Gregory F. Van Tatenhove, United States District Judge.
This action has been brought to recover monies allegedly received from the operation of "an unlawful multilevel marketing `pyramid' scheme which collectively generated gross revenues of approximately $252 million from January 1, 2009 through December 31, 2012." [R. 13 at ¶ 37.] Plaintiff (hereinafter, "Receiver") has been appointed Receiver for Fortune Hi-Tech Marketing, Inc., FHTM, Inc., Alan Clark Holdings, LLC, FHTM Canada, Inc. and Fortune Network Marketing (UK) Limited, and their affiliates, subsidiaries, divisions, or sales or customer service operations (individually and collectively referred to as the "Receivership Entities").
In its amended complaint, the Receiver explains in great detail how the pyramid scheme worked. Broadly speaking, the:
[R. 13 at ¶ 38.] In compensation for recruiting new members, representatives would receive Customer Acquisition Bonuses (CAB) and in compensation for the sale of products and services, representatives received Customer Generated Usage (CGU) commission payments. [Id. at ¶ 39-40.] According to the Receiver, the business was structured so as to incentivize the "recruitment of new representatives rather than the actual selling of products and services." [Id. at ¶ 41.] What resulted was a two-tiered system where "the vast majority of active IRs did not obtain payments sufficient to cover their enrollment fees and earned commissions totaling $1,000 or less." [Id. at ¶ 45.] During one four-year time period, "more than 88% of the IRs active during that time period did not obtain payments sufficient to recover their enrollment fees, and 98% of the active IRs during that time frame earned commissions totaling $1,000 or less." [Id.] These IRs receiving less than $1,000 during their association have suffered losses in excess of $169 million and are referred to as "injured consumers" herein. [Id. at ¶ 52.] In contrast to the injured consumers' meager returns, a small number of IRs fared much better, with "approximately 50 of the highest paid representatives generated commissions and bonuses totaling more than $46 million." [Id. at ¶ 47.] These IRs are referred to as "Highly Compensated IRs," and it is the Receiver's contention that they "fueled the Pyramid Scheme operated
In this action, the Receiver charges the Defendants with acting as Highly Compensated IRs who:
[R. 13 at ¶ 56.] The Receiver sues for the recovery of monies transferred from the Receivership Entities to Defendants herein. The specific sum sought from each of the Defendants is specifically laid out in paragraph 58 of the Amended Complaint. [Id. at ¶ 58.]
Defendants challenge
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to seek dismissal of a complaint which fails to state a claim upon with relief can be granted. Fed.R.Civ.P. 12(b)(6). "The purpose of a Rule 12(b)(6) motion is to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Campbell v. Nationstar Mortgage, 611 Fed.Appx. 288, 291 (6th Cir.2015) (internal quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court "accept[s] all the Plaintiffs' factual allegations as true and construe[s] the complaint in the light most favorable to the Plaintiffs." Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir.2005). To properly state a claim, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
As is now well known, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as time, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In amassing sufficient factual matter, plaintiffs need not provide "detailed factual allegations,"
Once the Court has discarded the legal conclusions, the question becomes whether the actual remaining facts state a plausible claim for relief. Plaintiffs do not succeed in making a claim plausible by adorning their complaints with facts creating a "sheer possibility that a defendant has acted unlawfully" or facts that are "merely consistent with a defendant's liability." Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
Defendants argue that the Receiver has failed to adequately plead its claims in light of the pleading standards articulated in Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868, and Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929. They argue that the claims are largely "limited to legal conclusions" and also complain that the claims are based only on the Receiver's "information and belief." [R. 32-1 at 5.]
First, the suggestion that the complaint rests solely on legal conclusions is unfounded. As was articulated, supra I, the Receiver lays out the factual predicate supporting their claims in great detail. In arguing that the complaint only contains legal conclusions, the Defendants glance over nearly thirty paragraphs of factual content contained within the Receiver's complaint. [See R. 13 at ¶¶ 37-63.] Defendants also fail to recognize the Receiver incorporated by reference both the preliminary and permanent injunctions entered in the FTC action.
