-00465-MMS Document 37 Filed 03/21/14 of 11

2

discovery on each party’s assessment of the future profitability of the Enterprises and the future

plans as to when and how the conservatorships will end. See Order at 3.

Discovery Plan. With respect to ripeness, we propose that plaintiffs propound two

interrogatories as to the assessment of future profitability. This would allow plaintiffs to seek

non-privileged information regarding the Government’s current assessment of the GSEs’ future

profitability. As to the subject of when and how the conservatorships will end, we propose that

plaintiffs propound two additional interrogatories. This would allow plaintiffs to seek non-

privileged information regarding (a) possible avenues for termination of the conservatorships,

and (b) whether the Government has adopted a plan as to when the conservatorships might end.

B. Discovery Plan With Respect To The Court’s Jurisdiction Over The Acts Of FHFA As Conservator

We contend in our motion to dismiss that FHFA is not a United States instrumentality

when it acts as conservator. The Court has permitted discovery on whether FHFA acted at the

“direct behest” of the Treasury, or was “an agent and arm of the Treasury.” See Order at 3.

Discovery Plan. With respect to the jurisdictional issue of FHFA acting as conservator,

we propose that plaintiffs be permitted to seek the relevant documents from two individual

custodians, one from FHFA and one from Treasury. Plaintiffs would then be permitted to issue

notices to depose the custodians, in their individual, official capacities, on these jurisdictional

topics.

C. Discovery Plan With Respect To The Solvency In September 2008 Of Fannie Mae and Freddie Mac

We assert in the Rule 12(b)(6) portion of the motion to dismiss that plaintiffs did not have

a reasonable expectation of profits at the time the Enterprises were placed into conservatorships.


3

The Court has permitted discovery as to Fannie Mae’s and Freddie Mac’s solvency and the

reasonableness of expectations about their future profitability at that time. See Order at 4.

Discovery Plan. With respect to this issue, and for purposes of the Government’s motion

to dismiss, the Government treats as true the factual assertions in plaintiffs’ complaint

concerning the financial condition of the GSEs and the factual circumstances surrounding the

conservatorships.2 With these factual allegations taken as true, the plaintiffs do not need

discovery on this topic. As an alternative, we propose that plaintiffs be permitted to propound

two interrogatories on the topic of expectations of future profitability. Plaintiffs would also be

permitted to seek relevant documents from two FHFA custodians related to expectations of

Fannie Mae’s and Freddie Mac’s future profitability. Plaintiffs would then be permitted to issue

notices for the depositions of those custodians in their individual, official capacities, related to

expectations of future profitability.

D. Proposed Discovery Schedule

We propose that the Court provide six months for the discovery described above.

II. Plaintiffs’ Proposed Discovery Is Extremely Overbroad, Burdensome, And Unnecessary

The Court should reject plaintiffs’ proposed discovery plan not only because it is

unnecessary and enormously burdensome, but also because it ignores the larger context of the

Court’s order. First, the discovery permitted by the Court relates to only three issues. This

means that discovery is necessarily limited. Second, discovery should be permitted only to the

extent that plaintiffs do not already have access to the information they seek. The Court should

consider that the United States has filed an extensive Administrative Record – from both

2 See Compl., ¶¶ 41 and 43.


4

Treasury and FHFA – in the District Court cases in which the same plaintiffs challenge the Third

Amendment. See Fairholme Funds, Inc. v. FHFA, No. 13-1053 (D.D.C., July 10, 2013); see

also Exs. 1 and 2. In addition, the Third Amendment has been the subject of extensive public

scrutiny in the press, SEC filings, and Inspector General reports. Not only do plaintiffs have

access to these materials, but they have cited many of them in their complaint and motion for

discovery. Third, the potential scope of this discovery is enormous and unnecessarily disruptive.

The Enterprises have been under conservatorship for over five years, and their rescue and

operation implicates dozens of former and current Government employees, as well as millions of

pages of e-mails and other documents – many of which are protected by Government and other

privileges. The cost and time frame of discovery – if allowed on the scale proposed by plaintiffs

– will easily push into the millions of dollars and require well over a year to complete. Plaintiffs

seek all of this before the Court has had the opportunity to consider threshold legal arguments

that the Government contends are dispositive.

Against this backdrop, plaintiffs ask the Court to adopt an essentially unlimited discovery

plan allowing the full panoply of initial disclosures, document requests, individual depositions,

Rule 30(b)(6) depositions, and interrogatories. The wide-open discovery urged by plaintiffs is

wholly disproportionate to the limited discovery permitted by the Court, is largely unnecessary,

and will create tremendous burdens on both the Government and the Court. Further, the timing

and scope of the plan are divorced from reality and improper under both the Federal Rules of

Civil Procedure and RCFC Appendix A. Accordingly, the Court should reject the plan, in full.

