Executive Benefits Insurance Agency v. Arkison

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: No. 11-35162
BELLINGHAM INSURANCE
AGENCY , INC., D.C. No.
Debtor, 2:10-cv-00929-MJP
EXECUTIVE BENEFITS
INSURANCE AGENCY , OPINION
Appellant,
v.
PETER H. ARKISON , TRUSTEE ,
solely in his capacity as
Chapter 7 Trustee of the
estate of Bellingham
Insurance Agency, Inc.,
Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted
October 13, 2011–Seattle, Washington
Filed December 4, 2012
2 IN RE : BELLINGHAM INS. AGENCY , INC.
Before: Alex Kozinski, Chief Judge, Richard A. Paez,
Circuit Judge, and Raner C. Collins,* District Judge.
Opinion by Judge Paez
*
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
IN RE : BELLINGHAM INS. AGENCY , INC. 3
SUMMARY**
Bankruptcy
Affirming the district court’s affirmance of the
bankruptcy court’s summary judgment, the panel held that a
non-Article III bankruptcy judge lacks constitutional
authority to enter a final judgment in a fraudulent conveyance
action against a nonclaimant to the bankruptcy estate, but that
the nonclaimant here waived its right to an Article III hearing.
The panel held that following Granfinanciera, S.A. v.
Nordberg, 492 U.S. 33 (1989), and Stern v. Marshall, 131 S.
Ct. 2594 (2011), the public rights exception to the rule of
Article III adjudication does not encompass federal-law
fraudulent conveyance claims, even though Congress
designated such claims as core bankruptcy proceedings. The
panel stated that in light of Stern, In re Mankin, 823 F.3d
1296 (9th Cir. 1987), was overruled. The panel held that
11 U.S.C. § 157(b)(1) provides bankruptcy courts the power
to hear fraudulent conveyance cases and to submit reports and
recommendations to the district courts.
The panel also held that the right to a hearing in an Article
III court is waivable, and that here the nonclaimant consented
to the bankruptcy judge’s adjudication of the fraudulent
conveyance claim by failing to object until the case reached
the court of appeals.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IN RE : BELLINGHAM INS. AGENCY , INC.
The panel held that the bankruptcy trustee satisfied all
elements of a constructively fraudulent transfer of the
debtor’s property under 11 U.S.C. § 548 and under
Washington State law. In addition, the nonclaimant was a
successor corporation of the debtor and therefore liable for its
debts.
COUNSEL
Nicholas Arthur Paleveda; Law Offices of Nicholas Paleveda
MBA J.D. LL.M, Bellingham, Washington, for Appellant.
Denice Moewes; Wood & Jones, Seattle, Washington, for
Appellee.
Alan Vanderhoff; Vanderhoff Law Group, San Diego,
California, for Amicus Curiae Alan Vanderhoff.
G. Eric Brunstad, Jr.; Dechert LLP, Hartford, Connecticut, for
Amicus Curiae G. Eric Brunstad, Jr.
Seth P. Waxman and Craig Goldblatt; Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C., for Amici
Curiae S. Todd Brown, G. Marcus Cole, Ronald D. Rotunda,
and Todd J. Zywicki.
John Anthony Edwards Pottow; University of Michigan Law
School, Ann Arbor, Michigan, for Amicus Curiae John
Anthony Edwards Pottow.
Roberta Ann Colton; Trenam Kemker Attorneys, Tampa,
Florida, for Amicus Curiae the Business Law Section of the
Florida Bar.
IN RE : BELLINGHAM INS. AGENCY , INC. 5
Paul D. Moore; Duane Morris LLP, Boston, Massachusetts,
for Amici Curiae New CH YMC Acquisition LLC,
Yellowstone Mountain Club, LLC, and Yellowstone
Development, LLC.
Lynne F. Riley; Riley Law Group LLC, Boston,
Massachusetts; and Jessica D. Gabel; Georgia State
University College of Law, Atlanta, Georgia, for Amicus
Curiae National Association of Bankruptcy Trustees.
Nathaniel Garrett; Jones Day, San Francisco, California, for
Amicus Curiae Jones Day.
Sarang Vijay Damle and Robert Loeb; U.S. Department of
Justice Civil Division, Washington, D.C., for Amicus Curiae
United States of America.
Douglas Hallward-Driemeier; Ropes & Gray, LLP,
Washington, D.C., for Amicus Curiae Marcia M. Tingley.
Christopher Conant; Conant Law LLC, Denver, Colorado, for
Amicus Curiae Timothy L. Blixseth.
David Anthony Gaston; Law Offices of David Anthony
Gaston, San Diego, California; and Edward Silverman;
Sandler Lasry Laube Byer & Valdez, LLP, San Diego,
California, for Amici Curiae Alejandro Diaz-Barba and
Martha Margarita Barba de la Torre.
Matthew Rutledge Schultz and Christopher Daniel Sullivan;
Trepel Greenfield Sullivan & Draa LLP, San Francisco,
California, for Amicus Curiae Concerned Chapter 7 and 11
Trustees and Plan Administrators.
6 IN RE : BELLINGHAM INS. AGENCY , INC.
OPINION
PAEZ, Circuit Judge:
This quotidian bankruptcy case presents a novel question:
can a non-Article III bankruptcy judge enter a final judgment
in a fraudulent conveyance action against a nonclaimant to
the bankruptcy estate? Federal law empowers bankruptcy
judges to do so, but we hold that the Constitution forbids it.
The Executive Benefits Insurance Agency suffered an
adverse final judgment in a fraudulent conveyance at the
hands of a bankruptcy judge. But our decision today is no
reprieve, because we also hold that the company consented to
the adjudication of the fraudulent conveyance claim by a
bankruptcy judge by failing to object until the case reached
this court. Thus, unencumbered by constitutional doubts, we
review the entry of summary judgment de novo, and affirm.
I
Nicholas Paleveda and his wife, Marjorie Ewing, operated
a welter of companies, including Aegis Retirement Income
Services, Inc. (“ARIS”) and the Bellingham Insurance
Agency, Inc. (“BIA”). ARIS designed and administered
defined-benefit pension plans, and BIA sold insurance and
annuity products that funded those plans.
BIA and ARIS were closely related: Paleveda owned
100% of ARIS and served as the CEO and sole director of
BIA until February 14, 2006, when Ewing took over. Ewing
owned 80% of BIA and served as ARIS’s general manager.
ARIS and BIA shared an office and a phone number. Because
ARIS lacked sufficient assets to operate independently, it
IN RE : BELLINGHAM INS. AGENCY , INC. 7
routed all of its income and expenses through BIA, kept joint
accounting records with BIA, and declared its income on
consolidated tax returns with BIA.
By early 2006, BIA was insolvent. And though the
company ceased operations on January 31, 2006, it did not
stop acting entirely. Two weeks after closing its doors, the
company irrevocably assigned the insurance commissions
from one of its largest clients, the American National
Insurance Company, to Peter Pearce, a longtime BIA and
ARIS employee who had often acted as a conduit for
insurance commissions between BIA and its clients.
The day after BIA stopped operating, Paleveda used BIA
funds to incorporate the Executive Benefits Insurance
Agency, Inc. (“EBIA”). In 2006, $373,291.28 of commission
income earned between January 1 and June 1 was deposited
into an account held jointly by ARIS and EBIA. Pearce
deposited $123,133.58 and EBIA deposited the remainder. At
the end of the year, all of the deposits were credited to EBIA
via an “intercompany transfer.”1
In the meantime, BIA had filed a voluntary Chapter 7
bankruptcy petition in the United States Bankruptcy Court for
the Western District of Washington. The Trustee, Peter
Arkison—the Appellee in this case—filed a complaint against
EBIA and ARIS in the same court to recover the commissions
deposited into the EBIA/ARIS account, which the Trustee
alleged to be property of the estate. The complaint alleged
eighteen causes of action, including federal- and state-law
preferential and fraudulent transfer claims and a claim that
1
As the district court did, we draw these facts from the uncontroverted
accounting evidence produced by the Trustee.
