In the case of the 3rd Amendment, the class plaintiffs argue (p. 2) that “FHFA faced a manifest conflict of interest in that it was being asked to sue itself and a closely related agency with whom FHFA is alleged to have jointly committed a fiduciary breach.” In this case, both FHFA and Treasury are part of the government and Treasury was both controlling shareholder and the sole beneficiary of the net worth sweep, which are indications of the lack of “arm’s length bargaining.” Boeis Schiller cite (p. 14) holdings by other circuit courts that where “manifest conflicts of interest exist,” private shareholders of institutions in federal conservatorships are entitled to bring derivative takings claims.
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