A. Plaintiffs’ Discovery Requests Are Unbounded, Rendering Their Discovery Plan Unusable

The Court should reject plaintiffs’ discovery plan because it provides no limits on the

breadth of discovery. Plaintiffs’ discovery plan is evasive regarding the number of deposition


5

notices, interrogatories, and document requests the plaintiffs hope to serve upon the Government.

For example, plaintiffs anticipate “one or more” depositions. Of course, the phrase “or more” is

clearly open-ended, and undermines any effort by the Government and the Court to calibrate a

discovery plan to accommodate these “or more” depositions. This flaw is glaring because it

conflicts with the limits provided for in the Court’s Rules (RCFC 26 -36), and because it makes a

schedule unmanageable.

Similarly, the plan suggests no limits on the plaintiffs’ document requests. Unbounded

discovery, as contemplated by the plaintiffs, provides no basis for the Court or the Government

to plan for the production of documents. The Court does not know whether plaintiffs will ask for

1,000 or 10,000,000 documents. A discovery plan that does not address the scope of discovery

sought is not a plan at all, but a request for a blank check. Because the plaintiffs fail to provide

an actual, comprehensive, discovery plan to the Court, as required by the Court’s order, the

Court should reject the plaintiffs’ incomplete proposal.

Further, plaintiffs’ discovery into the ongoing operations of the conservatorships would

directly and impermissibly interfere with FHFA’s current internal deliberations and decision-

making regarding the future of the Enterprises. Such discovery contravenes the congressional

directive in the Housing and Economic Recovery Act of 2008 (HERA), 12 U.S.C. § 4617, that

“no court may take any action to restrain or affect the exercise of powers or functions of [FHFA]

as a conservator or a receiver.” 12 U.S.C. § 4617(f).

B. Plaintiffs’ Proposed Written Discovery Requests Are Overbroad And Unduly Burdensome

Plaintiffs propose a series of written discovery requests. These requests however, lack

any specificity and are not narrowly tailored to achieve the limited discovery warranted by the

three discrete issues identified in the Court’s order. For example, plaintiffs’ requests are not, as


6

they should be, confined to specific periods. The Government’s plan, on the other hand, includes

targeted time periods intended to achieve the limited discovery contemplated by the Court’s

discovery order; similarly, the Government’s proposal provides for a reasonable number of

document custodians, and provides for targeted interrogatories appropriate to the limited scope

of the discovery permitted by the Court. Even our plan, however, will require substantial

resources and effort to implement.

Although not mentioned in plaintiffs’ discovery plan, plaintiffs already have disclosed

their plans in a declaration to the Court as part of their motion for discovery. Just one part of

their plans includes the following:

With regard to the Government’s expectations about the future profitability of the Companies and how long they will remain in the conservatorship, Plaintiffs seek discovery of emails, strategy documents, internal analyses and projections, and other communications regarding the expected future profitability of Fannie and Freddie (both at the time of the Net Worth Sweep and at present) and also regarding when (if ever), and how, the conservatorships will end. This discovery should include, for example, the production of all nonprivileged documents, and appropriate depositions, relating to the Government’s belief that Fannie and Freddie will remain profitable for the foreseeable future. Plaintiffs also need discovery about the Government’s decision to allow the Companies to recognize billions of dollars of the Companies’ deferred tax asset valuation allowances. This discovery should include documents in the possession of Treasury, FHFA, and/or any other relevant Government agencies.

Discovery Motion, Ex. A at 4.

The breadth of plaintiffs’ discovery plans – a “wish list” issued solely for the purpose of

responding to our motion to dismiss – cannot be overstated. Based on current information, we

understand that the average e-mail file for any document custodian will exceed 5 GB, which

likely translates into more than 500,000 pages of e-mails and/or attachments per custodian.

Therefore, if plaintiffs take five depositions, the Government would likely be required to review,


7

for privilege and responsiveness, approximately 2.5 million pages of documents. This, of course,

does not include hard-copy documents and non-email electronically stored information.

Plaintiffs’ document requests potentially would require the Government to produce millions of

pages of documents from both Treasury and FHFA covering over five years, from 2008 to the

present. Thus, the document requests contemplated by plaintiffs’ discovery plan are overbroad

and completely inappropriate for this limited discovery.

Moreover, plaintiffs’ document requests may be entirely unnecessary. Plaintiffs have not

shown that any document discovery is required beyond the voluminous documents already

available to them, including the administrative records filed in District Court, SEC filings, and

other public documents. The administrative records alone provide over 8,000 pages of materials

related to the Third Amendment, the subject of Fairholme’s cases pending in both courts. See

Fairholme Funds, Inc. v. FHFA, No. 13-1053 (D.D.C., July 10, 2013); see also Exs. 1 and 2

(Indexes of Treasury Administrative Record and FHFA Document Compilation). Given these

records and other publicly available information, plaintiffs already possess sufficient information

for purposes of the limited discovery permitted by the Court. The Court should require plaintiffs

to demonstrate why additional written materials are necessary as part of this limited discovery.