Second, Defendants suggest that any complaint which utilizes the words "information and belief" is inherently insufficient. [R. 32-1 at 5-6.] In support of this proposition they cite to 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502 (6th Cir.2013) and In re Darvocet, Darvon, & Propoxyphene Products Liab. Litig., 756 F.3d 917, 931 (6th Cir. 2014), two cases where the Sixth Circuit has looked unfavorably upon such pleading. In Flagstar Bank, the Plaintiff, who was of Iraqi origin, sued a lender alleging that he had been discriminated against on the basis of his national origin when the lender refused to refinance his loan. After noting that the allegations were rendered on "information and belief," the Court said the following:
Flagstar Bank, 727 F.3d at 506. In affirming the district court's dismissal, the Sixth Circuit found that the Plaintiff's claims were "merely consistent with liability," but not plausible — making dismissal appropriate. Id. at 505.
In Darvocet, the Sixth Circuit dismissed a "Failure-to-Update" claim at least in part because it was pled upon "information and belief." Id. at 931-392. In so doing, the Court depended in part on its earlier holding in Flagstar.
Darvocet, 756 F.3d at 931. The Court went on to further consider whether any exceptions to this principle saved the claim pled on information and belief, and ultimately concluded that "[e]ven putting aside the words `upon information and belief,' [that] the complaint still fail[ed]." Id.
The Receiver argues, first, that its use of the words "information and belief" are not fatal to its complaint. The Court agrees. While pleading on information and belief cannot necessarily insulate a
To the extent the Court finds its allegations made on "information and belief" are insufficient, the Receiver alternatively argues its complaint still survives because of two exceptions to the general preference against pleading on information and belief. First, Bankruptcy trustees are permitted to plead facts on information and belief because they normally only have second-hand knowledge of the facts they plead. Receiver argues that it should receive the same treatment, but cites no case law to support this argument. Defendants point out that "[a] bankruptcy receiver's duties and functions are different from those of an equity receiver, particularly because the scope of a bankruptcy receiver's power is set forth in statutes." Liberte Capital Grp., LLC v. Capwill, 248 Fed.Appx. 650, 667 (6th Cir.2007) (citations omitted). Second, the Receiver argues that its information and belief pleadings should be accepted because the facts alleged are in the Defendants' possession. While the facts are doubtless in Defendants' possession, the Receiver does little to explain why those facts are "peculiarly" in their possession. See Arista Records, LLC v. Doe, 604 F.3d 110, 120 (2d Cir.2010) ("The Twombly plausibility standard, which applies to all civil actions, does not prevent a plaintiff from "pleading facts alleged `upon information and belief'" where the facts are peculiarly within the possession and control of the defendant."); In re Darvocet, 756 F.3d at 931 (The Generic Manufacturers are not "peculiarly" in possession of the facts about whether a box of propoxyphene contains a package insert bearing the updated Black-Box warnings.) Accordingly, neither exception applies.
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While it is understandable that complaints pled on information and belief often will not meet this threshold, that is not always the case. Here, the Receiver's allegations are certainly not the "formulaic recitation of the elements of a cause of action" that were found to be inadequate in Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As noted supra, the Receiver pleads nearly thirty paragraphs of factual content. [See R. 13 at ¶¶ 37-63.] While most of that content explains how the pyramid scheme operated as opposed to the particularities surrounding the transfers to the Defendants herein, the Defendants cannot argue that they are without notice of the charges against them. As noted by the Supreme Court in Iqbal, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing
Next, Defendants challenge whether the Receiver has standing to prosecute these claims. A receiver, like any party seeking relief, is "inherently limited by the jurisdictional constraints of Article III and all other curbs on federal court jurisdiction.'" Liberte Capital Grp., LLC v. Capwill, 248 Fed.Appx. 650, 655 (6th Cir.2007) (quoting Scholes v. Schroeder, 744 F.Supp. 1419, 1421 (N.D.Ill.1990)).
