Ralph Janvey v. Golf Channel, Incorporated , 834 F.3d 570 ( 2016 )

Case: 13-11305 Document: 00513646478 Page: 1 Date Filed: 08/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2016
No. 13-11305
Lyle W. Cayce
Clerk
RALPH S. JANVEY, In His Capacity as Court Appointed Receiver for the
Stanford International Bank Limited, et al; OFFICIAL STANFORD
INVESTORS COMMITTEE,
Plaintiffs – Appellants;
v.
THE GOLF CHANNEL, INCORPORATED; TGC, L.L.C., doing business as
Golf Channel,
Defendants – Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before ELROD and SOUTHWICK, Circuit Judges. *
PER CURIAM:
Stanford International Bank, Limited paid $5.9 million to The Golf
Channel, Inc., in exchange for a range of advertising services aimed at
recruiting additional investors into Stanford’s multi-billion dollar Ponzi
scheme. 1 After the scheme was uncovered by the SEC and the district court
seized Stanford’s assets, the court-appointed receiver filed suit under the
* This opinion is being entered by a quorum of this court. 28 U.S.C. § 46(d).
1 The factual background of this case is laid out in more detail in our two previous
opinions. See Janvey v. Golf Channel, Inc. (Golf Channel II), 792 F.3d 539 (5th Cir. 2015),
vacating Janvey v. Golf Channel, Inc. (Golf Channel I), 780 F.3d 641 (5th Cir. 2015).
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No. 13-11305
Texas Uniform Fraudulent Transfer Act (TUFTA) to recover the $5.9 million
paid to Golf Channel. The district court granted Golf Channel’s motion for
summary judgment, having determined that although Stanford’s payments
were fraudulent transfers under TUFTA, Tex. Bus. & Com. Code
§ 24.005(a)(1), Golf Channel had established the affirmative defense that it
received the payments “in good faith and for a reasonably equivalent value,”
id. § 24.009(a).
We initially reversed the district court’s judgment, reasoning based on
the text of TUFTA, the comments in the Uniform Fraudulent Transfer Act
(UFTA), and our binding precedent that the payments to Golf Channel were
not for “value” because Golf Channel’s advertising services could only have
depleted the value of the Stanford estate and thus did not benefit Stanford’s
creditors. Golf Channel I, 780 F.3d at 646; see Bus. & Com. § 24.004(a).
Subsequently, in response to the view in Golf Channel’s petition for rehearing
that the Supreme Court of Texas might not share our reading of TUFTA, we
vacated our opinion in Golf Channel I and certified the following question to
the Supreme Court of Texas:
Considering the definition of “value” in section 24.004(a) of the
Texas Business and Commerce Code, the definition of “reasonably
equivalent value” in section 24.004(d) of the Texas Business and
Commerce Code, and the comment in the Uniform Fraudulent
Transfer Act stating that “value” is measured “from a creditor’s
viewpoint,” what showing of “value” under TUFTA is sufficient for
a transferee to prove the elements of the affirmative defense under
section 24.009(a) of the Texas Business and Commerce Code?
Golf Channel II, 792 F.3d at 547.
The Supreme Court of Texas has now answered the question. Janvey v.
Golf Channel, Inc. (Golf Channel III), 487 S.W.3d 560 (Tex. 2016). Golf
Channel III instructed that:
TUFTA’s “reasonably equivalent value” requirement can be
satisfied with evidence that the transferee (1) fully performed
2
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under a lawful, arm’s-length contract for fair market value,
(2) provided consideration that had objective value at the time of
the transaction, and (3) made the exchange in the ordinary course
of the transferee’s business.
Id. at 564. As for determining whether consideration “had objective value at
the time of the transaction,” Golf Channel III elaborated that the transfer must
have “confer[red] some direct or indirect economic benefit to the debtor.” Id.
at 574. The opinion clarified that the “value” inquiry under TUFTA does not
depend on “whether the debtor was operating a Ponzi scheme or a legitimate
enterprise,” 2 so long as “the services would have been available to another
buyer at market rates” had they not been purchased by the Ponzi scheme. Id.
at 581, 570. Golf Channel III noted that consideration—especially in the form
of consumable goods or services—can have objective value “even if the
consideration neither preserved the debtor’s estate nor generated an asset or
benefit that could be levied to satisfy unsecured creditors.” Id. at 577.