In addition, plaintiffs’ proposed time for discovery is wholly unreasonable. It would be

impossible to comply with plaintiffs’ proposal that the Government, by May 7, 2014, review and

produce millions of pages of documents, and prepare a privilege log for all materials withheld on

the basis of privilege. Should the Court adopt plaintiffs’ plan, we would need at least 12 months

to: (1) collect and load the documents; (2) review the documents for responsiveness and

privilege; (3) prepare a privilege log; and (4) produce responsive documents.


8

Demonstrating their disregard for the breadth of the work they request, plaintiffs actually

ask the Court to reduce by half the Government’s time to respond and object, if necessary, to

plaintiffs’ written discovery requests. See RCFC 34(b)(2)(A); RCFC 33(b)(2) (providing 30

days to respond and object to such requests). Plaintiffs ask the Court to unleash a raft of

discovery and then ask the Government to serve all objections to plaintiffs’ document requests

and interrogatories within 14 days after being served. This request, like all the time periods

sought in the plaintiffs’ plan, is patently unreasonable by any judicial standard.

Plaintiffs may protest that it is only a limited number of documents they seek, and so not

such a burden. This ignores the basic axiom of searching: it is not the size of the needles for

which one searches, but the size of the haystack that must be searched. To offer a comparison,

document production in Starr International Company, Inc., et al., v. United States (Fed. Cl.)

[Wheeler, J.], took well over a year.

Accordingly, the Court should reject plaintiffs’ attempt to circumvent the Court’s rules

by proposing an accelerated discovery schedule. Indeed, the Government will require at least a

year to provide the discovery identified in plaintiffs’ excessively broad plan.

C. Plaintiffs’ Proposed Deposition Discovery Is Overbroad And Unduly Burdensome ____

Next, the Court should reject plaintiffs’ plan to take an unlimited number of depositions,

and to take any Rule 30(b)(6) depositions at all.

Given the limited number of issues identified by the Court, the number of depositions for

the permitted discovery should be limited as well. Our proposal of four depositions of witnesses,

testifying in their individual capacity, will meet the goals identified by the Court.

Plaintiffs’ plan to take “one or more RCFC 30(b)(6) depositions,” is most troubling.

First, the Court should reject plaintiffs’ request to take any Rule 30(b)(6) depositions without


9

(1) an express showing of need, and (2) Court imposed limits on the proposed deposition’s

scope. Unlike the depositions of individuals, which can be prepared in advance with the

gathering of the materials of a single witness, Rule 30(b)(6) allows a deponent to ask a party

about “information known or reasonably available to the organization.” This rule contains a

duty, on the part of the testifying party, to prepare the witness with information that is reasonably

available. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). For the Government

properly to prepare and respond to such a request about numerous issues of significant breadth –

as suggested by the plaintiffs’ declaration – would require the review and organization of

millions of documents. General discovery has not begun, and the Government has not

undertaken the general review that would follow from the opening of general discovery. The

Rule 30(b)(6) depositions plaintiffs propose should not take place at this jurisdictional stage.

Because plaintiffs’ proposal calls for open-ended Rule 30(b)(6) depositions, the Court should

reject the proposal.

Indeed, plaintiffs’ proposal ignores the limits in the Court’s rules that bar multiple

depositions of the same witness, without the Court’s permission and a proper showing of need.

COFC Rule 30(a)(2)A)(ii). This limit on re-deposing a party properly applies to Rule 30(b)(6)

depositions. See Poly Carpe v. E&S Landscaping, 275 F.R.D. 700, 701 (S.D. Fla 2011). Here,

the Court has only provided for discovery against the Government, and such multiple Rule

30(b)(6) depositions would be improper under the rules. This, too, provides a basis for rejecting

the plaintiffs’ proposal.

Given the limitless breadth of plaintiffs’ proposal, its inconsistency with this Court’s

rules, and its lack of realism given timing, the Court should reject the plaintiffs’ discovery

proposal as unfair and unworkable.


10

D. Initial Disclosures Are Unnecessary And Inconsistent With The Court’s Rules

Finally, plaintiffs propose that the Government provide Rule 26 initial disclosures. This

is unnecessary. Plaintiffs already have more than ample information from which to identify

potential document custodians and deponents. Treasury and FHFA have already assembled and

filed administrative records in plaintiffs’ case challenging the Third Amendment in District

Court. See Fairholme Funds, Inc. v. FHFA, No. 13-1053 (D.D.C., July 10, 2013). These

administrative records provide over 8,000 pages of materials related to the Third Amendment,

the subject of Fairholme’s cases pending in both courts. See Exs. 1 and 2 (Document Indexes).

