Dees et al v. Colonial BancGroup, Inc. et al (LEAD)

Filing 278

OPINION AND ORDER denying 228 Motion to Extend Automatic Stay. Signed by Honorable Myron H. Thompson on 1/7/2010. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION In re COLONIAL BANCGROUP, INC. SECURITIES LITIGATION ) ) ) CIVIL ACTION NO. 2:09cv104-MHT (WO)

OPINION AND ORDER In this lawsuit brought by the lead plaintiff

"pursuant to Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. § 78j(b) and 78t(a), and Rule lOb-5 promulgated thereunder by the SEC. 17 C.F.R.

§ 240.lOb-5," Consol. Am. Compl. at ¶ 10 (Doc. No. 134), the `underwriter defendants' move to extend the automatic stay provisions under 11 U.S.C. § 362(a) of the

Bankruptcy Code beyond defendant Colonial BancGroup, Inc. to all the parties in the suit. This motion is supported

by statements submitted by the `officer defendants,' the `director defendants,' LLP. A and hearing defendant was held on

PricewaterhouseCoopers

November 18, 2009, during which each of the parties

addressed the propriety of an extension in light of Colonial BancGroup's bankruptcy. submissions and arguments, the Based on the parties' court finds that an

extension of the automatic stay to the entire case is unwarranted and the underwriter defendants' motion should be denied. A. Judicial Authority to Stay Proceedings: Courts have the power to stay a case when doing so will promote judicial economy and will not result in undue prejudice to any of the parties. See Landis v. North American Co., Consequently, a stay may be

299 U.S. 248, 254 (1936).

authorized "simply as a means of controlling the district court's docket and of managing cases before the district court." Inc., Ortega Trujillo v. Conover & Co. Communications, F.3d 1262, 1264 (11th Cir. 2000) (citing In the

221

Clinton v. Jones, 520 U.S. 681, 707 (1997)).

bankruptcy context, as provided by 11 U.S.C. § 362(a)(1) of the Bankruptcy Reform at Act of 1978, a stay is or

automatically

entered

"the

commencement

2

continuation ... of a judicial ... action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title." Proceedings against Colonial BancGroup were formally stayed when it voluntarily sought relief under Chapter 11 on August 25, 2009. At issue is whether the court should

extend this automatic stay to the underwriter defendants, the officer defendants, the director defendants, and defendant PricewaterhouseCoopers, as non-debtor parties. B. "Unusual Circumstances" Justifying an Extension of the Stay: generally non-debtor The automatic stay provisions of § 362(a) do not operate to stay e.g., claims American against Prairie

defendants.

See,

Const. Co. v. Hoich, 560 F.3d 780, 789 (8th Cir. 2009) ("It is well-established that stays pursuant to § 362(a) are limited to debtors and do not encompass non-bankrupt co-defendants."); A.H. Robins Co., Inc. V. Piccinin, 788

3

F.2d 994, 999 (4th Cir. 1986) ("Subsection (a)(1) is generally said to be available only to the debtor, not third party defendants or co-defendants."). Robins held that against a court may properly However, stay the where

proceedings

non-bankrupt

co-defendants

there exist "unusual circumstances," meaning "something more than the mere fact that one of the parties to the lawsuit has filed a Chapter 11 bankruptcy must be shown in order that proceedings be stayed against non-bankrupt parties." Robins, 788 F.2d at 999 (citation omitted).

For instance, an extension of the automatic stay may be justified where "there is such identity between the

debtor and the third-party defendant that the debtor may be said to be the real-party defendant and that a

judgment against the third-party defendant will in effect be a judgment or finding against the debtor," thereby unfairly prejudicing the debtor. Id; see also Kreisler

v. Goldberg, 478 F.3d 209, 213 (4th Cir. 2007).

4

A presumption of shared identity may arise when a third-party non-debtor is entitled to absolute indemnity from the debtor, following a judicial finding of

liability.

