Bank battles liability for client's pyramid scheme

The federal district court in Massachusetts has continued in recent months to resist Bank of America efforts to extricate itself from allegations of complicity in a pyramid scheme.

The liability theory working against Bank of America (BoA) in the Massachusetts litigation is a theory of ancillary, or secondary, liability.  I'm fond of ancillary liability theories, which put on the hook not just the actor that most directly injured a plaintiff, but the actor's compatriots.

MLM
by Zainabdawood77 via Wikimedia Commons CC BY-SA 4.0

The myriad ways an injured plaintiff can add defendants to a civil claim improve the plaintiff's odds of recovery. So it behooves the plaintiff attorney to think creatively about ancillary liability. Correspondingly, it behooves the defense attorney to be on guard.

A plaintiff can be especially in need of better odds when a principally responsible defendant acted criminally, because criminal defendants tend to come up short on money to right wrongs. Ancillary liability theories in cases of financial crime are especially compelling, because perpetrators of fraud, before they're apprehended, tend to live large on their proceeds and then declare bankruptcy.

Think Bernie Madoff. His wild ride merited a thrilling fictionalization starring Richard Dreyfuss and still drives public interest with a new docuseries on Netflix. That his victims tended to be wealthy adds a sweet note of schadenfreude for American viewers, the vast majority of whom are trapped on the wrong side of the wealth gap.

That same schadenfreude thirsts for the diffusion of liability to more defendants. Plenty of corporations, namely banks and investment firms, and their directors and officers, leached wealth off schemes such as Madoff's, but bear no liability to victims. Ostensibly, these earners did nothing wrong. They merely engaged in lawful business.

Overlay that dynamic on financial opportunism that victimizes ordinary people, and the thirst for accountability becomes about more than schadenfreude. Financial disasters such as the savings-and-loan crisis of the 1980s and the housing crisis of 2008 infused the public with burning resentments that still smolder in the wreckage of the American dream.

In these crises, people were victimized by risks that enterprise externalized while providing no corresponding benefits. When the civil justice system fails to recognize a wrong in the infliction of such losses, we can expect the very insults to the social fabric that the system is supposed to prevent: more wrongdoing, diminished confidence in public institutions, and, ultimately, vigilantism by the afflicted.

Ancillary liability rides to the rescue. Two liability theories are especially useful in cases of financial fraud: "conspiracy" and "aiding and abetting." Those imprecise terms are useful to convey the essence of it, but the civil theories should not be confused with their criminal counterparts, which give rise to the terms.

More accurate descriptions in civil terminology are, respectively, "common design" and "substantial assistance or encouragement." When a principal defendant cannot be held to account, a plaintiff may demand compensation from a co-defendant that participated in a tortious common design with the principal, or from a co-defendant that knowingly substantially assisted or encouraged the principal in accomplishing a tortious objective.

The availability of conspiracy and aiding-and-abetting liability theories in common law business torts is not settled and not without controversy. The commercial defense bar naturally regards theories derived from personal injury law as ill suited to business torts, in which harms are only economic. Commercial actors are expected to safeguard their own interests to some extent in commercial transactions, more than a person exposed to risk of physical injury. Compensating economic loss is not regarded as socially imperative as the making whole of injured persons. The issue offers a window into a broader debate over whether business torts are torts at all, or, rather, a form of common law market regulation. We can leave that question on the shelves of academia for now.

In multi-district litigation pending in the U.S. District of Massachusetts, plaintiffs allege that Bank of America, among other defendants, substantially assisted or encouraged a pyramid scheme, or, more precisely, a "multi-level marketing" scheme (MLM), in the provision of commercial banking services. Bank of America (BoA) vigorously denies the allegations. In August 2022, the court refused to dismiss BoA, finding the allegation of ancillary liability sufficient to warrant discovery. The court has refused to undo its ruling upon motions for reconsideration since.

The principal defendant in the case is Telexfree, a transnational company with U.S. headquarters in Massachusetts. Having started up in 2012, the multibillion-dollar enterprise was an MLM that enlisted "promoters" to sell voice-over-internet-protocol telecommunication services. For a deeper dive into the rank turpitude of MLMs, check out comedian John Oliver's classic treatment in 2016. True to form, after only a year or two, Telexfree collapsed in bankruptcy under pressure from regulators in various countries, especially the Securities and Exchange Commission in the United States and authorities in Brazil. Private civil suits followed.