Moreover, plaintiffs’ request for initial disclosures from the Government is contrary to

Rule 26(a)(1), which states that such disclosures may be appropriate only after the filing of

defendant’s answer. RCFC App. A, ¶ 3. Indeed, only the filing of an answer triggers the case

management obligations set forth in Appendix A of the RCFC. See RCFC 26(a)(1)(C); RCFC

App. A, ¶ 3. Because the Government has not filed an answer in this case, the case management

events that follow the filing of an answer, such as initial disclosures, have not been triggered.

See id. Consequently, the Rules do not entitle plaintiffs to initial disclosures. Thus, the Court

should reject plaintiffs’ request for initial disclosures from the Government.

CONCLUSION

Given the limited discovery ordered by the Court, the ample documentary materials

already available to plaintiffs, and the enormous burden posed by plaintiffs’ proposed plan, the

Court should adopt the United States’ discovery plan.

Respectfully submitted,

STUART F. DELERY Assistant Attorney General


11

s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director s/ Kenneth M. Dintzer KENNETH M. DINTZER Acting Deputy Director Commercial Litigation Branch Civil Division U.S. Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C. 20044 (202) 616-0385 (202) 307-0972 fax [email protected] Attorneys for Defendant March 21, 2014


Exhibit 1

Case 1:13-cv-00465-MMS Document 37-1 Filed 03/21/14 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PERRY CAPITAL LLC, )

) Plaintiff, )

) v. ) Case No. 1:13-cv-1025-RLW

) JACOB J. LEW, in his official capacity as ) Secretary of the Treasury, et al., )

) Defendants. )

_________________________________________ ) FAIRHOLME FUNDS, INC., et al., )

) Plaintiffs, )

) v. ) Case No. 1:13-cv-1053-RLW

) FEDERAL HOUSING FINANCE AGENCY, ) et al., )

) Defendants. )

_________________________________________ ) ARROWOOD INDEMNITY COMPANY, et al., )

) Plaintiffs, )

) v. ) Case No. 1:13-cv-1439-RLW

) FEDERAL NATIONAL MORTGAGE ) ASSOCIATION, et al., )

) Defendants. )

_________________________________________ ) In re Fannie Mae/Freddie Mac Senior ) Preferred Stock Purchase Agreement Class ) Action Litigations ) Misc. Action No. 13-mc-1288-RBW

_________________________ ) This document relates to: ) ALL CASES ) _________________________________________ )

NOITCE OF FILING OF ADMINISTRATIVE RECORD OF THE DEPARTMENT OF TREASURY

Case 1:13-cv-01025-RCL Document 26 Filed 12/17/13 Page 1 of 2Case 1:13-cv-00465-MMS Document 37-1 Filed 03/21/14 Page 2 of 20

2

The United States Department of the Treasury (“Treasury”) and Jacob J. Lew, in his

official capacity as Secretary of the Treasury, defendants in the above-referenced actions, hereby

give notice of the filing of the attached administrative record on behalf of Treasury with respect

to its August 17, 2012, Third Amendment to Senior Preferred Stock Purchase Agreement with

the Federal National Mortgage Association and its August 17, 2012, Third Amendment to Senior

Preferred Stock Purchase Agreement with the Federal Home Loan Mortgage Corporation.

Dated: December 17, 2013 Respectfully submitted,

STUART F. DELERY Assistant Attorney General RONALD C. MACHEN, JR.

United States Attorney DIANE KELLEHER

Assistant Branch Director

/s/ Joel McElvain JOEL McELVAIN

THOMAS DAVID ZIMPLEMAN U.S. Department of Justice

Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 (202) 514-2988 [email protected]

Case 1:13-cv-01025-RCL Document 26 Filed 12/17/13 Page 2 of 2Case 1:13-cv-00465-MMS Document 37-1 Filed 03/21/14 Page 3 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PERRY CAPITAL LLC, )

) Plaintiff, )

) v. ) Case No. 1:13-cv-1025-RLW

) JACOB J. LEW, in his official capacity as ) Secretary of the Treasury, et al., )

) Defendants. )

_________________________________________ ) FAIRHOLME FUNDS, INC., et al., )

) Plaintiffs, )

) v. ) Case No. 1:13-cv-1053-RLW

) FEDERAL HOUSING FINANCE AGENCY, ) et al., )

) Defendants. )

_________________________________________ ) ARROWOOD INDEMNITY COMPANY, et al., )

) Plaintiffs, )

) v. ) Case No. 1:13-cv-1439-RLW

) FEDERAL NATIONAL MORTGAGE ) ASSOCIATION, et al., )

) Defendants. )

_________________________________________ ) In re Fannie Mae/Freddie Mac Senior ) Preferred Stock Purchase Agreement Class ) Action Litigations ) Misc. Action No. 13-mc-1288-RBW

