Broker Liability in Phoenix Arizona

9th Circuit “Stern” when it comes to Fraudulent Conveyance

Posted on August 4, 2014 in Arizona Law Regarding Business Disputes

Since the U.S. Supreme Court’s opinion in Stern v. Marshall (all cites omitted) federal courts have issued differing opinions regarding the range of a bankruptcy court’s jurisdiction to enter final judgments in adversary proceedings. In Executive Benefits Insurance Agency v. Arkison, looking at Stern, the Ninth Circuit Court of Appeals held that a bankruptcy court may not enter a final judgment on a claim to avoid a fraudulent conveyance against a noncreditor to a bankruptcy estate.

The situation in the Executive Benefits decision are common of a fraudulent conveyance claim: An insolvent debtor transfers assets (insurance commissions) to a recently formed company and later files for bankruptcy. In the bankruptcy case, the chapter 7 trustee sued the transferee entity (a noncreditor) for, among other things, federal and state law preference and fraudulent transfer claims in order to recover the insurance commissions. In granting the trustee’s motion for summary judgment, the bankruptcy court found the transfers to be fraudulent and entered a final judgment for $373,000. After the district court, on appeal, affirmed the bankruptcy court’s decision, the appellant-transferee appealed to the Ninth Circuit, contesting for the first time the bankruptcy court’s authority to enter a final judgment under Stern.

On appeal, after ruling fraudulent conveyance claims do not fall within the public right exception of in Stern and in Granfinciera S.A. v. Nordberg the Ninth Circuit addressed the argument raised by several amici that bankruptcy courts can render final judgments on fraudulent transfer claims arising under the Bankruptcy Code, as distinguished from fraudulent transfers arising under state law. The Ninth Circuit slammed this position, relying upon Sternand Granfinciera, holding that the Stern court’s characterization of the holding in Granfinanciera would render Stern internally contradictory if a blanket “public right” classification applied for any claim based on federal law.

The Ninth Circuit further said that its decision created a gap in the statutory framework governing the jurisdiction of the bankruptcy courts. Specifically, although federal law authorizes bankruptcy judges to “hear and determine all cases under title 11 and all core proceedings arising under title 11,” the Constitution prohibits bankruptcy judges from entering a final judgment in core proceedings when the primary cause of action is not against a creditor to the estate.

The Ninth Circuit, having found an absence of authority for a bankruptcy court to enter a final judgment against a noncreditor on a fraudulent transfer claim, also held that § 157 permits bankruptcy courts to submit reports and recommendations to the district courts in core proceedings. The court acknowledged that this finding created a split with the Sixth Circuit, which previously held, in dicta, that bankruptcy courts cannot propose findings of facts and conclusions of law in core proceedings.

Although the Ninth Circuit found that a bankruptcy court lacked the authority to enter a final judgment in such a case, it nevertheless affirmed the district court’s opinion, holding that the defendant waived its right to an Article III hearing by litigating in the bankruptcy court without having raised any objection to that court’s jurisdiction to hear the fraudulent transfer claim. Interestingly, this holding also contradicts the Sixth Court’s Waldman opinion, in which the Court of Appeals found that a party could not waive its Article III rights.

At the law firm of William A. Miller, we take these fraudulent conveyance claims serious. We helped draft the UFTA legislation in Arizona years ago. If you need more direction in this or any other business dispute, call us at 602.319.6899 or stop by for a visit at 8170 North 86th place, suite 208 Scottsdale, Arizona 85258

EEOC- Whistleblower’s Get Ready to Blow!

Posted on June 14, 2014 in Arizona Trials

In the last few years, whistleblower claims are on the rise.  These claims now comprise 41% of the more than 93,000 discrimination charges filed in 2013, according to a February report from the U.S. Equal Employment Opportunity Commission (EEOC).  This is an increase of 28% over 10 years.  At the same time, particularly since the enactment of Dodd-Frank in 2010, the number and types of whistleblower claims alleging corporate misconduct, sometimes coupled with discrimination claims, also has proliferated.  Dodd-Frank gave claimants the ability to go directly to court, bypassing the administrative claims route, and to seek both enhanced recoveries and rewards.  Federal whistleblower law also is shifting, as seen in a series of conflicting lower court rulings and the recent U.S. Supreme Court ruling in Lawson v. FMR LLC. All of this makes litigating—and mediating—whistleblower claims a big risk. Yet, this is not all bad. There has been so much new law that by the time a case gets to court, the landscape may have changed.  This places a premium on smart, tough lawyers, awareness of evidence issues and careful consideration of likely future developments.  Both mediators and counsel should be prepared to have a detailed discussion of the law than might be expected in a typical business case.

The impact of the Lawson decision, for example, is not yet completely understood, and the decision left open many avenues.  In its Lawson ruing, the Supreme Court expanded the right to seek whistleblower protection under Sarbanes-Oxley to employees of privately held companies that contract or subcontract with public companies.  In addition, the court held that those private company employees could bring claims against their employers.  This increases the number of people who might seek whistleblower protection, but also the uncertainty about what such claims would be worth and how to value them.  Other issues either not yet addressed by the Supreme Court in Lawson or in dispute among lower courts include (1) the circumstances under which private company employees may have a claim; (2) the scope of activity protected under Sarbanes-Oxley; (3) whether, as the SEC rules assert, internal as well as external claims are covered by Dodd-Frank; and (4), at least in the District Court for the District of Columbia, whether internal investigation documents are always protected by privilege or work product doctrine.

