Grayson Consulting, Inc v. Wachovia Securities, LLC (In Re Derivium Capital LLC) , 716 F.3d 355 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: DERIVIUM CAPITAL LLC, 
Debtor.
GRAYSON CONSULTING,
INCORPORATED,
Plaintiff-Appellant,
v.
WACHOVIA SECURITIES, LLC, f/k/a  No. 12-1518
First Union Securities,
Incorporated; WACHOVIA SECURITIES
FINANCIAL NETWORK LLC; FIRST
CLEARING LLC,
Defendants-Appellees,
and
KEVIN CAMPBELL,
Trustee.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
William O. Bertelsman, Senior District Judge,
sitting by designation.
(2:11-cv-02710-WOB; 05-15042-jw; 07-80119-jw)
Argued: January 29, 2013
Decided: May 24, 2013
Before KING, WYNN, and DIAZ, Circuit Judges.
2 In Re: DERIVIUM CAPITAL LLC
Affirmed by published opinion. Judge Wynn wrote the opin-
ion, in which Judge King and Judge Diaz concurred.
COUNSEL
ARGUED: Tucker Harrison Byrd, MORGAN & MORGAN,
PA, Orlando, Florida, for Appellant. Stephen Leonard Ratner,
PROSKAUER ROSE, LLP, New York, New York, for
Appellees. ON BRIEF: Alisa J. Roberts, GRAYSON LAW
CENTER, PC, Falls Church, Virginia, for Appellant. David
A. Picon, PROSKAUER ROSE, LLP, New York, New York,
for Appellees.
OPINION
WYNN, Circuit Judge:
This is an adversary proceeding arising out of the bank-
ruptcy of Debtor Derivium Capital, LLC ("Derivium"). Plain-
tiff–Appellant Grayson Consulting, Inc. ("Grayson"), assignee
of the Chapter 7 bankruptcy trustee, appeals from a district
court judgment affirming the bankruptcy court’s decision to
grant summary judgment for Defendants–Appellees
Wachovia Securities, LLC, Wachovia Securities Financial
Network, LLC, and First Clearing, LLC (collectively
"Wachovia").
Derivium filed for bankruptcy after the collapse of its
"stock loan" lending program, alleged to be a Ponzi scheme.
Grayson sought to recover from Wachovia assets transferred
into Derivium’s brokerage accounts at Wachovia and com-
missions, fees, and margin interest payments paid to
Wachovia as fraudulent conveyances under 11 U.S.C. §§ 544and 548. Grayson also asserted tort claims against Wachovia
related to its involvement in Derivium’s stock loan program.
In Re: DERIVIUM CAPITAL LLC 3
The bankruptcy court dismissed Grayson’s tort claims under
the doctrine of in pari delicto1 and ultimately granted sum-
mary judgment for Wachovia on Grayson’s fraudulent con-
veyance claims, determining that the asset transfers could not
be avoided under the bankruptcy code and that Wachovia’s
commissions, fees, and margin interest payments were pro-
tected from recovery by the stockbroker defense, 11 U.S.C.
§ 546. The district court affirmed the bankruptcy court’s deci-
sion, and Grayson appealed. For the reasons discussed below,
we affirm.
I.
Grayson’s claims relate to Derivium’s 90% Stock-Loan
Program, in which Derivium customers transferred stocks to
Derivium in exchange for three-year non-recourse loans
worth ninety-percent of the stocks’ market values. When the
loans matured, customers had the option of repaying the prin-
cipal plus interest and recovering the stock, surrendering the
stock, or refinancing the loan for an additional term. Under an
agreement with Derivium, customers participating in the pro-
gram put their stocks into Wachovia2 brokerage accounts (the
"At-Issue Accounts") in Derivium’s name and also in the
names of Bancroft Ventures, Optech Limited, and WITCO
Services Ltd. (the "Stock Loan Entities"). Customers were
told that Derivium would hedge their collateral using a confi-
dential, proprietary formula. Instead, Derivium’s owners
directed Wachovia to immediately transfer the stocks into
other accounts and liquidate them. Derivium used the pro-
ceeds from the stock sales to fund customers’ loans and
Derivium’s owners’ start-up ventures.
1
As restated later, in pari delicto is an affirmative defense that precludes
a plaintiff who participated in the same wrongdoing as the defendant from
recovering damages from that wrongdoing. See e.g., Logan v. JKV Real
Estate Servs., (In re Bogdan), 414 F.3d 507, 514 (4th Cir. 2005).
2
Derivium also had brokerage accounts with other entities that sought
and obtained withdrawal of reference from the bankruptcy court.
4 In Re: DERIVIUM CAPITAL LLC
Ultimately, Derivium had difficulty satisfying its obliga-
tions to return customers’ stocks when the loans matured.
