Sterling Savings Ass'n v. United States

72 Fed. Cl. 404, 2006 U.S. Claims LEXIS 256, 2006 WL 2513059
CourtUnited States Court of Federal Claims
DecidedAugust 30, 2006
DocketNo. 95-829C
StatusPublished
Cited by1 cases

This text of 72 Fed. Cl. 404 (Sterling Savings Ass'n v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sterling Savings Ass'n v. United States, 72 Fed. Cl. 404, 2006 U.S. Claims LEXIS 256, 2006 WL 2513059 (uscfc 2006).

Opinion

OPINION AND ORDER

WHEELER, Judge.1

This Winstar-related case2 is before the Court on Defendant’s March 3, 2005 Motion For Reconsideration of the Court’s September 12, 2002 liability decision issued by Chief Judge Edward J. Damich. Sterling Sav., et al. v. United States, 53 Fed.Cl. 599 (2002). The case involves the acquisition by Plaintiff Sterling Savings Association (“Sterling”) of three failing or insolvent thrifts in the State of Washington: (1) Lewis Federal Savings & Loan Association of Chehalis, WA (“Lewis”) in 1985; (2) Tri-Cities Savings & Loan Association of Kennewick, WA (“Tri-Cities”) in 1988; and (3) Central Evergreen Federal [405]*405Savings & Loan Association of Chehalis, WA (“Central Evergreen”) in 1988. The Lewis and Tri-Cities acquisitions involved cash assistance to Sterling from the Federal Savings and Loan Insurance Corporation (“FSLIC”), and Government forbearance letters allowing Sterling to count supervisory goodwill toward regulatory capital. The Central Evergreen transaction was structured differently, without any cash assistance from FSLIC, or any Government forbearance letters. Sterling, 53 Fed.Cl. at 606.

For all three acquisitions, Chief Judge Damich found that the Government breached its contractual obligation to allow Sterling to use supervisory goodwill to satisfy regulatory capital requirements, and to amortize the goodwill over an agreed time period. For the Lewis and Tri-Cities transactions, the Court also found that the Government “breached its contractual obligation ... to forbear from exercising its regulatory authority against Plaintiff for failing to meet its regulatory ratio requirements[.]” Id. at 615.

Defendant requests reconsideration of the Court’s liability decision only as to the Central Evergreen acquisition. Defendant relies upon the decision of the United States Court of Appeals for the Federal Circuit in Admiral Financial Corp. v. United States, 378 F.3d 1336 (Fed.Cir.2004), and contract language in the Central Evergreen agreement identical to a clause that the Admiral Court found shifted the risk of regulatory change to the plaintiff in that case. Because of this risk-shifting clause, the Government contends that the enactment of the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) in August 1989 and its implementing regulations did not constitute a breach of contract.3 For the reasons explained below, Defendant’s Motion for Reconsideration is GRANTED. The Court will enter summary judgment on liability for the Government regarding the Central Evergreen transaction. Summary judgment on liability for Plaintiff regarding the Lewis and Tri-Cities transactions will stand.

Background

A limited summary of the Central Evergreen transaction will suffice for the purposes of this decision. A fuller description of the Lewis, Tri-Cities and Central Evergreen transactions is found in Chief Judge Damich’s September 12, 2002 liability decision, cited herein where necessary.

Sterling acquired Central Evergreen in late 1988. The Central Evergreen transaction is memorialized in the following documents, all contained in a March 17, 2005 Appendix that Plaintiff provided to the Court (“Pltfs App.”):4 (1) An Acquisition Agreement between Sterling and Central Evergreen, dated July 20, 1988 (Pltfs App. at 1-23); (2) Federal Home Loan Bank Board (“FHLBB”) Resolution No. 88-1273, dated December 8,1988 (Id. at 24r-29); (3) A reciprocal resolution by Sterling’s Board of Directors, dated December 22, 1988 (Id. at 30-31); (4) An Agreement between Sterling and the FSLIC, dated December 28, 1988 (Id. at 32-37) (the “Agreement”); and (5) Sterling’s Business Plan for operating the merged institutions, dated August 15, 1988 (Id. at 38-46).

In Section V of the Agreement, “Miscellaneous Provisions,” paragraph D stated:

All references to regulations of the Board or the FSLIC used in this Agreement shall include any successor regulation thereto, it being expressly understood that subsequent amendments to such regulations may be made and that such amendments may increase or decrease the Acquirer’s obligation under this Agreement.

(Pltfs App. at 35).5 This provision is identical to risk-shifting clauses addressed in Ad[406]*406miral, 378 F.3d at 1339, Franklin Fed. Sav. Bank et al. v. United States, 431 F.3d 1360, 1363 (Fed.Cir.2005), and Guaranty Fin. Serv., Inc. v. Ryan, 928 F.2d 994, 999 (11th Cir.1991).

The Agreement also contained a “Definitions” section where each of the following terms was defined: Fully Phased-In Capital Requirement, Minimum Capital Requirement, Regulatory Capital, Regulatory Capital Requirement, and Regulatory Capital Deficiency. (Pltfs App. at 33). Each of these terms referred to a specific banking regulation found in 12 C.F.R. § 561 or § 563, “or any successor regulation.” Id.

In Section III of the Agreement, “Obligations of the Acquirer,” paragraphs A and B stated:

A. The Acquirer will cause its Regulatory Capital to be maintained at a level at or above the Minimum Capital Requirement, and as necessary, will raise Additional Capital, in a form satisfactory to the Supervisory Agent, in an amount necessary to restore its Regulatory Capital to a position where it meets its Minimum Capital Requirement whenever its Regulatory Capital falls below the lesser of its Minimum Capital Requirement or the Regulatory Capital projected in the Business Plan. The failure to raise additional capital as provided in the Business Plan shall not be a violation of the obligations if it is raised prior to December 31,1990.
B. The Acquirer agrees that if the ratio of regulatory capital to total assets is less than the ratio projected in the attached Business Plan by 90 basis points until the earlier of (I) December 31, 1990, or (ii) the raising of the additional capital provided for in the attached Business Plan, or subsequently 30 basis points, it will comply with the directives that are imposed under 12 C.F.R. Section 563.13(d) and will comply with the time period specified.

(Pltfs App. at 34).

An integration clause in Section V, paragraph K of the Agreement provided that “[t]his Agreement, together with any understanding agreed to in writing by the parties, constitutes the entire agreement between the parties and supersedes all prior agreements and understandings of the parties in connection with the subject matter hereof.” Id. at 36.

Finally, Section V, paragraph M of the Agreement provided that “[t]his Agreement is not a waiver of or forbearance from any applicable regulation.” (Pltfs App. at 36).

The Business Plan contained Sterling’s projections covering a three-year period for fiscal years ending June 30, 1989, 1990, and 1991, and was appended to the Agreement as Attachment A. (Pltfs App. at 38-46). For each fiscal year, the Business Plan contained a line item for “Intangible Assets” including the “Supervisory Goodwill” associated with Sterling’s acquisition of Central Evergreen. Id. at 41, 43, 45.

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Related

Sterling Savings Ass'n v. United States
80 Fed. Cl. 497 (Federal Claims, 2008)

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72 Fed. Cl. 404, 2006 U.S. Claims LEXIS 256, 2006 WL 2513059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterling-savings-assn-v-united-states-uscfc-2006.