350 F.3d 1197 | 11th Cir. | 2003
Before TJOFLAT, ANDERSON and CUDAHY [*] , Circuit Judges. CUDA HY, Circuit Judge:
Throu gh the 1 980s an d 1990 s, Greate r Minis tries Intern ational, In c., operated out of Tampa, Florida, a vast Ponzi scheme alternatively called the “Double-Your-Blessings” program, the “Greater Trust Gift Exchange” and the “Faith Promise Plan,” bilking more than 15,000 investors of an estimated $500 million. Greater Ministries maintained some of the proceeds of these illegal operations in an account with First Union National Bank of Florida. In this action, the trustee in bankruptcy of Greater Ministries and two individual investors in the Ponzi scheme are suing First Union for knowingly paying out funds from Greater Ministries’ accounts to a malfeasant church official. While we agree with the district court that the plaintiffs’ complaint fails as a matter of law, we vacate the dismissa l and rem and the c ase, with instructio ns to allow the plaintif fs leave to amend their com plaint.
I.
Because this case was dismissed on a Fed. R. Civ. P. 12(b)(6) motion, we must accept the facts as alleged in the plaintiffs’ First Amended Complaint and construe all inferences in the light most favorable to the plaintiffs. Franklin v. Gwinnett County Pub. Schs ., 911 F .2d 617 , 619 (1 1th Cir. 1 990).
During the 1980s and 1990s, Greater Ministries International, Inc., later known as Greater Ministries Church, purported to operate a church in Tampa, Florida . While G reater M inistries m ay have c onduc ted servic es and en gaged in charitable activities, its significance was largely as a vehicle for a Ponzi scheme run by the church’s elders. Called at various times the “D ouble-Your-B lessings” progra m, the “G reater Tr ust Gift E xchang e” and th e “Faith P romise P lan,” this “investm ent prog ram” lur ed pros pective in vestors w ith spectac ular retur ns. In its initial phase, the church offered each investor a 100% return if that investor successfully solicited two others to commit funds equal to the amount invested by the original investor–a classic pyramid scheme. Later, investors did not even need to do the soliciting, but needed only to wait while Greater Ministries solicited enoug h other in vestors to produ ce the 10 0% re turn pro mised to be availab le within seventeen months. The investment interests were labeled “gifts,” the profits called “God’s blessings” and the reinvesting or rolling over of proceeds “regifting.” The programs were administered by entities such as “Greater Trust” and “1 John 4:4, Inc.,” [1] and sold through a national netw ork of “elders,” who received as m uch as a 5% co mmissio n on inv estment f unds se cured th rough their efforts. Acco rding to the plaintiffs, Greater Ministries managed to defraud more than 15,000 victims out of an estim ated total o f $500 million.
The inv estors’ fu nds w ere funn eled by G reater M inistries into a single general fund, where they were allegedly commingled with other, non-Ponzi revenues. From 1995 to 1998, Greater Ministries used several bank accounts, one of the principal ones being a First Union National Bank of Florida account having the account number 2090001418036 (the “8036 Account”). [2] It is this account which lies at the he art of this la wsuit.
During the period that G reater Ministries maintained accounts at First Union, the bank had actual knowledge of Greater Ministries’ illegal activities but “utterly ignored” them in its “desire to make money for itself off the Ponzi and money launder ing sche me mo ney flow ing thro ugh its ac counts.” First A m. Com pl. at 14 para. 15, Record at 16. According to the plaintiffs, this knowledge came from n umero us Tam pa Trib une article s about in vestigatio ns by va rious state s into Greater Ministries, from knowledge of the criminal histories of various Greater Ministries officials and from a state investigation into an attempt by Greater Ministries-related individuals to acquire control of First Western Bank (another Florida bank). Other clues about the illegal nature of Greater Ministries were Florida ’s shutting down of Gre ater Ass urance T rust (G reater M inistries’ fo ray into the insurance business, an entity that also had an account with First Union) and advisories issued by the Treasury Department and the Federal Deposit Insurance Corporation regarding the illegality of an entity operated by Greater Ministries named Greater International Bank of Nauru. Further indicators arose from contact between First Union and various individual investors as well as from the suspiciously large transactions involving the account. Acco rding to the plaintiffs, several other banks had refused to continue doing business with Greater Ministries and had told it to take its business elsewhere. In contrast, First Union knew of Greater Ministries’ misdeeds, consulted with government officials about them and even notified Greater Ministries that its accounts were being closed, but continued to service the Greater Ministries accounts.
