The plain meaning rule is to litigators what hammers are to contractors. It may be easy to use, but since you’re going to use it on every job, you need to get good with it.
When interpreting a statute, rule, regulation, contract, or other legal document, courts first look to the plain meaning of the language in the document itself. If the language is unambiguous, then that plain meaning will be applied, regardless of any external factors or policy interpretations.
The bailout bill added the following to Section 13(c) of the Federal Deposit Insurance Act (12 U.S.C. 1823(c)) [the bolded language is the most relevant here]:
(11) UNENFORCEABILITY OF CERTAIN AGREEMENTS. No provision contained in any existing or future standstill, confidentiality, or other agreement that, directly or indirectly
"(A) affects, restricts, or limits the ability of any person to offer to acquire or acquire,
"(B) prohibits any person from offering to acquire or acquiring, or
"(C) prohibits any person from using any previously disclosed information in connection with any such offer to acquire or acquisition of,
all or part of any insured depository institution, including any liabilities, assets, or interest therein, in connection with any transaction in which the Corporation exercises its authority under section 11 or 13, shall be enforceable against or impose any liability on such person, as such enforcement or liability shall be contrary to public policy.
Assume Citigroup has an "agreement" with Wachovia, an "insured depository instutition," that contains a "provision" that "directly… limits the ability of any person to offer to acquire or acquire" Wachovia. Then Wells Fargo comes in and acquires Wachovia.
Citigroup sues for damages. What result?
There is no law whatsoever interpreting the above language. Thus, Wachovia offered a restrained 15 pages explaining how the above is so unambiguous it needs no further argument, while Citigroup filed a downright svelte 7 pages of argument as to how the statute reflectled a precisely contrary unambiguous meaning. (Both briefs are available at the WSJ Law Blog).
I believe Congress did not mean what it wrote, and that the Court will ignore the "plain meaning" rule to get at what Congress probably did mean.
Citigroup has a very strong argument that 126(c) limits enforceability and liability only of the "person" described immediately above, which would be the acquirer (Wells Fargo), and not the institution (Wachovia). If Congress, say, wanted to void the provision entirely, they could have do so by writing:
Any provision in an agreement that purports to limit the ability of a person to acquire, or to offer to acquire, all or part of any insured depository institution is hereby declared void.
In that case, the provision would have been blown up, eliminating all liability. It’s not like Congress didn’t know how to "void" an agreement. Here’s what happens if a shifty promoter tries to skirt securities exchange regulations protecting investors, as per 15 USCS § 78cc:
(a) Waiver provisions. Any condition, stipulation, or provision binding any person to waive compliance with any provision of this title [15 USCS §§ 78a et seq.] or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.
Blammo! The "provision … shall be void."
And here’s what happens when a Member of Congress tries to make a deal with the United States or its agencies, as per 18 USCS § 431:
Whoever, being a Member of or Delegate to Congress, or a Resident Commissioner, either before or after he has qualified, directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on his account, undertakes, executes, holds, or enjoys, in whole or in part, any contract or agreement, made or entered into in behalf of the United States or any agency thereof, by any officer or person authorized to make contracts on its behalf, shall be fined under this title.
All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced by the United States or any agency thereof, in consideration of any such contract or agreement, it shall forthwith be repaid; and in case of failure or refusal to repay the same when demanded by the proper officer of the department or agency under whose authority such contract or agreement shall have been made or entered into, suit shall at once be brought against the person so failing or refusing and his sureties for the recovery of the money so advanced.
Wham! "All … agreements … shall be void."
Here, however, in 126(c), Congress didn’t do that. They gave us a long, detailed description of a "provision" they thought should not "be enforceable against or impose liability on such person," a "person" they specifically described above as one who was attempting to acquire or actually acquiring an institution.
Congress knew how to "void" an unwanted provision of an agreement and chose not to do so here. That weighs heavily in Citigroup’s favor.
But there’s a problem: how would an agreement between Citigroup and Wachovia ever "be enforceable" or "impose [ ] liability" on Wells Fargo?
Wells Fargo is a third-party to the agreement between Citigroup and Wachovia. The agreement creates much that can be enforced against, and which imposes liability on, Wachovia, because it is a party to the agreement. Wells Fargo, though, is not bound at all by the agreement.
That’s not to say Wells Fargo is without liability. The claim here is simple: Citigroup is suing Wachovia for breach of contract and Wells Fargo for tortious interference with contractual relations. That’s it; Citigroup’s claim against Wells Fargo arises as a matter of tort, not as a matter of contract.
Citigroup thus has not and cannot allege that Wells Fargo somehow breached an agreement with Citigroup, since there isn’t one.
So here’s our problem: if you read the the statute literally, the plain meaning destroys a type of "enforceability" and "liability" that rarely, if ever, exists. Not unless the acquirer had some type of non-competition agreement with a second company not to attempt to acquire a third-party institution, which is not the case here. Frankly, such an agreement — e.g., Wells Fargo agreeing with Citigroup not to acquire Wachovia — would likely invite an antitrust inquiry, not to mention a very upset Hank Paulson asking why they’re trying to deep freeze an already frozen market.
So 126(c) is like a law excusing me from enforcement or liability arising from the agreement you have with your phone company. I was never obligated to follow that agreement in the first place.
So, now what? Here is where I suspect the plain meaning rule will fail, and the court will disregard an unambiguous meaning to reach the result it believes Congress intended.
As described above, I think the "plain meaning" interpretation of the section is clear: any agreement in which a potential acquiring company has agreed not to acquire an FDIC-institution is unenforceable. That’s not the situation in the Citigroup versus Wells Fargo case (since Wells Fargo was not party to any such agreement), and so the statute is wholly inapplicable. Period. The suit goes forward against both Wells Fargo and Wachovia.
But that is probably not what will happen. 126(c) was obviously intended to apply to this deal specifically, hence the "in connection with any transaction in which the Corporation exercises its authority under section 11 or 13," which describes the FDIC-approved Citigroup/Wachovia deal. As such, I predict the court will read this statute as an attempt by Congress to protect Wells Fargo from liability arising from that agreement, even if the "plain meaning" would seem only to apply if Wells Fargo itself signed on to that agreement.
Wachovia, however, has a much longer road ahead. I think it’s fatal to their defense that Congress didn’t just up and void the whole agreement.
Given how Congress works, maybe the above really is what they intended: Wells Fargo gets Wachovia, but in the process they have to pay Citigroup’s damages. Indeed, Citigroup’s "negotiated" agreement to withdraw the request for injunctive relief suggests to me that’s precisely the compromise, likely entered into with Federal, shall we say, persuasion.