United States v. Segal, Michael , 432 F.3d 767 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1511
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL SEGAL,
Defendant-Appellant,
v.
M. SCOTT MICHEL, as Trustee of Mr. Segal’s
forfeited interests in NNNG and its
Subsidiaries and Affiliates, and FIREMAN’S
FUND INSURANCE COMPANY,
Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 112—Ruben Castillo, Judge.
____________
ARGUED SEPTEMBER 7, 2005—DECIDED DECEMBER 29, 2005
____________
Before CUDAHY, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. After a conviction and a forfeiture
verdict, Michael Segal relinquished his interest in several
Chicago-area insurance companies to the United States. The
court appointed a trustee to manage these interests for the
government’s benefit. Segal challenges the district court’s
2 No. 05-1511
approval of the trustee’s transfer of one of Segal’s former
businesses, International Film Guarantors, Incorporated
(“IFG”), to an outside firm, Fireman’s Fund Insurance
Company (“Fireman’s Fund”). We affirm.
I.
Michael Segal owned a large number of insurance-related
companies based in Chicago. While Segal’s businesses had
numerous subsidiaries and affiliates, as relevant for our
purposes, he was the one hundred-percent owner of Near
North National Group, Inc. (“NNNG”), which, in turn,
was the sole owner of Near North Insurance Brokerage, Inc.
(“NNIB”), which held a one hundred-percent interest in
North Sun, Inc. (“North Sun”). We take this whirlwind tour
through a small section of the Near North corporate maze
because the present appeal centers on IFG, which North Sun
and Fireman’s Fund1 jointly owned, each having a fifty-
percent stake. IFG provided completion guarantee bonds for
the film and television industry, guaranteeing that a project
would be completed on time and within budget. Basically,
Fireman’s Fund supplied the underwriting and insurance
support for IFG, while North Sun performed backroom
operations, human resources, accounting, and marketing.
Importantly, Segal added value to this joint venture through
his extensive relationships with people in the entertainment
industry.
In 2004, a federal jury convicted Segal on a variety of
charges, including a wide-ranging violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”) arising
1
Fireman’s Fund is one of the leading suppliers of insurance
products to the entertainment industry and is unrelated to Segal.
No. 05-1511 3
out of illegal business dealings. Two days later, the jury
returned a forfeiture verdict under RICO, expressly finding
that: (1) Segal should forfeit $30 million in property; (2)
Segal held an interest in an enterprise that he operated and
controlled in violation of RICO; and (3) 60% of Segal’s
interests in NNIB and NNNG were tainted and subject to
forfeiture. The district court entered a preliminary order of
forfeiture in July 2004, holding that Segal’s entire interest in
the “Near North enterprise” was forfeited to the govern-
ment. The district court’s ruling named twenty-three
separate companies, including NNIB, NNNG, North Sun,
and IFG, as part of the Near North enterprise. In addition,
the district court ordered Segal to forfeit $30 million in
property. Soon thereafter, the district court appointed M.
Scott Michel as Trustee to manage “Segal’s interests in
NNNG and its subsidiaries and affiliates” on behalf of the
government.
Segal objected to the district court’s definition of the
Near North enterprise, contending that several of the
companies listed in the preliminary forfeiture order were
not involved in any RICO violations. Since these com-
panies did not participate in the racketeering activities,
Segal argued that they should not have been listed in the
preliminary forfeiture order, which dealt with companies
directly involved in the RICO scheme. On October 6, 2004,
the district court agreed that these companies were un-
tainted by the RICO violation and issued an order modify-
ing the preliminary forfeiture order by excluding seven
companies, including North Sun and IFG.
Around this time, Fireman’s Fund and the Trustee be-
gan to meet to resolve various claims and ownership
interests relating to the Near North enterprise. In addition
to its ownership stake in IFG, Fireman’s Fund had also
4 No. 05-1511
extended a loan to Near North Entertainment Insurance
Services in the amount of $4 million in 1997 and a loan to
NNNG in the amount of $10 million in 2001. These loans
were guaranteed both by NNNG and Segal himself. Further,
as part of the 2001 loan agreement, North Sun pledged as
security its ownership interest in IFG. At the time of Segal’s
conviction, the loans were in default in the amount of $6.8
million.