_________________________ ) This document relates to: ) ALL CASES ) _________________________________________ )

ADMINISTRATIVE RECORD OF THE DEPARTMENT OF TREASURY

Case 1:13-cv-01025-RCL Document 26-1 Filed 12/17/13 Page 1 of 47Case 1:13-cv-00465-MMS Document 37-1 Filed 03/21/14 Page 4 of 20

INDEX

Tab Document Bates Range 1 HERA Determination for Senior Preferred Stock

Purchase Agreements (September 7, 2008)

0001-0016

2 Fannie Mae Senior Preferred Stock Purchase Agreement (September 7, 2008)

0017-0031

3 Fannie Mae Senior Preferred Stock Certificate (September 7, 2008)

0032-0040

4 Fannie Mae Warrant to Purchase Common Stock (September 7, 2008)

0041-0050

5 Freddie Mac Senior Preferred Stock Purchase Agreement (September 7, 2008)

0051-0065

6 Freddie Mac Senior Preferred Stock Certificate (September 7, 2008)

0066-0074

7 Freddie Mac Warrant to Purchase Common Stock (September 7, 2008)

0075-0084

8 Statement of FHFA Director James B. Lockhart (September 7, 2008)

0085-0094

9 Fannie Mae Amended and Restated Senior Preferred Stock Purchase Agreement (September 26, 2008)

0095-0108

10 Fannie Mae Senior Preferred Stock Certificate Form (September 26, 2008)

0109-0117

11 Fannie Mae Warrant to Purchase Common Stock (September 26, 2008)

0118-0127

12 Freddie Mac Amended and Restated Senior Preferred Stock Purchase Agreement (September 26, 2008)

0128-0141

13 Freddie Mac Senior Preferred Stock Certificate Form (September 26, 2008)

0142-0150


14 Freddie Mac Warrant to Purchase Common Stock (September 26, 2008)

0151-0160

15 Action Memorandum – Amendments to the Senior Preferred Stock Purchase Agreement with Fannie Mae and Freddie Mac, and Related Determination (May 6, 2009)

0161-0162

16 HERA Determination for Amendments to Senior Preferred Stock Purchase Agreements (May 6, 2009)

0163-0164

17 Fannie Mae Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement (May 6, 2009)

0165-0169

18 Freddie Mac Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement (May 6, 2009)

0170-0174

20 Action Memorandum – Expiration of HERA Authority and Amendments to the Preferred Stock Purchase Agreements (PSPAs) between Treasury and Fannie Mae and Freddie Mac (December 22, 2009)

0175-0180

21 Action Memorandum – Determination under Section 1117 of the Housing and Economic Recovery Act of 2008 for Purchase of Obligations and Securities of Regulated Entities (December 24, 2009)

0181-0186

22 HERA Determination for Second Amendment to Senior Preferred Stock Purchase Agreements (December 24, 2009)

0187-0188

23 Fannie Mae Second Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement (December 24, 2009)

0189-0194

24 Freddie Mac Second Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement (December 24, 2009)

0195-0200


25 Action Memorandum – Periodic Commitment Fee for GSE Preferred Stock Purchase Agreements (PSPAs) (December 20, 2010)

0201-0203

26 Periodic Commitment Fee Waiver Letter (December 29, 2010)

0204

27 Reforming America’s Housing Finance Market: A Report to Congress, February 2011

0205-0236

28 Fannie Mae 2010 Form 10-K

0237-0639

29 Freddie Mac 2010 Form 10-K

0640-1063

30 Periodic Commitment Fee Waiver Letter (March 31, 2011)

1064

31 Fannie Mae First Quarter 2011 Form 10-Q

1065-1230

32 Freddie Mac First Quarter 2011 Form 10-Q

1231-1461

33 Periodic Commitment Fee Waiver Letter (June 30, 2011)

1462

34 Fannie Mae Second Quarter 2011 Form 10-Q

1463-1646

35 Freddie Mac Second Quarter 2011 Form 10-Q

1647-1892

36 Moody’s: Plan To Raise Fannie Mae and Freddie Mac Guarantee Fees Raises Question of Support (September 26, 2011)

1893-1895

37 Periodic Commitment Fee Waiver Letter (September 30, 2011)

1896

38 FHFA Press Release: FHFA Updates Projections of Potential Draws for Fannie Mae and Freddie Mac (October 27, 2011) (attaching FHFA’s “Projections of the Enterprises’ Financial Performance”)

