United States Court of Appeals
for the Federal Circuit
__________________________
HOMER J. HOLLAND AND STEVEN BANGERT (CO-
EXECUTOR OF THE ESTATE OF HOWARD R. ROSS),
Plaintiff-Appellees,
AND
FIRST BANK,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2009-5095, -5097
__________________________
Appeal from the United States Court of Federal
Claims in 95-CV-524, Judge George W. Miller.
__________________________
Decided: October 12, 2010
__________________________
DAVID B. BERGMAN, Arnold & Porter LLP, of Washing-
ton, DC, argued for plaintiffs-appellees and plaintiff-cross
appellant. With him on the brief were HOWARD N. CAYNE,
MICHAEL A. JOHNSON, JOSHUA P. WILSON and BENJAMIN
H. WALLFISCH.
HOLLAND v. US 2
JOHN H. ROBERSON, Trial Attorney Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
appellant. With him on the brief were MICHAEL F. HERTZ,
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and KENNETH M. DINTZER, Assistant Director.
__________________________
Before RADER, Chief Judge, LOURIE and PROST, Circuit
Judges.
PROST, Circuit Judge.
In this Winstar case, the United States (“the Govern-
ment”) appeals the United States Court of Federal
Claims’ grant of summary judgment holding the Govern-
ment liable to Plaintiffs Homer J. Holland (“Holland”);
Steven Bangert, as co-executor of the estate of Howard R.
Ross (“Ross”); and First Bank (collectively, “Plaintiffs”) for
breach of contract, as well as the court’s award of $18.6
million in damages to Plaintiff First Bank. First Bank
cross-appeals the denial of its request for lost profit
damages.
We reverse the Court of Federal Claims’ holding that
the Government is liable for breach of contract because
we conclude that a settlement agreement between the
parties extinguished all of Plaintiffs’ claims against the
Government arising out of the contracts at issue. In light
of our conclusion on liability, we do not reach the damages
issues raised in the Government’s appeal and First
Bank’s cross-appeal.
3 HOLLAND v. US
BACKGROUND
A
In response to the savings and loan crisis of the early
1980s, the Federal Home Loan Bank Board (“Bank
Board”), the Government agency that regulated all feder-
ally insured thrifts, and the Federal Savings and Loan
Insurance Corporation (“FSLIC”), an agency under the
Bank Board’s authority that insured thrift deposits,
sought healthy thrifts to take over ailing thrifts. To
encourage such transactions, the Bank Board and FSLIC
commonly offered the acquiring thrifts favorable regula-
tory treatment, including supervisory goodwill 1 and
capital credits. 2 This case arises out of two such Govern-
ment-assisted acquisitions of failing thrifts.
The first transaction (“River Valley I Acquisition”) in-
volved the acquisition of three insolvent Illinois thrifts:
(1) Galva Federal Savings and Loan Association of Galva,
Illinois (“Galva”), (2) Mutual Savings and Loan Associa-
1 Supervisory goodwill is the excess of the purchase
price over the fair market value of the acquired thrift’s
identifiable assets. The Bank Board and FSLIC often
permitted an acquiring thrift to count supervisory good-
will towards the thrift’s regulatory capital requirements
and to amortize the goodwill over long periods of time.
United States v. Winstar Corp., 518 U.S. 839, 848-51
(1996); S. Cal. Fed. Sav. & Loan Ass’n v. United States,
422 F.3d 1319, 1325 (Fed. Cir. 2005).
2 The capital credit incentive involved FSLIC mak-
ing a cash contribution to the acquiring thrift and permit-
ting the acquiring thrift to count the FSLIC contribution
as credit to its regulatory capital. Winstar, 518 U.S. at
853; S. Cal., 422 F.3d at 1325.
HOLLAND v. US 4
tion of Canton, Illinois (“Mutual”), and (3) Home Federal
Savings and Loan Association of Peoria, Illinois (“Home”).
The transaction provided for the merger of Galva and
Mutual with and into Home, the conversion of Home into
River Valley Savings Bank, F.S.B. (“River Valley I”), and
Holland and Ross’s acquisition of all the voting stock of
River Valley I. An Assistance Agreement (“River Valley I
Assistance Agreement”) detailed the terms of the acquisi-
tion, specifying that FSLIC would provide River Valley I
with an initial cash contribution of approximately $34.2
million, purchase 50,000 preferred shares of River Valley
I for $5 million, and indemnify certain losses, and that
River Valley I would provide a subordinated debenture of
$4.6 million. The agreement further permitted River
Valley I to count $8 million of FSLIC’s initial cash contri-
bution and $4.6 million of the subordinated debenture as
regulatory capital.
On July 28, 1988, the Bank Board, as operating head
of FSLIC, issued Resolution 88-638, in which the Bank
Board approved the River Valley I Assistance Agreement
and authorized FSLIC to execute the agreement. The
“Accounting” section of Resolution 88-638 provided that
River Valley I must report “to the Bank Board and the
FSLIC” in accordance with generally accepted accounting
principles (“GAAP”) with two exceptions: (1) River Valley
I may credit $8 million of FSLIC’s initial cash contribu-
tion and $4.6 million of the subordinated debenture to its
regulatory capital account “in accordance with the for-
bearance letter authorized pursuant to this Resolution”
and (2) River Valley I may amortize “[t]he value of any
unidentifiable intangible assets resulting from the appli-
cation of push-down accounting . . . over a period not in
excess of twenty-five (25) years by the straight line
method.” The Resolution further authorized and directed
5 HOLLAND v. US
an executive of the Bank Board to send River Valley I a
letter regarding regulatory forbearances.
On the same day, the Bank Board sent a letter to Hol-
land, as President and Chief Executive Officer of River
Valley I (“River Valley I Forbearance Letter”). The River
Valley I Forbearance Letter “granted” River Valley I
several regulatory forbearances, including that River
Valley I may: (1) credit a portion of FSLIC’s initial cash
contribution “not to exceed $8.0 million” to its regulatory
capital and (2) amortize “the value of any intangible asset
resulting from the application of push-down accounting in
accounting for the purchases . . . over a period not to
exceed 25 years by the straight line method.”
On July 29, 1988, River Valley I, Holland, Ross, and
FSLIC executed the River Valley I Assistance Agreement.
The Bank Board did not sign the River Valley I Assis-
tance Agreement. The agreement, however, contained an
integration clause, Section 23, which provided that:
[t]his Agreement . . . constitutes the entire agree-
ment between the parties and supersedes all prior
agreements and understandings of the parties in
connection with it, excepting only . . . any resolu-
tions or letters concerning the Transaction or this
Agreement issued by the Bank Board or the
[FSLIC] in connection with the approval of the
Transaction and this Agreement.