8 IN RE : BELLINGHAM INS. AGENCY , INC.
EBIA was a successor corporation of BIA and therefore liable
for its debts.
The bankruptcy court granted summary judgment in favor
of the Trustee, concluding that the deposits into the
EBIA/ARIS account were fraudulent conveyances of BIA
assets and that EBIA was a “mere successor” of BIA. The
bankruptcy court entered a final judgment for $373,291.28.2
EBIA appealed to federal district court. The district court
affirmed, holding that the commissions paid into the
ARIS/EBIA account were fraudulent transfers under both the
Bankruptcy Code, 11 U.S.C. § 548, and Washington’s
Uniform Fraudulent Transfer Act, Wash. Rev. Code
§ 19.40.041. The district court also affirmed the bankruptcy
court’s judgment that EBIA was liable for BIA’s debts as a
corporate successor.
2
In total, EBIA was credited with $373,291.28 in commission income
for the January 1, 2006 to June 1, 2006 period, an amount that formed the
basis of the bankruptcy court’s judgment. Of this total, $123,133.58 was
deposited by Pearce, and the remaining $250,836.98 was deposited by
EBIA itself.
In his declaration, the Trustee’s accounting expert, Michael
Quackenbush, appears to have improperly summed these figures. He
avers, “There are five deposits buy [sic] Pearce totaling $122,454.30.
There are 14 additional deposits into the ARIS account by EBIA for
commissions it earned totaling $277,885.82. Thus the total commissions
deposited into the ARIS account for commissions earned from BIA related
business was $373,291.28.” In fact, the sum of $122,454.30 and
$277,885.82 is $400,340.12, according to Microsoft’s venerable Windows
Calculator. Some expert. The accountant also summed the deposits within
each category incorrectly: the Pearce deposits actually total $123,133.58,
and the EBIA deposits total $250,157.70. Because the corrected figures
sum to $373,291.28, however, the expert’s errors did not undermine the
accuracy of the bankruptcy court’s judgment.
IN RE : BELLINGHAM INS. AGENCY , INC. 9
EBIA appealed. In a motion to dismiss submitted prior to
oral argument, EBIA objected for the first time to the
bankruptcy judge’s entry of final judgment on the Trustee’s
fraudulent conveyance claims. Styled as a motion to vacate
the judgment for lack of subject-matter jurisdiction, and
relying on Stern v. Marshall, 131 S. Ct. 2594 (2011), the
motion argued that the bankruptcy judge was constitutionally
proscribed from entering final judgment on the Trustee’s
claims.3 It is to this vexing constitutional issue that we first
turn.
II
A
Bankruptcy judges are appointed for terms of 14 years,
28 U.S.C. § 152(a)(1), and their salaries are subject to
Congressional diminution. Id. § 153(a). Hence, bankruptcy
judges cannot exercise “[t]he judicial Power of the United
States,” which is vested by the Constitution in courts whose
judges enjoy life tenure and salary protection. U.S. Const. art.
III, § 1.
Nonetheless, bankruptcy judges enjoy substantial
statutory authority. Although the district courts have
exclusive jurisdiction over “all cases under title 11,” id.
3
Following oral argument in this appeal, we invited briefs from amicus
curiae on the questions: 1) whether bankruptcy courts may enter a final,
binding judgment on an action to avoid a fraudulent conveyance, and 2)
whether, if they cannot enter such final judgments, bankruptcy courts may
hear the proceeding and submit a report and recommendation to a federal
district court. See Exec. Benefits Ins. Agency v. Arkison (In re Bellingham
Ins. Agency, Inc.), 661 F.3d 476 (9th Cir. 2011). W e appreciate the many
thoughtful briefs that were submitted in response to our invitation.
10 IN RE : BELLINGHAM INS. AGENCY , INC.
§ 1334(a), they may refer all of the cases within that broad
jurisdiction to bankruptcy judges, id. § 157(a). What the
bankruptcy court may do with a given referred proceeding
depends on whether the proceeding is denominated a “core”
or a “non-core” proceeding. In all “core proceedings arising
under title 11, or arising in a case under title 11,” a
bankruptcy judge has the power to “hear and determine the
controversy” and enter final orders, subject only to appellate
review. Id. § 157(b)(1). In a non-core proceeding “that is
otherwise related to a case under title 11,” however, a
bankruptcy judge may only “submit proposed findings of fact
and conclusions of law to the district court.” Id. § 157(c)(1).
The entry of final judgment in non-core proceedings is the
sole province of Article III judges.
Section 157(b)(2) enumerates sixteen nonexclusive
examples of “core proceedings.” Among these are
“proceedings to determine, avoid, or recover fraudulent
conveyances.” Id. § 157(b)(2)(H). The bankruptcy judge
hearing the Trustee’s claim was thus empowered by statute to
enter a final judgment. Indeed, until quite recently, the
exercise of that statutory power was routine and
uncontroversial. See, e.g., Jones v. Schlosberg, No. 04-00571,
2005 WL 6764810, at *5–6 (C.D. Cal. 2005) (affirming a
bankruptcy court’s entry of judgment in a fraudulent
conveyance action); see also Duck v. Munn (In re Mankin),
823 F.2d 1296, 1300–01 (9th Cir. 1987) (holding that both
state- and federal-law fraudulent conveyance actions are core
proceedings). But following the Supreme Court’s decision in
Stern v. Marshall, the view that such judgments are consistent
with the Constitution is no longer tenable.
IN RE : BELLINGHAM INS. AGENCY , INC. 11
B
To explain why this is so, we must begin somewhat
earlier, with the Supreme Court’s epochal decision in
Northern Pipeline Construction Co. v. Marathon Pipe Line
Co., 458 U.S. 50 (1982). The Bankruptcy Reform Act of 1978
invented the modern bankruptcy judge, subject to the same
conditions as today: a 14-year term and a mutable salary. Id.
at 53. Northern Pipeline was the Supreme Court’s first effort
to demarcate the constitutional limits of these judges’
authority.
Northern Pipeline filed a Chapter 11 petition for
reorganization in a bankruptcy court. Id. at 56. It then filed a
suit against Marathon Pipe Line for a prepetition breach of
contract and warranty. Id. Marathon sought to dismiss the suit
on the grounds that the claim at issue could only be decided
by an Article III judge. Id.A plurality of the Court agreed that the assignment of
Northern Pipeline’s state-law claims for resolution by a
bankruptcy judge violated Art. III of the Constitution. Id. at
87 (Brennan, J., plurality opinion); id. at 91 (Rehnquist, J.,
concurring in judgment). The plurality admitted to only three
exceptions to the rule of Article III adjudication: territorial
courts, id. at 64, military tribunals, id. at 66, and cases
involving “public” as opposed to “private” rights, id. at 67.4
4
A majority of the Northern Pipeline Court also acknowledged that it
is constitutionally permissible for an Article III court to assign factfinding
responsibility to an adjunct, provided that the Article III court retains “the
essential attributes of the judicial power.” 458 U.S. at 77 (quoting Crowell
v. Benson, 285 U.S. 22, 51 (1932) (internal quotation marks omitted)).
Nonetheless, “the bankruptcy court is not an ‘adjunct’ of either the district
court or the court of appeals.” Id. at 91 (Rehnquist, J., concurring in the
12 IN RE : BELLINGHAM INS. AGENCY , INC.
Outside of the narrowly drawn exceptions for territorial and
military courts, the distinction between public and private
rights was the crucial determinant of whether a dispute
belonged in an Article III court: “Our precedents clearly
establish,” the Court explained, “that only controversies in the
former category may be removed from Art. III courts and
delegated to legislative courts or administrative agencies for
their determination. Private-rights disputes, on the other hand,
lie at the core of the historically recognized judicial power.”
