Documente Academic
Documente Profesional
Documente Cultură
No. 12-1518
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge King and Judge Diaz concurred.
COUNSEL
ARGUED: Tucker Harrison Byrd, MORGAN & MORGAN,
PA, Orlando, Florida, for Appellant. Stephen Leonard Ratner,
PROSKAUER ROSE, LLP, New York, New York, for
Appellees. ON BRIEF: Alisa J. Roberts, GRAYSON LAW
CENTER, PC, Falls Church, Virginia, for Appellant. David
A. Picon, PROSKAUER ROSE, LLP, New York, New York,
for Appellees.
OPINION
WYNN, Circuit Judge:
This is an adversary proceeding arising out of the bankruptcy of Debtor Derivium Capital, LLC ("Derivium"). PlaintiffAppellant Grayson Consulting, Inc. ("Grayson"), assignee
of the Chapter 7 bankruptcy trustee, appeals from a district
court judgment affirming the bankruptcy courts decision to
grant summary judgment for DefendantsAppellees
Wachovia Securities, LLC, Wachovia Securities Financial
Network, LLC, and First Clearing, LLC (collectively
"Wachovia").
Derivium filed for bankruptcy after the collapse of its
"stock loan" lending program, alleged to be a Ponzi scheme.
Grayson sought to recover from Wachovia assets transferred
into Deriviums brokerage accounts at Wachovia and commissions, fees, and margin interest payments paid to
Wachovia as fraudulent conveyances under 11 U.S.C. 544
and 548. Grayson also asserted tort claims against Wachovia
related to its involvement in Deriviums stock loan program.
Ultimately, Derivium had difficulty satisfying its obligations to return customers stocks when the loans matured.
Wachovia closed the At-Issue Accounts in late 2004 and early
2005, and, in September of 2005, Derivium filed for Chapter
11 bankruptcy in the Southern District of New York. The
court converted the case to Chapter 7 and transferred it to the
District of South Carolina, where Kevin Campbell was
appointed Deriviums trustee.
In August of 2007, Campbell filed a complaint against
Wachovia alleging nine tort claims3 and two bankruptcy
claims under 11 U.S.C. 544 and 548, provisions that entitle
a bankruptcy trustee to avoid certain fraudulent transfers
made prior to the bankruptcy filing to return assets to the
estate for the benefit of the creditors. Specifically, Campbell
sought to avoid and recover three categories of transfers under
Sections 544 and 548: (1) $161 million in securities that customers transferred into the At-Issue Accounts (the "Customer
Transfers"); (2) $828,500 in cash that Derivium and Bancroft
transferred into Bancrofts At-Issue Account the year before
Derivium filed for bankruptcy (the "Cash Transfers"); and (3)
commissions, fees, and margin interest paid to Wachovia.
With the approval of the bankruptcy court, Campbell assigned
these claims to Grayson, and Grayson was substituted as the
plaintiff in December of 2007.
In April of 2008, Wachovia moved for dismissal. The
bankruptcy court dismissed the tort claims with prejudice
under the doctrine of in pari delicto and dismissed the fraudulent conveyance claims with leave to amend. Grayson filed a
Second Amended Complaint and Wachovia again moved to
dismiss, which the bankruptcy court denied on Graysons
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The Trustees tort claims were: (1) aiding and abetting fraud; (2) aiding
and abetting breach of fiduciary duty; (3) aiding and abetting fraudulent
conveyance; (4) aiding and abetting conversion; (5) negligence; (6) breach
of fiduciary duty; (7) conversion; (8) civil conspiracy; and (9) constructive
trust.
II.
In an appeal from a bankruptcy proceeding, this Court
applies the same standard of review that the district court
applied to the bankruptcy courts decision. Goldman v. Capital City Mort. Corp. (In re Nieves), 648 F.3d 232, 237 (4th
Cir. 2011) (citing Bowers v. Atlanta Motor Speedway, Inc. (In
re Se. Hotel Props., Ltd. Pship), 99 F.3d 151, 154 (4th Cir.
1996)). Thus, we review factual findings for clear error and
legal conclusions de novo. In re Nieves, 648 F.3d at 237.
Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a).
III.
On appeal, Grayson contends that the district court erred in
affirming the bankruptcy courts determinations that (1) the
Customer Transfers were not transfers of debtor property; (2)
Wachovia was not the initial transferee of the Cash Transfers;
(3) the stockbroker defense applies to commissions; and (4)
in pari delicto bars Graysons tort claims against Wachovia.
We address each issue in turn.
A.
First, Grayson argues that the district court erred in affirming the bankruptcy courts grant of summary judgment for
Wachovia on Graysons Customer Transfers claim. The district court determined that Grayson cannot avoid the Customer Transfers because they were not transfers of "an
interest of the debtor in property or any obligation incurred by
the debtor" as required by 11 U.S.C. 544(b)(1) and 548(a).
