Bank United v. States

80 F. App'x 663
CourtCourt of Appeals for the Federal Circuit
DecidedSeptember 22, 2003
DocketNos. 02-5132, 02-5137
StatusPublished
Cited by8 cases

This text of 80 F. App'x 663 (Bank United v. States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank United v. States, 80 F. App'x 663 (Fed. Cir. 2003).

Opinion

PROST, Circuit Judge.

Hyperion Partners L.P. and Bank United Corp. (collectively “Hyperion”), and Bank United appeal the decision of the United States Court of Federal Claims granting them only part of the damages they sought for the government’s breach of several agreements caused by the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) Pub.L. No. 101-783, 103 Stat. 183 (1989). Bank United of Tex. FSB v. United States, 50 Fed.Cl. 645, 646-50 (2001) (“Bank United II"). The United States cross-appeals a portion of the trial court’s damages award as well as its interpretation of a regulatory forbearance agreement which formed the basis for its grant of summary judgment as to liability. Bank United of Tex. FSB v. United States, 49 Fed.Cl. 1 (1999), modification denied, 50 Fed. Cl. 327 (1999), (“Bank United I”). Because we conclude that the trial court correctly interpreted the forbearance agreement, we affirm the grant of summary judgment as to liability. However, because we hold that the trial court failed to sufficiently explain the basis for the portion of its damages award challenged by the government, we reverse the trial court’s award of damages as to $3,942,500. Accordingly, we affirm-in-part, and reverse-in-part.

I. CONTRACT INTERPRETATION

As an initial matter, the government contends that the trial court erred in its interpretation of the capital forbearance agreement. The provision at issue provides, in relevant part, that:

The FSLIC will forbear, for a period of ten years following the date of consum[665]*665mation of the acquisition (“Effective Date”), from exercising its authority to take action under Section 563.13 ... for any failure of the Resulting Institution to meet the regulatory capital requirements arising solely from: ... (c) the assumption of the liabilities of the Acquired Institution as of the Effective Date; ... or (2) [Bank United’s] assumption of the Acquired Institution’s regulatory capital deficiency as of the Effective Date; provided that, [Bank United] maintains a ratio of regulatory capital to total liabilities at a level no less than [prescribed by the Capital Plan].

Interpreting this provision, the trial court concluded that, once Bank United assumed the liabilities of the “Acquired Institution,” the forbearance agreement obligated the government to forbear from enforcing its regulatory capital regulations so long as Bank United remained in compliance with the lower capital ratios set forth by the Capital Plan. Bank United I, 49 Fed. Cl. at 5. The trial court explained that, “[s]ince the forbearances ... were designed to enable Bank United to survive the absorption of the liabilities of [the Acquired Institution], it seems apparent that the modified capital standards in the [Capital Plan] are operative at all times, and require no separate showing.” Id. Thus, the trial court held that the forbearance agreement “permitted [Bank United] to meet modified capital requirements in lieu of regulatory capital requirements, for a period of ten years.” 50 Fed.Cl. at 327.

On appeal, the government argues that Bank United’s assumption of the liabilities of the Acquired Institution did not entitle it to operate under the lower capital ratios set forth by the Capital Plan. Rather, according to the government, the agreement provided that Bank United could operate under the Capital Plan’s minimum ratios only during the period between the Effective Date of the transaction and the placement of the $110 million of subordinated debt. Thereafter, argues the government, the capital ratios set forth by the Capital Plan should be read as coming into effect only upon the occurrence of the “triggering events” listed in the agreement. Thus, under the government’s interpretation, Bank United’s “assumption of the Acquired Institution’s regulatory capital deficiency” triggered the government’s obligation to forbear. However, once Bank United came into compliance with the generally-applicable regulatory capital requirements upon issuance of the subordinated debt, “its failure to meet the regulatory capital requirements due to its assumption of [the Acquired Institution’s] regulatory capital deficiency was erased,” thereby deactivating the Capital Plan and requiring Bank United to comply with the generally-applicable regulatory capital requirements unless the Capital Plan was again “triggered.”

Hyperion and Bank United respond that both the language and structure of the agreement support the trial court’s interpretation. According to Appellants, Bank United’s assumption of nearly $5 billion in liabilities as part of the acquisition triggered the forbearance, allowing Bank United to operate under the Capital Plan’s lower ratios during the forbearance period. Hyperion and Bank further point out that the modified capital ratios were incorporated into related “Regulatory Capital Maintenance Agreement” which defines the “Capital Plan Level” as “[t]he level at which [Bank United] is required to maintain its Regulatory Capital pursuant to paragraph one of the forbearance letter.” Finally, Hyperion and Bank United contend that the trial court’s interpretation is further supported by the interpretation of the parties as evidenced by Bank United’s reporting of its compliance with the Capi[666]*666tal Plan rather than the higher generally-applicable capital ratio requirements.

We agree with the trial court to the extent it held that the minimum ratios of the Capital Plan continued to be operative after the issuance of the subordinated debt, and we reject the government’s proffered alternative interpretation under which the Capital Plan is “triggered” and then deactivated by the subordinated debt issuance. Giving the language of the agreement its ordinary meaning and reading the agreement in its entirety, we conclude that the trial court correctly held that the forbearance continued after the issuance of the subordinated debt. There is no suggestion here that transactions occurring after the initial acquisition caused the bank to be out of compliance, although such events might have eliminated the forbearance. The transaction upon which the government relies-the issuance of the subordinated debt-was not an event that caused the bank to be out of compliance, but rather an event that increased the bank’s regulatory capital. The conflict that the government perceives between affording a 10-year term to the regulatory forbearance and the provisions granting forbearance solely on account of the acquisition transaction simply do not exist on the facts of this case. Accordingly, we affirm the trial court’s grant of summary judgment on the issue of liability.

II. LOST PROFITS

“One way the law makes the non-breaching party whole is to give him the benefits he expected to receive had the breach not occurred.” Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed.Cir.2001) (citing Restatement (Second) of Contracts § 344(a) (1981)). “The benefits that were expected from the contract, ‘expectancy damages,’ are often equated with lost profits, although they can include other damage elements as well.” Id. (citing Restatement (Second) of Contracts § 347 (1981)).

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80 F. App'x 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-united-v-states-cafc-2003.