Id. at 70 (internal citations and footnote omitted).
While a majority of the Court could not agree on the
scope of the public rights exception, a majority did agree that
the public rights exception could not justify the adjudication
of Northern Pipeline’s claims by a non-Article III officer. See
id. at 69 (plurality opinion); id. at 91 (“To whatever extent
different powers granted under [the Bankruptcy Reform] Act
might be sustained under the ‘public rights’ doctrine . . . I am
satisfied that the adjudication of Northern’s lawsuit cannot be
so sustained.”) (Rehnquist, J., concurring).
Despite consigning the breach of contract and breach of
warranty claims at issue to the category of private rights, the
Northern Pipeline plurality hinted that some quantum of
bankruptcy proceedings might fall within the public rights
exception:
[T]he restructuring of debtor-creditor relations, which
is at the core of the federal bankruptcy power, must
judgment); see also id. at 81–86 (plurality opinion). Stern reaffirmed that
bankruptcy courts are not adjuncts. See 131 S. Ct. at 2611 (“Nor can the
bankruptcy courts under the 1984 Act be dismissed as mere adjuncts of
Article III courts . . . .”).
IN RE : BELLINGHAM INS. AGENCY , INC. 13
be distinguished from the adjudication of
state-created private rights, such as the right to
recover contract damages that is at issue in this case.
The former may well be a “public right,” but the latter
obviously is not.
Id. at 71.
Following the Northern Pipeline decision, Congress
amended the statutes governing bankruptcy jurisdiction and
bankruptcy judges. See Bankruptcy Amendments and Federal
Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333 (the
“1984 Act”). The legislation enacted, among other reforms,
the division of claims in bankruptcy cases into core and non-
core proceedings. This distinction was clearly inspired by the
Northern Pipeline plurality’s dictum that certain proceedings
“at the core of the federal bankruptcy power . . . may well be
a ‘public right.’” 458 U.S. at 71; see also In re Mankin,
823 F.2d at 1305.
The cases following Northern Pipeline created substantial
new ambiguity about the content and import of the public
rights exception. In Thomas, the Court addressed a law that
required pesticide manufacturers to submit research data to
the Environmental Protection Agency on a new product’s
“health, safety, and environmental effects.” 473 U.S. at 571.
The law allowed subsequent registrants of similar products to
rely on the proprietary data, but required them to compensate
the first manufacturer for the data and to submit to binding
arbitration of any disagreement over the fee amount. Id. at
573–74. The Northern Pipeline plurality had defined public
rights as “matters arising between the Government and
persons subject to its authority in connection with the
performance of the constitutional functions of the executive
14 IN RE : BELLINGHAM INS. AGENCY , INC.
or legislative departments.” 458 U.S. at 67–68 (plurality
opinion) (internal quotation marks omitted). The Thomas
Court rejected that definition, opting for a more fluid
position: “the public rights doctrine reflects simply a
pragmatic understanding that when Congress selects a
quasi-judicial method of resolving matters that ‘could be
conclusively determined by the Executive and Legislative
Branches,’ the danger of encroaching on the judicial powers
is reduced.” 473 U.S. at 589 (quoting Northern Pipeline,
458 U.S. at 68). Under this newly pragmatic approach, the
Court was convinced that “the right created by [the statute] is
not a purely ‘private’ right.” Id. Rather, it bore “many of the
characteristics of a ‘public’ right”: it “serve[d] a public
purpose as an integral part of a program safeguarding the
public health” and “represent[ed] a pragmatic solution to the
difficult problem of spreading the costs of generating
adequate information regarding the safety, health, and
environmental impact of a potentially dangerous product.” Id.at 589–90.
Similarly, in Commodity Futures Trading Commission v.
Schor, 478 U.S. 833, 851 (1986), the Supreme Court abjured
“formalistic and unbending rules” for “determining the extent
to which a given congressional decision to authorize the
adjudication of Article III business in a non-Article III
tribunal impermissibly threatens the institutional integrity of
the Judicial Branch.” Instead, the Court held that determining
when a proceeding required an Article III court entailed
balancing several factors “with an eye to the practical effect
that the congressional action will have on the constitutionally
assigned role of the federal judiciary”:
Among the factors upon which we have focused are
the extent to which the “essential attributes of judicial
IN RE : BELLINGHAM INS. AGENCY , INC. 15
power” are reserved to Article III courts, and,
conversely, the extent to which the non-Article III
forum exercises the range of jurisdiction and powers
normally vested only in Article III courts, the origins
and importance of the right to be adjudicated, and the
concerns that drove Congress to depart from the
requirements of Article III.
Id. (citing Thomas, 473 U.S. at 587, 589–93). This multi-
factor standard demanded a certain hierophancy on the part
of the lower courts, which had to comb through the Court’s
inconsistent statements about the metes and bounds of Article
III to apply it. But the standard did reflect a pragmatic
accommodation of the realities of modern bankruptcy
practice and the logistical and administrative difficulty of
circumscribing the authority of the bankruptcy courts.
Encouraged by the Supreme Court’s retreat from a
formalist conception of the public rights exception and the
limitations of Article III more generally, we concluded in
1987 that certain controversies at the core of the bankruptcy
process implicated public rights. See In re Mankin, 823 F.2d
at 1308 (“The public rights doctrine in large part simply
constitutionalizes the historical understanding of what need
and need not be committed to Article III officers for
determination. While, as indicated above, it has always been
understood that the property rights of creditors cannot be
committed exclusively to the political branches for
determination, by the same token it has always been
understood that bankruptcy proceedings need not be solely
determined by Article III officers.”). We also held that the
portion of bankruptcy-related proceedings that fit within the
public rights exception was coextensive with that portion
which had been designated as “core” by the 1984 Act. Id.16 IN RE : BELLINGHAM INS. AGENCY , INC.
Today, we acknowledge Mankin’s demise.5 It has been
felled by two cases: Granfinanciera, S.A. v. Nordberg,
492 U.S. 33 (1989), and Stern v. Marshall, which together
point ineluctably to the conclusion that fraudulent
conveyance claims, because they do not fall within the public
rights exception, cannot be adjudicated by non-Article III
judges.
In Granfinanciera, the Court considered whether a non-
claimant to a bankruptcy estate has a Seventh Amendment
right to a jury trial when sued by the bankruptcy trustee under
11 U.S.C. § 548 to recover allegedly fraudulent prepetition
conveyances. 492 U.S. at 36. Because Congress had
designated fraudulent conveyance actions core proceedings,
which non-Article III judges could decide, the Court defined
the issue as “whether the Seventh Amendment confers on
petitioners a right to a jury trial in the face of Congress’
decision to allow a non-Article III tribunal to adjudicate the
claims against them.” Id. at 50. And that required the Court
to again construe the public rights exception, because
“Congress may only deny trials by jury in actions at law . . .
in cases where ‘public rights’ are litigated.” Id. at 51.
Was a fraudulent conveyance proceeding a matter of
public right? The Court’s answer was, if not unequivocal, at
least conclusive: “Although the issue admits of some debate,
a bankruptcy trustee’s right to recover a fraudulent
conveyance under 11 U.S.C. § 548(a)(2) seems to us more
accurately characterized as a private rather than a public right
as we have used those terms in our Article III decisions.” Id.5
Because the result in Mankin cannot be reconciled with the reasoning
in Stern, we may overrule it without taking this case en banc. See Miller
v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).
