Summary
rejecting claim for common fund attorney's fees by largest shareholder in part because of lack of free rider concern
Summary of this case from Winston & Strawn LLP v. Federal Deposit InsuranceOpinion
Civil Action No. 09-2126 (JMF).
March 14, 2011.
Thomas M. Buchanan, Eric W. Bloom, Winston Strawn LLP, Washington, DC, for Plaintiff.
Darrell R. Taylor, Federal Deposit Insurance Corporation, Washington, DC, for Defendant. Article 06: Untitled
MEMORANDUM OPINION
This case was referred to me for all purposes including trial. Currently pending and ready for resolution are 1) Plaintiff C. Robert Suess' Motion for Summary Judgment and Supporting Memorandum of Points and Authorities [#10] ("Plains. MSJ") and 2)FDIC's Cross Motion for Summary Judgment and Memorandum of Points and Authorities [#11]. For the reasons stated below, plaintiff's motion will be denied and defendant's motion will be granted.
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
The following statement is premised on the summary of the pertinent facts contained in the Federal Circuit's decision inSuess v. United States, 535 F.3d 1348 (Fed. Cir. 2009) and in theComplaint for Relief ("Compl.") [#1]. 12 U.S.C. § 1821 See Suess v. United States 33 Fed. Cl. 89 92See Suess 535 F.3d at 1350 United States' Complaint for Judicial Determination of Tax Claims in FDIC Receivership Proceeding and to Reduce Income Tax Assessments to Judgment United States v. FDIC Suess 535 F.3d at 1348 United States v. FDIC inter alia See United States v. FDIC Suess 535 F.3d at 1367 Id. Id.
All references to the United States Code or the Code of Federal Regulations are to the electronic versions that appear in Westlaw or Lexis.
CONCLUSIONS OF LAW
I. Standard of Review
Under FIRREA, a claimant may file suit in the United States District Court for the District of Columbia. 12 U.S.C. § 1821(d)(6)(A)(ii). "FIRREA divests Article III courts of subject matter jurisdiction over claims presented to the [FDIC] until the claimant has exhausted administrative remedies" and "[s]ection 1821(d)(13)(D) limits the jurisdiction of district courts to de novo review . . ." Orchard Hills Coop. Apartments, Inc. v. RTC, 779 F. Supp. 104, 106-07 (C.D. Ill. 1991). Accord Winston Strawn LLP v. FDIC, No. 06-CIV-1120, 2007 WL 2059769, at *3 (D.D.C. July 13, 2007) ("[T]his Court reviews de novo claims filed with, and processed by, the FDIC under its administrative claims process.") (emphasis in original); Nants v. FDIC, 864 F. Supp. 1211, 1217 (S.D. Fl. 1994) ("The judicial proceeding contemplated by FIRREA consists of a de novo determination of [plaintiff's] claim for unpaid fees and costs, arising from his contract . . . not a review of the FDIC's disallowance of the claim.") (emphasis in original).II. Standard for Summary Judgment
Both parties' motions for summary judgment are made pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 532 F. Supp. 2d 121, 122 (D.D.C. 2008).III. Analysis
As noted above, in February 1990, after the OTS implemented the FIRREA regulations that excluded a thrift's contracted-for supervisory goodwill from the calculation of its regulatory capitol, federal regulators seized Benj. Franklin due to its failure to satisfy the minimum regulatory capital requirements. Shortly thereafter, in September 1990, plaintiff and several other shareholders filed a lawsuit, in the Court of Federal Claims, against the United States for breach of contract. Ultimately, in November 1998, that court held that the United States was liable for the breach of two contracts.
In the meantime, the IRS filed a complaint against the Receiver seeking action on a Proof of Claim for over one billion dollars. The IRS and the Receiver ultimately settled that claim. As part of that settlement, the Receiver agreed to reimburse plaintiff and the other shareholders for the attorney's fees and costs expended both at trial in the Court of Federal Claims and in defense of the tax claim in District Court.
A. The Receiver Did Not Breach Any Duty it had to Plaintiff and the Other Shareholders
1. The Receiver Did Not Agree to Reimburse Plaintiff for His Representation of the Shareholders Before the United States Court of Appeals for the Federal Circuit
With respect to the proceedings before the Federal Circuit, it is conceded that there was no express agreement between the parties relating to the reimbursement of plaintiff's attorney's fees and costs. In the absence of an express agreement pertaining to attorney's fees in the Federal Circuit, that plaintiff and the other shareholders were reimbursed for their previous efforts as part of a settlement agreement does not mean that plaintiff has an automatic right to claim reimbursement in this case.
