Case 4:14-cv-00042-RP-RAW Document 48 Filed 10/06/14 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

CONTINENTAL WESTERN
INSURANCE COMPANY,
Plaintiff,
v.

No. 4:14-cv-00042

THE FEDERAL HOUSING FINANCE

AGENCY, in its capacity as Conservator of
the Federal National Mortgage Association
and the Federal Home Loan Mortgage
Corporation, MELVIN L. WATT, in his
official capacity as Director of the Federal
Housing Finance Agency, and THE
DEPARTMENT OF THE TREASURY,
Defendants.

NOTICE OF SUPPLEMENTAL AUTHORITY BY ALL DEFENDANTS

All Defendants respectfully provide this notice of supplemental authority in further
support of their motions to dismiss (Doc. ## 23, 24).
On September 30, 2014, one day after briefing closed on Defendants motions to dismiss
in this case, Judge Lamberth issued a memorandum opinion granting Defendants motions to
dismiss in a series of closely-related actions pending in the U.S. District Court for the District of
Columbia (the D.D.C. Actions). See Perry Capital LLC et al. v. Lew et al., --- F. Supp. 3d ----,
2014 WL 4829559 (D.D.C. Sept. 30, 2014) (attached as Exhibit A).1 The D.D.C. Actions were
materially identical to this action, and served as the basis for Defendants alternative request to
transfer. See FHFA Mot. to Dismiss at 30-37; Treasury Mot. to Dismiss at 26-31.

One of the plaintiffs in the D.D.C Actions filed a notice of appeal on October 2, 2014.

Case 4:14-cv-00042-RP-RAW Document 48 Filed 10/06/14 Page 2 of 4

Judge Lamberths opinion is directly on point. It holds, inter alia, that:

Section 4617(f) bars plaintiffs claims seeking declaratory and equitable relief
against both FHFA and Treasury (Perry Capital, 2014 WL 4829559 at *6-12);

Treasurys execution of the Third Amendment does not constitute the purchase of
new securities (id. at *8-9);

FHFA acted within its statutory authority in entering into the Third Amendment
(id. at *9);

FHFA has not placed the Enterprises in de facto liquidation (id. at *10-12);

Plaintiffs fiduciary duty and contract-based claims are derivative, not direct (id.
at *12 n.24, *16 n.39);

HERA bars plaintiffs derivative claims (id. at *12-15);

There is no conflict of interest exception to HERA (id. at *13-14); and,

Plaintiffs contract-based claims are not ripe (id. at *15-17).

Defendants respectfully urge the Court to take Judge Lamberths rulings into account when
considering the issues presented by the motions to dismiss pending here.2

To the extent leave of court is required to file this notice, Defendants respectfully request
that the Court treat the notice as a Motion for Leave to File Supplemental Authority.

Case 4:14-cv-00042-RP-RAW Document 48 Filed 10/06/14 Page 3 of 4

Dated: October 6, 2014

Respectfully submitted,

BELIN McCORMICK, P.C.

ARNOLD & PORTER LLP

Matthew C. McDermott
AT0005085
Stephen H. Locher
AT0010383
666 Walnut Street, Suite 2000
Des Moines, IA 50309-3989
Telephone: (515) 283-4643; (515) 2834610
Facsimile: (515) 558-0643; (515) 558-0610
E-Mail: mcdermott@belinmccormick.com;
shlocher@belinmccormick.com

By:
/s/ Howard N. Cayne
Howard N. Cayne* Lead Counsel
Asim Varma*
David B. Bergman*
ARNOLD & PORTER LLP
555 12th Street, N.W.
Washington, D.C. 20004
Telephone: (202) 942-5000
Facsimile: (202) 942-5999
E-Mail: Howard.Cayne@aporter.com;
Asim.Varma@aporter.com;
David.Bergman@aporter.com
*Admitted Pro Hac Vice
Attorneys for Defendants Federal Housing
Finance Agency and Director Melvin L.
Watt

JOYCE R. BRANDA
Acting Assistant Attorney General
NICHOLAS A. KLINEFELDT
United States Attorney
DIANE KELLEHER
Assistant Branch Director
/s/Joel McElvain (by permission)
JOEL MCELVAIN
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
(202) 514-2988
Joel.McElvain@usdoj.gov
Counsel for Department of the Treasury

Case 4:14-cv-00042-RP-RAW Document 48 Filed 10/06/14 Page 4 of 4

PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was served upon the parties to
this action by serving a copy upon each of the attorneys listed below on October 6, 2014, via
CM/ECF.
Matthew Whitaker
Matt M. Dummermuth
Kendra Lou Mills Arnold
WHITAKER HAGENOW & GUSTOFF LLP
WHG
400 E. Court Avenue, Suite 346
Des Moines, IA 50309
mwhitaker@whgllp.com;
mdummermuth@whgllp.com;
karnold@whgllp.com
Attorneys for Plaintiff

Charles J. Cooper
David H. Thompson
Peter A. Patterson
Vincent J. Colatriano
COOPER & KIRK PLLC
1523 New Hampshire Avenue NW
Washington, DC 20036
ccooper@cooperkirk.com;
dthompson@cooperkirk.com;
ppatterson@cooperkirk.com;
vcolatriano@cooperkirk.com
Attorneys for Plaintiff

Joel McElvain
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
joel.mcelvain@usdoj.gov
Attorneys for Department of Treasury

By:
/s/ Howard N. Cayne
Howard N. Cayne
ARNOLD & PORTER LLP
555 12th Street, N.W.
Washington, D.C. 20004
Telephone: (202) 942-5000
Facsimile: (202) 942-5999
E-Mail: Howard.Cayne@aporter.com;
Attorney for Defendants Federal Housing
Finance Agency and Director Melvin L.
Watt