Id. (quoting Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citation omitted)). "The general rule is that a receiver acquires no greater rights in property than the debtor had," or put another way, a receiver "stand[s] in the shoes of the entity in receivership." Wuliger v. Manufacturers Life Ins. Co., 567 F.3d 787, 793 (6th Cir.2009) (quoting Javitch v. First Union Sec., Inc., 315 F.3d 619, 625 (6th Cir.2003)). Accordingly, a receiver "lack[s] standing to bring suit unless the receivership entity could have brought the same action." Id. (quoting Javitch, 315 F.3d at 625 (citations omitted). Even though "the stated objective of a receivership may be to preserve the estate for the benefit of creditors, that does not equate to a grant of authority to pursue claims belonging to the creditors." Javitch, 315 F.3d at 627 (citing Jarrett v. Kassel, 972 F.2d 1415, 1426 (6th Cir.1992)).
Defendants now argue that the Receiver lacks standing because the claims asserted actually belong to the creditors of the Receivership companies, as opposed to the Receivership companies themselves. The Receiver disagrees, arguing that the complaint alleges injury against the Receivership Entities, and that the fact that creditors will benefit from the Receivership Entities' recovery is really incidental.
Because the Receiver "stand[s] in the shoes of the entity in receivership" and is permitted to assert any claim that the receivership entity could independently assert, Wuliger, 567 F.3d at 793 (quoting Javitch, 315 F.3d at 625), the question presented is whether the Receivership Entities could themselves assert a claim under Kentucky's fraudulent conveyance statutes. The starting point for this analysis are the state statutes in question. KRS 378.010 provides that:
In support of its argument that the Receiver does not fall within the statutes' class of potential claimants, the Defendants direct the Court to Eberhard v. Marcu, 530 F.3d 122 (2d Cir.2008), a Second Circuit case that interpreted New York's fraudulent conveyance statute. The New York statute provided that "[e]very conveyance made and every obligation incurred with actual intent ... to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors." Id. at 129. (quoting N.Y. Debt. & Cred. Law § 276 (emphasis added)). Considering both the statute's plain language and its legislative history, the Second Circuit concluded that only creditors were permitted to set aside fraudulent conveyances. Id. at 130-31. After the Court decided that the statute only extended to creditors, they proceeded to consider whether the receiver represented a creditor or the wrongdoer himself. For a number of reasons, the Second Circuit's conclusion in Eberhard is inapposite here. First, Kentucky's fraudulent conveyance statute is broader than the statute presented in Eberhard. The New York statute limits actions solely to creditors, whereas KRS § 378.010 refers to "creditors, purchasers or other persons." KRS § 378.010. As recognized by the Eberhard Court, "some federal receivers have enjoyed the benefit of state statutes imposing looser standing requirements [than that of New York]. Eberhard, 530 F.3d at 134-35 (citing e.g., Stenger v. World Harvest Church, Inc., 2006 WL 870310, at *4 n. 6 (N.D.Ga. Mar. 31, 2006) (allowing receiver to pursue fraudulent conveyance claim under former Ga. Code. Ann. § 18-2-22 which provided that fraudulent conveyances were "null and void" as to "creditors and others." (emphasis added)). This is just such a case. Second, Eberhard is also distinct as the receiver in that case was appointed to stand solely in the shoes of an individual wrongdoer, not a corporate receivership entity. The Eberhard Court discussed this distinction in great detail, and suggested that its out-come could have been different if the receiver stepped into the shoes of both Eberhard and related corporate entities. Id. at 132-133. The Court's holding was, in essence, that an investment entity or corporation represented by a receiver is a creditor for purposes of recovering under a fraudulent conveyance statute. Ironically, in coming to this conclusion, the Second Circuit relied on, and applied Scholes v. Lehmann, 56 F.3d 750 (7th Cir.1995) — a case which the Defendants take great issue with. This conclusion is consistent with that of other courts who have held that "a receiver in a Ponzi case is defined as a creditor for the purposes of establishing standing," rendering the reference to "other persons" irrelevant. Wing v. Hammons, 2009 WL 1362389, at *3 (D.Utah May 14, 2009) (citing Scholes, 56 F.3d at 753-55).