IN RE : BELLINGHAM INS. AGENCY , INC. 17
at 55. The Court echoed the Northern Pipeline plurality’s
distinction between the (possibly6) public-right “restructuring
of debtor-creditor relations”—the “core of the federal
bankruptcy power”—and the “adjudication of state-created
private rights.” Northern Pipeline, 458 U.S. at 71. Fraudulent
conveyance actions, the Granfinanciera Court explained, are
obviously in the latter category, because they “are
quintessentially suits at common law that more nearly
resemble state-law contract claims brought by a bankrupt
corporation to augment the bankruptcy estate than they do
creditors’ hierarchically ordered claims to a pro rata share of
the bankruptcy res.” 492 U.S. at 56.
Granfinanciera clarified that fraudulent conveyance
actions are not matters of public right, and that a noncreditor
retains a Seventh Amendment right to a jury trial on a
bankruptcy trustee’s fraudulent conveyance claim. Some
courts, however, seemed disinclined to deduce from those
holdings that such litigants also retain a right to be heard by
an Article III court. See, e.g., McFarland v. Leyh (In re Tex.
6
Notably, the Granfinanciera Court did not decide the question whether
even the “restructuring of debtor-creditor relations” was in fact a “public
right.” 492 U.S. at 56 n.11 (“W e do not suggest that the restructuring of
debtor-creditor relations is in fact a public right. This thesis has met with
substantial scholarly criticism, and we need not and do not seek to defend
it here. Our point is that even if one accepts this thesis, the Seventh
Amendment entitles petitioners to a jury trial.” (citation omitted)). Neither
did the Stern Court decide whether the public rights exception
constitutionally validates any of the powers that bankruptcy judges today
exercise. See 131 S. Ct. at 2614 n.7 (“W e noted [in Granfinanciera] that
we did not mean to ‘suggest that the restructuring of debtor-creditor
relations is in fact a public right.’ . . . Because neither party asks us to
reconsider the public rights framework for bankruptcy, we follow the
same approach here.”). W e, of course, follow the Court’s example in
declining to take up the question.
18 IN RE : BELLINGHAM INS. AGENCY , INC.
Gen. Petroleum Corp.), 40 F.3d 763, 770 (5th Cir. 1994),
withdrawn and replaced by 52 F.3d 1330 (5th Cir. 1995);
Turner v. Davis, Gillenwater & Lynch (In re Investment
Bankers, Inc.), 4 F.3d 1556, 1561 (10th Cir. 1993). But see
Leyh, 52 F.3d at 1336–37; Gower v. Farmers Home Admin.
(In re Davis), 899 F.2d 1136, 1140 n.9 (11th Cir. 1990).
Following Stern, we can no longer resist Granfinanciera’s
logic. The issue in Stern was whether a bankruptcy court
could enter final judgment on a state-law claim for tortious
interference with a gift expectancy, which Vickie Marshall
had filed as a compulsory counterclaim to Pierce Marshall’s
proof of claim in her ongoing bankruptcy proceeding. See
131 S. Ct. at 2601. The Supreme Court held that it could not,
because “Vickie’s counterclaim cannot be deemed a matter of
‘public right’ that can be decided outside the Judicial
Branch.” Id. at 2611. In the course of a lengthy exegesis of its
own public-rights precedents, the Court explained that the
state-law counterclaim at issue was indistinguishable from the
fraudulent conveyance claim in Granfinanciera: “Vickie’s
counterclaim—like the fraudulent conveyance claim at issue
in Granfinanciera—does not fall within any of the varied
formulations of the public rights exception in this Court’s
cases.” Id. at 2614. This common character of the claims in
Granfinanciera and Stern means that neither can be
consigned to the bankruptcy courts without doing violence to
the constitutional separation of powers:
What is plain here is that this case involves the most
prototypical exercise of judicial power: the entry of a
final, binding judgment by a court with broad
substantive jurisdiction, on a common law cause of
action, when the action neither derives from nor
depends upon any agency regulatory regime. If such
IN RE : BELLINGHAM INS. AGENCY , INC. 19
an exercise of judicial power may nonetheless be
taken from the Article III Judiciary simply by
deeming it part of some amorphous “public right,”
then Article III would be transformed from the
guardian of individual liberty and separation of
powers we have long recognized into mere wishful
thinking.
Id. at 2615. Here, the Trustee’s fraudulent conveyance claims
are not matters of “public right,” and, ipso facto, cannot be
decided outside the Article III courts.7
Our conclusion is buttressed by the Supreme Court’s
equation of litigants’ Article III rights with their Seventh
Amendment jury trial rights in bankruptcy-related cases.
Granfinanciera itself drew the comparison explicitly:
Indeed, our decisions point to the conclusion that, if
a statutory cause of action is legal in nature, the
question whether the Seventh Amendment permits
Congress to assign its adjudication to a tribunal that
does not employ juries as factfinders requires the
7
Our analysis is unaffected by the Sixth Circuit’s recent decision in
Onkyo Europe Electronics GMBH v. Global Technovations Inc. (In re
Global Technovations Inc.), 694 F.3d 705, 722 (6th Cir. 2012). There, the
Sixth Circuit concluded that it was “crystal clear that the bankruptcy court
had constitutional jurisdiction under Stern to adjudicate whether the sale
of GTI was a fraudulent transfer.” Id. But it was “crystal clear” because
“it was not possible . . . to rule on [the creditor’s] proof of claim without
first resolving the fraudulent-transfer issue.” Id. (quoting Stern, 131 S. Ct.
at 2616). That rendered In re Global “fundamentally unlike” both
Granfinanciera and our case, “where the bankruptcy estate reached out to
file a fraudulent-transfer claim against a party who had filed no claim
against the estate.” Id.20 IN RE : BELLINGHAM INS. AGENCY , INC.
same answer as the question whether Article III
allows Congress to assign adjudication of that cause
of action to a non-Article III tribunal. For if a
statutory cause of action, such as respondent’s right to
recover a fraudulent conveyance under 11 U.S.C.
§ 548(a)(2), is not a “public right” for Article III
purposes, then Congress may not assign its
adjudication to a specialized non-Article III court
lacking “the essential attributes of the judicial
power.”
492 U.S. at 53. And the Court in Stern characterized cases
involving Seventh Amendment jury trial rights as binding
authority on the Article III issue. Stern described
Granfinanciera—a case about Seventh Amendment
rights—as deciding that “Congress could not constitutionally
assign resolution of the fraudulent conveyance action to a
non-Article III court.” 131 S. Ct. at 2614 n.7.
The Stern Court again transmuted a Seventh Amendment
case into an Article III precedent in its analysis of
Langenkamp v. Culp, 498 U.S. 42 (1990). Langenkamp itself
stated that the case “present[ed] the question whether
creditors who submit a claim against a bankruptcy estate and
are then sued by the trustee in bankruptcy to recover allegedly
preferential monetary transfers are entitled to jury trial under
the Seventh Amendment.” Id. at 42–43. On the Stern Court’s
reading, however, Langenkamp also decided whether such a
claim could be heard in bankruptcy at all: “We explained [in
Langenkamp] that a preferential transfer claim can be heard
in bankruptcy when the allegedly favored creditor has filed a
claim . . . . If, in contrast, the creditor has not filed a proof of
claim, the trustee’s preference action does not ‘become[ ] part
of the claims-allowance process’ subject to resolution by the
IN RE : BELLINGHAM INS. AGENCY , INC. 21
bankruptcy court.” 131 S. Ct. at 2617 (alteration in original)
(emphasis added) (quoting Langenkamp, 498 U.S. at 45).
Stern fully equated bankruptcy litigants’ Seventh
Amendment right to a jury trial in federal bankruptcy
proceedings with their right to proceed before an Article III
judge. Hence, Granfinanciera’s statement that “[u]nless a
legal cause of action involves ‘public rights,’ Congress may
not deprive parties litigating over such a right of the Seventh
Amendment’s guarantee to a jury trial” is powerful evidence
that Congress also may not deprive such parties of their right
to an Article III tribunal. 492 U.S. at 53.
