Jordan E. Lubin v. Steven Skow

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________
FILED
No. 10-10011 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 14, 2010
___________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-01155-RWS

JORDAN E. LUBIN,
Chapter 7 Trustee,

Plaintiff-Appellant,

FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Integrity Bank,

Intervenor Plaintiff - Appellee,

versus

STEVEN M. SKOW,
SUZANNE LONG, et al.,

Defendants-Appellees.

_________________________

No. 10-10068
Non-Argument Calendar
___________________________

D.C. Docket No. 1:09-cv-01156-RWS
In RE:

INTEGRITY BANCSHARES, INC.,

Debtor.
__________________________________________________________________

JORDAN E. LUBIN,
Chapter 7 Trustee,

Plaintiff-Appellant,

FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Integrity Bank,

Intervenor Plaintiff-Appellee,

versus

CINCINNATI INSURANCE COMPANY,
STEVEN SKOW, et al.,

Defendants-Appellees.

____________________________________

Appeals from the United States District Court
for the Northern District of Georgia
____________________________________
(June 14, 2010)

Before BIRCH, MARTIN and FAY, Circuit Judges.

PER CURIAM:

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 In this case, the bankruptcy trustee for a holding company seeks to impose

liability on the officers of both the holding company and its failed subsidiary bank

where the subsidiary bank is in receivership. Because the Complaint does not

sufficiently allege direct harm to the holding company, the trustee lacks standing

to sue the officers of the bank. Also, although the trustee has standing to sue

officers of the holding company, the Complaint fails to plead a claim for which

relief may be granted on that issue. We affirm the district court’s dismissal as to

all defendants.

I.

Integrity Bancshares, Inc. is a Georgia bank holding company (“Holding

Company”). It is the parent of Integrity Bank (“Bank”), which purported to be a

full service community bank. Both entities were incorporated in Georgia.

Defendant Steven Skow was President and Chief Executive Officer of both the

Holding Company and Bank.1 Defendant Suzanne Long was Senior Vice

President and Chief Financial Officer of the Holding Company, and oversaw the

financial operations and conditions of both the Holding Company and the Bank.2

1
The Complaint alleges that Skow was an officer and director of the Holding Company.
The district court also found that he was President and CEO of the Bank.
2
Based on submissions in the record, we believe that Long was also the Chief Financial
Officer of the Bank. The Complaint refers only to her capacity as an officer of the Holding
Company, and therefore we confine our discussion to that role.

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Defendant Douglas Ballard was Senior Vice President and Senior Lending Officer

of the Bank. Defendant Robert Skeen was Executive Vice President and Senior

Lending Officer of the Bank prior to Ballard.

Through an $11 million initial offering in 1999, trust preferred offerings

exceeding $34 million in 2003 and 2006, and a secondary equity offering of $15

million in 2005, the Holding Company raised funds to capitalize the Bank. The

Bank grew quickly on inception, with loan assets exceeding $1 billion, and

customer deposits of $1.1 billion by September 2007.

Despite the Bank’s early growth, its loan and underwriting practices,

including its concentration of loans to commercial and real estate developers,

produced significant losses for the Bank in 2007 as real estate markets collapsed.

By October 2007, almost ten percent of the gross amount of the Bank’s

outstanding loans were delinquent. In February 2008, the Georgia Department of

Banking and Finance closed the Bank and placed it under Federal Deposit

Insurance Corporation (“FDIC”) supervision.

The Holding Company eventually filed for bankruptcy. The plaintiff,

Jordan E. Lubin, is the Chapter 7 Trustee (“Trustee”) of the Holding Company.

He filed an adversary proceeding against the defendants seeking damages for

breach of fiduciary duties as well as for negligence. The Complaint generally

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alleges that, through mismanagement and risky lending practices, the defendants

harmed the Holding Company and endangered the capital it provided to the Bank.

The Trustee claims that because the Holding Company raised the money to

increase the Bank’s lending capital and expand its operations mostly through debt

issuances, those debt issuances “materially encumbered and put at risk the equity

interests of the [Holding Company’s] stockholders.” As a result, the Holding

Company and its stockholders “had and have direct equitable, if not legal, interests

in the business practices, proper management, and profits of the Bank.”

