ORDER GRANTING DEFENDANTS’ MOTIONS FOR DISMISSAL
This adversary proceeding came before the court for hearing on two separate motions for dismissal. One movant was Defendant DZ Bank AG Deutsche Zentral-Genossenschaftsbank,- Frankfurt am Main (“DZ Bank”). It appeared by its attorney, H. Peter Haveles, Jr., Kaye Scholer LLP. The remaining named Defendants (collectively, “the Opportunity Finance defendants”) made the other motion. They appeared by their attorney, Joseph G. Petrosinelli, Williams & Connolly LLP. The Plaintiff (“the Trustee”) appeared by his attorneys, Richard T. Thomson, Stephen J. Creasey, and Amy L. Schwartz, Lapp, Libra, Thomson, Stoebner & Puseh. This decision is based on the written submissions for both motions, the Trustee’s Second Amended Complaint, and the arguments of counsel.
This adversary proceeding is another outgrowth of the largest bankruptcy cases ever commenced in the District of Minnesota — those of Petters Company, Inc. (“PCI”) and certain of its affiliates, BKY 08-45257, and the related group of cases in which the Polaroid Corporation was the lead debtor, BKY 08-46617. The precipitant of the bankruptcy filings was the failure of massive criminal activity perpetrated by Thomas J. Petters. through PCI. Measured by aggregate, losses, it was the largest case of financial fraud in Minnesota history. It appears to have been the third largest Ponzi scheme in United States, history. ...
Before late September, 2008, Tom Petters was a prominent presence in- entrepreneurial circles in Minnesota. After starting in the 1980s as a direct retailer of overstock and surplus merchandise, he built a sizeable corporate edifice under the umbrella of PCI and another holding company, Petters Group Worldwide, LLC (“PGW”). Through PCI, Tom Petters held himself out as an intermediary for the sale and acquisition of merchandise inventory directly between retailers, outside customary producer-retailer channels. In retail-trade circles, this sort of activity'is called “diverting.” After Tom Petters was arrested in early October, 2008, it emerged that the great majority of PCI’s activity was “diverting” of a different sort — a sham, an elaborate Ponzi scheme. Over a period of years, more than 200 parties were involved in lending to PCI that was ostensibly to finance inventory transactions. Post-collapse investigation revealed that such funding was actually used to repay earlier lenders to PCI.
Federal criminal charges were brought against Tom Petters. In connection with them, a receiver was appointed to secure and marshal his assets. Soon after that, the receiver put PCI and a group of its affiliated entities into bankruptcy under Chapter 11. The Trustee’ in the PCI-related cases is engaged in a massive “clawback” litigation effort to remediate the brunt of the scheme’s failure on the lender-investors left unsatisfied at the end.
Apart from his activity through PCI, Tom Petters had acquired interests in independent, established business operations of veiy different profiles; Sun Country Airlines (acquired in full October, 2006); the mail-order retailer Fingerhut Direct Marketing, n/k/a Bluestem Brands (significant equity acquired 2004/2007); and, here, the Polaroid Corporation (acquired in full April, 2005).
The Trustee’s suit is premised on a discrete chain of business and lending transactions. He describes them in the complaint as follows.
In his initial pleading, the Trustee postured this adversary proceeding similarly to the'“clawback” litigation pending in the PCI cases.
However — as will be seen — there are marked differences between the theory and basis of suit for the PCI docket, and, the pleaded factual basis and legal substance of this adversary proceeding. This is a product of the historical boundary line that lies at Tom Petters’s acquisition of the Polaroid enterprise in 2005, when he ceased to be a contractual counterparty with the enterprises’s previous owner and himself took the ownership of the Polaroid enterprise that ended up in bankruptcy.
At this point, the most crucial difference lies at the bottom of the legal framework for avoidance litigation in bankruptcy: the named plaintiffs standing as trustee to bring suit on the subject transfers, and whether his chosen remedy even applies to those- transfers. For a motion for' dismissal, that issue presents the biggest defect in the Trustee’s fact-pleading — transplanted as it was from litigation that featured similar legal claims but different fact-pleading. Were that defect somehow remedied, there is another large gap in the facts he pleads for the relief he seeks'. That one stems from a development in precedential case law that occurred after this matter was sued out.
THE PARTIES; THEIR POSTURE IN RELATION TO THE CLAIMS IN SUIT
The Trustee is the statutory steward of the bankruptcy estates of the Polaroid debtors, the corporate entities that are in bankruptcy in these cases.
PettersCB was the entity in Tom Petters’s personal enterprise structure that did business in consumer electronic goods bearing the Polaroid brand name, before Tom Petters acquired the whole Polaroid enterprise in April, 2005.
The Trustee identifies two multi-membered groupings within the defendants he sues. The first consists of four - natural persons — all members of the Sabes family — plus Sabes Minnesota Limited Partnership, a family partnership formed by them. • (His collective nomenclature for these defendants, “the Sabes Family Defendants,” will be used for consistency.) The second consists of three artificial entities — OppFinLLC, Opportunity Finance Securitization, LLC, and Opportunity Finance Securitization II, LLC (collectively, “Opportunity Finance Entity-Defendants”). Three of the Sabes Family Defendants are alleged to have been connected variously to the' Opportunity Finánce Entity-Defendants, as “a founder” (Robert W. Sabes); the operator “on a day-to-day basis” (Jon R. Sabes); and “a principal” (Steven Sabes). Second Amended Complaint, ¶¶ 9,11,12.
The Trustee names OppFinLLC as the specific defendant-entity that , extended money or credit, via loans, to enable PettersCB to acquire consumer electronic goods for resale. Second Amended Complaint, ¶¶ 40-41, 43-45. It is alleged that OppFinLLC required PettersCB to create a separate entity, Petters Consumer Brands Funding, LLC (“PettersCB Funding”). PettersCB Funding was to serve as a “bankruptcy remote vehicle” for these financing transactions. Second Amended Complaint, ¶46.
OppFinLLC “or other Defendants” are identified as the recipients of payment on
In two other counts, OppFinLLC is also identified as the recipient of a payment of $349,000.00 from PettersCB in April, 2005. The Trustee alleges that those parties denominated this as the satisfaction of a prepayment penalty; ■ but he maintains that OppFinLLC had no entitlement to receive it under law or the terms of any promissory., note. Second Amended. Complaint, ¶¶52-54. The Trustee seeks to recovers corresponding sum under the theories of breach of contract and fraud. Second Amended Complaint, ¶¶ 111-113, 116-123.
The Opportunity Finance Entity-Defendants and the Sabes Family Defendants are identified generally as “initial transferees of’ all identified transfers by PettersCB, or “the persons for whose benefit” the transfers “were made, or immediate or mediate transferees of the' initial transferee.” Second Amended Complaint, ■ ¶ 89. The Second Amended Complaint is virtually devoid of any other fact-pleading on the involvement of the Sabes Family Defendants as participants or recipients.