On December 7, 2004, Fireman’s Fund submitted a
confidential written settlement proposal to the Trustee.
Fireman’s Fund wanted to end its IFG relationship with
North Sun after Segal’s conviction and proposed to re-
lease its secured claims on the defaulted loans in ex-
change for North Sun’s interest in IFG. Fireman’s Fund set
out an expedited time frame to obtain a court-approved
settlement, first indicating that any deal had to be done
by the end of the year (eventually Fireman’s Fund re-
lented and extended the deadline to the middle of January).
Fireman’s Fund informed the Trustee that if a settlement
were not reached by the deadline, it would foreclose on the
security interests and cease its underwriting support for
IFG. While other companies made initial inquiries about
North Sun’s stake in IFG, Fireman’s Fund made clear that it
would not accept another company stepping into the shoes
of North Sun.
Recognizing that the October 6 modification order
seemingly foreclosed his authority to dispose of IFG, the
Trustee alerted the district court to Fireman’s Fund’s
settlement overtures. At an early December hearing at
which Segal’s counsel was present, the district court autho-
rized the continuation of negotiations on the settlement, but
did not rule on IFG’s status. On December 29, the Trustee
filed a motion for the court’s approval of a settlement with
No. 05-1511 5
Fireman’s Fund, and the court set a final hearing to decide
IFG’s fate on January 12, 2005. The proposed settlement
provided that, in exchange for North Sun’s fifty-percent
ownership in IFG, Fireman’s Fund would release the $6.8
million in secured claims that it held against Segal’s Near
North enterprise.2 The Trustee noted in the motion for
approval that, given Fireman’s Fund’s contractual rights,
the only alternative to approval would be liquidation, which
would take several years, incur administrative liabilities,
and ultimately result in substantially less benefit than
offered in the settlement. Segal made a timely objection to
the Trustee’s motion.
At the January 12 hearing, the district court allowed both
sides to present arguments regarding the status of IFG
and the proposed settlement. As a preliminary matter, Segal
objected to the hearing because of the absence of his lead
counsel, but the court overruled the objection because of the
tight schedule imposed by Fireman’s Fund and the fact that
Segal was represented at the hearing by two different law
firms, including a member of his lead counsel’s firm. The
court then proceeded to consider the status of IFG. The
Trustee contended that the forfeiture of NNIB and NNNG
encompassed all of their interests and assets, meaning any
subsidiaries were also forfeited. Following the corporate
chain, this meant that North Sun was forfeited as a wholly-
owned subsidiary of NNIB and therefore North Sun’s
interests also belonged to the government. Segal did not
object to the Trustee’s description of the Near North corpo-
2
While the original motion to approve the settlement refer-
ences $6.2 million in claims, Fireman’s Fund agreed before the
January 12 hearing to release a second claim of approximately
$700,000.
6 No. 05-1511
rate organization, and the court concluded that North Sun
and its interest in IFG were forfeited as subsidiaries of
forfeited companies.3
The district court next heard testimony about the gen-
eral prospects for IFG, as well as the different elements of
the settlement. On the financial side, while IFG had some
assets, those assets were not easily accessible. IFG owned
yet another company named IFG Re that had assets of
approximately $13 million. If a claim were made under one
of the IFG completion bonds, IFG Re would be respon-
sible for the first $2 million, with Fireman’s Fund hav-
ing responsibility for excess amounts. Billions of dollars,
however, remained in outstanding liability under these
bonds at the time of the hearing, and two to three million
dollars had to be held in reserve during any liquidation
under the applicable insurance laws. Furthermore, wind-
ing down IFG’s business as part of any liquidation would
take approximately 18 to 30 months.
Moreover, the outlook for IFG was bleak. Fireman’s
Fund was ready to withdraw its support from IFG and form
a competing company with IFG’s management team in the
absence of a court-approved deal. Basically, although it was
sharing premiums with North Sun, Fireman’s Fund was
assuming all the risk. There was no incentive for Fireman’s
Fund to continue with IFG, especially considering that Segal
was a convicted felon who no longer provided any of the
3
In its minute order of January 14 memorializing this finding,
the district court stated “if we find that any of the other five
excluded ‘related affiliates and subsidiaries’ [from the October 6
modification of the Preliminary Forfeiture Order] . . . is also
a subsidiary of NNNG and NNIB, we will hold that it too is
forfeit under RICO’s enterprise forfeiture provision.”
