KEITH L. PHILLIPS, Bankruptcy Judge.
Before the Court is the motion to dismiss (the "
On May 15, 2014, an involuntary petition under chapter 7 of the Bankruptcy Code was filed against the Debtor. On June 13, 2014, an order for relief was entered against the Debtor under chapter 7 of the Bankruptcy Code (the "
The Complaint seeks entry of a declaratory judgment that Sterne Agee has certain rights to funds held in escrow in which Sterne Agee alleges that the Trustee and the bankruptcy estate have only a contingent, residual interest. The Court finds that it has subject matter jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference from the United States District Court for the Eastern District of Virginia dated August 15, 1984. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B), (C), (H), and (O). Venue is appropriate in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
The Trustee brought this Counterclaim "to hold Sterne Agee liable for the debts of A&S as reflected in the proofs of claim filed in A&S's bankruptcy case, or, in the alternative, avoid the transaction entered into by Sterne Agee, A&S and ASIC as being fraudulent." (Counterclaim ¶ 7).
The following allegations are asserted in the Counterclaim: By agreement dated November 15, 2011 (the "
As part of the transaction, all but one of the directors of the Debtor and ASIC, which constituted the large majority of the Debtor's and its parent company's shareholders, were offered employment with Sterne Agee and accepted those positions. (Counterclaim ¶ 11). The one director of the Debtor and ASIC that did not become an employee of Sterne Agee, Milton Turner, was not previously employed by the Debtor. (Counterclaim ¶ 11). The majority of the Debtor's and ASIC's shareholders are now owners and employees of Sterne Agee. (Counterclaim ¶ 12). All of the Debtor's branch office managers became branch office managers of Sterne Agee at its Charlotte, North Carolina; Columbia and Mt. Pleasant, South Carolina; Knoxville, Tennessee; and Fredericksburg, Norfolk, and Richmond, Virginia locations. (Counterclaim ¶ 13). Branch office manager is an officer position at Sterne Agee. (Counterclaim ¶ 13). Damon Joyner, the Debtor's president and CEO at the time of the transaction, became senior managing director with Sterne Agee. (Counterclaim ¶ 14). Sterne Agee also acquired the majority of the Debtor's sales force and assets under management. (Counterclaim ¶¶ 10, 15). Even at the time of the entry of the Order for Relief, Donald Newlin concurrently served as Sterne Agee's branch office manager of its Fredericksburg, Virginia office and as a director of the Debtor and ASIC. (Counterclaim ¶ 16).
Through the Purchase Agreement, Sterne Agee purchased all of the Debtor's assets necessary to operate and continue the Debtor's business, as determined by Sterne Agee, including all equipment, furniture, fixtures, and other tangible assets. (Counterclaim ¶ 17). The trustee also alleges that had the principals and shareholders of A&S and ASIC not transferred all valuable assets of A&S to Sterne Agee, all assets of A&S, including outstanding loans owed to A&S or ASIC by the principals and employees of A&S, would have been subject to creditor process. (Counterclaim ¶ 36). Sterne Agee only assumed the liabilities of the Debtor necessary for the continued operation of the Debtor's business, including the Debtor's leases for multiple office locations and any contract or agreements determined by Sterne Agee to be necessary. (Counterclaim ¶ 18).
A portion of the purchase price under the Purchase Agreement was paid with shares of Sterne Agee. (Counterclaim ¶ 20). Additionally, the total amount of the purchase price was reduced by the amount of "retention incentives," up to $1.4 million, paid by Sterne Agee to the employees of the Debtor that it wanted to retain, many, if not all, of which held ownership interests in the Debtor or its holding company. (Counterclaim ¶ 21). A portion of the purchase price also went to pay off a large loan owed to an affiliate of a director of the Debtor's holding company, Milton Turner, at the direction of the Debtor's and its holding company's board, which were composed of employees of Sterne Agee. (Counterclaim ¶ 22). The Purchase Agreement further provided that $1 million of the purchase price, in the form of shares of Sterne Agee, was to be held pursuant to the terms of the Purchase Agreement and a related escrow agreement to pay Sterne Agee's obligations as successor to the Debtor. (Counterclaim ¶ 23). Press releases by Sterne Agee in October and December 2011, identified that Sterne Agee was acquiring the Debtor and that the Debtor's customers would not see any changes with their current experience with the Debtor. (Counterclaim ¶¶ 24, 25).