A third constituency within the defense side, DZ Bank is sued on the terse allegation that it “provided funding to one or more of the Opportunity Finance [Entity-] Defendants,” Second Amended Complaint, ¶ 14, “to fund loans or other investments in one of Tom Petters’ [sic] entities,” Second Amended Complaint, ¶ 31.c. In their motions, the Opportunity Finance defendants and DZ Bank acknowledge this role. Notice of Motion to Dismiss the Second Amended Complaint of DZ Bank AG [Dkt. No. 48], 7-8; Notice of Bearing and Motion to Dismiss Second Amended Complaint of Opportunity Finance [Dkt. No. 49], 4-5.- They assign the title of “senior secured lender” to DZ Bank for its participation in the lending that ultimately went to PettersCB or for its benefit. The Trustee alleges that DZ Bank “withdrew from providing [all] financing” to Tom Petters after it was “unable to obtain adequate assurances from Petters and his entities regarding the existence of the goods which were the collateral for the ... transactions.” Second Amended Complaint, ¶ 31.c.
The Trustee does not plead anything else as to DZ Bank’s involvement in the events sued-on. His theory of liability for DZ Bank appears to lie solely in his global reference to “Defendants” in his pleading on the liability of all defendants “in addition to” OppFinLLC. By that, the Trustee seems to assert that DZ Bank was a “personf ]■ for whose benefit all or part” of PettersCB’s transfers were made, or an “initial transfereeE ] or immediate or mediate transferees of’ OppFinLLC. Hence, the Trustee would háve DZ Bank subject to judgment in avoidance of all transfers held to have been fraudulent in their making, and equally liable for the full amount of judgment. . Second Amended Complaint, ¶¶ 80-83. In a very few words, this pleading hedges all over the place on this part of the Trustee’s case, in multiple permutations — -either DZ Bank was a direct
MOTIONS AT BAR
1. Dismissal, as Originally Sought
In lieu of filing answers, the Opportunity Finance defendants and DZ Bank made motions for dismissal under Fed.R.Civ.P. 12(b)(6), as incorporated by Fed. R. Bankr.P. 7012(b). They structured their motions on the now-familiar argument sprung from the Supreme Court’s decisions, Bell Atlantic Corp. v. Twombly,
In the main, the movants assert their “bankruptcy remote” structure as a bulwark against avoidance. As they would have it, the Trustee failed to recognize the actual transferor to OppFinLLC, which was PettersCB Funding. .Thus, they argue, he has no pleaded claim against any named defendant because PettersCB Funding was an. entity distinct from any of the Debtors, and one that had no creditors at all other than OppFinLLC or its affiliates. Thus, they maintain, the Trastee fails to adequately plead as to either actual or constructive fraud under MUFTA: PettersCB Funding had no - other creditors to actually defraud or to furnish standing under § 544(b), and there is no pleading at all on PettersCB Funding’s insolvency, further, they argue, the ■ payments on which the Trustee sues v/ere repayments of secured debt incurred under their “bankruptcy remote” structure; and as they would, have it, such payments were not transfers actionable under MUFTA at all, or they furnished reasonably equivalent value by -the abatement of antecedent and secured debt. Much of the factual predicate for these arguments does not appear within the four corners of the Trustee’s complaint — the content of which is supposed to be the sole focus of a motion under Rule 12(b)(6). To dodge around this, the movants use easelaw-derived ploys to expand the record for consideration of dismissal.
2. Governing Legal Authority
The Eighth Circuit has applied Twombly and Iqbal many times since their issuance. Under-its rulings, however, there is no change to the- long-recognized, threshold approach to reviewing a complaint’s allegations for their substantive sufficiency under Rule 12(b)(6):
When evaluating a motion to dismiss, we accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, ...
McDonough v. Anoka County,
As noted in McDonough, facial plausibility is present when a complaint’s “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
3. Dismissal, as Actually Warranted
As the defense originally briefed the motions 'at bar, the attack on the Trustee’s pleading was quite involved. Then, the issue billowed out to a massive cumber, through the Trustee’s written response and the oral argument.
Much of that can be cleared out of the way, however. The defense challenges the adequacy of the Trustee’s pleading in two fundamental ways. - Neither defense presentation gets it quite right as to either of those aspects; but in theme and thrust they set out the track. In the end, the Trustee’s theory of suit is fatally flawed. Under the facts pleaded, he does not have a right of recovery in avoidance against any of the Defendants, in his capacity in these cases.
After that, it does not appear that the Trustee can remedy the deficiencies by alternate fact-pleading. The Trustee had the onus to plead a plausible case in the first instance, and indisputable aspects of his pleading deprive him, of that. These fundamental points of historical occurrence and sequence are conclusive, and they cut against any right to relief in favor of the bankruptcy estates. The Trustee cannot deny them now, for a repleading. Thus, granting leave to 'essay an amendment would be futile; these fundaments present an insuperable bar to relief under the only law that the Trustee cites as authority for avoidance.
I. The Trustee’s Standing to Seek the Avoidance of Transfers Made by PettersCB, a Non-Debtor Entity (Counts I — IV)
A. The Issue — As Framed by the Parties, as Reidentified by the Court
Under the turmoil of the parties’ massed arguments there is a threshold issue with the Trustee’s pleading: his standing to sue these defendants under his pleaded theory of suit.
The use of that word is a little misleading, since there is the independent, constitutionally-founded requirement of standing under Article III to bring suit in the federal courts.
The Opportunity. Finance defendants drove at something like this, when they challenged the Trustee by arguing a theory premised on the presence of PettersCB Funding as a “bankruptcy remote vehicle” in the chain of transactional participants. But neither grouping of defendant-movants challenged the Trustee’s standing at the lower level where it seemed to arise— at an asserted participant-nexus through PettersCB, as the ostensible originator of the value transferred that now was to be recovered and as the designated entity that wpuld have .conveyed that value in a fraudulent transfer.
This point was raised w sponte from the bench at oral argument. The Trustee’s counsel had to scramble -to respond, and the response was hone too clear. With that'little input, this issue of standing was left hanging. Nonetheless, there is enough before the court to enable a treatment. Not the least, this is because the Trustee’s pleading on this most basic level is. so deficient, there is not much to say for it — and He could not replead: in .the alternative without unjustifiably contradicting the original.
The Trustee here asserts that 11 U.S.C. § 544(b) empowers him to avoid the payment-transfers he identifies in his complaint. He, however, is the steward of the estates of the Polaroid-related entities that are in bankruptcy in the underlying cases. That circumstance goes to the key point— which is that a trustee’s empowerment under § 544(b) to avoid transfers must derive from the right of a specific creditor of the debtor that is in' bdnkmptc# in the case from which a particular avoidance proceeding is sued. In re Petters Co., Inc.,
Under bankruptcy law, a claim is a “right to payment.” 11 U.S.C. § 101(5). To confer standing on a trustee under § 544(b), the claim'must have a requisite solidity; it must be allowable as conceived by bankruptcy law — i.e., it must entitle its holder to receive distribution from the bankruptcy estate. In re Petters Co., Inc.,
to exercise her § 544(b)(1) avoidance power, the trustee must show that the transfer is voidable under state law by at least one unsecured creditor of the bankruptcy estate with an allowable claim..
