Ritchie Capital Management v. John Stoebner , 779 F.3d 857 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1154
___________________________
Ritchie Capital Management, LLC, as administrative and collateral agent; Ritchie
Special Credit Investments, Ltd.; Rhone Holdings II, Ltd.; Yorkville Investments
I, L.L.C.; Ritchie Capital Structure Arbitrage Trading, Ltd.
lllllllllllllllllllllAppellants
v.
John R. Stoebner, Trustee
llllllllll lllllllllllAppellee
------------------------------
JPMorgan Chase Bank, N.A.
lllllllllllllllllllllAmicus Curiae
Douglas A. Kelley, as Chapter 11 Trustee; The Official Committee of Unsecured
Creditors of Petters Company, Inc. and Petters Group Worldwide, LLC; National
Association of Bankruptcy Trustees
lllllllllllllllllllllAmici on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 7, 2014
Filed: March 10, 2015
____________
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
____________
RILEY, Chief Judge.
This case marks yet another dispute stemming from Tom Petters’s multi-billion
dollar fraud. The bankruptcy trustee for Polaroid Corporation (Polaroid)—a Petters
company—succeeded in the bankruptcy court1 in avoiding as fraudulent the transfer
of several Polaroid trademarks to the appellants—Ritchie Capital Management,
L.L.C.; Ritchie Special Credit Investments, Ltd.; Rhone Holdings II, Ltd.; Yorkville
Investments, I, L.L.C.; and Ritchie Capital Structure Arbitrage Trading, Ltd.2 On
appeal, the district court3 affirmed the bankruptcy court’s decision. Ritchie appeals,
and having jurisdiction under 28 U.S.C. § 158(d)(1), we now affirm.
1
The Honorable Gregory F. Kishel, Chief Judge of the United States
Bankruptcy Court for the District of Minnesota.
2
The appellants are a group of distinct companies who loaned Petters and his
corporation, Petters Group Worldwide, LLC (PGW), money in 2008—with Ritchie
Capital Management serving as administrative agent on the loans. Although separate
entities, each of the appellants is a party to the September 19, 2008 Trademark
Security Agreement (TSA), which the bankruptcy trustee is seeking to avoid, so the
appellants’ interests are aligned for the purpose of this appeal. We adopt the
appellants’ practice of referring to themselves as a single entity and collectively
describe the appellants as “Ritchie” throughout this opinion.
3
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
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I. BACKGROUND
The specifics of Petters’s Ponzi scheme4 and the numerous resulting civil
disputes have been described in detail in several of this court’s other opinions. See,
e.g., United States v. Petters, 663 F.3d 375, 379-80 (8th Cir. 2011); Ritchie Capital
Mgmt., L.L.C. v. Jeffries, 653 F.3d 755, 758-60 (8th Cir. 2011); Ritchie Special
Credit Invs., Ltd. v. U.S. Trustee, 620 F.3d 847, 850-51 (8th Cir. 2010). We recite
only those facts most relevant to the instant appeal. Petters, through his company
Petters Company, Inc. (PCI), purported to run a “diverting” business that purchased
electronics in bulk and resold them at high profits to major retailers. The business
was a sham, and the only influx of money came from loans or investments. Petters
was convicted of multiple counts of mail fraud, wire fraud, and money laundering
perpetrated through PCI and PGW and was sentenced to fifty years in prison.
In 2005, Petters, as PGW’s sole board member, directed PGW to purchase
Polaroid, becoming the 100% beneficial owner of Polaroid stock, and Petters became
the sole member and “Chairman” of Polaroid’s board of directors. Although a
subsidiary of PGW, Polaroid operated as an independent, stand-alone corporation and
engaged in legitimate business operations. On at least two occasions, Petters took
several million dollars from Polaroid to satisfy PCI debts.
In late 2007 and early 2008, Petters’s companies—including Polaroid—began
to experience “major” financial difficulty. On January 31, 2008, a broker for PGW
approached Ritchie about obtaining a loan. The next day, Ritchie loaned PGW $31
million to pay off Polaroid and PGW debts. The loan bore an 80% annual interest
rate and was to be repaid within ninety days. Petters personally guaranteed the loan,
4
“Ponzi schemes are fraudulent business ventures in which investors’ ‘returns’
are generated by capital from new investors rather than the success of the underlying
business venture. This results in a snowball effect as the creator of the Ponzi scheme
must then recruit even more investors to perpetuate the fraud.” In re Armstrong, 291
F.3d 517, 520 n.3 (8th Cir. 2002).