Sterne Agee excluded from the Purchase Agreement all liabilities of the Debtor and ASIC that were not necessary for the continued operation of the Debtor's business. (Counterclaim ¶ 19). Following the transaction with Sterne Agee, the Debtor was left with no remaining assets with which to operate its business or pay its remaining liabilities and, therefore, ceased operations. (Counterclaim ¶ 27).
On May 1, 2013, Ming Yang and Robin Joachim Dartell, individually and on behalf of all others similarly situated, filed their Consolidated Amended Class Action Complaint (the "
On October 21, 2014, L. McCarthy Downs, III filed proof of claim number 1 in the Debtor's bankruptcy case in the amount of $413,676.25. (Counterclaim ¶ 32). The putative class in the Class Action lawsuit
The Trustee alleges that Sterne Agee and the principals of the Debtor and ASIC entered into the Purchase Agreement with the intention of transferring all assets of the Debtor away from its creditors (Counterclaim ¶ 35) and that the Debtor's shareholders and Sterne Agee retained all the value in the Debtor while avoiding its liabilities. (Counterclaim ¶ 55).
The Trustee asserts that Sterne Agee is liable for all obligations of the Debtor by virtue of expressly or impliedly assuming all of the Debtor's liabilities, completing a de facto merger with the Debtor, and being the mere continuation of the Debtor. (Counterclaim ¶ 41-57). The Trustee further asserts that the transfers from the Debtor to Sterne Agee are avoidable fraudulent transfers pursuant to Bankruptcy Code § 544(b), 11 U.S.C. §544(b), and Virginia Code § 55-80, Va. Code Ann. § 55-80. (Counterclaim ¶¶ 58-62).
Sterne Agee seeks dismissal of the successor liability claims asserted by the Trustee (Counts I-III) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (the "
Rule 12(b)(1), made applicable to this adversary proceeding by Bankruptcy Rule 7012(b), provides that a party may assert as a defense that the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1); Fed. R. Bankr. P. 7012(b). "When a defendant makes a facial challenge to subject matter jurisdiction, `the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.'" Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting
Rule 12(b)(6) provides that in its responsive pleading, a party may assert a defense that the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Fed. R. Bankr. P. 7012(b). A complaint fails to state a claim upon which relief can be granted when it fails to satisfy the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 8(a)(2), made applicable here by Bankruptcy Rule 7008, Fed. R. Bankr. P. 7008, which requires the pleader to state "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. The purpose behind Rule 8 is to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to withstand a motion to dismiss for failure to state a claim, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
In Counts I, II and III of the Counterclaim, the Trustee seeks to hold Sterne Agee liable for the debts of the Debtor under the theory that Sterne Agee is the Debtor's successor. Sterne Agee contends that the Court lacks subject matter jurisdiction to rule on the Trustee's successor liability claims because the Trustee has no standing to assert the successor liability claims. Sterne Agee argues that the successor liability claims do not belong to the bankruptcy estate and that § 544 of the Bankruptcy Code does not provide a basis for the Trustee to assert such claims.
Section 541(a)(1) of the Bankruptcy Code provides that the bankruptcy estate includes all legal or equitable interests of the debtor in property at the commencement of the case. This includes causes of action. Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 169 n.5 (3d Cir. 2002) (citing Butner v. United States, 440 U.S. 48, 54 (1979)). Section 704(a)(1) of the Bankruptcy Code requires a trustee in a chapter 7 case to "collect and reduce to money the property of the estate." 11 U.S.C. § 704(a)(1). The Trustee therefore seeks to pursue and administer the successor liability claim as an asset of the estate. Sterne Agee urges that the Trustee may not pursue a successor liability claim because Virginia law does not permit a corporation to pursue successor liability claims against the purchaser of its assets. Thus, Sterne Agee asserts that the successor liability claim was not an asset of the Debtor at the time the bankruptcy petition was filed.
