CHAPTER 1 INTRODUCTION 1.01 Scope of Issues Arising in Ponzi Cases
1.02 Ponzi Scheme Defined
1.03 Statutory and Legal Basis for Administration of Ponzi Proceedings
1.04 Ponzi Schemes in the News
1.05 Red Flags in Ponzi Schemes
CHAPTER 2 ACTUAL FRAUDULENT TRANSFER CLAIMS 2.01 Introduction
2.02 Meaning of "To Hinder, Delay or Defraud"
2.03 Proof of Fraudulent Intent
2.04 Proof of Injury in Fact
2.05 Apportionment of Property Recovered
2.06 Recovery from the Entity for Whose Benefit the Transfer Was Made
2.07 Advantages to Actual Fraudulent Intent Claim for Relief
2.08 Prejudgment Interest
CHAPTER 3 CONSTRUCTIVE FRAUDULENT TRANSFER CLAIMS 3.01 Introduction
3.02 Less Than Reasonably Equivalent Value
3.03 Debtor's Financial Condition
3.04 Prejudgment Interest
CHAPTER 4 DEFENSES TO FRAUDULENT TRANSFER CLAIMS AND PREFERENCE CLAIMS 4.01 Introduction
4.02 Defenses Available to an Initial Transferee
4.03 Section 550(b)(1) Defense Available to a Subsequent Transferee
4.04 Statute of Limitations Defense
CHAPTER 5 CLAIMS TO AVOID PREFERENTIAL TRANSFERS 5.01 Introduction
5.02 The Bankruptcy Preference Statute
5.03 Transfer of an Interest of the Debtor in Property
5.04 To Or For the Benefit of a Creditor
5.05 On Account of an Antecedent Debt
5.06 Insolvency
5.07 The Investor Received More Than Chapter 7 Distribution
5.08 Defenses to Preference Claims
CHAPTER 6 PROPERTY INTERESTS AND EXPRESS, RESULTING AND CONSTRUCTIVE TRUST CLAIMS 6.01 Introduction
6.02 Interest of Debtor in Property
6.03 The Elements of Express, Resulting and Constructive Trust Claims
6.04 Use of Constructive Trust by Trustees and Receivers to Claim Interest In Third Party Property
6.05 Investor Claims Constructive Trust in Bankruptcy or Receivership Assets
6.06 Defendant's Defense To Fraudulent Transfer or Preference Claims
CHAPTER 7 TORT AND EQUITABLE CLAIMS AGAINST INSIDERS AND THIRD PARTIES 7.01 Introduction
7.02 Breach of Fiduciary Duty Claim Against Corporate Officers or Directors
7.03 Breach of Fiduciary Duty Claim Against Non-Insider Third Parties
7.04 Constructive Fraud
7.05 Negligence
7.06 Malpractice and Professional Negligence
7.07 Fraud
7.08 Aiding and Abetting Fraud
7.09 Aiding and Abetting a Breach Of Fiduciary Duty
7.10 Aiding and Abetting Negligent Misrepresentation
7.11 Aiding and Abetting a Fraudulent Transfer
7.12 Conspiracy
7.13 Breach of Duty of Good Faith and Fair Dealing
7.14 Tortious Interference with Contract Claim
7.15 Conversion
7.15 Unjust Enrichment
7.16 Constructive Trust
7.17 Accounting
7.18 Alter Ego
CHAPTER 8 DEEPENING INSOLVENCY 8.01 Introduction
8.02 Definition, History and Debate
8.03 Tort Claim for Deepening Insolvency
8.04 Deepening Insolvency as a Theory of Damages
8.05 Standing Issues in Pursuing Deepening Insolvency
CHAPTER 9 DISGORGEMENT CLAIMS AGAINST RELIEF DEFENDANTS 9.01 Introduction
9.02 The Key Features of a Disgorgement Claim Against a Relief Defendant
9.03 The Distinction Between Relief and Fraudulent Transfer Defendants
9.04 The Elements of the Claim
CHAPTER 11 EQUITABLE SUBORDINATION 11.01 Introduction
11.02 The Elements for Equitable Subordination