Several amici object that the claim at issue in Stern was
a state-law claim, and that the Trustee’s § 548 fraudulent
conveyance claim is indistinguishable from the preferential
transfer claim at issue in Katchen v. Landy, 382 U.S. 323(1966). Katchen held that bankruptcy referees acting under
the Bankruptcy Acts of 1898 and 1938 could exercise
summary jurisdiction over a voidable preference claim
brought by a bankruptcy trustee against a creditor who filed
proof of claim in the bankruptcy proceeding. Id. at 329–30,
332–33. The Stern Court did distinguish Katchen on the
grounds that “the trustee bringing the preference action was
asserting a right of recovery created by federal bankruptcy
law.” 131 S. Ct. at 2618 (“Vickie’s claim, in contrast, is in no
way derived from or dependent upon bankruptcy law; it is a
state tort action that exists without regard to any bankruptcy
proceeding.”). And Granfinanciera noted that actions to
recover preferences are “indistinguishable . . . in all relevant
respects” from actions to recover fraudulent conveyances.
492 U.S. at 48–49. There is an argument, then, that
bankruptcy courts can render final judgment on a fraudulent
22 IN RE : BELLINGHAM INS. AGENCY , INC.
conveyance claim whose source of law is the Bankruptcy
Code.
That is wrong for two reasons. First, the dispositive
distinction between the claims in Stern and Katchen was that
in Katchen, the trustee’s preference action “would necessarily
be resolved in the claims allowance process” because the
defendant had filed a proof of claim against the bankruptcy
estate. Stern, 131 S. Ct. at 2618. The preference action
necessarily had to be resolved in the course of deciding
whether to allow the defendant’s claim on the estate. By
contrast, Vickie Marshall’s counterclaim in Stern required the
bankruptcy court to “make several factual and legal
determinations that were not disposed of in passing on
objections to Pierce’s proof of claim for defamation.” Id. at
2617 (internal quotation marks omitted). “There thus was
never reason to believe that the process of ruling on Pierce’s
proof of claim would necessarily result in the resolution of
Vickie’s counterclaim.” Id. at 2617–18.
Second, a rule that classified any federal-law claim as a
“public right” would render Stern internally contradictory.
Assume that the Stern Court’s observation that “Vickie’s
claim . . . is in no way derived from or dependent upon
bankruptcy law” was the sole basis by which the Court
distinguished the counterclaim in that case from the
preference action in Katchen. If that were so, the Stern
C o urt’s characterization of the holdin g i n
Granfinanciera—that “Congress could not constitutionally
assign resolution of the fraudulent conveyance action to a
non-Article III court,” 131 S. Ct. at 2614 n.7—would be
incoherent, because the claim in Granfinanciera arose under
§ 548 of the Bankruptcy Code. See 492 U.S. at 36.
IN RE : BELLINGHAM INS. AGENCY , INC. 23
Granfinanciera involved a federal-law claim, and Stern
involved a state-law claim. But Stern held that both claims
required an Article III court. Thus, the only principled basis
on which to distinguish Katchen from both Stern and
Granfinanciera is that Katchen involved a claim against a
creditor that necessarily had to be resolved in the course of
the claims-allowance process, and Stern and Granfinanciera
did not.
In this case, EBIA is a noncreditor to the BIA bankruptcy
estate. Hence, it is not subject to the bankruptcy court’s
equitable jurisdiction; the trustee can recover monies
fraudulently conveyed to it only by initiating a legal action.
Cf. Langenkamp, 498 U.S. at 45 (“If a party does not submit
a claim against the bankruptcy estate, however, the trustee
can recover allegedly preferential transfers only by filing
what amounts to a legal action to recover a monetary
transfer.”). That legal action need not necessarily have been
resolved in the course of allowing or disallowing the claims
against the BIA estate. For that reason, the claim belonged in
an Article III court. See Stern, 131 S. Ct. at 2618 (“Congress
may not bypass Article III simply because a proceeding may
have some bearing on a bankruptcy case; the question is
whether the action at issue stems from the bankruptcy itself
or would necessarily be resolved in the claims allowance
process.”). That the Trustee asserted a federal-law fraudulent
conveyance claim against EBIA is of no moment to our
conclusion that the claim is nonadjudicable by a bankruptcy
judge.
***
Taken together, Granfinanciera and Stern settle the
question of whether bankruptcy courts have the general
24 IN RE : BELLINGHAM INS. AGENCY , INC.
authority to enter final judgments on fraudulent conveyance
claims asserted against noncreditors to the bankruptcy estate.
They do not. We now turn to a subsidiary question: whether
bankruptcy judges may constitutionally hear such claims, and
prepare recommendations for de novo review by the federal
district courts.
III
Federal law authorizes bankruptcy judges to “hear and
determine all cases under title 11 and all core proceedings
arising under title 11, or arising in a case under title 11.”
28 U.S.C. § 157(b)(1). Bankruptcy judges have the narrower
power to “hear” a proceeding that is “not a core proceeding
but that is otherwise related to a case under title 11,” and to
“submit proposed findings of fact and conclusions of law to
the district court” for the entry of final judgment. Id.§ 157(c)(1).
Our conclusion today creates a gap in this framework:
Federal law classifies fraudulent conveyance proceedings as
“core” proceedings, 28 U.S.C. § 157(b)(2)(H), but the
Constitution prohibits bankruptcy judges from entering a final
judgment in such core proceedings. Nowhere does the statute
explicitly authorize bankruptcy judges to submit proposed
findings of fact and conclusions of law in a core proceeding;
§ 157(c)(1) is expressly limited to “non-core” proceedings. Is
the power “to hear and determine” capacious enough to
include the power to submit proposed findings in a core
proceeding? Or are bankruptcy courts impotent to address
fraudulent conveyance proceedings, because they fall in the
interstices of § 157?
IN RE : BELLINGHAM INS. AGENCY , INC. 25
We have noted that Congress enumerated the examples of
core proceedings in § 157(b)(2) with “a view toward
expanding the bankruptcy court’s jurisdiction to its
constitutional limit.” Mankin, 823 F.2d at 1301; see also
Celotex Corp. v. Edwards, 514 U.S. 300, 308 (1995). With
respect to any bankruptcy-related claim, then, the bankruptcy
courts must be vested with as much adjudicatory power as the
Constitution will bear. In light of this statutory objective, the
power to “hear and determine” a proceeding surely
encompasses the power to hear the proceeding and submit
proposed findings of fact and conclusions of law to the
district court. Section 157(b)(1) empowers bankruptcy courts
to “hear and determine” fraudulent conveyance claims in a
manner consistent with the strictures of Article III—and that
includes the more modest power to submit findings of fact
and recommendations of law to the district courts.