No. 05-1511 7
personal networking services originally contemplated.
According to IFG’s president, without the support of
Fireman’s Fund, IFG would no longer be a going concern.
Specifically, he stated: “IFG couldn’t continue as a stand-
alone business. It just doesn’t have the financial strength or
capacity to underwrite completion guaranties for motion
pictures.” Further, Fireman’s Fund was under no contrac-
tual obligation to keep providing underwriting services to
IFG, which essentially gave Fireman’s Fund a veto over any
prospective successor to North Sun. As stated before, while
there had been some interested parties referred to Fireman’s
Fund, Fireman’s Fund apparently did not want to continue
the IFG venture with any of them.
After hearing this testimony, the district court con-
cluded that IFG was a broken partnership and the IFG
business relationship had completely changed when
Segal was convicted. Noting IFG’s intrinsic valuation
problems given Fireman’s Fund’s de facto veto power and
Segal’s conviction, the district court decided that the
settlement was reasonable. On January 14, the district
court entered an order approving the Global Settlement
with Fireman’s Fund, and, later, it denied Segal’s motion to
reconsider. Segal appeals.
II.
The parties raise a variety of jurisdictional and substantive
issues. First, the Trustee contends that Segal’s notice
of appeal is defective because it fails to designate for ap-
pellate consideration the January 14 order that confirmed
IFG was a forfeited asset. Second, Fireman’s Fund and the
Trustee argue that, as an equitable matter, this court
should refuse to hear the appeal because the settlement
8 No. 05-1511
would be difficult to unwind. Third, Fireman’s Fund asserts
that this court does not have jurisdiction over the appeal
because the collateral order doctrine, which is relied upon
by Segal, does not apply. For his part, Segal argues that the
district court lacked the authority to enter the January 14
order regarding IFG’s status because the October 6 modifi-
cation order conclusively removed IFG as a forfeited entity.
Segal also challenges the sale approval hearing on due
process grounds because he did not have all relevant
documents and the district court denied his motion to
continue. Additionally, Segal asserts that the ultimate result
of the hearing was a fire sale lacking commercial reason-
ableness and good faith. Finally, Segal contends that the sale
produced a taking in violation of the Fifth Amendment. We
consider each issue in turn below.
A. Designation of Order in Notice of Appeal
The Trustee initially claims that Segal failed to specify
the January 14 order in his notice of appeal as required by
Fed. R. App. P. 3(c), and, therefore, he cannot challenge
IFG’s status, which that order resolved. Rule 3(c) is a
jurisdictional rule that provides a notice of appeal must
“designate the judgment, order, or part thereof being
appealed from.” Nichols v. United States, 75 F.3d 1137, 1140
(7th Cir. 1996) (quoting Fed. R. App. 3(c)). In his notice of
appeal, Segal specifically identified (and attached): (1) the
order approving the IFG settlement and (2) the order
denying Segal’s motion to reconsider the approval. Segal,
however, did not designate the January 14 order as required
by the Rule 3(c).
While Segal did not reference the January 14 order,
Rule 3(c) does not bar our consideration of his claims
No. 05-1511 9
about IFG’s status as having been forfeited. The Supreme
Court has instructed that this rule must be liberally con-
strued and has framed the appropriate inquiry as wheth-
er sufficient notice was given to apprise the other parties
of the issues challenged. See id. As long as the intent to
appeal from the judgment may be inferred from the no-
tice and the appellee has not been misled by a defect in the
notice, a technical failure in the notice will not preclude
us from reaching the merits. See United States v. Dowell,
257 F.3d 694, 698 (7th Cir. 2001); see also Badger Pharmacal,
Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 625 (7th Cir. 1993).
While Segal did not expressly designate the minute order
devoted to IFG’s status, he clearly was challenging all
parts of the settlement as he did at the hearing, which
would include whether the Trustee had any authority to sell
IFG. Neither the Trustee, Fireman’s Fund, nor the govern-
ment claim that they were misled by the notice of appeal
into thinking this issue would not be raised. Therefore, the
Trustee’s Rule 3(c) argument does not eliminate our juris-
diction over this issue.