11.03 Inequitable Conduct
11.04 Harm to Other Creditors
11.05 Insiders of Debtor
11.06 Defenses to Equitable Subordination
CHAPTER 12 THE ECONOMIC LOSS DEFENSE 12.01 Introduction
12.02 Tort Damages Limited Where Claim Is Based in Contract
12.03 Exception for Existing Duty or Special Relationship
CHAPTER 13 STANDING 13.01 Introduction
13.02 Trustee Standing
13.03 Receiver Standing
13.04 Standing of Creditors
13.05 Standing Issues in Particular Claims for Relief
CHAPTER 14 THE IN PARI DELICTO DEFENSE 14.01 Introduction
14.02 General Principles of In Pari Delicto 14.03 Distinction Between In Pari Delicto and Standing Issues
14.04 Applicability of In Pari Delicto Defense to Trustees
14.05 Applicability of In Pari Delicto as Against Receivers
14.06 In Pari Delicto Used Against Third Parties
14.07 Ways to Defeat the In Pari Delicto Defense
14.08 In Pari Delicto Is Not Applicable Against Insiders
14.09 In Pari Delicto Usually Not Ripe for Consideration on Motion to Dismiss
CHAPTER 15 GATHERING EVIDENCE. PRIVILEGE ISSUES AND EXCHANGING INFORMATION WITH THE GOVERNMENT 15.01 Introduction
15.02 Privileges
15.03 Reporting Crime and Obtaining Evidence from the Government
CHAPTER 16 FORFEITURE PROCEEDINGS AND VICTIM COMPENSATION THROUGH THE CRIMINAL PROCESS 16.01 Introduction
16.02 Criminal and Civil Forfeiture Proceedings
16.03 Impact of Bankruptcy Filing on Forfeiture Proceeding
16.04 Interests of Third Party Claimants in Forfeited Property
16.05 Disposition of Forfeited Property Through the Remission Process
16.06 Restitution and Restoration in Criminal Ponzi Cases
16.07 Competition Between Parallel Forfeiture Proceedings and Civil
Insolvency Proceedings to Compensate Ponzi Victims
16.08 Cooperation Agreements
16.09 Rothstein. A Case Study
CHAPTER 17 USE OF CONTEMPT PROCEEDINGS TO RECOVER ASSETS 17.01 Introduction
17.02 Civil Contempt Proceedings
17.03 Criminal Contempt Proceedings
CHAPTER 18 NON-RESIDENT AND FOREIGN DEFENDANTS, PERSONAL JURISDICTION AND SERVICE OF PROCESS 18.01 Introduction
18.02 Personal Jurisdiction
18.03 Service of Process
CHAPTER 19 FOREIGN PROCEEDINGS AND DISCOVERY ABROAD 19.01 Introduction
19.02 International Discovery. The Hague Convention or the Civil Rules?
19.03 Introduction to Mareva, Anton Piller, and Norwich Pharmacal Orders
19.04 The Mareva or Freezing Injunction
19.05 The Anton Piller or Search Order
19.06 The Norwich Pharmacal Order
19.07 Mareva by Letter
CHAPTER 20 ALLOWANCE OF CLAIMS AND DISTRIBUTION SCHEMES 20.01 Introduction
20.02 Types of Claims
20.03 Procedures in Submitting and Fixing Claims
20.04 Methodologies for Calculating Amount of Distribution on Claims
20.05 Additional Issues Impacting Distributions in Receivership Cases
20.06 Distributions in SPIC Proceedings
CHAPTER 21 PREJUDGMENT REMEDIES 21.01 Introduction
21.02 Rule 64. Seizing a Person or Property
21.03 Rule 65. Preliminary Injunctions and Temporary Restraining Orders
21.04 Distinguishing Rule 64 and Rule 65
CHAPTER 22 TAX ISSUES ARISING IN PONZI SCHEMES 22.01 Introduction
22.02 Earnings as Income
22.03 Tax Deduction for Losses
22.04 Qualified Settlement Funds