Betwe en Au gust and Nove mber 1 998, F irst Unio n allow ed Payn e to withdraw about six million dollars from the Greater Ministries accounts. For examp le, on A ugust 2 5, 1998 , Payne to ok deliv ery of $2 ,892,90 0 in $10 0 bills from the 8036 Account. On September 1, Payne withdrew an additional $1,886,250. In order to legitimize the withdrawals, First Union “induced the Paynes” to present docum entation “as ostensible authorization” for the cash deliveries . Id. at 29 para. 29. Much of this money was never seen again by the investor s or by th e gover nment. I n 2001 , Payne w as senten ced to 27 years in federal prison for fraud and o ther offenses. His wife wa s sentenced to 13 years.
As a result of the continuing criminal investigation of Greater Ministries and Payne, G reater M inistries w as put into federal re ceiversh ip in Au gust 19 99. Shortly thereafter , the feder al receiver , with au thorizatio n from the district c ourt, initiated an involun tary bank ruptcy ca se agains t Greater Ministr ies, and K evin O’Halloran, a plaintiff in the present action, was appointed trustee of the bankruptcy estate. O’Halloran, on behalf of Greater Ministries, and William C. Smith and John T ingue, two individual investors defraud ed by Greater Ministries’ Ponzi s cheme, b rough t the prese nt action. T he plaintif fs alleged four dif ferent state law claims against First Union: aiding and abetting crimes and torts, assisting breach o f fiduciar y duties, b reach of duties to w arn and to contro l and neg ligence. The dis trict court g ranted th e defend ant’s Fed . R. Civ. P . 12(b)( 6) motio n to dismiss.
First, the district court held that O’Halloran does not have standing to bring a suit against First Union. Citing Feltman v. Prudential Bache Securities , 122 B.R. 466 (S .D. Fla. 1 990), th e court h eld that G reater M inistries w as simply a “condu it for stolen money” with no genuine claim to the disputed funds and that any alleged injury to Greater Ministries was illusory. Second, the court found that the claims brought by the individual investors, who do have standing, failed as a matter of law. The court reasoned that, under Florida law, First Union had no duty to the individual investor plaintiffs; the bank’s only obligations were to Greater Ministries, its depositor. The district court reasoned that recognizing a duty to the individuals here would require banks to intrude significantly into the affairs of their clients. The district judge ruled that even actual knowledge of Greater Ministr ies’ misde eds wo uld not a ctivate a du ty by Firs t Union to the inv estors in the absence of a fiduciary relationship.
II.
We rev iew de n ovo a F ed. R. C iv. P. 12 (b)(6) d ismissal. Long v. Satz , 181 F.3d 1275, 1278 (11th Cir. 1999). In reviewing the sufficiency of a complaint, we accept as true the facts alleged and construe them in the light most favorable to the plaintiffs. Franklin v. Gwinnett County Pub. Schs ., 911 F.2d 617, 619 (11th Cir. 1990). A complaint should not be dismissed for failure to state a claim unless “the plaintiff can prove no set of facts that would entitle him to relief.” Hoffman-Pugh v. Ramsey , 312 F.3d 1222, 1225 (11th Cir. 2002).
We begin by identifying what exactly are the torts alleged here. The plaintiffs’ principal allegations seem to deal directly with the disbursement of over $6 million by First Union to Payne. This “embezzlement claim” takes a prominent place in the complaint. Much of the rest of the complaint, however, does not deal so much with these final withdrawals by Payne as with the underlying fraud, the deceptiv e solicitation of inves tments en gaged in by Gre ater Min istries and Payne. This “P onzi claim ” is argua bly conta ined w ithin the lan guage o f the com plaint. See First A m. Com pl. at 38 p ara. 45, R ecord at 1 6 (“First U nion br eached its obligation to disclose to the Plaintiffs . . . what it knew.”).
Lack of clarity about whether the plaintiffs were pursuing the embezzlement claim or the Ponzi claim, or both, has apparently plagued this lawsuit from the filing of the initial complaint. Fortunately, this question was definitively settled during oral argu ment:
Appellants: The tru stee is not s uing to c ollect for th e Ponz i scheme damag e. There indeed is a separate lawsuit that’s going to trial . . . for that.