See Robins, 788 F.2d at 999

(an extension of

the stay is appropriate where the debtor and non-debtors "are so bound by statute or contract that the liability of the non-debtor is imputed to the debtor by operation of law."); see also In re Stewart, 329 B.R. 910, 914-915 (Bankr. M.D. Ga. 2005) (Hershner, J.) (observing that unusual circumstances may exist where a third party

defendant is entitled to indemnity from the debtor); In re Philadelphia Newspapers, LLC, 407 B.R. 606, 616 (E.D. Pa. 2009) (Robreno, J.) (finding unusual circumstances for extending a § 362(a) stay "because the Debtors owe potential contractual and common law duties to indemnify the Non-Debtors, [so that] the interests of the Debtors and Non-Debtors ... are identical"). The underwriter defendants, the officer defendants and the director defendants assert that, because they

5

have indemnity agreements with Colonial BancGroup, they should receive the benefits of a stay. The defendant

groups each cite to a recent case from the Southern District of Alabama, which affirmed that an indemnity agreement indicates an "identity of interests" between the non-debtor defendants and the corporate debtor such that a judgment against the defendants would amount to a judgment against the debtor: Gulfmark Offshore, Inc. v.

Bender Shipbuilding & Repair Co., Inc., 2009 WL 2413664 at *3 (S.D. of Ala. the 2009) (Steele, J.) (granting to an

extension

automatic

stay

non-debtor

defendants).

The court in Gulfmark further remarked that

these are "exactly the kind of `unusual circumstances' ... that warrant an extension of the automatic stay ...." Id. In response, the lead plaintiff argues that the indemnity agreement cited by the defendant groups "is irrelevant to the issue of whether the ... Defendants should share the benefit of the automatic stay with

6

Colonial."

Pl.'s

Stmt.

at

2

(Doc.

No.

231).

Highlighting the historical disfavor with which courts have viewed indemnification agreements in securities

suits, the lead plaintiff contends that allowing the defendant groups to gain from the debtor's automatic stay provision only "undermines the deterrent effects of the securities law," id., and prevents injured investors from obtaining adequate compensation. Id. at 8 (the

"overriding purpose of Congress in enacting Section 11 of the Securities Act was not so much to impose liability for the benefit of investors ... but rather to stimulate diligence on the part of those persons who are actually responsible for the preparation of registration

statements") (quoting Globus v. Law Research Serv., Inc., 418 F.2d 1276, 1288 (2nd Cir. 1969) (citations omitted)). In Globus, the Second Circuit Court of Appeals denied an underwriter's appeal seeking indemnity from the

issuing corporation where the defendant had committed fraud, finding that such indemnification would negate the

7

"in

terrorem"

effect

of

civil

liability

and

thwart

Congress' intent to prevent violations of the Securities Act. 418 F.2d at 1288. Here, the lead plaintiff does

not allege willful violations of the securities laws, but only negligent misconduct on the part of all defendants. Consol. Am. Compl. at ¶ 364. However, after Globus, many

courts have refused to uphold indemnity agreements in securities cases, even where the defendants engaged in negligent, rather than intentional, misconduct. Pl.'s

Stmt. at 9 (citing Odette v. Shearson, Hammill & Co., 394 F. Supp. 946, 956 (S.D.N.Y. 1975) (Carter, J.); In re Crazy Eddie Sec. Litig., 740 F. Supp. 149, 151 (E.D.N.Y. 1990) (Nickerson, J.)); see also Eichenholtz v. Brennan, 52 F.3d 478, 485 (3rd Cir. 1995) ("The public depends upon an underwriter's investigation and opinion, and it relies on such opinions when investing. for indemnification would encourage Denying claims underwriters to

exhibit the degree of reasonable care required by the 1933 and 1934 Acts."); Laventhol, Krekstein, Horwath &

8

Horwath v. Horwitch, 637 F.2d 672, 676 (9th Cir. 1980) ("[P]ermitting indemnity would undermine the statutory purpose of assuring diligent performance of duty and deterring negligence."). The Seventh Circuit Court of

Appeals has suggested that indemnity may be unavailable even when the party seeking relief is factually innocent of the securities violation. King v. Gibbs, 876 F.2d

1275, 1282 fn. 10 (7th Cir. 1989) ("It is difficult to see how a right to indemnification for even innocent persons would serve the deterrent function which

underlies the statute."). The charged underwriter with defendants counter may that a party seek

securities

violations

always

indemnity if it successfully defends the case on the merits. Credit Underw. Defs.' Reply at 3 (Doc. No. 251) (citing Suisse First Boston, LLC v. Intershop

Communications AG, 407 F. Supp. 2d 541, 548 (S.D.N.Y. 2006) (Holwell, J.) ("[I]n the view of the SEC, the policies underlying the securities laws are not offended

9

by indemnification by the issuer where the indemnitee has successfully defended itself on the merits."); Greenwald v. Am. Medcare Corp., 666 F. Supp. 489, 493 (S.D.N.Y. 1987) (Leisure, J.)). The underwriter defendants

maintain that they fully expect to prevail in this suit and that the lead plaintiff has failed to explain why the indemnification agreement could not be upheld if all defendant do succeed.1 Underw. Defs.' Reply at 3.

