A letter sent last week by billionaire Bruce Berkowitz of Fairholme Funds reveals the battle over what to do with Fannie Mae (FNMA 1.28%) and Freddie Mac (FMCC 2.20%) is a long way from being over.
While many investors like Bill Ackman have proclaimed their interest in Fannie and Freddie with their dollars -- Ackman has a nearly 10% stake in the common shares of Fannie and Freddie -- Berkowitz has been one of the most outspoken. In November he proposed a plan which would ultimately result in two private companies crated to overtake the operations of Fannie and Freddie, which would benefit the holders of the preferred stock.
More recently in February it was disclosed through SEC filings Fairholme Funds had amassed a total of $1.3 billion in the common and preferred shares of the companies. Yet the biggest news in the month was the letter Berkowitz wrote which called for sweeping changes at the two government sponsored entities.
In the letter to the board of directors of the two companies, Berkowitz petitioned for sweeping changes at the firms. He wants a revision of the corporate structure, a relisting of the companies on the stock-exchanges, annual meetings for shareholders, evaluation of its current operations by independent parties, and a host of other moves with the ultimate goal of reforming the companies to operate in a way which would benefit both the public and the common shareholders.
In an interview with the Wall Street Journal, Berkowitz said his intention behind the letters was to "wake up the boards that they have a fiduciary responsibility to the owners of the company, the owners of the company being the shareholders."
He highlighted the reality through the $202.9 billion in dividends, the companies have fully returned the original $187.5 billion investment the U.S. Treasury made and it is now time for a return to normalcy. And normalcy involves an essential and highly profitable business model, which he suggests if properly utilized, would result in significant gains for all investors -- which of course includes the Treasury through its 79.9% ownership stake.
Despite the letter being dated on Friday, the response to Berkowitz from Fannie Mae came quickly, as Berkowitz received a response Sunday evening from Philip Laskawy, the Chairman of Fannie Mae.
In less than 200 total words, Laskaway all but dismissed the proposal from Berkowitz, noting:
I am confident that the Board is doing the job it has been given. [Federal Housing Finance Agency] has retained certain authorities for its exclusive determination and control, as provided by federal statute, including all decisions relating to the declaration and payment of dividends to the United States Treasury. Our Board and management will continue to perform their duties, as provided by federal statute and delegated by FHFA, diligently and to the best of their abilities.
It is important to remember Fannie Mae is under conservatorship, and it is under the total control of the guidance from the FHFA. It notes plainly in its annual report the directors -- to whom Berkowitz addressed his letter -- "serve on behalf of the conservator and exercise their authority as directed by and with the approval, where required, of the conservator."
In addition, the company says it is "no longer managed with a strategy to maximize shareholder returns," and it cannot retain any of its earnings as a result of its dividend obligations to the U.S. Treasury, and ultimately, "the conservatorship and investment by Treasury have had, and will continue to have, a material adverse effect on our common and preferred shareholders."
The bottom line
As with many conflicts surrounding corporate structure, the fight is not resolved in a letter and response, but it is critical to note Fannie Mae is in no way the typical publicly traded company. While Berkowitz could win hands here and there, one has to wonder if the deck is stacked too much against him, and this is ultimately a losing battle.