. . . Appellants: We all believe that the ownership of the [Ponzi] claim against
Payne would be primarily the investors’, and they do have that case . . . .
. . . Ande rson, J.: That’s really the only claim, that six million, with respect
to whic h you re ally have a claim, is it no t? Appellants: I agree. In this case, th at is the on ly thing w e’re look ing for. The rest of it was window dressing. Also during oral argum ent, counsel for the Appellants acknow ledged that it was a mistake to include in the complaint so many allegations about the underlying Ponzi scheme , and that th e investo rs were added a s parties in the prese nt case so lely in case a question arose as to the trustee’s standing. In the word s of Appellants’ counsel, if we find the trustee to have standing, the investors “are out” of the case.
We therefore first consider whether O’Halloran has standing to pursue the embezzlement claim against First Union. Then, we consider whether the complaint validly states a claim upon which relief can be granted.
A.
“The question of standing involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. To satisfy the ‘case or co ntrover sy’ requir ement o f Article I II, whic h is the irre ducible constitutional minimum of standing, a plaintiff must, generally speaking, demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v. Spear , 520 U.S. 154, 162 (1997) (internal quotation marks and citations omitted). A bankruptcy trustee stands in the shoes of the debtor and has standing to bring any suit that the debtor could have instituted had it not been thrown into bankruptcy. 11 U.S.C. §§ 541-42.
First Union won dismissal of O’Halloran’s claims on the ground that O’Halloran, as trustee of Greater M inistries, did not have standing to sue First Union on any of the stated causes of action. [3] First Union continues to argue that O’Halloran cannot recover because any financial detriment that Greater Ministries might have suffered because of the bank’s actions would have involved funds that Greater Ministries had acquired through fraud. The bank appears to be invoking the doctrine of in pari delicto. Def.’s Memo. of Law in Supp. of Mot. to Dismiss at 5, Record at 20 (arguing that the trustee “should not now be permitted to sue third parties to seek redress for the consequences of the bankrupt’s own pervasive wrongdoing”).
We begin by noting our agreement with the trustee that he is not the right party to p ursue an y damag es resultin g from the Pon zi schem e itself. Ev en if phrases such as “sham corporation” or “alter ego” were never used in the complaint to describe Greater Ministries, the complaint does pervasively describe Greater Ministries as an organization run by Payne for the sole purpose of perpetra ting his P onzi sch eme. E.g. , First Am. Compl. at 1, Record at 16 (alleging that “principals of a so-called ‘church’ . . . operat[ed] a Ponzi scheme under a cloak of religio n”); id. at 12 para. 11 (noting that the board of Greater Ministries was “under th e ultimate c ontrol o f Gerald Payne” ); id. at 13 para. 13 (Greater Ministries was formed “for the purported purpose of providing a vehicle for the operatio n of a C hristian ch urch.” (e mphas is added )); id . at 21 para. 20 (using quotation marks around “church” and “church members” and noting that “there was no organiz ed chur ch cong regation in any rec ognizab le sense”) ; id. at 31 para. 33 (describing the investors as “victims of the Payne/[G reater Ministries] schemes”). Given these allegations, there is little doubt that the complaint alleges Greater Ministries to be one of the princ ipal culprits in the Ponzi scheme. Thus, neither Greater Ministries nor its bankruptcy trustee can sue anyone, including the defendant, for the Ponzi scheme torts. Greater Ministries, whose primary existence was as a perpetrator of the Ponzi scheme, cannot be said to have suffered injury from the scheme it perpetrated. [4] The trustee is correct in not pursuing such a fruitless claim.
The P onzi sch eme, ho wever , is not the to rt with w hich w e are con cerned. The co mplaint a lleges that F irst Unio n acted w rongly w hen it per mitted P ayne to remov e funds from th e accoun ts Greate r Minis tries main tained at F irst Unio n. E.g. , id. at 34 par a. 37 (“B y its actions First U nion . . . aid ed and a betted G erald Payne . . . in wrongfully taking . . . the funds carried in accounts of Greater Ministr ies. . . . In add ition . . . , Firs t Union breache d its oblig ation to d isclose to the Plaintiffs . . . what it was doing with Payne and what First Union knew and had learned.” ); id. at 38 para. 45 (First Unio n “had a duty to warn [G reater Ministries] . . . of Paynes’ money transferring and money-taking activities.”). As we noted above, this is the claim that is at issue here.
