Ogle v. Morgan

Case: 20-10908 Document: 00516500711 Page: 1 Date Filed: 10/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 7, 2022
No. 20-10908 Lyle W. Cayce
Clerk
In the Matter of: EVERGREEN HELICOPTERS
INTERNATIONAL INCORPORATED
Debtor,
Robert E. Ogle, Solely in his Capacity As Litigation
Trustee for the Erickson Litigation Trust,
Appellant,
versus
Quinn Morgan; Kenneth Lau; Udo Rieder; Centre Lane
Partners, L.L.C.; 10th Lane Finance Company, L.L.C.;
10th Lane Partners, L.P.; ZM Private Equity Fund I, L.P.;
ZM Private Equity Fund II, L.P.; ZM EAC, L.L.C.,
Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-1838
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Before Jones and Southwick, Circuit Judges. 1
Edith H. Jones, Circuit Judge:
Robert Ogle, in his capacity as Litigation Trustee for the Erickson
Litigation Trust, appeals dismissal of his avoidance and recovery claims
under the bankruptcy laws. In broad terms, these claims seek avoidance of
settlement releases approved in Delaware state court, as well as two
payments related to Erickson Air-Crane, Inc.’s acquisition of Evergreen
Helicopters, Inc. (EHI) (the “Evergreen Transaction”). After careful
consideration of the record and relevant legal authorities, we AFFIRM
dismissal of the claims relating to the settlement releases and REVERSE IN
PART the dismissal of the payments relating to the Evergreen Transaction
itself.
I. BACKGROUND
Ogle’s avoidance claims turn on two factual events: The Evergreen
Transaction and a subsequent settlement agreement resolving direct and
derivative claims brought by shareholders related to that transaction. 2 We
describe each in turn before discussing the procedural history.
1. The Evergreen Transaction
In May 2013, Erickson purchased EHI from Evergreen International
Aviation, Inc. (“EIA”) for $250 million. The purchase price included a
1
Judge Gregg Costa was a member of the panel that heard this case but resigned
from the court before it was decided. This case is decided by a quorum under 28 U.S.C.
§ 46(d).
2
The facts as described herein are taken principally from Ogle’s complaint because
this appeal arises from a motion to dismiss and, thus, well-pleaded facts in the complaint
must be taken as true. De La Paz v. Coy, 786 F.3d 367, 371 (5th Cir. 2015) (“On appeal
from a motion to dismiss, this court accepts all well-pleaded facts as true and views them
in the light most favorable to the plaintiff.” (citation omitted)). Appellees sharply contest
several facts, including Ogle’s characterization of the transaction, and nothing in this
section should be construed as deciding any factual dispute.
2
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sizeable cash component of $185 million, along with a $17.5 million
unsecured promissory note, and convertible preferred stock valued at $47.5
million. The complaint alleges Erickson was “cash poor” with less than $1.5
million in “cash and cash equivalents.” Thus, Erickson obtained “crippling
debt financing” to purchase EHI that set it “on an inevitable path to financial
ruin.” Further—and of particular importance to this appeal—in addition to
using this debt financing as consideration for the purchase of EHI, Erickson
used it to provide “early payment” on $27.5 million of “unsecured
obligations” to ZM Entities. 3
The complaint alleges at length that Erickson’s decision to purchase
EHI was the result of deceptive conduct by two conflicted board members,
Quinn Morgan and Kenneth Lau, along with Erickson’s CEO Udo Rieder. It
is replete with allegations that they “breached their fiduciary duties in
causing Erickson to acquire EHI at an inflated price and to incur crippling
debt to do so.” The alleged scheme involved a tangled web of interrelated
entities. First, ZM Entities owned a controlling 61% share of Erickson around
the relevant time period. Second, Morgan and Lau “controlled” a “private
equity firm” called Centre Lane Partners that was “affiliated with” ZM
Entities. Third, Morgan and Lau possessed “de facto control” of ZM
Entities and used it to install themselves and Rieder on Erickson’s board of
directors.
The complaint alleges that the Defendants’ principal motivation in
causing Erickson to acquire EHI was to salvage value from debt that ZM
Entities owned pertaining to EHI’s parent company, EIA. In short, ZM
Entities held approximately $60 million in second-lien debt owed by EIA.
3
Both parties agree the relevant ZM entities are ZM Private Equity Fund I, L.P.;
ZM Private Equity Fund II, L.P.; ZM EAC LLC; and 10th Lane Finance Co., LLC.
3
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Because EHI (a wholly-owned subsidiary of EIA) was in “severe financial
distress” as evidenced by a negative Standard & Poor’s recovery rating, the
complaint contends the second-lien debt held by ZM Entities was “nearly
worthless.”