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but Ritchie was told the loan would also be “backed by the entire Polaroid
corporation.” The note stated, “[T]he parties shall endeavor, as soon as reasonably
practicable, to secure this Note . . . by a pledge of 100% of the capital stock of . . . the
Polaroid Corporation.” Throughout February, Ritchie extended a number of
additional loans, totaling $115 million, under the same terms.5 On May 9, 2008,
Ritchie lent PGW and PCI an additional $12 million to be repaid in three weeks and
bearing 362.1% annual interest. Polaroid was not a signatory on any of the loans, and
although the initial loan was used to repay a Polaroid debt, the proceeds of the loans
did not go to Polaroid.
By September 1, 2008, all of the loans were past due, and Ritchie began
demanding collateral to secure the overdue loans. On September 19, five days before
Petters was raided by the Federal Bureau of Investigation (FBI), Petters executed a
Trademark Security Agreement (TSA) giving Ritchie liens on several Polaroid
trademarks as consideration for Ritchie’s extensions of the loans’ repayment dates.
Polaroid’s CEO, Mary Jeffries, objected to the TSA because she feared it
would impede Polaroid’s ability to raise new capital for the company. Although
Polaroid had valuable assets such as trademarks, it had a cash shortage and was
having trouble paying its creditors. The TSA did include a carve-out permitting
Polaroid to grant first-priority liens on the trademarks to secure up to $75 million in
working capital.
On September 24, 2008, the FBI, suspecting Petters’s fraud, raided Petters’s
offices and home—a raid that would lead to his eventual conviction. Shortly
thereafter, Ritchie sent notice that Petters was in default and accelerated the amounts
5
Ritchie subsequently sold two of these loans, totaling $25 million, to a third
party.
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due on all of the loans. Polaroid filed for Chapter 11 reorganization on December 18,
2008.
Polaroid sued Ritchie arguing, among other things, the TSA was unenforceable
because it resulted from an actual fraudulent transfer under both federal and
Minnesota bankruptcy law. Polaroid’s proceeding was thereafter converted to a
Chapter 7 bankruptcy, and John R. Stoebner was appointed trustee (trustee) and
substituted as a party. See In re Polaroid Corp., 420 B.R. 484, 486 n.1 (Bankr. D.
Minn. 2009). The trustee filed a motion for partial summary judgment on the actual
fraudulent transfer claim based on the “Ponzi scheme presumption.” The bankruptcy
court stayed proceedings on the remaining claims and, applying both the Ponzi
scheme presumption approach and, alternatively, the traditional “badges of fraud”
inquiry, presumed Petters executed the liens with fraudulent intent. The bankruptcy
court also found Ritchie could not rebut this presumption because Ritchie had not
received the liens in good faith and for value. The bankruptcy court then granted the
trustee’s motion for summary judgment.
Ritchie appealed to the district court, challenging the bankruptcy court’s
presumption of actual fraudulent intent and the admission of expert testimony from
accountant Theodore Martens. Ritchie did not challenge the bankruptcy court’s
finding that Ritchie had not received the liens in good faith and for value. The
district court determined the bankruptcy court had not abused its discretion in
admitting the expert testimony, upheld the bankruptcy court’s application of the Ponzi
scheme presumption, and did not address the badges of fraud analysis. Ritchie
appeals.
II. DISCUSSION
This court reviews de novo the bankruptcy court’s grant of summary judgment.
See In re Cochrane, 124 F.3d 978, 981 (8th Cir. 1997). “Summary judgment was
properly granted if, assuming all reasonable inferences favorable to the non-moving
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party, there is no genuine [dispute] as to any material fact and the moving party is
entitled to judgment as a matter of law. Where [as here] the unresolved issues are
primarily legal rather than factual, summary judgment is particularly appropriate.”
Id. at 981-82 (internal citations omitted). Given the particular legal issues involved
in this case, a discussion of background principles is warranted.
“Under 11 U.S.C. § 548(a), the Trustee is given authority to avoid transfers . . .
on the ground of actual fraud or on the ground of constructive fraud.” Lovell v.