2. The Receiver Did Not Breach Either a Fiduciary or Statutory Obligation to the Shareholders
Under FIRREA, the role of the FDIC, as Receiver, is defined as follows:
The Corporation shall, as conservator or receiver, and by operation of law; succeed to —
(i) all rights, titles, powers, and privileges of the insured depository regulatory institution, and of any stockholder, member, account holder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution . . .12 U.S.C. § 1821(d)(2)(A).
In addition, the FDIC may perform the following tasks:
(i) take over the assets of and operate the insured depository institution with all the powers of the members or shareholders, the directors, and the officers of the institution and conduct all business of the institution;
(ii) collect all obligations and money due the institution;
(iii) perform all functions of the institution in the name of the institution which are consistent with the appointment as conservator or receiver; and
(iv) preserve and conserve the assets and property of such institution.12 U.S.C. § 1821(d)(6)(B). As Receiver, therefore, the FDIC has a statutory responsibility to Benj. Franklin's shareholders.
In addition, as Receiver, the FDIC also has a fiduciary responsibility to its shareholders. See Golden Pacific Bancorp. v. FDIC, 375 F.3d 196, 201 (2d Cir. 2004) ("It is undisputed that, as receiver, the FDIC owes a fiduciary duty to the [corporation's] creditors and to [the corporation].").
Plaintiff's first argument is that the FDIC, as Receiver of Benj. Franklin, breached both its statutory and fiduciary obligations to plaintiff and the other shareholders by failing to defend their interests in the proceedings before the court of appeals. Plains. Mot. at 7. Plaintiff contends, therefore, that he is entitled to reasonable attorney's fees because he did what the Receiver should have done. Id.
"[A]s a general proposition, the FDIC's statutory receivership authority includes the right to control the prosecution of legal claims on behalf of the insured depository institution now in its receivership." First Hartford Corp. Pension Plan Trust v. United States, 194 F.3d 1279, 1295 (Fed. Cir. 1999).Accord Hickey v. NCNB Texas Nat. Bank, 763 F. Supp. 896, 899 (N.D. Tex. 1991) (as receiver, the FDIC has the affirmative duty to defend the failed bank); Peoples' Sav. and Loan Ass'n v. First Federal Sav. and Loan Ass'n, 677 F. Supp. 1104, 1108 (D. Kan. 1988) ("[T]he FDIC . . . in its capacity as receiver, willingly defends or asserts claims against receivership assets in court.") (internal citations omitted).
Plaintiff's argument, however, is without merit. The Receiver did represent the shareholders' interests in the court of appeals. Although plaintiff contends that he took the lead on appeal, and the Receiver concedes the point, the fact remains that the Receiver entered its appearance before the court of appeals and, in conjunction with plaintiff, ensured that the shareholders' interests were represented. It is inaccurate for Suess to portray himself as fulfilling a responsibility that the FDIC abdicated by virtue of not filing a brief on appeal. While the RTC may not have initially responded to Suess' demand that it sue the United States, the FDIC participated in the appeal as a party. As the FDIC indicated to the Federal Circuit, it was content with the arguments Suess made except for one, which it addressed in its own brief. The FDIC was under no obligation to bore the Federal Circuit by repeating verbatim the arguments Suess made, nor was it under any obligation to risk owing Suess over $400,000 in legal fees because the FDIC did not run Suess' brief on appeal though a xerox machine and sign its name to it.
See Plains. Mot., Exhibit 12 at 1, n. 1 ("The other issues in this appeal are appropriately stated and addressed by Plaintiffs-Cross Appellants Suess, et al. The FDIC is satisfied with their statement of those issues as well as their statements of jurisdiction, the case, the facts, and the standard of review; therefore, the FDIC does not include such statements here. Fed.R.App.P. 28.1(c)(2).").
See Suess 33 Fed. Cl. at 97.
See Plains. Mot., Exhibit 12.
In any event, the real issue is not whether the Receiver breached any duty it had to plaintiff and the other shareholders, but whether plaintiff is entitled to be reimbursed for his contribution to the Receiver's fulfillment of those duties. To secure such reimbursement, plaintiff must establish that there is a legal theory, supported by precedent, that requires such reimbursement.