Thus, Erickson’s purchase of EHI functioned as “the perfect bailout
vehicle” for ZM Entities, allowing them to avoid “a significant risk of loss in
connection with their holdings of approximately $60 million in second lien
debt” at Erickson’s expense. The complaint alleges at least two specific
benefits that ZM Entities received from the acquisition. 4 First, it received
preferred shares in Erickson valued at $32.9 million “as repayment of their
pro rata share of principal of the EIA Second Lien Credit Facility.” Second,
as already stated, ZM Entities reduced their “debt exposure” to Erickson by
receiving $27.5 million in “early payment of outstanding unsecured
obligations purportedly owed by Erickson,” which constituted a “substantial
return” on the subordinated notes “while leaving Erickson’s other creditors
to serve as bag holders of the newly undercapitalized company.” The
complaint alleges that ZM Entities subsequently attempted to “unload their
entire position in now-undercapitalized Erickson” by selling its shares as
evidenced by a filed S-3 registration statement. This “exit strategy” was
unsuccessful only after financial website Seeking Alpha published an article
titled “Massive Insider Deal Threatens Erickson Air-Crane.”
In short, Ogle’s complaint alleges: (1) the Evergreen Transaction was
a bad deal for Erickson; (2) it was pushed forward by conflicted board
members and Center Lane, who “misled” Erickson’s “independent Board
of Directors”; (3) the debt incurred to facilitate the acquisition “set Erickson
4
Center Lane received $2.5 million in fees for its work on the EHI acquisition,
which Ogle also seeks to avoid under the bankruptcy laws.
4
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on an inevitable path to financial ruin” that the Defendants “knew or should
have known . . . posed a substantial risk of bankruptcy for Erickson”; and
(4) the Defendants attempted to leave other creditors as “bag holders” of
Erickson debt by obtaining early payment on their debt and attempting to
unload their position in Erickson.
2. The Settlement
In 2013, shareholders brought a class action and derivative suit—
alleging, inter alia, breach of fiduciary duties and unjust enrichment—in
Delaware state court. The suit implicated the same basic facts described
above, and the Defendants in the present case were also defendants in the
Delaware suit. In January 2016, the parties, with the assistance of an
experienced mediator, reached an agreement in principle to settle.
Erickson’s board and its counsel certified that the settlement was “fair,
reasonable, adequate, and in the best interests of [Erickson] and its
stockholders.” Pursuant to Delaware law, the state court held a fairness
hearing to determine whether to approve the settlement. The court
approved the settlement and concluded that the terms were “fair,
reasonable, and adequate, and in the best interests of Plaintiff, the Class and
[Erickson].” In September 2016, the court entered an order approving the
settlement.
Two aspects of the settlement are particularly important for present
purposes. First, the financial component provided for a total payment of
$18.5 million consisting of (a) $2,833,747 to Erickson (20% after fees and
expenses) and (b) $11,334,989 to the Erickson stockholder class (80% after
5
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fees and expenses). Second, the settlement required a full release of claims
against the Defendants. 5
The complaint criticizes both components. It contends the 80/20
division was inappropriate because the “value of Erickson’s claims against
the Defendants greatly exceeded the $2.8 million the company received for
settling those claims.” And it alleges that the releases were “part of a
nefarious, unspoken quid pro quo through which: (a) the Defendants were
able to obtain releases in exchange for (b) giving Erickson’s shareholders a
windfall that they would not have received if Erickson had filed for
bankruptcy.”
3. Procedural History
In November 2016, Erickson filed for Chapter 11 bankruptcy. The
filing occurred about three and a half years after the Evergreen transaction
and only two months after the derivative action settlement. A litigation trust
was created pursuant to the reorganization plan, which transferred to the
trustee, Ogle, the right to assert these claims. Ogle’s suit asserted twelve
counts for avoidance and recovery of various payments and releases on behalf
of Erickson creditors. Specifically, the twelve counts fall into three
categories:
1. Avoidance and recovery of the shareholder derivative releases to
Morgan, Lau, Rieder, and Center Lane as actual or constructive
fraudulent transfers under 11 U.S.C. §§ 544, 548, and 550 (Counts
6–11).
5
The release was broadly worded to include “any and all Claims that are based
upon, arise out of, relate in any way to, or involve (in whole or in part) any of the facts
alleged in the Action, . . . including any and all Claims which are based upon, arise out of,
relate in any way to, or involve, directly or indirectly . . . the Evergreen Transaction.”
6
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2. Avoidance and recovery, under §§ 544(b) and 550, of payments
made in connection with the Evergreen Transaction: Erickson’s
$27.5 million payment to ZM Entities (Counts 1 and 4); and $2.5
million transaction fee to Center Lane vis-à-vis 10th Lane Part-
ners, LP (Counts 2, 3 and 5).