In sum, § 157(b)(1) provides bankruptcy courts the power
to hear fraudulent conveyance cases and to submit reports and
recommendations to the district courts. Such cases remain in
the core, and the § 157(b)(1) power to “hear and determine”
them authorizes the bankruptcy courts to issue proposed
findings of fact and conclusions of law. Only the power to
enter final judgment is abrogated.8
8
In dicta, the Seventh Circuit has implied that bankruptcy courts cannot
propose findings of fact and conclusions of law in any proceeding
classified as core by § 157. See Ortiz v. Aurora Health Care, Inc. (In re
Ortiz), 665 F.3d 906, 915 (7th Cir. 2011). W e do not find the Ortiz court’s
analysis of the issue thoroughly reasoned. See also Waldman v. Stone,
___ F.3d ___, 2012 W L 5275241, at *8 (6th Cir. Oct. 26, 2012)
(observing in dicta that Ҥ 157(b)(1) authorizes the bankruptcy court to
‘enter appropriate orders and judgments,’ not to propose them,” but
acknowledging that “one might argue that . . . Congress’s grant of the
greater power to enter final judgments implies a lesser authority to
26 IN RE : BELLINGHAM INS. AGENCY , INC.
Our conclusion is consistent with the Stern Court’s tacit
approval of bankruptcy courts’ continuing to hear and make
recommendations about statutory core proceedings in which
entry of final judgment by a non-Article III judge would be
unconstitutional. The district court that heard Stern before it
reached the Supreme Court took the view that the bankruptcy
court had lacked the constitutional authority to enter final
judgment on Vickie Marshall’s counterclaim. See Stern,
131 S. Ct. at 2602. For that reason, the district court treated
the bankruptcy court’s judgment as “proposed[,] rather than
final,” and reviewed the judgment de novo. Id. (alteration in
original). Nowhere did the Stern Court object to the district
court’s judgment. Instead, the Court noted that Pierce
Marshall “ha[d] not argued that the bankruptcy courts are
barred from hearing all counterclaims or proposing findings
of fact and conclusions of law on those matters.” Id. at 2620(internal quotation marks omitted). Immediately thereafter,
the Court explained, “We do not think the removal of
counterclaims such as Vickie’s from core bankruptcy
jurisdiction meaningfully changes the division of labor in the
current statute; we agree . . . that the question presented here
is a ‘narrow’ one.” Id. Stripping the bankruptcy courts of the
power to entertain state-law counterclaims in any capacity
would have roiled the prevailing bankruptcy schema. The
Court was surely suggesting that bankruptcy courts were not
“barred from hearing all counterclaims or proposing findings
of facts and conclusions of law on those matters.” Id. (internal
quotation marks omitted); see also Heller Ehrman LLP v.
Arnold & Porter, LLP (In re Heller Ehrman), 464 B.R. 348,
355–56 (N.D. Cal. 2011) (noting the near-universal
approbation by district courts and bankruptcy courts of the
view that Stern permits bankruptcy courts to submit reports
propose them.”).
IN RE : BELLINGHAM INS. AGENCY , INC. 27
and recommendations in bankruptcy-related proceedings even
when the entry of final judgment is unconstitutional).
For these reasons, we conclude that bankruptcy courts
have statutory authority to hear and enter proposed findings
of fact and conclusions of law in a fraudulent conveyance
proceeding asserted by a bankruptcy trustee against a
noncreditor, subject to de novo review by a federal district
court.
IV
Several amici contend that even if defendants in
fraudulent conveyance suits have a right to a hearing in an
Article III court, that right is waivable. We agree, and hold
that EBIA waived its right to an Article III hearing.
The waivable nature of the allocation of adjudicative
authority between bankruptcy courts and Article III courts is
well established. Prior to the Bankruptcy Act of 1978, federal
law distinguished between “summary” matters, which
involved property in the actual or constructive possession of
the court, and “plenary” matters, which did not. See Northern
Pipeline, 458 U.S. at 53. Bankruptcy referees were vested
with jurisdiction over summary matters, but plenary suits
could only be tried by an Article III judge. But the right to an
Article III judge in plenary proceedings could be waived by
the litigants. See MacDonald v. Plymouth County Trust Co.,
286 U.S. 263, 267 (1932).
Following the genesis of the modern bankruptcy system,
the Supreme Court clarified that “Article III, § 1’s guarantee
of an independent and impartial adjudication by the federal
judiciary of matters within the judicial power of the United
28 IN RE : BELLINGHAM INS. AGENCY , INC.
States . . . serves to protect primarily personal, rather than
structural, interests.” Schor, 478 U.S. at 848.9 Stern further
made clear that § 157 “does not implicate questions of subject
matter jurisdiction.” 131 S. Ct. at 2607. Accordingly, “as a
personal right, Article III’s guarantee of an impartial and
independent federal adjudication is subject to waiver.”10
Schor, 478 U.S. at 848; see also Daniels-Head & Assocs. v.
William M. Mercer, Inc. (In re Daniels-Head & Assocs.),
819 F.2d 914, 918 (9th Cir. 1987). And in fact, § 157(c)(2)
expressly provides that bankruptcy courts may enter final
judgments in non-core proceedings “with the consent of all
the parties to the proceeding.” 28 U.S.C. § 157(c)(2).
9
Schor did hold that “notions of consent and waiver cannot be
dispositive” of Article III problems when “the encroachment or
aggrandizement of one branch at the expense of the other” is at stake,
because in such cases structural principles are implicated in addition to
private rights entitlements. 478 U.S. at 850–51, 860 (internal quotation
marks omitted). In fact, that was the case in Schor, because the case
involved whether an Executive Branch administrative agency could
adjudicate a state-law counterclaim. Id. at 852. But the allocation of
authority between bankruptcy courts and district courts does not implicate
structural interests, because bankruptcy judges are “officer[s] of” the
district court and are appointed by the Courts of Appeals. See 28 U.S.C.
§ 151, 152(a)(1).
10
The same principle permits federal magistrate judges, acting with the
consent of the litigants, to enter final judgments in proceedings that would
otherwise be the exclusive province of Article III courts. See 28 U.S.C.
§ 636(c)(1); Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix,
Inc., 725 F.2d 537, 547 (9th Cir. 1984) (en banc) (“W e hold that
consensual reference of a civil case to a magistrate is constitutional . . . .”).
And consent to a magistrate judge’s case-dispositive authority may be
implied from a litigant’s actions. See Roell v. Winthrow, 538 U.S. 580,
586–87 (2003).
IN RE : BELLINGHAM INS. AGENCY , INC. 29
If consent permits a non-Article III judge to decide finally
a non-core proceeding, then it surely permits the same judge
to decide a core proceeding in which he would, absent
consent, be disentitled to enter final judgment. The only
question, then, is whether EBIA did in fact consent to the
bankruptcy court’s jurisdiction.
We have previously held that a bankruptcy litigant
impliedly consents to the bankruptcy court’s jurisdiction
when he fails to timely object. In In re Daniels-Head,
819 F.2d at 919, we held “that appellant’s failure to object to
the bankruptcy court’s jurisdiction constitutes consent to that
jurisdiction.” Similarly, in Mann v. Alexander Dawson Inc.
(In re Mann), 907 F.2d 923, 926 (9th Cir. 1990), we held that
a debtor’s decision to file an adversary proceeding in
bankruptcy court, and his failure to object to the court’s
jurisdiction prior to the time it rendered judgment against
him, meant that “he consented to the court’s jurisdiction.” Id.This case, of course, is somewhat different, because the
Trustee, not EBIA, initiated the adversary proceeding. But
EBIA’s conduct bore considerable indicia of consent. EBIA
initially demanded a jury trial, invoking its rights under
Granfinanciera, which the district court treated as a motion
to withdraw the reference. See Defs.’ Answer at 14, In re
Bellingham Ins. Agency, No. 06-11721 (Bankr. W.D. Wash.
Aug. 2, 2008), ECF No. 169; Mot. to Withdraw the
Reference, Arkison v. Exec. Benefits Ins., No. 10-cv-00171
(W.D. Wash. Jan. 28, 2010), ECF No. 1. But EBIA elected
not to pursue a hearing in an Article III court. Instead, EBIA
petitioned the district court to stay its consideration of the
motion to withdraw the reference to give the bankruptcy court
time to adjudicate the Trustee’s motion for summary
judgment. See Order, Arkison v. Exec. Benefits Ins., No. 10-
30 IN RE : BELLINGHAM INS. AGENCY , INC.
cv-00171 (W.D. Wash. Mar. 26, 2010), ECF No. 5. In other
words, EBIA did not simply fail to object to the bankruptcy
judge’s authority to enter final judgment in the fraudulent
conveyance action; it affirmatively assented to suspend its
demand for a jury trial in district court to give the bankruptcy
judge an opportunity to adjudicate the claim.