Applying these principles to this case, the Supreme Court of Texas
determined that “Golf Channel’s media-advertising services had objective
value and utility from a reasonable creditor’s perspective at the time of the
transaction, regardless of Stanford’s financial solvency at the time.” Id. at
581–82. This was so, the court explained, because “had Stanford not purchased
Golf Channel’s television air time, the services would have been available to
another buyer at market rates.” Id. at 570. Accordingly, the transfer was for
“value” as viewed from the reasonable creditor’s perspective, even if the
advertising services “only served to deplete Stanford’s assets” “[b]ecause
2The Supreme Court of Texas noted that “value” may not exist under TUFTA where
the consideration itself is illegal and left open the possibility that the debtor’s status as a
Ponzi scheme might impact whether the transferee took “in good faith.” Golf Channel III,
487 S.W.3d at 581. Neither of those two points is disputed in this appeal.
3
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acquiring new investors . . . ultimately extends the Ponzi scheme.” Id. at 578,
582.
The Supreme Court of Texas’s answer interprets the concept of “value”
under TUFTA differently than we have understood “value” under other states’
fraudulent transfer laws and under section 548(c) the Bankruptcy Code. See
Golf Channel III, 487 S.W.3d at 573 (“Uniformity is a stated objective of the
statute, but TUFTA is unique among fraudulent-transfer laws because it
provides a specific market-value definition of ‘reasonably equivalent value.’”).
For example, applying Washington’s UFTA statute, we have held that services
that furthered a Ponzi scheme were not for “value” as a matter of law because
“[t]he primary consideration in analyzing the exchange of value for any
transfer is the degree to which the transferor’s net worth is preserved.”
Warfield v. Byron, 436 F.3d 551, 560 (5th Cir. 2006). Similarly, under section
548(c) of the Bankruptcy Code, we have inquired whether the consideration
provided in exchange for a transfer conferred a tangible economic benefit on
the debtor, not whether the consideration (in that case, airplane fuel—a
consumable good) had objective value in the abstract. Butler Aviation, Int’l,
Inc. v. Whyte (In re Fairchild Aircraft Corp.), 6 F.3d 1119, 1125–27 (5th Cir.
1993), abrogated on other grounds by In re Dunham, 110 F.3d 286, 288–89 (5th
Cir. 1997); see also In re Randy, 189 B.R. 425, 441–42 (Bankr. N.D. Ill. 1995)
(holding, under section 548(c) of the Bankruptcy Code, that broker services
provided to a Ponzi scheme had no value as a matter of law because recruiting
new investors into the scheme “would only exacerbate the harm to the debtor’s
creditors”). 3
3In this case, “Golf Channel put forward no evidence that its advertising services
preserved the value of Stanford’s estate” or otherwise economically benefitted Stanford’s
creditors, even when examined at the time of the transaction. Golf Channel II, 792 F.3d at
545.
4
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The binding effect of these prior decisions in their respective areas of law
remains unaffected by Golf Channel III. Mercado v. Lynch, 823 F.3d 276, 279
(5th Cir. 2016) (reciting the rule of orderliness). When interpreting a federal
statute or a statute from a different state, “we are not bound by a state court’s
interpretation of a similar—or even identical—state statute.” Johnson v.
United States, 559 U.S. 133, 138 (2010). As for this case, the Supreme Court
of Texas is the authoritative interpreter of TUFTA and we are bound by its
answer to our certified question when applying that statute. We consequently
AFFIRM the district court’s grant of summary judgment for Golf Channel. 4
4 In their post-Golf Channel III brief to our court, the appellants seek judgment in
favor of the Receiver on the ground that, before our court, Golf Channel forfeited any
argument that the $5.9 million transfer satisfied an antecedent debt. See Golf Channel II,
792 F.3d at 546 n.7. They characterize the Supreme Court of Texas as having held that a
fraudulent transfer in exchange for services is for “value” only if it satisfied a valid antecedent
debt. TUFTA provides that a transfer in exchange for which “an antecedent debt is secured
or satisfied” is a transfer for “value,” Bus. & Com. § 24.004(a), and Golf Channel III
referenced this provision in explaining why Golf Channel’s advertising services had “value,”
487 S.W.3d at 575 n.82, 576, 582. However, the Supreme Court of Texas was clear that
section 24.004(a)’s enumeration of transfers that are for value is “nonexclusive,” Golf Channel
III, 487 S.W.3d at 574, and offered its antecedent-debt theory of “value” in this case only in
the alternative, id. at 582 (“Moreover, as services were fully performed, each payment also
had value under TUFTA by extinguishing claims against the estate for the value of those
services.” (emphasis added)). Golf Channel’s forfeiture of the point is therefore not fatal to
its position.
5