Furthermore, the defendant groups assert that even a finding of negligence does not automatically preclude indemnity. Id. at 4-5 (citing Credit Suisse, 407 F.

Supp. 2d at 547 fn. 1 (noting that indemnity may be

1. The lead plaintiff argues that even if the underwriter defendants are successful in defending the claims against them on the merits, "it is almost certain" that, after the bankruptcy, the Colonial estate will have no assets left against which any defendant could assert an indemnification claim, rendering the indemnification argument irrelevant to the motion for an extension of the automatic stay. Pl.'s Stmt. at 9 fn. 5. The underwriter defendants reply, and the court agrees, that the state of Colonial BancGroup's financial situation post-bankruptcy is speculative and should not be relied upon in determining the applicability of the stay. Underw. Defs.' Reply at 3 fn. 2. 10

permissible where the indemnitor is significantly more liable than the indemnified party); Fromer v. Yogel, 50 F. Supp. 2d 227, 237-38 (S.D.N.Y. 1999) (Scheindlin, J.) ("The Second Circuit has suggested that indemnity claims under the Exchange Act may proceed where the wrong

committed by those seeking indemnity is no greater than ordinary negligence.")); see also Greenwald, 666 F.Supp. at 493 ("[The defendant] is entitled to an opportunity to prove that he was without fault and is therefore entitled to indemnity."). However, despite the evidence presented by the

defendant groups, the majority of the federal courts of appeals is in favor of limiting the availability of indemnity in securities suits. As the underwriter

defendants themselves point out, those courts that have allowed indemnity claims to proceed have required that a non-debtor prove it was either not at fault or that the debtor was substantially more at fault than the party to be indemnified--a heavy burden of proof. And while the

11

defendant groups rely substantially on Gulfmark in support of their motion to extend the stay, the Southern District of Alabama case involved the breach of a shipbuilding contract rather than a securities action, a distinction that clearly necessitates different judicial and policy analyses. The enforceability of indemnity agreements in

securities suits may not be a settled question, but the judicial zeitgeist seems to steer away from this kind of corporate restitution. of Appeals has not Though the Eleventh Circuit Court directly addressed the issue of

indemnification in securities suits, it has expressed general agreement with the Globus line of cases, holding that "indemnification of participants would undermine a primary goal of securities legislation--i.e., to encourage diligence and discourage In re negligence in securities Securities

transactions."

HealthSouth

Corp.

Litigation, 572 F.3d 854, 861 (2009). Nonetheless, while the direction of the law points against indemnity, this court need not decide the issue.

12

More convincing is the fact that, in the hearing held in November 2009, Colonial BancGroup (the entity that would arguably be prejudiced absent a stay) represented that it did not oppose proceeding with the securities lawsuit. See Sunbeam Securities Litigation, 261 B.R. 534, 537 (S.D. Fla. 2001) (Middlebrooks, J.) (finding an absence of unusual circumstances where the debtor "takes no position with respect to [extending the stay], and does not seek a stay for the non-debtor defendants"). court emphasized that an extension In Sunbeam, the of the stay was

unnecessary where the debtor attested that proceeding would not prejudice its Chapter 11 reorganization efforts. Id. See also McCartney v. Integra Nat. Bank North, 106 Similarly, Colonial BancGroup

F.3d 506 (3rd Cir. 1997).

does not claim that an extension of the automatic stay is necessary to aid in its reorganization. Therefore, this

case does not present the kind of unusual circumstances that warrant an extension of the automatic bankruptcy stay under § 362(a).