In re Marlar,
The Trustee filed his Second Amended Complaint in the wake of these various
And what does the Trastee plead to meet this requirement, for his statutory standing? As follows:
At all times material hereto, there was and is at least one creditor who held and who holds unsecured claims against PCB that were and are allowable under Bankruptcy Code § 502 or that were and are not allowable only under Bankruptcy Code § 502(e). By way of example, and not by way of limitation, such creditors are United Parcel Service, Hewlett-Packard Financial Services Company, NSTAR Electric Company, TW Telecom, Inc., Roadway Express, Agilysys, Inc., Custom FAQs Solutions Ltd, Microsoft Corporation and Microsoft Licensing, GP, AT & T Corp., Nor-wood Municipal Light Department, Wanlida Group Co., Ltd., and other creditors listed on the Schedule F as undisputed obligations of Polaroid Corporation. Pursuant to 11 U.S.C. § 544(b)(1) the Trustee may avoid the Transfers because the Transfers are avoidable under applicable nonbankruptcy law by a creditor holding an unsecured claim in the bankruptcy case.
Second Amended Complaint, ¶¶ 87, 92, 98, 104 (emphasis and double-emphasis added). Yet, earlier in the same paragraphs, the Trustee asserts that
At all times material hereto, there was and is at least one creditor who held and who holds unsecured claims against PCB that were and are allowable under Bankruptcy Code § 502 or that were and are not allowable only under Bankruptcy Code § 502(e).
Id. (double-emphasis added). This is the Trustee’s basis for the ensuing'reference-back to “such creditors.” As noted, earlier in his Second Amended Complaint the Trustee set up “PCB” as a collective reference to PettersCB and Debtors Polaroid Holding Company and Polaroid Consumer Electronics, LLC. This appears to stem from his conclusory assertion that Polaroid Holding Company and Polaroid Consumer Electronics, LLC “are the successors in interest to” PettersCB. Second Amended Complaint, ¶ 1.
But ... every last bit of the Trustee’s pleading of historical fact supports only one possible inference: there were. only two possible actors as transferor in the string of transfers on which he sues, PettersCB or PettersCB Funding, in their individual corporate right. And this could be no other way; every last impugned payment is dated to a time before Tom Petters acquired the Polaroid enterprise in April, 2005. Every one is said to have been made- by, or through, PettersCB or the related PettersCB Funding.
Both of those entities are said to have been within Tom Petters’s own enterprise structure. Second Amended , Complaint, ¶ 5. Likewise, Polaroid Holding Company and PCE came within Tom Petters’s enterprise structure ... eventually. But, despite the mumbling-together of these two Debtors and PettersCB under the muddled pleading-tag of “PCB,” the Trustee never alleges that Polaroid Holding Company and PCE were actually involved as transferors or chain-participants, for a single one of the impugned transfers. So even though the pleading defines its abbreviation of “PCB” as including these three very different entities, “collectively,” the only rational way to interpret the Tras
Further clouding the waters, the Trustee generally identifies “the detriment [to] PCB’s creditors” as the result of “the use of PCB by its ultimate owner, Thomas J. Petters.” Second Amended Complaint, ¶ 19 (emphasis added).
B. Outcome on the Fundamental Issue
In the most direct sense of the problem at bar: the Trustee can not have standing, in the sense of a fiduciary-plaintiff empowered by bankruptcy law to sue for the avoidance of any transfer made by PettersCB or by PettersCB Funding. Neither of those entities are among the Debtors in the underlying cases in which he serves as a steward of the estates. Henee the Trustee has no legal status at all, directly as to PettersCB or PettersCB Funding, their creditors if any, and any aspect of théir past business activity.
The Trustee’s terse, eonclusory identification of two of the named Debtors as “successor in interest” to PettersCB does not fill this void. In the first place, there is no pleading for this adversary proceeding, as to any transactional sequence through which they would have become “successors in interest” to PettersCB in any way. The Trustee does not allege a merger of whole entities, a conveyance of assets or assignment of attributes, a substitution of contractual parties through novation, or otherwise. During the Trustee’s fleeting proffer at oral argument, it- was suggested that merger was the vehicle; but from that it was quite unclear as to which entities would have been melded by merger and to what consequence.
MUFTA’s remedies are “[d]e’signed to ‘prevent debtors from placing property that is otherwise available for the payment of their debts out of the reach of their creditors....”’ Finn v. Alliance Bank,
When these requisites .for creditor-standing under MUFTA are recognized, the flaw gapes wide open in the Trustee’s pleaded notion of his own standing. It is best-expressed by a question: in December, 2008, how could a creditor of Polaroid Holding Corporation or PCE have justified reaching back beyond the line of April, 2005, to sue a transferee of PettersCB ? The absurdity of the notion is clear, if such a creditor held a claim that arose from direct contractual privity between it and Polaroid Holding Corporation or PCE. A transfer made by PettersCB years earlier would not have deprived such a creditor of anything at all, to which it could have
- Looking far afield of that direct scenario, a set of facts can be envisioned that would structure-out under the ■•Trustee’s premise that Polaroid Holding Corporation or PCE are objectively-traceable successors in interest" to the named transferor, PettersCB. This would require a very specific stacking.of historical events, however:
1. The creditor’s claim accrued ■ before Tom Petters’s acquisition, as a result of direct contractual privity between it and PettersCB or PettersCB Funding.
2. The claim would have accrued during the period of the challenged transfers, or at least before PettersCB and Pet-' tersCB Funding passed out of the picture by merger or dissolution.
3. The creditor’s claim was not paid timely under its own térms.
4. The creditor’s claim was not satisfied before Petters CB was merged into Polaroid Holding Company and PettersCB Funding was dissolved.
5. The liability on the debt was .expressly preserved and passed to one of the Debtors as part <?f the complex of transactions through which Tom Petters changed his alignment with the Polaroid enterprise by acquiring that enterprise in full.
To be legally viable, however, such a succession of creditor-entitlement would require an express, objective undertaking by all involved parties. Under the general principles of contract law, an enforceable passage of a liability of PettersCB could not have occurred by the unilateral doing of Tom Petters through his entities’ acts; it would have required objectively-manifested consent of all three parties to. the crucial fifth step, through -a novation, of some sort.. This would include the creditor. Hanson v. Nelson,
This sequence of events would not-have been entirely impossible. But how plausible is it, that it would have occurred? Lenders or trade suppliers generally make their decision to extend credit based on the worthiness of the specific party they are dealing with; and after that is done, and a debt created, it is more likely that they would take a proffered merger as an opportunity to get clear'on the account, even if they countenance doing business with the new entity in the future. A thorough vetting of the incoming merger-partner might override the natural motivation to get an existing credit paid off and then start from even., But absent that, it is just not plausible that novations would have been suffered by the creditors of PettersCB, expressly or implicitly.
And more to the point of the motions at bar: the Trustee pleads absolutely nothing, to support a legal status as successor-in-interest for either of the two named Debtors, with actual novations or otherwise. The Trustee does plead other facts going to' standing. But,. they cut in a different direction — and that one is even more wrong. • The predicate creditors ac
As a result, there is no basis in the Trustee’s present fact-pleading on which to accord him statutory standing to sue the defendants on transfers they received from PettersCB.
