JOSÉ A. CABRANES, Circuit Judge:
Once again, we are asked to review the liquidation proceedings involving Bernard L. Madoff Investment Securities LLC ("BLMIS")—the investment enterprise created by Bernard L. Madoff to effect his now-infamous Ponzi scheme. These consolidated appeals arise out of a permanent injunction entered by the United States Bankruptcy Court for the Southern District of New York (Burton R. Lifland, Bankruptcy Judge) and affirmed by the United States District Court for the Southern District of New York (John G. Koeltl, Judge), enjoining state law tort actions asserted by appellants, two of Madoff's defrauded "investors," against the estate of Jeffry M. Picower, one of Madoff's alleged co-conspirators, and related defendants (collectively, "Picower defendants"). We consider two questions: (1) whether the Bankruptcy Court had the authority under the Bankruptcy Code to enjoin appellants' actions as "derivative" of adversary proceedings brought by the trustee for the BLMIS estate, Irving Picard ("Picard" or the "Trustee"), against the Picower defendants; and, if indeed authorized by the Bankruptcy Code, (2) whether the Bankruptcy Court transgressed the limitations on its authority imposed by Article III of the United States Constitution.
First, we conclude that appellants' complaints impermissibly attempt to "plead around" the Bankruptcy Court's injunction barring all claims "derivative" of those asserted by the Trustee. Although appellants seek damages that are not recoverable in an avoidance action, their complaints allege nothing more than steps necessary to effect the Picower defendants' fraudulent withdrawals of money from BLMIS, instead of "particularized" conduct directed at BLMIS customers. Second, we conclude that the Bankruptcy Court operated within the confines of Article III of the United States Constitution, as recently interpreted by the Supreme Court in Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). Accordingly, we hold that the Bankruptcy Court did not exceed the bounds of its authority under the Bankruptcy Code or run afoul of Article III.
Following Madoff's arrest in December 2008, the Securities and Exchange Commission filed a civil complaint against Madoff and BLMIS in the United States District Court for the Southern District of New York, alleging that they had operated a Ponzi scheme through BLMIS's investment-advisor activities. On December 15, 2008, upon an application filed by the Securities Investment Protection Corporation ("SIPC"),
SIPA establishes procedures for the expeditious and orderly liquidation of failed broker-dealers, and provides special protections to their customers. A trustee's primary duty under SIPA is to liquidate the broker-dealer and, in so doing, satisfy claims made by or on behalf of the broker-dealer's customers for cash balances. In re Bernard L. Madoff Inv. Sec. LLC, 654 F.3d 229, 233 (2d Cir.2011). In a SIPA liquidation, a fund of "customer property" is established—consisting of cash and securities held by the broker-dealer for the account of a customer, or proceeds therefrom, 15 U.S.C. § 78lll(4)— for priority distribution exclusively among customers, id. § 78fff-2(c)(1). The Trustee allocates the customer property so that customers "share ratably in such customer property ... to the extent of their respective net equities." Id. § 78fff-2(c)(1)(B).
In order to calculate a customer's "net equity," Picard chose the "net investment method," under which the amount owed to each customer by BLMIS was "the amount of cash deposited by the customer into his BLMIS customer account less any amounts already withdrawn by him." Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (In re Bernard L. Madoff Inv. Sec. LLC), 424 B.R. 122, 125 (Bankr. S.D.N.Y.2010). In other words, BLMIS customers had net equity only to the extent that their total cash deposits exceeded their total cash withdrawals. Id. at 142. On March 1, 2010, the Bankruptcy Court entered an order approving the "net investment method" (the "Net Equity Decision"), which we subsequently affirmed. See id. at 135, 140, aff'd, 654 F.3d 229 (2d Cir.2011).
Following these proceedings, appellants each filed claims in the liquidation proceeding against the BLMIS estate. Picard allowed appellant Marshall's claim for $30,000, but he denied two claims filed by Fox on the grounds that she was a so-called "net winner," meaning that she had already withdrawn more than she deposited.
On May 12, 2009, Picard commenced an adversary proceeding against the Picower defendants in the United States Bankruptcy Court for the Southern District of New York (the "New York action"), alleging that they had made hundreds of improper withdrawals from BLMIS totaling $6.7 billion.