Here, we have to begin with the premise that the American Rule prevails in this and all other jurisdictions, meaning that a party pays its own attorney's fees unless some recognized exception applies. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993). The only ones available are the common fund theory and its legal child, the award of fees to a stockholder for the corporation's behalf in a derivative action. Of course, Suess is also entitled to fees despite any such theory if he and his fellow shareholders had a contract with FDIC or if, despite the absence of a contract, a court imputes one in order to prevent the FDIC from being unjustly enriched. I now turn to each of these legal theories.
Note that the latter two cannot coexist. One cannot prevail on the same facts upon a claim of an implied in fact contract and a claim that a contract must be imputed in order to prevent unjust enrichment. Plesha v. Ferguson, 725 F. Supp. 2d 106, 111 (D.D.C. 2010).
B. Plaintiff is Not Otherwise Entitled to Reimbursement
1. Common Fund Analysis
This Circuit permits "a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees." Swedish Hosp. Corp., 1 F.3d at 1265. This policy is animated by two concerns. The first "is that unless the costs of litigation are spread to the beneficiaries of the fund they will be unjustly enriched by the attorney's efforts." Id. The second is to motivate lawyers to undertake representation of worthy causes that would not otherwise attract competent counsel. Consol. Edison Co. v. Bodman, 445 F.3d 438, 443 (D.C. Cir. 2006).
As to the latter, the court of appeals, in language that is prescient in its application to this case, noted that if lawyers already have sufficient motivation from their expected compensation from the clients they represent, there is no need to provide the additional motivation of recovery from any common fund their actions may create:
We note by way of background that the common fund theory conventionally rests on a theory that beneficiaries of the lawsuit would be unjustly enriched if not compelled to pay a share of the fees that made success possible. See, e.g., Swedish Hospital v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993). It may well be that courts have found it sensible to apply the unjust enrichment principle here (after all, human life abounds in windfalls) because doing so answers a potential free-rider problem. See Wal-Mart Stores Health Welfare Plan v. Wells, 213 F.3d 398, 402 (7th Cir. 2000) (noting that free riding on attorney's efforts would be "contrary to the equitable concept of `common fund'"); cf. United States v. Tobias, 935 F.2d 666, 668 (4th Cir. 1991) ("Generally, a fund claimant who is represented by counsel . . . is deemed not to have taken a `free ride' on the efforts of another's counsel."); John P. Dawson, Lawyers and Involuntary Clients: Attorney Fees from Funds, 87 Harv. L. Rev . . . 1597, 1647-51 (1974) (discussing incentives to free ride on attorneys' efforts). If lawyers considering representation of some but not all of a cluster of beneficiaries can recover compensation only from beneficiaries who actively retain them, claims will not be brought-even though meritorious-where the expected value of the gains for beneficiaries willing to participate can't generate adequate compensation for counsel (and thus enable the bringing of suit). Under a rule awarding fees out of litigation proceeds received by passive beneficiaries, lawyers' anticipation of fee recoveries will provide the requisite incentive. In some cases, of course, a subset of potential beneficiaries will have stakes large enough to call forth ample litigation effort; if so, the free-rider concern declines, possibly to nil. This last point would be pertinent, if at all, in calculation of fees.Id. at 442-43.
In this case, there was surely a "subset of potential beneficiaries" with "stakes large enough to call forth ample litigation effort." Suess was the largest shareholder and the greatest potential beneficiary of a $52,008,750 judgment. It is absurd to suggest that he would have lacked sufficient motivation to defend that judgment if he could not have reasonably expected that the FDIC would pay the fees he incurred to defend against the government's appeal. Nor can one possibly find any concern about free riders who would benefit from his work when he stood to get the lion's share of the judgment he was defending. With any concern about motivation or unfairness of a free ride obviated, Suess's claim for compensation for his work on the losing appeal never breaks from the gate.
Second, sine qua non to recovery from a common fund is the creation of that fund from the lawyer's efforts. Abbott, Puller Myers v. Peyser, 124 F.2d 524, 525 (D.C. Cir. 1941); Geiger v. Peyser, 123 F.2d 167, 168 (D.C. Cir. 1941); Kalodner v. Bodman, 241 F.R.D. 6, 10 (D.D.C. 2006); Wienberg v. Goldenberg's Inc., 81 F. Supp. 353, 353 (D.D.C. 1948); Lett v. City of St. Louis, 24 S.W.3d 157, 162 (Mo. Ct. App. 2000). As these cases teach, if the battle is instead one between adversaries over a fund that was already in existence, the common fund theory does not apply, and the case defaults to the ordinary rule that each party pays its own fees and costs.