The second transaction (“River Valley II Acquisition”)
involved the merger of Republic Savings and Loan Asso-
ciation of South Beloit, Illinois (“Republic”) with and into
River Valley Savings Bank of Rock Falls, Illinois (“River
Valley II”). Holland and Ross were the sole shareholders
of River Valley II. An Assistance Agreement specified the
HOLLAND v. US 6
terms of the acquisition (“River Valley II Assistance
Agreement”) (collectively, with the River Valley I Assis-
tance Agreement, “the Assistance Agreements”), including
that FSLIC would indemnify River Valley II for certain
losses and make a $16.6 million initial cash contribution
to River Valley II, and that River Valley II could credit $5
million of this initial cash contribution as regulatory
capital.
On July 27, 1988, the Bank Board issued Resolution
88-612, which, as with Resolution 88-638 for the River
Valley I Acquisition, approved the River Valley II Assis-
tance Agreement, authorized FSLIC to execute the
agreement, and authorized and directed an executive of
the Bank Board to send River Valley II a forbearance
letter. The “Accounting” section of Resolution 88-612
provided that River Valley II must use GAAP “except that
$5[ million] of the initial cash contribution by the FSLIC
to River Valley [II] . . . shall be credited to the regulatory
capital account of River Valley [II] and shall constitute
regulatory capital.”
On July 29, 1988, the Bank Board sent a letter to Hol-
land as Vice Chairman of River Valley II (“River Valley II
Forbearance Letter”). The River Valley II Forbearance
Letter “granted” River Valley II approval “to issue and
include in its regulatory capital . . . a subordinated deben-
ture in the aggregate principal amount not to exceed $2[
million]” provided that certain conditions were satisfied.
On July 29, 1988, River Valley II and FSLIC executed
the River Valley II Assistance Agreement. The Bank
Board did not sign the agreement. The River Valley II
Assistance Agreement included an integration clause
identical to that in the River Valley I Assistance Agree-
ment.
7 HOLLAND v. US
On May 18, 1989, the Bank Board sent a letter to Hol-
land as Vice Chairman of River Valley II (“River Valley II
Forbearance Confirmation Letter”) to “confirm[] the
understanding that the Bank Board and the FSLIC will
waive or forbear from taking action to enforce certain
requirements to River Valley [II],” including that River
Valley II: (1) may credit to its regulatory capital a portion
of FSLIC’s initial cash contribution “not to exceed $5.0
million” and (2) may amortize “the value of any intangible
asset, resulting from the application of push-down ac-
counting in accounting for the purchase . . . over a period
not to exceed 25 years by the straight line method.”
B
On August 9, 1989, Congress enacted the Financial
Institutions Reform, Recovery and Enforcement Act of
1989 (“FIRREA”), Pub. L. No. 101-73, 103 Stat. 183, to
prevent the collapse of the thrift industry. Winstar, 518
U.S. at 856. FIRREA abolished FSLIC and created a new
thrift deposit insurance fund, the FSLIC Resolution Fund
(“FRF”), under the Federal Deposit Insurance Corporation
(“FDIC”). Id.; Admiral Fin. Corp. v. United States, 329
F.3d 1372, 1374 (Fed. Cir. 2003). With FIRREA’s pas-
sage, the assets of FSLIC were placed in the FRF. Admi-
ral, 329 F.3d at 1374.
FIRREA also replaced the Bank Board with the Office
of Thrift Supervision (“OTS”), an office of the Treasury
Department with the responsibility of regulating all
federally insured savings associations. Winstar, 518 U.S.
at 856. FIRREA obligated the OTS to “prescribe and
maintain uniformly applicable capital standards for
savings associations” in accordance with new stricter
capital requirements. Id. at 856-57. The OTS issued
regulations implementing FIRREA’s capital standards
HOLLAND v. US 8
and directed that all savings associations should elimi-
nate capital and accounting forbearances in determining
their compliance with the new capital requirements. Id.
at 857.
As such, FIRREA prohibited River Valley I and River
Valley II from crediting FSLIC’s initial cash contribution
and the subordinated debt toward their regulatory capital
requirements pursuant to the terms of the Assistance
Agreements.
C
On March 31, 1991, River Valley I acquired River Val-
ley II (the resulting entity is referred to as “River Valley
III”). A few months later, on August 14, 1991, River
Valley III, Holland, Ross, and the FDIC “in its capacity as
manager of the . . . FRF” executed a Settlement Agree-
ment (“Settlement Agreement”), which terminated the
Assistance Agreements. The Settlement Agreement
provided that River Valley III would pay the FDIC as
manager of the FRF $50,000 as “full satisfaction” of River
Valley III’s obligation to share tax benefits under the
Assistance Agreements, which “shall fully discharge River
Valley [III] from any obligation or liability in connection
therewith.” In exchange, the FDIC would pay River
Valley III nearly $3.3 million, which
shall constitute full satisfaction of any and all re-
maining payments or contributions due or to be-
come due under the Assistance Agreements, and
shall fully discharge the [FDIC in its capacity as
manager of the FRF] and the FRF from any obli-
gation or liability in connection therewith.
9 HOLLAND v. US
The Settlement Agreement included an “Accord and
Satisfaction” clause, Section 5 of the agreement, which
provided:
[P]erformance by each party of its respective obli-
gations under this Settlement Agreement shall ef-
fect a complete accord and satisfaction of any and
all obligations and liabilities of such party under
the Assistance Agreements and, thenceforth, such
party shall be fully discharged from any obligation
or liability of any kind in connection therewith,
including, without limitation, any and all actions,
causes of action, suits, debts, sums of money,
bonds, covenants, agreements, promises, dam-
ages, judgments, claims, and demands whatso-
ever, known or unknown, suspected or
unsuspected, at law or in equity.
The “Third Party Beneficiaries” clause, Section 8(k) of the
Settlement Agreement, provided that “[e]xcept as ex-
pressly provided in this Settlement Agreement, no provi-
sion of this Settlement Agreement is intended to benefit
any persons other than the parties hereto.”
On January 4, 1995, First Bank acquired River Valley
III. First Bank is thus the successor-in-interest of River
Valley I, River Valley II, and River Valley III.