3. Objection to claims of the ZM Entities in Erickson’s Chapter 11
case under § 502(d) (Count 12). 6
The bankruptcy court granted Defendants’ motion to dismiss the suit.
Regarding the claims attacking the settlement releases (Counts 6–11), the
court concluded that the constructive fraud claims ran afoul of the Rooker-
Feldman doctrine because they amounted to an attack on the state court
judgment. Alternatively, it concluded principles of preclusion or this court’s
decisions in Besing and Erlewine supported dismissal on the merits. See In re
Besing, 981 F.2d 1488 (5th Cir. 1993); In re Erlewine, 349 F.3d 205 (5th Cir.
2003). As for the actual fraud claims attacking the releases, the court
concluded that the complaint failed to satisfy a heightened pleading standard
for fraud.
Finally, regarding the claims challenging payments that were part of
the Evergreen Transaction itself (Counts 1–5), the bankruptcy court
concluded that Ogle could not assert these claims because the Delaware
judgment “enjoined Erickson’s successors and assignees from prosecuting
any causes of action relating to the Evergreen transaction.”
The district court affirmed on each count for the reasons stated in the
bankruptcy court’s order and oral ruling. Additionally, it fleshed out Besing’s
applicability and concluded that precedent barred the “constructive
6
As both parties recognize, this claim depends on the others and, thus, does not
require an independent analysis.
7
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fraudulent transfer claims related to the Delaware Judgment.” Ogle timely
appealed.
II. DISCUSSION
“On appeal, this court reviews the bankruptcy court’s judgment by
the same standards that guided the district court scrutinizing the same
judgment in its appellate capacity. Findings of fact are reviewed for clear
error and conclusions of law de novo.” 7 In re Texas Com. Energy,
607 F.3d 153, 158 (5th Cir. 2010) (citation omitted).
The claims we must review are the first two sets identified above:
Those attacking releases in the Delaware settlement and others seeking
avoidance of two payments related to the Evergreen Transaction. We
address each in turn.
A. The Delaware Releases
For the following reasons, we affirm the bankruptcy court’s dismissal
of the constructive fraud (Counts 7 and 9) and actual fraud (Counts 6 and 8)
claims related to the Delaware settlement.
1. Constructive Fraud
The lower courts correctly concluded that the principles set forth in
Besing and Erlewine favor dismissal of Ogle’s constructive fraud claims
7
The record is not precise regarding the exact basis in the Federal Rules of Civil or
Bankruptcy Procedure for the lower court’s analysis. Our resolution, however, derives
from Rule 12(b)(6), incorporated under Bankruptcy Rule 7012(b), and considers whether
Ogle’s complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1973
(2007)).
8
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(Counts 7 and 9). 8 Following those cases, we hold that the Delaware court’s
judgment approving the relevant settlement agreement after a fairness
hearing established reasonably equivalent value for the Delaware releases as
a matter of law.
To avoid a transfer as constructively fraudulent Ogle must allege facts
showing, inter alia, that the debtor (Erickson) “received less than a
reasonably equivalent value in exchange for such transfer or obligation.” 9
11 U.S.C. § 548(a)(B)(i). While this “inquiry is ordinarily fact-intensive,” a
“[state] court’s disposition of the Debtors’ claims” can “constitute[] a
transfer for reasonably equivalent value as a matter of law.” 10 Besing,
981 F.2d at 1494–96; see Erlewine, 349 F.3d at 213 (affirming a bankruptcy
court’s “finding that the Debtor received reasonably equivalent value as a
8
Like Erlewine, we conclude the Rooker-Feldman doctrine does not deprive this
court of jurisdiction, nor does res judicata preclude the relevant claims. See Erlewine,
349 F.3d at 209–10 (recognizing Rooker-Feldman “generally should not extend to state
decisions that would not be given preclusive effect under doctrines of res judicata and
collateral estoppel,” and concluding res judicata and collateral estoppel did not apply
because the trustee also represented the interests of creditors that were “not represented
in the [state court] action”). Thus, we affirm the bankruptcy court based on its alternative
holding grounded in Besing and Erlewine.
9
Besing and Erlewine both “rested on an interpretation of the phrase ‘reasonably
equivalent value’ in § 548.” Erlewine, 349 F.3d at 211. The claims in Besing were for breach
of contract and tort, and the state court’s dismissal of those claims with prejudice as a
sanction for discovery abuse “effectively appraised” the claims “as valueless.” Erlewine,
349 F.3d at 211 (summarizing Besing); see Besing, 981 F.2d at 1496. In Erlewine, the relevant
state court judgment was a divorce decree dividing community assets “unevenly” between
the divorcing parties, of which the debtor’s portion was deemed “reasonably equivalent
value as a matter of law.” 349 F.3d at 212–13.