Mixon, 719 F.2d 1373, 1376 (8th Cir. 1983); see 11 U.S.C. § 548(a)(1) (“The trustee
may avoid any transfer . . . incurred by the debtor[] that was made or incurred on or
within 2 years before the date of filing of the petition.”). Here, the bankruptcy court
addressed only the trustee’s actual fraud claim, which requires the trustee to show the
transfer was made “with actual intent to hinder, delay, or defraud any entity to which
the debtor was or became . . . indebted.” 11 U.S.C. § 548(a)(1)(A); see also Minn.
Stat. § 513.44(a)(1) (“A transfer . . . is fraudulent . . . if the debtor made the transfer
or incurred the obligation . . . with actual intent to hinder, delay, or defraud any
creditor of the debtor.”). “Because proof of actual intent to hinder, delay or defraud
creditors may rarely be established by direct evidence, courts infer fraudulent intent
from the circumstances surrounding the transfer.” In re Sherman, 67 F.3d 1348, 1353
(8th Cir. 1995).
“Since the time of Queen Elizabeth I, the courts have recognized that certain
factual situations are so unfair as to be evidence of the actors’ fraudulent intent.”
Jackson v. Star Sprinkler Corp. of Fla., 575 F.2d 1223, 1237 (8th Cir. 1978).
English courts . . . developed the doctrine of “badges of fraud”: proof
by a creditor of certain objective facts (for example, a transfer to a close
relative, a secret transfer, a transfer of title without transfer of
possession, or grossly inadequate consideration) would raise a rebuttable
presumption of actual fraudulent intent. Every American bankruptcy
law has incorporated a fraudulent transfer provision; the 1898 Act
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specifically adopted the language of the Statute of 13 Elizabeth.
Bankruptcy Act of July 1, 1898, ch. 541, § 67(e), 30 Stat. 564-565.
BFP v. Resolution Trust Corp., 511 U.S. 531, 540-41 (1994) (internal citations
omitted). The Uniform Fraudulent Transfer Act (UFTA), initially written in 1918,
“was a codification of the ‘better’ decisions applying the Statute of 13 Elizabeth” that
sought to bring some uniformity into various states’ fraudulent transfer jurisprudence.
UFTA prefatory note (1984).
“[O]ur cases have used the inferential ‘badges of fraud’ approach to determine
whether a debtor acted with ‘intent to hinder, delay, or defraud[]’ a creditor regardless
of whether the intent language came from a state fraudulent transfer statute or
applicable bankruptcy law.” In re Addison, 540 F.3d 805, 811-12 (8th Cir. 2008)
(applying Minnesota’s statutory badges of fraud to both state and federal fraudulent
transfer claims). The UFTA, as enacted at Minn. Stat. § 513.44(b), “contains a
lengthy list of factors or ‘badges of fraud’ which a court may look to for help in
determining actual intent.” In re Sholdan, 217 F.3d 1006, 1008 (8th Cir. 2000).
“Once a trustee establishes a confluence of several badges of fraud, the trustee is
entitled to a presumption of fraudulent intent. In such cases, ‘the burden shifts to the
transferee to prove some legitimate supervening purpose for the transfers at issue,’”
Kelly v. Armstrong, 141 F.3d 799, 802 (8th Cir. 1998) (internal citations omitted)
(quoting In re Acequia, Inc., 34 F.3d 800, 806 (9th Cir. 1994)), namely that the
transferee accepted the transfer in good faith and for value, see 11 U.S.C. § 548(c).
Several courts have decided “[w]ith respect to Ponzi schemes, transfers made
in furtherance of the scheme are presumed to have been made with the intent to
defraud for purposes of recovering the payments under [11 U.S.C.] § 548(a).”
Perkins v. Haines, 661 F.3d 623, 626 (11th Cir. 2011); see also In re DBSI, Inc., 476
B.R. 413, 422 (Bankr. D. Del. 2012) (“‘[A]ll payments made by a debtor in
furtherance of a Ponzi scheme are made with actual fraudulent intent.’” (quoting In
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re World Vision Entm’t, Inc., 275 B.R. 641, 658 (Bankr. M.D. Fla. 2002)).6 Through
this Ponzi scheme presumption, a court may bypass the badges of fraud analysis and
infer actual fraudulent intent if it (1) finds the existence of a Ponzi scheme, and
(2) determines the transfer was made in furtherance of that scheme. See DBSI, 476
B.R. at 422. The trustee and various amici urge us to either adopt or reject this
presumption. We need not do so because we affirm the bankruptcy court’s finding
of actual fraudulent intent under the badges of fraud approach. We thus draw no
conclusions as to the validity or future applicability of the Ponzi scheme presumption
in the Eighth Circuit.
