Most people are aware of the ongoing legal battle waged by Fannie Mae and Freddie Mac shareholders against the U.S. government. But the lawsuit also has broader implications for consumers that have thus far gone unacknowledged.
In the midst of the housing crisis, the two government-sponsored enterprises were placed into conservatorship under terms outlined in the Housing and Economic Recovery Act of 2008. This agreement allowed the entities to access Treasury funding and therefore continue providing liquidity to the mortgage market. In exchange, the government acquired a 79% ownership stake in the GSEs by way of purchasing common shares.
The government modified the terms of the bailout in 2012, sweeping 100% of profits from both Fannie and Freddie into a general fund to which the other GSE shareholders were not entitled. The government has argued it has the authority to amend the agreement. Investors, on the other hand, argue that this unilateral amendment violates their shareholder rights.
It’s not only investors who have a stake in this case. The government’s actions with regards to the conservatorship threaten consumers in two ways.
The first issue is whether the government — or any majority shareholder — can amend a company’s operating agreement to change the disbursement of profits for the benefit of the majority. Every consumer with a 401(k), retirement account or brokerage account should care about this issue. The rules of the public market have been codified over the past century to protect shareholders and enforce fiduciary mandates on corporate officers. Any change in shareholders’ rights has the potential to set legal precedent and affect capital markets.
The second consumer issue relates to the government’s ability and desire to invoke executive privilege or classification status over documents that don’t qualify for Freedom of Information Act exemptions. The government has long sought to keep under wraps documentation on its dramatic moves to shore up the GSEs, claiming executive privilege.
In August, Judge Margaret Sweeney ruled that the Treasury must make over 10,000 plus pages of documentation available for discovery by the plaintiffs. The public and media still barred from reading the documents, although the New York Times has since filed a motion requesting access.
The U.S. Constitution gives all people the right to due process, which is meant to prevent the government from arbitrarily denying individuals life, liberty, or property outside the sanction of law. In order to safeguard due process with respect to shareholder rights, it is necessary to preserve the court system’s established discovery process and the public’s right to information discovered therein.
It’s been seven years since Fannie and Freddie were placed into conservatorship. The government, along with many members of the public, would probably prefer to close the books on this part of the financial crisis. But we should not move on until questions about whether the government violated shareholders’ rights have been answered.
Joseph Colangelo is executive director of Consumers’ Research.