Jonathan E. Perlman v. PNC Bank, N.A. ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10432
____________________
JONATHAN E. PERLMAN,
as court appointed Receiver,
Plaintiff-Appellant,
versus
PNC BANK, N.A.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-61390-RS
____________________
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2 Opinion of the Court 21-10432
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY*, Dis-
trict Judge.
WILSON, Circuit Judge:
Jonathan Perlman, a court-appointed receiver, appeals the
district court’s dismissal of his aiding and abetting claims on behalf
of the companies in receivership (the Receivership Entities) against
PNC Bank. The district court granted PNC’s Rule 12(b)(1) motion
to dismiss for lack of subject matter jurisdiction because it found
that Perlman lacked standing to bring those claims. The district
court relied on our decision in Isaiah v. JPMorgan Chase Bank, 960
F.3d 1296, 1308 (11th Cir. 2020), which held that the Receivership
Entities must have “at least one innocent officer or director” and
thus be “honest corporations” for standing purposes. Perlman
moved for reconsideration and for leave to amend, but the district
court denied both of those motions.
On appeal, Perlman argues that he has standing because he
was appointed pursuant to Section 501.207(3) of the Florida Decep-
tive and Unfair Trade Practices Act (FDUTPA). According to Perl-
man, that statute negates the standing requirement in Isaiah that a
receiver must allege that the Receivership Entities had at least one
innocent officer or director. We hold that even assuming that
*Honorable Anne Conway, United States District Judge for the Middle District
of Florida, sitting by designation.
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21-10432 Opinion of the Court 3
Section 501.207(3) applies, it does not rectify the standing issue in
Isaiah because it does not expressly address the imputation of
wrongful acts between the Receivership Entities themselves and
their insiders. Accordingly, we affirm the district court’s orders
granting PNC’s Rule 12(b)(1) motion for lack of subject matter ju-
risdiction and denying Perlman’s motions for reconsideration and
leave to amend.
I. FACTUAL AND PROCEDURAL BACKGROUND 1
Before we detail the district court proceedings below, we
must first introduce a few players involved in this case. At the fore-
front is Jeremy Marcus, the main perpetrator behind a widespread
debt relief scam. Marcus’s scheme involved a nationwide enter-
prise of 85 entities. These entities were controlled by Marcus, and
he employed telemarketers at these entities to deceive tens of thou-
sands of consumers into thinking they were being offered low-in-
terest loans to settle their debts. Unfortunately, the consumers did
not receive low-interest loans and were left in worse financial posi-
tions.
While Marcus lived lavishly for some time, profiting off
fraudulently acquired money from his victims, it was not long
1 Since we are reviewing the district court’s grant of PNC’s facial attack on
subject matter jurisdiction, we take the allegations in Perlman’s complaint as
true. See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,
1279 (11th Cir. 2009). Accordingly, these facts come from Perlman’s Amended
Complaint.
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4 Opinion of the Court 21-10432
before government enforcement agencies came knocking. The
Federal Trade Commission (FTC) and the Florida Attorney Gen-
eral (collectively, the Enforcement Agencies) filed a complaint
against Marcus for various consumer fraud violations, referred to
as the Enforcement Action. Often in cases involving fraud, an en-
forcement agency will move to have a court-appointed receiver
take control over the defendant’s property to ensure that assets are
not dissipated or wasted. 2 Given Marcus’s record, the Enforce-
ment Agencies thought it would be prudent to have someone other
than Marcus responsible for his companies’ assets. This is where
Jonathan Perlman comes into the story.
In the Enforcement Action, the United States District Court
for the Southern District of Florida (the Enforcement Court) en-
tered a temporary restraining order appointing Perlman as the re-
ceiver for several of Marcus’s companies, the Receivership Entities.
