Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Remember that “audaciouscase filed in the Court of Federal Claims by überlawyer David Boies on behalf of Starr International seeking $35 billion in just compensation for the federal takeover of AIG?

Well, it’s moving along, and apparently is in discovery (every lawyer’s favorite part of the case). Boies sought the deposition testimony of Fed Chair Ben Bernanke about his “personal involvement in the Government’s decision to bail out American International Group, Inc. (‘AIG’) in September 2008, and his knowledge of the specific governmental actions taken to implement the bailout.” Mr. Bernanke didn’t want to testify, claiming that as a “high-level government official,” the plaintiffs had to show that the information sought was not merely relevant under the usual discovery rules, but essential to the case, not not obtainable elsewhere. I’ve got better things to do, so stop bothering me and get this information from someone else, argued Bernanke.

The CFC didn’t see it that way, and in this order held that the practice is “relatively routine” in the CFC which, after all, is the court where “private citizens … sue the federal government for monetary redress.” Order at 3. Mr. Bernanke should not be surprised, as it “is unremarkable that high-level government officials will play a role in the litigation.”

He’s a key witness and his testimony “will be highly relevant.” He was a central figure and personally involved in the bailout decision, and it is “improbable” that the same evidence is available elsewhere. “Indeed, the Court cannot fathom having to decide this multi-billion dollar claim without the testimony of such a key government decision-maker,” and these are the requisite “extraordinary circumstances.”

A strong reminder of the role of the Court of Federal Claims and that we are a nation beholden to the rule of law in which everyone — even “high-level government officials” — must answer to the lowest citizen.

And guess what: “[i]n order to provide appropriate judicial oversight for the deposition of this high-level government offficial, Judge Wheeler plans to attend Mr. Bernanke’s deposition.” Order at 3.

Now that my friends, is truly an “extraordinary circumstance.”
Order Regarding the Deposition of Ben S. Bernanke, Starr International Co. v. United States, No. 11-779C (Fed. Cl. July 29, 2013)

– See more at: http://www.inversecondemnation.com/#.dpuf

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.