Berkowitz: Government motion a “shameless” attempt to hide documents from Fairholme

Fannie Mae and Freddie Mac latest from Bruce Berkowitz’s Fairholme Capital

“Government motion a “shameless” attempt to hide documents from Fairholme”


Dear Investor,
On October 27, 2016, the U.S. Government filed a motion before the U.S. Court of Appeals for the Federal Circuit petitioning that court to issue a “writ of mandamus” directing the U.S. Court of Federal Claims to vacate Judge Margaret Sweeney’s order issued on September 20, 2016, in connection with our case, Fairholme Funds, Inc. et al. v. The United States (No. 13-465C). In her order, Judge Sweeney granted Fairholme’s motion to compel in its entirety and directed the government to produce dozens of documents deemed to be wrongfully withheld during discovery as well as directed the government to justify why it should not be required to pay Fairholme’s legal expenses incurred in pursuing the motion.

As legal scholar Richard Epstein expresses in his recently published Forbes article, the government’s latest filing is a “shameless piece of legal sophistry that should be promptly rejected by the Federal Circuit.”
In attempting to thwart Judge Sweeney’s ruling, the government is seeking to use a rarely granted legal maneuver, which allows a higher court to prevent a lower court from acting outside its jurisdiction. The cases in which the courts actually issue this kind of writ are few and far between, and involve situations in which there is a palpable error of law that cannot be remedied if a trial is allowed to run its course without appellate court intervention. Mr. Epstein notes that a heavy burden is placed on the government to make its case, one which he does not believe it has come close to discharging.

He concludes that “it would be a grave abuse of discretion for the Federal Circuit to overturn Judge Sweeney’s order. It seems highly unlikely that it will do so.”

Kind regards,
Investor Relations
Fairholme Distributors, LLC (11/16)

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