Virginia does recognize a cause of action for successor liability. In Fuisz v. Lynch, AIA, PLLC, 147 F. App'x 319 (4th Cir. 2005), the Fourth Circuit summarized Virginia law on successor liability:
147 F. App'x 319, 321. See also Huennekens v. Gilcom Corp. of Va. (In re SunSport, Inc.), 260 B.R. 88, 104 (Bankr. E.D. Va. 2000); Harris v. T.I., Inc. 243 Va. 63, 70, 413 S.E.2d 605, 609 (1992). Sterne Agee argues that because there is no case law in Virginia allowing a corporation to recover against its alleged successor entity, the claim is impermissible. The Court disagrees. After examining the law in the Fourth Circuit concerning recovery by a trustee on behalf of a corporate debtor under alter ego theories, as well as the law in other jurisdictions concerning trustee recovery under successor liability theories, the Court concludes that the Trustee may seek recovery in this case against Sterne Agee as successor entities.
In Steyr-Daimler-Puch of America Corp. v. Pappas, 852 F.2d. 132, 135-36 (4th Cir. 1988), the Fourth Circuit determined that if, under state law, an alter ego claim may be brought by a corporation, that claim is a right of the debtor that passes into the bankruptcy estate and to the trustee. Although there appears to be no Virginia case specifically stating that a corporate entity may pursue a successor liability claim against its alleged successor in interest, there is also no case that prohibits such an application of the successor liability theory. The Court finds that because the successor liability claim the Trustee is asserting is not specific as to any one creditor and because any recovery would inure to the benefit of all creditors, the Trustee's successor liability claim should be permitted for the same reasons the Fourth Circuit allowed the alter ego claim in Steyr. Thus, following the Fourth Circuit's analysis in Steyr, the Court finds that the Trustee may assert successor liability claims for the benefit of the bankruptcy estate.
The weight of authority outside of this Circuit supports the conclusion that a successor liability claim constitutes property of the bankruptcy estate under Bankruptcy Code § 541(a)(1), which a trustee has standing to pursue on behalf of all creditors. See, e.g., In re Emoral, Inc., 740 F.3d 875, 882 (3d Cir. 2014), cert. denied 135 S.Ct. 436 (2014) ("Plaintiff's cause of action for successor liability . . . belongs to the bankruptcy estate."); Retired Partners of Coudert Brothers Trust v. Baker & McKenzie LLP (In re Coudert Bros. LLP), Adv. Pro. No. 08-1472, 2012 WL 1267827, at *6 (S.D.N.Y. April 12, 2012) ("If the Trust can rely on a theory of successor liability to recover from the Firms, then so can every other Coudert creditor, and who recovers depends merely on who sues the Firms first. This is precisely the sort of result the Bankruptcy Code exists to forestall, by placing exclusive standing over estate claims in the bankruptcy trustee or plan administrator."); Rosener v. Majestic Management, Inc. (In re OODC, LLC), 321 B.R. 128, 136 (Bankr. D. Del. 2005) ("[M]ost other courts have found that the trustee in bankruptcy has standing to bring successor liability (or alter ego) suits on behalf of all creditors."); Keene Corp. v. Coleman (In re Keene Corp.), 164 B.R. 844, 853 (Bankr. S.D.N.Y. 1994) ("For the same reasons stated with respect to piercing claims, claims based upon successor liability should be asserted by the trustee on behalf of all creditors."). The rationale adopted by these courts is consistent with the Bankruptcy Code's policy of having a chapter 7 trustee administer the bankruptcy estate for the benefit of all creditors.
