Official Committee of Unsecured Creditors of PSA, Inc. v. Edwards

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12320 JANUARY 30, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-03327-CV-TWT-1

OFFICIAL COMMITTEE OF UNSECURED CREDITORS
OF PSA, INC., et al.,
on behalf of PSA, Inc., et al.,

Plaintiff,

TRUSTEE DARRYL S. LADDIN,
of the ETS Creditors' Litigation Trust,

Plaintiff-Appellant,

versus

CHARLES EDWARDS, et al.,

Defendants,

LEGENDS COMMUNICATIONS, INC.,
SHELDON E. FRIEDMAN,
FRIEDMAN, DEVER & MERLIN, LLC,
PWH, INC.,
d.b.a. Friedman, Denver & Merlin, LLC
d.b.a. Sheldon E. Friedman,
KARLOVEC FINANCIAL, INC.,
RELIANCE TRUST COMPANY, PENSCO, et al.,

Defendants-Appellees.
 ________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(January 30, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents two issues, the first of which is an issue of first

impression in this Circuit: (1) whether the doctrine of in pari delicto bars a

trustee’s claims on behalf of a bankrupt debtor for violations of the Racketeer

Influenced and Corrupt Organizations Act; and (2) whether the trustee can

maintain a claim for aiding and abetting a breach of fiduciary duties under Georgia

law. See 11 U.S.C. § 541(a); 18 U.S.C. § 1964(c). Darryl S. Laddin is the trustee-

in-bankruptcy for ETS, which operated a massive Ponzi scheme that defrauded

thousands of investors of hundreds of millions of dollars. Laddin appeals an order

that dismissed his complaint, under RICO and Georgia law, against entities that,

Laddin alleges, assisted ETS in the operation of its fraudulent scheme. Because

the defense of in pari delicto bars recovery by a central and active violator of RICO

and Georgia courts do not recognize a claim for aiding and abetting a breach of

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fiduciary duties, we affirm the dismissal of Laddin’s complaint.

I. BACKGROUND

In his complaint, Laddin alleged that in October 1994, Charles Edwards

formed ETS Payphones, Inc., a company that sold and leased-back payphones as

investment opportunities. “With Edwards at its helm, ETS devised [a] scheme”

where an investor paid a fixed sum to purchase a payphone, and ETS leased the

payphone back from the investor for a fee. “ETS represented itself as . . . a no loss

proposition” and induced individuals to purchase the phones. Although “ETS . . .

created marketing and promotional materials that promised returns . . . of 14% or

15%,” it consistently lost money on its payphone operations and continually had to

attract new investors to meet its obligations to existing investors. “[W]ith the sale

of each phone, ETS assumed a liability it could not satisfy.” The operation of the

sale-leaseback program was a Ponzi scheme that defrauded thousands of investors

of over $300 million. As the sole shareholder of ETS, Edwards transferred the

proceeds from ETS to himself or other companies he owned.

On September 11, 2000, ETS filed for bankruptcy. The bankruptcy court

allowed the creation of an Official Committee of Unsecured Creditors, and the

Debtors and Creditors’ Committee created the ETS Creditors’ Litigation Trust.

The committee appointed Laddin as trustee of the debtor estate.

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 Laddin sued several defendants, including Reliance Trust Co., PENSCO,

Inc., and Community National Bank, for (1) aiding and abetting a breach of

fiduciary duties under Georgia law, (2) violations of section 1962(c) and (d) of

RICO, 18 U.S.C. §§ 1962(c), (d), and (3) avoidance claims. Reliance Trust Co.,

PENSCO, Inc., and Community National Bank (collectively, IRA Custodians) are

large holders of individual retirement accounts, and Laddin alleged that these IRA

Custodians aided ETS in defrauding investors by funneling investor IRA funds

into ETS payphone investments. Laddin alleged that “[b]y failing to conduct

appropriate due diligence and/or ignoring the facts altogether,” “[t]he IRA

Custodians enabled thousands of investors to partake of the ETS scheme and

caused ETS to incur millions of dollars in additional debt.”