Perlman’s role in the Enforcement Action was to investigate the
affairs of the Receivership Entities and report to the Enforcement
Agencies. Perlman’s investigation confirmed the Enforcement
2 At the time of the Enforcement Action, the FTC could obtain a court-ap-
pointed receiver. But considering the Supreme Court’s decision in AMG Cap-
ital Management, LLC v. FTC, 141 S. Ct. 1341 (2021), we recently held that a
court-appointed receiver is no longer an appropriate equitable remedy under
Section 13(b) of the Federal Trade Commission Act. FTC v. On Point Cap.
Partners LLC, 17 F.4th 1066, 1078 (11th Cir. 2021). However, because this
case also involved Section 501.207(3) of the FDUTPA, which authorizes the
court to appoint a receiver, our holding in On Point Capital Partners is not
dispositive of this appeal.
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21-10432 Opinion of the Court 5
Agencies’ material allegations against Marcus, who then stipulated
to a permanent injunction and a monetary judgment of roughly
$85 million.
Turning to the district court proceedings in this appeal, Perl-
man, acting on behalf of the Receivership Entities, sued PNC in a
separate action for its involvement with Marcus’s scheme. Rele-
vant to this appeal, Perlman brought claims for aiding and abetting
breach of fiduciary duty (Count I) and aiding and abetting conver-
sion (Count II). Perlman alleged that PNC assisted Marcus by
providing bank accounts for the Receivership Entities so that Mar-
cus could carry out his scheme. The Receivership Entities were
harmed, according to Perlman, because Marcus diverted funds
from the Receivership Entities for a non-business purpose, thus
breaching his fiduciary duties owed to them and converting their
money. In turn, PNC allegedly aided and abetted Marcus by
providing banking services, despite many red flags showing Marcus
was committing fraud.
Following our decision in Isaiah, PNC moved under Federal
Rule of Civil Procedure 12(b)(1) to dismiss Counts I and II for lack
of subject matter jurisdiction, arguing that Perlman failed to allege
the presence of an innocent director or officer for purposes of
standing. Notably, Perlman did not move to amend his complaint
to include the requisite allegation and thereby attempt to cure the
standing issue. Instead, Perlman responded to PNC’s motion by
arguing that he did have standing, notwithstanding Isaiah, because
he was appointed under Section 501.207(3) of the Florida
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6 Opinion of the Court 21-10432
Deceptive and Unfair Trade Practices ACT (FDUTPA), which au-
thorizes a court-appointed receiver “to bring actions in the name
of and on behalf of the defendant enterprise, without regard to any
wrongful acts that were committed by the enterprise . . . .” Fla.
Stat. § 501.207(3). Thus, Perlman argued, it is irrelevant whether
the Receivership Entities have an innocent director or stockholder
because the FDUTPA provides that the wrongful acts of the Re-
ceivership Entities are not imputed to the Receiver for standing
purposes. In support of his argument that he was appointed under
the FDUTPA, Perlman cited to various docket entries from the En-
forcement Action.
PNC then replied to Perlman by arguing that he was not ap-
pointed under Section 501.207 of the FDUTPA, but rather under
Section 13(b) of the Federal Trade Commission Act (FTCA). In
support, PNC pointed to the Enforcement Agencies’ motion for a
temporary restraining order that requested the appointment of a
receiver. In that document, the Enforcement Agencies cited only
to Section 13(b) as the basis for the Enforcement Court’s authority
to appoint a receiver. The district court agreed with PNC, also not-
ing that “[n]one of the orders regarding the appointment of the Re-
ceiver explicitly state the legal authority for appointment of the Re-
ceiver.” Then, the district found that “[a] review of the record in
the Enforcement Action indicates that [Perlman] was appointed
pursuant to section 13(b) of the [FTCA].” The court therefore con-
cluded that Isaiah applies and granted PNC’s Rule 12(b)(1) motion
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21-10432 Opinion of the Court 7
to dismiss because Perlman’s Amended Complaint contained “no
allegations of an honest board member, officer, or shareholder.”