B. Mootness
Reaching the next jurisdictional hurdle, we must deter-
mine whether this appeal is moot. Although the parties
generally discuss mootness concerns, they are actually
raising two independent concepts—mootness (meaning
the issue has been resolved) and its equitable corollary
(meaning it’s too late to unwind the settlement). In its brief,
Fireman’s Fund states that this appeal is moot and, at
first, cites to the general case law on this subject. The
real thrust of both Fireman’s Fund and the Trustee’s
arguments, however, is not actual mootness, but the re-
lated principle that the court should be reluctant to set aside
10 No. 05-1511
a consummated deal. Given this situation, we will address
each of these issues separately.
Turning first to whether this appeal is actually moot,
we look to whether it is possible to grant any meaning-
ful relief to Segal. When making a mootness determina-
tion, we consider “not whether we may return the parties to
the status quo ante, but rather, whether it is still possible to
‘fashion some form of meaningful relief’ to the appellant in
the event he prevails on the merits.” See Flynn v. Sandahl, 58
F.3d 283, 287 (7th Cir. 1995) (quoting Church of Scientology v.
United States, 506 U.S. 9, 13 (1993)). Segal suggests that this
court could grant relief by setting aside the district court’s
approval of the sale and restoring North Sun’s interest in
IFG as well as reinstating Fireman’s Fund’s claims against
Segal and the various Near North companies. While the
advisability of such a course of action for Segal is highly
questionable given Fireman’s Fund’s commitment to walk
away from IFG if it is not the whole owner and the near
certainty of IFG’s collapse, that is not relevant to the
mootness inquiry. Rather, we must determine whether we
have the power to order some meaningful relief. We do. If
we were to agree with Segal on the merits of his appeal (and
we do not, as we will soon discuss), we could fashion a
remedy where IFG would be returned to its prior position
as a joint venture and the Trustee would again have the
responsibility of determining the best deal he could get for
North Sun’s interest. Such relief, which might benefit Segal,
is possible, so the appeal is not moot.
Having reached this conclusion, however, we still
must consider whether we should decline to exercise
jurisdiction because of the consummation of the settlement.
Fireman’s Fund and the Trustee import this principle
from an equitable concept in bankruptcy: the court
No. 05-1511 11
should be hesitant to set aside an approved and consum-
mated plan.4 See In the Matter of Envirodyne Indus., Inc.,
29 F.3d 301, 304 (7th Cir. 1994). This doctrine stems from a
concern for the stability of a plan and reliance interests
of innocent third parties. See, e.g., In the Matter of UNR
Indus., Inc., 20 F.3d 766, 770 (7th Cir. 1994); Envirodyne,
29 F.3d at 304. The court must conduct a fact-intensive
analysis, weighing “the virtues of finality, the passage of
time, whether the plan has been implemented and wheth-
er it has been substantially consummated, and whether
there has been a comprehensive change in circumstances.”
In the Matter of Specialty Equip. Co., Inc., 3 F.3d 1043, 1048
(7th Cir. 1993); see also UNR, 20 F.3d at 770 (“And it is
the reliance interest engendered by the plan, coupled
with the difficulty of reversing the critical transaction,
that counsels against attempts to unwind things on ap-
peal.”); In re Focus Media, Inc., 378 F.3d 916, 923 (9th Cir.
2004) (a court should consider whether a case “presents
transactions that are so complex or difficult to unwind that
the doctrine [ ] would apply.”); In the Matter of Andreucetti,
975 F.2d 413, 418 (7th Cir. 1992).
While this equitable doctrine comes from bankruptcy
principles, the same concerns about the reliability of a
completed business deal and its effects on innocent third
4
Although several other circuits refer to this principle as
“equitable mootness,” we shy away from this term because it
fosters confusion. See In the Matter of UNR Indus., Inc., 20 F.3d 766,
769 (7th Cir. 1994) (“There is a big difference between inability to
alter the outcome (real mootness) and unwillingness to alter the
outcome (equitable mootness). Using one word for two different
concepts breeds confusion. Accordingly, we banish ‘equitable
mootness’ from the (local) lexicon.”) (emphasis in original).