The IRA Custodians moved to dismiss Laddin’s complaint. They argued

that Laddin, as trustee, could not maintain a claim of aiding and abetting a breach

of fiduciary duties and the doctrine of in pari delicto, which provides that a

wrongdoer may not profit from his wrongful acts, barred Laddin’s claims. The

district court granted the motions to dismiss.

Before it addressed the merits of Laddin’s complaint, the district court

addressed Laddin’s standing to sue. The district court concluded that Laddin had

standing to bring claims on behalf of the debtor, ETS, but Laddin did not have

4
standing to assert claims on behalf of the creditors. The court reasoned that the

Creditors’ Committee did not have the authority to assign the claims belonging to

ETS creditors and the Trust Agreement did not authorize Laddin to bring claims on

behalf of creditors.

The district court also concluded that the doctrine of in pari delicto barred

Laddin’s complaint. The district court found that, under Georgia law, the

wrongdoing of Edwards as a sole shareholder was imputed to ETS, the debtor

corporation, under the “sole actor” rule. The court reasoned that, because the

“legal and equitable interests of the debtor” in bankruptcy are only as strong as the

debtor’s claim against defendants at the commencement of the bankruptcy, see 11

U.S.C. § 541(a), the doctrine of in pari delicto barred Laddin’s state law claims.

The district court also held that the doctrine of in pari delicto barred Laddin’s

claims under RICO. Laddin appeals the dismissal by the district court.

II. STANDARD OF REVIEW

This Court reviews de novo the ruling of the district court on a motion to

dismiss and construes the allegations in the complaint “in the light most favorable

to the plaintiff.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th

Cir. 2004). A motion to dismiss should not be granted unless “it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which

5
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99,

101 (1957).

III. DISCUSSION

Our discussion is divided into three parts. We first address the trustee’s

argument that his complaint is not subject to a defense of in pari delicto that might

have been asserted against the debtor. We then discuss whether the defense of in

pari delicto can be asserted against a plaintiff who asserts violations of the federal

RICO statute. We finally consider whether the trustee can maintain a claim under

Georgia law for aiding and abetting a breach of fiduciary duties.

A. The Trustee Is Subject to the Defenses that Were Available Against the Debtor.

The Bankruptcy Code provides that property of the debtor estate includes

“all legal or equitable interests of the debtor in property as of the commencement

of the case.” 11 U.S.C. § 541(a)(1). “Legal interests or equitable interests”

include any causes of action the debtor may bring. Official Comm. of Unsecured

Creditors v. R.F. Lafferty & Co., 267 F.3d 340, 356 (3d Cir. 2001). A trustee, as

the representative of the estate, succeeds into the rights of the debtor-in-bankruptcy

and has standing to bring any suit that the debtor corporation could have brought

outside of bankruptcy. 11 U.S.C. § 323; O’Halloran v. First Union Nat’l Bank,

350 F.3d 1197, 1202 (11th Cir. 2003). The argument of the IRA Custodians that

6
the wrongdoing of ETS deprives Laddin of standing to assert claims against them

fails because “[a]n analysis of standing does not include an analysis of equitable

defenses, such as in pari delicto.” R.F. Lafferty & Co., 267 F.3d at 347. We agree

with the district court that Laddin had standing based on an alleged injury to the

debtor estate, see id. at 346–48, but Laddin’s standing to bring claims on behalf of

the debtor estate does not mean that the debtor’s wrongdoing is immaterial.

Laddin contends that his enforcement, as a trustee of the “legal interests or

equitable interests” of the debtor estate, is not subject to the doctrine of in pari

delicto. Laddin argues that, because the doctrine of in pari delicto depends on the

“personal malfeasance of the individual seeking to recover,” the wrongs of ETS

should not be imputed to him as the bankruptcy trustee. Laddin asserts that his

argument is supported by the legislative history to the Bankruptcy Code, which

explains that “[t]o the extent . . . an interest is limited in the hands of the debtor, it

is equally limited in the hands of the estate except to the extent that defenses which

are personal against the debtor are not effective against the estate.” 124 Cong. Rec.