D
On August 8, 1995, Plaintiffs Holland and Ross filed
this action against the Government for breach of contract,
asserting that the Government’s enforcement of FIRREA
violated its contractual obligations under the Assistance
Agreements. Holland v. United States (“Counterclaim
Opinion”), 86 Fed. Cl. 681, 687 (2009). The Court of
HOLLAND v. US 10
Federal Claims granted partial summary judgment in
favor of Plaintiffs Holland and Ross as to the Govern-
ment’s liability for breach of the Assistance Agreements.
Holland v. United States, 57 Fed. Cl. 540, 570 (2003).
Plaintiff First Bank was later joined as a plaintiff in
the Third Amended Complaint. Id. The Court of Federal
Claims then granted summary judgment in favor of First
Bank on the issue of liability for breach of express con-
tract as to both Assistance Agreements, and denied the
Government’s cross-motion for summary judgment on
liability as to its affirmative defense of accord and satis-
faction based on the Settlement Agreement. Holland v.
United States (“Liability Opinion”), 74 Fed. Cl. 225 (2006).
The case proceeded to a bench trial on damages, after
which the Court of Federal Claims awarded First Bank
$18.6 million in damages for breach of contract. Holland
v. United States (“Damages Opinion”), 83 Fed. Cl. 507,
509-10 (2008). Upon motion by Plaintiffs, the Court of
Federal Claims then dismissed the Government’s coun-
terclaim asserting breach of a covenant not to sue and
granted summary judgment in favor of Plaintiffs on the
Government’s counterclaim asserting entitlement to a
setoff. Counterclaim Opinion, 86 Fed. Cl. at 684-85.
The Government timely appealed the Court of Federal
Claims’ liability and damages determinations to this
Court. First Bank timely filed a cross-appeal challenging
the denial of its request for lost profit damages. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
11 HOLLAND v. US
DISCUSSION
This case, one of the last of the Winstar cases, pre-
sents an unusual factual situation: Plaintiffs 3 entered
into the Assistance Agreements with a sole Government
agency, FSLIC, and then executed a broad Settlement
Agreement with the successor to this Government agency,
the FDIC as manager of the FRF. Nevertheless, Plaintiffs
proceeded to maintain causes of action against the Gov-
ernment for breach of the Assistance Agreements and the
Court of Federal Claims found the Government liable for
breach of these agreements on summary judgment.
There is no dispute that FSLIC entered into the As-
sistance Agreements and that Plaintiffs executed the
Settlement Agreement with FSLIC’s successor, the FDIC
as manager of the FRF. The issues for us, therefore, are
whether the Bank Board, in light of the Bank Board
resolutions and forbearance letters that were incorpo-
rated into the Assistance Agreements, had any contrac-
tual obligations under the Assistance Agreements, as well
as the effect of the Settlement Agreement on any such
obligations and liabilities of the Bank Board’s successor,
the OTS. We agree with the Court of Federal Claims that
the Bank Board had contractual obligations to Plaintiffs
3 Plaintiff First Bank did not execute the Assis-
tance Agreements and the Settlement Agreement. How-
ever, River Valley I acquired River Valley II and the
resulting entity, River Valley III, was later acquired by
First Bank. Under the “Successors and Assigns” clause of
the Assistance Agreements and the Settlement Agree-
ment, the agreements are binding on and inure to the
benefit of First Bank as the successor to River Valley I,
River Valley II, and River Valley III. Therefore, for
convenience, we refer to “Plaintiffs’” execution of the
Assistance Agreements and the Settlement Agreement.
HOLLAND v. US 12
stemming from promises made in its resolutions and
forbearance letters, which were integrated into and
became part of the Assistance Agreements. Yet we re-
verse the Court of Federal Claims’ holding that the Gov-
ernment is liable for breach of the Assistance Agreements
because we conclude that, in light of the Settlement
Agreement, Plaintiffs’ claims are barred on two alterna-
tive grounds. First, the Settlement Agreement, which
released all causes of action against the FDIC as manager
of the FRF, effected a release of any causes of action
against its co-obligor, the OTS, in connection with the
Assistance Agreements. Alternatively, we conclude that
the Settlement Agreement constituted a complete accord
and satisfaction of the obligations and liabilities of the
FDIC as manager of the FRF, thereby discharging any
causes of action against the OTS arising out of the Assis-
tance Agreements.
“We review a grant of summary judgment by the
Court of Federal Claims de novo . . . .” Cal. Fed. Bank,
FSB v. United States, 245 F.3d 1342, 1346 (Fed. Cir.
2001). “Whether a contract exists is a mixed question of
law and fact.” Id. We review the Court of Federal
Claims’ legal conclusions de novo and review its findings
of fact for clear error. Id. “Contract interpretation,”
however, “is a question of law, which we review de novo.”
Id.
We first address the Bank Board’s contractual obliga-
tions pursuant to the resolutions and forbearance letters
it issued in connection with the River Valley I Acquisition
and the River Valley II Acquisition. We have repeatedly
held that “mere approval of [a] merger” by the Bank
Board does not amount to a contract because such ap-
proval is regulatory, not contractual, in nature. Anderson
v. United States, 344 F.3d 1343, 1357 (Fed. Cir. 2003); D
13 HOLLAND v. US
& N Bank v. United States, 331 F.3d 1374, 1378-79 (Fed.
Cir. 2003). We have, however, recognized that Bank
Board resolutions and forbearance letters form contrac-
tual obligations where the Bank Board goes “beyond a
mere statement of regulatory approval” and evidences
“manifest assent” to accept and be bound by the terms of
the thrift’s offer. Anderson, 344 F.3d at 1355-57; see First
Commerce Corp. v. United States, 335 F.3d 1373, 1378
(Fed. Cir. 2003). Indeed, even in the absence of an assis-
tance agreement, we have held that Bank Board resolu-
tions and letters were sufficient to establish the Bank
Board’s “contractual agreement” regarding “favorable
accounting treatment.” Fifth Third Bank of W. Ohio v.
United States, 402 F.3d 1221, 1231-32 (Fed. Cir. 2005); see
Cal. Fed. Bank, 245 F.3d at 1347.