Following the district court’s dismissal of Counts I and II,
Perlman moved for reconsideration and for leave to amend his
complaint to allege that he was appointed under the FDUTPA.
The district court denied these motions and this timely appeal fol-
lowed.
II. STANDARD OF REVIEW
“In reviewing a district court’s dismissal of a complaint un-
der Rule 12(b)(1) for lack of subject matter jurisdiction, we review
the district court’s legal conclusions de novo, including the court’s
conclusion concerning standing.” Houston v. Marod Supermar-
kets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013).
III. DISCUSSION
In Isaiah, we raised the issue of whether a court-appointed
receiver had standing to bring “common law tort claims against
third parties to recover damages for the fraud perpetrated by the
corporation’s insiders.” Isaiah, 960 F.3d at 1306. Applying Florida
law, we noted that:
[U]nless the corporation in receivership has as at least
one honest member of the board of directors or an
innocent stockholder, the fraud and intentional torts
of the insiders cannot be separated from those of the
corporation itself and the corporation cannot be said
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8 Opinion of the Court 21-10432
to be an entity separate and distinct from the individ-
ual tortfeasors.
Id. We pointed to the distinction “between an honest corporation
with rogue employees, which can pursue claims for the fraud or
intentional torts of third parties while in receivership, and a sham
corporation created as the centerpiece of a [fraudulent] scheme,
which cannot pursue such claims.” Id. at 1307. For the latter, it is
“not the corporation but the individual customers who suffered in-
jury as a result of the [fraudulent] scheme, and who may have
rights to pursue claims against third parties that allegedly aided and
abetted that scheme.” Id.
The “axiomatic” principle from Isaiah is “that a receiver ob-
tains only the rights of action and remedies that were possessed by
the person or corporation in receivership.” Id. at 1306. If the cor-
poration in receivership is one that is operated for the sole purpose
of committing fraud, and thus not an “honest corporation,” then
that corporation “cannot be said to have suffered an injury from
the scheme it perpetrated.” Id. at 1306. Since the receiver “obtains
only the rights of actions and remedies” of the corporation in re-
ceivership, it follows that the receiver likewise would not have suf-
fered an injury for purposes of bringing such claims.
Even though the district court did not address Section
501.207(3) of the FDUTPA, that statute does not impact the re-
quirement that Perlman must allege the presence of at least one
innocent director or stockholder. Without such an allegation, the
tortious acts committed by Marcus cannot be separated from the
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21-10432 Opinion of the Court 9
Receivership Entities and the Receivership Entities could not have
suffered an injury. Section 501.207(3)’s language that a receiver
may bring actions without regard to the wrongful acts of the de-
fendant enterprise does not correct this deficiency in Perlman’s
complaint.
Like the receiver in Isaiah, Perlman is bringing Florida com-
mon law tort claims against a third party for aiding and abetting
breach of fiduciary duty and conversion. For Perlman to have
standing, the Receivership Entities must have suffered an injury.
However, if there is no innocent director or stockholder in those
Receivership Entities, then the wrongful acts of Marcus cannot be
separated from the Receivership Entities and the Receivership En-
tities cannot be said to have suffered an injury.
Perlman concedes that he cannot include an allegation of an
innocent director or stockholder in his complaint. See Oral Argu-
ment Recording at 7:44–7:52. Thus, we must determine if Section
501.207(3) cures this deficiency. The relevant provision provides:
Upon motion of the enforcing authority . . . the court
may make appropriate orders, including but not lim-
ited to, appointment of a . . . receiver . . . to bring ac-
tions in the name of and on behalf of the defendant
enterprise, without regard to any wrongful acts that
were committed by the enterprise.
Fla. Stat. § 501.207(3).
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10 Opinion of the Court 21-10432
A plain reading of this statute tells us three things. One, Sec-
tion 501.207(3) provides that a receivership is an appropriate rem-
edy in an enforcement action involving violations of the FDUTPA.