While settlement talks were ongoing in the New York action, appellants filed complaints in the United States District Court for the Southern District of Florida on behalf of putative classes allegedly adversely affected by the Trustee's method for calculating net equity (the "Florida actions"). Marshall purported to represent the interests of BLMIS account holders who had not filed SIPA claims with the Trustee or whose SIPA claims were disallowed either in whole or in part. In her parallel suit, Fox allegedly represented the interests of BLMIS customers designated "net winners" and thus not entitled to any compensation in the SIPA litigation. Their complaints asserted claims for civil conspiracy, conversion, and conspiracy to
On May 3, 2010, the Bankruptcy Court in New York granted the Trustee's application for a preliminary injunction, thereby enjoining the Florida actions. The Court held that the Florida actions violated the District Court's December 15, 2008 Protective Order, usurped causes of action belonging to the estate in violation of the Bankruptcy Code's automatic stay provision, see 11 U.S.C. § 362(a),
On December 17, 2010, the Trustee and the Picower defendants entered into a settlement agreement (the "Settlement Agreement"), whereby the Picower defendants agreed to return $5 billion to the BLMIS estate, out of the proceeds of a $7.2 billion civil forfeiture they simultaneously agreed to make to the U.S. Attorney's Office.
On December 17, 2010, the Trustee filed his motion for approval of the Settlement Agreement and for a permanent injunction pursuant to Rules 2002 and 9019 of the Bankruptcy Rules and section 105(a) of the Bankruptcy Code. SIPC and the government filed a statement in support of the Trustee's motion. On January 13, 2011, the Bankruptcy Court approved the Settlement Agreement, and issued the permanent injunction as follows:
Special App'x 31 (emphasis supplied). At the January 13, 2011 motion hearing, the Bankruptcy Court made clear that, under its interpretation of the injunction, the claims in appellants' Florida actions were barred as duplicative and derivative of those asserted in the Trustee's complaint. See Joint App'x 309 (Bankruptcy Court stating that, "[Fox and Marshall's claims] are subsumed in the prior injunctive paragraph").
On March 26, 2012, the District Court, on appeal, affirmed the January 13 Order, holding that the settlement was fair and reasonable, and that the issuance of the permanent injunction was a proper exercise of the Bankruptcy Court's authority under section 105(a). See Fox v. Picard (In re Madoff), 848 F.Supp.2d 469, 491 (S.D.N.Y.2012). The Court also agreed that the claims asserted in appellants' Florida actions were "duplicative or derivative" of those claims that could have been or were asserted by the Trustee in the New York action and, accordingly, were barred by the terms of the injunction. Id. at 489.
This timely appeal followed.
The relevant standards of review are familiar ones. "On appeal from the district court's review of a bankruptcy court decision, we review the bankruptcy court decision independently, accepting its factual findings unless clearly erroneous but reviewing its conclusions of law de novo." Swimelar v. Baker (In re Baker), 604 F.3d 727, 729 (2d Cir.2010) (internal quotations omitted). As relevant here, "[t]he standard of review for the grant of a permanent injunction, including an anti-suit injunction, is abuse of discretion." Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 651 (2d Cir.2004); see also Sims v. Blot (In re Sims), 534 F.3d 117, 132 (2d Cir.2008) (explaining the term of art "abuse of discretion" as a ruling based on "an erroneous view of the law or on a clearly erroneous assessment of the evidence, or ... a decision that cannot be located within the range of permissible decisions." (internal quotations and citations omitted)).
At the January 13, 2011 hearing, the Bankruptcy Court stated explicitly that the Florida actions were among the claims enjoined by the permanent injunction.
Only recently we reaffirmed that "the touchstone for bankruptcy jurisdiction [over a non-debtor's claim] remains whether its outcome might have any `conceivable effect' on the bankruptcy estate." Quigley Co. v. Law Offices of Peter G. Angelos (In re Quigley Co.), 676 F.3d 45, 57 (2d Cir. 2012) (citation and internal quotation omitted). In a SIPA liquidation, the bankruptcy estate encompasses "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1).
A claim based on rights "derivative" of, or "derived" from, the debtor's typically involves property of the estate. See In re Quigley, 676 F.3d at 57 ("[W]e have treated whether a suit seeks to impose derivative liability as a helpful way to assess whether it has the potential to affect the bankruptcy res...."). By contrast, a bankruptcy court generally has limited authority to approve releases of a non-debtor's independent claims. See Deutsche Bank AG v. Metromedia Fiber Network, Inc. (In re Metromedia Fiber Network, Inc.), 416 F.3d 136, 141-43 (2d Cir.2005). As one federal appeals court has explained:
Steinberg v. Buczynski, 40 F.3d 890, 893 (7th Cir.1994). Put another way, "when creditors ... have a claim for injury that is particularized as to them, they are exclusively entitled to pursue that claim, and the bankruptcy trustee is precluded from doing so." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093 (2d Cir.1995).