There is no question that banks such as BoA literally "substantially assisted or encouraged" Telexfree in its illicit enterprise. A company, even an MLM, needs banking services. The tricky part, though, for plaintiffs successfully to allege tortious aiding and abetting, is to show the ancillary defendant's knowledge of the principal defendant's tortious objective. BoA denies that it knew what Telexfree was up to.

Such denials usually fly. Banks at least purport to do business at arm's length. That impression accords with the experience of the average consumer; we don't imagine bankers poring over our checking accounts to second-guess our spending. And there's a sound argument in public policy that banks should not be held liable for the misdoings of their clients. Imposing weighty responsibility on banks, at best, would slow down commerce, and, at worst, could render capital inaccessible, paralyzing the marketplace. 

At the same time, banks with large commercial clients, in fact, routinely do business at much less than arm's length. Banks may well scrutinize clients, indeed may be fiduciarily obliged to scrutinize clients, if their business will place large amounts of capital at risk. Accordingly, the pleadings in Telexfree indicate that BoA worked closely enough with Telexfree executives to know what they were up to.  Indeed, plaintiffs allege that at least one BoA executive voiced concern that Telexfree's business model was not legal, and evidence suggests that BoA closed at least one account for that reason.

Upon the pleadings, then, the district court ruled that BoA had enough "red flags" to know what Telexfree was up to. BoA objected, and the court conceded, that red flags do not equate to the actual knowledge required for aiding-and-abetting liability. But red flags are evidence enough to allow plaintiffs to dig deeper in discovery, the court concluded.

The ruling has caused some angst in the commercial sector, for fear of the slippery slope of bank liability. I respect the worry, but I welcome the court's fresh take and willingness to rebalance the equities in financial fraud. Madoff was a compelling curiosity, and I don't have much sympathy for his high-roller investors. But more troublesome in America are recurring financial crises that seem only to exacerbate wealth disparity. And at the transactional level, MLMs and their like continue to run rampant, defying regulators and bilking not just high rollers, but ordinary people. 

The rabble is restless, as accountability runs thin. Regulators, whether wearing black robes or bearing pointy heads, had better start noticing.

The case is In re: Telexfree Securities Litigation, No. 4:14-md-02566 (D. Mass. received Oct. 22, 2014). HT @ attorneys Anthony D. Mirenda, Leah Rizkallah, and Nick Bergara of Foley Hoag LLP, writing for Mondaq.

Privilege shields attorney from bankruptcy creditor's claim of sham proceeding to hide client's assets

mohamed hassan CC0 via PxHere

The litigation privilege shields an attorney from tort liability in the conduct of a case, the Massachusetts high court held, even if there was fraud.

The question of litigation privilege arose in connection with a bankruptcy. Creditors of a construction company alleged that its bankrupt owner had transferred assets to his wife in a sham adversarial divorce proceeding, and that their lawyer had orchestrated the plan. Besides attaching property of the debtor, the creditors sued the lawyer who had represented the debtor's wife in the divorce while the debtor appeared pro se. 

The litigation privilege protects participants in litigation, including lawyers and witnesses, from liability arising from their participation in the litigation. The privilege is often employed in defense against tort actions such as defamation and interference with contract.

The litigation privilege is better characterized as an absolute privilege, rather than a qualified privilege, though the line between the two is not always bright.  Qualified privileges usually can be vitiated by malice, whether common law "ill will" malice or actual "reckless disregard" malice.

Closer to impregnable, an absolute privilege can be vulnerable on questions of scope, but usually not on grounds of culpability. For example, the Texas Supreme Court in 2021 declined to extend the litigation privilege to protect an attorney against defamation allegations based on extra-judicial statements to media to garner pre-suit publicity for litigation by the Animal Legal Defense Fund against the commercial owner of the Houston Downtown Aquarium. The privilege failed because of the remoteness of pre-suit publicity from the litigation process, not because of the alleged scienter of the attorney.

The Supreme Judicial Court recounted the common law history of the litigation privilege.