The FDIC intervened, asserting sole ownership under federal law of the

claims against the defendants. The defendants and FDIC filed Motions to Dismiss

the Complaint under Federal Rule of Civil Procedure 12(b)(6) for lack of standing

and failure to state a claim. The district court granted the Motions.3 We review de

novo a district court’s dismissal of a complaint, assume all factual allegations in

the complaint are true, and give the plaintiff the benefit of reasonable inferences.

Hazewood v. Found. Fin. Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008).

3
The defendants filed a Motion to Dismiss the Complaint, but the Trustee subsequently
filed a First Amended Complaint. Because the district court granted the defendants’ and FDIC’s
Motions to Dismiss the First Amended Complaint, it denied as moot the defendants’ Motion to
Dismiss the original Complaint.

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 The Complaint fails to segregate the claims against the Bank’s officers from

those against the Holding Company’s officers. The 12(b)(6) analysis is more

difficult because of this. Different laws govern these separate positions. That

being the case, we are required to analyze the allegations against the Bank’s

officers separately from those against the Holding Company’s officers.

II.

First, we examine the allegations against the Bank’s officers. Under the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989

(“FIRREA”), when the FDIC is appointed receiver of a bank, it succeeds to “all

rights, titles, powers, and privileges of the insured depository institution, and of

any stockholder . . . of such institution with respect to the institution and the assets

of the institution.” 12 U.S.C. § 1821(d)(2)(A)(i). Without direct precedent from

this Court on the issue,4 the district court concluded that FIRREA grants the FDIC

ownership over all shareholder derivative claims against the Bank’s officers.

Lubin v. Skow, No. 1:09-CV-1155-RWS, 2009 WL 4641761, at *3–4 (N.D. Ga.

4
In our review of another district court decision on this issue, we did not affirm or reverse
that court’s conclusion that shareholder derivative claims against a bank in receivership belong
exclusively to the FDIC, because we decided the case on other grounds. Brandt v. Bassett (In re
Se. Banking Corp.), 69 F.3d 1539, 1552–53 (11th Cir. 1995) (after the district court dismissed
the direct suit as an improper derivative claim, the Trustee filed a separate derivative claim
“reassert[ing] . . . essentially the same action in another form,” but was barred from proceeding
by collateral estoppel).

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Nov. 30, 2009). Considering that shareholder derivative actions “enforce a

corporate cause of action,” and any recovery is “in favor of the corporation,” Price

v. Gurney, 324 U.S. 100, 105, 65 S. Ct. 513, 516 (1945), we agree with the district

court’s interpretation of FIRREA. See also Pareto v. FDIC, 139 F.3d 696, 700

(9th Cir. 1998) (concluding that the plain language of § 1821 “vests all rights and

powers of a stockholder of the bank to bring a derivative action in the FDIC”).

The question then becomes whether the claims against the Bank’s officers are

derivative claims.

Where a shareholder alleges devaluation of shares due to corporate

mismanagement, that shareholder lacks standing to sue the corporate officers

directly. Stevens v. Lowder, 643 F.2d 1078, 1080 (5th Cir. Unit B Apr. 1981).5

The shareholder’s sole recourse is to bring a derivative action against the officers

on behalf of the corporation. Id. Particularly where, as here, the harm arises from

an alleged breach of fiduciary duty, Georgia law6 generally requires the claim to

be brought in a derivative action. Phoenix Airline Servs., Inc. v. Metro Airlines,

5
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
6
We apply the law of the state of incorporation to analyze state law corporate claims. See
Stepak v. Addison, 20 F.3d 398, 403 (11th Cir. 1994) (applying Delaware law to evaluate the
sufficiency of the allegations in a derivative claim); Jacobs v. Adams, 601 F.2d 176, 179–80 (5th
Cir. 1979) (applying Florida law to determine shareholder standing in a derivative suit).

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Inc., 397 S.E.2d 699, 701 (Ga. 1990). Thus, if a shareholder’s investment is

frittered away by corporate mismanagement, only the corporation can recover.

Greenwood v. Greenblatt, 161 S.E. 135, 138 (Ga. 1931).

The Complaint alleges that the defendants Ballard, Skeen, and Skow, as

officers of the Bank, impaired the Bank’s working capital and wasted its assets so

as to cause economic loss to the Holding Company as well as the Holding

Company’s ultimate bankruptcy. This is a classic derivative harm, as “[t]he wrong

done by the defendants, if any, was a wrong done to the corporation.”