32,399 (1978).

We need not resort to legislative history because the text of section 541(a) is

unambiguous, and “the language of our laws is the law.” CBS, Inc. v. Primetime

24 Joint Venture, 245 F.3d 1217, 1227 (11th Cir. 2001). Under the plain meaning

7
of section 541(a), the debtor estate includes all “legal or equitable interests of the

debtor as of the commencement of the case.” 11 U.S.C. § 541(a) (emphasis

added). “A bankruptcy trustee stands in the shoes of the debtor and has standing

to bring any suit that the debtor could have instituted” when the debtor filed for

bankruptcy, and there is no suggestion in the text of the Bankruptcy Code that the

trustee acquires rights and interests greater than those of the debtor. O’Halloran,

350 F.3d at 1202; see also 11 U.S.C. § 362(a). If a claim of ETS would have been

subject to the defense of in pari delicto at the commencement of the bankruptcy,

then the same claim, when asserted by the trustee, is subject to the same

affirmative defense.

Even if we considered legislative history, Laddin’s argument would fail.

The portion of the legislative history on which Laddin relies pertains to section

541(d), not section 541(a). Section 541(d) governs “[p]roperty in which the debtor

holds . . . only legal title and not an equitable interest, such as a mortgage secured

by real property . . . .” 11 U.S.C. § 541(d). The portion of the legislative history

quoted by Laddin is inapplicable to the interpretation of “property of the debtor

estate” under section 541(a). See 124 Cong. Rec. 32,399. In the law of

commercial paper, personal defenses are affirmative defenses that may not be

asserted against a holder-in-due-course. See U.C.C. § 3-305(a)(1), (2), (3) (stating

8
that a holder-in-due-course is subject to real defenses of duress, fraud in the

factum, infancy, insolvency, and legal incapacity); see also FDIC v. Wood, 758

F.2d 156, 160 (6th Cir. 1985); 6 Ronald A. Anderson, Anderson on the Uniform

Commercial Code § 3-305:103 (3d ed., rev. vol. 1998) (“Under the Negotiable

Instruments Law that preceded the Code, the defenses were divided into real and

personal defenses.”). In his complaint, Laddin does not assert any rights either as a

holder-in-due-course or under section 541(d). Laddin provides no support for his

assertion that in pari delicto is a personal defense that is excluded from the debtor

estate under section 541(a).

Our reading of the text of section 541(a) also comports with the purposes of

the Bankruptcy Code. See Demarest v. Manspeaker, 498 U.S. 184, 190–91, 111 S.

Ct. 599, 604 (1991) (stating that the text of the statute governs unless the result

would be “so bizarre that Congress could not have intended it” (internal quotations

and citations omitted)). Upon the commencement of a bankruptcy case, an

automatic stay freezes the rights of parties to the bankruptcy, both debtor and

creditors. 11 U.S.C. § 362(a). The automatic stay and the definition of the debtor

estate “place[] both temporal and qualitative limitations on the reach of the

bankruptcy estate.” Sender v. Buchanan (In re Hedged-Inv. Assocs.), 84 F.3d

1281, 1285 (10th Cir. 1996); see 11 U.S.C. § 541. Under Laddin’s erroneous

9
interpretation of section 541, a postpetition event, the appointment of a trustee,

could undermine the automatic stay and change the nature of the legal and

equitable interests of the debtor estate.

Laddin argues that his recovery would ultimately inure to the benefit of

innocent creditors instead of the wrongful debtor, but he fails to account for the

likelihood that individual creditors damaged by the debtor’s Ponzi scheme could

separately pursue claims against the IRA Custodians free from the bar of in pari

delicto. If Laddin were allowed to pursue the debtor’s claims, his recovery, on the

one hand, would become part of the bankruptcy estate to be apportioned among

creditors without regard to whether they were harmed by the IRA Custodians. See

11 U.S.C. §§ 507, 1129(b)(2) (stating that the plan of confirmation must be “fair

and equitable[] with respect to each class of claims or interests”). If creditors who

were harmed by the IRA Custodians, on the other hand, sued separately outside of

bankruptcy, then those creditors would not risk dilution through apportionment to

senior creditors or unharmed creditors of equal priority. See id. § 507 (prioritizing

classes of claims). Creditors whose legal interests were harmed by the IRA

Custodians could rightfully recover more outside of bankruptcy because they

would not compete with the trustee’s claims on behalf of the debtor estate.