Wachovia closed the At-Issue Accounts in late 2004 and early
2005, and, in September of 2005, Derivium filed for Chapter
11 bankruptcy in the Southern District of New York. The
court converted the case to Chapter 7 and transferred it to the
District of South Carolina, where Kevin Campbell was
appointed Derivium’s trustee.
In August of 2007, Campbell filed a complaint against
Wachovia alleging nine tort claims3 and two bankruptcy
claims under 11 U.S.C. §§ 544 and 548, provisions that entitle
a bankruptcy trustee to avoid certain fraudulent transfers
made prior to the bankruptcy filing to return assets to the
estate for the benefit of the creditors. Specifically, Campbell
sought to avoid and recover three categories of transfers under
Sections 544 and 548: (1) $161 million in securities that cus-
tomers transferred into the At-Issue Accounts (the "Customer
Transfers"); (2) $828,500 in cash that Derivium and Bancroft
transferred into Bancroft’s At-Issue Account the year before
Derivium filed for bankruptcy (the "Cash Transfers"); and (3)
commissions, fees, and margin interest paid to Wachovia.
With the approval of the bankruptcy court, Campbell assigned
these claims to Grayson, and Grayson was substituted as the
plaintiff in December of 2007.
In April of 2008, Wachovia moved for dismissal. The
bankruptcy court dismissed the tort claims with prejudice
under the doctrine of in pari delicto and dismissed the fraudu-
lent conveyance claims with leave to amend. Grayson filed a
Second Amended Complaint and Wachovia again moved to
dismiss, which the bankruptcy court denied on Grayson’s
3
The Trustee’s tort claims were: (1) aiding and abetting fraud; (2) aiding
and abetting breach of fiduciary duty; (3) aiding and abetting fraudulent
conveyance; (4) aiding and abetting conversion; (5) negligence; (6) breach
of fiduciary duty; (7) conversion; (8) civil conspiracy; and (9) constructive
trust.
In Re: DERIVIUM CAPITAL LLC 5
claims related to actual conveyances of assets. Subsequently,
Grayson filed a Third Amended Complaint omitting the nine
dismissed tort claims, and the fraudulent conveyance claims
proceeded to discovery.
During discovery, Wachovia filed a motion for summary
judgment, which the court denied. After the close of discov-
ery, Wachovia renewed its motion and also moved for sum-
mary judgment on the issue of whether the Stock Loan
Entities were Derivium’s alter egos. The bankruptcy court
denied the motion on Grayson’s alter ego theory, but granted
in part and denied in part Wachovia’s renewed motion on
Grayson’s fraudulent transfer claims.
Specifically, the bankruptcy court determined that: (1)
Grayson cannot avoid the Customer Transfers because they
were not transfers of debtor property as required by Section
548; (2) Grayson cannot avoid the Cash Transfers because
Wachovia was not the "initial transferee" of the assets as
required by Section 550; and (3) Wachovia’s commissions,
margin interest payments, and fees claimed under Section 544
were protected from recovery by Section 546, known as the
"stockbroker defense," provided they were customary or rea-
sonable in the securities industry. The bankruptcy court then
conducted a hearing to determine whether Wachovia’s com-
missions were reasonable and customary, found them to be
so, and thus concluded that they were protected under the
stockbroker defense. In re Derivium Capital, LLC, C/A No.
5-15042-JW, Adv. Pro. No. 07-80119-JW at 3–4 (Feb. 15,
2011).4
In April of 2012, the district court issued a one-paragraph
decision affirming the bankruptcy court’s orders. Grayson
timely appealed.
4
This order is found at J.A. 960–68.
6 In Re: DERIVIUM CAPITAL LLC
II.
In an appeal from a bankruptcy proceeding, this Court
applies the same standard of review that the district court
applied to the bankruptcy court’s decision. Goldman v. Capi-
tal City Mort. Corp. (In re Nieves), 648 F.3d 232, 237 (4th
Cir. 2011) (citing Bowers v. Atlanta Motor Speedway, Inc. (In
re Se. Hotel Props., Ltd. P’ship), 99 F.3d 151, 154 (4th Cir.
1996)). Thus, we review factual findings for clear error and
legal conclusions de novo. In re Nieves, 648 F.3d at 237.
Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a).
III.
On appeal, Grayson contends that the district court erred in
affirming the bankruptcy court’s determinations that (1) the
Customer Transfers were not transfers of debtor property; (2)
Wachovia was not the initial transferee of the Cash Transfers;
(3) the stockbroker defense applies to commissions; and (4)
in pari delicto bars Grayson’s tort claims against Wachovia.
We address each issue in turn.
A.
First, Grayson argues that the district court erred in affirm-
ing the bankruptcy court’s grant of summary judgment for
Wachovia on Grayson’s Customer Transfers claim. The dis-
trict court determined that Grayson cannot avoid the Cus-
tomer Transfers because they were not transfers of "an
interest of the debtor in property or any obligation incurred by
the debtor" as required by 11 U.S.C. §§ 544(b)(1) and 548(a).
