ons 11 and/or 17. Whether the treatment of goodwill as regulatory capital technically qualifies as a form of "assistance" or is, rather, a part of the accounting method by which the transaction was conducted, see Security Sav. and Loan Ass'n v. Director, Office of Thrift Supervision, 761 F. Supp. 1277, 1281 (S.D.Miss. 1991) (goodwill not included in Assistance Agreement because is not "assistance," rather was part of accounting method), it is also clear from the language of these documents that treatment of goodwill as regulatory capital is an express term of the overall contractual agreement, see id. at 1282-83 (absence of reference to goodwill in Assistance Agreement does not mean was not part of the transaction — it was an express term).See also Carteret Sav. Bank, F.A. v. Office of Thrift Supervision, 762 F. Supp. 1159 (D.N.J. 1991); Hansen Sav. Bank v. Office of Thrift Supervision, 758 F. Supp. 240 (D.N.J. 1991); Far West Fed. Bank, S.B. v. Director, Office of Thrift Supervision, 746 F. Supp. 1042 (D.Or. 1990); Security Fed. Sav. Bank of Fla. v. Director, Office of Thrift Supervision, 747 F. Supp. 656 (N.D.Fla. 1990); Sterling Sav. Ass'n. v. Ryan, 751 F. Supp. 871 (E.D.Wash. 1990), modified in part, No. CS-90-175-JLQ (Nov. 2, 1990) (1990 WL 261392) (limiting scope of injunction); Franklin Fed. Sav. Bank v. Director, Office of Thrift Supervision, No. Civ-2-90-166 (E.D.Tenn. July 16, 1990) (1990 WL 123145), rev'd on other grounds, 927 F.2d 1332 (6th Cir. 1991). Furthermore, defendants in this case also explicitly waived application of regulations to the contrary and did not "expressly (or implicitly) reserve" any "statutory rights and powers" in regard to this forbearance.
Considering the petition for coordination as a whole, the phrase “for all purposes” could easily be interpreted as referring to all pretrial or discovery purposes, particularly in view of the consistent explicit references to pretrial and discovery matters, and not one mention of the word “trial.” See Far West Federal Bank, S.B. v. Dir., Office of Thrift Supv., 746 F.Supp. 1042, 1048 (D.Or.1990), reversed on other grounds, 951 F.2d 1093 (9th Cir.1991) (finding the phrase “for all purposes” ambiguous); see also Francis v. LaMarque, No. C01–3957, 2002 WL 31414310 at *4 (N.D.Cal.2002) (finding an instruction containing the phrase “for all purposes” ambiguous when considered in the context of another instruction). The majority criticizes these cases as being distinguishable, but still offers no supporting authority for its contention that the phrase “for all purposes” is not ambiguous. The fact remains that the phrase “for all purposes” upon which the majority so heavily relies has been found ambiguous by at least two courts.
The district court ruled that FIRREA did not abrogate the Conversion Agreement, because the statute preserved existing obligations and duties of FHLBB. Far West Fed. Bank, S.B. v. Director, Office of Thrift Supervision, 738 F. Supp. 1559, 1563-64 (D. Ore. 1990). It also concluded that the government's repudiation of the agreement constituted a taking under the Fifth Amendment. Far West Fed. Bank, S.B. v. Director, Office of Thrift Supervision, 746 F. Supp. 1042, 1051 (D. Ore. 1990). Accordingly, the district court entered a permanent injunction prohibiting OTS from enforcing FIRREA against Far West.
However, without exception these decisions were reversed on appeal. Guaranty Fin. Servs., Inc. v. Director, Office of Thrift Supervision, 742 F. Supp. 1159 (M.D.Ga. 1990), rev'd, 928 F.2d 994 (11th Cir. 1991); Far W. Fed. Bank, S.B. v. Director, Office of Thrift Supervision, 746 F. Supp. 1042 (D.Or. 1990), rev'd, 951 F.2d 1093 (9th Cir. 1991); Security Sav.