Two, the court can appoint a receiver to bring actions on behalf of
the Receivership Entities. Three, the receiver may bring those ac-
tions notwithstanding any wrongful conduct by the Receivership
Entities or their insiders.
What that statute does not tell us, however, is whether the
wrongful acts of an insider (in this case, Marcus), can be separated
from the Receivership Entities themselves. As we noted in Isaiah,
unless the wrongful conduct of the insiders can be separated from
the entities in receivership, by way of an innocent director or stock-
holder, then the entities cannot be said to have suffered an injury.
Perlman argues that the phrase “without regard to any wrongful
acts that were committed by the enterprise” acts to separate the
wrongful conduct from the companies. See id. However, that stat-
utory language does not address the relationship between a corpo-
ration’s insiders and the corporation itself. Instead, it only ad-
dresses the relationship between the receiver and the corporations
in receivership or insiders of those corporations.
Perlman does not cite to any cases interpreting Section
501.207(3), so we are limited to the plain language of the statute.
While the statute might provide that the wrongful acts of the Re-
ceivership Entities are not imputed to Perlman, this does not
change the fact that absent an allegation of an innocent director or
stockholder, the Receivership Entities cannot be said to have
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21-10432 Opinion of the Court 11
suffered an injury for purposes of common law tort claims against
third parties. Therefore, even assuming that Perlman was ap-
pointed as a receiver under Section 501.207(3), that statute does not
change the outcome of this case.
IV. CONCLUSION
While the parties spend much of their briefs disputing the
applicability of Section 501.207(3) of the FDUTPA, we assume for
purposes of this appeal that the statute applies. However, we hold
that Section 501.207(3) does not overcome Isaiah’s mandate that
Perlman must allege the presence of at least one innocent director
or stockholder to have standing to bring his aiding and abetting
claims against PNC. Accordingly, we affirm the district court’s dis-
missal of those claims. 3
AFFIRMED.
3 Perlman’s motion to supplement the record and motion to dismiss the ap-
peal for lack of standing and subject matter jurisdiction, which have been car-
ried with the case, are DENIED. We need not consider the supplemental rec-
ords submitted in order to resolve this case. Further, PNC’s argument that
the Supreme Court’s decision in AMG Capital deprives this court of subject
matter jurisdiction is without merit. This case is distinguishable from AMG
Capital because it involves not only Section 13(b) of the FTCA, but also Sec-
tion 501.207(3) of the FDUTPA, which authorizes the court to appoint a re-
ceiver.
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21-10432 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, Dissenting:
“Corporations are creatures of state law.” Burks v. Lasker,
441 U.S. 471, 478 (1979). So it makes sense that “corporate law is
overwhelmingly the province of the states.” Freedman v.
magicJackVocaltec Ltd., 963 F.3d 1125, 1132 (11th Cir. 2020) (cita-
tion and quotation marks omitted). And here, the State of Florida
spoke clearly in 2006, when it amended Florida Statutes §
501.207(3) of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”) to effectively define a corporation in the hands of a
Florida receiver as a different entity (for purposes of standing in
FDUTPA-authorized claims) than the alter-ego corporation that
preceded the receivership’s existence and participated in the fraud.
Most respectfully, the Majority Opinion’s reading of the
amended language to the contrary deprives the language of func-
tion and renders it surplusage. I would conclude that the Receiv-
ership Entities here, as led by Receiver Perlman, have sufficiently
alleged that PNC’s acts injured them and that they therefore enjoy
standing to sue PNC for aiding and abetting Marcus’s breach of fi-
duciary duty and aiding and abetting Marcus’s conversion of the
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2 ROSENBAUM, J., Dissenting 21-10432
Receivership Entities’ property. 1 Because the Majority Opinion
does not reach this same conclusion, I respectfully dissent.