Grayson does not contend that Derivium had an interest in
its customers’ securities prior to the transfers. Rather, Gray-
son asserts that when Derivium acquired an interest in the
securities through the transfers, Wachovia simultaneously
In Re: DERIVIUM CAPITAL LLC 7
acquired an interest in the securities under the agreements
governing the accounts into which the securities were trans-
ferred.
In its brief, Grayson relies heavily on Bear, Stearns Securi-
ties Corp. v. Gredd (In re Manhattan Investment Fund Lim-
ited), 397 B.R. 1 (S.D.N.Y. 2007), aff’d, 328 F. App’x 709
(2d Cir. 2009) ("Manhattan Investment"). In Manhattan
Investment, the bankruptcy court permitted the trustee to
avoid transfers by a debtor into a broker’s margin account. Id.Here, the bankruptcy court distinguished Manhattan Invest-
ment by explaining that the Customer Transfers involved
transfers of stock by third parties, Derivium’s customers,
rather than by the debtor, Derivium. That is, the transferred
securities came to Derivium, not from or through Derivium.
Grayson Consulting, Inc. v. Wachovia Secs., LLC (In re
Derivium Capital, LLC), 437 B.R. 798, 807 (Bankr. D.S.C.
2010).
The purpose of the Bankruptcy Code’s avoidance provi-
sions is to prevent a debtor from making transfers that dimin-
ish the bankruptcy estate to the detriment of creditors. There
is no dispute that Derivium had no rights to the securities until
after the transfers were effectuated. Accordingly, the Cus-
tomer Transfers at issue here simply were not transfers of
debtor property, and thus the transfers in no way diminished
the bankruptcy estate. This is true regardless of whether, as
Grayson argues, Wachovia acquired an interest in the securi-
ties at the same time as Derivium.
Alternatively, Grayson argues that it can avoid portions of
the Customer Transfers as "settlement payments" or "margin
payments" under 11 U.S.C. §§ 548(a)(1)(A) and 546(e),
asserting that Wachovia took funds from the At-Issue
Accounts to satisfy margin debt. Appellant’s Br. at 21, 38.
Although Section 546 provides that certain margin or set-
tlement payments may be avoided under Section 548, Section
8 In Re: DERIVIUM CAPITAL LLC
548 provides for the avoidance of such payments only if they
were made from debtor property. See 11 U.S.C. § 546(e)
("Notwithstanding section[ ] . . . 548(a)(1)(B), and 548(b) . . .
the trustee may not avoid a transfer that is a margin payment
. . . or settlement payment . . . made by or to (or for the benefit
of) a . . . stockbroker."); id. § 548(a)(1) ("The trustee may
avoid any transfer . . . of an interest of the debtor in property
. . . .") (emphasis added). As discussed, the assets in the At-
Issue Accounts were not Derivium’s—i.e., debtor’s—property
until after the Customer Transfers occurred. And, as the bank-
ruptcy court explained, Section 546 provides only a defense
to otherwise avoidable transfers; it does not establish a cate-
gory of avoidable transfers of nondebtor property. Thus, nei-
ther Section 548(a)(1)(A) nor 546(e) provides a basis for
avoidance and recovery here.
In sum, because the Customer Transfers were not transfers
of Derivium’s property, we conclude that the district court did
not err in affirming the grant of summary judgment for
Wachovia on Grayson’s Customer Transfers claim.
B.
Next, Grayson contends that the district court erred in
affirming the bankruptcy court’s grant of summary judgment
for Wachovia on Grayson’s Cash Transfers claim.
The bankruptcy court determined that Grayson cannot
recover the Cash Transfers from Wachovia because Wachovia
was not the "initial transferee" of the assets as required by 11
U.S.C. § 550. In pertinent part, Section 550(a) provides that,
to the extent a trustee may avoid a transfer under the Code,
the trustee can recover the fraudulently transferred property
from only the "initial transferee."5
5
Because Grayson argued only that Wachovia was the "initial trans-
feree," we do not consider whether Wachovia fits under the second prong
of Section 550(a), which provides for recovery from "an immediate or
mediate transferee of the initial transferee." Id. § 550(a)(2).
In Re: DERIVIUM CAPITAL LLC 9
The Bankruptcy Code does not define the term "initial
transferee." This Court applies the "dominion and control"
test to determine whether an entity qualifies as the "initial
transferee." In re Se. Hotel Props., 99 F.3d at 155–56. Under
the dominion and control test, an initial transferee must (1)
have legal dominion and control over the property—e.g., the
right to use the property for its own purpose—and (2) exer-
cise this legal dominion and control. Id. ("[W]e explicitly
adopt the dominion and control test . . . . We hold further that
this test requires that . . . a person or entity must have exer-
cised legal dominion and control over the property."). Here,
the bankruptcy court determined that Wachovia neither had
nor exercised legal dominion and control over the Cash
Transfers and therefore was not the initial transferee of these
funds.