1897-1912

39 Fannie Mae Third Quarter 2011 Form 10-Q

1913-2113

40 Freddie Mac Third Quarter 2011 Form 10-Q

2114-2357


41 Action Memorandum – 2012 Periodic Commitment Fee for GSE Preferred Stock Purchase Agreements (December 21, 2011)

2358-2365

42 Periodic Commitment Fee Waiver Letter (December 21, 2011)

2366

43 FHFA Press Release: FHFA Sends Congress Strategic Plan for Fannie Mae and Freddie Mac Conservatorships (February 21, 2012) (attaching transmittal letter and “Strategic Plan for Enterprise Conservatorships: The Next Chapter in a Story that Needs an Ending”)

2367-2390

44 Fannie Mae 2011 Form 10-K

2391-2764

45 Freddie Mac 2011 Form 10-K

2765-3247

46 Deutsche Bank: The Outlook In MBS and Securities Products (March 14, 2012)

3248-3273

47 Action Memorandum – Periodic Commitment Fee Waiver Letter for Q2 2012 (March 30, 2012)

3274-3283

48 Periodic Commitment Fee Waiver Letter (March 30, 2012)

3284

49 Moody’s Presentation to Treasury: Fannie Mae and Freddie Mac Capital Positions (April 4, 2012)

3285-3294

50 Information Memorandum – GSE Budgeting and Cost Estimates (April 13, 2012)

3295-3343

51 Fannie Mae First Quarter 2012 Form 10-Q

3344-3531

52 Freddie Mac First Quarter 2012 Form 10-Q

3532-3774

53 GSE Preferred Stock Purchase Agreements Summary Review and Key Considerations, Presentation to the Office of Management and Budget, May 23, 2012

3775-3802

54 Federal Housing Finance Agency, Office of Inspector General: Fannie Mae and Freddie Mac: Where the Taxpayers’ Money Went (May 24, 2012)

3803-3832


55 GSE Preferred Stock Purchase Agreements (PSPA) Overview and Key Considerations, June 13, 2012

3833-3862

56 Conservator’s Report on the Enterprises’ Financial Performance, First Quarter 2012

3863-3880

57 Action Memorandum – Periodic Commitment Fee Waiver Letter for Q3 2012 (June 25, 2012)

3881

58 Periodic Commitment Fee Waiver Letter (June 25, 2012)

3882

59 Email dated July 6, 2012 attaching Illustrative Financial Forecasts – Fannie Mae Base Case & Stress Scenarios, July 2012

3883-3894

60 Email dated August 7, 2012 attaching Treasury’s Capital Support for The GSEs, Summary Review and Key Consideration, August 8, 2012

3895-3903

61 Fannie Mae Second Quarter 2012 Form 10-Q

3904-4082

62 Freddie Mac Second Quarter 2012 Form 10-Q

4083-4329

63 Action Memorandum – Third Amendments to the Senior Preferred Stock Purchase Agreements with Fannie Mae and Freddie Mac (August 15, 2012)

4330-4333

64 Fannie Mae Third Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement (August 17, 2012)

4334-4341

65 Freddie Mac Third Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement (August 17, 2012)

4342-4349

66 Data as of November 14, 2013 on Treasury and Federal Reserve Purchase Programs for GSE and Mortgage-Related Securities

4350-4357


Exhibit 2

Case 1:13-cv-00465-MMS Document 37-1 Filed 03/21/14 Page 12 of 20

UNITED STATES DISTRICT COURTDISTRICT OF COLUMBIA

PERRY CAPITAL LLC,

Plaintiff,

v.

JACOB J. LEW, et al.,

Defendants.

Civil Action No. 13-cv-1025 (RLW)

FAIRHOLME FUNDS, INC., et al.

Plaintiffs,

v.

FEDERAL HOUSING FINANCE AGENCY, et al.,

Defendants.


ARROWOOD INDEMNITY COMPANY,et al.,

Plaintiffs,

v.

FEDERAL NATIONAL MORTGAGEASSOCIATION, et al.,

Defendants.


In re Fannie Mae/Freddie Mac Senior Preferred StockPurchase Agreement Class Action Litigations_____________________________This document relates to:ALL CASES

Misc. Action No. 13-mc-01288 (RLW)

INDEX TO DOCUMENT COMPILATION BY DEFENDANTSFEDERAL HOUSING FINANCE AGENCY AND EDWARD DEMARCO

REGARDING THIRD AMENDMENT TOSENIOR PREFERRED STOCK PURCHASE AGREEMENTS


2

Tab Document Pin Cite Bates Range

1Declaration of FHFA Special Advisor to the Office ofthe Director Mario Ugoletti

FHFA 0001-0010

2Statement of FHFA Director James B. Lockhart III(September 7, 2008) 8

FHFA 0011-0020

3Statement of Treasury Secretary Henry M. Paulson, Jr.(September 7, 2008) 3

FHFA 0021-0023

4

Department of the Treasury Senior Preferred StockPurchase Agreement Fact Sheet(September 7, 2008)