We have defined so-called "derivative claims" in the context of bankruptcy as ones that "arise[ ] from harm done to the estate" and that "seek[ ] relief against third parties that pushed the debtor into bankruptcy." Picard v. JPMorgan Chase & Co. (In re Bernard L. Madoff Inv. Sec. LLC) ("`JPMorgan Chase"), 721 F.3d 54, 70 (2d Cir.2013). In assessing whether a claim is derivative, we inquire into the factual origins of the injury and, more importantly, into the nature of the legal claims asserted. See Johns-Manville Corp. v. Chubb Indem. Ins. Co. (In re Johns-Manville Corp.) ("Manville III"), 517 F.3d 52, 67 (2d Cir.2008). While a derivative injury is based upon "a secondary effect from harm done to [the debtor]," an injury is said to be "particularized" when it can be "directly traced to [the third party's] conduct." St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 704 (2d Cir.1989).
Most of this Circuit's jurisprudence on a bankruptcy court's authority to enjoin derivative claims in liquidation proceedings stems from what has been aptly characterized as "the long saga of litigation arising from the bankruptcy of the Johns-Manville Corporation (`Manville'), a major national asbestos concern." In re Quigley, 676 F.3d at 55. A brief comparison of two cases from that saga helps illustrate the principles just described.
In MacArthur Co. v. Johns-Manville Corp. (In re Johns-Manville Corp.) ("Manville I"), 837 F.2d 89 (2d Cir.1988), plaintiff, a distributor of Manville's asbestos products, alleged that it was coinsured under Manville's insurance policies. Id. at 90. As part of Manville's settlement with its insurers, the bankruptcy court entered an injunction relieving the insurers of all obligations related to the disputed policies and channeling all insurance claims to the proceeds of the settlement. Id. Plaintiff challenged the court's authority to issue such an order, asserting that its contract-based claims against the insurers were independent from Manville's. We rejected this contention, asserting that
Id. at 92-93 (citation omitted). In other words, the claims of both the plaintiff and the asbestos victims were "derivative" of Manville's—whether or not they sounded in tort or contract—because they all sought compensation for the same type of asbestos-related injuries caused by Manville's products. Accordingly, we held that the bankruptcy court had the authority to funnel all claims against the policies to a single proceeding in the bankruptcy court. Id. at 93.
In Manville III, however, we held that plaintiffs' claims against Travelers Insurance were independent of Manville's.
We recently had occasion to apply the distinction drawn in Manville III in another case arising out of the SIPA-liquidation of BLMIS. In JPMorgan Chase, the Trustee sued various financial institutions, alleging that they had aided and abetted Madoff's fraud. 721 F.3d at 59. In holding that the Trustee lacked standing to bring such claims on behalf of BLMIS customers, we noted that the claims were not derivative: they were brought "on behalf of thousands of customers against third-party financial institutions for their handling of individual investments made on various dates in varying amounts." Id. at 71.
In the following section, we explain why the Florida actions are predicated upon secondary harms flowing from BLMIS as in Manville I—rather than upon a particularized injury traceable to the Picower defendants' conduct—as in Manville III and JPMorgan Chase.
The Trustee's complaint in this case asserts fraudulent conveyance claims against the Picower defendants under the Bankruptcy Code and New York law.
Highland Capital Mgmt. LP v. Chesapeake Energy Corp. (In re Seven Seas Petroleum, Inc.), 522 F.3d 575, 589 n. 9 (5th Cir.2008).
