Howard Cayne counsels financial and other institutions on a broad range of regulatory, compliance, and transactional issues. Mr. Cayne has also litigated many significant enforcement, supervisory, and liability issues facing institutions, and their officers and directors. He has played a prominent role in much of the most significant federal banking litigation of the past four decades and served as trial counsel in a number of cases resulting in hundreds of millions of dollars in total judgments against the United States. Mr. Cayne currently co-leads the firm's representation of the Federal Housing Finance Agency (FHFA) as Conservator in a wide array of complex litigations in multiple federal and state courts throughout the nation.
In addition to his work for FHFA, Mr. Cayne has extensive financial institution litigation experience, including challenging, on behalf of federally chartered financial institutions, state and local efforts to supervise and regulate their activities. Mr. Cayne's litigation experience also includes first chairing a number of Winstar breach of contract liability and damages trials against the US in the Court of Federal Claims. Mr. Cayne also represented the US Department of the Navy in the defense of the McDonnell Douglas/General Dynamics A-12 Avenger contract termination claims in the Court of Federal Claims.
Before joining Arnold & Porter in 1984, Mr. Cayne served as a senior attorney in the Enforcement and Compliance Division of the Comptroller of the Currency. In addition, he has served on the adjunct faculty teaching Banking Law Enforcement at the Boston University.
- Obtained dismissal of multiple actions against FHFA, in which Fannie Mae and Freddie Mac shareholders challenged an amendment to FHFA's contract with the Treasury Department concerning the government's commitment of funds to the Enterprises. To date, five US Courts of appeals have held that federal law bars such judicial interference with FHFA's conduct as Conservator. See Perry Capital v. Mnuchin, 864 F.3d 591 (D.C. Cir. 2017); Robinson v. FHFA, 876 F.3d 220 (6th Cir. 2017); Roberts v. FHFA, 889 F.3d 397 (7th Cir. 2018); Saxton v. FHFA, 901 F.3d 954 (8th Cir. 2018); Jacobs v. FHFA, 908 F.3d 884 (3d Cir. 2018).
- Obtained dismissal of case brought against FHFA by the Massachusetts Attorney General that sought to enjoin FHFA, Fannie Mae, and Freddie Mac from implementing a policy requiring that purchasers of REO properties promise not to reconvey the property back to the borrower, on grounds that the policy violated state consumer-protection laws. See Massachusetts v. FHFA, 54 F. Supp. 3d 94 (D. Mass. 2014).
- Obtained dismissal of an APA challenge to an FHFA directive indefinitely suspending Fannie Mae's and Freddie Mac's contributions to national housing trust funds. The court ruled that plaintiffs lacked standing, and that FHFA has no enforceable legal obligation to revisit its suspension decisions. See Samuels v. FHFA, 54 F. Supp. 3d 1328 (S.D. Fla. 2014).
- Obtained an order permitting FHFA to substitute itself in place of shareholder plaintiffs who had purported to sue the Treasury Department derivatively on behalf of Fannie Mae over Fannie Mae's inability to sell low income housing tax credits ("LIHTCs") to third parties. See Gail C. Sweeney Estate Marital Trust v. US Treasury Dep't, 68 F.Supp.3d 116 (D.D.C. 2014).
- Obtained victories in eleven federal appeals in nine circuit courts on behalf of FHFA, confirming and upholding Fannie Mae and Freddie Mac's statutory exemption from real-estate transfer taxes, thereby defeating claims that exposed the Enterprises to more than $1 billion in potential cumulative damages: Montgomery Cnty. Comm'n v. FHFA, 776 F.3d 1247 (11th Cir. 2015); City of Spokane v. Fed. Nat'l Mortg. Ass'n, 775 F.3d 1113 (9th Cir. 2014); Town of Johnston v. FHFA, 765 F.3d 80, 82 (1st Cir. 2014); Bd. of Cnty. Comm'rs of Montgomery Cnty., Ohio v. FHFA, 758 F.3d 706 (6th Cir. 2014); Bd. of Cnty. Comm'rs of Kay Cnty. v. FHFA, 754 F.3d 1025 (D.C. Cir. 2014); Vadnais v. Fed. Nat'l Mortg. Ass'n, 754 F.3d 524 (8th Cir 2014); Delaware Cnty., Pa. v. FHFA, 747 F.3d 215 (3rd Cir. 2014); Hennepin Cnty. v. Fed. Nat'l Mortg. Ass'n, 742 F.3d 818 (8th Cir. 2014); Montgomery Cnty., Md. v. FHFA, 740 F.3d 914 (4th Cir. 2014); DeKalb Cnty. v. FHFA, 741 F.3d 795 (7th Cir. 2013); County of Oakland v. FHFA, 716 F.3d 935 (6th Cir. 2013), cert. denied 134 S. Ct. 394 (2013).