In other words, the lawyer's efforts must either cause the fund to come into creation or, once in creation and in control of the court, her efforts must keep it from being diminished. Hence the emphasis by the court in Consolidated Edison on the claiming party's showing that it played "a causal role in achieving the benefits for which they seek reimbursement," meaning that it must show that its work was the cause in fact of the creation or preservation of the fund or that, but for its action, the fund would not have been created or preserved.
Consol. Edison, 445 F.3d at 372-73.
Likewise, in Thomas v. Peyser, 118 F.2d 369 (D.C. Cir. 1941), the court held that the appellants, attorneys who sought reimbursement of fees under a common fund theory, were not so entitled because their efforts to protect a piece of real property held in receivership were ultimately unsuccessful. Describing the common fund theory, the court stated that "[i]t is well settled that if one who has an interest in a common fund brings a successful suit to preserve, protect, or increase that fund, or if he creates or brings to court a fund in which others may share with him, he is entitled to an allowance of counsel fees to be paid out of the fund." Id. at 370 (internal citations omitted) (emphasis added).
Here, while Suess's efforts in the Court of Federal Claims resulted in a $55 million judgment, his efforts in the appellate court neither created a new fund nor preserved the one that was in existence. Simply put, his efforts in the Federal Circuit added neither a jot nor a tittle to the money available to the Benj. Franklin stockholders, including himself. Since there is no legal authority whatsoever for a deviation from the ordinary rule, he and his fellow plaintiffs must pay their own fees.
2. Derivative Action Analysis
I appreciate that when Suess' standing was attacked in the Court of Federal Claims by the United States, that court held that Suess and his fellow shareholders could press a derivative action on behalf of Benj. Franklin but that they lacked standing to press individual claims. See Suess, 33 Fed. Cl. at 93-94. I also appreciate that the Supreme Court has stated the following:
Other cases have departed further from the traditional metes and bounds of the [common fund] doctrine, to permit reimbursement in cases where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them. This development has been most pronounced, in shareholders' derivative actions, where the courts increasingly have recognized that the expenses incurred by one shareholder in the vindication of a corporate right of action can be spread among all shareholders through an award against the corporation, regardless of whether an actual money recovery has been obtained in the corporation's favor. For example, awards have been sustained in suits by stockholders complaining that shares of their corporation had been issued wrongfully for an inadequate consideration. A successful suit of this type, resulting in cancellation of the shares, does not bring a fund into court or add to the assets of the corporation, but it does benefit the holders of the remaining shares by enhancing their value. Similarly, holders of voting trust certificates have been allowed reimbursement of their expenses from the corporation where they succeeded in terminating the voting trust and obtaining for all certificate holdersPGPage 14 the right to vote their shares. In these cases there was a `common fund' only in the sense that the court's jurisdiction over the corporation as nominal defendant made it possible to assess fees against all of the shareholders through an award against the corporation.Mills v. Electric Auto-Lite Co., 396 U.S. 375, 394-95 (1970).
But, in Mills, the Supreme Court spoke of successful suits that benefitted the stockholders. Once again, Suess's efforts on appeal were of no benefit to the Benjamin Franklin stockholders nor to the FDIC in its capacity as Receiver. The law is clear: "A plaintiff should not receive a fee in derivative litigation unless the corporation, by judgment or settlement, receives some of the benefit sought in the litigation or obtains relief on a significant claim in the litigation." Zucker v. Westinghouse Elec. Corp., 265 F.3d 171, 176 (3d Cir. 2001). Accord: In re Schering-Plough Corp. Shareholders Derivative Litig., No. 01-CIV-1412, 2008 WL 185809, at *1 (D.N.J. Jan. 14, 2008) (under Supreme Court decision in Mills, corporation must receive substantial benefit from a derivative suit); Laprade v. Blackrock Fin. Mgmt., Inc., No. 99-CIV-9288, 2002 WL 31499244, at *5 (S.D.N.Y. 2002) (same). Success in achieving that benefit in the derivative action is crucial. Henss v. Schneider, 132 F. Supp. 60, 63 (S.D.N.Y. 1955) (if derivative corporate claim fails, claims for attorney's fees fails with it); Gottlieb v. Heyden Chem. Corp., 105 A.2d 461 (Del. 1954) (same); Eriksson v. Boynum, 184 N.W. 961 (Minn. 1921) (same).
This principle is analogous to the law in this circuit that a party who seeks recovery from a common fund must prove that his efforts created a fund from which others will benefit, thereby justifying his being reimbursed some fair share of the fees for securing it. Suess' unsuccessful efforts on appeal benefitted no one and therefore he cannot possibly qualify for reimbursement of his attorney's fees and costs.