A. Badges of Fraud
Fraudulent transfer law focuses on the intent of the debtor. If the debtor
transfers its assets with the intent to defraud its creditors, the transfer can be avoided
as fraudulent. See 11 U.S.C. § 548(a); Minn. Stat. § 513.44(a). In a case that
involves numerous entities, it is important to identify precisely whose intent is
relevant to the consideration of fraudulent intent. Polaroid is the debtor. Polaroid
granted the liens which the trustee seeks to avoid as fraudulent, so the relevant intent
is Polaroid’s. Because Petters unilaterally granted these liens on Polaroid’s behalf,
6
The Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits have all utilized the
Ponzi scheme presumption. See, e.g., Wing v. Dockstader, 482 F. App’x 361, 363
(10th Cir. 2012) (unpublished); Perkins, 661 F.3d at 626; In re AFI Holding, Inc., 525
F.3d 700, 704 (9th Cir. 2008); Warfield v. Byron, 436 F.3d 551, 558 (5th Cir. 2006);
In re Mark Benskin & Co., 59 F.3d 170, 1995 WL 381741, at *5 (6th Cir. 1995)
(unpublished table decision) (per curiam). While the Ponzi scheme presumption has
curried favor in federal courts, the Minnesota Supreme Court recently rejected the
presumption, holding, “[A]lthough a court could make a rational inference from the
existence of a Ponzi scheme that a particular transfer was made with fraudulent intent,
there is no statutory justification for relieving the Receiver of its burden of proving
. . . fraudulent intent. Instead, fraudulent intent must be determined in light of the
facts and circumstances of each case.” Finn v. Alliance Bank, ___N.W.2d ___, ___,
Nos. A12-1930, A12-2092, 2015 WL 672406, at *8 (Minn. Feb. 18, 2015) (internal
marks and citation omitted).
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his intent in transferring the liens was that of Polaroid. See Morris v. Union Pac.
R.R., 373 F.3d 896, 902-03 (8th Cir. 2004) (“[A] finding of intent is a highly
contextual exercise. . . . When a corporation is involved, the inquiry depends . . . to
some extent on the intent of corporate employees, not all of whom will play the same
role in every case.”). Thus we consider Petters’s intent here.
In conducting its badges of fraud analysis, the bankruptcy court found five of
the badges listed in Minn. Stat. § 513.44(b), but observed that the badges “do not lie
perfectly on their wording, for this case.” We disagree with Ritchie’s contention that
this observation is an acknowledgment by the bankruptcy court that the badges of
fraud “do not apply.” Courts may consider any factors they deem relevant to the issue
of fraudulent intent:
Badges of fraud represent nothing more than a list of circumstantial
factors that a court may use to infer fraudulent intent. Given the fact
that direct evidence of fraud is rare, a court in most instances can only
infer fraud by considering circumstantial evidence. Furthermore, we
note that under section 513.44(b), a court is not limited to only those
factors or “badges” enumerated, but is free to consider any other factors
bearing upon the issue of fraudulent intent.
Sholdan, 217 F.3d at 1009-10 (internal citation omitted); see Minn. Stat. § 513.44(b)
(explaining actual intent can be determined by considering the listed badges “among
other factors”). While we may not totally agree with the bankruptcy court’s analysis
and application of all the badges, the bankruptcy court did not err in concluding the
trustee was entitled to a presumption of actual fraudulent intent. Assessing the
relevant factors, we conclude the circumstances surrounding the TSA “are so unfair
[they amount to] evidence of [Petters’s] fraudulent intent.” Jackson, 575 F.2d at
1237.