I. Under Florida law, in 2003, Freeman established the rule
that a receiver acting on behalf of a former alter-ego corpo-
ration lacks standing to pursue claims against third parties
who allegedly aided and abetted the former alter-ego corpo-
ration in its intentional torts.
To explain why Perlman has standing to pursue claims on
behalf of the Receivership Entities against third parties who alleg-
edly aided and abetted the corporations in their wrongful acts be-
fore they entered receivership, we must begin with Freeman v.
Dean Witter Reynolds, Inc., 865 So. 2d 543, 550 (Fla. Dist. Ct. App.
2003). In Freeman, the Grazianos had perpetrated a Ponzi scheme
through their company called NorthAmerican. See id. at 545–46.
The state trial court appointed Freeman as a receiver for the Ponzi
scheme. Id. at 546. Freeman then filed suit against third parties
whom he alleged had helped the Grazianos and NorthAmerican
perpetrate their fraud. See id. at 546–48. Among other claims,
Freeman alleged that the third parties aided and abetted the Grazi-
anos’ and NorthAmerican’s fraud and the Grazianos’ breaches of
fiduciary duties to NorthAmerican. Id. at 548.
1 The Majority Opinion does not address the causation and redressability
prongs of standing, but as I explain later in this dissent, they are also satisfied
here.
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21-10432 ROSENBAUM, J., Dissenting 3
The Florida intermediate appellate court affirmed the trial
court’s dismissal of Freeman’s claims because it concluded that
Freeman, as receiver, stood in the shoes of the Grazianos and
NorthAmerican. See id. at 550–53. As the Grazianos and
NorthAmerican could not have been said to have suffered an injury
from the scheme they themselves perpetrated, the Florida court
reasoned, neither could Freeman. See id.In reaching this conclusion, the court recognized that,
“[a]lthough a receiver receives his or her claims from the entities in
receivership, a receiver does not always inherit the sins of his pre-
decessors.” Id. at 550. For instance, the court pointed to actions
that the corporation, through the receiver, could bring directly
against the principals or the recipients of fraudulent transfers of cor-
porate funds to recover assets rightfully belonging to the corpora-
tion and taken before the receivership. Id. at 551. As the court
explained, the corporation could bring those types of actions be-
cause it is considered “‘cleansed’ through receivership.” Id.But in Freeman, the court stated that was not the case when
the predecessor corporation served as the “alter ego” of the wrong-
doers, without a true separate corporate identity. In that situation,
the court continued, Florida law attributed the bad acts of the pre-
decessor alter-ego corporation to the receiver. Id. at 551. As the
court explained, when “the entities in receivership do not include
a corporation that has at least one honest member of the board of
directors or an innocent stockholder” (and unlike when the receiv-
ership entities do have an honest member or stockholder), it could
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4 ROSENBAUM, J., Dissenting 21-10432
not “perceive a method to separate the fraud and intentional torts
of the insiders from those of the corporation itself.” Id. at 551. As
a result, the court concluded that only the victims of the Ponzi
scheme suffered injuries, so only they “may have rights to pursue
a claim against” the third parties for resulting damages. Id. at 553.
In other words, the corporation was not “cleansed” for purposes of
such causes of action, and Freeman, as the receiver of the alter-ego
corporation NorthAmerican, did not have standing to seek dam-
ages from third parties for injuries NorthAmerican allegedly helped
the third parties to inflict upon itself.
II. The Florida legislature amended Florida Statutes
§ 501.207(3) in 2006 to ensure that a receiver acting on behalf
of a former alter-ego corporation had standing to pursue
claims against third parties who allegedly aided and abetted
the former alter-ego corporation in carrying out its inten-
tional torts.