Grayson argues that the agreements governing the At-Issue
Accounts gave Wachovia legal dominion and control over
assets transferred into those accounts. But regardless of
whether the agreements gave Wachovia legal dominion and
control of the At-Issue Accounts, the bankruptcy court deter-
mined that Grayson failed to show the requisite exercise of
dominion and control. The bankruptcy court found that
Wachovia never controlled the flow of assets into or out of
the At-Issue Accounts nor used assets in the accounts for its
own purposes: Whenever Wachovia moved and sold assets, it
acted at the direction and consent of the account holder. In re
Derivium Capital, LLC, 437 B.R. at 809. Nothing in the
record suggests that these findings were erroneous.
Grayson nevertheless argues that Wachovia exercised con-
trol by removing from the At-Issue Accounts "commissions,
margin interest, and ‘prepayment fees.’" Appellant’s Br. at
15–16; 31. Notably, these deductions did not equal the total
amount of the Cash Transfers. The bankruptcy court con-
cluded that the deduction of commissions and fees at the
authorization of the account holder was not an exercise of
control over the entire funds. See also Sec. First Nat’l Bank
10 In Re: DERIVIUM CAPITAL LLC
v. Brunson, (In re Coutee), 984 F.2d 138, 141 (5th Cir. 1993)
(holding law firm was not initial transferee of settlement
funds in trust because "[t]he only control exercised over the
funds was the control delegated to the law firm by the [cli-
ents]"). And again, nothing before us suggests that the court
erred in its determination.
In sum, we agree with the bankruptcy court that, notwith-
standing funds taken and retained as commissions and fees,
Wachovia was not the initial transferee of the Cash Transfers.
Accordingly, we conclude that the district and bankruptcy
courts did not err in granting summary judgment for
Wachovia on Grayson’s Cash Transfers claim.
IV.
Grayson next contends that the district court erred in
affirming the bankruptcy court’s determination that
Wachovia’s commissions and fees were protected as "settle-
ment payments" under 11 U.S.C. § 546(e), the "stockbroker
defense," once they were shown to be reasonable and custom-
ary in the industry. In re Derivium Capital, LLC, C/A No. 5-
15042-JW, Adv. Pro. No. 07-80119-JW at 7 (Feb. 15, 2011).
Grayson contends that Section 546 does not protect commis-
sions, and even if it does, Wachovia’s commissions here were
uncommonly low and therefore should have been excluded
from protection under the bankruptcy court’s own test.
A.
Whether brokers’ commissions and fees can be shielded
from avoidance and recovery as a "settlement payment" under
11 U.S.C. § 546(e) is a question of statutory interpretation. As
with all such questions, we begin with the plain language of
the Code.6 Section 546(e) states that,
6
It appears that there are no cases expressly addressing whether Section
546(e) immunizes commissions. But we note, as the bankruptcy court did,
In Re: DERIVIUM CAPITAL LLC 11
[n]otwithstanding sections 544, 545, 547,
548(a)(1)(B), and 548(b) of this title, the trustee may
not avoid a transfer that is a . . . settlement payment,
as defined in section 101 or 741 of this title, made
by or to (or for the benefit of) a commodity broker,
forward contract merchant, stockbroker, financial
institution, financial participant, or securities clear-
ing agency, or that is a transfer made by or to (or for
the benefit of) a commodity broker, forward contract
merchant, stockbroker, financial institution, financial
participant, or securities clearing agency, in connec-
tion with a securities contract . . . .
Id.7
Chapter 11 tautologically defines "settlement payment" as
"a preliminary settlement payment, a partial settlement pay-
ment, an interim settlement payment, a settlement payment on
that several other bankruptcy courts have permitted recovery of brokers’
commissions under the Code’s fraudulent transfer provisions. None of
these cases, however, considered the application of the stockbroker
defense, nor does it appear that the defense would have been applicable.
See In re Derivium Capital, LLC, 437 B.R. at 811 n.12 (citing In re Old
Naples Sec., 343 B.R. 310 (Bankr. M.D. Fla. 2006) (commission payments
to broker were 73-109% of the transaction); Bauman v. Bliese et al. (In re
McCarn’s Allstate Fin., Inc.), 326 B.R. 843 (Bankr. M.D. Fla. 2005) (bro-
kers received commissions for recruiting customers); Cuthill v. Kime et al.
(In re Evergreen Sec., Ltd.), 319 B.R. 245, 249–51 (Bankr. M.D. Fla.