10
As we recognized in Erlewine, this approach “draws modest support” from BFP
v. Resolution Trust Corp., 511 U.S. 531, 114 S. Ct. 1757 (1994), where the Supreme Court
“held that the price received at a mortgage foreclosure sale conclusively satisfies the
reasonable equivalence test as long as the sale was non-collusive and conducted in
conformity with state law.” 349 F.3d at 212.
9
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matter of law” based on a state court judgment). Significantly, Erlewine
emphasized the importance of the state court proceedings being fully
litigated and without evidence of collusion, sandbagging, or any irregularity
before finding reasonably equivalent value. See Erlewine, 349 F.3d at 212–13
(concluding that “the Debtor received reasonably equivalent value as a
matter of law,” and emphasizing that the case “was fully litigated, without
any suggestion of collusion, sandbagging, or indeed any irregularity”).
The Delaware judgment approving the settlement established
reasonably equivalent value for the releases as a matter of law. Critically, the
Delaware court was not a passive participant in the settlement process;
instead, its “function” was to “consider the nature of the plaintiff’s claim,
the possible defenses thereto, the legal and factual circumstances of the case,
and then to apply its own business judgment in deciding whether the
settlement is reasonable in light of these factors.” 11 Prezant v. De Angeles,
636 A.2d 915, 921 (Del. 1994) (citations omitted). And the court did just that,
holding a fairness hearing that considered “the merits of the settlement,”
and concluding this settlement fell “within a range of reasonableness” that it
considered “the gravamen” of the relevant analysis. In its subsequent order
and final judgment, the Delaware court concluded that the terms of the
settlement were “fair, reasonable, and adequate, and in the best interests of
Plaintiff, the Class and [Erickson].”
Nor was there any indication whatsoever of collusion, sandbagging, or
other irregularity in the proceedings before the Delaware court. Ogle does
11
See also Barkan v. Amsted Indus., Inc., 567 A.2d 1279, 1283 (Del. 1989)
(recognizing the “special role” that the Court of Chancery plays “when asked to approve
the settlement of a class or derivative action,” and that it “must carefully consider all
challenges to the fairness of the settlement but without actually trying the issues
presented” while exercising its “considerable discretion”).
10
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not allege facts to support a finding, for example, that the settling parties
entered into a collusive settlement where material facts were concealed from
the state court to obtain its approval. Quite the contrary, Ogle recognizes
that the settlement was the result of meaningful negotiation between the
settling parties and even quotes excerpts from the Delaware hearing to that
effect. For instance, in the fairness hearing counsel told the Delaware court
that “the settlement amount was the product of negotiations by the parties”
aided by “an assessment of the case by an experienced and highly respected
mediator after the parties were unable to agree on a number.” Further, the
mediator “endorsed the reasonableness of the settlement amount.” Indeed,
“the settlement very nearly cratered” over allocation of the settlement
proceeds; and the parties “fought very, very hard” over the division of the
proceeds.
Ogle’s efforts to distinguish Besing and Erlewine give us no pause.
First, nothing in those cases supports limiting them to involuntary judicial
transfers as Ogle suggests. Rather, Erlewine emphasizes the importance of
the judicial transfer being of an economic nature, stating that the judicial
property division in that case “was above all an economic transaction, albeit
an involuntary one.” 349 F.3d at 212 (emphasis added). The settlement
here, too, was an economic transaction vigorously negotiated by the parties
and independently evaluated for fairness by a mediator and the Delaware
court. Second, this court’s consideration of the Delaware judgment does not
amount to taking improper judicial notice of the factual findings of another
court. 12 Quite the opposite. Like Besing, we decline to “look behind” the
12
Ogle relies primarily on an out-of-circuit case in a different context to support
this argument. See Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1082–83 (7th
Cir. 1997). But Besing and Erlewine are factually on-point and precedential decisions this
panel is bound to follow under the rule of orderliness.
11
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Delaware judgment to “make an independent evaluation of the claims on
their merits.” 981 F.2d at 1496. Recognizing the existence and parameters
of a state court judgment hardly constitutes improper judicial notice, and that
is precisely what this court did in Besing and Erlewine. Alternatively, Ogle
urges this court to distinguish Besing on the facts by looking to the
“circumstances” around the Delaware judgment and “significant factual
issues [that] remain regarding reasonably equivalent value.” To do so would
be to look behind the Delaware judgment and independently assess its merits,
an invitation we have declined. And Ogle has not alleged irregularities or
special circumstances that would require reconsidering a heavily negotiated
and judicially scrutinized settlement agreement that is quintessentially
economic in nature.
Even if we consider the fact issues raised by Ogle, they do not
persuade. Ogle raises two issues based on excerpts from the fairness hearing.