Finally, Suess insists that he provided his fellow stockholders, represented by the FDIC in its role as Receiver, with the benefit of a voice during the unsuccessful appeal.See Plaintiff C. Robert Suess' Opposition to FDIC's Cross Motion for Summary Judgment ("Plains. Opp.') [#12] at 3. He expressly relies on cases that stand for the proposition that rendering a substantial benefit to others through a derivative or class action may justify awarding attorney's fees to prevent a free ride to those who benefitted, whether stockholders or not, even if the benefit was not pecuniary. Here, however, there was no benefit whatsoever conferred on his fellow stockholders or the FDIC, let alone one that can be described as substantial. Indeed, if Suess were to prevail, it would be the first instance in American legal history where an unsuccessful litigant, one who conferred absolutely no benefit on another person or entity, was permitted to recover attorney's fees from that entity. There is no warrant in precedent or common sense for such a remarkable conclusion.
I note that Suess relies on Lewis v. Anderson, 692 F.2d 1267 (9th Cir. 1982) for the proposition that "the exercise of important shareholder rights, even if they do not result in monetary benefits, justifies an award of attorneys fees." Plains. Opp. at 3. In fact, in that case, the court held that the derivative action had yielded a benefit that justified the awarding of attorney's fees. See Lewis, 692 F.2d at 1271. If merely "providing a voice" to stockholders justified an award of attorney's fees to those stockholders, every derivative action would always yield such an award, rendering the "substantial benefit" requirement imposed by the Mills case a nullity.
Since the only possible exceptions to the American rule are unavailable, Suess can prevail only if he can premise liability on an implied contract between himself and the FDIC or on a so called "quasi-contract," where a court will impute to the FDIC an obligation to pay the fees.
3. There Was No Implied-In-Fact Contract Between Plaintiff and the Receiver
Next, plaintiff argues that there was an implied-in-fact contract between the parties, citing the following factors identified in Bloomgarden v. Coyer, 479 F.2d 201 (D.C. Cir. 1973):
It is well settled that, in order to establish an implied-in-fact contract to pay for services, the party seeking payment must show (1) that the services were carried out under such circumstances as to give the recipient reason to understand (a) that they were performed for him and not for some other person, and (b) that they were not rendered gratuitously, but with the expectation of compensation from the recipient; and (2) that the services were beneficial to the recipient.Id. at 208-09.
If the parties dispute the material facts related to the existence of a contract, that dispute requires the finder of fact to determine what disputed facts are true. This is nothing more than the application of the principle that the existence of a genuine issue of material fact defeats a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 23-24 (D.D.C. 1998). But, if there is no dispute as to what occurred between the parties, then whether the agreed facts brought an enforceable contract into existence is a question of law for the court. Bus. Sys. Eng'g, Inc. v. IBM Corp., 547 F.3d 882, 887 n. 2 (7th Cir. 2008); Eastbanc, Inc. v. Georgetown Park Assocs. II, LP, 940 A.2d 996, 1002 (D.C. 2008). See also 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355 (Fed. Cir. 2009) (whether contract exists is mixed question of law and fact, but determination by lower court that contract existed was reviewed de novo as a matter of law when summary judgment was granted).
The only fact upon which Suess relies in support of his contention that there exists an implied in fact contract is a provision in the settlement agreement approved by Judge Sullivan, in which the FDIC agreed to pay the attorney's fees and costs incurred by Suess in the Court of Federal Claims and in the matter before Judge Sullivan. From this, Suess claims a contractual right to be similarly reimbursed for the costs of appeal.
First, the matter before Judge Sullivan was resolved by a written agreement that was made a part of Judge Sullivan's Order.See United States v. FDIC, Civil Action No. 02-1427 at [#33]. There is nothing in that agreement, however, that speaks to whether Suess would be reimbursed for fees and costs in defending the Court of Federal Claims' judgment in the Federal Circuit. It is neither fair, just, nor reasonable to infer from that integrated written document a promise to pay the fees incurred in the appeal by invoking a principle of law that only pertains to a situation where the parties do not have a written agreement and it is therefore necessary to deduce their intent from their actions alone.