In In re Emoral, the Third Circuit, finding that a bankruptcy trustee has standing to pursue successor liability claims on behalf of a corporate debtor, stated that "a cause of action that is `property of the estate' is properly pursued by the bankruptcy trustee because it inures to the benefit of all creditors. This promotes the orderly distribution of assets in bankruptcy, and comports with `the fundamental bankruptcy policy of equitable distribution to all creditors that should not be undermined by an individual creditor's claim.'" 740 F.3d at 879 (quoting Koch Refining v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1344 (7th Cir.1987)).
740 F.3d at 879 (quoting St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 701 (2d Cir. 1989)).
In Emoral, the Third Circuit provided an answer to the argument of Sterne Agee that there is no Virginia case specifically stating that a corporate entity may pursue a successor liability claim against its alleged successor in interest:
740 F.3d at 881 (citations omitted).
The parties have each cited the Fourth Circuit case of National American Insurance Co. v. Ruppert Landscaping Co., 187 F.3d 439 (4th Cir. 1999). In that case, two insurance companies that had issued payment and performance bonds on behalf of the debtor attempted to assert successor liability claims against a corporation that had purchased some of the debtor's notes and assets. The Fourth Circuit found that the insurance companies lacked standing to pursue the purchasing corporation, finding that such a suit would frustrate the bankruptcy trustee in pursuing a potential fraudulent conveyance action. While the Fourth Circuit did not specifically decide whether a trustee may pursue a successor liability claim for the benefit of the estate, since the trustee in that case apparently asserted a potential fraudulent conveyance action only, it did give some insight on the issue. Just as the Third Circuit expressed in Emoral, the Fourth Circuit in Ruppert Landscaping emphasized that the purpose of the bankruptcy process would be undermined if individual creditors were allowed to engage in piecemeal litigation against an alleged successor entity. The court noted that:
Id. at 442 (quoting American Nat'l Bank v. MortgageAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266, 1274 (5th Cir.1983). This language from the Fourth Circuit does not support Sterne Agee's argument that a trustee should not be able to bring a successor liability claim.
This Court adopts the rationale set forth in Emoral, which it finds to be consistent with the Fourth Circuit's decision in Steyr, and finds that the Trustee has standing to pursue Counts I, II, and III under § 541 of the Bankruptcy Code. Having found that Virginia recognizes a cause of action for successor liability, and having found that the Trustee has standing to pursue those counts under § 541 of the Bankruptcy Code, the Court need not address whether the Trustee has standing to pursue those counts under § 544 of the Bankruptcy Code.
In Counts IV and V of the Counterclaim, the Trustee seeks to avoid the transfer of the Debtor's assets to Sterne Agee as a fraudulent transfer pursuant to Bankruptcy Code § 544(b)(1)
Sterne Agee maintains that the Trustee has failed to state a fraudulent conveyance claim under § 544(b), which allows a trustee to avoid a transfer of an interest of the debtor "that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of [the Bankruptcy Code]. . . ." 11 U.S.C. § 544(b). More specifically, Sterne Agee contends that the Counterclaim does not plead the existence of an unsecured creditor who existed at the time of the transaction giving rise to the challenged transfer, who holds a claim allowable under § 502 and who, under nonbankruptcy law, could avoid the transfer. Sterne Agee contends that all of the claims that have been asserted on behalf of various creditors identified in the Counterclaim, as represented by proof of claim filed in the case, are objectionable or otherwise not allowable under § 502 and that therefore the Trustee has not satisfied the elements of § 544(b) and has no standing to assert the § 544(b) claims.
In the Counterclaim, the Trustee states that the transaction he is seeking to set aside took place at the end of 2011 and was designed to avoid payment to creditors while transferring all of the value of the Debtor to Sterne Agee and to the principals/shareholders of the Debtor. (Counterclaim ¶ 7). The Trustee alleges that the Class Action lawsuit was pending against the Debtor in federal court in New Jersey, based upon an allegation that the Debtor took part in a fraudulent initial public offering which resulted in the January 11, 2011, sale by the Debtor of $16.5 million of stock in a defunct company. (Counterclaim ¶ 29). The Trustee alleges that Sterne Agee and the principals of the Debtor entered into the Purchase Agreement with the intent of transferring all of the Debtor's assets away from its creditors (Counterclaim ¶ 35). Construing the facts in favor of the Trustee, the creditors taking part in the Class Action lawsuit were in existence at the time of the November 2011 transfer to Sterne Agee.