1

FHFA 0024-0025

5FHFA Questions and Answers on Conservatorship(September 7, 2008) 3

FHFA 0026-0028

6Testimony of FHFA Director James B. Lockhart III(September 25, 2008) 5, 12, 34

FHFA 0029-0127

7

Fannie Mae’s Senior Preferred Stock PurchaseAgreement with Treasury(September 26, 2008)

FHFA 0128-0141

8

Freddie Mac’s Senior Preferred Stock PurchaseAgreement with Treasury(September 26, 2008)

FHFA 0142-0155

9

Department of the Treasury, Annual Financial Report,Part III(November 17, 2008)

205

FHFA 0156-0251

10FHFA Mortgage Market Note(December 5, 2008)

FHFA 0252-0257

11Fannie Mae, Form 10-K 2008(February 26, 2009) 31, 162

FHFA 0258-0675

12

First Amendment to Fannie Mae’s Senior PreferredStock Purchase Agreement with Treasury(May 6, 2009)

FHFA 0676-0680


3


13

First Amendment to Freddie Mac’s Senior PreferredStock Purchase Agreement with Treasury(May 6, 2009)

FHFA 0681-0685

14FHFA 2008 Annual Report to Congress(May 18, 2009)

2, 30,79, 83

FHFA 0686-0841

15

Department of the Treasury, Annual Financial Report,Fiscal Year 2009(December 15, 2009)

26

FHFA 0842-1135

16

Second Amendment to Fannie Mae’s Senior PreferredStock Purchase Agreement with Treasury(December 24, 2009)

3

FHFA 1136-1141

17

Second Amendment to Freddie Mac’s SeniorPreferred Stock Purchase Agreement with Treasury(December 24, 2009)

3

FHFA 1142-1147

18CBO Background Paper(January 13, 2010 ) 10 n.26

FHFA 1148-1177

19

Letter from FHFA Acting Director Edward J.DeMarco to Senator Dodd, Senator Shelby,Congressman Frank, and Congressman Bachus(February 2, 2010)

3

FHFA 1178-1186

20

Written Testimony of Treasury Secretary Timothy F.Geithner(March 23, 2010)

FHFA 1187-1197

21FHFA 2009 Annual Report to Congress(May 25, 2010) iv

FHFA 1198-1377

22

FHFA Projections of the Enterprises’ FinancialPerformance(October 21, 2010)

FHFA 1378-1390


4


23

Department of the Treasury, 2010 Performance andAccountability Report [Full document available athttp://www.treasury.gov/about/organizational-structure/offices/Mgt/Documents/2010_Treasury_complete_PAR%20Nov30.pdf](November 15, 2010)

20-22;211-15

FHFA 1391-1399

24Periodic Commitment Fee Waiver Letter(December 29, 2010)

FHFA 1400

25

Moody’s, Special Comment: The GSE Debate and theU.S. Mortgage Market(January 24, 2011)

FHFA 1401-1415

26

Budget of the United States Government, Fiscal Year2012, Appendix [Full document available athttp://www.whitehouse.gov/sites/default/files/omb/budget/fy2012/assets/appendix.pdf](February 14, 2011)

1319-20

FHFA 1416-1418

27Fannie Mae, Form 10-K 2010(February 24, 2011) 34

FHFA 1419-1821

28Freddie Mac, Form 10-K 2010(February 24, 2011) 8

FHFA 1822-2177

29

Freddie Mac Press Release, Freddie Mac ReportsFourth Quarter And Full-Year 2010 Financial Results(February 24, 2011)

FHFA 2178-2191

30Periodic Commitment Fee Waiver Letter(March 31, 2011)

FHFA 2192

31Fannie Mae, Form 10-Q Q1 2011(May 6, 2011) 54

FHFA 2193-2358

32

Statement of CBO Assistant Director for FinancialAnalysis Deborah Lucas(June 2, 2011)

2

FHFA 2359-2388


5


33

Moody’s Issuer Comment: CBO Estimate of GSELoss Is Credit Positive(June 13, 2011)

FHFA 2389-2391

34Periodic Commitment Fee Waiver Letter(June 30, 2011)

FHFA 2392

35

Edward J. DeMarco, FHFA Acting Director, Remarksat the American Mortgage Conference(September 19, 2011)

5

FHFA 2393-2402

36

Moody’s, Sector Comment: Plan To Raise FannieMae and Freddie Mac Guarantee Fees Raises Questionof Support(September 26, 2011)

2

FHFA 2403-2405

37Periodic Commitment Fee Waiver Letter(September 30, 2011)

FHFA 2406

38

FHFA Projections of the Enterprises’ FinancialPerformance(October 27, 2011)

FHFA 2407-2422

39Freddie Mac, Form 10-Q Q3 2011(November 3, 2011) 11

FHFA 2423-2636

40

Statement of FHFA Acting Director Edward J.DeMarco(December 1, 2011)