Greenwood, 161 S.E. at 136. Because the FDIC succeeded to all of the Bank’s

legal rights under FIRREA, only the FDIC can sue Bank officers for this alleged

breach of fiduciary duty to the Bank. The Trustee therefore lacks standing to

bring a derivative suit against the Bank’s officers.

However, if the Trustee can establish a direct harm to the Holding Company

caused by the Bank officers, that harm would be separate from the derivative

harm. If the Trustee were seeking to enforce such a claim, FIRREA would not be

a bar to standing. See FDIC v. Jenkins, 888 F.2d 1537, 1545 (11th Cir. 1989)

(FIRREA does not prohibit shareholders from “proceeding against solvent third-

parties in non-derivative shareholder suits”). However, for such a claim for direct

relief to exist, it must meet this Court’s pleading requirements.

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 Federal Rule of Civil Procedure 8(a)(2) requires pleadings to include a

“short and plain statement” demonstrating that the plaintiff is entitled to relief.

However, a complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, ---U.S.----,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570, 127 S. Ct. 1955, 1974 (2007)).7 Claims for relief are facially plausible where

there is “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. at 1949. The district court

correctly observed that whether the claims alleged in the Complaint are direct or

derivative is a legal, not factual, determination, Lubin, 2009 WL 4641761, at *5,

which we are not bound to accept. See Iqbal, 129 S. Ct. at 1949.

Under Georgia law, a direct claim is distinguishable from a derivative claim

if the shareholder is “injured in a way which is different from the other

shareholders or independently of the corporation.” Grace Bros. v. Farley Indus.,

7
The Trustee argues that Iqbal is limited to cases resolving qualified immunity against a
constitutional tort claim. We have consistently applied Iqbal beyond that limited scope. See
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1266–70 (11th Cir. 2009) (applying Iqbal’s
pleading standard to claims brought under the Alien Tort Statute and Torture Victim Protection
Act); see also, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 2010 WL 1404280, at *10–18 (11th
Cir. Apr. 9, 2010) (applying Iqbal to federal racketeering and labor claims); Harrison v.
Benchmark Elec. Huntsville, Inc., 593 F.3d 1206, 1214 (11th Cir. 2010) (applying Iqbal to
claims brought under the Americans with Disabilities Act).

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Inc., 450 S.E.2d 814, 816 (Ga. 1994). While the Complaint generally alleges that

the Bank officers caused a direct harm to the Holding Company, “[i]t is the nature

of the wrong alleged and not the pleader’s designation or stated intention that

controls the court’s decision.” Phoenix Airline Servs., 397 S.E.2d at 701; accord

Gaudet v. United States, 517 F.2d 1034, 1035 (5th Cir. 1975) (“It is the substance

of the claim and not the language used in stating it which controls.”). Within the

four corners of the Complaint, the Trustee has only alleged a derivative claim

disguised as a direct claim.

The alleged harm to the Holding Company stems from the Bank officers’

management of Bank assets.8 This harm is inseparable from the harm done to the

Bank. See Greenwood, 161 S.E. at 138. That the Bank officers’ poor business

choices reduced the value of the Holding Company’s investment does not alter the

fact that the harm is decidedly a derivative one. Stevens, 643 F.2d at 1080; see

also Greenwood, 161 S.E. at 138 (no direct action exists where the shareholders’

investment is “depreciated or rendered valueless”).

While the Complaint alleges that the Holding Company suffered a unique

harm because it assumed $34 million of debt to finance the Bank’s expanded

8
By the language of the Complaint, it was the Bank officers’ decisions to extend
“unreasonably risky and unlawful loans” that ultimately interfered with the “proper management
and profitable operation of the Bank.”

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operations, debt is not an intrinsic harm. The Bank’s insolvency, which precluded

the Holding Company from repaying the $34 million, is what forced the Holding

Company into bankruptcy. In the Complaint, the Trustee acknowledges that

repayment of this debt depended upon the success of the Bank. As the Seventh

Circuit observed, “the fact that the plaintiffs borrowed money to [fund their

investment] and are now on the hook to pay those personal debts does not alter the

nature of their claims.” Massey v. Merrill Lynch & Co., 464 F.3d 642, 648 (7th

Cir. 2006). Thus, the Holding Company’s harm, and even its ultimate bankruptcy,

is derivative of the harm to the Bank.

