Nor would FDIC-Corporate be able to make such an argument. With respect to the FDI Act, FDIC- Corporate assumed the same fiduciary duties owed by FDIC-Receiver (and thus the same liability) under 12 U.S.C. § 1823(d)(3)(C). That provision grants FDIC-Corporate the same statutory rights, but also the same statutory obligations, as FDIC-Receiver when FDIC-Corporate acquires assets or assumes liabilities in connection with the resolution of a failed bank.

denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990). With that in mind, and as also noted above, in 1950, Congress emphasized the importance of the policy behind the D'Oench Doctrine when it enacted 12 U.S.C. § 1823(e), which establishes the four strict statutory requirements for any party seeking to enforce an alleged agreement or contract against the FDIC. The Supreme Court explained in Langley v. FDIC, 484 U.S. 86 (1987) that, like the D'Oench Doctrine, the purpose of § 1823(e) is to allow federal and state bank examiners to rely on a bank’s records in evaluating the worth and financial condition of a bank.

It sets the FDIC’s maximum liability with respect to claims by the receivership’s creditors, it recognizes the FDIC’s fiduciary duty to receivership claimants, and it provides claimants with a right to an accounting of payments from the receivership, providing a mechanism to monitor the FDIC’s actions. See 12 U.S.C. §§ 1823(d)(3)(C), (i)(2) ), (d)(11)(C). Finally, Congress has expressly disclaimed the existence of a private right of action against the FDIC in other contexts.

The FDIC’s board of directors found that the sale of assets and assumption of liabilities provided under the P&A Agreement with JPMC were the least costly resolution method for WMB. See P&A Agreement, at 1 (“the Board has determined pursuant to 12 U.S.C. Section 1823(c)(4)(A) that such assistance is necessary to meet the obligation of the Corporation to provide insurance coverage for the insured deposits in the Failed Bank and is the least costly to the deposit insurance fund of all possible methods for meeting such obligation”). The fact that uninsured depositors also were protected as the result of that transaction, at no extra cost to the deposit insurance fund, was permissible. See 12 C.F.R. § 360.1(b). 8 Section 1821(d)(13)(E) provides: In exercising any right, power, privilege, or authority as conservator or receiver in connection with any sale or disposition of assets of any insured depository Case 1:09-cv-00533-RMC Document 25 Filed 06/11/09 Page 19 of 36 13 v. F.D.I.C., No. 95 Civ. 0723, 2001 WL 1478809, at *3 (S.D.N.Y. Nov. 20, 2001) (no implied private right of action for disappointed bidder for receivership assets under section 1821(d)(13)(E)); Pen-Del Mortgage Assocs. v. F.D.I.C., Civ. A. No. 94-0067, 1994 WL 675502 (E.D.

See, e.g., Kerler v. Nat'l Enters., 165 F.3d 596, 599 (8th Cir. 1999) ("it is not realistic to apply the bar of § 1823(e) to non-banking transactions"); John v. RTC, 39 F.3d 773, 776 (7th Cir. 1994) ("By its language § 1823(e) applies only to conventional loan activities . . . the only sensible reading of § 1821 (d)(9)(A) must limit its scope to the loan-related transactions covered by § 1823(e)."); 12 U.S.C. § 1823(e)(3) (referring to a depository institution's "loan committee") (all emphases added). The FDIC has acknowledged that Section 1823 should not be applied in instances such as these.

36 Section 1823 provides: No agreement which tends to diminish or defeat the interest of the [FDIC] in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the [FDIC] unless such agreement — (1) is in writing, (2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution, (3) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) has been continuously, from the time of its execution, an official record of the depository institution. 12 U.S.C. § 1823(e). Case 2:10-cv-00198-MHT -DHW Document 131 Filed 09/23/11 Page 33 of 98 04518.

36 Section 1823 provides: No agreement which tends to diminish or defeat the interest of the [FDIC] in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the [FDIC] unless such agreement — (1) is in writing, (2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution, (3) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) has been continuously, from the time of its execution, an official record of the depository institution. 12 U.S.C. § 1823(e). Case 2:10-cv-00198-MHT -DHW Document 129 Filed 09/22/11 Page 33 of 98 04518.

and 8 Section 1823(e)(1) provides: (e) Agreements against interests of Corporation (1) In general No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the Corporation unless such agreement – (A) is in writing; (B) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution; (C) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee; and (D) has been, continuously, from the time of its execution, an official record of the depository institution. 12 U.S.C. § 1823(e)(1). Case 2:10-cv-00198-MHT-DHW Document 127 Filed 09/22/11 Page 32 of 69 22 terms of an alleged agreement is “flatly prohibit[ed].”

Moreover, while witnesses testified to a general familiarity with there being an internal tax allocation policy, they identified numerous different documents as the (D) has been continuously, from the time of its execution, an official record of the depository institution. 12 U.S.C. § 1823(e)(1). Case 2:10-cv-00198-MHT-DHW Document 110 Filed 08/15/11 Page 52 of 105 41 embodiment of that policy, some in different form and others rife with typographical errors.

More importantly, these intentions and understandings are evidently not in writing and thus are not valid against FDIC-R. See 12 U.S.C. §§ 1823(e)(1)(A); see also 1821(d)(9)(A). Section 1823(e) is the statutory implementation of the D’Oench Duhme doctrine, created “to allow federal and state bank examiners to rely on a bank’s records in evaluating the worth of the bank’s assets . . . .