This multiple layering of defects on the threshold issue of standing is fatal to Counts I — IV of the Trustee’s complaint. Those counts fail to state a claim on which relief under MUFTA might be granted to the Trustee as to the transfers he sues on. This merits dismissal under Rule 12(b)(6). It is not possible to conceive of any alternate set of facts to set up standing for the Trustee, absent irreconcilable conflict with the historical facts already pleaded. That means that a grant of leave to amend would be futile. So, the dismissal of all counts founded on MUFTA must be .with prejudice.
II. Bankruptcy Estates’ Right to Sue on Claims Under State Law (Counts V — VI)
Under two other counts of his Second Amended Complaint, the Trustee seeks a recovery on a single, separate, discrete payment made — in the amount of “approximately $349,000.00,”- disbursed to OppFinLLC o'n April 27, 2005, “as a prepayment penalty.” Second Amended Complaint, ¶ 52. Ue does not allege in so many words that this payment was made in connection with' the Opportunity Finance-PettersCB financing relationship. But there is a reference to how the “notes upon which the Prepayment Penalty Transfer was made ... expressly provided for prepayment -without penalty,” Second Amended Complaint, ¶ 54, and the Opportunity Finance-PettersCB relationship involved lending, in very large total amounts, Second Amended Complaint, ¶¶ 43-44. The Trustee does not ever state that the lending was documented through promissory notes. But one can assume that was done; this would have been the only eommpreially-reasonable way to handle it. Thus the place of this payment within that broader financial relationship is inferred as an additional assertion of fact.
That is the only pleading of fact on this cause of action. From there, it gets corn
In Count V, the Trustee, characterizes the extraction of this payment as a breach of contract. The assertion is that the underlying notes on which OppFinLLC demanded payment “expressly récited that there would be none,” i.e. any prepayment penalty. Second Amended Complaint, ¶¶ 111-113.
In Count VI, the Trustee pleads that OppFinLLC “represented [to PettersCB] that $12,039,403.78 was owed to [OppFinLLC] on the Prepayment Penalty Notes, $349,000 of which amount was a prepayment penalty.” Second Amended Complaint, ¶ 116. He then characterizes this demand as a statement of “then-present, material fact that was capable of being known by” OppFinLLC, Second Amended Complaint, ¶ 118; that was false, Second Amended Complaint, 1117; that was made by OppFinLLC with Iqiowíedge of its falsity, Second Amended Complaint, 11119; that was “reasonably and foreseeably relied upon” by PettersCB, inducing it to make the payment, Second Amended Complaint, ¶¶ 120-121; and that PettersCB was damaged by the loss of the funds paid on the demand, Second Amended Complaint, ¶¶ 122-123.
So much for the fact-pleading for Counts V and VI. Facial persuasiveness aside, they seem to be simple claims' under the common law for money damages. It gets a little confusing in the Trustee’s prayer for relief, however. Citing a mash-up of ¶¶ 544(b), 550(a), 551, and “the common law of Minnesota,” the Trustee categorizes his desired relief as:
(a) avoiding the Prepayment Penalty Transfer, including but not limited to an avoidance of all of the obligations and pledges of assets made in favor of Defendants; ■ -
(b) preserving the avoided Prepayment Penalty Transfer for the benefit of the bankruptcy estate; and
(c) awarding a money judgment in favor of the Trustee against Defendants in the amount' of the Prepayment Penalty Transfer, plus pre- and post-judgment interest, 'ahd costs and disbursements....
Second Amended Complaint, Prayer for Relief, ¶ C. Then an odd little request strays in. It cannot be matched to any of the fact-pléading and it is facially nonsensical:
On all Claims for Relief, establishment of a constructive trust over the proceeds of the Transfers in favor of the Trustee for the benefit of PCB’s estate —
Second Amended Complaint, Prayer for Relief, ¶ D (emphasis added).
Counts V and VI fail to state a claim on which relief may be granted to the Trustee, postured as1 he is in his fiduciary status for the Debtors’ estates.- There are two reasons and they are qualitatively different.
The first is technical in orientation. It goes to the substantive sensibility of these counts’ pleading,'and it goes back from the end. As to Counts V — -VI, the Trustee’s full prayer for relief is blather — an anomalous and gratuitous slathering of the language of avoidance remedies over simple fact-pleading for common-law causes of action. One cannot even speculate why all that was added. Not a bit of the pleaded fact for Counts V and VI matches to any substantive, requirement under MUFTA.
The second goes back to the Trustee’s bedrock statutory standing, though the pivotal point is different due to the pleaded substantive basis for recovery under these counts. Postured as they are — claims for damages under nonbankruptcy law— Counts V and VI are the sort of thing that
However, the Trustee’s pleading does not and can not establish that these causes of action passed into the bankruptcy estates of any of the named Debtors. Any injury and harm under the described facts (breach of contract, fraudulent inducement, resultant damages) would have been inflicted in 2005 on PettersCB, not on any of the named Debtors. PettersCB did not go into bankruptcy in its own right. It is not in bankruptcy as a debtor-entity in any of the cases within the Polaroid Corporation group. The Trustee’s bald assertion that two Debtors are currently successors-in-interest to PettersCB does not fill the gap in a chain of right — both for the reason treated earlier (no pleading as to how that would have happened) and because there is no separate fact-pleading as to how PettersCB’s loss of the monies would have legally injured or factually harmed either Debtor, years afterward. There is no plausible basis in the Trustee’s pleading of fact through which either Debtor would have- held these particularized causes of action when they filed for bankruptcy, to pass into their estates on those filings.
The Second Amended Complaint does not' state a claim on which relief under Counts V and VI could be granted in favor of any of the Debtors’ bankruptcy estates, and in particular for the Polaroid Holding Corporation and PCE estates. Again, the circumstances do not warrant giving the Trustee another chance to plead additional factual basis for a specific succession of property rights in claims against third parties, from PettersCB to. either, named Debtor. The Trustee had three opportunities to flesh out a defensible structure for assenting these claims. None of the versions of his complaint shows any more thought as to how he was , empowered to sue on them. Thus, Counts V and VI are to be dismissed, with prejudice and without grant of leave to further (fourth) amend.
HI. Avoidability of Transfers Made by PettersCB on Financing Transactions with Opportunity Finance Defendants, as a Substantive Matter
Its pleading on standing aside,, .the Second Amended Complaint still founders under Rule 12(b)(6). On the pleaded facts, its. fraudulent transfer claims fail on their substance. This follows from the Minnesota Supreme Court’s most recent application of MUFTA, Finn v. Alliance Bank. Finn ’s_ precedential rulings apply on-point to the pleaded transactional facts here.
Finn’s holdings are fact-driven. They spring from the specific factual content of the pleadings or the evidence that was presented, to the trial court in that case.
