This is pretty amazing stuff. Fairholme announced the hiring of J Tim Howard, former CFO of Fannie Mae ($FNMA) until 2004. They then petitioned the court to allow him to view documents covered in the protective order. Predictably, the government is panicking
The reasons they give:
1- Howard owns share of both the common and preferred shares
2- Howard blames the gov’t for his departure from Fannie
3- Howard wrote a book critical of the government
4- Howard has said he wants to be part of the solution for the GSE’s
Now, of course these objections are ridiculous on their face. The government says later in the brief (full motion here):
His deeply-held beliefs may color not only his view of confidential documents in this case, but also his willingness and ability to abide by the terms of the Protective Order both during and after the conclusion of litigation. Permitting Mr. Howard access to protected information unnecessarily places the confidentiality of that information at risk. U.S. Steel Corp. v. United States, 730 F.2d 1465, 1469 (Fed. Cir. 1984). Stated differently, the Government should not be subjected to the additional risk of providing its confidential and sensitive information to purported experts and consultants with such a long-standing and personal interest in the litigation. Even if he were not to intentionally misuse the information, Mr. Howard intends to continue to be involved in public discussions about mortgage finance and, as a result, could inadvertently disclose protected information.
Shorter version? “We are scared of Howard”
Let’s look closer. Every plaintiff in the case has an economic interest in the outcome of litigation (owns shares). All plaintiffs have also come out in opposition to the governments action either in court filings, public pronouncements or investor presentations. Further, all plaintiffs argue they have been harmed by the governments actions. Finally all in some way want to be part of the future of the enterprises (think of both Berkowitz and Ackman’s alternative plans for the GSE’s post litigation). Because of those facts the government’s reasoning from above can be dismissed without pause. If, as the governments claims he may do, Howard were to divulge protected information he would sabotaging his own efforts here (any evidence would then be non admissible & his action punishable) and if he did it post litigation it would have no effect on the outcome of these cases and would only open himself up to liability. In other words, he’d only harm himself.
Then, why does the government object? No one the plaintiffs have on staff would be able to provide the critical knowledge of the inner workings of the GSE’s that Howard can. He can look at protected information and immediately discern if what they are seeing was typical or atypical in regards to the operations and decision making of the GSE’s. This will give plaintiffs a roadmap to follow up on rather than chasing every possible lead in every different direction. Howard will be uniquely qualified to direct plaintiffs where to look and where to follow up and dig deeper.
What the government is trying to do here is aid their own effort by deny plaintiffs access to someone who would play a vital role in deciphering the millions of discovery documents that are sure to be coming. It has nothing to do with anything else….