Appellants Marshall and Fox argue that their complaints assert non-derivative conspiracy-based claims predicated upon the Picower defendants' direct participation in the theft of BLMIS customers' funds. However, the allegations in appellants' respective Florida complaints echo those made by the Trustee. With regard to the Picower defendants' knowledge of the fraud, each complaint alleges: (1) that the Picower defendants' account supposedly achieved implausibly high rates of return, see Joint App'x 707, 1358, 2584; (2) that, unlike other investors, the Picower defendants were sufficiently close to Madoff to be privy to BLMIS' trading records, see id. at 722, 1349, 2584; and (3) that the Picower defendants knew of fictitious and backdated trading activity in their accounts, see id. at 724, 1359, 2593. See also Sec. Investor Prot. Corp. v. Bernard L. Madoff In v. Sec. LLC, 477 B.R. 351, 358-78 (Bankr.S.D.N.Y.2012) (chart comparing allegations in Trustee's complaint with those in the Florida complaints, appended as Exhibit A to the opinion of the Bankruptcy Court). In fact, the Florida complaints cite the factual allegations contained in the Trustee's complaint in New York's bankruptcy court multiples times in support of their claims.
Appellants rightly note that overlapping allegations may give rise to a multiplicity of claims. As the Fifth Circuit has explained, "there is nothing illogical or contradictory about saying that [a third-party defendant] might have inflicted direct injuries on both the [estate's creditors] and [the debtor estate] during the course of dealings that form the backdrop of both sets of claims." In re Seven Seas, 522 F.3d at 587; see, e.g., Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1101 (2d Cir.1988) (finding that a creditor had "standing to bring a RICO claim, regardless of the fact that a bankrupt [debtor] might also have suffered an identical injury" because "[creditor] does not seek recovery for injuries suffered by [debtor] but for injuries it suffered directly").
We are nonetheless wary of placing too much significance on the labels appellants attach to their complaints, lest they circumvent the Net Equity Decision by "pleading around" the automatic stay and
A & G Goldman Partnership v. Picard (In re Bernard L. Madoff Inv. Sec., LLC), No. 12 CIV. 6109 RJS, 2013 WL 5511027, at *7 (S.D.N.Y. Sept. 30, 2013) (citation omitted).
The case law upon which appellants rely to argue that they have alleged "particularized" injuries directly traceable to the Picower defendants is inapposite. Appellant Marshall draws our attention to Cumberland Oil Corp. v. Thropp, 791 F.2d 1037 (2d Cir.1986), in which we held that a plaintiff's cause of action for conspiracy to defraud "was not merely an artful repleading of [fraudulent conveyance] claims." Id. at 1043. But in Cumberland Oil, the plaintiff did not assert merely the "right... to recover misappropriated assets," but "alleged with particularity that misrepresentations of facts [about debtor's financial health] were made by [defendant] in furtherance of a conspiracy to defraud." Id. at 1042-43. The complaints here, however, do not allege that the Picower defendants made any such misrepresentations to BLMIS customers. Rather, as in Manville I, appellants' alleged injuries are inseparable from, and predicated upon, a legal injury to the estate namely, the Picower defendants' fraudulent withdrawals from their BLMIS accounts of what turned out be other BLMIS customers' funds.
Appellant Fox relies on our decision in Hirsch v. Arthur Andersen & Co., and the Fifth Circuit's in In re Seven Seas, to argue that her claims allege "particularized" injuries traceable to the Picower defendants. In Hirsch, the Trustee sought to sue Arthur Anderson & Co. for helping perpetuate the debtors' Ponzi scheme by distributing misleading private placement memoranda to investors. 72 F.3d at 1087-89. And in In re Seven Seas, bondholders alleged that a secured creditor had knowingly used misleading financial information to induce them to purchase unsecured notes issued by the debtor. 522 F.3d at 578-81. In both cases, the Courts held that the claims alleged an injury that was
As just noted, however, appellants have not alleged that the Picower defendants took any such "particularized" actions aimed at BLMIS customers. They have not alleged, for instance, that the Picower defendants made any misrepresentations to appellants. Appellants respond that their respective complaints allege "that the Picower Defendants' wrongful conduct ensured the fraud's success by inducing [them] and other customers to invest (and remain invested) in BLMIS." Fox Br. 25 (emphasis supplied); see also Marshall Br. 31. We do not think that the complaints can reasonably be read in this way. Allegations that the Picower defendants knowingly reaped the benefits of Madoff's scheme through fraudulent withdrawals, and effected such withdrawals through backdating trades and recording fictional profits, does not amount to a particularized claim that they directly participated in defrauding BLMIS customers by inducing them to invest.