12 No. 05-1511
parties exist here. Similar to a bankruptcy case, in this
forfeiture action the district court reviewed the decision of a
trustee who had an obligation to maintain and dispose of
assets for the maximum benefit of the owner/ creditor,
though the interests he was protecting belonged to the
government, not Segal. 18 U.S.C. § 1963(e). Still, it is a
sufficiently comparable situation that importing
useful bankruptcy principles makes sense.
As noted, the Trustee and Fireman’s Fund argue that
this court should not consider the merits of Segal’s ap-
peal because unwinding the deal approved by the court
would be impractical at this juncture. The district court
approved the sale of IFG to Fireman’s Fund in exchange
for release of the Fireman’s Fund claims in mid-January
of this year. Although Segal was not required to obtain a
stay, we cannot ignore the fact that, since he did not, the
deal moved ahead. See Specialty Equip., 3 F.3d at 1047(“[A] party that elects not to pursue a stay subsequent
to confirmation risks that a speedy implementation of the
reorganization will moot an appeal.”). This deal had a
number of practical implications for Fireman’s Fund, IFG,
and IFG’s management and employees that would make
it hard to unwind. Fireman’s Fund hired other companies to
supply the accounting, human resources, and information
technology services formerly provided by North Sun.
Furthermore, Fireman’s Fund scrapped plans to walk away
from IFG and form a competing company. If the deal were
reversed, IFG would immediately be teetering on financial
collapse given Fireman’s Fund’s desire and contractual right
not to work with North Sun. Further, IFG management
indicated that they would have left for different opportuni-
ties if the ownership situation had not been resolved as it
was by the settlement.
No. 05-1511 13
These facts give us pause. However, while we are con-
cerned about trying to unwind the settlement, it is difficult
to determine the precise effects of such an action because the
record provides little illumination on this subject. This
prevents us from conclusively holding that the settlement
was so complex or that the changes after the settlement have
been so sweeping that it would be foolish for us to even
consider reversing the deal. Therefore, with some reserva-
tions, we move on.
C. Collateral Order Doctrine
Fireman’s Fund raises a final jurisdictional issue, that
the present appeal does not satisfy the collateral order
doctrine and, thus, we cannot consider it. As a general
rule, an appellate court does not have jurisdiction over a
non-final order, and this rule is strictly applied in crim-
inal cases. See United States v. Rinaldi, 351 F.3d 285, 288
(7th Cir. 2003). The collateral order doctrine provides
some relief, allowing a party to appeal a non-final judgment
where the issues raised are “too important to be denied
review and too independent of the cause itself to require
that appellate jurisdiction be deferred until the whole case
is adjudicated.” Montano v. City of Chicago, 375 F.3d 593, 598
(7th Cir. 2004) (quoting United States v. Thompson, 814 F.2d
1472, 1475 (10th Cir. 1987)). The Supreme Court has set out
a three-part framework to evaluate whether an order fits
within this exception: (1) the order must conclusively
determine the disputed question; (2) it must dispose of an
issue totally apart from the merits; and (3) it must be
virtually unreviewable on appeal from a final judgment. See,
e.g., Rinaldi, 351 F.3d at 288; Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978). This court explained that ‘ “[e]ffectively
unreviewable’ means something more than that hardship
14 No. 05-1511
will result from delay or that the course of litigation will be
changed without an appeal.” See United States v. Michelle’s
Lounge, 39 F.3d 684, 693 (7th Cir. 1994).
In this case, the three requirements of the collateral order
doctrine are met. First, the order approving the settle-
ment conclusively disposes of all the relevant issues, in-
cluding the Trustee’s implicit authority over IFG and the
fairness of the settlement itself. Second, the order dis-
posed of a matter that was completely separate from the
merits of the Segal’s criminal conviction. Finally, the or-
der was effectively unreviewable on appeal from a final
judgment. Litigation is still proceeding before the district
court as the Trustee attempts to resolve various claims
and dispose of assets. Given that IFG has already been
transferred to Fireman’s Fund, waiting several more months
for a final judgment would likely end any reasonable oppor-
tunity that Segal has to challenge the settlement.5 As
the order satisfies the collateral order doctrine, we pro-
ceed to the merits.