A month later, the bankruptcy court entered summary
judgment in Arkison’s favor. EBIA abandoned its motion to
withdraw the reference, and the district court dismissed the
action. See Order, Arkison v. Exec. Benefits Ins., No. 10-cv-
00171 (W.D. Wash. July 2, 2010), ECF No. 8. EBIA then
separately appealed the bankruptcy court’s judgment in the
district court for the Western District of Washington. EBIA
did not argue at any point during that appeal that the
bankruptcy court lacked authority to issue a final judgment in
the fraudulent conveyance action. In fact, EBIA did not raise
a constitutional objection to the bankruptcy court’s entry of
final judgment in favor of the Trustee until after the briefing
in this appeal was complete, when it filed a motion to vacate
the bankruptcy court’s judgment on the eve of oral argument.
Because EBIA waited so long to object, and in light of its
litigation tactics, we have little difficulty concluding that
EBIA impliedly consented to the bankruptcy court’s
jurisdiction. See United States v. Olano, 507 U.S. 725, 731
(1993) (“‘No procedural principle is more familiar to this
Court than that a constitutional right,’ or a right of any other
sort, ‘may be forfeited . . . by the failure to make timely
assertion of the right before a tribunal having jurisdiction to
determine it.’” (quoting Yakus v. United States, 321 U.S. 414,
444 (1944))). Cf. In re Ortiz, 665 F.3d at 909–10, 915
(refusing to find implied consent to a bankruptcy judge’s
authority where the debtors moved for the bankruptcy judge
IN RE : BELLINGHAM INS. AGENCY , INC. 31
to abstain from jurisdiction and petitioned the district court to
withdraw the reference from the bankruptcy judge).
There are two potential objections to our conclusion that
EBIA impliedly consented to the bankruptcy judge’s
authority. The first is that Federal Rules of Bankruptcy
Procedure 7008 and 7012, which implement the statutory
core/non-core dichotomy, preclude a finding of implied
consent. These rules provide that an adversary proceeding
complaint “shall contain a statement that the proceeding is
core or non-core and, if non-core, that the pleader does or
does not consent to entry of final orders or judgment by the
bankruptcy judge”; a similar requirement applies to
responsive pleadings. See Fed. R. Bankr. P. 7008(a), 7012(b).
A 1987 advisory committee note to Rule 7008 provides that
“only express consent in the pleadings or otherwise is
effective to authorize entry of a final order or judgment by the
bankruptcy judge in a non-core proceeding.”
We have subsequently held, however, that a litigant’s
actions may suffice to establish consent. See In re Mann,
907 F.2d at 926; accord In re Tex. Gen. Petroleum Corp.,
52 F.3d at 1337; Abramowitz v. Palmer, 999 F.2d 1274, 1280
(8th Cir. 1993); Canal Corp. v. Finnman (In re Johnson),
960 F.2d 396, 403 (4th Cir. 1992).
Indeed, Roell—decided in 2003—precludes any objection
on the basis of the bankruptcy rules. 538 U.S. at 586. At the
time Roell was decided, Federal Rule of Civil Procedure
73(b) specified that if parties consented to a magistrate
judge’s dispositive power over their case, their consent was
required to “be memorialized in ‘a joint form of consent or
separate forms of consent setting forth such election.’”
538 U.S. at 586 (quoting Fed. R. Civ. P. 73(b) (2003)). The
32 IN RE : BELLINGHAM INS. AGENCY , INC.
Federal Magistrate Act, however, stated only that “[u]pon the
consent of the parties, a full-time United States magistrate
judge . . . may conduct any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the
case, when specially designated to exercise such jurisdiction
by the district court.” 28 U.S.C. § 636(c)(1). Noting that
“§ 636(c)(1)[] speaks only of ‘the consent of the parties,’
without qualification as to form,” the Court held that implied
consent could satisfy the statute, notwithstanding the specific
procedure described in Rule 73(b). Roell, 538 U.S. at 586.
Like the provision of the Federal Magistrate Act at issue
in Roell, the text of § 157(c) only requires consent
simpliciter. See 28 U.S.C. § 157(c)(2) (requiring “the consent
of all the parties to the proceeding”). By contrast, § 157(e)
permits bankruptcy judges to conduct jury trials “with the
express consent of all the parties” (emphasis added). The
adjectival distinction suggests that Congress intended to
allow parties to consent by their actions to the authority of
bankruptcy courts to enter dispositive orders on any
bankruptcy-related claim. Accordingly, in cases like this
one—in which the defendant was aware of its right to seek
withdrawal of the reference but opted instead to litigate
before the bankruptcy court—consent is established.
The second potential objection is that Stern was not
decided until EBIA’s appeal was pending before this court.
True, but EBIA had ample reason to be alert to the possible
jurisdictional problem. We published Marshall v. Stern,
600 F.3d 1037 (9th Cir. 2010), on March 19, 2010, before
EBIA asked the district court to stay its motion to withdraw
the reference. That predicate opinion featured a lengthy
perscrutation of the Article III question. Although we reached
a different set of conclusions than the Supreme Court
IN RE : BELLINGHAM INS. AGENCY , INC. 33
ultimately did, the opinion should have been sufficient to
alert EBIA to the possible jurisdictional problem. The same
is true of Granfinanciera, which thoroughly foreshadowed
the result in Stern. And we know that EBIA’s counsel was
aware of Granfinanciera, because the company
asserted—and then abandoned—the very Seventh
Amendment right that case established.
Further, the Stern Court applied the doctrine of litigant
consent even when little authority existed to notify the litigant
that a constitutional objection was there for the making. In
Stern, Pierce Marshall propounded the novel argument that
the bankruptcy court lacked jurisdiction to enter final
judgment on his defamation claim because § 157(b)(5)
granted to district courts exclusive jurisdiction over “personal
injury tort” claims. 131 S. Ct. at 2606. The Court held that
Pierce consented to the bankruptcy court’s jurisdiction over
the claim when he failed to timely object. Id. at 2608. By
contrast, Pierce voiced his objection to the bankruptcy court’s
jurisdiction over Vickie’s counterclaim from the outset of the
litigation. See id. at 2601.
Although EBIA may not be as sophisticated or creative as
Pierce, it fully litigated the fraudulent conveyance action
before the bankruptcy court and the district court, without so
much as a peep about Article III—even going so far as to
abandon its motion to withdraw the reference. “[T]he
consequences of a litigant sandbagging the court—remaining
silent about his objection and belatedly raising the error only
if the case does not conclude in his favor—can be . . .
severe.” Id. at 2609 (internal quotation marks, alterations, and
citations omitted). Having lost before the bankruptcy court,
EBIA cannot assert a right it never thought to pursue when it
still believed it might win. Id.34 IN RE : BELLINGHAM INS. AGENCY , INC.
V
Because we conclude that EBIA consented to the
bankruptcy court’s jurisdiction, we proceed to the merits of
that judgment.
A
The district court affirmed the bankruptcy court’s grant of
summary judgment on the claim that the transfer of BIA’s
assets to EBIA constituted a fraudulent transfer. See
11 U.S.C. § 548. Section 548 empowers the trustee to avoid
a transfer of the debtor’s property, or any obligation incurred
by the debtor, that was fraudulently made or incurred within
two years of the bankruptcy petition. A trustee may exercise
the avoidance power when the transfer was actually intended
to hinder, delay, or defraud a creditor. Id. § 548(a)(1)(A).
Even in the absence of actual fraudulent intent, the trustee can
avoid a “constructively” fraudulent transfer: one that was
made in exchange for less than “reasonably equivalent value”
at a time when the debtor was insolvent. Id. § 548(a)(1)(B).
The district court held that the trustee satisfied all
elements of a constructively fraudulent transfer, because BIA
transferred to EBIA all of its assets when EBIA began
operating in February 2006, including its phone number, book
of business, and especially its stream of insurance
commissions. BIA received nothing in return.