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1. Lack of Reasonably Equivalent Value
Perhaps the most salient fact here is Polaroid received no value in exchange for
the TSA. See Minn. Stat. § 513.44(b)(8) (“In determining actual intent . . .
consideration may be given . . . to whether . . . the value of the consideration received
by the debtor was reasonably equivalent to the value of the asset transferred or the
amount of the obligation incurred.”). “‘The fact that valuable property has been
gratuitously transferred raises a presumption that such transfer was accompanied by
the actual fraudulent intent necessary to bar a discharge under clause (4).’” In re
Bateman, 646 F.2d 1220, 1222 (8th Cir. 1981) (internal marks omitted) (quoting 1A
Collier on Bankruptcy ¶ 14.47 (14th ed. 1978) and applying 11 U.S.C. § 32(c)(4)
(1976) (repealed Oct. 1, 1979), which read, “The court shall grant the discharge
unless satisfied that the bankrupt has . . . transferred . . . any of his property[] with
intent to hinder, delay, or defraud his creditors” (emphasis added)).
Polaroid was not a party to the Ritchie loans and received no money from the
loans, and Petters executed the TSA to prevent a PGW default. The TSA encumbered
Polaroid’s valuable trademarks without bestowing any real benefit on Polaroid.
Ritchie argues Polaroid received value in the form of its parent
company—PGW—staying viable after PGW was delinquent on the loans. However,
the viability of a parent company is not the type of value contemplated by the
fraudulent transfer laws. See Minn. Stat. § 513.43(a) (“Value is given for a transfer
. . . if, in exchange for the transfer . . . , property is transferred or an antecedent debt
is secured or satisfied, but value does not include an unperformed promise made
otherwise than in the ordinary course of the promisor’s business to furnish support
to the debtor or another person.”); see also, e.g., Stoebner v. Lingenfelter, 115 F.3d
576, 577-79 (8th Cir. 1997) (affirming a jury’s finding that a corporation received no
value for payments made on behalf of another corporation, when the two corporations
were owned by the same individual).
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2. Transfer for the Benefit of an Insider
Another significant badge of fraud is whether “the transfer . . . was to an
insider.” Minn. Stat. § 513.44(b)(1). This badge typically is implicated when the
debtor, faced with impending insolvency, transfers property to a business partner or
relative to place it beyond the reach of his creditors. See, e.g., Citizens State Bank
Norwood Young Am. v. Brown, 849 N.W.2d 55, 62-63 (Minn. 2014) (deciding a
debtor’s cohabiting ex-wife was an insider); Sherman, 67 F.3d at 1354-55 (affirming
the bankruptcy court’s finding that the debtor’s parents were insiders). “[I]f the
debtor is a corporation,” the definition of an “insider” includes “a person in control
of the [corporation].” Minn. Stat. § 513.41(7)(ii)(C).
Polaroid executed the TSA for the sole benefit of Petters—an insider. At the
time the lien was executed, Petters’s Ponzi scheme was in a precarious financial
position. The pool of willing investors had run dry and his companies were running
out of money. One investor had already filed suit against Petters, and
Ritchie—holding numerous overdue notes with no payment in sight—was
“intense[ly]” demanding collateral. Petters became increasingly anxious during this
period as he confronted the reality he would not be able to raise the capital needed to
sustain his corporations.
The TSA tempered Ritchie and kept the loans—which Petters had personally
guaranteed—out of default, at least temporarily. Yet the TSA merely postponed an
inevitable default, because PGW had no foreseeable way to repay the Ritchie loans.
Petters knew of Polaroid’s money troubles, and the recent transfer of cash to PCI left
Polaroid unable to make payments to its vendors. These dire circumstances indicate
the transfer of the liens was nothing more than a desperate attempt to maintain a
crumbling Ponzi scheme at the expense of Polaroid’s creditors.
While the statutory badge of fraud—a “transfer . . . to an insider,” Minn. Stat.
§ 513.44(b)(1)—does not apply directly, the factual context surrounding the transfer
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supports an inference of fraudulent intent. Polaroid did not execute the liens to an
insider, as the statute suggests, but the liens were executed for the benefit of an
insider. Petters signed the TSA on Polaroid’s behalf, but its sole purpose was to
protect Petters and his crumbling Ponzi scheme. Like a bankrupt man who transfers
his assets to his parents, see Sherman, 67 F.3d at 1354-55, Petters ensured Polaroid’s
valuable assets were put to a personally advantageous use.
