A Delaware chapter court docket not too long ago held that Texas’s “belief fund doctrine” stays relevant for corporations that haven’t availed themselves of Texas’s formal dissolution course of. Nonetheless, fiduciary claims by a chapter 7 debtor had been dismissed as a result of the debtor failed to claim such claims derivatively.
After a 2015 transaction between Our Alchemy, LLC (“Our Alchemy”) and ANConnect, LLC (“ANConnect”) resulted in litigation, Our Alchemy filed for chapter 7 chapter in Delaware. Its trustee then filed an adversary continuing in opposition to ANConnect and its managers for fraudulent transfers of ANConnect’s property and related breaches of fiduciary duties. The transfers at problem occurred whereas ANConnect was winding down operations. In re: Our Alchemy, LLC, 16-11596 (JTD), 2022 WL 2309796, at *1 (Bankr. D. Del. June 27, 2022).
ANConnect moved to dismiss, arguing the claims had been time barred and Our Alchemy lacked standing. The court docket granted partially and denied partially (as factually dependent) ANConnect’s movement with respect to the statute of limitations.
As to standing, Our Alchemy relied on Texas’s belief fund doctrine (the “Doctrine”). Our Alchemy argued that beneath the Doctrine, “standing exists for collectors of a Texas company (and by extension an LLC) to sue officers and administrators for breach of fiduciary obligation when an entity is bancrupt and ceases enterprise operations.” The Doctrine is an equitable treatment “established principally to allow a court docket of fairness to marshal and distribute an organization’s property upon its insolvency and dissolution in a lot the identical means as would a contemporary chapter court docket.”
ANConnect responded that the Doctrine “has been supplanted by Texas statutory regulation.” The court docket disagreed.
The court docket analyzed a Texas Supreme Courtroom opinion from 1981, which “acknowledged that starting in 1879, the Texas legislature started enacting remedial statutes that embodied the belief fund doctrine.” Id. at *7 (discussing Hunter v. Fort Value Capital Corp., 620 S.W.second 547 (Tex. 1981)).
Underneath these remedial statutes, the legislature had given collectors of a dissolved company ‘the identical broad measure of reduction which fairness would have afforded within the absence of laws. . . . The impact of those statutes was to supplant the equitable belief fund principle by declaring a statutory equal. In Texas, recognition of the belief fund principle, as utilized to dissolved firms, didn’t exist other than these statutes.
Id. Regardless of the Texas Supreme Courtroom’s rationalization, quite a few Texas state courts and federal courts making use of Texas regulation have continued to acknowledge the Doctrine. How does one treatment the seeming incongruity?
The court docket answered that, per the Texas Supreme Courtroom, “the statutory enactments supplanted the belief fund doctrine ‘as utilized to dissolved firms,’” however the Doctrine nonetheless applies “until an organization has undertaken the [statutory] technique of dissolution.” “To carry in any other case could be essentially unfair to the collectors of an organization that ceases enterprise operations, distributes its property to its shareholders or members however by no means seeks the safety of dissolution” (which obligates an organization to deposit funds to cowl all liabilities with the Texas Secretary of State).
As a result of Our Alchemy didn’t allege that ANConnect filed for dissolution in accordance with Texas regulation, the Doctrine nonetheless utilized. Nonetheless, Our Alchemy introduced solely direct, and never spinoff, fiduciary obligation claims. And because the Fifth Circuit acknowledged in In re Mortgage America Corp., if an motion is to be introduced beneath the Doctrine, “it should be introduced on behalf of all these equally located. [A] single creditor, performing by itself behalf, doesn’t have standing.” 714 F.second 1266, 1271 (fifth Cir. 1983). Thus, the “failure of [Our Alchemy’s] Trustee to carry the claims derivatively [was] deadly to the Trustee’s standing argument,” and Our Alchemy’s fiduciary claims had been dismissed.
Usually, plaintiffs like Our Alchemy might amend their grievance to treatment the pleading deficiency acknowledged by the court docket. Nonetheless, Our Alchemy devoted only a single footnote to requesting go away to amend, and provided no substantive argument. Accordingly, the court docket denied Our Alchemy’s request for go away as procedurally improper.