4

FHFA 2637-2646

41

FHFA Conservator’s Report on the Enterprises’Financial Performance, Third Quarter 2011(December 21, 2011)

FHFA 2647-2664

42Periodic Commitment Fee Waiver Letter(December 21, 2011)

FHFA 2665

43

Department of the Treasury, CongressionalJustification, 2013 FY Budget, Housing &Government Sponsored Enterprises(February 12, 2012)

4

FHFA 2666-2678


6


44FHFA Press Release and Strategic Plan(February 21, 2012) 9

FHFA 2679-2702

45Freddie Mac, Form 10-K 2011(March 9, 2012) 24

FHFA 2703-3095

46

Deutsche Bank, The Outlook: The Path of US Supportfor Fannie Mae, Freddie Mac(March 14, 2012)

6

FHFA 3096-3121

47Periodic Commitment Fee Waiver Letter(March 30, 2012)

FHFA 3122

48

FHFA Conservator’s Report on the Enterprises’Financial Performance, Fourth Quarter 2011(April 12, 2012)

FHFA 3123-3140

49Freddie Mac, Form 10-Q Q1 2012(May 3, 2012) 10, 85

FHFA 3141-3344

50Fannie Mae, Form 10-Q Q1 2012(May 9, 2012) 11, 81

FHFA 3345-3532

51FHFA OIG Report(May 24, 2012)

2, 7, 13,25

FHFA 3533-3562

52GSE Retained Portfolio, 2013-2016 Forecast(June 1, 2012)

FHFA 3563

53GSE Retained Portfolio, 2013-2016 Forecast(June 8, 2012)

FHFA 3564

54

United States Treasury Presentation to the Securitiesand Exchange Commission “GSE Preferred StockPurchase Agreements (PSPA) Overview and KeyConsiderations”(June 13, 2012)

TREASURY 3833-3862

55

FHFA Conservator’s Report on the Enterprises’Financial Performance, First Quarter 2012(June 15, 2012)

FHFA 3565-3582


7


56Periodic Commitment Fee Waiver Letter(June 25, 2012)

FHFA 3583

57Freddie Mac, Form 10-Q Q2 2012(August 7, 2012) 10, 92

FHFA 3584-3831

58

Freddie Mac News Release, Freddie Mac Reports NetIncome Of $3.0 Billion, Comprehensive Income Of$2.9 Billion For Second Quarter 2012(August 7, 2012)

3

FHFA 3832-3841

59Fannie Mae, Form 10-Q Q2 2012(August 8, 2012)

12-13,83

FHFA 3842-4012

60

Fannie Mae News Release, Fannie Mae Reports NetIncome of $5.1 Billion for Second Quarter(August 8, 2012)

2

FHFA 4013-4025

61

Nick Timiraos, Fannie Mae Posts Profit as HomePrices Rise, Wall Street Journal(August 8, 2012)

FHFA 4026-4027

62

Moody’s Issuer Comment: Fannie Mae’s and FreddieMac’s Return to Profitability is Fleeting(August 13, 2012)

FHFA 4028-4030

63

Third Amendment to Fannie Mae’s Senior PreferredStock Purchase Agreement with Treasury(August 17, 2012)

FHFA 4031-4038

64

Third Amendment to Freddie Mac’s Senior PreferredStock Purchase Agreement with Treasury(August 17, 2012)

FHFA 4039-4046

65

Statement of FHFA Acting Director Edward J.DeMarco on Changes to Fannie Mae and Freddie MacPreferred Stock Purchase Agreements(August 17, 2012)

FHFA 4047

66

Barclays Interest Rates Research: Update: TreasuryChanges the PSPAs: Initial Thoughts(August 17, 2012)

FHFA 4048-4050


8


67

Moody’s Issuer Comment: US Treasury AmendsFannie Mae’s and Freddie Mac’s Capital Agreement,a Credit Positive(August 23, 2012)

1 FHFA 4051-4052

68

FHFA Conservator’s Report on the Enterprises’Financial Performance, Second Quarter 2012(September 2012)

FHFA 4053-4070

69

Department of the Treasury Agency Financial Report,Fiscal Year 2012. [Full document available athttp://www.treasury.gov/about/budget-performance/annual-performance-plan/Documents/FY%202012%20Treasury%20AFR%20Nov%2015%20Final.pdf](November 15, 2012)

98-102 FHFA 4071-4076

70

Moody’s Credit Focus: Fannie Mae and Freddie Mac:Government Support Underpins Aaa Ratings(December 12, 2012)

FHFA 4077-4087

71

Data as of November 14, 2013 on Treasury andFederal Reserve Purchase Programs for GSE &Mortgage-Related Securities

2, 3 FHFA 4088-4095

72Non-Core Asset Forecast(undated)

FHFA 4096

73Retained Portfolio PSPA Compliance Forecast(undated)

FHFA 4097-4099