Ritchie urges this court to disregard the circumstances of Petters’s Ponzi
scheme, arguing Petters’s common control of PCI, PGW, and Polaroid is “a highly
common scenario,” and, “[a]s the 100% owner of Polaroid, Petters could use
Polaroid’s assets for any purpose.” Ritchie claims Petters’s “use of Polaroid’s assets
for a non-Polaroid purpose [is] not evidence that he intended to defraud Polaroid
creditors when granting the Liens.” When viewed in a vacuum, Ritchie’s argument
makes some sense. There is nothing per se fraudulent about an individual owning
multiple entities and using the assets of one entity for the benefit of another, just
as—standing alone—there is nothing fraudulent about a parent transferring assets to
a child, see Shea v. Hynes, 95 N.W. 214, 214-15 (Minn. 1903). It is only after
considering the facts and circumstances surrounding the transfer and finding “[t]he
presence of several badges of fraud,” Citizens State Bank, 849 N.W.2d at 66, that a
court can infer intent to defraud. See Sholdan, 217 F.3d at 1009-10; Sherman, 67
F.3d at 1353-54. When considered in conjunction with the other indicia of fraud
present in this case, Petters’s execution of the liens for his personal benefit supports
the bankruptcy court’s presumption of actual fraudulent intent.
3. Polaroid’s Solvency
“‘Among the more common badges of fraudulent intent at the time of transfer
[is] . . . insolvency or other unmanageable indebtedness on the part of the debtor.’”
Nat’l Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1102 (8th Cir. 1998)
(quoting FDIC v. Anchor Props., 13 F.3d 27, 32 (1st Cir. 1994) (quoting Max
Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1254 (1st Cir.
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1991) (applying 11 U.S.C. § 548(a)(1)))); accord Minn. Stat. § 513.44(b)(9)
(explaining “whether . . . the debtor was insolvent or became insolvent shortly after
the transfer was made” is a factor to be considered when determining a debtor’s
intent). The parties dispute whether Polaroid was insolvent at the time of the transfer.
Polaroid had a cash shortage and was having trouble paying creditors as its debts
came due, but Ritchie contends Polaroid’s valuable trademarks put its assets far
above its liabilities. We construe the facts in the light most favorable to Ritchie, see
Citizens State Bank, 849 N.W.2d at 61, and assume that Polaroid was solvent when
it executed the TSA.
Regardless, the undisputed facts show Polaroid had serious financial
difficulties before it granted the TSA, difficulties which Petters knew. These
financial issues only worsened after Polaroid granted Ritchie the liens: the TSA was
signed on September 19, 2008, and Polaroid filed for bankruptcy ninety days later on
December 18, 2008. Polaroid’s financial struggles and its inability to pay creditors
shortly before and after the execution of the TSA necessarily enter into our
consideration of whether Petters executed the TSA with the intent to defraud
Polaroid’s creditors. See Nat’l Credit Union, 133 F.3d at 1102 (listing “‘insolvency
or other unmanageable indebtedness on the part of the debtor’” as a badge of fraud
(quoting FDIC, 13 F.3d at 32) (emphasis added)); cf. Sholdan, 217 F.3d at 1010
(deciding the fact that the debtor had filed for bankruptcy “immediately upon the
heels of” the allegedly fraudulent transfer was relevant to a finding of intent to
defraud).
4. Polaroid’s CEO’s Objection
Also relevant to our inquiry, although not an enumerated statutory badge, is
Polaroid CEO Mary Jeffries’s objections to the TSA. At the time the TSA was
executed, Polaroid had been operating at a loss and had a cash shortage, causing it to
be delinquent on its payments to vendors—a problem exacerbated by Petters’s
“loans” of Polaroid money to PCI. In an attempt to alleviate these problems, Polaroid
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was exploring financing options from a number of different sources. After first
receiving a copy of the TSA on September 11, 2008—eight days before the document
was signed—Jeffries informed Petters and another PGW official that she opposed the
TSA. Jeffries feared the TSA would “ma[k]e it difficult to raise new financing for
Polaroid . . . [b]ecause it was taking assets that would otherwise be used as collateral
or value in Polaroid in raising capital.”