Here, the Bank Board’s resolutions and forbearance
letters are not merely regulatory approvals of the relevant
acquisitions. Instead, portions of these documents evi-
dence the Bank Board’s manifest assent to provide the
favorable accounting treatment sought by River Valley I
and River Valley II in exchange for their acquisition of
failing thrifts. See Fifth Third Bank, 402 F.3d at 1231;
First Commerce Corp., 335 F.3d at 1381-82. With respect
to the River Valley I Acquisition, the Bank Board issued
Resolution 88-638 in which the Bank Board not only
approved the River Valley I Assistance Agreement but
also agreed, in the “Accounting” section of the resolution,
that River Valley I must “report to the Bank Board and
the FSLIC[] in accordance with [GAAP]” with two excep-
tions: (1) River Valley I may credit $8 million of FSLIC’s
initial cash contribution and $4.6 million of the subordi-
nated debenture to its “regulatory capital account . . . in
accordance with the forbearance letter authorized pursu-
ant to this Resolution” and (2) River Valley I may amor-
tize “[t]he value of any unidentifiable intangible assets
HOLLAND v. US 14
resulting from the application of push-down accounting . .
. over a period not in excess of twenty-five (25) years by
the straight line method.” (emphasis added). In the River
Valley I Forbearance Letter, the Bank Board similarly
“granted” River Valley I certain regulatory forbearances,
including that: (1) River Valley may credit a portion of
FSLIC’s initial cash contribution “not to exceed $8.0
million” to its regulatory capital and (2) “[f]or purposes of
reporting to the Bank Board, the value of any intangible
asset resulting from the application of push-down ac-
counting in accounting for the purchases, may be amor-
tized by River Valley [I] over a period not to exceed 25
years by the straight line method.” (emphasis added). In
other cases with resolutions and forbearance letters that
included language regarding amortization identical to
that featured in Resolution 88-638 and the River Valley I
Forbearance Letter, we have recognized that “[t]he Bank
Board made a manifest contractual promise . . . agreeing
to permit extended amortization of goodwill.” Anderson,
344 F.3d at 1356-58 (citing Winstar, 64 F.3d at 1544,
aff’d, 518 U.S. 839 (1996); First Commerce Corp., 335 F.3d
at 1378). In addition to promises of extended amortiza-
tion, these portions of the resolution and the forbearance
letter reflect the Bank Board’s express contractual prom-
ises to permit River Valley I, in reporting to the Bank
Board, to depart from GAAP in accounting for its regula-
tory capital, including allowing an $8 million capital
forbearance and a $4.6 million subordinated debt forbear-
ance. See S. Cal., 422 F.3d at 1326 (“The Forbearance
Letter included the [Bank Board]’s promise that [the
acquiring thrift] could depart from GAAP in accounting
for its capital credits . . . .”); see also Winstar, 518 U.S. at
890. As such, through Resolution 88-638 and the River
Valley I Forbearance Letter, the Bank Board created
contractual obligations to provide River Valley I with
favorable accounting treatment, including capital credits,
15 HOLLAND v. US
a subordinated debt forbearance, and amortization of
goodwill.
As to the River Valley II Acquisition, the Bank Board
made manifest contractual promises to River Valley II
regarding preferential accounting treatment with similar
contractual language in Resolution 88-612 and the River
Valley II Forbearance Letter. Thus, the resolutions and
forbearance letters that the Bank Board issued in connec-
tion with the River Valley I Acquisition and the River
Valley II Acquisition manifested the Bank Board’s accep-
tance of and intent to be bound by the favorable account-
ing treatment enumerated in these documents, including
capital forbearances, subordinated debt forbearances, and
amortization of goodwill.
These Bank Board resolutions and forbearance let-
ters, containing the Bank Board’s contractual promises
regarding favorable accounting treatment, were expressly
incorporated into the Assistance Agreements. Specifi-
cally, each Assistance Agreement included an integration
clause, section 23, which provided:
This Agreement . . . constitutes the entire agree-
ment between the parties and supersedes all prior
agreements and understandings of the parties in
connection with it, excepting only . . . any resolu-
tions or letters concerning the Transaction or this
Agreement issued by the Bank Board or the
[FSLIC] in connection with the approval of the
Transaction and this Agreement.
In other Winstar cases, we have recognized that lan-
guage identical to that in the integration clause of the
Assistance Agreements explicitly incorporated the Bank
Board’s resolutions and forbearance letters, making the
HOLLAND v. US 16
resolutions and letters “part of the Assistance Agree-
ment,” S. Cal., 422 F.3d at 1329, which is a “single bind-
ing contract,” Hansen Bancorp, Inc. v. United States, 367
F.3d 1297, 1304 (Fed. Cir. 2004); see Franklin Fed. Savs.
Bank v. United States, 431 F.3d 1360, 1366 n.4 (Fed. Cir.
2005); Cal. Fed. Bank, 245 F.3d at 1345; Winstar, 64 F.3d
at 1541-42. Similarly, the Supreme Court, in the Winstar
plurality opinion, concluded that the “broad integration
clauses” of the assistance agreements at issue, which in
all relevant aspects are nearly identical to that featured
in the Assistance Agreements in this case, “incorporate[d]
the[] terms” of “the Bank Board resolutions [and
f]orbearance [l]etters” into the assistance agreements.
Winstar, 518 U.S. at 909-10; see id. at 862-67. As such, in
light of the integration clauses of the Assistance Agree-
ments, the terms of the relevant Bank Board resolutions
and forbearance letters were integrated into and became
part of each Assistance Agreement, forming a single,
unified agreement.
Having concluded that the Bank Board made contrac-
tual promises to Plaintiffs in its resolutions and forbear-
ance letters and that the terms of these resolutions and
letters were incorporated into the Assistance Agreements,
we must address the effect of integrating these documents
into the Assistance Agreements, which were executed by
FSLIC but not the Bank Board. We agree with the Court
of Federal Claims that this incorporation did not elimi-
nate the Bank Board’s contractual promises to River
Valley I and River Valley II, as the Government argues it
did. Counterclaim Opinion, 86 Fed. Cl. at 690-91; Liabil-
ity Opinion, 74 Fed. Cl. at 252-55; Appellant’s Br. 16, 26-
29. Instead, the Court of Federal Claims properly con-
cluded that the incorporation of the Bank Board’s contrac-
tual obligations from its resolutions and forbearance
letters into the Assistance Agreements rendered the Bank
17 HOLLAND v. US
Board and FSLIC joint promisors or co-obligors with
respect to the promised favorable accounting treatment,
including the capital forbearances, subordinated debt
forbearances, and amortization periods. Counterclaim
Opinion, 86 Fed. Cl. at 690-91; Liability Opinion, 74 Fed.