We are not alone in concluding that the defense of in pari delicto may be

10
asserted against a bankruptcy trustee. Although this is an issue of first impression

in this Circuit, our sister circuits that have considered the issue have unanimously

concluded that in pari delicto applies with equal force to a trustee-in-bankruptcy as

a debtor outside of bankruptcy. See Grassmueck v. Am. Shorthorn Ass’n, 402

F.3d 833, 837 (8th Cir. 2005); Official Comm. of Unsecured Creditors v. R.F.

Lafferty & Co., 267 F.3d 340, 356–57 (3d Cir. 2001); Terlecky v. Hurd (In re

Dublin Sec.), 133 F.3d 377, 381 (6th Cir. 1997); Sender v. Buchanan (In re

Hedged-Inv. Assocs.), 84 F.3d 1281, 1285 (10th Cir. 1996); see also Official

Comm. of Unsecured Creditors of Color Tile v. Coopers & Lybrand, LLP, 322

F.3d 147, 158–66 (2d Cir. 2003) (applying the defense of in pari delicto to bar

Texas law claims brought by trustee-in-bankruptcy). Against this weight of

authority, Laddin urges us to chart a new course.

Laddin erroneously relies on a decision of the Seventh Circuit and the

perspective of a commentator to support his argument that in pari delicto does not

bar recovery by a bankruptcy trustee. See Scholes v. Lehmann, 56 F.3d 750, 754

(7th Cir. 1995); cf. Jeffrey Davis, Ending the Nonsense: The In Pari Delicto

Doctrine Has Nothing to Do with What Is § 541 Property of the Bankruptcy Estate,

21 Emory Bankr. Dev. J. 519, 542 (2005). Laddin argues that the Seventh Circuit

refused to apply in pari delicto to bar recovery for a receiver who brought a

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fraudulent conveyance action under Illinois law, Scholes, 56 F.3d at 754, but

Laddin’s appeal is governed by the Bankruptcy Code, not the law of receiverships

and fraudulent conveyances under state law. See Knauer v. Jonathon Roberts Fin.

Group, Inc., 348 F.3d 230, 234–37 (7th Cir. 2003); In re Hedged-Inv. Assocs., 84

F.3d at 185 & n.5. Fraudulent conveyances also are an exception to the general

rule that the trustee takes the debtor estate as it is at the commencement of the

bankruptcy. Compare 11 U.S.C. § 544(b) (providing that trustees may void

prepetition fraudulent conveyances after the commencement of the bankruptcy)

with id. § 541(a) (providing that the debtor estate includes “all legal or equitable

interests of the debtor in the property as of the commencement of the case”

(emphasis added)). As for Laddin’s other persuasive authority, the legal

commentator makes the same flawed arguments about legislative history and the

Scholes decision that we have already rejected. See Davis, supra at 521–22,

538–39; see also Tanvir Alam, Fraudulent Advisors Exploit Confusion in the

Bankruptcy Code: How In Pari Delicto Has Been Perverted to Prevent Recovery

for Creditors, 77 Am. Bankr. L.J. 305 (2003).

Both the text and purposes of the Bankruptcy Code support the conclusion

of the district court that Laddin’s complaint is subject to the same defenses that

were available against a complaint filed by the debtor at the commencement of the

12
bankruptcy. “The equitable defense of in pari delicto is available in an action by a

bankruptcy trustee against another party if the defense could have been raised

against the debtor.” Grassmueck, 402 F.3d at 837 (citing R.F. Lafferty & Co., Inc.,

267 F.3d at 355–56, 358). The next questions involve whether the defense of in

pari delicto would have barred recovery by the debtor, ETS, under either the

federal RICO statute or Georgia law. We consider these questions in turn.