Polaroid’s issuance of a lien on its valuable trademarks over the objection of
its own CEO is relevant in attempting to discern Petters’s intent. Ritchie claims
“Jeffries’s ‘objection’ to the Liens carries no weight” because she was not aware of
the carve-out in the TSA allowing Polaroid to use the trademarks to secure up to $75
million in working capital, which Ritchie alleges was more than sufficient to meet
Polaroid’s cash flow needs. To the contrary, Jeffries’s objection gives insight into
Petters’s intent in executing the liens because it suggests Petters chose to issue the
liens even knowing Polaroid’s CEO feared the liens would thwart Polaroid’s efforts
to raise much-needed capital. Jeffries’s lack of knowledge of the carve-out does not
change this contention. Polaroid was seeking funding from multiple sources and, at
the time the liens were executed, was negotiating with both a potential lender and a
potential purchaser of Polaroid stock. The liens, even with the carve-out, reduced the
collateral Polaroid had available to secure loans and had the potential to decrease
Polaroid’s value to an interested purchaser. Our focus is on Petters’s intent, and
Ritchie has presented no evidence suggesting Petters was aware of Jeffries’s lack of
knowledge of the carve-out. Petters executed the liens over the objection of
Polaroid’s CEO and complicated Polaroid’s efforts to secure capital to repay its
creditors.7
7
In addition to the issue of Polaroid’s solvency, the parties dispute whether the
encumbered trademarks were “substantially all” of Polaroid’s assets. See Minn. Stat.
§ 513.44(b)(5). Because this case comes to us at summary judgment, we construe fact
disputes in Ritchie’s favor. See Cochrane, 124 F.3d at 981. Even assuming Polaroid
was solvent and had assets beyond the encumbered trademarks, the undisputed fact
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We have no hesitation affirming the bankruptcy court’s grant of summary
judgment in favor of the trustee because Petters, acting on behalf of Polaroid,
executed the liens with the actual intent to defraud Polaroid’s creditors. Ritchie
argues there can be no presumption of fraudulent intent because the trustee cannot
prove Polaroid “removed, concealed or absconded with assets following the
transfers,” referencing Minn. Stat. § 513.44(b)(6), (7). Even at summary judgment,
the law does not require the trustee prove all of the badges. “Once a trustee
establishes a confluence of several badges of fraud, the trustee is entitled to a
presumption of fraudulent intent.” Kelly, 141 F.3d at 802 (emphasis added). We find
sufficient undisputed evidence to support the bankruptcy court’s conclusion that
Petters executed the TSA with the intent to hinder, delay, or defraud Polaroid’s
creditors.8
B. Martens Affidavit
Ritchie finally argues the bankruptcy court erred in admitting an affidavit from
forensic accountant Theodore Martens because the affidavit had not gone through the
disclosure process mandated by Federal Rule of Bankruptcy Procedure 7026—which
applies Federal Rule of Civil Procedure 26(a)(2)(B) to bankruptcy proceedings. This
court “review[s] the admission of expert testimony . . . for abuse of discretion.”
Shuck v. CNH Am., LLC, 498 F.3d 868, 873 (8th Cir. 2007). The bankruptcy court
reasoned, Rule 26’s requirements, while technically not met, had been met in spirit
because the trustee disclosed early in the process he would be relying on Martens’s
Petters executed these liens in the face of Polaroid’s cash shortage and over the
objection of Jeffries—although not a listed badge—is certainly a relevant “factor[]
bearing upon the issue of fraudulent intent.” Sholdan, 217 F.3d at 1010.
8
We note the bankruptcy court’s finding of several badges of fraud was not the
end of the inquiry, but merely shifted the burden to Ritchie to prove it took the liens
in good faith and for value. See id. The bankruptcy court, however, concluded
Ritchie could not meet its burden—a decision Ritchie did not appeal to the district
court and does not appeal now.
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testimony, and Ritchie was able to depose Martens, questioning him about the
affidavit. Under these circumstances, Ritchie suffered no prejudice because of the
lack of formal Rule 26 disclosure. The bankruptcy court did not abuse its discretion
in admitting the Martens affidavit. See Crump v. Versa Prods., Inc., 400 F.3d 1104,
1110 (8th Cir. 2005) (holding a district court did not abuse its discretion in admitting
expert testimony that had not been disclosed under Rule 26(a)(2)(B) because the
parties suffered “no prejudice from [the] inadequate disclosure”).
III. CONCLUSION
We affirm.
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