D. Court Orders on IFG’s Status
Having emerged from the jurisdictional thickets, we
now consider Segal’s various challenges to the district
court’s approval of the settlement. Segal first argues that
neither the district court nor the Trustee had any author-
ity to dispose of IFG at the time of the January settle-
ment because the district court had excluded North Sun and
IFG as non-forfeited enterprises in October. We review the
district court’s findings of fact for clear error, and the
5
Because a different analysis is involved, our conclusion that the
order is sufficiently final to be appealable does not contradict our
earlier comments about mootness and its equitable corollary.
No. 05-1511 15
question of whether those facts compel forfeiture under
RICO de novo. See United States v. Marmolejo, 89 F.3d 1185,
1197 (5th Cir. 1996).
The forfeiture provisions under RICO state that a per-
son shall forfeit to the government:
(1) any interest the person has acquired or maintained
in violation of section 1962;
(2) any—
(A) interest in;
(B) security of;
(C) claim against; or
(D) property or contractual right of any kind afford-
ing a source of influence over;
any enterprise which the person has established, oper-
ated, controlled, conducted, or participated in the
conduct of, in violation of section 1962.
18 U.S.C. § 1963(a). The property subject to forfeiture
includes all tangible and intangible personal property,
including rights, privileges, interests, claims, and securities.
18 U.S.C. § 1963(b)(2).
In the forfeiture proceedings, there was some understand-
able confusion as the district court waded through the
various entities that Segal had used in his RICO enterprise.
At first, the district court entered a preliminary forfeiture
order that designated all of Segal’s insurance companies,
including North Sun and IFG, as forfeited because of the
RICO violations. In October of 2004, however, the dis-
trict court excised North Sun, IFG, and a handful of other
companies from the preliminary forfeiture order because
they did not appear to be involved in the RICO scheme.
16 No. 05-1511
However, at the time of the October order, the district
court did not know that NNNG owned NNIB,6 which
owned North Sun, which had the fifty-percent stake in IFG.7
NNNG and NNIB were clearly forfeited as part of the RICO
scheme, a fact that Segal does not challenge. It therefore
follows that all assets of these companies, including all of
their interests in other companies, were forfeited to the
government. Consequently, both the wholly-owned North
Sun, and North Sun’s interest in IFG never were independ-
ent interests of Segal and should have followed NNNG and
NNIB into the hands of the Trustee as forfeited assets of
those companies. After hearing testimony about this
corporate structure at the forfeiture hearing, the district
court acknowledged in its January 14 order that North Sun
and IFG were forfeited as assets of NNNG and NNIB and
modified the October order to reflect that.
The question then becomes whether the district court
could properly readdress in the January order the subject of
IFG’s status as a forfeited entity, given its earlier exclusion.
Looking at the two orders and the background surrounding
them, it is clear that they are dealing with different issues,
so the district court did not act improperly by ruling on this
issue in January. The original order was a response to
Segal’s objection that IFG and North Sun, among others,
were not tainted by RICO activity and so were not forfeited
as part of the RICO scheme. This was true, and the district
6
For ease of reference, we remind the reader that NNNG stands
for Near North National Group (which was directly owned
by Segal), and NNIB refers to Near North Insurance Brokerage.
7
The record does not suggest that any party acted in bad faith
or attempted to mislead the district court at the time of the
October modification order.
No. 05-1511 17
court properly agreed. What the district court did not
address until January was whether IFG and North Sun were
forfeited as assets, a completely separate issue that had not
been raised earlier. Again, the district court reached the cor-
rect conclusion that they were forfeited. Greater precision by
the district court in its October ruling would have avoided
this issue, but nonetheless, the district court acted properly
in January when it recognized that North Sun and IFG were
forfeited as assets of forfeited entities.
E. Due Process Challenges
Segal next offers two due process challenges to the district
court’s approval of the IFG settlement. The core of due
process is the right of notice and the opportunity to be
heard. See, e.g., United States v. Kirschenbaum, 156 F.3d 784,
792 (7th Cir. 1998); Michelle’s Lounge, 39 F.3d at 697. Segal
first challenges the district court’s decision to proceed
with the hearing even though he had not received IFG
financial statements from Fireman’s Fund. The problem
with Segal’s challenge is that he did not receive the docu-
ments because he did not sign a confidentiality agreement.