Second, one cannot infer from the FDIC's payment of attorney's fees for the lower court work, pursuant to a comprehensive settlement, that the FDIC should have expected to also reimburse Suess for his defense of the judgment in the Federal Circuit. All the FDIC could have reasonably expected was that Suess, having secured a substantial judgement in the Court of Federal Claims, was (to put it mildly) more likely than not to defend that judgment aggressively to preserve the substantial judgment he and his fellow stockholders had been awarded. From those facts and the parties' silence about who would pay the costs of the appeal, one cannot infer that the FDIC agreed to bear those costs. To find a contract between the parties on such a gossamer basis is to convert a gratuitous assumption into a contract.
4. Plaintiff Is Not Entitled to an Award Based on Unjust Enrichment
"A quasi-contract . . . is not a contract at all, but a duty thrust under certain conditions upon a party to requite another to avoid the former's unjust enrichment." Bloomgarden v. Coyer, 479 F.2d at 208. In order to obtain restitution, plaintiff must prove not only that he has conferred some benefit or advantage on the Receiver but also that it would be unjust not to order reimbursement. See id. at 211. "Unjust enrichment occurs when 1) the plaintiff conferred a benefit on the defendant; 2) the defendant retained the benefit; and 3) under the circumstances, the defendant's retention of the benefit is unjust." McWilliams Ballard, Inc. v. Level 2 Dev., 697 F. Supp. 2d 101, 106 (D.D.C. 2010) (internal citations omitted). It further "depends on whether it is fair and just for the recipient to retain the benefit, not on whether the person or persons who bestowed the benefit had any duty to do so." 4934, Inc. v. D.C. Dep't of Emp't Servs., 605 A.2d 50, 56 (D.C. 1992). Finally, "a promise to pay will be implied in law when the party renders valuable services that the other party knowingly and voluntarily accepts." Brown v. Brown, 524 A.2d 1184, 1186 (D.C. 1987).
As explained above, in 1996, the Court of Federal Claims held that the government had breached two contracts with plaintiffs. See Suess v. United States, 535 F.3d at 1356. The United States, however, only appealed the decision as to one of those contracts. Id. Thus, the only issue before the Federal Circuit was whether the trial court's decision that there existed a contract between Franklin and the government with respect to the treatment of goodwill arising out of Franklin's acquisition of Equitable was erroneous. Id. In reversing the trial court's determination, the Federal Circuit ruled completely in the government's favor. Plaintiff, therefore, cannot argue that he successfully defended the government's appeal or that he
conferred any benefit on the FDIC. If no benefit was conferred, the FDIC was not enriched, and plaintiff is not entitled to reimbursement of attorney's fees.
Plaintiff would counter that, even if unsuccessful, the FDIC got the benefit of his services for which it should now pay. But, as I have previously explained, plaintiff had a powerful financial motivation to defend the judgment and unquestionably exerted substantial efforts to preserve it. The FDIC, having read plaintiff's brief, accepted the validity of the arguments and so advised the Federal Circuit. Although plaintiff and the FDIC did not prevail, there is no basis from those facts to describe the FDIC as retaining a benefit that it must now disgorge in the same sense as a person who was, for example, paid money by mistake. It would appear fundamental that the enrichment is unjust only when the party who has conferred the benefit acted either graciously or altruistically without an obvious, personal motivation to do what he did. In such a situation, permitting the party who received that benefit to retain it may be unfair or unjust. When the party conferring the benefit has an obvious, self-serving motivation to perform the action that may have benefitted the other party, it is hard to describe the result to be unfair when the party conferring the benefit had at least as much if not more to gain from the efforts she expended. That situation hardly warrants my taking the fees that Suess incurred and shifting them to the FDIC when Suess had as much interest in winning the appeal as did the FDIC.
Moreover, accepting Suess' position means that, under the guise of preventing an unjust enrichment, the courts would have to force one party to pay another party's legal fees when both of them were on the same side of a case that was unsuccessful, based on the court's perception of who did more. The amount of time spent by the court doing that, at the taxpayers' expense, is hardly justified when, as was true here, the parties were perfectly free to negotiate a division of the work prior to its undertaking.
CONCLUSION
Plaintiff has failed to establish 1) that there was an express agreement, 2) that the Receiver breached any fiduciary or statutory obligation to the shareholders, 3) that there was an implied-in-fact agreement, or 4) that there should be implied was a quasi-contract between the parties regarding the reimbursement of attorney's fees incurred by plaintiff in defense of the government's appeal. Plaintiff therefore is not entitled to any compensation for those efforts.
An Order, granting the FDIC's motion for summary judgment and directing the Clerk to enter judgment in its favor, accompanies this Memorandum Opinion.