The major Finn-driven shortcoming blazons early in the Trustee’s complaint:
... For example, unlike many of Tom Fetters’ companies, PCB actually purchased, warehoused, and sold to prominent retailers high volumes of consumer electronic equipment, branded with the “Polaroid” name[,]
Second Amended Complaint, ¶ 24 (emphasis added); and
PCB used' such money, credit, or purported assumptions of debt to purchase consumer electronics for resale to retailers like Best Buy or to cause payments to third parties claiming rights in, or otherwise concerning, such consumer electronics[,]
Second Amended Complaint, ¶ 41 (emphasis added).
The 'description of transactional fact here is declarative and unequivocál. Paragraph 46 of the Second Amended Complaint, describes a structure through which' the financing, acquisition and sale of consumer-goods inventory, accounts receivable, collection, and the eventual repayment of OppFinLLC were to be administered toward the intended “bankruptcy remoteness,” contrived to insulate OppFinLLC from liability in avoidance. Then, as a- flat statement of historical events over the course of the two-year relationship, the Trustee describes the actual use of the structure, or parts of it, to lend monies out of OppFinLLC, toward PettersCB’s actual acquisition of real goods. There are the two statements of general historical fact in ¶¶24 and 41. Then there is:
Contrary to the plan, the Consumer Goods Loan advances were given directly to PCB, not to PCB Funding.
Second Amended Complaint, ¶49.
Regardless of whatever theoretical efficacy the plan might have had, however, Opportunity Finance, PCB, and PCB Funding did not follow it---- When Opportunity Finance swept, the PCB Funding bank account to pay itself the principal and interest due on it? loans, Opportunity Finance returned the excess — ie., what should have been profit belonging to PCB Funding on PCB Funding’s purchase of the accounts receivable from PCB — to PCB, not to PCB Funding. Thus, whatever the paperwork might have said, the parties did not treat PCB Funding as the owner of the accounts receivable. This means that the transfer of the proceeds .of the accounts receivable was made directly toOpportunity Finance by PCB, not PCB Funding____
Second Amended Complaint, ¶ 48 (emphasis added).-
That much is overtly acknowledged about PettersCB engaging in actual merchandise transactions in real life, financed by the lending from OppFinLLC. More crucially, the Trustee’s fact,-pleading on PettersCB’s transactions with OppFinLLC lacks something else. The Trustee never alleges that any of the money PettersCB borrowed from OppFinLLC was diverted mvay from real transactions in Polaroid-licensed merchandise, in fraud of OppFinLLC or any other person or entity. He never pleads that money originated by OppFinLLC was funneled through PettersCB into the main churn of Tom Petters’s Ponzi scheme — the activity that Tom Petters carried on throúgh the core of PCI, broadly pretensed on non-existent “diverting” transactions in ostensibly-preexisting consumer merchandise inventory. Nor does he ever accuse Tom Petters of using a separate scheme-structure like PCI’s in 2004-2005, that would have been centered around an, exploitation of the Polaroid brand and maintained to defraud lender-investors under -a specific pretense of dealing in Polaroid-branded merchandise.
To coin a colloquialism in resonance with Finn, it all pleads as legit, in the transactional backdrop. The Trustee cites only one external term of the loans from OppFinLLC as anomalous in his estimation, or out of line with a fair exchange of equivalent value: the interest rate ultimately borne by PettersCB, said to have been “12% per annum.” Second Amended Complaint, ¶ 63. The Trustee impugns this as excessive, “substantially [greater than] the market rate” for such transactions. Second Amended Complaint, ¶!¶ 64, 67. But that is only a conclusory pronouncement; the Trustee does not quote actual contemporaneous, prevailing market rates for similar lending, to make out the excessiveness, Without that, it seems as if the accusation was made in order to reinforce the ensuing characterization: the aggregate interest was “false profits” paid to OppFinLLC. Second Amended Complaint, ¶¶ 65, 67.
In context, “false profits” is a loaded phrase. Trustees in Ponzi-scheme cases use it as boilerplate argument for á specific aspect of the payment of interest out of a Ponzi scheme. In this parlance, “false profits” received by a transferee are said to be paid by using stolen money-cash infusions from later-defrauded investors— to satisfy earlier-maturing obligations to other investors for interest or dividends. In this latter-day usage, the phrase “false profits”'is wielded evocatively, to draw a sharp distinction from the genuinely-earned fruits of business investments in the real world. Ponzi scheme perpetrators use the pretense of that to induce new investors to -pay in; hence the notion of payments received from a scheme’s fraudulent churn as derived from “falsity.”
But the Trustee here does not use the term for the situation for which it was crafted. Rather, he slaps it onto the return on investment from financing genuine deals, on the sole pleaded ground that the rate on the lending was somehow excessive, predatory. He also tries to impugn PettersCB’s engagement in actual deals as a part of a broader pretense, to draw investors into the fraudulent operations
The Trustee pleads this toward a key-statutory element of the ' theory of constructive fraud under MUFTA, a lack of reasonably equivalent value received by PettersCB for the transfer of monies to OppFinLLC in payment. Minn.Stat. §§ 513.44(a)(2) and 513.45(a) (2014). The nexus between these facts and the law, however, is none too clear from the Trustee’s complaint as a whole.
At one point, Second Amended Complaint, ¶40, the Trustee seems to invoke the third component of the Ponzi scheme presumption as it'was later divided out in-Finn, “that, any transfer from a Ponzi scheme was [conclusively] not for reasonably equivalent value,”
The Finn court rejected a Ponzi scheme presumption across the board, as to all three of the component presumptions it gleaned from the earlier analysis by the Minnesota Court of Appeals.
The Trustee’s pleading on reasonably equivalent value- lacks this specificity, or any at all. As he would have it, no lending to PettersCB could have furnished a platform for a corresponding receipt of value when it repaid the ■ debt later: OppFinLLC’s original lending to PettersCB was worthless, because it only prolonged an inherently unprofitable operation in PettersCB, not sustainable within its own confines. There is only one fact-allegation more specific than that, and it is barely so: the merchandising of Polaroid-branded goods and the operation of PettersCB were maintained only as a front, to bolster a pretense of high overall success for Tom Petters personally so he could draw other investors into the PCI-centered scheme.
Even when the Trustee originally advanced this notion, it overreached the logic of thé Ponzi scheme presumption under the precedent he used. • In the original federal framing, only payments- made by a perpetrator “in furtherance of the scheme,” are subject to avoidance. Finn,
But, just as the underlying genuine loan-participation transactions did for the perpetrator in Finn, the actual deals pleaded by the Trustee provided PettersCB'with a “legitimate source of earnings” with which to pay OppFinLLC, on debt that had been taken on to finance those very deals. Cf.
On a more limited, scale, the Trustee, does not allege that ..any-net- profit from PettersCB’s transactions was transferred, to the PCI, structure to offset an operar tional insolvency there. The pleaded allegation.actually cuts to the opposite sort of flow,- that “[a]t the times of the Transfers, [PettersCB] was capitalized and propped up with funds obtained by fraud through the Ponzi scheme.” Second Amended Complaint, ¶ 70; also, Second Amended Complaint, ¶ 57.