Grayson does not contend that Derivium had an interest in
its customers securities prior to the transfers. Rather, Grayson asserts that when Derivium acquired an interest in the
securities through the transfers, Wachovia simultaneously
Because Grayson argued only that Wachovia was the "initial transferee," we do not consider whether Wachovia fits under the second prong
of Section 550(a), which provides for recovery from "an immediate or
mediate transferee of the initial transferee." Id. 550(a)(2).
10
v. Brunson, (In re Coutee), 984 F.2d 138, 141 (5th Cir. 1993)
(holding law firm was not initial transferee of settlement
funds in trust because "[t]he only control exercised over the
funds was the control delegated to the law firm by the [clients]"). And again, nothing before us suggests that the court
erred in its determination.
In sum, we agree with the bankruptcy court that, notwithstanding funds taken and retained as commissions and fees,
Wachovia was not the initial transferee of the Cash Transfers.
Accordingly, we conclude that the district and bankruptcy
courts did not err in granting summary judgment for
Wachovia on Graysons Cash Transfers claim.
IV.
Grayson next contends that the district court erred in
affirming the bankruptcy courts determination that
Wachovias commissions and fees were protected as "settlement payments" under 11 U.S.C. 546(e), the "stockbroker
defense," once they were shown to be reasonable and customary in the industry. In re Derivium Capital, LLC, C/A No. 515042-JW, Adv. Pro. No. 07-80119-JW at 7 (Feb. 15, 2011).
Grayson contends that Section 546 does not protect commissions, and even if it does, Wachovias commissions here were
uncommonly low and therefore should have been excluded
from protection under the bankruptcy courts own test.
A.
Whether brokers commissions and fees can be shielded
from avoidance and recovery as a "settlement payment" under
11 U.S.C. 546(e) is a question of statutory interpretation. As
with all such questions, we begin with the plain language of
the Code.6 Section 546(e) states that,
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account, a final settlement payment, or any other similar payment commonly used in the securities trade." Id. 741(8).8
Section 546 does not limit the definition of settlement payment to security purchase prices or exclude from it payments
from which brokers benefit, such as commissions. Indeed,
Congress amended Section 546(e) in 2006 to add settlement
payments made to or for the benefit of stockbrokers. See
Financial Netting Improvements Act of 2006, Pub. L. No.
109390, 120 Stat. 2692 (2006) (emphasis added). Nevertheless, the definition is sufficiently ambiguous as to whether
commissions and fees come under "settlement payments" that
we consider legislative intent.
The parties agree that the purpose of Section 546 is to preserve the stability of settled securities transactions. See also
Kaiser Steel Corp. v. Charles Schwab & Co., Inc., 913 F.2d
846, 849 (10th Cir. 1990) (citing H.R. Rep. No. 420, 97th
Cong., 2d Sess. 2 (1982), reprinted in 1982 U.S.C.C.A.N.
583, 583). Specifically, Congress stated that the purpose
behind the provision was "to clarify and, in some instances,
broaden the commodities market protections and expressly
extend similar protections to the securities market" to "minimize the displacement caused in the commodities and securities markets in the event of a major bankruptcy affecting those
industries." H.R. Rep. No. 420, 97th Cong., 2d Sess. 2 (1982).
Citing this legislative history, several of our sister circuits
have described the definition of "settlement payment" in Section 546 as "extremely broad." QSI Holdings, Inc. v. Alford
(In re QSI Holdings, Inc.), 571 F.3d 545, 549 (6th Cir. 2009);
Contemporary Indus. Corp. v. Frost, 564 F.3d 981, 985 (8th
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11 U.S.C. 541 for his standing in this case, he may not use
his status as trustee to insulate the [debtor] from . . . wrongdoing . . . .") (internal citations omitted).
Accordingly, we agree with the district court and bankruptcy court that Graysons status as the trustees assignee
does not afford it protection from the application of in pari
delicto. And because Graysons complaint alleged that
Derivium engaged in the alleged torts, Grayson, standing in
Deriviums shoes, is barred from suing Wachovia for those
torts.
In the alternative, Grayson contends that the "adverse interest" exception to in pari delicto applies here. Under the "adverse interest" exception, the wrongs of an agent are not
imputed to the principal if the agent acted adverse to the principals interests. See Little v. S. Cotton Oil Co., 153 S.E. 462,
463 (S.C. 1930) ("[W]hen an agent is engaged in a transaction
in which he is interested adversely to his principal, the principal will not be charged with knowledge of the agent acquired
therein."). Specifically, Grayson contends that because
Deriviums owners engaged in the alleged misconduct and
their misdeeds were adverse to Derivium, their conduct
should not be imputed to it.9
The bankruptcy court rejected Graysons adverse interest
argument on the basis of the "sole actor rule." That rule provides that an agents conduct is imputed to the principal if that
agent is the principals sole representative. See, e.g., R.F. Laf9
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