2003) (investment advisors who received commissions for referring cus-
tomers were not "stockbrokers"); Terlecky v. Abels, 260 B.R. 446 (S.D.
Ohio 2001) (brokers were employees of debtor and therefore not "stock-
brokers")).
7
We note that Section 546(e) also protects transfers made "in connec-
tion with a securities contract," as defined by the Code. In light of our con-
clusion that Wachovia’s commissions come under "settlement payments,"
however, we need not consider whether these payments could have been
protected under this alternative.
12 In Re: DERIVIUM CAPITAL LLC
account, a final settlement payment, or any other similar pay-
ment commonly used in the securities trade." Id. § 741(8).8
Section 546 does not limit the definition of settlement pay-
ment to security purchase prices or exclude from it payments
from which brokers benefit, such as commissions. Indeed,
Congress amended Section 546(e) in 2006 to add settlement
payments made to or for the benefit of stockbrokers. See
Financial Netting Improvements Act of 2006, Pub. L. No.
109–390, 120 Stat. 2692 (2006) (emphasis added). Neverthe-
less, the definition is sufficiently ambiguous as to whether
commissions and fees come under "settlement payments" that
we consider legislative intent.
The parties agree that the purpose of Section 546 is to pre-
serve the stability of settled securities transactions. See also
Kaiser Steel Corp. v. Charles Schwab & Co., Inc., 913 F.2d
846, 849 (10th Cir. 1990) (citing H.R. Rep. No. 420, 97th
Cong., 2d Sess. 2 (1982), reprinted in 1982 U.S.C.C.A.N.
583, 583). Specifically, Congress stated that the purpose
behind the provision was "to clarify and, in some instances,
broaden the commodities market protections and expressly
extend similar protections to the securities market" to "mini-
mize the displacement caused in the commodities and securi-
ties markets in the event of a major bankruptcy affecting those
industries." H.R. Rep. No. 420, 97th Cong., 2d Sess. 2 (1982).
Citing this legislative history, several of our sister circuits
have described the definition of "settlement payment" in Sec-
tion 546 as "extremely broad." QSI Holdings, Inc. v. Alford
(In re QSI Holdings, Inc.), 571 F.3d 545, 549 (6th Cir. 2009);
Contemporary Indus. Corp. v. Frost, 564 F.3d 981, 985 (8th
8
Section 101(51A) defines "settlement payments" for forward contracts
to mean "a preliminary settlement payment, a partial settlement payment,
an interim settlement payment, a settlement payment on account, a final
settlement payment, a net settlement payment, or any other similar pay-
ment commonly used in the forward contract trade."
In Re: DERIVIUM CAPITAL LLC 13
Cir. 2009); Lowenschuss v. Resorts Int’l, Inc. (In re Resorts
Int’l, Inc.), 181 F.3d 505, 515 (3d Cir. 1999); Kaiser Steel
Corp. v. Pearl Brewing Corp. (In re Kaiser Steel Corp.), 952
F.2d 1230, 1237 (10th Cir. 1991) (quoting Kaiser Steel, 913
F.2d at 849).
Because Congress included in the definition of "settlement
payment" "any other similar payment commonly used in the
securities trade," we also look to standard practices of the
securities industry to inform the definition of "settlement pay-
ment." Several industry texts suggest that "settlement pay-
ment" means the transfer of funds paid in connection with
completing a securities transaction. See, e.g., NEW YORK
STOCK EXCHANGE, LANGUAGE OF INVESTING GLOSSARY 30
(1981) (defining settlement as the "[c]onclusion of a securities
transaction when a customer pays a broker/dealer for securi-
ties purchased or delivers securities sold and receives from
the broker the proceeds of a sale"); GROUP OF THIRTY, CLEAR-
ANCE AND SETTLEMENT SYSTEMS IN THE WORLD’S SECURITIES
MARKETS 86 (1989) (defining settlement as "[t]he completion
of a transaction, wherein securities and corresponding funds
are delivered and credited to the appropriate accounts"). Fur-
ther, Black’s Law Dictionary specifically includes a broker’s
commission as an example in the definition of "transaction
cost." (9th ed. 2009) ("A cost connected with a process trans-
action, such as a broker’s commission . . . .").
We underscore that not all payments to brokers labeled
"commissions" are protected as "settlement payments" under
Section 546(e). For example, commissions that are not part of
the settlement of securities transactions, such as commissions
paid for the solicitation of investors, cannot be protected as
"settlement payments." Section 546(e) also would not protect
commissions the amount of which, when compared to the
transaction amount, indicates that they were not actually
related to closing trades. But we conclude that Section
546(e)’s plain language, viewed through the lens of its legisla-
tive intent, does not exclude commissions and fees commonly
14 In Re: DERIVIUM CAPITAL LLC
paid to stockbrokers as part of settling a regular securities
transaction.
