Receivers, Ponzi schemes, and evil zombies.

The Court released a revised opinion in Janvey v. Democratic Senatorial Campaign Committee, No. 11-10704 (originally issued October 23, 2012; revised March 18, 2013).  The expanded opinion withdraws the earlier holding that a federal equity receiver has standing to assert creditors’ fraudulent transfer claims arising from a Ponzi scheme.  The Court now holds that the receiver only has standing to assert the claims of the entities in receivership, but those entities are not considered to be “in pari delicto” with the operator of the scheme: “The appointment of the receiver removed the wrongdoer from the scene.  The corporations were no more [the perpetrator’s] evil zombies.”  Id. at 6 (quoting Eberhard v. Marcu, 530 F.3d 122, 132 (2d Cir. 2008), and citing Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995) (Posner, C.J.)).

Bank liable for conversion of check, no “in pari delicto” defense

In Jones v. Wells Fargo Bank, the Court affirmed liability for conversion when a bank “reaccepted [a check] into an account other than that of the named payee, without the proper endorsement.”  No. 11-10320 (Jan. 9, 2012).   The opinion provides detailed discussion of basic topics in the law of checks: who has the rights of a “holder” under UCC Article 3 (op. at 4-6), proper safeguards for check endorsements (op. at 8-10), and accountholder responsibilities for review of a bank statement.  (Op. at 11-13)  The opinion concludes with review of the “in pari delicto” defense, a significant issue in some corporate governance cases, and notes how the defense can apply differently to receivers as compared to bankruptcy trustees.  (Op. at 13-18)