B. The Doctrine of In Pari Delicto Bars a RICO Claim by a Conspirator.

Laddin argues that the district court erroneously dismissed his RICO claims

because the defense of in pari delicto is not an available defense against the debtor.

Under RICO, “[a]ny person injured in his business or property by reason of a

violation of section 1962 of this chapter may sue . . . and shall recover threefold the

damages he sustains . . . .” 18 U.S.C. § 1964(c). Section 1962(c) of RICO states,

“It shall be unlawful for any person employed by or associated with any enterprise

. . . to conduct or participate . . . in the conduct of such enterprise’s affairs through

a pattern of racketeering activity or collection of unlawful debt.” Id. § 1962(c).

Conspiracies in violation of section 1962(c) are also prohibited. Id. § 1962(d).

The doctrine of in pari delicto is an equitable doctrine that states “a plaintiff

who has participated in wrongdoing may not recover damages resulting from the

wrongdoing.” Black’s Law Dictionary 794 (7th ed. 1999). This common law

13
defense “derives from the Latin, in pari delicto potior est conditio defendentis: ‘In

a case of equal or mutual fault . . . the position of the [defending] party . . . is the

better one.’” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306,

105 S. Ct. 2622, 2626 (1985). The doctrine of in pari delicto is based on the

policy that “courts should not lend their good offices to mediating disputes among

wrongdoers” and “denying judicial relief to an admitted wrongdoer is an effective

means of deterring illegality.” Id. The issue whether this defense bars a complaint

under RICO is one of first impression for our Circuit.

The federal law of affirmative defenses governs the enforcement of causes

of action created by federal statutes. See O’Melveny & Myers v. FDIC, 512 U.S.

79, 84–85, 114 S. Ct. 2048, 2053 (1994). There is a paucity of federal caselaw

regarding whether the doctrine of in pari delicto bars a complaint under RICO, and

none of our sister circuits have squarely decided the issue. See Roma Constr. Co.

v. Arusso, 96 F.3d 566, 570 (1st Cir. 1996) (“Whether or not there exists such an

‘innocent party’ requirement is a question of first impression in this circuit and,

indeed, we are not aware of any cases anywhere that adopt such a requirement.”);

cf. Bontkowski v. First Nat’l Bank of Cicero, 998 F.2d 459, 462 (7th Cir. 1993)

(considering whether the doctrine of in pari delicto barred a RICO defendant for

purposes of equitable tolling).

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 In two cases, the Supreme Court has considered the application of the in pari

delicto doctrine in the enforcement of antitrust and securities laws. Bateman

Eichler, 472 U.S. 299, 105 S. Ct. 2622; Perma Life Mufflers, Inc. v. Internat’l Parts

Corp., 392 U.S. 134, 88 S. Ct. 1981 (1968). Although in both cases it declined to

apply the doctrine of in pari delicto, the Court explained that this or a related

doctrine might apply in other contexts. We consider each decision of the Supreme

Court for guidance in resolving this issue.

At first glance, the earlier decision of the Supreme Court, Perma Life

Mufflers, would appear to preclude the use of in pari delicto against a federal

RICO claim because the Court held “that the doctrine of in pari delicto, with its

complex scope, contents, and effects, is not to be recognized as a defense to an

antitrust action.” 392 U.S. at 140, 88 S. Ct. at 1985. The plaintiffs were

franchisees who alleged that the franchisor, its parent corporation, other

subsidiaries, and several individuals conspired to restrain trade and engage in

illegal price discrimination. Id. The Court cautioned against “invoking broad

common-law barriers to relief where a private suit serves important public

purposes,” and in the antitrust context, the Court explained that there is an

“overriding public policy in favor of competition.” Id. at 138–39, 88 S. Ct. at

1984. “A more fastidious regard for the relative moral worth of the parties would

15
only result in seriously undermining the usefulness of the private action as a

bulwark of antitrust enforcement.” Id. That first glance does not tell the whole

story, however.

