38 F.4th 899
11th Cir.2022Background
- Jeremy Marcus ran a nationwide debt-relief fraud through about 85 entities; government enforcement (FTC and Florida AG) obtained injunctive relief and a receivership over several Marcus companies.
- Jonathan Perlman was appointed receiver by the Enforcement Court and, on behalf of the Receivership Entities, sued PNC Bank for aiding and abetting Marcus’s breach of fiduciary duty and conversion (alleging PNC provided accounts and banking services despite red flags).
- PNC moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, arguing Perlman lacked standing because he did not allege an innocent officer or stockholder in the Receivership Entities (relying on this Court’s decision in Isaiah v. JPMorgan Chase Bank).
- Perlman replied that he was appointed under Fla. Stat. § 501.207(3) (FDUTPA), which authorizes a receiver to bring actions “without regard to any wrongful acts that were committed by the enterprise,” and thus FDUTPA overcomes Isaiah’s standing requirement.
- The district court concluded the record showed Perlman was appointed under the FTC Act § 13(b), found he failed to allege an innocent officer/stockholder, and dismissed for lack of jurisdiction; the court denied reconsideration and leave to amend.
- The Eleventh Circuit (majority) assumed arguendo that § 501.207(3) applied but held it does not remedy the Isaiah standing defect because the statute does not address imputation of insiders’ wrongful acts to the corporation; the dismissal was affirmed. Judge Rosenbaum dissented, arguing the 2006 FDUTPA amendment was intended to and does alter Florida law to give receivers standing in these circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether receiver has standing to bring common-law aiding-and-abetting tort claims on behalf of Receivership Entities given Isaiah’s requirement that the entity have at least one innocent officer or stockholder | Perlman: FDUTPA § 501.207(3) authorizes a receiver to sue “without regard to any wrongful acts committed by the enterprise,” so Isaiah’s innocent-officer requirement is inapplicable | PNC: Isaiah controls; absent allegation of an innocent officer/stockholder, the entities did not suffer an injury and the receiver lacks standing | Held: Dismissal affirmed—Isaiah requires alleging an innocent officer/stockholder; Perlman lacked standing. |
| Whether Fla. Stat. § 501.207(3) (FDUTPA) cures the Isaiah standing defect by separating corporate injury from insiders’ wrongdoing | Perlman: The statutory phrase “without regard to any wrongful acts…committed by the enterprise” separates wrongdoing from the corporate entity and permits the receiver to sue third parties | PNC: The statute does not address imputation between insiders and the corporation and thus does not override the common-law rule in Isaiah | Held: Even assuming § 501.207(3) applies, it does not resolve the imputation issue; it does not relieve the plaintiff of Isaiah’s pleading requirement. |
Key Cases Cited
- Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296 (11th Cir. 2020) (receiver must allege at least one innocent officer or stockholder for entity to have standing to sue third parties for insiders’ fraud)
- Freeman v. Dean Witter Reynolds, Inc., 865 So. 2d 543 (Fla. Dist. Ct. App. 2003) (receiver of an alter-ego corporation lacks standing to sue third parties for the corporation’s own intentional torts)
- AMG Capital Mgmt., LLC v. FTC, 141 S. Ct. 1341 (U.S. 2021) (limits FTC’s ability to obtain monetary relief under § 13(b))
- FTC v. On Point Capital Partners LLC, 17 F.4th 1066 (11th Cir. 2021) (discussing effect of AMG on receivership remedies under § 13(b))
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (statutory violation alone may not establish Article III injury-in-fact)
- Burks v. Lasker, 441 U.S. 471 (1979) (corporations are creatures of state law; corporate law is primarily a state-law domain)