Jonathan E. Perlman v. PNC Bank, N.A.Jonathan E. Perlman v. PNC Bank, N.A.
[PUBLISH]
Plaintiff-Appellant,
versus
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Florida
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY*, District Judge.
Jonathan Perlman, a court-appointed receiver, appeals the district court‘s dismissal of his aiding and abetting claims on behalf of the companies in receivership (the Receivership Entities) against PNC Bank. The district court granted PNC‘s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because it found that Perlman lacked standing to bring those claims. The district court relied on our decision in Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 1308 (11th Cir. 2020), which held that the Receivership Entities must have “at least one innocent officer or director” and thus be “honest corporations” for standing purposes. Perlman moved for reconsideration and for leave to amend, but the district court denied both of those motions.
On appeal, Perlman argues that he has standing because he was appointed pursuant to
I. FACTUAL AND PROCEDURAL BACKGROUND1
Before we detail the district court proceedings below, we must first introduce a
While Marcus lived lavishly for some time, profiting off fraudulently acquired money from his victims, it was not long before government enforcement agencies came knocking. The Federal Trade Commission (FTC) and the Florida Attorney General (collectively, the Enforcement Agencies) filed a complaint against Marcus for various consumer fraud violations, referred to as the Enforcement Action. Often in cases involving fraud, an enforcement agency will move to have a court-appointed receiver take control over the defendant‘s property to ensure that assets are not dissipated or wasted.2 Given Marcus‘s record, the Enforcement Agencies thought it would be prudent to have someone other than Marcus responsible for his companies’ assets. This is where Jonathan Perlman comes into the story.
In the Enforcement Action, the United States District Court for the Southern District of Florida (the Enforcement Court) entered a temporary restraining order appointing Perlman as the receiver for several of Marcus‘s companies, the Receivership Entities. Perlman‘s role in the Enforcement Action was to investigate the affairs of the Receivership Entities and report to the Enforcement Agencies. Perlman‘s investigation confirmed the Enforcement Agencies’ material allegations against Marcus, who then stipulated to a permanent injunction and a monetary judgment of roughly $85 million.
Turning to the district court proceedings in this appeal, Perlman, acting on behalf of the Receivership Entities, sued PNC in a separate action for its involvement with Marcus‘s scheme. Relevant to this appeal, Perlman brought claims for aiding and abetting breach of fiduciary duty (Count I) and aiding and abetting conversion (Count II). Perlman alleged that PNC assisted Marcus by providing bank accounts for the Receivership Entities so that Marcus could carry out his scheme. The Receivership Entities were harmed, according to Perlman, because Marcus diverted funds from the Receivership Entities for a non-business purpose, thus breaching his fiduciary duties owed to them and converting their money. In turn, PNC allegedly aided and
Following our decision in Isaiah, PNC moved under
PNC then replied to Perlman by arguing that he was not appointed under
Following the district court‘s dismissal of Counts I and II, Perlman moved for reconsideration and for leave to amend his complaint to allege that he was appointed under the FDUTPA. The district court denied these motions and this timely appeal followed.
II. STANDARD OF REVIEW
“In reviewing a district court‘s dismissal of a complaint under
III. DISCUSSION
In Isaiah, we raised the issue of whether a court-appointed receiver had standing to bring “common law tort claims against third parties to recover damages for the fraud perpetrated by the corporation‘s insiders.” Isaiah, 960 F.3d at 1306. Applying Florida law, we noted that:
[U]nless the corporation in receivership has as at least one honest member of the board of directors or an innocent stockholder, the fraud and intentional torts of the insiders cannot be separated from
those of the corporation itself and the corporation cannot be said to be an entity separate and distinct from the individual tortfeasors.
Id. We pointed to the distinction “between an honest corporation with rogue employees, which can pursue claims for the fraud or intentional torts of third parties while in receivership, and a sham corporation created as the centerpiece of a [fraudulent] scheme, which cannot pursue such claims.” Id. at 1307. For the latter, it is “not the corporation but the individual customers who suffered injury as a result of the [fraudulent] scheme, and who may have rights to pursue claims against third parties that allegedly aided and abetted that scheme.” Id.
The “axiomatic” principle from Isaiah is “that a receiver obtains only the rights of action and remedies that were possessed by the person or corporation in receivership.” Id. at 1306. If the corporation in receivership is one that is operated for the sole purpose of committing fraud, and thus not an “honest corporation,” then that corporation “cannot be said to have suffered an injury from the scheme it perpetrated.” Id. at 1306. Since the receiver “obtains only the rights of actions and remedies” of the corporation in receivership, it follows that the receiver likewise would not have suffered an injury for purposes of bringing such claims.
Even though the district court did not address
Like the receiver in Isaiah, Perlman is bringing Florida common law tort claims against a third party for aiding and abetting breach of fiduciary duty and conversion. For Perlman to have standing, the Receivership Entities must have suffered an injury. However, if there is no innocent director or stockholder in those Receivership Entities, then the wrongful acts of Marcus cannot be separated from the Receivership Entities and the Receivership Entities cannot be said to have suffered an injury.