The Trustee is not required to identify specific creditors in order to have standing or state a claim under § 544(b). See Schnelling v. Crawford (In re James River Coal Co.), 360 B.R. 139, 160 (Bankr. E.D. Va. 2007) ("The amended complaint alleges that at all relevant time, the Debtors had creditors with claims that arose before or within a reasonable time after the challenged transactions. That alone should be sufficient."); The Responsible Person of Musicland Holding Corp. v. Best Buy Co.(In re Musicland Holding Corp.), 398 B.R. 761, 780 (Bankr. S.D.N.Y. 2008) ("The Court has not been able to locate a case in this district supporting the proposition that the plaintiff must name the qualifying creditor in the complaint, or suffer dismissal."); Giuliano v. U.S. Nursing Corp. (In re Lexington Healthcare Grp., Inc.), 339 B.R. 570, 576 (Bankr. D. Del. 2006) ("The Court agrees with the Trustee and those cases which hold that the Trustee need not identify the name of a specific creditor on which the Trustee relies."). The Trustee's Counterclaim alleges the existence of creditors holding unsecured claims. (Counterclaim ¶¶ 32-34), and the Court is required to "accept as true all of the factual allegations contained in the complaint," E.I. DuPont de Nemours and Co. v. Kolon Inds., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and "draw all reasonable inferences in favor of the plaintiff." E.I. DuPont de Nemours and Co. v. Kolon Inds., Inc., 637 F.3d at 440.
Sterne Agee contends that the Trustee's Counterclaim under Va. Code § 55-80 should be dismissed because the Trustee failed to plead with specificity the elements of "actual intent" required by that statute. Sterne Agee points to Rule 9(b) of the Federal Rule of Civil Procedure 9(b), Fed. R. Civ. P. 9(b), made applicable by Rule 7009 of the Federal Rules of Bankruptcy Procedure, Fed. R. Bankr. P. 7009, which requires a party alleging fraud to state the circumstances with particularity. The Court finds that the Trustee has pled fraud with sufficient specificity.
Fraud for purposes of Virginia Code § 55-80 may be proven by circumstantial evidence. "[B]ecause of the difficulty of establishing actual intent, evidence of fraud may be, and generally must be, circumstantial." Fox Rest Assocs., L.P. v. Little, 282 Va. 277, 284, 717 S.E.2d 126, 131 (2011) (quoting Hyman v. Porter (In re Porter), 37 B.R. 56, 63 (Bankr. E.D. Va. 1984)). Therefore, Virginia courts rely on the badges of fraud to establish a prima facie case of fraudulent conveyance under Va. Code Ann. § 55-80. The badges of fraud include:
Fox Rest. Assoc., 282 Va. at 284, 717 S.E.2d at 131 (citing Hyman v. Porter (In re Porter), 37 B.R. 56, 63 (Bankr. E.D. Va. 1984)); see also Gold v. Laines (In re Laines), 352 B.R. 397 (Bankr. E.D. Va. 2005). A prima facie case may be established by demonstrating a single badge of fraud; insolvency in combination with other circumstances may sufficiently show fraudulent intent as well. Hyman v. Porter, 37 B.R. at 63. This Court has held that "[f]raud should be inferred when the facts and circumstances are such as would lead a reasonable man to the conclusion that a debtor has attempted to withdraw his property from the reach of his creditors with the intent to prevent them from recovering their just debts." Id.