The district court apparently ruled that the trustee had no standing to pursue the embezzlement claim. We disagree. The district court relied in part on the potential c onflict be tween a bankru ptcy truste e and the creditors of the ba nkrup t. District Ct. Order at 8 (quoting Feltman , 122 B.R. at 473-75, and noting that with an ownership stake on whose behalf the trustee could sue. See Miller , 540 F.2d at 809 (“[W]ere only the founding investors involved, the district court decision [that the trustee did not have standing] would be correct.”). Moreover, the trustees in Bailes and Miller were not granted standing to sue third parties but to sue the directors themselves on behalf of the duped, subsequent shareholders. Bailes , 444 F.2d at 1244 (holding that the corporation had standing to bring claim on behalf of the corporation against the promoters of the deception); Miller , 540 F.2d at 809 (same). In the present suit, the trustee seeks to sue First Union, not the perpetrators of the scheme. Neither Greater Ministries not its estate has standing to bring a suit based on the Ponzi claim. allowing the trustee to sue on behalf of the debtor would deprive the creditors of standing to raise the same claim s). Wh ere, as her e, the truste e is litigating in concert with investors, and the trustee may be able to assert injuries not duplicative of those suffered by the inv estor plain tiffs, we f ind the co ncern th at the truste e is someh ow dis placing th e rights o f the inve stors to b e misplac ed. See also Scholes v. Lehmann , 56 F.3d 750, 755 (7th Cir. 1995) (“[I]f in place of the receiver’s actions the investors had brought a class action against the present defendants . . . , the defendants would no doubt be arguing that the action was improper because the injury was to the corporations and only derivatively to investors in the corporations.”). We also find perhaps less significant than did the district court the fact that the funds which the trustee claims to be tortiously deprived of were substantially the fruit of fraud. For example, if, say, some burglar purloined money from a s afe belon ging to G reater M inistries, G reater M inistries or its bankruptcy trustee could pursue a claim against the burglar regardless of whether Greater Ministries had obtained the money by fraud. Greater Ministries was responsible, according to the complaint, for the Ponzi scheme, but as the holder of voidable title to the fu nds (as opp osed to void title) was legally injured by Payne’s withdrawals from the F irst Union accounts. [5] See B.R.L. Equip. Rentals, Ltd. v. Seabring Marine Indus., Inc ., 168 F.3d 413, 415-16 (11th Cir. 1999) (noting that “the possessor of property obtained via a worthless check has ‘voidable’ title to the property–the possessor has title, but the seller can avoid that title as against the buyer u pon dis covery o f the frau d”); Mazzoni Farms, Inc. v. E. I. DuPont de Nemours & Co. , 761 So. 2d 306, 313 (Fla. 2000) (“[F]raudulent inducement renders a contract voidable, not void.”). Greater Ministries’ ownership of the Ponzi funds can be legally asserted against parties other than the investors themselves.
We agree with the trustee that this case can be distinguished from Feltman , 122 B .R. 466 . Althou gh, as w e noted e arlier, the co mplaint’s allegation s clearly reveal G reater M inistries to b e a prima ry culprit in the Pon zi schem e such th at it does not have standing to sue for any injuries resulting from that scheme, the complaint does not suggest that there was an absolute identity of interests between Payne and Greater Ministries. If, indeed, Greater Ministries were merely the alter ego of Payne, we might agree with the district court that there was also no standing for the em bezzlem ent coun t–Payn e could n ot embe zzle fund s from h imself. See id. at 469 (noting that all the officers and directors, except one, of the plaintiff corporation were mem bers of the embezzler’s family). But Greater M inistries was, adversely to the corporation” are not imputed to the corporation). Since the trustee is alleging a wrong by Payne and First Union committed against Greater Ministries, the doctrine of in pari delicto is inapplicable. if a criminal organization, also one with a significant membership and governing body. Reading the complaint in the light most favorable to the trustee, we cannot conclude that Greater Ministries was merely Payne’s alter ego. As long as Greater Ministr ies was n ot merely Payne’s alter ego, it is conceivable that P ayne cou ld have wrongfully embezzled money from the organization. The alleged injury resulting from Payne’s embezzlement of the First Union funds gives Greater Ministr ies standin g to pur sue a claim against F irst Unio n for its in volvem ent in Payne’s withdrawals. See also In re H uff , 109 B.R. 506, 512 (Bankr. S.D. Fla. 1989) (“First, there is no question that [the corporation] alleges it suffered a loss of $800,000 at the hands of the Defendants when they took from the corporation sums totalling th at much for them selves an d their fam ily memb ers. This alone is sufficient to sustain standing.”).
