I previously featured (here) a 2018 4th Circuit decision that discussed reverse veil-piercing under Delaware law. In 2017, a California court provided its own trenchant analysis of reverse veil-piercing and how that remedy relates to a charging order against an LLC member’s distributional interest.
The judgment creditor plaintiff in Curci Investments, LLC v. Baldwin, 14 Cal.App.5th 214 (2017) won a $7.2M judgment against a prominent real estate developer. In post-judgment discovery, the creditor learned the developer was sheltering his assets in an LLC; an entity through which he also loaned over $40M to family members and partnerships in the years leading up to the judgment.
The trial court denied the creditor’s motion to “reverse pierce” and hold the LLC responsible for the judgment. The court reasoned that reverse-piercing was not a recognized remedy in California. The creditor appealed.
First, the court noted, under California law, a judgment creditor can move to modify a judgment to add additional judgment debtors. See Cal. CCP 187.
The court then stressed that an LLC’s legal separation from its members may be disregarded where the LLC is utilized to “perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose.”
In such circumstances, the acts of the LLC will be imputed to the individual members or managers who dominate the LLC. Under this alter-ego doctrine, individuals or other entities cannot abuse the corporate form to commit a fraud or elude creditors.
The appeals court broke with the trial judge and held that California recognizes “outside reverse veil piercing.” This applies where a third-party creditor tries to satisfy an individual’s debt by attaching assets of an entity controlled by that individual.
The reasons typically given by courts that decline to reverse pierce are discouraging creditor’s from bypassing standard judgment collection protocols, the protection of innocent shareholders and preventing the use of equitable remedies where legal theories or remedies are available.
Here, however, those policy concerns weren’t present.
First, the court noted that unlike in the corporate debtor context – where a creditor can step into a shareholder’s shoes and obtain shares, the right to vote and to dividends – a creditor’s rights against an LLC member are limited.
With an LLC, a plaintiff can only get a charging order against the LLC member’s distributional interest. The member remains an LLC member and keeps all of his/her rights to manage and control the LLC.
And since the individual defendant in Curci retained complete control to decide if and when LLC distributions would be made, the charging order was an illusory remedy.
This last point was blinding in light of the evidence that the defendant caused the LLC to distribute nearly $180M in the six years leading up to the judgment and no distributions had been made in the five years after the judgment.
The Court further distinguished the charging order remedy from reverse piercing in that the former only affixes to an LLC member’s distributional interest while the latter remedy reaches the LLC’s assets; not the individual member’s. [7]
Second, there was no possibility that an innocent shareholder would be harmed. This was because the judgment debtor owned a 99% interest in the LLC. (The 1% holder was the debtor’s wife who, under California community property laws, was also liable for the debt owed to the plaintiff.)
Lastly, there was no concern of the plaintiff using reverse-piercing to circumvent legal remedies like conversion or a fraudulent transfer suit. The court found that burdening the creditor with showing the absence of a legal remedy would sufficiently protect against indiscriminate reverse piercing.
Afterwords:
While Curci presents an extreme example of an individual using the corporate form to elude a money judgment, the case illustrates the clear proposition that if an individual judgment debtor is using a business entity to shield him/herself from a judgment, the court will reverse pierce and hold the sheltering business jointly responsible with the individual for a money judgment.
The case should be required reading for any creditor’s rights practitioners; especially on the West Coast.