The Florida legislature apparently was not fond of Free-
man’s conclusion that receivers of predecessor alter-ego corpora-
tions could not pursue a cause of action against third parties be-
cause they stood in the predecessor corporation’s shoes. So in
2006, the Florida legislature amended § 501.207(3) of FDUTPA to
enable a receiver “to pursue an action under [FDUTPA] on behalf
of a defendant corporation in receivership against a third party who
played some role in the alleged wrongdoing.” Fla. Sen. Judiciary
Comm. Fla. Staff Analysis, S.B. 202 (Apr. 21, 2006) § III. Effect of
Proposed Changes. Towards that end, the Florida legislature
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21-10432 ROSENBAUM, J., Dissenting 5
added the words, “to bring actions in the name of and on behalf of
the defendant enterprise, without regard to any wrongful acts that
were committed by the enterprise” to § 501.207(3). 2
Obviously, the Florida legislature went to the trouble of add-
ing these words to § 501.207(3) to change the effect of the statute.
2 The emphasized portions below show the changes that the 2006 amendment
made to § 501.207(3):
(3) Upon motion of the enforcing authority or any interested
party in any action brought under subsection (1), the court
may make appropriate orders, including, but not limited to,
appointment of a general or special magistrate or receiver or
sequestration or freezing of assets, to reimburse consumers or
governmental entities found to have been damaged; to carry
out a transaction in accordance with the reasonable expecta-
tions of consumers or governmental entities; to strike or limit
the application of clauses of contracts to avoid an unconscion-
able result; to bring actions in the name of and on behalf of the
defendant enterprise, without regard to any wrongful acts that
were committed by the enterprise; to order any defendant to
divest herself or himself of any interest in any enterprise, in-
cluding real estate; to impose reasonable restrictions upon the
future activities of any defendant to impede her or him from
engaging in or establishing the same type of endeavor; to order
the dissolution or reorganization of any enterprise; or to grant
legal, equitable, or other appropriate relief. The court may as-
sess the expenses of a general or special magistrate or receiver
against a person who has violated, is violating, or is otherwise
likely to violate this part. Any injunctive order, whether tem-
porary or permanent, issued by the court shall be effective
throughout the state unless otherwise provided in the order.
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6 ROSENBAUM, J., Dissenting 21-10432
If the statute functioned the way the Florida legislature wished it
to, the legislature would have had no reason to amend it. So the
words “to bring actions in the name of and on behalf of the defend-
ant enterprise, without regard to any wrongful acts that were com-
mitted by the enterprise” must have altered the effect of the statute
from what it was before the amendment.
After all, when we construe a statute, we “first consider[] the
text of the statute.” Nunes v. Herschman, 310 So. 3d 79, 81 (Fla.
Dist. Ct. App. 2021). And “a basic rule of statutory construction
provides that the Legislature does not intend to enact useless pro-
visions, and courts should avoid readings that would render part of
a statute meaningless.” Heart of Adoptions, Inc. v. J.A., 963 So. 2d
189, 198 (Fla. 2007) (citation and quotation marks omitted). So we
must consider the text of the statute both before and after the
amendment and give effect to the change.
As I have noted, before the amendment, Freeman held that
a receiver acting on behalf of a former alter-ego corporation could
not bring claims against third parties for allegedly contributing to
the former alter-ego corporation’s intentional torts because the for-
mer alter-ego corporation’s bad acts were attributed to the re-
ceiver. On the other hand, a receiver acting on behalf of a corpo-
ration who had at least one innocent director or owner could bring
such claims because Florida courts viewed the corporation in that
situation to have been “cleansed” by the appointment of the re-
ceiver.
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21-10432 ROSENBAUM, J., Dissenting 7
The addition of the words “to bring actions in the name of
and on behalf of the defendant enterprise, without regard to any
wrongful acts that were committed by the enterprise” in no way
change the receiver’s abilities or alter his standing in the second
(non-former-alter-ego corporation) scenario. Nor is it clear to me
that these words otherwise have any effect unless they change the
ability of the receiver in the first situation to bring claims on behalf
of the former alter-ego corporation against third parties for alleg-
edly aiding and abetting the former alter-ego corporation’s inten-
tional torts. After all, the added text specifies that a receiver acting
on behalf of a corporation is empowered “to bring actions in the
name of and on behalf of the defendant enterprise, without regard
to any wrongful acts that were committed by the enterprise.” FLA.