He asserts that the 80/20 distribution of settlement proceeds was motivated
by the fact that “the fox [was] still controlling the henhouse,” and the state
court judge expressed “serious concerns about the plan allocation” but
nevertheless acquiesced and approved the settlement “because there’s been
no objection to it.” As to the first point, the Delaware court’s consideration
of Erickson’s leadership composition when assessing the settlement’s
fairness is not incompatible with a finding of reasonable equivalence as a
matter of law. In Erlewine, we recognized that “[i]ntangible, non-economic
benefits, such as preservation of marriage, do not constitute reasonably
equivalent value.” 349 F.3d at 212 (quoting Hinsley v. Boudloche (In re
Hinsley), 201 F.3d 638, 643 (5th Cir. 2000) (internal citation omitted))
(brackets in original). But we also recognized that this “sound principle”
was inapplicable to a property division that “was above all an economic
transaction.” Id. That proposition is even more appropriate for the
quintessentially economic transaction here.
12
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Ogle’s second point is meritless and misconstrues the record. The
Delaware court did not express reservations about the 80/20 division of the
settlement proceeds in the fairness hearing. Instead, its “concerns about the
plan of allocation” centered entirely on how the shareholders’ 80% portion
would be distributed. The judge was specifically concerned about “sellers
who, as a matter of Delaware law, gave up their Delaware law claims,” and
expressed concern that the settlement was “going to naturally skew towards
larger institutional holders who can more easily maintain and assemble [the
required] records.” These concerns are irrelevant to our purposes here.
In short, consistent with Besing and Erlewine, there was reasonable
equivalence as a matter of law. The Delaware settlement “should not be
unwound by the federal courts merely because of its unequal division of
[settlement proceeds].” Erlewine, 349 F.3d at 212–13.
2. Actual Fraud
Ogle’s attempt to attack the Delaware releases as actually fraudulent
transfers also fails. We see no error in the lower courts’ conclusion that Ogle
failed to adequately plead actual fraud, and his arguments on appeal do not
convince us otherwise. 13
The complaint crucially omits any facts alleging fraud on the Delaware
court to obtain its approval of the settlement. Had such facts been alleged,
they might be considered “independent claims over which the [federal]
district court had jurisdiction” because they do “not seek to overturn the
state-court judgment” and the injuries did not “aris[e] from the []
judgment.” Truong v. Bank of Am., 717 F.3d 377, 383 (5th Cir. 2013)
13
Besing was explicit that its holding extended only to constructive fraud claims—
not to claims of actual fraud. 981 F.2d at 1496. We decline the Defendants’ invitation to
extend Besing and Erlewine to actual fraud under the facts before us.
13
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(concluding Rooker-Feldman did not bar allegations that the state court was
“misled” into thinking certain evidence was “authentic,” and the plaintiff
was “misled” into “foregoing her opportunity to dispute authenticity in the
state-court proceedings”). The complaint fails to allege such facts here.
At best, Ogle points to various badges of fraud, emphasizing that
(1) Erickson had been sued prior to giving out the releases; (2) the transfer
was to insiders or their associates; (3) the absence of reasonably equivalent
value; and (4) Erickson’s insolvency at the time the releases were given. But
these so-called indicators of fraud do not hold up to scrutiny. Erickson was
technically sued prior to the Delaware settlement, but only as a nominal
defendant—the relevant suit alleged derivative claims and was effectively
brought on Erickson’s behalf. The reasonable equivalence argument is little
more than an attempt to re-argue the constructive fraud issue in the guise of
an actual fraud claim. And the allegation that insiders benefited fails to
account for the fact that the substance of the settlement was approved by
non-insiders including Erickson’s independent directors and legal counsel,
the third-party mediator, and the Delaware court. That leaves the allegation
of Erickson’s insolvency at the time the release was given. Standing alone,
this is nothing like the kind of irregularity needed to allege an “independent
claim” involving a state court judgment. 14
14
This conclusion holds true under both ordinary and heightened pleading
standards. Thus, we need not reach the issue whether Rule 9(b)’s heightened pleading
standard for allegations of fraud applies to fraudulent transfer claims under the Bankruptcy
Code. See FED. R. CIV. P. 9(b) (requiring allegations of “fraud or mistake” to be stated
“with particularity”); Life Partners Creditors’ Trust v. Cowley (In re Life Partners Holdings,
Inc.), 926 F.3d 103, 117–18 (5th Cir. 2019) (declining to answer this “vexing question” and
concluding the relevant complaint was sufficient “under either standard”); cf.