In relation to the central scheme within Tom ■ Petters’s organization; only one role for PettersCB is pleaded in the Second-Amended Complaint, or can be reasonably inferred from it: “to give [Tom Petters’s] business activities,” “himself and his organization,” a “false air” or a “false appearance” of “legitimacy.” Second Amended Complaint, ¶¶24 and 42. But otherwise the Second Amended Complaint depicts PettersCB as standing separately, with its transactions and transfers divorced structurally and operationally from the central churn of money within the Petters scheme.
That gave enough reason to reject the Trustee’s pleading on its substance under MUFTA, on its original legal sensibility. In any event, Finn conclusively bars the only theories that could be underlying the Trustee’s pleading . under MUFTA, for both of its variants;
As to MUFTA’s actual-fraud variant, the Trustee-seems to rely in his pleading on'a presumption of fraudulent intent, triggered by Tom Petters’s concurrent ihvolvement in a Póñ&i scheme — not only with other parties ’but through entirely different entities within his enterprise structure.' Second Amended Complaint, ¶¶55-57. ' Finn’s summary of the presumption of intent accurately describes the Trustee’s theory on intent here: Tom Petters, as the perpetrator of a Ponzi scheme, “invariably intended] to cheat all investors” he induced, no matter what the nature of their' deals, and hence any and all transfers he made to any and all investors were “made with fraudulent intent,” no matter their source. 860 N,W.2d at 647. Thus,'ais the 'Trustee pleads, he would be entitled to á broad-brushed presumption of such intent for all payments that PettersCB funded " for the satisfaction of OppFinLLC’s lending to PettersCB. But Finn rejects such a presumption,' to the extent it would apply to every single transfer. of property made by a transferor that was concurrently perpetrating a Ponzi scheme. 860 N.W.2d at '647-648.
The Trustee does try to plead the alternate factual basis for a, finding of fraudulent intent, the badges-based approach of Minn.Stat. ‘ § 513.44(b), (2014). Second Amended Complaint, ¶¶ 28-35. 'intent to defraud investor-creditors within the broader context of a Ponzi scheme may be proven in this way. Ritchie Capital Mgmt., LLC v. Stoebner,
The reasons are somewhat , more involved for MUFTA’s constructive-fraud variant, but Finn defeats the Trustee’s pleading under that as well. The Trustee would have it presumed that PettersCB,or PettersCB Funding did not receive reasonably equivalent value for the monies they directed to satisfy OppFinLLC. It is not clear whether he directs this to the full amount paid. It is safe to assume that he would avoid the payments at least to the extent of their ostensible interest-component, under rulings extant when he made his second amendment. In re Petters Co., Inc.,
The Trustee asserts the benefit of this presumption, on his summary assertion that “[d]uring the time at issue .... (2003 through 2005), Tom Petters used [PettersCB] to further his Ponzi scheme,” as “one component of the larger Ponzi structure ..-. used ... to ■ give his business activities a false air of legitimacy and to extend the duration of the Ponzi scheme.” Second Amended Complaint, ¶24. Yet again, in the same breath the Trustee admits that PettersCB “actually purchased, warehoused, and sold” real Polaroid-branded goods. Id. There is a gratuitous accusation that Tom Petters “used [PettersCB] to launder money from his Ponzi scheme.” Second Amended Complaint, ¶25. That allegation is isolated, opaque, and conclusory. In the same breath, it is pled that Tom Petters diverted money generated from the'main churn of his scheme'' into ''PettersCB, “to run [it] and prop up its losses.” Id. This statement is no less conclusory. • But more to the fact, it does not plausibly support the notion of Tom Petters using the operation of PettersCB to further the scheme he was carrying on through other' entities and with other investors. The money would be running the wrong way. He does not plead that any funds sourced in OppFinLLC were diverted away from the contractually-contemplated transactions in Polaroid-branded goods, to the satisfaction of previously-défrauded investors into the main scheme'Or otherwise. And there is the more general pleading that would have PettersCB incorporated into’ the main operation of the PCl-based scheme. Second Amended Complaint ¶¶ 55-57. That has been rejected already due to its conclusory character, devoid of plausible supporting fact-content.
To the extent that the Trustee relies on the component presumption of no reason
Finn’s major ruling was its rejection of the Ponzi scheme presumption for MUF-TA. But the opinion went further than that, to treat at least one aspect of the substantive reach of MUFTA, in clawback litigation. Outside the lawsuit at bar, there is currently a pointed and bóna fide controversy over the full reach of Finn into the main churn of a Ponzi scheme.
Here, when the Trustee pleads as historical fact the .transactional staging tor ward the .transfers he would avoid, he does not identify anything but real-life transactions. AlLof them were .financed by money generated by OppFinLLC. He does not plead any facts to directly place any transaction into the layered lies of the main churn of Tom Petters’s Ponzi scheme — which involved wholly fictitious transactions of a different nature. At most, he suggests that the money from OppFinLLC and the real-goods transactions was augmented with outside funds to meet the operational needs of PettersCB. Second Amended Complaint, ¶70. (“At the' times of the Transfers, [PettersCB] was capitalized and propped up with funds obtained by fraud through the Ponzi scheme.”)
This, too, is conclusory and unilluminating— certainly not plausible support for a theory oí liability under a complicated statute. Also, it is inappropriately colloquial— “propped up” is neither a legalism nor a legal term of art, and. the gist of the accusation is opaque. At most, the epithet suggests that the funds traceable ;to and from'OppFinLLC and through the real-goods transactions were commingled, with some funds funneled Out of the PCI-centered scheme, toward some' undisclosed use by PettersCB. Under Finn, any such commingling is irrelevant. The Ponzi scheme perpetrator there commingled honestly-used funds with dishonestly-obtained funds,
Finn was issued after ihese motions were submitted. As binding precedent, Finn unquestionably speaks to one scenario out of a failed Ponzi scheme; and it rejects MUFTA’s application to it. That very fact-pattern is the one. that appears on.,the face of the Trustee’s pleading against the Opportunity Finance defendants. A complaint based solely on that does not plausibly lay out a claim on which relief may be granted.
There is no way that the Trustee could replead an alternate set of facts to counter this effect of Finn, without indefensibly contradicting the factual premises for his présent theory of recovery'. It would be futile to grant leave to replead on the merits under MUFTA.
IV. Liability of DZ Bank
In the wake of that analysis, there is virtually nothing to defend the adequacy of the Trustee’s pleading against DZ Bank. He does not plead any facts to make out DZ Bank as an initial transferee of the payments made by PettersCB. In fact,
From the terse and opaque pleading, it is 'more likely that DZ Bank is sued as a subsequent transferee. The failure of the Trustee’s action against the Opportunity Finance defendants bars him from recovering from DZ Bank. A trustee may recover from “any immediate or mediate transferee of [an] initial transferee.” In re Sherman,
Thus, DZ Bank is entitled to the dismissal of the Trustee’s complaint, as vaguely-worded and-framed as it is toward that defendant.
OUTCOME
There is no repair for the fact-pleading in. the Trustee’s Second- Amended Complaint. Due to several serious, fundamental flaws, it fails to plausibly set forth a factual basis on which he could recover on any of his pleaded legal theories against any of the defendants.
