f "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.
In fact, the many cases granting preliminary injunctive relief to ERISA plan participants and beneficiaries emphasize the importance of this national public interest. See Gould, 870 F.2d at 1221; Anthony v. Texaco, Inc., 803 F.2d 593, 597 (10th Cir. 1986); Van Drivers, 551 F. Supp. at 432 (citations omitted) ("It is clear that stability and protection require assurance of adequate funding and the prevention of arbitrary termination rights."); Security Federal Savings Bank v. OTS, 747 F. Supp. 656 (N.D.Fla. 1990). In Security Federal, the court issued a preliminary injunction to prevent the OTS from unilaterally abrogating a contract between FSLBB and plaintiffs.
Security Federal's response was to file suit against OTS in the United States District Court for the Northern District of Florida. That court entered a preliminary injunction enjoining OTS "from enforcing against the plaintiffs any regulatory capital requirements inconsistent with the 1987 conversion agreement for Security Federal Savings Bank of Florida." Sec. Fed. Sav. Bank of Fla. v. Dir., Office of Thrift Supervision, 747 F.Supp. 656, 660 (N.D.Fla. 1990). The injunction did not save Security Federal, whose "financial condition continued to deteriorate, and it failed to meet all of its regulatory capital requirements."
eb. 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 goodwill' could no longer be counted by a thrift institution in meeting the newly imposed capital requirements").
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.
1990), rev'd, 927 F.2d 1332 (6th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 370, 116 L.Ed.2d 322 (1991); Guaranty Financial Services, Inc. v. Ryan, 742 F. Supp. 1159 (M.D.Ga. 1990), rev'd, 928 F.2d 994 (11th Cir. 1991); Sterling Savings Ass'n v. Ryan, 751 F. Supp. 871 (E.D.Wash. 1990) (implicitly overruled by Far West Federal Bank v. Director, Office of Thrift Supervision, 951 F.2d 1093 (9th Cir. 1991)); Security Federal Savings Bank v. Director, Office of Thrift Supervision, 747 F. Supp. 656 (N.D.Fla. 1990) (implicitly overruled by Guaranty Financial Services); Far West Federal Bank v. Director, Office of Thrift Supervision, 738 F. Supp. 1559 (D.Or. 1990) (implicitly overruled by Far West). Defendants maintain that § 401(g) was intended only "to [prevent] the agreements that the FSLIC and the FHLBB entered into . . . from being terminated merely because one of the contracting parties, the FSLIC or the FHLBB, cease[d] to exist."
Most courts which have confronted the issue now before the court have held that FIRREA does not abrogate, but rather preserves, in section 401(g), assistance agreements which were formed in supervisory mergers. See Hansen Savings Bank v. Office of Thrift Supervision, 758 F. Supp. 240, 245-46, (D.N.J.1991); Far West Fed. Bank v. Director, Office of Thrift Supervision, 738 F. Supp. 1559, 1563 (D.Ore.1990) (if FIRREA abrogates all existing contracts that bound United States before its enactment, section 401(g) would be surplusage, utterly without purpose); Franklin Fed. Sav. Bank v. Director, Office of Thrift Supervision, No. 2-90-166, slip op. at 3, 1990 WL 123145 (E.D.Tenn. July 16, 1990) (FIRREA did not abrogate grant of forbearance and forbearance was thus binding on successors in interest to FSLIC and FHLBB); Security Fed. Sav. Bank v. Director, Office of Thrift Supervision, 747 F. Supp. 656, 659 (N.D.Fla.1990) (by virtue of preexisting contract, plaintiff savings association had a "right" and FHLBB an "obligation" within meaning of section 401(g) which OTS was not authorized to unilaterally abrogate); Guaranty Fin. Serv., Inc. v. Director, Office of Thrift Supervision, 742 F. Supp. 1159, 1162 (M.D. Ga.1990) (assuming conversion agreement was a contract, court held it clearly created rights, duties and obligations and therefore fell under section 401(g) of FIRREA); Sterling Sav. Ass'n v. Ryan, 751 F. Supp. 871, 880 (E.D.Wash.1990) (FIRREA neither nullified preexisting agreements nor authorized OTS to turn its regulatory back on their continued validity). But see Flagship Fed. Sav. Bank v. Wall, Director, No. 90-0079-GT (S.D.Cal.
The appellees assert that the relationship between Conner and the Bank Board was regulatory, not contractual. This court, however, agrees with the FDIC's contention that there is no strict dichotomy between that which is regulatory and that which is contractual. Certainly there are circumstances in which the Bank Board, acting in its regulatory capacity, can enter into contractual relationships. For example, in Security Federal Sav. Bank v. Director, Office of Thrift Supervision, 747 F. Supp. 656 (N.D.Fla. 1990), the court held that a contract had been entered into by the Bank Board and a savings and loan. The parties engaged in extensive negotiations in an effort to avoid placing the savings and loan in receivership. The agreement they reached called for the directors of the savings and loan to invest $3.6 million of their own money in the institution in exchange for the promise of the Bank Board to allow the institution to include deferred loan losses in its regulatory capital.
See Franklin Fed. Sav. Bank v. Director, Office of Thrift Supervision, Civil No. 2-90-166, 1990 WL 123145 (E.D.Tenn. July 16, 1990); Sterling Sav. Ass'n v. Ryan, Civil No. 90-0175-JLQ (E.D.Wash. Aug. 8, 1990); Security Fed. Sav. Bank of Florida v. Director, Office of Thrift Supervision, 747 F. Supp. 656 (N.D.Fla. 1990); Guaranty Fin. Serv., Inc. v. Director, Office of Thrift Supervision, 742 F. Supp. 1159 (M.D.Ga. 1990). Of course, not every court agrees, see, e.g., First Fed. Sav. Bank Trust v. Ryan, Civil No. 90-60171AA (E.D.Mich. July 19, 1990); c.f. Flagship Fed. Sav. Bank v. Wall, 748 F. Supp. 742 (S.D.Cal. 1990). The Circuits have yet to try their hands on the question.