- Prevailed in multiple appeals in the Sixth Circuit Court of Appeals, as well as in numerous other federal district courts (and one state appellate court), in actions seeking to assert constitutional claims against Fannie Mae and Freddie Mac. The courts held that the Enterprises are not government actors for purposes of takings, due process, and other constitutional claims: Rush v. Fed. Home Loan Mortg. Corp., 792 F.3d 600 (6th Cir. 2015); Garcia v. Fed. Nat. Mortg. Ass'n, 782 F.3d 736 (6th Cir. 2015); Heibel v. Fed. Nat. Mortg. Ass'n, 581 F. App'x 543, 544 (6th Cir. 2014); Bernard v. Fed. Nat. Mortg. Ass'n, 587 Fed. App'x 266 (6th Cir. Sept. 29, 2014); Rubin v. Fed. Nat. Mortg. Ass'n, 587 Fed. App'x 273 (6th Cir. Sept. 29, 2014); Fed. Home Loan Mortg. Corp. v. Gaines, 589 Fed. App'x 314 (6th Cir. Sept. 30, 2014); Federal Home Loan Mortg. Corp. v. Montague, No. 1:13cv1162, 2014 WL 4313633 (W.D. Mich. Sept. 2, 2014); Colyer v. Federal Home Loan Mortg. Corp., No. 13-10425, 2014 WL 1048009 (E.D. Mich. Mar. 18, 2014); Narra v. Fed. Nat. Mortg. Ass'n, No. 2:13cv12282, 2014 WL 505571 (E.D. Mich. Feb. 7, 2014); In re Kapla, 2014 WL 346019 (E.D. Mich. Jan. 30, 2014); Dias v. Fed. Nat. Mortg. Ass'n, 990 F.Supp.2d 1042 (D. Hawaii 2013); Fed. Home Loan Mortgage Ass'n v. Kelley, 858 N.W.2d 69 (Mich. Ct. App. 2014).
- Obtained dismissal on behalf of FHFA of a False Claims Act qui tam action alleging that Fannie Mae's failure to pay New York's mortgage recordation tax embodied a so-called "reverse false claim." The Court held that Fannie Mae's and FHFA's federal statutory exemptions from state taxation precluded imposition of the tax. See Knight v. Fed. Nat. Mortgage Ass'n, No. 1:13-CV-0183, 2014 WL 4901617 (N.D.N.Y. Sept. 30, 2014).
- Obtained victory on behalf of FHFA before the Virginia Supreme Court, which ruled in FHFA's favor in a certified-question proceeding concerning the authority of county clerks to enforce Virginia's transfer taxes. See Small v. Fed. Nat. Mortgage Ass'n, 286 Va. 119, 747 S.E.2d 817 (2013).
- Prevailed at the trial and appellate levels on behalf of FHFA in multiple lawsuits concerning so-called PACE programs, with the courts upholding FHFA's ability as conservator to direct Fannie Mae and Freddie Mac not to purchase PACE loans (aimed at financing energy-efficient home improvements) on the ground that FHFA believed those loans were too risky. County of Sonoma v. FHFA, 710 F.3d 987 (9th Cir. 2013); Leon Cnty., Fla. v. FHFA, 700 F.3d 1273 (11th Cir. 2012); Town of Babylon v. FHFA, 699 F.3d 221 (2d Cir. 2012).
Appellate: Courts of Appeals (2016-2018)
Financial Services: Regulatory (2011, 2017)
- JD, Washington University School of Law, 1979
- BA, University of Rochester, 1976
- District of Columbia
- New York
Senior Attorney, Enforcement and Compliance Division, Office of the Comptroller of the Currency
Member, Executive Committee, Board of Trustees of Washington University in St. Louis
Chairman, Washington University School of Law National Council