Cl. at 252-55; see Winstar, 518 U.S. at 868 (concluding
that, in light of assistance agreements and the Bank
Board resolutions and letters, “‘the Bank Board and the
FSLIC were contractually bound to recognize the supervi-
sory goodwill and the amortization periods reflected’ in
the agreements between the parties”) (emphasis added);
id. at 890 (“[T]he Bank Board and FSLIC had ample
statutory authority to . . . promise to permit respondents
to count supervisory goodwill and capital credits toward
regulatory capital and to pay respondents’ damage if that
performance became impossible.”) (emphasis added).
Under FIRREA, the obligations of the Bank Board passed
to the OTS as the Bank Board’s successor and the liabili-
ties of FSLIC passed to the FRF under the management
of the FDIC. See Winstar, 518 U.S. at 856; Admiral, 329
F.3d at 1374; Counterclaim Opinion, 86 Fed. Cl. at 690-
91; Liability Opinion, 74 Fed. Cl. at 252-55. As such,
after FIRREA, the OTS and the FDIC as manager of the
FRF were co-obligors as to the promised favorable ac-
counting treatment in the Assistance Agreements.
In light of the above analysis, the critical issue, on
which this case turns, is how Plaintiffs’ Settlement
Agreement with one co-obligor, the FDIC as manager of
the FRF, impacted Plaintiffs’ claims against the other co-
obligor, the OTS. The Court of Federal Claims, on sum-
mary judgment, found the Government liable for breach
of the Assistance Agreements and rejected the Govern-
ment’s accord and satisfaction defense, holding that the
Settlement Agreement showed that Plaintiffs only in-
tended to discharge claims against the FDIC as manager
HOLLAND v. US 18
of the FRF, not other Government agencies, such as the
OTS. Holland v. United States (“Reconsideration Opin-
ion”), 75 Fed. Cl. 492, 496-98 (2007); Liability Opinion, 74
Fed. Cl. at 247-55.
We must first clarify that release and accord and sat-
isfaction are separate contractual defenses. See Koules v.
Euro-Am. Arbitrage, Inc., 689 N.E.2d 411, 414 (Ill. App.
Ct. 1998); Holman v. Simborg, 504 N.E.2d 967, 969 (Ill.
App. Ct. 1987). The parties on appeal, as well as the
Court of Federal Claims, interchanged the terms without
reference to the distinctions between them. Reconsidera-
tion Opinion; Liability Opinion, 74 Fed. Cl. at 247-255;
Appellant’s Br. 17 (“[P]laintiffs’ complete accord and
satisfaction with the FDIC concerning any and all claims
connected with the Assistance Agreements, effected a
similar release of the OTS.”) (emphases added), id. 30-31;
Appellees’ Br. 27-28 (“Because neither the OTS nor the
United States as a whole was released from any claim
under the [Settlement] Agreement, the Government’s
accord and satisfaction defense fails.”) (emphases added).
“A release is a contract whereby a party abandons a claim
or relinquishes a right that could be asserted against
another.” Koules, 689 N.E.2d at 414; see Hagene v. Derek
Polling Constr., 902 N.E.2d 1269, 1272 (Ill. App. Ct.
2009). In an accord and satisfaction, however, a claim is
discharged because some performance other than that
which was claimed to be due is accepted as full satisfac-
tion of the claim. O’Connor v. United States, 308 F.3d
1233, 1240 (Fed. Cir. 2002); see Koules, 689 N.E.2d at 414;
Holman, 504 N.E.2d at 969.
Although release and accord and satisfaction are dis-
tinct defenses, an agreement may constitute both a re-
lease and an accord and satisfaction, either of which may
bar future claims. Koules, 689 N.E.2d at 414, 417. We
19 HOLLAND v. US
conclude that the Settlement Agreement constituted a
release and, alternatively, an accord and satisfaction of
all claims arising out of the Assistance Agreements
against the FDIC as manager of the FRF, thereby releas-
ing and discharging its co-obligor, the OTS. Because
Plaintiffs’ causes of action for breach of the Assistance
Agreement are barred on both grounds, we reverse the
Court of Federal Claims’ holding that the Government is
liable for breach of the agreements. We address each in
turn.
A
We first consider the Settlement Agreement to the ex-
tent it released Plaintiffs’ claims. On appeal, Plaintiffs
concede that the Settlement Agreement released the
FDIC as manager of the FRF. Appellees’ Br. 29. The
issues to be addressed are thus whether the release
covered all claims arising out of the Assistance Agree-
ment and whether the release discharged not only the
FDIC as manager of the FRF but also its co-obligor, the
OTS, and the Government as a whole.
Plaintiffs argue that the text of the Settlement
Agreement, which does not reference the Government’s
regulatory capital promises, and the evidence surround-
ing its negotiation show that Plaintiffs only released
claims arising out of the executory provisions, i.e., the
financial assistance or payment provisions, of the Assis-
tance Agreements and did not release the regulatory
capital breach claims at issue in this case. Appellees’ Br.
22-23, 28, 36-38. Like the Court of Federal Claims, we
conclude that under the plain and unambiguous language
of the Settlement Agreement, Plaintiffs completely re-
leased all claims against the FDIC as manager of the FRF
“whether they result from a breach of the executory
HOLLAND v. US 20
promises or a breach of the forbearance promises, so long
as th[ey] are in connection with the Assistance Agree-
ments.” Liability Opinion, 74 Fed. Cl. at 242; see id. at
238-47.
It is true that the Settlement Agreement never ex-
pressly refers to the regulatory forbearances promised in
the Assistance Agreements. Nevertheless, the express
terms of the Settlement Agreement release the FDIC as
Manager of the FRF from “any obligation or liability of
any kind in connection” with the Assistance Agreements,
“including without limitation, any and all actions, causes
of action, [and] suits.” (emphases added). If the provi-
sions of a release are “clear and unambiguous, they must
be given their plain and ordinary meaning.” Bell BCI Co.
v. United States, 570 F.3d 1337, 1341 (Fed. Cir. 2009).
Here, the terms of the release in the Settlement Agree-
ment clearly and unambiguously establish that Plaintiffs
released all claims against the FDIC as manager of the
FRF in connection with the Assistance Agreements, not
merely claims arising out of the executory provisions of
the Assistance Agreements. 4 See id. (concluding that the
district court erred in holding that plaintiff did not re-
lease certain types of claims because the language of the
release “plainly” and “unambiguously” “released the
government from any and all liability”); cf. Bluebonnet
4 Because the terms of the release in the Settlement
Agreement are clear, we do not rely on extrinsic evidence
regarding the extent of the release. We note, however,
that there is record evidence suggesting that the Settle-
ment Agreement was intended to release “all claims
arising . . . under” the Assistance Agreements, including
claims “which by their terms survive the termination of
the [Assistance ]Agreements,” such as the regulatory
forbearance promises.