The day after Fireman’s Fund learned that Segal wanted
additional documentation, it forwarded a confiden-
tiality agreement to Segal’s attorneys. Segal’s lead attor-
ney was out of town, however, and his various other
attorneys did not sign the confidentiality agreement, and
Fireman’s Fund did not provide the documents. This
was a self-inflicted wound, not a deprivation of due process
by the district court.
Segal also claims that the district court deprived him
of due process by denying his oral motion to continue
the hearing on the grounds that his lead attorney was
18 No. 05-1511
not available. We review the denial of a motion to con-
tinue for abuse of discretion. See United States v. Vincent, 416
F.3d 593, 598 (7th Cir. 2005). The district court’s exercise of
its discretion on granting or denying a continuance is broad.
See United States v. Egwaoje, 335 F.3d 579, 587-88 (7th Cir.
2003). Here, the district court did not abuse its discretion
when it denied the continuance. The district court under-
stood that Fireman’s Fund had set a deadline for the
settlement and would abandon IFG, as it was contractually
able to do, if there was delay. Although Segal did not have
the services of his lead counsel, two other able lawyers,
including a lawyer from the lead counsel’s firm, represented
him at the hearing. Further, the hearing was not a surprise,
as the district court had informed the parties when it would
occur and solicited written objections to the settlement,
which Segal filed. Given these persuasive facts, we conclude
that the district court did not deny Segal due process by
refusing to continue.
F. Challenge to the Settlement
Next, Segal challenges the district court’s approval of the
settlement, contending that the Trustee engaged in a fire
sale with Fireman’s Fund rather than obtaining fair value
through commercially reasonable means.8 Under RICO,
8
As discussed above, the forfeiture of NNNG and NNIB
extinguished all of Segal’s interests in North Sun and IFG, which
should foreclose his ability to challenge the settlement. See United
States v. Pelullo, 178 F.3d 196, 202 (3d Cir. 1999). However, as the
parties agreed that Segal could attempt to reduce his $30 million
liability by the settlement amount (in subsequent proceedings)
and thus the amount of money received from the settlement
(continued...)
No. 05-1511 19
specifically 18 U.S.C. § 1963(e), a trustee may be ap-
pointed “to protect the interest of the United States in the
property ordered forfeited.” Section 1963(f) further
grants the Attorney General the discretion to “direct the
disposition of the property by sale or any other commer-
cially feasible means, making due provision for the rights of
any innocent persons.” Given that § 1963 authorizes this
trust arrangement and grants the Attorney General (through
an appointed trustee) discretion to dispose of forfeited
assets, the Trustee’s actions should be reviewed for abuse of
that discretion. See Restatement (Third) of Trusts § 50(1)
(2001); see also William F. Fratcher, Scott on Trusts § 187 (4th
ed. 1988) (“To the extent to which the trustee has discretion,
the court will not control his exercise of it as long as he does
not exceed the limits of the discretion conferred upon him
. . . the court will not permit him to abuse the discretion.”);
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)
(“Trust principles make a deferential standard of review
appropriate when a trustee exercises discretionary power.”).
Segal challenges both the Trustee’s decision to con-
duct settlement negotiations exclusively with Fireman’s
Fund and the commercial reasonableness of the settle-
ment itself. The Trustee did not abuse his discretion in
either regard. First, the Trustee engaged in appropriate
and reasonable negotiations. Fireman’s Fund provided all of
the underwriting support for IFG and, without Fireman’s
Fund, IFG would collapse. Fireman’s Fund had a complete
right to leave the partnership and did not have to accept any
substitutes for North Sun. Fireman’s Fund also had loaned
millions of dollars to Segal and his companies, with the
8
(...continued)
impacted Segal, we will address his arguments about the
settlement’s reasonableness.
20 No. 05-1511
ownership interest in North Sun as collateral, and these
loans were in default. To put it mildly, Fireman’s Fund was
in the driver’s seat concerning IFG’s future. When Fireman’s
Fund approached the Trustee with the settlement proposal,
the Trustee had to deal with the reality of the situation.