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1297 (4th ed. 2019 update) (“Claims of fraudulent transfer or fraudulent conveyance are
also subject to the heightened standard of Rule 9(b).”). We further observe that Ogle does
not appear to have raised this issue before the lower courts. He contended instead that the
14
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B. The Evergreen Payments
As we will explain in more detail below, the lower courts erroneously
concluded that Ogle was enjoined by a provision of the Delaware judgment
from asserting avoidance and recovery claims challenging Erickson’s $2.5
million payment to Centre Lane and $27.5 million payment to ZM Entities
relating to the Evergreen Transaction. These claims are asserted by Ogle in
his capacity as trustee of the post-confirmation litigation trust and assignee
of the claims in question. We also reject Defendants’ alternative theory that
claim preclusion bars these claims. The pleading is sufficient for Ogle to
proceed on the $27.5 million payment, but Ogle fails to allege a plausible
claim of actual or constructive fraud with respect to the $2.5 million payment
to Centre Lane.
1. Trustee is Not Enjoined by the Delaware Settlement
The bankruptcy court erred in concluding Ogle was enjoined by the
Delaware settlement, as Erickson’s successor and assignee, from asserting
any claims relating to the Evergreen Transaction. Technically, Ogle is the
trustee of a litigation trust created according to Erickson’s reorganization
plan for the benefit of the debtor’s creditors. He is not a Chapter 11 trustee
and therefore not endowed with all the statutory powers of a trustee or debtor
in possession under the Bankruptcy Code. But although his status is legally
different, he was assigned post-petition claims that arose pursuant to
§§ 544(b) and 550 of the Bankruptcy Code. Defendants cite no authority
suggesting that a state court settlement can bar a successor to the debtor,
specifically the trustee of a litigation trust like Ogle, from pursuing claims
complaint satisfies the heightened pleading standard. See Certain Underwriters at Lloyd’s
v. Axon Pressure Prods. Inc., 951 F.3d 248, 273 n.20 (5th Cir. 2020) (“Arguments not raised
in the district court cannot be asserted for the first time on appeal.” (quoting Greenberg v.
Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004))).
15
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under the Bankruptcy Code. 15 Acting in his specific capacity, Ogle is not
enjoined by the Delaware settlement from asserting creditor claims that arose
only under the Bankruptcy Code.
2. Claim Preclusion Does Not Bar Claims
Defendants’ argument has some appeal in urging that Ogle’s
avoidance claims under §§ 544(b) and 548 essentially seek to relitigate the
fiduciary breach and unjust enrichment claims resolved in the Delaware
settlement. We conclude, however, that the claims are not barred under a
straightforward application of Delaware preclusion law. Sid Richardson
Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 756
(5th Cir. 1996) (“We determine the preclusive effect of a state court
judgment according to state law.” (citation omitted)).
In Delaware, claim preclusion applies where: “(1) [T]he original
court had jurisdiction over the subject matter and the parties; (2) the parties
to the original action were the same as those parties, or in privity, in the case
at bar; (3) the original cause of action or the issues decided was the same as
the case at bar; (4) the issues in the prior action must have been decided
adversely to the appellants in the case at bar; and (5) the decree in the prior
action was a final decree.” LaPoint v. AmerisourceBergen Corp., 970 A.2d 185,
15
See also 5 COLLIER ON BANKRUPTCY ¶ 544.06 (16th ed. 2021) (“Under section
544(b)(1), the trustee succeeds to the rights of an unsecured creditor in existence at the
commencement of the case who may avoid the transfer under applicable law.”); In re
Moore, 608 F.3d 254, 260 (5th Cir. 2010) (“Central to this bankruptcy is the trustee’s
power under § 544(b), which allows him to succeed to the actual, allowable and unsecured
claims of the estate’s creditors. See 11 U.S.C. § 544(b). If an actual, unsecured creditor
can, on the date of the bankruptcy, reach property that the debtor has transferred to a third
party, the trustee may use § 544(b) to step into the shoes of that creditor and ‘avoid’ the
debtor’s transfer.”). A Chapter 11 debtor possesses all the powers of a trustee under the
Bankruptcy Code. Ad Hoc Grp. of Vitro Noteholders v. Vitro S.A.B. de C.V. (In re Vitro S.A.B.
de C.V.), 701 F.3d 1031, 1049 n.20 (5th Cir. 2012).
16
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192 (Del. 2009). These avoidance claims based on the Evergreen payments
fail prong two for lack of privity. As best we can determine, Erickson’s
creditors, now represented by Ogle, were neither parties nor “in privity”
under Delaware law with Erickson, on whose behalf the shareholder
derivative suit was filed.
Lacking authority from the state supreme court on the scope of
privity, we make an Erie guess and rely on “decisions of intermediate state
appellate courts . . . unless other persuasive data indicates the [Delaware]
Supreme Court would decide otherwise.” Wright v. Excel Paralubes,
807 F.3d 730, 734 (5th Cir. 2015). An oft-cited case holds that “[p]arties are
in privity for res judicata when their interests are identical or closely aligned
such that they were actively and adequately represented in the first suit.”