Accordingly, we hold that the bankruptcy court did not err
in determining that commissions shown to be reasonable and
customary parts of settling stock sales come within the stock-
broker defense as "settlement payments."
B.
Grayson also contends that the district court erred in
affirming the bankruptcy court’s finding that Wachovia’s low
commissions were customary and reasonable. On appeal,
Grayson argues that the discounted rate was conferred on
fewer than two percent of Wachovia’s customers and thus
cannot be deemed reasonable and customary.
At the evidentiary hearing before the bankruptcy court,
Wachovia presented the testimony of three individuals:
George Gordon, the Wachovia account representative for the
Derivium and Bancroft accounts; John Pinto, an expert on
industry standards and rules governing broker commissions;
and Vadim Khavinson, the president of the company that cal-
culated Wachovia’s commissions. Grayson did not present
any witnesses.
Gordon testified that between 50% and 75% of Wachovia’s
clients received discounted rates, which ranged from 5% to
95% discounts. Pinto testified that it is "not unusual . . . for
a brokerage firm to offer steep discounts to clients that pro-
vide a significant amount of business." J.A. 935. Further,
Pinto testified that the rates charged were "fair, reasonable,
and customary" and "well within the . . . FINRA, NASD
rules." J.A. 930, 932–34.
Based on Wachovia’s evidence, the bankruptcy court deter-
mined that although Wachovia charged Derivium and the
Stock Loan Entities discounted commission rates, discounts
In Re: DERIVIUM CAPITAL LLC 15
of the same or greater value "were not unusual for . . . large
clients who conducted, or were expected to conduct, a signifi-
cant volume of business with a full service brokerage firm."
In re Derivium Capital, LLC, C/A No. 5-15042-JW, Adv. Pro.
No. 07-80119-JW at 3–4 (Feb. 15, 2011). The bankruptcy
court also found that the commissions were customary and
reasonable under industry standards. Id. at 8. Given the evi-
dentiary record, we conclude that the bankruptcy court did not
clearly err in making this finding.
C.
Grayson also challenges the bankruptcy court’s protection
of Wachovia’s margin interest payments as "margin pay-
ments" under Section 546. In its brief, Grayson summarily
asserts that it "seeks to recover all commissions and margin
interest payments taken by [Wachovia] from any At-Issue
Account in the three-year pre-petition period under 11 U.S.C.
§ 544(b) and South Carolina’s Statute of Elizabeth." Appel-
lant’s Br. at 18.
The Bankruptcy Code defines "margin payment" as a "pay-
ment or deposit of cash, a security, or other property, that is
commonly known to the securities trade as original margin,
initial margin, maintenance margin, or variation margin, or as
a mark-to-market payment, or that secures an obligation of a
participant in a securities clearing agency." 11 U.S.C.
§ 741(5). Like "settlement payment," courts have interpreted
this term broadly. See, e.g., Hays v. Morgan Stanley DW, Inc.
(In re Stewart Fin. Co.), 367 B.R. 909, 917 (Bankr. M.D. Ga.
2007) ("‘Margin payment’ is a broadly construed term and
includes any payment by a debtor to pay for the purchase of
securities or to reduce a deficiency in a margin account.") (cit-
ing COLLIER ON BANKRUPTCY 5:546.06[2][a] at 546–48
(15th ed. rev. 2006)); Kaiser Steel, 913 F.2d at 849; Biggs v.
Smith Barney, Inc. (In re David), 193 B.R. 935 (Bankr. C.D.
Cal. 1996)).
16 In Re: DERIVIUM CAPITAL LLC
Here, the parties agreed that "whether a margin interest
payment constitutes a ‘margin payment’ turns on whether it
reduces a deficiency in a margin account." In re Derivium
Capital, LLC, 437 B.R. at 812. The bankruptcy court deter-
mined that because accrued interest increases the total debt
owed, margin payments reduce the deficiency in a margin
account, and thereby qualify as "margin payments" under
Section 546(e). Nothing in the record or the bankruptcy
court’s reasoning suggests this was an error, particularly in
light of the parties consensus on the term’s meaning.
Accordingly, we conclude that the district and bankruptcy
courts did not err in determining that margin interest pay-
ments qualify as "margin payments" under Section 546(e).
D.
Grayson further argues that even if Wachovia’s commis-
sions, fees, and margin interest payments come within Section
546(e), this Court should find an exception to the stockbroker
defense because applying it in the context of an alleged Ponzi
scheme would allow "a broker to retain ill-gotten profits" and
undermine the "equitable goals of the Bankruptcy Code."
Appellant’s Br. at 51.
Although Section 546(e) does not include a Ponzi scheme
exception on its face, it does provide several express excep-
tions to the application of the defense, including claims
brought under 11 U.S.C. § 548(a)(1)—"fraudulent transfers"
made "with actual intent to hinder, delay, or defraud . . . ."