While he could solicit other bidders, Fireman’s Fund had
made it clear it would leave the partnership before allowing
another company to step into North Sun’s shoes. Likewise,
Fireman’s Fund made it clear it would leave if a deal
were not consummated quickly. The Trustee, therefore,
referred the few companies who contacted him about IFG to
Fireman’s Fund and continued his own court-authorized
negotiations with Fireman’s Fund. Since any potential suitor
would have to meet the approval of Fireman’s Fund, this
made complete sense. While Segal argues this inhibited the
ability to find the genuine or true market price for IFG,
Fireman’s Fund was in control of setting the sale price based
on its contractual power.
Second, the deal produced a commercially reason-
able result. Segal challenges the result on the grounds that
IFG was sold for basically the cash on hand and that a
previous valuation had established a substantially higher
value for the company. Both of these contentions are
incorrect. The settlement negotiated by the parties and
approved by the court basically released $6.9 million in
claims that Fireman’s Fund held against various Near North
companies and Segal personally. Segal asserts that IFG Re
had assets of $13 million, so a liquidation would have netted
his company $6.5 million, only slightly less than the amount
released. Segal argues that, if he could receive almost the
same amount simply from liquidation, the sale price should
be much higher. Segal ignores several crucial facts. First,
Fireman’s Fund could have ended its support for IFG,
liquidated the company for its half, and then pursued its
No. 05-1511 21
legal remedies to collect on the defaulted loans. In the best
case scenario for Segal, Segal and North Sun would be
engaged in pricey litigation for several years over these
loans; in the worst case, Fireman’s Fund would get its half
of the company and control over North Sun, which was
pledged as part of the loans, while Segal and the Trustee
would get nothing. Second, the relevant insurance laws
required $2 to $3 million dollars to be reserved for several
months during any liquidation in order to satisfy any
liabilities. Segal simply could not have obtained $6.5 million
at the time of the settlement by ending the partnership. Any
winding down period would tie up substantial assets for at
least a few years, as well as incur administrative and legal
costs.
Segal’s argument based on a prior valuation of the
company is also flawed. Segal argues that a valuation
prepared before his conviction properly set the value of IFG
and that no subsequent valuation was performed to show a
proper value. Obviously, the major problem with any
argument that the pre-conviction valuation set the proper
price is that it did not and could not take into account the
massively changed circumstances confronting IFG. Segal
had been convicted. North Sun was no longer supplying
any of its bargained for services. Fireman’s Fund threatened
to end all underwriting support for IFG. All of these
circumstances would adversely affect a valuation. More-
over, attempting to value IFG during the settlement negotia-
tions would have been useless. As noted, Fireman’s Fund
had the power to end IFG by withdrawing its support and
had repeatedly expressed that it would do so. Fireman’s
Fund was the only entity that could set a value because it
was the only possible bidder.
Given Fireman’s Fund’s control over the process, the
settlement negotiated by the Trustee, Fireman’s Fund,
22 No. 05-1511
and the government was admirable. Fireman’s Fund
received a going concern in IFG, while the Trustee and Segal
obtained nearly $7 million in relief on claims against them.
This was a fair and commercially reasonable deal.
G. Takings Clause
Finally, Segal’s forfeiture of his rights in NNNG and
NNIB, which result in the loss of any interest in North
Sun and IFG, dooms his claim under the Fifth Amendment.
As the Supreme Court has responded to a previous Tak-
ings Clause challenge in a forfeiture case, “[t]he government
may not be required to compensate an owner for property
which it has already lawfully acquired under the exercise of
governmental authority other than the power of eminent
domain.” Bennis v. Michigan, 516 U.S. 442, 452 (1996). Here,
the government properly obtained all rights in NNNG and
NNIB through forfeiture proceedings. Since North Sun and
IFG were wholly-owned by the forfeit companies, they too
were forfeited to the government, and Segal cannot succeed
under the Takings Clause of the Fifth Amendment.
III.
The Trustee conducted proper negotiations for the
resolution of Fireman’s Fund’s claims and the transfer of
IFG. The Trustee obtained valuable relief from Fireman’s
Fund’s loans in exchange for IFG. The district court re-
viewed this settlement and came to a sound conclu-
sion—this was a fair deal for all parties. The decision of
the district court approving the settlement related to IFG
is, therefore, affirmed.
No. 05-1511 23
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-29-05