Aveta Inc. v. Cavallieri, 23 A.3d 157, 180 (Del. Ch. 2010). 16 See also Higgins v.
Walls, 901 A.2d 122, 138 (Del. Sup. Ct. 2005)(“[A] nonparty will be bound
when its interests were represented adequately by a party in the original
suit.”). 17 This is broad language, but neither our research nor that of the
parties uncovered a Delaware decision in which a shareholder derivative suit
sufficed to establish privity between the plaintiffs or the corporation and
16
See Israel Disc. Bank of New York v. Higgins, No. CV 9817-VCP, 2015 WL
5122201, at *9 (Del. Ch. Aug. 31, 2015); Brevan Howard Credit Catalyst Master Fund Ltd. v.
Spanish Broad. Sys., Inc., No. CV 9209-VCG, 2015 WL 2400712, at *3 (Del. Ch. May 19,
2015); Sussex Cnty. v. Sisk, No. CIV.A. 8915-MA, 2014 WL 3954929, at *3 (Del. Ch.
Aug. 13, 2014); Levinhar v. MDG Med., Inc., No. CIV.A. 4301-VCS, 2009 WL 4263211, at
*10 n.41 (Del. Ch. Nov. 24, 2009).
17
Recently, the author of Aveta purported to retract that decision’s broad
statement in favor of a narrower formulation of privity. See In re Columbia Pipeline Grp.,
Inc., No. CV 2018-0484-JTL, 2021 WL 772562, at *18 (Del. Ch. Mar. 1, 2021), cert. denied
sub nom. In re Columbia Pipeline Grp. Inc. (Del. Ch. 2021), and appeal refused sub nom. In re
Columbia Pipeline Grp., Inc. Merger Litig., 249 A.3d 801 (Del. 2021). That decision,
however, was unpublished and therefore entitled at most to “great deference” under
Delaware law. See Aprahamian v. HBO & Co., 531 A.2d 1204, 1207 (Del. Ch. 1987).
17
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corporate creditors. Moreover, although both groups may share a common
interest in restoring ill-gotten gains from the fiduciary breach of directors,
creditors are not “closely aligned” with derivative plaintiffs and may not
share in any recovery. Nor, because they have no direct stake in any recovery,
are the interests of creditors actively, much less adequately represented in a
derivative suit.
The fundamental divide between the interests of corporate creditors
and shareholders/derivative plaintiffs demonstrates why they are not in
privity. Delaware’s Supreme Court has clearly differentiated between the
claims that may be brought by or on behalf of a corporation against its
directors and those that creditors may pursue. NACEPF v. Gheewalla,
930 A.2d 92, 103 (Del. 2007). In that case, the court rejected creating claims
by a creditor for breach of directors’ fiduciary duties toward a corporation
with which it had a contract. The court held it “well established” that
directors’ fiduciary obligations are owed to the corporation and its
shareholders. Id. at 99 (footnotes and citations omitted). “While
shareholders rely on directors acting as fiduciaries to protect their interests,
creditors are afforded protection through contractual agreements, fraud and
fraudulent conveyance law, implied covenants . . . , bankruptcy law, general
commercial law and other sources of creditor rights.” Id. (footnotes
omitted). Further, state law imposes responsibility on directors “to manage
the business of a corporation for the benefit of its shareholder[] owners,” and
fiduciary duties are imposed on them “when they perform that function.” Id.
at 101 (emphasis in original). Consequently, the court disavowed any direct
creditors’ claim for breaching fiduciary duties owed to a solvent corporation.
Id. 18 From this discussion, the inescapable inference is that shareholder
18
When the shareholder and derivative suits were filed against Erickson, no claim
was made of corporate insolvency at that time. Thus, we need not consider the court’s
18
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derivative claims against certain of Erickson’s directors are intended to
protect the interests of shareholders and maximize value for Erickson. Id. at
100 (citing Prod. Res. Grp., L.L.C. v. NCT Grp., Inc., 863 A.2d 772, 790 (Del.
Ch. 2004)). What maximizes value for Erickson as a going concern may or
may not maximize value for its creditors, and those creditors must rely on
other sources of law for their benefit. Thus, the “interests” of Erickson’s
creditors vis a vis the corporation’s allegedly faithless directors were not
necessarily aligned with or represented by the derivative plaintiffs.
As noted by Gheewalla, of course, one of the creditors’ remedies lay
in the provisions of bankruptcy law. Ogle, the litigation trustee for the trust
created by Erickson’s reorganization plan, succeeded to the right to seek
redress for intentional fraudulent transfers pursuant to 11 U.S.C. §§ 544(b),
548. The potential overlap with the derivative plaintiffs’ previous fiduciary
duty breach and unjust enrichment claims is undeniable, but theoretically,
the challenged $27.5 million and $2.5 million Evergreen transfer payments
to entities controlled by Defendants Morgan and Lau could separately have
been deemed in fraud of Erickson’s creditors.