21 HOLLAND v. US
Savs. Bank, F.S.B. v. United States, 266 F.3d 1348, 1354-
55 (Fed. Cir. 2001) (“The settlement agreement’s mutual
release excepted ‘all claims of [the plaintiffs] to the extent
they relate to alleged breaches of contract relating to
capital forbearances, dividend forbearances, and dividend
payments, or takings arising from the foregoing.’”). The
broad release language therefore encompasses claims
arising out of both the regulatory and executory provi-
sions of the Assistance Agreements. 5
Further, like the Court of Federal Claims, we note
that the broad release language in the Settlement Agree-
ment distinguishes this case from our decisions in Old
Stone Corp. v. United States, 450 F.3d 1360 (Fed. Cir.
2006) and Winstar Corp. v. United States, 64 F.3d 1531
(Fed. Cir. 1995), aff’d, 518 U.S. 839 (1996), as well as the
Court of Federal Claims’ decision in Statesman Savings
Holding Corp. v. United States, 41 Fed. Cl. 1 (1998), on
which Plaintiffs rely for their argument that the Settle-
ment Agreement only covered claims arising out of the
executory provisions of the Assistance Agreements. See
5 We reiterate our conclusion that the integration
clause of the Assistance Agreements incorporated the
terms of the Bank Board’s resolutions and forbearance
letters, including the promised regulatory forbearances,
into the Assistance Agreements. We further note that the
capital forbearances are specifically enumerated in the
text of the Assistance Agreements, and the subordinated
debt forbearance is included in the River Valley I Assis-
tance Agreement. Therefore, as the Court of Federal
Claims concluded, the contractual promises made in the
resolutions and forbearance letters are obligations under
the Assistance Agreements themselves and, at a mini-
mum, are obligations “in connection” with the Assistance
Agreements. Liability Opinion, 74 Fed. Cl. at 244-46.
The release thus extends to claims arising from the
contractual obligations in these documents.
HOLLAND v. US 22
Liability Opinion, 74 Fed. Cl. at 238-40; Appellees’ Br. 38-
42. In these cases, the assistance agreement at issue
terminated as a result of the termination clause of the
assistance agreement itself, which referenced only the
executory provisions of the agreement, or a limited termi-
nation agreement that merely accelerated the termination
clause of the assistance agreement. See Old Stone, 450
F.3d at 1369; Winstar, 64 F.3d at 1542; Statesman, 41
Fed. Cl. at 5-9. As we emphasized in Old Stone, “the
termination agreement did no more than accelerate a
termination provision that was not designed to eliminate
the promises of regulatory forbearance.” 450 F.3d at 1369
(emphasis added).
Here, in contrast, the Settlement Agreement did more
than accelerate the termination of the Assistance Agree-
ments: it expressly provided for the release of the FDIC
as manager of the FRF from “any obligation or liability of
any kind in connection with” the Assistance Agreements,
“including, without limitation, any and all actions, causes
of actions, [and] suits.” This expansive language encom-
passes all causes of action arising out of any obligation,
including executory and regulatory promises, under the
Assistance Agreements.
In order to address how this complete release of the
FDIC as manager of the FRF affected its co-obligor, the
OTS, we must determine the law to be applied. The
Settlement Agreement included a choice-of-law provision,
Section 8(d), which specified that the agreement “shall be
governed by and construed in accordance with the federal
law of the United States of America and, in the absence of
controlling federal law, in accordance with the laws of the
State of Illinois.” Plaintiffs cite to the standard articu-
lated in Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321 (1971), thereby implicitly repeating their
23 HOLLAND v. US
argument, made before the Court of Federal Claims, that
there is controlling federal law on the issue. Appellees’
Br. 34. Yet, as the Court of Federal Claims held, Zenith
Radio and the authorities on which it relied did not
involve the release of co-obligors on a contract. Reconsid-
eration Opinion, 75 Fed. Cl. at 494-95; see Zenith, 401
U.S. at 344-47. Thus, like the Court of Federal Claims,
we conclude that there is no “controlling federal law” on
the effect of a release of one co-obligor on other co-obligors
and will therefore apply Illinois law to the issue. Recon-
sideration Opinion, 75 Fed. Cl. at 494-95.
The Government argues that, under Illinois law,
Plaintiffs’ complete release of the FDIC as manager of the
FRF in the Settlement Agreement released its co-obligor,
the OTS, because Plaintiffs did not expressly reserve their
rights against the OTS. Appellant’s Br. 17, 20, 36-42. We
agree and thus reverse the Court of Federal Claims’
holding to the contrary. Under Illinois common law, the
full release of one co-obligor released all “even if the
release contained an express reservation of rights against
the others.” Porter v. Ford Motor Co., 449 N.E.2d 827,
829 (Ill. 1983). “This rule was widely criticized and was
modified so that if a release contained an express reserva-
tion of rights against others it would be interpreted as a
covenant not to sue,” which, in practical effect, would
release only the co-obligor named in the release. Id.
Specifically, in Parmelee v. Lawrence, 44 Ill. 405 (1867),
the Supreme Court of Illinois “rejected the strict common
law rule ‘in favor of the more reasonable rule[] that where
the release of one of several obligors shows upon its face[]
and in connection with the surrounding circumstances,
that it was the intention of the parties not to release the
co-obligors,’” the agreement shall be construed as a cove-
HOLLAND v. US 24
nant not to sue, rather than a release. 6 Id. at 830 (quot-
ing Parmelee, 44 Ill. 405). In other words, an “uncondi-
tional release of one co-obligor releases all unless a
contrary intent appears from the face of the instrument.”
Id. at 829-30; see Cherney, 702 N.E.2d at 234-35. The
intent at issue is whether the parties intended the agree-
ment to serve as an “absolute and unconditional” release
of the co-obligor executing the agreement. Porter, 449
N.E.2d at 830; Cherney, 702 N.E.2d at 237; McCormick v.
McCormick, 536 N.E.2d 419, 432 (Ill. App. Ct. 1988).