STAT. § 501.207(3) (emphasis added). In other words, the Florida
legislature effectively redefined corporate law to recognize that a
receiver’s appointment essentially cleanses not only those corpora-
tions that have at least one innocent director or shareholder but
also those that do not, for purposes of a receiver’s ability to bring
claims in the name of the former alter-ego corporation.
But the Majority Opinion’s interpretation of the amendment
renders the amendment a nullity and contradicts the amendment’s
plain language. In the Majority Opinion’s view, the amendment
“tells us three things”:
One, Section 501.207(3) provides that a receivership
is an appropriate remedy in an enforcement action in-
volving violations of the FDUTPA. Two, the court
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8 ROSENBAUM, J., Dissenting 21-10432
can appoint a receiver to bring actions on behalf of
the Receivership Entities. Three, the receiver may
bring those actions notwithstanding any wrongful
conduct by the Receivership Entities or their insiders.
Maj. Op. at 9–10. As Freeman shows, the first and second items
that the Majority Opinion identifies were the case before the
amendment. So under the Majority Opinion’s reading of the
amendment, these two things fulfill no function.
And the way the Majority Opinion reads the third—to au-
thorize the receiver to bring actions on behalf of only those corpo-
rations that had at least one innocent director or shareholder—pro-
vides for precisely the same state of the law as when Freeman is-
sued and before the Florida legislature amended § 501.207(3). Put
another way, the Majority Opinion reads the 2006 amendment to
do nothing. That cannot be right. See Heart of Adoptions, Inc.,
963 So. 2d at 198.
The amendment must have some function. Id. In my view,
the plain language, as I have explained, identifies that function: to
enable the receiver of a former alter-ego corporation to bring
claims against third parties for allegedly aiding and abetting the for-
mer alter-ego corporation’s intentional torts.
The legislative history of the amendment to § 501.207(3)
confirms this understanding. The Florida Senate Judiciary
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21-10432 ROSENBAUM, J., Dissenting 9
Committee Staff Analysis 3 accompanying the bill that amended
§ 501.207(3) notes that, under Freeman, “if the [predecessor] cor-
poration would not have had a claim against a third party,[] a re-
ceiver could not pursue a cause of action—regardless of whether a
creditor could pursue a claim against the third party—even if such
a suit might benefit the creditors.” Id. § II. Present Situation (citing
Freeman, 865 So. 2d at 548). So for instance, as the Staff Analysis
recognizes, under Freeman, “if the corporation in receivership, it-
self, could not bring the claims because of unclean hands, then the
receiver is in no better position to pursue such claims.” Id. at n.16.
Thus, the Florida legislature’s awareness of Freeman and its
effects indicates that the Florida legislature added the phrase “in the
name of and on behalf of the defendant enterprise, without regard
to any wrongful acts that were committed by the enterprise” to
§ 501.207(3) to correct the problem it perceived with Freeman’s
statement of Florida corporate law as it pertained to receivers of
alter-ego corporations. See id. § III. Effect of Proposed Changes.
Indeed, the amended language “provide[s] standing to the receiver
to pursue an action for the defendant corporation in receivership,
3 Of course, the Florida Senate Judiciary Committee Staff Analysis states that
it “does not reflect the intent or official position of the bill’s introducer or the
Florida Senate.” Fla. Sen. Judiciary Comm. Fla. Staff Analysis, S.B. 202 (Apr.
21, 2006) § VII. Related Issues. But the Staff Analysis simply makes historical
statements of fact about Freeman and its effects, so it is helpful to understand-
ing the context in which the Florida legislature amended § 501.207(3).
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10 ROSENBAUM, J., Dissenting 21-10432
regardless of whether the defendant corporation had a part in the
wrongdoing.” Id.