Perlman concedes that he cannot include an allegation of an innocent director or stockholder in his complaint. See Oral Argument Recording at 7:44–7:52. Thus, we must determine if
Upon motion of the enforcing authority . . . the court may make appropriate orders, including but not limited to, appointment of a . . . receiver . . . to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise.
A plain reading of this statute tells us three things. One,
What that statute does not tell us, however, is whether the wrongful acts of an
Perlman does not cite to any cases interpreting
IV. CONCLUSION
While the parties spend much of their briefs disputing the applicability of
AFFIRMED.
ROSENBAUM, Circuit Judge, Dissenting:
“Corporations are creatures of state law.” Burks v. Lasker, 441 U.S. 471, 478 (1979). So it makes sense that “corporate law is overwhelmingly the province of the states.” Freedman v. magicJack Vocaltec Ltd., 963 F.3d 1125, 1132 (11th Cir. 2020) (citation and quotation marks omitted). And here, the State of Florida spoke clearly in 2006, when it amended
Most respectfully, the Majority Opinion‘s reading of the amended language to the contrary deprives the language of function and renders it surplusage. I would conclude that the Receivership Entities here, as led by Receiver Perlman, have sufficiently alleged that PNC‘s acts injured them and that they therefore enjoy standing to sue PNC for aiding and abetting
I.
Under Florida law, in 2003, Freeman established the rule that a receiver acting on behalf of a former alter-ego corporation lacks standing to pursue claims against third parties who allegedly aided and abetted the former alter-ego corporation in its intentional torts.
To explain why Perlman has standing to pursue claims on behalf of the Receivership Entities against third parties who allegedly aided and abetted the corporations in their wrongful acts before they entered receivership, we must begin with Freeman v. Dean Witter Reynolds, Inc., 865 So. 2d 543, 550 (Fla. Dist. Ct. App. 2003). In Freeman, the Grazianos had perpetrated a Ponzi scheme through their company called NorthAmerican. See id. at 545-46. The state trial court appointed Freeman as a receiver for the Ponzi scheme. Id. at 546. Freeman then filed suit against third parties whom he alleged had helped the Grazianos and NorthAmerican perpetrate their fraud. See id. at 546–48. Among other claims, Freeman alleged that the third parties aided and abetted the Grazianos’ and NorthAmerican‘s fraud and the Grazianos’ breaches of fiduciary duties to NorthAmerican. Id. at 548.
The Florida intermediate appellate court affirmed the trial court‘s dismissal of Freeman‘s claims because it concluded that Freeman, as receiver, stood in the shoes of the Grazianos and NorthAmerican. See id. at 550–53. As the Grazianos and NorthAmerican could not have been said to have suffered an injury from the scheme they themselves perpetrated, the Florida court reasoned, neither could Freeman. See id.
In reaching this conclusion, the court recognized that, “[a]lthough a receiver receives his or her claims from the entities in receivership, a receiver does not always inherit the sins of his predecessors.” Id. at 550. For instance, the court pointed to actions that the corporation, through the receiver, could bring directly against the principals or the recipients of fraudulent transfers of corporate funds to recover assets rightfully belonging to the corporation and taken before the receivership. Id. at 551. As the court explained, the corporation could bring those types of actions because it is considered “‘cleansed’ through receivership.” Id.
But in Freeman, the court stated that was not the case when the predecessor corporation served as the “alter ego” of the wrongdoers, without a true separate corporate identity. In that situation, the court continued, Florida law attributed the bad acts of the predecessor alter-ego corporation to the receiver. Id. at 551. As the court explained, when “the entities in receivership do not include a corporation that has at least one honest member of the board of directors or an innocent stockholder” (and unlike when the receivership entities do have an honest member or stockholder), it could not “perceive a method to separate the fraud and intentional torts of the insiders from those of the corporation itself.” Id. at 551. As a result, the court concluded that only the victims of the Ponzi scheme suffered injuries, so only they “may have rights to pursue a claim against” the third parties for resulting damages. Id. at 553. In other words, the corporation was not “cleansed” for
II.
The Florida legislature amended
The Florida legislature apparently was not fond of Freeman‘s conclusion that receivers of predecessor alter-ego corporations could not pursue a cause of action against third parties because they stood in the predecessor corporation‘s shoes. So in 2006, the Florida legislature amended
Obviously, the Florida legislature went to the trouble of adding these words to
If the statute functioned the way the Florida legislature wished it to, the legislature would have had no reason to amend it. So the words “to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise” must have altered the effect of the statute from what it was before the amendment.
After all, when we construe a statute, we “first consider[] the text of the statute.” Nunes v. Herschman, 310 So. 3d 79, 81 (Fla. Dist. Ct. App. 2021). And “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 198 (Fla. 2007)
As I have noted, before the amendment, Freeman held that a receiver acting on behalf of a former alter-ego corporation could not bring claims against third parties for allegedly contributing to the former alter-ego corporation‘s intentional torts because the former alter-ego corporation‘s bad acts were attributed to the receiver. On the other hand, a receiver acting on behalf of a corporation who had at least one innocent director or owner could bring such claims because Florida courts viewed the corporation in that situation to have been “cleansed” by the appointment of the receiver.