As articulated by the Receiver, courts across the nation have held that "receivers of corporate entities have standing to sue to recover funds or assets fraudulently transferred by those entities prior to the receivership." [R. 55 at 20.] See Scholes v. Lehmann, 56 F.3d 750 (7th Cir.1995),
In Count IV of the amended complaint, the Receivers assert that the Defendants were unjustly enriched by receiving the subject transfers from the Receivership Entities, which in turn were funds paid by injured consumers. [R. 13 at ¶¶ 87-92.] Contained within this charge, the Receiver asserts that the subject transfers "constitute ill-gotten gains and the proceeds of illegal and fraudulent activities obtained in violation of applicable law, including without limitation the FTC Act, the FTC rules and regulations and applicable Kentucky consumer protection statutes...." [R. 13 at ¶ 89.]
Defendants attack the Receivership Entities' standing to prosecute this unjust enrichment claim because (1) no private cause-of-action exists within the FTC Act, and (2) the Receivers have provided no basis for asserting standing under the Kentucky Consumer Protection Act. [R. 32-1 at 12.] The Receiver does not assert claims under those statutes, but only cites to those statutes to demonstrate why the gains are ill-gotten. [R. 55 at 21.] As the Receiver needs not have standing to sue under either of those Acts to bring an unjust enrichment claim, these arguments fail.
In Pari Delicto means "equally at fault." Black's Law Dictionary (10th ed.2014.) This doctrine stands for the proposition that a defendant may be able to escape liability as a result of the "plaintiff's participation in the same wrongdoing
Pursifull v. Interstate Oil & Gas Corp., 293 Ky. 152, 168, 168 S.W.2d 363 (1942).
The parties cannot agree about whether the doctrine applies. Defendants argue that the Receivership Entities' unclean hands bar the levied claims. The Receiver argues that the unclean hands doctrine does "not apply to a receiver for a corporation who is seeking to avoid a fraudulent transfer of corporate assets." [R. 55 at 26.] As noted by the Receiver, and made abundantly clear by a review of the case law, the seminal case is Scholes v. Lehmann, 56 F.3d 750 (7th Cir.1995), cert. denied sub nom. African Entr. Inc. v. Scholes, 516 U.S. 1028, 116 S.Ct. 673, 133 L.Ed.2d 522 (1995). Defendants argue that the Sixth Circuit disavowed Scholes in Wuliger v. Manufacturers Life Ins, Co., 567 F.3d 787 (6th Cir.2009). It is to this disagreement and these cases that the Court now turns.
In Scholes, a man by the name of Douglas was the "mastermind" behind a Ponzi scheme that sold limited partnerships in three shell corporations to investors who operated under the belief that the partnerships traded commodities, and yielded a return based on the sale of those commodities. 56 F.3d 750. In fact, the majority of the money used to pay investors actually came from the sale of limited-partner interests, instead of commodities. Id. The Securities and Exchange Commission (SEC) brought a civil suit against Douglas, and a receiver (Scholes) was subsequently appointed to recover what assets he could. The relevant issue presented was whether Scholes had standing to sue under an Illinois fraudulent conveyance statute (which is very similar to Kentucky's statute). Id. at 753-755. As here, the Defendants' primary claim in Scholes was that the Receiver, occupying Douglas's shoes, lacked standing to recover those fraudulent conveyances due to lack of injury. Writing for the Court, Chief Judge Richard Posner framed the issue:
Id. at 754. The Court answered its own question. While normally "the maker of [the] fraudulent conveyance and all those
Id. at 754-755. Accordingly, pursuant to Scholes, a receiver may recover fraudulent conveyances made by the bad actors whose shoes he fills because the traditional defense that the maker of a fraudulent conveyance is bound by it loses its justification after the bad actor is replaced.
