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Published opinion

Before NEWMAN, RADER, and BRYSON, Circuit Judges.

This is one of the last of the “Winstar” cases arising out of the savings and loan crisis of the late 1970s and early 1980s. See United States v. Winstar Corp., 518 U.S. 839 (1996). During those years, high interest rates and inflation placed hundreds of savings and loan institutions, or “thrifts,” in severe financial distress. In order to prevent the thrifts’ collapse and the resulting burden on the federal government, which insured many of the thrifts’ depositors, the government developed a plan to induce healthy financial institutions to take over the failing thrifts through so-called “supervisory mergers.” Because the troubled thrifts were unattractive investments on their own, the government offered significant incentives to the acquiring institutions. Those incentives included cash and cash substitutes in the form of what was called “supervisory goodwill.” Supervisory goodwill was an accounting credit equal to the negative net worth of the thrift. Pursuant to the supervisory merger agreements, the acquiring institution was permitted to treat supervisory goodwill as an asset and to amortize the goodwill over a period of many years. That arrangement enabled the acquiring institution to satisfy its regulatory capital requirements while working to integrate and rehabilitate the failing thrift.

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