13

C. Implementing a Stay Based on Inherent Judicial Powers : In the alternative, the defendant groups and

defendant PricewaterhouseCoopers request that the court "exercise its inherent powers to stay this case at least until such time as the bankruptcy court has sufficient opportunity to determine whether to lift the stay as to Colonial." Dir. Defs.' Stmt. at 8 (Doc. No. 227) (citing

Gulfmark, 2009 WL 2413664 at *4; Clinton, 520 U.S. at 706 (1997); Kreisler, 478 F.3d at 215 ("[T]he bankruptcy court under its comprehensive jurisdiction ... has the inherent power of courts under their general equity powers and in the efficient management of their dockets ... to grant a stay.") (citations omitted)). PricewaterhouseCoopers

argues that an assessment of liability under § 10(b) of the Securities and Exchange Act of 1934 and § 11 of the Securities Act of 1933 will necessarily "involve common issues of law and fact as to all parties." Stmt. 2. at 6 (Doc. No. 230) (emphasis Def. Pricew.'s in original).2

PricewaterhouseCoopers does not address the issue (continued...) 14

Consequently,

PricewaterhouseCoopers

asserts

that

proceeding with this lawsuit may heighten the risk of duplicative resources, outcomes. discovery, and Id. increase the expenditure in the of

potentially at 6-7.

result

inconsistent underwriter

Similarly,

defendants contend that "The potential liability of both the Underwriter Defendants and Colonial is inextricably interwoven ... [and] it would be extraordinarily

inefficient and unduly prejudicial to the Underwriter Defendants if this Court were to allow Plaintiff[] to proceed while the claims against Colonial are stayed." Underw. Defs.' Reply at 2. Unsurprisingly, the lead plaintiff argues it will be prejudiced by a stay, as delay will heighten the risk that

2. (...continued) of an automatic stay under the Bankruptcy Code, presumably because it is not eligible to benefit from an extension of the stay as an external third-party without an indemnification agreement with Colonial BancGroup. Pl.'s Stmt. at 11 fn. 4. ("PricewaterhouseCoopers has no valid argument that the unusual circumstances exception [under § 362(a)] applies to it, because it meets none of the criteria."). 15

evidence

will

be

lost

or

destroyed

during

Colonial

BancGroup's reorganization.

Pl.'s Stmt. at 18 (citing

Austin v. Unarco Industries, Inc., 705 F.2d 1, 5 (1st Cir. 1983) (denying the benefit of an automatic stay to nondebtor co-defendants due to the risk of losing crucial witnesses and evidence); Dental Ben. Mgmt., Inc. v. Capri, 153 B.R. 26, 29 (E.D. Penn. and 1992) (Dittier, J.)

("[E]quity,

convenience

economy

favor

proceeding

without [the debtor]. ... To put everything off will only delay any recovery that [the plaintiff] might receive. In addition, during the delay there is the chance that memories will fade and evidence will disappear.")). This court acknowledges it has the discretion to stay the proceedings as a matter of fairness and judicial economy; however, it chooses not to do so at this time. First and most importantly, pursuant to the Private

Securities Litigation Reform Act of 1995, 15 U.S.C. § 77z-(1)(b)(I) and 15 U.S.C. § 78u-4(b)(3)(B), and an order entered on May 8, 2009, the court has already stayed all discovery pending resolution of the pending dismissal 16

motions.

Order (Doc. No. 123).

(Indeed, the court

recently denied the lead plaintiff's request to lift the stay of discovery. Opinion and Order (Doc. No. 269).)

Second and as a result, the only aspect of this case that is going forward is the briefing and resolution of these motions, and, because the group defendants and

PricewaterhouseCoopers have already filed their briefs, the only briefing left is that from the lead plaintiff and any replies the group defendants and

PricewaterhouseCoopers may wish to file.

Thus, even the

initial non-discovery aspect of this case is almost over, with the result that, if the dismissal motions have merit as all defendants contend, this case is on the tip of being over. It makes no sense whatsoever to stay non-

discovery proceedings at this time. Of course, should the relationship between these proceedings and the bankruptcy case change such that the continuance of these proceedings in any aspect would have some detrimental effect on the bankruptcy case or would

17

otherwise be impractical, any party may seek a full or partial stay of these proceedings at that time. *** Accordingly, it is ORDERED that the underwriter

defendants' motion to extend automatic stay (Doc. No. 228) is denied. DONE, this the 7th day of January, 2010. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE