This note proposes that the Fifth Circuit's opinion in handling these claims provides a better rationale than the Ninth Circuit's opinion. The first factor examined is the degree of control exercised by the corporate officer(s) who had been aware of the financial woes that the outside professionals allegedly overlooked. The second factor discussed is whether the insiders' misconduct was for or against the institution. Finally, policy considerations will be evaluated to determine whether the FDIC should be accorded the special status that immunizes it from defenses which could have been asserted against the failed thrift through imputation from the thrift's internal wrongdoers. On remand from the United States Supreme Court, the Ninth Circuit should adhere to the Fifth Circuit's rationale.
Note, Judicial Construction in the Wake of the Nation's S & (and) L Crisis: Build a Better Status and the FDIC Will Beat a Path to Your Courtroom, 42 Clev. St. L. Rev. 137 (1994)