ORDER
IT IS THEREFORE ORDERED that this adversary proceeding is dismissed, in its entirety and'with prejudice.
Notes
. See, e.g.. In re Petters Company, Inc.,
.- ’ PGW or other entities in Tom Petters’s complicated enterprise structure were the vehicles for these acquisitions.
. It has been alleged that Tom Petters diverted cash from the PCI enterprise structure into the operations of the Polaroid enterprise after his acquisition. This would have happened during the time that the Polaroid enterprise was trying to develop new, digitally-based product lines to replace its phased-out legacy business of instant-film photography. It has been alleged that the cash infusions partially supported the operations during that time. (These points of fact are relevant to other litigation in these cases and the PCI cases; thus these summaries of party-allegations are not findings on the facts themselves.)
.The Polaroid debtors filed under Chapter 11 in their ,own right in late December, 2008. The most significant assets of the Polaroid debtors Were sold in May, '2009 through a process structured under 11 U.S.C. § 363.
. This is a summary of fact-pleading, with some judicial observations about the gist of the facts pled. There are no findings of fact here.
. In light of his later acquisition, it is possible that Tom Petters was using this experience to test-drive the Polaroid brand ant} its market strength at that time.
. The Opportunity Finance defendants have been sued in two adversary proceedings on the litigation docket in the PCI cases,'ADV 10-4301 and ÁDV 10-4375. Those matters concern transactions between the Opportunity Finance defendants and PCI, transáctións that were entirely distinct from the ones at issue here. However, blurring a line, the Trustee here asserts that some of his theories of liability under 11 U.S.C. § 550(a) are founded on his ‘‘belief ____based in part on documentation surrounding the [tjransfers” that are at- issue in the PCI adversary proceedings. Second Amended Complaint [Diet, No. 46], ¶ 80. Whatever that means.
. Subject to an exception not applicable .here, this statute provides:
. ,,.,the trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voi’dáble under applicable law by a creditor holding an- unsecured- claim that is allowable, under [11. U.S.C. § ] 502 ... or that is not allowable only under [11 U.S.C. §] 502(e)....
11 U.S.C. § '544(b)(1)."
. In application, § 544(b)(1) enables the trustee to invoke the. state substantive law of fraudulent transfer, if an unsecured creditor could have used it outside of bankruptcy to challenge its debtor’s transfers of assets. E.g., In re Marlar,
. In 2015 MUFTA was amended and retitled using a new uniform law,, the Uniform Voidable Transactions Act.201-5 Minn. Laws, ch. 17. The enactment made changes to vocabulary and some substance, but the large bulk of MUFTA’s 'provisions is .still law. The amend
. See In re Petters Co., Inc.,
. "The Polaroid debtors” will be a collective reference to the specific entities named in the caption for the underlying cases — i.e., the entities that are in bankruptcy, in these cases and-before this court.
. The sale process under § ¡363 was conducted and a' sale was consummated while the Polaroid debtors were-still debtors in possession. After that, the cases were converted on motion of the United States Trustee; there was no longer a going concern' and liquidation under Chapter 7 was adjudged to be in the better interests of creditors than post-confirmation liquidation under Chapter 11.
.The use of an expanded form of abbreviation for this entity is deliberate, to draw that ■ temporally-driven distinction. So far the parties to this lawsuit have used "PCB” to signify PettersCB. However, "PCE ” — Polaroid Consumer Electronics, LLC — is present as a debt- or and a historical participant in later events, and its past dealings are in active controversy in pending litigation in these -cases. As came out at oral argument, the "PCB” cognomen
. As the Trustee pled the terms of the arrangement, PettersCB Funding was to be ah intermediate participant in the financing. OppFinLLC as lender was to advance directly to PettersCB Funding; PettersCB Funding would readvance to .PettersCB to fund PettersCB’s actual transaction in Polaroid-branded goods; PettersCB Funding would receive PettersCB’s pledge or assignment of the resulting account receivable as' security; PettersCB Funding would then receive the payment from PettersCB’s customer on PettersCB’s direction; and PettersCB Funding would allow OppFinLLC to make an authorized sweep of PettersCB Funding’s bank account to satisfy OppFinLLC on its lending. Second Amended Complaint, ¶ 46. The excess of the account balance over the debt payment was to' be PettersCB Funding’s property. ' Id. ■
. This pleaded assertion is a reference to DZ ■ Bank’s separate engagement in senior secured lending to PCI for the ostensible, diverting transactions. Context suggests that DZ Bank’s senior secured funding for the Polaroid-related transactions here did not outlast the PCI-related lending. . .. .
. Subject to exceptions not relevant here, this statute provides:
.. .to the extent that a transfer is-avoided under [11 U.S.C. § ] 544, ... the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from—
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or , ,
(2) any immediate or mediate transferee of such initial transferee.
. Before Twombly and Iqbal, the standard for pleading under Rule 8(a), as applied under Rule 12(b)(6), was couched by Conley v. Gibson,
. See Braden v. Wal-Mart Stores, Inc.,
. To summarize what was noted earlier: the Opportunity Finance defendants’ argument was that PettersCB Funding would have been the transferor on any payment made on a debt to OppFinLLC, under the terms of the "bankruptcy remote” structure' that OppFinLLC had required of Tom Fetters before it would lend on these transactions. PettersCB Funding was deliberately set up to be an entity permanently without debt to outside, third-party creditors; so, the movants insist, there never'could have been a “predicate creditor” that could have sued OppFinLLC outside of bankruptcy; and hence the Trustee could not haye been empowered under § 544 to sue any recipient of payment from funds that originated in PettersCB’s business transactions. This' argument did point oút a gap— but it was at a higher level, under the statutory requirement of a predicate creditor that would furnish a trustee the derivative status of plaintiff. And, it tacitly assumed that the Trustee could- take his .standing through PettersCB or .PettersCB Funding — the unrecognized point of elision in the Trustee’s theory of suit.
.That would be pursuant to 11 U.S.C. § 704(1), the direct resort to assets that were in the possession, ownership, or right of the debtor as of the bankruptcy filing.
. In the same opinion, the Eighth Circuit rejected the notion that the vesting of a general equitable power in the court under the."all-writs act” of 11 U.S.C. § 105(a) was a third, independent source of substantive empowerment to sue.
. This all flows directly from the language of the statute, quoted Supra at p. 891, n.8.
. The Trustee alleges that the creation of PettersCB Funding in mid-2003 and its presence in the transactional chain after that were essentially a sham, because OppFinLLC and PettersCB never treated it as a separate corporate entity in the way they funneled funds to and fro. Second Amended Complaint, ¶¶ 47-51. He thus pleads as if PettersCB was the transferor-in-fact. All of the defendants insist that PettersCB Funding must be treated as the transferor because of their contractual structure for bankruptcy-remoteness. They do not acknowledge a • possibility that the .Trustee insinuates: in the rapid-fire, multiple, exchanges of money that Tom Petters favored, other participants may have jumped over PettersCB Funding for at least some transfers,' making payments directly to PettersCB notwithstanding the niceties of the structure. For present purposes, it is not necessary to get into this dispute.