The roots of the litigation privilege can be found in English common law, with the first reported decision dismissing an action against an attorney on the ground of the privilege issued in 1606. See Brook v. Montague ... (K.B. 1606); [T. Leigh] Anenson, Absolute Immunity From Civil Liability: Lessons for Litigation Lawyers [Pepp. L. Rev.] (2004).... In that case, an English court held that an attorney accused of slandering his client's adversary during a previous trial—by asserting that the adversary was a convicted felon—was immune from suit.... The court decided that "[a] counsellor in law retained hath a privilege to enforce any thing which is informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false."

Courts in the United States adopted this doctrine in the Nineteenth Century and frequently cited the early English cases in doing so. See, e.g., Marsh v. Elsworth ... (N.Y. Super. Ct. 1869) [citing Brook]; Mower v. Watson [Vt. 1839 (citing Buckley v. Wood (K.B. 1591))]. Over time, the scope of the doctrine has broadened. See [Paul T.] Hayden, Reconsidering the Litigator's Absolute Privilege to Defame ... (1993). Nearly every State, including Massachusetts, has adopted the formulation of the privilege set forth in the Restatement (Second) of Torts, [§ 586 (1977),] which provides:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

"The privilege applies regardless of malice, bad faith, or any nefarious motives on the part of the lawyer so long as the conduct complained of has some relation to the litigation." Anenson, supra....

The court also recounted the purpose of the privilege, to "promote[] zealous advocacy by allowing attorneys 'complete freedom of expression and candor in communications in their efforts to secure justice for their clients'" (quoting Mass. precedent). The privilege simultaneously enhances judicial efficiency by precluding "meta-litigation" (my word choice) by disgruntled adversaries. (The same argument has been used to reject civil process torts.)

The litigation is not a privilege to commit wrongs, the court cautioned. Lawyers are subject to a court's inherent authority to sanction, by which a court can compel compensation to a wronged party. And lawyers are subject to bar discipline for violating the rules of professional conduct.

In the instant case, then, the complainants were not permitted to predicate an action for fraud based on the defendant-lawyer's in-court representation of the debtor's wife in the divorce proceedings.

A closer question arose as to the defendant's potential liability for conduct outside the courtroom, what the complainants characterized as orchestration of a fraudulent scheme. But the court resisted the effort to articulate a pattern of conduct apart from the litigation or expression in the course of litigation. The court cited and followed the lead of other state high courts, holding "that the litigation privilege shields an attorney from liability for actions taken during the course of litigation." The court cited a Restatement comment articulating a broad basis for the privilege "upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients."

"The litigation privilege thus applies to [the attorney's] advice and to the services he rendered," the court concluded.

The creditors are not without remedy, the court noted, evidenced by their efforts in collateral litigation to attach debtor assets notwithstanding the bankruptcy. Moreover, the court reiterated, civil immunity "would not shield the attorney from any applicable sanction for conduct contrary to the rules of professional responsibility, nor would it suggest to other attorneys that such behavior is acceptable."

The case is Bassichis v. Flores (Mass. July 1, 2022). Justice Serge Georges, Jr. wrote the unanimous opinion.

U.S. rental car oligopoly hits new lows, as customers alleging false arrests intervene in Hertz bankruptcy

Photo by Diego Angel CC BY 3.0

A curious story of alleged false arrests and a corporate lawyer's blunder surfaced in business media earlier this month, and the story speaks to the sad state of consumer protection in America.

In December 2021, dozens of claimants filed (no. 193) in the covid-precipitated bankruptcy of Hertz, the rental car company, alleging the reporting of rental cars as stolen, resulting in false arrests of Hertz customers by police, along with the disgrace of arrest, jailing, and other life disruptions that attend felony charges.

The claims, many recounted by CBS News, allege varied circumstances precipitating the reports of stolen cars, including poor record-keeping and misunderstandings over return times, hardly the stuff of high crime.  The claimants' theory is that Hertz essentially outsourced its (mis)management of late returns to police, disregarding the dramatic mismatch between contract enforcement and criminal justice and the ruinous consequences visited on customers.

Early in January, journalist-blogger Minda Zetlin of The Geek Gap reported a verbal gaffe in court on the part of a Hertz lawyer.  Zetlin's report was picked up by a number of outlets, including Inc.  The only recent transcript on file in the case (no. 251) is "not available" on PACER, maybe because the claimants, Hertz, and CBS News are now in a tussle over sealing, the docket suggests.  Anyway, I can't verify Zetlin's report, so I'm not going to name the lawyer here.