Appellants' final contention is that their complaints are particularized and non-derivative because of the nature of the relief sought. Whereas the Trustee sought the recovery of assets BLMIS transferred to the Picower defendants, appellants seek damages for (1) the loss on the reasonable return on their investments, (2) taxes paid on fictitious gains, and (3) monetary losses should they be sued by the Trustee for the recovery of their own withdrawals from BLMIS—none of which is recoverable in an avoidance action under the Bankruptcy Code. See 11 U.S.C. § 550(a) ("[T]he trustee may recover, for the benefit of the estate, the property transferred, or ... the value of such property...."). Yet appellants' claimed damages, also suffered by all BLMIS customers, still remain mere secondary harms flowing from the Picower defendants' fraudulent withdrawals and the resulting depletion of BLMIS funds. Cf. Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, 491 B.R. 27, 36 (S.D.N.Y.2013) ("[Investors'] actions relate to [investment manager's] fraud on his own investors—not Madoff's fraud at the expense of his customers—and therefore are independent claims based on separate facts, theories, and duties than the Trustee's fraudulent transfer claims against [investment manager].").
We conclude, therefore, that appellants purported conspiracy-based claims against the Picower defendants are "derivative" of those asserted by the Trustee in his fraudulent conveyance action, and, therefore, the Bankruptcy Court was authorized to enjoin those actions.
We turn now to whether the Bankruptcy Court, an Article I court, exceeded the jurisdictional limits established by Article III of the United States Constitution. Both appellant Fox and Marshall's arguments in this regard are premised upon the Supreme Court's recent holding in Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). In Stern, a widow filed a state law counterclaim in her Chapter 11 bankruptcy case to recover for her stepson's alleged tortious interference with an inheritance gift she expected from her deceased husband. Id. at 2601. The Court observed that the Constitution generally reserves the power to adjudicate such common law claims to courts established under Article III. Id. at 2608-09. One exception to this principle is a category of cases involving "public rights."
Appellant Fox argues that, in light of Stern, "the [bankruptcy] court improperly wielded powers reserved for Article III courts by permanently enjoining her claims." Fox Br. 53. According to Fox, her state law conspiracy claims are akin to the widow's tortious interference counterclaims in that they are "in no way derived from or dependent upon bankruptcy law," but instead "exist[ed] without regard to any bankruptcy proceeding." Stern, 131 S.Ct. at 2618. As noted above, however, appellants' purported tort claims are, in essence, disguised fraudulent transfer actions, which belong exclusively to the Trustee. Accordingly, appellants' claims are distinct from those in Stern held to be beyond the powers of a bankruptcy court.
Appellant Marshall, in turn, argues that, in light of Stern, the Bankruptcy Court lacked jurisdiction to enter a final judgment on the Trustee's fraudulent transfer action against the Picower defendants. In Stern, the Supreme Court drew an analogy
Granfinanciera, 492 U.S. at 56, 109 S.Ct. 2782 (citation omitted). Therefore, according to Marshall, the Bankruptcy Court did not have authority to enter final judgment on the Trustee's fraudulent transfer claims against the Picower defendants, much less to issue the accompanying order enjoining all duplicative and derivative actions.
Yet Granfinanciera held that a fraudulent conveyance claim is a matter of private right when asserted against "a person who has not submitted a claim against a bankruptcy estate." Id. at 36, 109 S.Ct. 2782 (emphasis supplied). The Court reaffirmed this limitation of Granfinanciera's holding in Stern. See Stern, 131 S.Ct. at 2617 ("[A] preferential transfer claim can be heard in bankruptcy when the allegedly favored creditor has filed a claim, because then the ensuing preference action by the trustee become[s] integral to the restructuring of the debtor-creditor relationship." (internal quotations omitted; brackets in original)). In this case, unlike in Granfinanciera, the Picower defendants filed a proof of claim against the BLMIS estate. In order to rule on that claim, the Bankruptcy Court was required to first resolve the fraudulent transfer issue. Cf. id. at 2617 (noting that the "factual and legal determinations" the bankruptcy court was required to make "were not disposed of in passing on objections to [creditor's] proof of claim" (internal quotations omitted)).
Accordingly, the Bankruptcy Court's authority under the Bankruptcy Code to approve the settlement between the Trustee and the Picower defendants and to permanently enjoin appellants' disguised fraudulent transfer claims does not run afoul of Article III of the United States Constitution.
To summarize:
Accordingly, the judgment of the District Court is
In addition, because we find that appellants' claims are derivative of the Trustee's claims for fraudulent withdrawals, the fact that the Trustee lacks standing to bring bona fide conspiracy claims on behalf of BLMIS customers under JPMorgan Chase is irrelevant.