The addition of the words “to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise” in no way change the receiver‘s abilities or alter his standing in the second (non-former-alter-ego corporation) scenario. Nor is it clear to me that these words otherwise have any effect unless they change the ability of the receiver in the first situation to bring claims on behalf of the former alter-ego corporation against third parties for allegedly aiding and abetting the former alter-ego corporation‘s intentional torts. After all, the added text specifies that a receiver acting on behalf of a corporation is empowered “to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise.”
But the Majority Opinion‘s interpretation of the amendment renders the amendment a nullity and contradicts the amendment‘s plain language. In the Majority Opinion‘s view, the amendment “tells us three things“:
One,
Section 501.207(3) provides that a receivership is an appropriate remedy in an enforcement action involving violations of the FDUTPA. Two, the court
can appoint a receiver to bring actions on behalf of the Receivership Entities. Three, the receiver may bring those actions notwithstanding any wrongful conduct by the Receivership Entities or their insiders.
Maj. Op. at 9-10. As Freeman shows, the first and second items that the Majority Opinion identifies were the case before the amendment. So under the Majority Opinion‘s reading of the amendment, these two things fulfill no function.
And the way the Majority Opinion reads the third—to authorize the receiver to bring actions on behalf of only those corporations that had at least one innocent director or shareholder—provides for precisely the same state of the law as when Freeman issued and before the Florida legislature amended
The amendment must have some function. Id. In my view, the plain language, as I have explained, identifies that function: to enable the receiver of a former alter-ego corporation to bring claims against third parties for allegedly aiding and abetting the former alter-ego corporation‘s intentional torts.
The legislative history of the amendment to
Thus, the Florida legislature‘s awareness of Freeman and its effects indicates that the Florida legislature added the phrase “in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise” to
regardless of whether the defendant corporation had a part in the wrongdoing.” Id.
III.
Given the amendment to
Of course, my analysis above is only part of the story because the Florida legislature can‘t provide Perlman with Article III standing by amending a state statute, if Article III standing doesn‘t otherwise exist. Standing is, after all, a constitutional requirement. See Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) (holding that a statutory violation, without more, did not give rise to Article III standing). But here, the Florida legislature has merely altered the state law under FDUTPA about the receiver‘s position relative to a former alter-ego corporation for which he now acts. While before the amendment, the receiver stood in the shoes of the former alter-ego corporation for purposes of bringing claims against third-parties that contributed to the former alter-ego corporation‘s wrongdoing, the amendment renders the former alter-ego corporation acting under the receiver now “cleansed” from the corporation‘s prior existence. In short, the Florida legislature effectively revised how it defines a corporation after a receiver takes over a former alter-ego corporation.
Because the Florida legislature‘s amendment to
First, Perlman has alleged a legally protected interest which is “(a) concrete and
Second, Perlman‘s injury is directly traceable to PNC‘s alleged conduct—opening accounts for Marcus even after he was kicked out of other banks and even after PNC knew that Marcus was operating a fraudulent debt relief business. And third, that injury is redressable because if Perlman succeeds, the Receivership Entities will recover the money that PNC and Marcus stole.
Isaiah does not require a different conclusion. Isaiah applied the general Florida common-law principle that the receiver stands in the shoes of the corporation, as Freeman describes and which I outlined above. Isaiah, 960 F.3d at 1302. But significantly, Isaiah wasn‘t a FDUTPA case—it was a Florida Uniform Fraudulent Transfer Act (“FUFTA“) case. And unlike with FDUTPA, which the Florida legislature amended to correct a problem it perceived after Freeman issued, the Florida legislature made no similar amendment to FUFTA. So the Isaiah panel had no basis to find that Florida endowed the receiver with standing under the facts of that case. But here, where the Florida legislature has broadened the rights of a receiver to sue, Isaiah‘s holding isn‘t binding. Id.
IV
Because the amendment to
Notes
(3) Upon motion of the enforcing authority or any interested party in any action brought under subsection (1), the court may make appropriate orders, including, but not limited to, appointment of a general or special magistrate or receiver or sequestration or freezing of assets, to reimburse consumers or governmental entities found to have been damaged; to carry out a transaction in accordance with the reasonable expectations of consumers or governmental entities; to strike or limit the application of clauses of contracts to avoid an unconscionable result; to bring actions in the name of and on behalf of the defendant enterprise, without regard to any wrongful acts that were committed by the enterprise; to order any defendant to divest herself or himself of any interest in any enterprise, including real estate; to impose reasonable restrictions upon the future activities of any defendant to impede her or him from engaging in or establishing the same type of endeavor; to order the dissolution or reorganization of any enterprise; or to grant legal, equitable, or other appropriate relief. The court may assess the expenses of a general or special magistrate or receiver against a person who has violated, is violating, or is otherwise likely to violate this part. Any injunctive order, whether temporary or permanent, issued by the court shall be effective throughout the state unless otherwise provided in the order.