BG Law Scores Win at the Ninth Circuit as the Ninth Circuit Upholds a Jury Determination That the Debtor Operated as a Ponzi Scheme and That the Fraudulent Intent of the Ponzi Operator Is Based on Objective Criteria
Steven T. Gubner and Corey R. Weber of BG Law represented Jason M. Rund, Chapter 7 Trustee, in an appeal before the United States Court of Appeals for the Ninth Circuit wherein the Ninth Circuit considered whether to uphold a jury’s determination that the debtor operated as a Ponzi scheme. The Ninth Circuit issued a published opinion on August 23, 2024 affirming the jury’s determination that the debtor was operated as a Ponzi scheme and remanding for further proceedings. Mandate was issued on September 16, 2024.
As stated by the Ninth Circuit, “[t]he main question in this appeal is whether the district court erred by failing to include a mens rea instruction that would have required the jury to find that Pressman knew he was operating a Ponzi scheme that would eventually collapse. We conclude that the proposed mens rea instruction was not required. As the Ponzi scheme presumption reflects, fraudulent intent may be inferred by evidence of the existence of a Ponzi scheme established through objective criteria.” The Ninth Circuit stated that “[w]e are unaware of any court decision that has adopted an express mens rea requirement when defining a Ponzi scheme in a civil or bankruptcy action to avoid a fraudulent conveyance, and for good reason. The basis for applying the Ponzi scheme presumption in the first place is that a Ponzi scheme is doomed to fail by virtue of its pyramid structure. Because a pyramid scheme relies on an impossibility—a limitless pool of new investors—a Ponzi scheme operator ‘must know all along, from the very nature of his activities, that investors at the end of the line will lose their money.’ In re Indep. Clearing House Co., 77 B.R. at 860 (emphasis added).”
The Ninth Circuit also rejected the appellant’s argument that lenders cannot be victims in a Ponzi scheme, holding that “[t]here is no question that lenders can be victims of a Ponzi scheme as a matter of law. Many Ponzi schemes rely on loans and short-term promissory notes as opposed to equity investments—including Charles Ponzi’s eponymous scheme itself.”
The Ninth Circuit determined that “[b]ecause the evidence at trial was more than sufficient to support the jury’s Ponzi scheme finding, and the district court did not err in its jury instructions or evidentiary rulings, we affirm the judgment below.”
The Ninth Circuit’s published opinion in Kirkland v. Rund (In re EPD Investment Co., LLC) may be accessed by clicking here.