Lessons from the Damages Decisions Following United States v. Winstar Corp.
32 Pub. Cont. L.J. 1, Fall 2002
38 Pages Posted: 31 Oct 2013
Date Written: 2002
Abstract
Breach-of-regulatory-contract claims present an exquisite dilemma: on the one hand, given its many roles and responsibilities, and the fact that it is a representative body, the Government reasonably requires flexibility in deciding whether to change its laws and policies. On the other hand, depending upon the nature of the dealings between the Government and the claimant(s), the latter may reasonably have relied upon a government promise in conducting business operations, thereby incurring expenditures and expecting to profit because of its dealings with the Government.
The Supreme Court decision in Winstar and the subsequent damages cases in the Federal Circuit and the Court of Federal Claims are challenging to write about in a comprehensive fashion. The issues are complicated. At the time this article was in page proofs, at least one Court of Federal Claims decision had been argued and was pending in the Federal Circuit, and several others almost certainly will not be resolved before an appeal to that court.
Keywords: Savings, loan, savings and loan industry, first thrift crises, second thrift crises, the first and second thrift crises, FIRREA, United States v. Winstar Corp., savings and loan litigation, unmistakability doctrine, sovereign acts doctrine, recovery for breach of contract, goodwill damages, goodwill
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