The Trustee has to plead only a single badge of fraud to establish his prima facie case against Sterne Agee. The Trustee has pled at least two badges of fraud. He has alleged that the shareholders of the Debtor retained an interest in the transferred assets by (i) receiving a portion of the purchase price directly from Sterne Agee disguised as retention bonuses or loan repayments (Counterclaim ¶ 21), (ii) having loans owed to the Debtor by the officers and directors forgiven or transferred to Sterne Agee (Counterclaim ¶ 22), and (iii) obtaining employment with Sterne Agee (Counterclaim ¶¶ 10, 11, 13-15). The Trustee also alleges that the Debtor retained an interest in the transferred assets by receiving a portion of the purchase price as stock in Sterne Agee Group, Inc. (Counterclaim ¶¶ 20, 23). The Trustee alleges a second badge of fraud by asserting that the Debtor faced the threat of litigation by its creditors at the time of the transfer, including the members of the Class Action lawsuit, whose losses were sustained in early 2011. (Counterclaim ¶¶ 28-29).
In addition to these two badges of fraud, the Trustee asserts that the Debtor was left insolvent after it transferred its assets to Sterne Agee, because thereafter it had no remaining assets with which to pay its significant liabilities. (Counterclaim ¶ 7). The Trustee alleges that the Debtor's officers, directors, and shareholders entered into the transaction with Sterne Agee "with the goal of separating A&S's assets from its significant liabilities for the benefit of Sterne Agee and A&S's and ASIC's principals/shareholders." (Counterclaim ¶ 7). The Trustee has sufficiently alleged at least two badges of fraud establishing the fraudulent intent necessary under Virginia Code § 55-80, along with other facts recognized as relevant by Virginia Courts.
Sterne Agee also contends that the Trustee has failed to plead that Sterne Agee had notice of the Debtor's fraudulent intent in transferring its assets to Sterne Agee. However, the Trustee alleged that "Sterne Agee and the principals/shareholders of A&S and ASIC completed a transaction at the end of 2011 with the goal of separating A&S's assets from its significant liabilities for the benefit of Sterne Agee and A&S's and ASIC's principals/shareholders" (Counterclaim ¶ 7) and that "Sterne Agee and the principals of the Debtor and ASIC entered into the Purchase Agreement with the intention of transferring all assets of A&S away from A&S's creditors." (Counterclaim ¶ 35). The Trustee further alleges that Sterne Agee had notice of the Debtor's fraudulent intent and, in fact, knowingly participated in the fraudulent transfer by (i) disguising payment of a portion of the purchase price directly to shareholders as retention bonuses (Counterclaim ¶ 21); (ii) keeping a Sterne Agee employee and office manager, Donald Newlin, in place as a director of the Debtor for over three years following the transaction (Counterclaim, ¶ 16); and (iii) setting up an escrow fund with a portion of the purchase price (Counterclaim ¶ 23).
The allegations asserted by the Trustee in the Counterclaim satisfy the Twombly and Iqbal pleading standards for stating a claim under Bankruptcy Code § 544(b) and Virginia Code § 55-80, and also satisfy the pleadings standard of Rule 9(b).
The Trustee has standing to bring the successor liability claims against Sterne Agee because such claims constitute property of the bankruptcy estate. The Trustee has sufficiently alleged all necessary elements of his fraudulent transfer claim under 11 U.S.C. § 544(b) and Virginia Code § 55-80 and has pled sufficient facts to state a claim.
For the reasons set forth herein, Sterne Agee's Motion to Dismiss is denied. A separate order will issue.
(Counterclaim ¶ 7).
Sterne Agee suggests that the Trustee is not entitled to a relaxed pleading standard under Rule 9(b) because he engaged counsel who represented the petitioning creditor in the involuntary bankruptcy filing against the Debtor and therefore may have had some prior knowledge of the fraudulent transfer. The Court does not have before it any evidence as to what Trustee's counsel may or may not have learned through its representation of the petitioning creditor relevant to this action. Therefore, despite the fact that the Trustee has fully satisfied the requirements of Rule 9(b) in the Counterclaim, he would still be entitled to the relaxed standard applied to trustees bringing fraudulent transfer actions.