We reverse. The relevant opinions of the district court are reported at 738 F. Supp. 1559 (D.Or. 1990), 738 F. Supp. 1564 (D.Or. 1990) and 746 F. Supp. 1042 (D.Or. 1990). I
The district court denied the motion. On August 10 Far West voluntarily agreed to transfer Count V to the Claims Court and, as reported supra, on August 13 the Federal Circuit ordered a stay of proceedings with respect to Count IV. Counts I and II were tried on August 14, and the merits were decided on September 14, 1990. Far West Federal Bank, S.B. v. Director, Office of Thrift Supervision, 746 F. Supp. 1042 (D.Ore. 1990). Cross-appeals are reported to be pending before the Ninth Circuit.
Feb. 22, 1991) (granting permanent injunction preventing OTS from abrogating supervisory goodwill forbearance); Sterling Sav. Ass'n v. Ryan, 751 F. Supp. 871 (E.D.Wash. 1990) (granting preliminary injunction prohibiting OTS from abrogating supervisory goodwill forbearance); Winstar Corp. United States Fed. Sav. Bank v. United States, 21 Cl.Ct. 112 (1990) (finding implied-in-fact contract protecting right to supervisory goodwill forbearance); Franklin Fed. Sav. Bank v. Director, Office of Thrift Supervision, No. 2-90-166, 1990 WL 123145 (E.D. Tenn. July 16, 1990) (granting permanent injunction preventing OTS from abrogating supervisory goodwill forbearance); see also Far W. Fed. Bank v. Director, Office of Thrift Supervision, 746 F. Supp. 1042, 1047 (D.Or. 1990) ("FIRREA [does] not abrogate the Conversion Agreement, because the Conversion Agreement is . . . preserved under § 401(g)"; not involving supervisory goodwill); Security Fed. Sav. Bank v. Director, Office of Thrift Supervision, 747 F. Supp. 656, 658 (N.D.Fla. 1990) ("FIRREA does not authorize OTS to unilaterally abrogate the contract between FHLBB and the plaintiffs"; not involving supervisory goodwill). But see Century Fed. Sav. Bank v. United States, 745 F. Supp. 1363 (N.D.Ill. 1990) (no contract on supervisory goodwill, but if there were § 401(g) would be inapplicable); Flagship Fed. Sav. Bank v. Wall, 748 F. Supp. 742 (S.D.Cal. 1990) (no contract on supervisory goodwill, but if there were § 401(g) would be inapplicable); El Paso Sav. Ass'n v. Director, Office of Thrift Supervision, No. EP-89-CA-426-H (W.D.Tex. Jan. 8, 1990) ("the debate in the House . . . makes it clear that the members of the body understood and intended that following passage of the Act, so-called `supervisory g
Sterling Sav. Ass'n v. Ryan, 751 F. Supp. 871 (E.D.Wash. 1990); Security Fed. Sav. Bank of Florida v. Director, Office of Thrift Supervision, 747 F. Supp. 656 (N.D.Fla. 1990); Far West Fed. Bank v. Director, Office of Thrift Supervision, 746 F. Supp. 1042 (D.Or. 1990): Guaranty Fin. Serv., Inc. v. Director, Office of Thrift Supervision, 742 F. Supp. 1159 (M.D.Ga. 1990). Accordingly, the district court's findings regarding the instant forbearance letter are not clearly erroneous.
In fact, one district court has already determined precisely this issue. Far West Federal Bank, S.B. v. Director, Office of Thrift Supervision, 746 F. Supp. 1042, 1050-51 (D.Or. 1990). Nor does this contract merely reflect an expression of regulatory policy, contrary to the government's assertion in reliance on Bowen, 477 U.S. 41, 106 S.Ct. 2390.
Another court has implied that the contractual forbearances granted by FSLIC and the FHLBB were an absolute waiver by the government from applying capital standards to these respective institutions even in the light of new congressional action concerning capital standards. Far West Fed. Bank v. Director, OTS, 746 F. Supp. 1042 (D.Or. 1990). After reviewing pertinent Supreme Court cases, the Far West court stated