And in Manhattan Investment, for example, the court held
that the existence of a Ponzi scheme gave rise to a presump-
tion of actual fraud on the part of the broker, triggering the
fraud exception to the stockbroker defense. See 397 B.R. at 14
n.18 (permitting the bankruptcy estate to recover commissions
in the context of a Ponzi scheme because "§ 546(e) does not
preclude avoidance if there is actual fraud under
§ 548(a)(1)(A)").
In Re: DERIVIUM CAPITAL LLC 17
Here, the bankruptcy court did not reach the issue of
whether Grayson established a claim under Section
548(a)(1)(A) to Wachovia’s commissions, margin interest
payments, and fees. Specifically, in its summary judgment
order, the bankruptcy court denied Wachovia’s motion with
regard to this claim, finding it was "not ripe for determina-
tion." In re Derivium Capital, LLC, 437 B.R. at 813. Then the
bankruptcy court specifically excepted and reserved the issue
from the evidentiary hearing on the reasonableness and cus-
tomariness of Wachovia’s commissions, stating "Plaintiff will
have the opportunity during the second part of the trial to
present evidence regarding the circumstances under which the
Defendants obtained the commissions for the purpose of
establishing its § 548(a)(1) claim." J.A. 804. Subsequently,
the parties settled certain claims, and it appears the later hear-
ing was not held. Because the district court simply affirmed
the bankruptcy court’s order, whether Grayson can recover
commissions, fees, and margin interest payments under Sec-
tion 548(a)(1)—upon establishing actual fraud by
Wachovia—remains unanswered. And Grayson fails to con-
vince us we need to establish an extra-statutory fraud excep-
tion to the stockbroker defense.
V.
Finally, Grayson contends that the district court and the
bankruptcy court erred in dismissing its tort claims under the
doctrine of in pari delicto. In pari delicto is an affirmative
defense that precludes a plaintiff who participated in the same
wrongdoing as the defendant from recovering damages from
that wrongdoing. See e.g., In re Bogdan, 414 F.3d at 514(describing in pari delicto as "an affirmative defense that bars
a wrongdoer from recovering against his alleged coconspira-
tors"). That is, Grayson cannot recover damages if it bears
equal or greater fault in the alleged tortious conduct as the
alleged tortfeasor.
As assignee of the trustee, Grayson represents the bank-
ruptcy estate. The bankruptcy estate, as defined by Section
18 In Re: DERIVIUM CAPITAL LLC
541, includes "all legal or equitable interests of the debtor in
property as of the commencement" of bankruptcy. 11 U.S.C.
§ 541(a)(1). "These legal and equitable interests include
causes of action." Official Comm. of Unsecured Creditors v.
R.F. Lafferty & Co., Inc., 267 F.3d 340, 358 (3d Cir. 2001)
(citing, among other things, 3 COLLIER ON BANK-
RUPTCY ¶ 323.02[1]). Under Section 541, therefore, a
trustee "stands in the shoes of the debtor and can only assert
those causes of action possessed by the debtor. Conversely,
the trustee is, of course, subject to the same defenses as could
have been asserted" against the debtor. Id. (quotation marks
and brackets omitted) (emphasis added). In other words, to
the extent that in pari delicto would have barred a debtor from
bringing suit directly, it similarly bars a bankruptcy trust-
ee—standing in the debtor’s shoes—from bringing suit. See,
e.g., R.F. Lafferty, 267 F.3d at 358; (joining the Second,
Sixth, and Tenth Circuits in the application of the defense);
Sender v. Buchanan (In re: Hedged-Invs. Assocs., Inc.), 84
F.3d 1281, 1285 (10th Cir. 1996) (applying in pari delicto to
bar a trustee’s claims against third-party investors who prof-
ited from debtor’s Ponzi scheme).
As Grayson notes, the Seventh and the Ninth Circuits have
declined to apply the in pari delicto doctrine in bankruptcy
cases. Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995); FDIC
v. O’Melveny & Myers, 61 F.3d 17 (9th Cir. 1995). But, cru-
cially, those cases involved receivers who, unlike trustees, are
not subject to Section 541. We recognize the appeal of those
cases’ reasonings—i.e., that the appointment of an innocent
receiver removed the wrongdoer and changed the equities,
rendering the application of the punishing in pari delicto doc-
trine unwarranted. Nevertheless, that reasoning does not com-
port with the plain language of Section 541. Sender, 84 F.3d
at 1285 (stating that Section 541 "establishes the estate’s
rights as no stronger than they were when actually held by the
debtor. Congress intended the trustee to stand in the shoes of
the debtor and ‘take no greater rights than the debtor himself
had.’ Therefore, to the extent [that the trustee] must rely on
In Re: DERIVIUM CAPITAL LLC 19
11 U.S.C. § 541 for his standing in this case, he may not use
his status as trustee to insulate the [debtor] from . . . wrongdo-
ing . . . .") (internal citations omitted).