EBIA’s only defense is that it received no items of value
from BIA prior to the filing of the bankruptcy petition. EBIA
argues first that any commission streams that changed hands
were transferred to the related entity ARIS, not to EBIA, and
IN RE : BELLINGHAM INS. AGENCY , INC. 35
second that everything else that was transferred was either a
liability or an asset with negligible value.11
EBIA’s assertions are belied by the record. EBIA is
correct that the Trustee’s expert accountant, Michael
Quackenbush, testified that $373,291.28 was deposited into
an account held jointly by ARIS and EBIA. But, as the
district court correctly noted, those commissions were
credited to EBIA via intercompany transfers in the accounting
software. The evidence that this money was transferred from
BIA to EBIA is overwhelming. BIA executed a written
assignment of its commissions from a major client to an
employee, Peter Pearce, who immediately became an EBIA
employee upon BIA’s dissolution. Pearce deposited
$123,133.58 into the ARIS/EBIA account. And EBIA itself
deposited more than $250,000 in additional commissions that
obviously belonged to BIA.
EBIA is entitled to any reasonable inference that would
suggest an explanation of the provenance of these sums other
than the one the Trustee proposes. See Bodett v. CoxCom,
Inc., 366 F.3d 736, 742 (9th Cir. 2004). But EBIA makes no
serious attempt to offer a nonfraudulent explanation. EBIA’s
only rebuttal evidence is the declaration of erstwhile BIA
CEO Nicholas Paleveda, who claims that the commissions
Pearce deposited into the account belonged to Pearce
personally. In his declaration, he also asserts that the
remaining quarter-million dollars of commissions credited to
EBIA between January 1 and June 1 came from new business
11
EBIA’s piteous examples of such assets include “unemployed
actuaries” and “a lease arrangement . . . for an office that no clients
visited.” Appellant’s Opening Br. 9.
36 IN RE : BELLINGHAM INS. AGENCY , INC.
that the company drummed up without relying on BIA’s old
business relationships.
Both claims are incredible. Property of the estate includes
intangible assets, such as corporate goodwill and a “book of
business.” See Stoumbos v. Kilimnik, 988 F.2d 949, 963–64
(9th Cir. 1993). The transfer of an ongoing business concern
can constitute a fraudulent transfer. See, e.g., id. The Trustee
produced to the bankruptcy court the document assigning the
commissions from BIA’s client American National to Pearce,
and various witnesses testified that Pearce’s role at BIA was
to act as a conduit for commissions between the company and
its clients. Further, Paleveda stated that EBIA did not earn
any revenue until May 2006. Paleveda thus suggests that in
a matter of weeks—from May to June 1—EBIA earned
hundreds of thousands of dollars of new commissions that
were unrelated to BIA’s old business.
Put simply, there is no genuine dispute of material fact
that these transfers were constructively fraudulent and
recoverable by the Trustee under § 548. See Stoumbos,
988 F.2d at 953.
The bankruptcy court also granted summary judgment on
the Trustee’s claim that EBIA violated Washington’s
Uniform Fraudulent Transfer Act, Wash. Rev. Code
§§ 19.40.011–19.40.904. The definition of a constructively
fraudulent transfer under the Washington Uniform Fraudulent
Transfer Act is essentially identical to the definition of a
constructively fraudulent transfer under § 548 of the
Bankruptcy Code. It is any transfer that is made “[w]ithout
receiving a reasonably equivalent value in exchange for the
transfer or obligation” while the debtor:
IN RE : BELLINGHAM INS. AGENCY , INC. 37
(i) Was engaged or was about to engage in a business
or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the
business or transaction; or
(ii) Intended to incur, or believed or reasonably
should have believed that he or she would incur, debts
beyond his or her ability to pay as they became due.
Id. § 19.40.041(a)(2).
EBIA does not argue in its briefs that we ought to
distinguish between the state- and federal-law causes of
action. We therefore conclude that the district court properly
affirmed the bankruptcy court’s grant of summary judgment
on the Trustee’s state-law constructive fraudulent transfer
claim.
The district court also concluded that the Trustee adduced
sufficient evidence to demonstrate actual fraudulent intent by
BIA. Our conclusion that the transfers to EBIA were
constructively fraudulent under Washington law is a
sufficient basis on which to affirm the judgment. See
Thompson v. Hanson, 219 P.3d 659, 664 (Wash. 2009).
Hence, we need not reach the question of whether the
transfers were actually fraudulent.
B
In addition to addressing the Trustee’s fraudulent
conveyance claims, the bankruptcy court granted summary
judgment on the Trustee’s claim that EBIA was a successor
corporation of BIA, and therefore liable for the latter’s debts.
We agree that EBIA is BIA’s successor.
38 IN RE : BELLINGHAM INS. AGENCY , INC.
The rule in Washington is that “a corporation purchasing
the assets of another corporation does not become liable for
the debts and liabilities of the selling corporation.”
Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc.,
209 P.3d 863, 868 (Wash. 2009). An exception is made,
however, when “the purchaser is a mere continuation of the
seller.” Id. (internal quotation marks omitted). Several factors
dictate whether a business is a “mere continuation” of its
predecessor, including “a common identity between the
officers, directors, and stockholders of the selling and
purchasing companies, and the sufficiency of the
consideration running to the seller corporation in light of the
assets being sold.” Id. The nub of the inquiry is whether “the
purchaser represents merely a ‘new hat’ for the seller.”
Cashar v. Redford, 624 P.2d 194, 196 (Wash. Ct. App. 1981)
(internal quotation marks omitted).
EBIA marshals a variety of facts in an attempt to prove
that the two companies are authentically distinct entities. For
instance, EBIA notes that none of BIA’s seven shareholders
became EBIA shareholders. EBIA also adopted a radically
different business image, including a “completely different
name” and a new logo and website. Finally, EBIA remarks
that its business model represents a sea change from BIA’s,
because BIA focused exclusively on 412(i) retirement plans,
while EBIA traffics in a broader range of defined-benefit
retirement plans.
EBIA is indulging in what Freud called the narcissism of
minor differences.12 EBIA’s statement that there were no
common shareholders between the two entities is technically
true but deeply misleading. Paleveda was the sole owner of
12
S IGM U N D F REU D , O N S EXU ALITY 272 (Penguin ed. 1991).
IN RE : BELLINGHAM INS. AGENCY , INC. 39
EBIA and the CEO of BIA prior to EBIA’s incorporation; his
wife, Marjorie Ewing, owned eighty percent of BIA. Because
a “common identity of the officers, directors, and
stockholders” is the “crucial factor” in the “mere
continuation” judgment, Cashar, 624 P.2d at 196, the fact
that the same married couple owned and operated both BIA
and EBIA is virtually dispositive. In any case, a variety of
other factors militate in favor of a finding of successor
liability. The core employees remained the same, there was
no consideration paid for BIA’s transfer of assets, and the
essential business—marketing and selling defined-benefit
plans funded by insurance policies—remained the same. Cf.
Cambridge Townhomes, 209 P.3d at 869.
Weighed against these fundamental commonalities, minor
divergences like the company names, logos, and websites are
immaterial. The evidence shows that EBIA was nothing more
than a “new hat” for Paleveda and Ewing. The bankruptcy
court correctly granted summary judgment to the Trustee on
the issue of successor liability.
VI
Fraudulent conveyance claims are “quintessentially
suits at common law” designed to “augment the bankruptcy
estate.” Granfinanciera, 492 U.S. at 56. Thus, Article III
bars bankruptcy courts from entering final judgments in
such actions brought by a noncreditor absent the parties’
consent. But here EBIA consented to the bankruptcy
court’s jurisdiction, rendering that court’s entry of
summary judgment in favor of the Trustee constitutionally
sound. That judgment was also correct.
AFFIRMED.