III. Given the amendment to § 501.207(3), no impediments ex-
ist to the Receiver’s standing to bring claims against PNC
for aiding and abetting Marcus’s intentional torts.
Of course, my analysis above is only part of the story be-
cause the Florida legislature can’t provide Perlman with Article III
standing by amending a state statute, if Article III standing doesn’t
otherwise exist. Standing is, after all, a constitutional requirement.
See Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) (holding that a
statutory violation, without more, did not give rise to Article III
standing). But here, the Florida legislature has merely altered the
state law under FDUTPA about the receiver’s position relative to
a former alter-ego corporation for which he now acts. While be-
fore the amendment, the receiver stood in the shoes of the former
alter-ego corporation for purposes of bringing claims against third-
parties that contributed to the former alter-ego corporation’s
wrongdoing, the amendment renders the former alter-ego corpo-
ration acting under the receiver now “cleansed” from the corpora-
tion’s prior existence. In short, the Florida legislature effectively
revised how it defines a corporation after a receiver takes over a
former alter-ego corporation.
Because the Florida legislature’s amendment to § 501.207(3)
addresses only legal standing, not Article III standing, as long as
Perlman satisfies Article III standing requirements, under
§ 501.207(3), he has standing to proceed against PNC. And here,
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21-10432 ROSENBAUM, J., Dissenting 11
Perlman has sufficiently pled all three elements of constitutional
standing: “(1) an injury in fact (2) that is fairly traceable to the de-
fendant’s conduct and (3) that is redressable by a favorable deci-
sion.” Laufer v. Arpan, LLC, 29 F.4th 1268, 1272 (11th Cir. 2022).
First, Perlman has alleged a legally protected interest which
is “(a) concrete and particularized; and (b) actual or imminent, not
conjectural or hypothetical.” Id. (cleaned up). Perlman says he (on
behalf of the Receivership Entities) was injured financially when
PNC aided and abetted Marcus in withdrawing money from the
Receivership Entities’ accounts. That injury is “actual”—it already
happened—and “concrete” because Perlman alleges that he was
deprived of money, the quintessential concrete harm. See Muran-
sky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th Cir. 2020)
(en banc) (“Tangible harms are the most obvious and easiest to un-
derstand; physical injury or financial loss come to mind as exam-
ples.”). It is also “particularized” because it is Perlman’s money,
not that of the public at large. Spokeo, 578 U.S. at 339 (“For an
injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal
and individual way.’”).
Second, Perlman’s injury is directly traceable to PNC’s al-
leged conduct—opening accounts for Marcus even after he was
kicked out of other banks and even after PNC knew that Marcus
was operating a fraudulent debt relief business. And third, that in-
jury is redressable because if Perlman succeeds, the Receivership
Entities will recover the money that PNC and Marcus stole.
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12 ROSENBAUM, J., Dissenting 21-10432
Isaiah does not require a different conclusion. Isaiah applied
the general Florida common-law principle that the receiver stands
in the shoes of the corporation, as Freeman describes and which I
outlined above. Isaiah, 960 F.3d at 1302. But significantly, Isaiah
wasn’t a FDUTPA case—it was a Florida Uniform Fraudulent
Transfer Act (“FUFTA”) case. And unlike with FDUTPA, which
the Florida legislature amended to correct a problem it perceived
after Freeman issued, the Florida legislature made no similar
amendment to FUFTA. So the Isaiah panel had no basis to find
that Florida endowed the receiver with standing under the facts of
that case. But here, where the Florida legislature has broadened
the rights of a receiver to sue, Isaiah’s holding isn’t binding. Id.
IV
Because the amendment to § 501.207(3)’s text endows the
receiver of a former alter-ego corporation with standing to bring
claims against third parties that have allegedly contributed to the
former alter-ego corporation’s intentional torts, I would vacate the
district court’s dismissal of this case. I therefore respectfully dis-
sent.