3. Sufficiency of the Pleadings
Having concluded these claims are not precluded, we turn to
Defendants’ contention that they fail to sufficiently plead fraud. Brown v.
Tarrant Cnty., 985 F.3d 489, 494 (5th Cir. 2021) (“Under our precedent, we
may affirm on any ground supported by the record, so long as the argument
was raised below.” (internal quotation marks, citation, and alterations
omitted)). We conclude Counts 1 and 4, regarding the $27.5 million payment
to ZM Entities, sufficiently plead claims for actual fraud and recovery
additional holding in Gheewalla that creditors of an insolvent corporation accede to fiduciary
duty derivative claims because at that point, “its creditors take the place of the shareholders
as the residual beneficiaries of any increase in value.” 930 A.2d at 101.
19
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pursuant to §§ 544(b) and 550. Counts 2, 3, and 5—alleging actual or
constructive fraud with respect to Centre Lane’s $2.5 million transaction
fee—do not.
(a) The $27.5 Million Transfer
Construing the factual allegations in the complaint in Ogle’s favor, as
we must at this stage, the claims challenging the $27.5 million transfer state
a plausible claim of actual fraudulent transfer under §§ 544(b) and 548.
Specifically, the allegations are that Defendants obtained early repayment
from Erickson on $27.5 million in debt as part of the transaction financing
(a) knowing Erickson would at least be placed in severe financial difficulty,
and with (b) the intent to jump the queue of creditors. Although this transfer
was made in association with financing for the Evergreen Transaction,
Erickson used it to satisfy debt owed to ZM Entities (which held a controlling
interest in Erickson), but not as consideration for the purchase of EHI.
Importantly, the complaint alleges that ZM Entities “received early payment
of outstanding unsecured obligations purportedly owed by Erickson,” and in
so doing left “Erickson’s other creditors to serve as bag holders of the newly
undercapitalized company” that Defendants allegedly knew was headed
toward bankruptcy. 19 The substance of this claim alleges more than bad
decision-making by conflicted leaders to Erickson’s detriment (as was pled
in the Delaware litigation for fiduciary breach and unjust enrichment).
Rather, the complaint alleges an attempt to cheat other creditors of their due
portion of the debtor’s assets, a claim which was not and could not have been
addressed by the derivative plaintiffs in the Delaware litigation.
19
These allegations, in fact, are sufficient to satisfy the heightened pleading
standard for Rule 9(b). See fn. 13 supra. See Williams v. WMX Techs., Inc., 112 F.3d 175,
179 (5th Cir. 1997) (holding Rule 9(b) requires a plaintiff plead the “who, what, when,
where, and how” of the alleged fraud).
20
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No. 20-10908
(b) The $2.5 Million Transfer
Not so for the actual and constructive fraud claims challenging the
$2.5 million transfer (Counts 2 and 3), as the Trustee’s complaint itself is
replete with information about the work Centre Lane performed on the
transaction. For example, Centre Lane was hired to “provide the analysis of
EHI’s prospects.” It “drove the financial modeling for EHI and maintained
full control of that model,” and “solicited input from Erickson from time to
time with respect to EHI projections.” While the complaint alleges these
efforts were deceptive, deficient, and caused Erickson real harm, it does not
plausibly allege the payment of $2.5 million for this work was part of an
actually fraudulent scheme to defraud creditors. Nor does it plausibly allege
constructive fraud. It does not, for instance, allege facts to support a finding
that a $2.5 million transaction fee falls outside a range of reasonableness for
the kind of work performed by Centre Lane with respect to a $250 million
transaction. In short, paying Centre Lane for its work—even if it was as
deficient and deceptive as the complaint alleges—does not, standing alone,
constitute an actually or constructively fraudulent transfer.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the dismissal of Counts 6–9
seeking avoidance of and recovery for the releases in the Delaware settlement
as actually and constructively fraudulent transfers (and Counts 10–12 as
dependent on 6–9). We also AFFIRM dismissal of Counts 2, 3, and 5
relating to the $2.5 million payment to Center Lane for its work on the
Evergreen Transaction. We REVERSE the dismissal of Counts 1 and 4 to
the extent they allege an actually fraudulent scheme to obtain early payment
21
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No. 20-10908
on debt at the expense of other creditors in light of Erickson’s imminent
bankruptcy. 20
AFFIRMED in part, REVERSED in part.
20
To be clear, we make no judgment as to whether Erickson’s bankruptcy was, in
fact, imminent at the time of the transfer, or decide any other questions of fact. Such
questions will be explored in future proceedings on remand.
22