The Court of Federal Claims, along with Plaintiffs on
appeal, place weight on the fact that the FDIC as man-
ager of the FRF was the only named Government party to
the Settlement Agreement and the terms of the Settle-
ment Agreement, including the “Accord and Satisfaction”
clause, refer only to performance by and the release of the
FDIC as manager of the FRF. Reconsideration Opinion,
75 Fed. Cl. at 497-98; Liability Opinion, 74 Fed. Cl. at
248-49; Appellees’ Br. 28-32. This emphasis on the Set-
tlement Agreement’s exclusive reference to the FDIC as
manager of the FRF, however, is misplaced. Under
Illinois law, the absolute and unconditional release of one
co-obligor releases all other co-obligors even if the other
co-obligors “were not a party to the release or specifically
identified in the release.” Cherney, 702 N.E.2d at 234-35,
6 Plaintiffs cite to the Joint Tortfeasor Contribution
Act, a recent Illinois statute, as evidence that Illinois has
modernized its rules regarding release. Appellees’ Br. 35-
36. “The Act, however, does not direct itself to co-obligors,
to persons liable in contract, or to wrongdoers liable on
any theory other than tort.” Cherney v. Soldinger, 702
N.E.2d 231, 236 (Ill. App. Ct. 1998). Accordingly, “the Act
has abolished the common law rule only as to certain
tortfeasors,” id., and is irrelevant to this case involving co-
obligors on contracts.
25 HOLLAND v. US
237; see McCormick, 536 N.E.2d at 432. As the Supreme
Court of Illinois has explained, “[t]he Parmelee holding
does not require . . . that a release be construed as a
release of only those persons expressly named.” Porter,
449 N.E.2d at 830. Rather, Illinois courts regularly hold
that a release of one co-obligor or joint tortfeasor releases
others that were not a party to or otherwise named in the
release. See Porter, 449 N.E.2d at 828-31; Cherney, 702
N.E.2d at 234-38; McCormick, 536 N.E.2d at 431-32; see
also Williams Elec. Games, Inc. v. Barry, No. 97 C 3743,
2001 WL 1104619, at *12-*15 (N.D. Ill. Sept. 18, 2001).
Thus, that only the FDIC as manager of the FRF was a
party to the Settlement Agreement and that the terms of
the release were limited to the parties to the Settlement
Agreement is not dispositive of whether the release
effected a release of the OTS.
The Court of Federal Claims, like Plaintiffs on appeal,
also stress the “Third Party Beneficiaries” clause, section
8(k) of the Settlement Agreement. Reconsideration Opin-
ion, 75 Fed. Cl. at 498; Appellees’ Br. 30-36. This clause
states: “Except as expressly provided in this Settlement
Agreement, no provision of this Settlement Agreement is
intended to benefit any persons other than the parties
hereto.” Cases in which Illinois courts have found that an
agreement must be construed as a covenant not to sue
because the parties did not intend to release other co-
obligors, however, have featured explicit language reserv-
ing the plaintiff’s rights against the other co-obligors. See
Porter, 449 N.E.2d at 830 (“Unlike the case before us, the
instrument in Parmelee contained an express provision
that it should in no way ‘affect my rights or demand
against said Parmelee, Gage or Johnson.’”); Pate v. City of
Sesser, 393 N.E.2d 1146, 1151 (Ill. App. Ct. 1979) (“I/we
reserve the right to make claim against any and every
other person . . . .”); Mitchell v. Weiger, 371 N.E.2d 888,
HOLLAND v. US 26
890-92 (Ill. App. Ct. 1977) (“[N]othing herein shall be
deemed in any way to be a release by [plaintiff] of [specific
enumerated joint tortfeasors] from any right or claim
which [plaintiff] has or may have against them or any of
them.”); Hulke v. Int’l Mfg. Co., 142 N.E.2d 717, 727-31
(Ill. App. Ct. 1957). In contrast, the general “Third Party
Beneficiaries” clause in the Settlement Agreement is not
sufficient to show that the parties intended the release to
be less than an absolute release of the FDIC as manager
of the FRF and thus, under Illinois law, fails to establish
that the agreement should be construed as merely a
covenant not to sue the FDIC as manager of the FRF. 7
To the extent that the “surrounding circumstances”
are relevant under Illinois law, they do not suggest an
alternative result. See Porter, 449 N.E.2d at 830 (quoting
7 In arguing that the Settlement Agreement ex-
pressly reserved their rights against other parties, Plain-
tiffs rely on Centex Corp. v. United States, 395 F.3d 1283
(Fed. Cir. 2005). Appellees’ Br. 30-34. Centex, however, is
distinguishable. Centex did not involve Illinois law and
the release provided that it “shall not operate in any way
to limit the ability of [the plaintiffs] to bring any claim
against the United States or any agency or instrumental-
ity thereof (other than the FDIC Manager).” Centex, 395
F.3d at 1312. We rejected the Government’s argument
that the plaintiffs released the Government as a whole,
because it ignored the language “expressly except[ing]
suits against the United States” from the release. Id. at
1311-12. Given this explicit language of reservation,
Centex does not help Plaintiffs establish such a reserva-
tion in this case. Indeed, we took no position as to what
“the effect of the waiver as to the FDIC manager might
have been in the absence of th[e] proviso [excluding suits
against the United States].” Id. In our view, Centex only
highlights Plaintiffs’ failure to reserve their rights against
the United States and the OTS in the Settlement Agree-
ment.
27 HOLLAND v. US
Parmelee, 44 Ill. 405). The letters and documents pre-
pared in the course of finalizing the Settlement Agree-
ment do not show that Plaintiffs intended the release of
claims against the FDIC as manager of the FRF to be
conditional or less than absolute. Instead, they include
broad references to the resolution of the Assistance
Agreements and never suggest that Plaintiffs sought to
reserve their rights against the OTS. Further, the OTS
needed to express its lack of objection to the termination
of the Assistance Agreements before the Settlement
Agreement could be executed, a fact to which the prepara-
tory documents repeatedly refer. Thus, the OTS’s role in
the approval of the Settlement Agreement, at least to
some extent, goes against a showing that Plaintiffs re-
served their rights against the OTS.
As such, we conclude that Plaintiffs’ complete and un-
conditional release of all claims against the FDIC as
manager of the FRF effected a release of all such claims
against its co-obligor, the OTS. Because Plaintiffs re-
leased all claims against the only two Government agen-
cies with obligations under the Assistance Agreements,
the United States is not liable for breach of the Assistance
Agreements.
HOLLAND v. US 28
B
In the alternative, we conclude that Plaintiffs’ accord
and satisfaction with the FDIC as manager of the FRF, in
which Plaintiffs accepted nearly $3.3 million as a “com-
plete accord and satisfaction of any and all obligations
and liabilities of [the FDIC as manager of the FRF] under
the Assistance Agreements,” discharged the OTS, as co-
obligor of the FDIC as manager of the FRF, and bars
Plaintiffs’ causes of action for breach of the Assistance
Agreements.