At the Law firm of William A. Miller in Scottsdale, Arizona we are happy to give you the protection and prosecution you need after blowing the whistle! Call Bill Miller an experienced lawyer of some 26 years at 602-319-6899.

We also handle, Breach of contract, Non-compete agreements, Non-disclosure agreements, Employee theft and embezzlement, Insurance purchases and enforcement of policy coverage, Negotiation and/or enforcement of commercial leases, Negligence and gross negligence resulting in losses, Intentional acts causing a company to suffer damages, Tortious interference with contractual relationships, Unjust enrichment, Real Estate fraud, Consumer fraud, Conversion/Theft, Intentional and/or negligent misrepresentation, Business torts and Real estate title & escrow.

Z’Tejas 1 vs. Zipps 0

Posted on January 24, 2014 in Arizona Trials

What happened when a local powerhouse sports bar, http://www.zippssportsgrills.com/ sued a developer for trying to add a southwestern grill known as, http://ztejas.com/ to one of its shopping centers?

The developer fights back.

The Law Firm of William A. Miller is proud to announce the developer of the shopping center at 16th and Bethany in Phoenix, Arizona used our firm to fight this case. We are also happy to state that, we won. Patrons are now enjoying their margarita’s at Z’Tejas and Zipps is licking its wounds for filing such a case in the first place.

It was a classic war. Millions and millions in valuation and cash-flow were at stake. Zipps hired one of the top law firms in Arizona and every phone call, letter, email, pleading and the actual hearing was fought tooth-and-nail. But, in the end the Court saw through the smoke screen that Zipps had offered to stop the Z’Tejas from breaking ground and it was not long before the case was dismissed.

The case was covered in the Arizona Republic: http://www.azcentral.com/community/phoenix/articles/20130419phoenix-ztejas-location-opens-legal-battle.html

The docket can be found at: http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/caseInfo.asp?caseNumber=CV2012-006285

Feel free to call Bill Miller at 602-319-6899 if you need help in a complex case or one requires that extra effort that a big firm simply can not provide.

We also handle, Breach of contract, Non-compete agreements, Non-disclosure agreements, Employee theft and embezzlement, Insurance purchases and enforcement of policy coverage, Negotiation and/or enforcement of commercial leases, Negligence and gross negligence resulting in losses, Intentional acts causing a company to suffer damages, Tortious interference with contractual relationships, Unjust enrichment, Real Estate fraud, Consumer fraud, Conversion/Theft, Intentional and/or negligent misrepresentation, Business torts and Real estate title & escrow.

Lerner v. DMD Realty. LLC

Posted on June 10, 2013 in Arizona Law Regarding Business and Real Estate

In the Lerner case, 648 Ariz. Adv. Rep 35 (CA 1, 11/27/12) the Arizona Court of Appeals continued to uphold the stigmatized property statute. The statute gives non  disclosure bogie’s. It limits the things that MUST be disclosed and cuts off liability for other non disclosures that common sense would suggest need be disclosed. ie….

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Your Word is Your Bond

Posted on March 21, 2013 in Arizona Law Regarding Business and Real Estate

It’s hard to figure out why lawyers will not quote what the cost of a suit will be. While, variables do exist, your lawyer should know what these variables might be. That can be factored in. Well, the legal marketplace is changing, and companies are now demanding value-based engagements with their outside firms that create…

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The End of National Century

Posted on March 15, 2013 in Arizona Law Regarding Business and Real Estate

Just weeks before a scheduled trial, Credit Suisse has reached a $400 million settlement in litigation over the demise of National Century Financial Enterprises. The settlement resolves claims that bondholders were defrauded to the tune of $2 billion when National Century collapsed amid a health-care financing scandal in 2002 — and reportedly brings the bondholders’…

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How to Sue for Home Defects

Posted on March 6, 2013 in Arizona Law Regarding Business and Real Estate

At the Law Firm of William A. Miller located in Scottsdale Arizona we are often asked to represent buyers who purchased defective homes. Here is a simple legal analysis we perform: What is the timing? The statute of limitations for breach of a written contract is six years from the date that the breach occurred….

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Investor Loss? Another Deep Pocket to Sue

Posted on January 7, 2013 in Arizona Law Regarding Business and Real Estate

Back in 2002, when I broke the NCFE billion dollar bond fraud case, I sued Moody’s, Fitch and Standard & Poor’s. Portions of the case have been reported in National Law Books, See Parrett v. Bank One, N.A. (In re Nat’l Century Fin. Enters. Inv. Litig.), 323 F.Supp.2d 861, 878 (S.D. Oh. 2004). My fellow lawyers were suspicious of…

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Mortgage Foreclosure Settlement

Posted on February 15, 2012 in Arizona Law Regarding Business and Real Estate

Some folks love and others hate the recent $25-billion federal-state mortgage foreclosure settlement, but there’s no getting around one huge and significant issue: Besides, prolonging the crisis, there’s a large, sink hole right in the middle of it. The hole is that if your home loan has been bought from your lender by Fannie Mae…

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Those who Teach…

Posted on September 19, 2011 in Arizona Law Regarding Business and Real Estate

Az law scottsdale lawyer good trial lawyer

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