Accordingly, we agree with the district court and bank-
ruptcy court that Grayson’s status as the trustee’s assignee
does not afford it protection from the application of in pari
delicto. And because Grayson’s complaint alleged that
Derivium engaged in the alleged torts, Grayson, standing in
Derivium’s shoes, is barred from suing Wachovia for those
torts.
In the alternative, Grayson contends that the "adverse inter-
est" exception to in pari delicto applies here. Under the "ad-
verse interest" exception, the wrongs of an agent are not
imputed to the principal if the agent acted adverse to the prin-
cipal’s interests. See Little v. S. Cotton Oil Co., 153 S.E. 462,
463 (S.C. 1930) ("[W]hen an agent is engaged in a transaction
in which he is interested adversely to his principal, the princi-
pal will not be charged with knowledge of the agent acquired
therein."). Specifically, Grayson contends that because
Derivium’s owners engaged in the alleged misconduct and
their misdeeds were adverse to Derivium, their conduct
should not be imputed to it.9
The bankruptcy court rejected Grayson’s adverse interest
argument on the basis of the "sole actor rule." That rule pro-
vides that an agent’s conduct is imputed to the principal if that
agent is the principal’s sole representative. See, e.g., R.F. Laf-
9
In support of its argument, Grayson cites to another case involving
Derivium, In re Derivium Capital, LLC, 380 B.R. 407 (Bankr. D.S.C.
2006), in which the court declined to apply in pari delicto to claims
against Derivium insiders who allegedly acted adversely to Derivium’s
interest. The bankruptcy court appropriately distinguished that case from
this one, underscoring that those claims were against a Derivium insider,
whereas here, the claims are against a third party. In re Derivium Capital,
LLC, C/A No. 5-15042-JW, Adv. Pro. No. 07-80119-JW at 5–6 (June 10,
2008).
20 In Re: DERIVIUM CAPITAL LLC
ferty, 267 F.3d at 359 ("The general principle of the ‘sole
actor’ exception provides that, if an agent is the sole represen-
tative of a principal, then that agent’s fraudulent conduct is
imputable to the principal regardless of whether the agent’s
conduct was adverse to the principal’s interests."); 9 NOR-
TON BANKR. L. & PRAC. 3d § 174:36 ("The adverse inter-
est exception . . . is usually qualified or limited by the ‘sole
actor rule.’ Under this rule, . . . where a ‘sole actor’ clearly
dominates the principal, or ‘where the principal and agent are
one and the same,’ the acts and knowledge of the agent will
nonetheless be imputed to the principal . . . even if the agent
is acting adverse to the principal.").
Although it does not appear as if the South Carolina
Supreme Court has addressed the relationship between the
sole actor rule and the adverse interest exception, as the bank-
ruptcy court explained, the sole actor rule is a well-established
principle of agency law. In re Derivium Capital, LLC, C/A
No. 5-15042-JW, Adv. Pro. No. 07-80119-JW at 7 (June 10,
2008) (citing Curtis, Collins & Holbrook Co. v. United States,
262 U.S. 215, 222 (1923) (charging a company with the
knowledge of its agent "because he was the sole actor for the
company" engaged in the misconduct)); see also Grassmueck
v. Am. Shorthorn Ass’n, 402 F.3d 833, 838 (8th Cir. 2005);
Mediators, Inc. v. Manney (In re Mediators, Inc.), 105 F.3d
822, 827 (2d Cir. 1997); Matanuska Valley Bank v. Arnold,
223 F.2d 778, 781 (9th Cir. 1955). The rationale underpinning
this rule is that "the sole agent has no one to whom he can
impart his knowledge, or from whom he can conceal it, and
that the corporation must bear the responsibility for allowing
an agent to act without accountability." R.F. Lafferty, 267
F.3d at 359.
Here, Grayson’s complaint alleged that Derivium’s owners
completely controlled Derivium and operated the 90% Stock-
Loan Program. Specifically, the complaint alleged that "all of
[the] entities and all of [the] accounts were controlled by
Derivium’s Owners," and that, regarding the 90% Stock-Loan
In Re: DERIVIUM CAPITAL LLC 21
Program, all of the "representations crafted and disseminated
by the Derivium Owners were gross lies" because "Derivi-
um[’s] Owners simply took the stock that they received as
collateral and sold it." J.A. 369; 380. Therefore, even under
the facts as Grayson alleged them, the Derivium owners were
"sole actors."
Accordingly, their actions can be imputed to Derivium. The
district court therefore did not err in affirming the bankruptcy
court’s ruling that in pari delicto bars Grayson’s tort claims
against Wachovia.
VI.
For the reasons stated above, we affirm the judgment of the
district court.
AFFIRMED