Our precedent establishes that the affirmative de-
fense of “accord and satisfaction requires four elements:
(1) proper subject matter; (2) competent parties; (3) a
meeting of the minds of the parties; and (4) considera-
tion.” O’Connor, 308 F.3d at 1240; see O’Conner v. United
States, 60 Fed. Cl. 164, 168 (2004). The parties have
never contested proper subject matter and do not dispute
on appeal that this element is satisfied. Liability Opin-
ion, 74 Fed. Cl. at 238. Moreover, the parties, on appeal,
do not contest the Court of Federal Claims’ conclusion
that the FDIC as manager of the FRF, acting as an
agency of the United States, was competent to effect an
accord and satisfaction and that the $3.3 million payment
by the FDIC as manager of the FRF constituted sufficient
consideration for the accord and satisfaction of all claims
arising out the Assistance Agreements. Id. at 238, 246-
47. We agree with the Court of Federal Claims that these
elements of accord and satisfaction are satisfied.
With respect to the “meeting of the minds” element,
Plaintiffs argue on appeal that the text of the Settlement
Agreement, as well as the evidence surrounding its nego-
tiation, show that the parties intended the agreement to
discharge the FDIC as manager of the FRF only as to its
29 HOLLAND v. US
executory promises, not its regulatory capital forbearance
promises. Appellees’ Br. 22, 36-44. Based on the plain
language of the Settlement Agreement, we cannot agree.
A meeting of the minds occurs where there are “accompa-
nying expressions sufficient to make the [claimant] un-
derstand, or to make it unreasonable for him not to
understand, that the performance is offered to him as full
satisfaction of his claim and not otherwise.” Chesapeake
& Potomac Tel. Co. of Va. v. United States, 654 F.2d 711,
716 (Ct. Cl. 1981); Tamerlane, Ltd. v. United States, 81
Fed. Cl. 752, 764 (2008). The Settlement Agreement
provides that the payment of nearly $3.3 million by the
FDIC as manager of the FRF to Plaintiffs “shall effect a
complete accord and satisfaction of any and all obligations
and liabilities of such party under the Assistance Agree-
ments.” 8 (emphases added). This clear language of the
Settlement Agreement is more than sufficient to make
Plaintiffs understand that the payment constituted full
and complete satisfaction of all obligations and liabilities,
including the regulatory forbearances, of the FDIC as
manager of the FRF under the Assistance Agreements.
Indeed, any other understanding of the broad accord and
satisfaction language of the Settlement Agreement would
be unreasonable.
In light of the above analysis, all four elements of an
accord and satisfaction are met and the Settlement
Agreement thus constituted a complete accord and satis-
faction with the FDIC as manager of the FRF. The re-
8 As we noted in our analysis of the Settlement
Agreement as a release, the broad language of the Set-
tlement Agreement distinguishes this case from others in
which courts have held that the termination of the assis-
tance agreement at issue terminated only the executory
provisions, not the regulatory forbearance provisions.
HOLLAND v. US 30
maining issue, therefore, is the effect of Plaintiffs’ accord
and satisfaction with the FDIC as manager of the FRF on
its co-obligor, the OTS.
Neither party has pointed to any “controlling federal
law” on the effect of an accord and satisfaction with one
co-obligor on other co-obligors. Thus, pursuant to the
choice-of-law provision of the Settlement Agreement, we
will analyze the issue under Illinois law.
The Government asserts that under Illinois law,
Plaintiffs’ complete accord and satisfaction of any claims
arising out of the Assistance Agreements with the FDIC
as manager of the FRF prevents Plaintiffs from pursuing
their claims against the Government because Plaintiffs
are only entitled to one complete satisfaction of their
claims. Appellant’s Br. 17, 20, 30-32. We agree. Illinois
law recognizes the “principle that there can be but a
single satisfaction for an injury or wrong.” Holman, 504
N.E.2d at 970; see Packers Trading Co. v. Pederson, No.
84 C 10452, 1985 WL 19452, at *2 (N.D. Ill. June 25,
1985). As a result, an accord and satisfaction “generally
extinguishes or discharges the cause of action” and is
“considered a bar to further action.” McCullough v.
Orcutt, 145 N.E.2d 109, 116 (Ill. App. Ct. 1957); Hulke,
142 N.E.2d at 727. Thus, a plaintiff’s accord and satisfac-
tion, wherein payment is accepted as full satisfaction,
with one joint wrongdoer, such as a co-obligor, operates to
discharge the others in full and bars the plaintiff’s actions
against the others. See City of Chicago v. Babcock, 32
N.E. 271, 273 (1892); Holman, 504 N.E.2d at 970; McCul-
lough, 145 N.E.2d at 116; Hulke, 142 N.E.2d at 727;
Wagner v. Union Stock Yards & Transit Co., 41 Ill. App.
408 (Ill. App. Ct. 1891); see also Packers, 1985 WL 19452,
at *2; Porter, 449 N.E.2d at 830; Pate, 393 N.E.2d at 1150;
Good Prods. Co. v. Dwyer, 203 Ill. App. 217 (Ill. App. Ct.
31 HOLLAND v. US
1917); Restatement (Second) of Contracts §§ 278, 281, 293
(1981). As such, Plaintiffs’ acceptance of the nearly $3.3
million payment from the FDIC as manager of the FRF as
a “complete” satisfaction of its obligations and liabilities
under the Assistance Agreements similarly discharged its
co-obligor, the OTS, and bars any claims against the OTS
for breach of the Assistance Agreements. Plaintiffs are
not entitled to more than one full satisfaction for breach
of the promises made to them in the Assistance Agree-
ments.
Given that the accord and satisfaction discharged
both the FDIC as manager of the FRF and the OTS, the
only Government agencies with obligations under the
Assistance Agreements, the United States is not liable to
Plaintiffs for breach of the Assistance Agreements.
C
In sum, we reverse the Court of Federal Claims’ hold-
ing that the Government is liable for breach of the Assis-
tance Agreements. We conclude that Plaintiffs’ release of
all claims against the FDIC as manager of the FRF in the
Settlement Agreement effected a release of all claims
against its co-obligor, the OTS. Alternatively, Plaintiffs’
accord and satisfaction with the FDIC as manager of the
FRF in the Settlement Agreement discharged the OTS.
Accordingly, because Plaintiffs relinquished their claims
against the only two Government agencies with obliga-
tions under the Assistance Agreements, the United States
is not liable to Plaintiffs for breach of the agreements.
REVERSED