. This sets aside the possibility thqt PettersCB Funding did not even have corporate existence when any of the Debtors filed for bankruptcy, or when the Trustee sued out this adversary proceeding. See Certificate of Cancellation of PCB Funding, LLC, Exh. 3 to Opportunity Finance Motion' for Dismissal [Dkt. No. 49]. (The Opportunity Finance défendants slipped in this document under the guise of being "necessarily embraced by” the Trustee’s pleading, and therefore properly considered on a motion under Rule 12(b)(6). Generally speaking, defendants moving for dismissal under Rule 12(b)(6) take excessive liberties in using this ploy to stretch the content of the record. In re Petters Co., Inc.,
.The structural process of the acquisition was described in the complaint in a different adversary proceeding, one brought jointly in the Petters Company, Inc. and Polaroid Corporation cases:
In April 2005, [the] Polaroid Corporation became a wholly-owned subsidiary of PGW pursuant to a merger between [the] Polaroid Corporation’s then-parent corporation, Polaroid Holding Company and Petters Consumer Brands, LLC.... PCB was a wholly-owned subsidiary of PGW.
Kelley, et al v. JPMorgan Chase & Co., et al, ADV 10-4443 [enumeration in PCI cases] and
. It logically could not have been both: how could a corporate body split but then directly merge parts of it as distinct entities with more than one preexisting, separate corporate body? And if per the cited pleading in ADV 10-4444 Polaroid Holding Company nested into PGW’s enterprise structure, i.e. by a merger with PettersCB, how did the separate entity of PCE become a “successor in interest” to PettersCB in a legally-cognizable way? PCE, a distinct corporate entity, is a subsidiary of the Polaroid Corporation-which in turn would be a subsidiary of Polaroid Holding Company. The Trustee's failure to plead any factual basis for a succession is ever more vexing. And this all makes the Trustee’s little flourish of pleading seem ever more .facile— i.e. his collective definition of his pleading-tag "PCB” for assertions of historical fact and his térsely-worded identification of both of the Debtors as "successors in interest.”'
. For that matter, he would lack Article III standing on the same analysis.
. Finn came out of avoidance litigation brought by the receiver for a failed business entity that had been the vehicle for a Ponzi scheme. The opinion in Finn was issued on consolidated appeals involving two different defense constituencies in the-lawsuit.
. The reference "PCB” obviously signifies PettersCB alone. It could not possibly be the collective, pleading-Specific abstraction of the two Debtors and PettersCB.
. As noted earlier, the pretense of investing by lending to support ostensibly-profitable retainer-to-retailer flips of consumer merchandise has been alleged as the vehicle of the Ponzi scheme that Tom Petters carried on through PCI.
. This is suggested by the Trustee’s choice of language to make a link between PettersCB’s borrowing and the general Petters Ponzi scheme: "From 2003 through 2005, Tom Petters caused PCB to obtain money or credit from Opportunity Finance, or to assume purported obligations of others to Opportunity Finance, all in . furtherance of the Ponzi scheme.’’ Second Amended Complaint, ¶ 40. Under the 'enunciation of the Ponzi scheme presumption in earlier federal jurisprudence, potential avoidability under the presumption was limited to transfers "in furtherance of" a Ponzi scheme. In re Polaroid Corp.,
. At least in isolation, implications of this notion are mind-boggling. If a corresponding rule of law were adopted, it would have a far greater sweep in the bankruptcy arena than the Ponzi scheme presumption could ever have. Just think of the number of business enterprises that end up in bankruptcy because they were originally launched with shoddy organization, flawed analysis and forecasting, poorly-founded business plans, or inept management. Is every lender to such borrowers to be subject to the avoidance of payments made to them, merely because hindsight suggests that failure was "destined” and "inexorably”?
. This prompts an observation, as superfluous as it may be: the.Finn court could have left the federally-evolved presumption alone, assuming its viability for the sake of analysis. This still would have allowed the affirmance of the trial court's outcomes on the ground that the real-deals-real-proceeds scenarios before it did not "further[] ... the scheme” there. The basic facts cited in Finn could not support a finding that the perpetrator’s scheme was furthered in any concrete way from the engagement in the legitimate deals there. There was one minor option to support such a conclusion — a possible (and only residual) benefit from a deal-specific, limited amount of profit remaining in the commingled bank account of Finn's perpetrator, which then could, be used to. further the scheme. Clearly, the Finn court did not think this would be enough; it did not even men
. At one point (and only one), the Trustee alleges that PettersCB “was part of the Ponzi scheme and destined to fail with the Ponzi scheme, and-... the Transfers furthered, and were intended to further, the Ponzi scheme.” Second Amended Complaint, ¶ 55. He does not allege one thing to answer the crucial question, “How?” The allegation is entirely conclusory, and thus does not suffice under Rule 12(b)(6).
. The pleaded situation here is different from the relationships between perpetrator and transfer-recipient that could entail a "luster factor" palpable enough to find "furtherance" in the making of certain transfers to non-investors. See In re Petters Co., Inc.,
. The Eighth Circuit issued Ritchie Capital Mgmt., LLC v. Stoebner after Finn was rendered, and expressly directed its analysis to the badges-based approach in mind of Finn 's rulings on state law.
. This was the ruling as to the Finn receiver-plaintiff’s action against the so-called "Respondent Banks,” who had challenged his pleaded case on motions for dismissal. Finn really did not address the essential statutory requirement of reasonable equivalence; but it is self-evident that a dollar-for-dollar reduction satisfies it. In re Duke and King Acquisition Corp.,
. This issue is currently under submission in the litigation docket for the Fetters Company, Inc. cases.
. This was the ruling as to the Finn receiver-plaintiff’s action against Alliance Bank, which had challenged the sufficiency of the receiver’s case on a motion for summary judgment.
.Under the federal courts’ development of fraudulent-transfer analysis and the Ponzi scheme presumption, the repayment of principal does furnish reasonably equivalent value ■ to the.perpetrator. However, it is not clear from the Minnesota Supreme Court’s opinion in Finn whether the plaintiff conceded this. The trial court in Finn seemed to have used that substantive rule in granting judgment to the receiver for the recovery of interest. The principle applied was that "any payments received in excess of ... principal investment were wanting in reasonably equivalent value to the transferor.
. It also satisfies half of the elements of the affirmative defense under Minn.Stat. § 513.48(a) (2014), the receipt by a transferee in good faith and for reasonably equivalent value. That alternate significance of reasonably equivalent value is not implicated by these motions.
. Again, this all assumes that the Trustee’s pleading could somehow be tweaked to establish his standing to sue under MUFTA and § 544(b).
. Per .the Second Amended Complaint (and as the Opportunity Finance defendants admit), Defendant Opportunity Finance Securitization II, LLC was set up as a further bankruptcy-remote entity in the chain, for receipt of lent money directly from DZ Bank. Second Amended Complaint, ¶¶ 6 and 14; Opportunity Finance Motion for Dismissal [Dkt, No, 49], 4-5. Apparently the Sabes Family Defendants thought that one bankruptcy-remote entity was not enough and two would be better.