B.
What w e are less ce rtain of, h owev er, is wh ether the c omplain t states a claim upon which relief can be granted. In essence, the trustee’s argument appears to be that First Union knew Payne to have a criminal history and knew the suspect nature of Greater Ministries’ dealings, yet allowed Payne to withdraw large sums of money, in cash, from accounts that were not his personal accounts. More specifically, the complaint alleges that [6] 1) First Union “joined the conspiracies and wrongdoing of [Payne] . . . in wrongfully taking and misappropriating and converting the funds carried in [the General Ministries accounts]” and “breached its obligatio n to disclo se to [G reater M inistries] w hat it was doing w ith Payn e . . . and what First Union knew and had learned,” 2) First Union “knowingly and/or recklessly aided and abetted [Payne] in breaching h is fiduciary duties,” 3) First Union breached a duty to warn Greater Ministries about Payne’s actions and control th e funds in the G reater M inistries acc ounts an d 4) Fir st Unio n volun tarily incurred and then negligently breached duties of care to Greater Ministries. [7] Record at 16.
As is obvious, a corporate entity cannot deal with banks directly–it relies on officers and employees, who are responsible for performing their duties in the interests of the company. Conversely, a bank can only really complete transactions with natural persons and has the right to assume that individuals who have the legal authority to handle the entity’s accounts do not misuse the entity’s funds. For example, if an employee is sent to the bank to make a withdrawal from the company’s account and to bring the funds back to the corporate office, but instead the emp loyee take s the mo ney and flees to P araguay , the bank is not resp onsible for the employee’s actions. The bank is responsible only for making sure that the employee, at the time of the withdrawal, has the authority to make withdrawals on behalf of the accountholder entity. A bank’s responsibility to a depositor may be somewhat heightened when the bank has knowledge that a particular individual ostensibly representing the depositor instead intends to cause financial injury to the depositor. Under such circumstances, the bank may be responsible for taking additional steps to ensure that the representative has complete authorization from the depositor. Nonetheless, a refusal on the part of the bank to permit a withdrawal by a duly authorized representative of a corporate accountholder would no doubt breach the bank’s deposit agreement with that accountholder.
In his complaint, the trustee alleged that Greater Ministries and its board were “under the ultimate control of Gerald Payne.” First Am. Compl. at 12 para. 11, Rec ord at 16 . Payne w as one o f three co -found ers of the church , id. at 2 para. 2, and “the principal person with whom First Union dealt,” id. at 18 par a. 15. “First Union dealt directly and frequently with [Payne] for several years.” Id. at 2 para. 2. The complaint also states that Payne was “operating under the name of Greater Ministries,” id. at 15 par a. 15(c), d escribes G reater M inistries as “h is enterprise,” id. at 21 para. 20, and refers to Greater Ministries’ First Union bank accounts as “his banking business,” id. at 22 para. 21. The complaint also alleges that First Union sought from Payne evidence of authorization fo r the cash deliveries . Id. at 29 para. 29. According to the trustee, these documents included a plan of transfer of assets, board resolutions, affidavits from Payne and new signatur e cards. A ppellants ’ Open ing Br. a t 15.
Earlier, we concluded that the com plaint, construed in the light most favorable to th e trustee, does no t allege Greater M inistries to have be en Payne’s alter ego. Here, however, we find that the complaint, even construed in the light most favorable to the trustee, clearly alleges that Payne was, for purposes of Greater Ministries’ banking transactions with First Union, fully authorized by Greater Ministries to act on its behalf, and we ag ree with First Union that these allegation s foreclo se the po ssibility of th e trustee’s p revailing on any o f his theories. E ven if, as th e comp laint alleges , First U nion ha d cause to be particu larly cautious in the handling of Greater Ministries’ accounts, the instant complaint alleges that the bank met this higher standard of diligence. If indeed Payne had complete and legal authorization from Greater Ministries, as alleged by the complaint, First Union is not responsible for Payne’s diverting the funds to his own purposes. Such allegations foreclose the possibility that First Union was respon sible to G reater M inistries fo r Payne ’s withd rawals, a nd dism issal of this claim w as appro priate. See Pettigrew v. Citizens Trust Bank , 229 B.R. 39 (N.D. Ga. 1998) (finding a bank not liable where the bank’s sole contacts with the accountholder entity were the embezzlers themselves).