Defendants argue that Scholes was rejected by the Sixth Circuit in Wuliger, 567 F.3d 787 (6th Cir.2009). In Wuliger an investment company (Liberte Capital Group) "purchased life insurance policies from `viators' — policyholders who are terminally ill or who are elderly and in poor health — in exchange for paying the viators an up-front lump sum." Id. at 790. Liberte then sold investments in its operations to investors who were recruited by independent brokers, and used the investors' payments to pay the premiums on the procured insurance policies. Id. Eventually, the SEC discovered the fraudulent scheme and a receiver was appointed to manage Liberte. Id. Relevant here, the receiver asserted fraudulent conveyance claims against the insurance company, demanding a return of the premiums paid by Liberte. Id. The district court found the unclean hands defense inapplicable because Liberte's chief executive had been removed, freeing Liberte of all wrongdoing. Id. at 798. The Sixth Circuit reversed, finding that the district court had incorrectly applied Scholes. Id. at 798. The Court distinguished the cases from one another:
Id. at 798. Without specific evidence in the record of Liberte's chief executive's role in the scheme, the Court declined to conclude that removing the chief executive "wiped Liberte's slate clean." Id. at 798. The Court, instead, found that "as Liberte's successor-in-interest, the Receiver
The question for the Court is whether the facts of this case make it more like Scholes or Wuliger. In support of its argument that the case is more like Wuliger, Defendants note that the Receiver fails to identify any single individual responsible for its alleged fraudulent activity in its amended complaint. Instead, Defendants point out that the Receiver blames the fraudulent activity on the "Receivership Defendants." [R. 13 at ¶ 37 ("the Receivership Defendants engaged in a common enterprise by which they conducted an unlawful multilevel marketing "pyramid" scheme").]
The Court notes two occasions where wrongdoers were referenced, albeit somewhat indirectly. First, in the amended complaint, the Receiver notes that the "eight owners and shareholders of the Receivership Defendants received dividends and payments from the Receivership Defendants..." [R. 13 at ¶ 51.] While there is no elaboration on the identities of these persons, this reference highlights an important fact — real people were at the corporate entities' helm. Those persons were pulling the strings and the corporations, like marionettes, responded. Second, as noted supra, the amended complaint incorporated both the preliminary and permanent injunctions by reference. [See R. 13 at ¶ 6-7; R. 13-2 (Stipulated Preliminary Injunction); R. 13-3 (Permanent Injunction).] The Permanent Injunction specifically distinguished between "Corporate Defendants" (described herein as "Receivership Defendants" or "Receivership Entities") and "Individual Defendants" Paul C. Orberson, and Thomas Mills, [R. 13-3 at 6.] That permanent injunction appointed the Receiver to stand in the shoes of the "Corporate Defendants," but not for the "Individual Defendants." [R. 13-3 at 18.] The Individual Defendants were removed so, to quote Scholes, "[t]he corporations were no more [the individual Defendant's] evil zombies." 56 F.3d at 754.
The Receiver provides the Court with a few more reasons to distinguish (or disregard) Wuliger. First, the Wuliger Court did not consider Scholes in the context of a fraudulent conveyance claim. Instead, the Widiger Court was evaluating a rescission claim. Second, the Sixth Circuit in Widiger was considering the district court's decision granting a motion for summary judgment, not a motion to dismiss. Third, the claim was analyzed under Ohio law. Fourth, the Court's discussion of Scholes was not necessary to the resolution of the claims in that case. The Sixth Circuit had already concluded that "Ohio's courts [had] already spoken with [] clarity on the issue," rendering the Court's discussion of the unclean hands dicta. Finally, Receivers also point out that the Defendants do not cite to a single case where a fraudulent transfer suit filed by a federal equity receiver over a corporate receivership entity was either barred or dismissed because of the doctrine of in pari delicto. [R. 55 at 22.] This point is well-taken.
Public policy also supports permitting this case to survive beyond this stage of the litigation. As the Court in Pursifull put it, the in pari delicto defense "is a creation of the courts to purify the stream of justice, and is never employed to pollute it." 293 Ky. 152 at 168, 168 S.W.2d 363 (1942). To apply the doctrine in this case would not punish the persons who were truly the alleged wrongdoers who were in charge of the Corporate Defendants, but would have the incidental effect of harming the poorly compensated investors in their scheme.
Accordingly, for the aforementioned reasons, it is hereby