According to Zetlin, a Big Law lawyer representing Hertz responded in court to the allegations: "It is a fraction of 1 percent of annual police reports that are filed that turn into actual litigation claims.... We actually think the number of legitimate claims that arise out of annual rentals is a tiny, tiny, tiny, tiny, tiny, tiny fraction."

Zetlin fairly observed that even a "tiny" "number ... does not count customers who were falsely arrested but accepted an early settlement from Hertz, resolved the matter in arbitration, or simply decided they didn't have the funds or the stamina for a lawsuit."  Zetlin further opined that "[m]ost [Hertz customers] would likely prefer a car rental company where their chances of going to jail are zero, rather than just tiny."  Count me in that majority.

I can't speak to the merits of the claims.  But for my part, I have been frustrated by car rental companies' shocking embrace of the contemporary trend to forego all pretense of customer service.  This skimpflation has been exacerbated by the pandemic, but we were well on our way before 2020.

Hertz, in particular, raised my ire more than once last year.  Having been lured into Hertz's "Gold" program, I once made a reservation directly on the Hertz website, rather than running my usual price comparisons with intermediaries.  Afterward, I discovered a lower rate on USAA.  But every time I was forwarded to Hertz.com to confirm the reservation at the USAA rate, I was automatically logged in to Hertz, and the rate jumped substantially.  When I tried linking to Hertz in a private window, without logging in, I got the lower rate.  In other words, Hertz was charging me substantially more because I was a member of the "loyalty program."

When I waited on hold for hours to ask a Hertz agent to log my anonymous reservation in my Gold account, I was told it couldn't be done without elevating the rate.  An agent told me that the Gold program does not guarantee lowest rates.  Actually, it does.  So much for loyalty.

Another new practice of car rental companies is to manipulate the time of pickup and drop-off to increase the likelihood of a late fee.  A customer reserving a car for pickup has to make a ballpark estimate of the time, considering how long it might take to deboard a plane, claim bags, transfer to a ground transportation center, etc.  Reservation systems offer pickups usually in only half-hour increments, 12, 12:30, 1, 1:30 etc.  So it's an inexact science, and the rental company knows that.  Accordingly, it was once common for the companies to afford an hour's grace on the clock one way or the other.  No longer.

When I picked up a car early, Hertz, without the agent saying a word, pre-charged me a late fee on the return while giving me paperwork showing the car due back at the original return time.  When I complained, Hertz said the charge would be taken off if I returned the car earlier than the indicated time, days to the minute from my actual pickup.  Yet when I rented another car and picked it up late, my return time still did not change.  The car was due back at the same time, and I just lost the hours to my late arrival.  So whether a customer is early or late for pickup, an inevitability because of deliberate inexactness, the company wins, either time or money.  No doubt the company is betting that the small loss on one rental will go unnoticed to the customer but add up big for the cumulative bottom line.

I admit, my complaints are small potatoes, mere annoyances, compared with being jailed.  But the theme that unifies my experience and that of the claimants against Hertz is Hertz's profound indifference to the customer.

So, free market, right?  Treating a customer like an entitlement is a consumer protection problem that should solve itself when a competitor comes along and offers to do better.  (Southwest's free checked bags and transparent pricing come to mind in the airline industry.)  Part of the problem is our public officials' dereliction of duty in antitrust.  The experiences I just described also characterize the policies of Dollar and Thrifty, because, guess what, they're owned by Hertz.  Likewise, Enterprise owns National and Alamo, and Avis owns Budget and Payless.  Three "beasts" account for almost all of the U.S. rental market.

Free markets only work when the playing field is level, information flows freely, and barriers of entry to the market for new competitors are surmountable. None of those conditions holds true in our car rental oligopoly.  Rather, if the claims in the bankruptcy court are to be believed, we've come to the point that a company can jail customers in case of contract dispute and hardly fear market reprisal.

Debtors' prison must be around the next corner.

The bankruptcy case is In re Rental Car Intermediate Holdings, LLC, and CBS Broadcasting Inc., No. 20-11247 (Bankr. D. Del. filed May 22, 2020).