III.
For the foregoing reasons, we agree with the defendant that the trustee has not stated a claim upon which relief can be granted. This, however, is not the end of the case. Because the Notice of Appeal on this case was filed before Dec. 10, 2002, it is governed by Bank v . Pitt , 928 F .2d 110 8 (11th Cir. 199 1), overruled by Wagner v. Da ewoo Heavy In dus. Am. Corp ., 314 F.3d 541 (11th Cir. 2002) (en banc). Under Pitt , district courts are required to give plaintiffs at least one oppor tunity to am end a co mplaint b efore the district cou rt dismiss es an actio n with prejudic e. Pitt , 928 F.2d at 1112. Although such leave need not be granted where amendment would be futile, and we think that the issue of futility here is close, the principles delineated in Pitt counsel us to err on the side of generosity to the trustee. B ecause a m ore caref ully drafte d comp laint could conceiv ably state a v alid claim, we VACATE the dismissal and REMAND , with instructions to allow the trustee leav e to amen d his com plaint.
NOTES
[*] Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by designation.
[1] “Little children, you are of God, and have overcome them; for he who is in you is greater than he who is in the world.” 1 John 4:4 (Revised Standard).
[2] First Union completed a merger with Wachovia Corporation in September 2001.
[3] It is an open question in this Circuit whether a bankruptcy trustee may under some circumstances assert creditors’ claims in addition to claims of the estate. Previously, we have held, in a decision expressly limited to the specific facts of that case, that a trustee could not bring such claims. See E.F. Hutton & Co. v. Hadley , 901 F.2d 979, 985-87 (11th Cir. 1990). We do not elaborate on the E.F. Hutton holding today because the trustee limits his argument to those claims derived directly from the debtor, Greater Ministries. See Pls.’ Response to Def.’s Mot. to Dismiss at 12, Record at 24 (specifying that the investors are asserting the investors’ claims and the trustee is asserting the claims of the bankruptcy estate).
[4] We have previously found that a trustee has standing to sue on behalf of a corporation even when the debtor entity was the wrongdoer. See, e.g. , Miller v. San Sebastian Gold Mines , 540 F.2d 807 (5th Cir. 1976); Bailes v. Colonial Press, Inc. , 444 F.2d 1241 (5th Cir. 1971). These cases, however, have been limited to circumstances when the deception of earlier shareholders negatively impacted subsequent, unknowing and legitimate shareholders. In Bailes , for example, we found that a trustee had standing to sue because the corporation had assumed liabilities that, but for the tortious directors’ misrepresentations of the corporations’ liabilities and assets, it would not have assumed. 444 F.2d at 1245-46. The instant complaint alleges that every one of Greater Ministries elders was involved in the Ponzi scheme. There are no subsequent investors
[5] Nor can Payne’s embezzlement be imputed to Greater Ministries. See Seidman & Seidman v. Gee , 625 So. 2d 1, 2-3 (Fla. Dist. Ct. App. 1992) (noting that the wrongs of an individual “acting
[6] The complaint’s allegations pervasively include references to the Ponzi scheme and damage to Greater Ministries’ investors. Since this lawsuit, according to the Appellants, only involves the embezzlement claim, we ignore such “window dressing” and focus on the relationship between First Union and Greater Ministries.
[7] At first reading, the four counts noted above appear almost identical. All four theories of recovery are based on the same set of events and involve the same damages. Teasing them apart, we draw the following distinctions in the trustee’s theories. Count Two, to a large extent, is a restatement of Count One, except that it alleges the commission of a particular tort–breach of fiduciary duties–rather than “crimes and torts” generally. Count Three invokes more directly a duty on the part of First Union to notify Greater Ministries than do Counts One and Two, and also specifies that First Union should have taken active steps to prevent Payne’s withdrawals. Count Four rests on a theory that, whatever duties First Union owed to Greater Ministries prior to 1998, it voluntarily undertook additional duties late in that year by helping Payne legitimize his withdrawals. We do not find that these distinctions, however, merit individualized discussion, since our holding applies equally to each count.