Because the Complaint alleges derivative harm, recovery from which is

preempted by FIRREA, the district court properly dismissed the Complaint against

Ballard, Skeen, and Skow as officers of the Bank.

III.

We conduct a different analysis for defendants Skow and Long as officers

of the Holding Company because FIRREA does not apply.9 Under Georgia law, a

corporation has standing to sue its officers for “neglect of, failure to perform, or

other violation of his duties in the management of the corporation or in the

9
Under FIRREA, the FDIC succeeds to the rights of the Bank only. Therefore, where the
Trustee is suing to vindicate the rights of the Holding Company against its own officers, FIRREA
is not invoked.

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disposition of corporate assets.” O.C.G.A. § 14-2-831(a)(1)(A). Bankruptcy

trustees succeed to all rights of the debtor and have standing to sue if the debtor, in

this case the Holding Company, would otherwise have standing. See Official

Comm. of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1149

(11th Cir. 2006) (referring to 11 U.S.C. §§ 541(a)(1) and 323); see also

Greenwood, 161 S.E. at 139 (“An action against the directors or officers of a

corporation for losses happening to it in consequence of their gross negligence,

their habitual inattention to their duties, or their fraud or mismanagement, must be

brought by the trustees in bankruptcy of the corporation.”).

To state a claim for breach of fiduciary duty against officers of a Georgia

corporation, the complaint must sufficiently plead: “‘(1) the existence of a

fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the

breach.’” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 958–59 (11th Cir.

2009) (quoting SunTrust Bank v. Merritt, 612 S.E.2d 818, 822 (Ga. Ct. App.

2005)). Corporate officers “occupy a fiduciary relationship to the corporation and

its shareholders, and are held to the standard of utmost good faith and loyalty.”

Quinn v. Cardiovascular Physicians, P.C., 326 S.E.2d 460, 463 (Ga. 1985). Skow

and Long were officers of the Holding Company, and thus owed it a fiduciary

duty. See O.C.G.A. § 14-2-842(a).

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 However, the Complaint fails to sufficiently plead a breach of this duty.

The fiduciary duty corporate officers owe their corporation is to execute their

responsibilities “(1) [i]n a manner [they] believe[] in good faith to be in the best

interests of the corporation; and (2) [w]ith the care an ordinarily prudent person in

a like position would exercise under similar circumstances.” Id. The Complaint

alleges that the officers of the Holding Company “caus[ed], authoriz[ed],

approv[ed], ratif[ied] or otherwise allow[ed] the Bank to persist in the deficient

condition and unsound practices,” and that they “failed to exercise that degree of

care and competence required by ordinarily prudent persons holding similar

positions under similar circumstances.” The Complaint simply recites the

elements of breach of duty in the “unadorned, the-defendant-unlawfully-harmed-

me” manner Iqbal prohibits. Iqbal, 129 S. Ct. at 1949.

The district court concluded that even if some of the defendants, such as

Skow and Long, owed a fiduciary duty to the Holding Company, the Complaint

still only alleges a breach of duty in their roles as officers of the Bank. We will

give the Trustee the benefit of the inference that Skow and Long, as officers of the

Holding Company, had oversight responsibilities for the Bank, and thus are partly

to blame for the Bank’s mismanagement. While the losses of the Bank are

staggering, a simple recitation of those amounts together with generalized

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statements of blame do not state a legal claim for breach of fiduciary duties to the

Holding Company. We express no opinion about whether Skow or Long might

have breached their duties as Holding Company officers by failing to inform the

Holding Company board about bank mismanagement or by failing to influence the

Holding Company (as sole shareholder of the Bank) to respond to this

mismanagement by changing the Bank management. Neither of these allegations,

nor any other allegations regarding these defendant’s conduct as Holding

Company officers, appear in the Complaint.

Because the Complaint fails to plead sufficient facts connecting any act or

omission by the defendants with a harm to the Holding Company that is distinct

from the harm the Holding Company suffered when its investment in the Bank

soured, the Complaint states no claim for which the Trustee may recover.

We AFFIRM the district court’s grant of the defendants’ and the FDIC’s

motions to dismiss.

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