The rest of the story in Perma Life Mufflers is that the franchisees were, in

the eyes of the Court, at worst, passive violators of the antitrust laws. Because “in

pari delicto literally means ‘of equal fault,’” the Court reasoned that the doctrine

should not “deny[] recovery to injured parties merely because they have

participated to the extent of utilizing illegal arrangements formulated and carried

out by others.” Id. at 138–39, 88 S. Ct. at 1985 (emphasis added). The Court

explained that the participation of the franchisees in the alleged antitrust

conspiracy “was not voluntary in any meaningful sense.” Id. at 139, 88 S. Ct. at

1985. Although the franchisees “sought the franchises enthusiastically[,] . . . they

did not actively seek each and every clause of the agreement.” Id. The franchisees

“alleged that they had continually objected to [the violative terms].” Id. Although

the Court held that in pari delicto did not bar the franchisees from recovery, it

explicitly left open the question whether complete involvement in an antitrust

violation, “wholly apart from the idea of in pari delicto,” would bar a plaintiff from

bringing an antitrust claim. Id. at 140, 88 S. Ct. at 1985.

The later decision of the Supreme Court in Bateman Eichler is much like the

16
earlier one in Perma Life Mufflers, because the Court refused to apply the doctrine

of in pari delicto to bar tippees from recovery for insider trading under federal

securities laws. Bateman Eichler, 472 U.S. 299, 105 S. Ct. 2622. The tippees

alleged that a securities broker and a company official had induced them to

purchase company stock by providing them with materially false insider

information. Id. at 301–02, 105 S. Ct. at 2624–25. The tippees alleged that they

suffered damages when the stock price fell as a result of the false information. Id.

As in Perma Life Mufflers, the holding in Bateman Eichler was limited,

because the Court concluded that the tippees were not active participants in the

alleged violation of federal law. The Court stated that, “in its classic formulation,

the in pari delicto defense was narrowly limited to situations where the plaintiff

truly bore at least substantially equal responsibility for his injury,” id. at 306–07,

105 S. Ct. at 2627, and the Court explained that “where a plaintiff truly bore at

least substantially equal responsibility for the violation, a defense based on such

fault . . . should be recognized.” Id. at 308–09, 105 S. Ct. at 2628 (emphasis

added). The Court then concluded that the face of the complaint did not reveal that

the tippees had engaged in wrongdoing. Id. at 311 n.21, 105 S. Ct. at 2629 n.21

(stating that “the complaint does not set forth sufficient facts to conclude” that the

tippees were in delictum because “it is uncertain whether [the tippee-plaintiffs] had

17
any basis to believe that [the tipper-defendant] . . . had violated his fiduciary

duties”).

The Court explained that “there are important distinctions between the

relative culpabilities of tippers, securities professionals, and tippees in these

circumstances.” Id. at 312–13, 105 S. Ct. at 2630. The Court did “not believe that

the tippee properly can be characterized as being of substantially equal culpability

as his tippers.” Id. at 314, 105 S. Ct. at 2631. The Court concluded that, because

the tippers in Bateman Eichler “masterminded this scheme to manipulate the

market . . . for their own personal benefit[] and . . . used the . . . respondents as

unwitting dupes,” the tippees were not equally culpable. Id.

The Court in Bateman Eichler expressed its desire to advance the policy goal

of the securities laws to protect “the investing public and the national economy

through the promotion of ‘a high standard of business ethics . . . in every facet of

the securities industry.’” Id. at 315, 105 S. Ct. at 2631 (citing SEC v. Capital

Gains Research Bureau, Inc., 375 U.S. 180, 186–87, 84 S. Ct. 275, 280 (1963)).

Because “‘[t]he true insider or the broker-dealer is at the fountainhead of the

confidential information[,] . . . the most effective means . . . is to nip in the bud the

source of the information’” and allow tippees to recover from the fraudulent

tippers. Id. at 316, 105 S. Ct. at 2632 (quoting Nathanson v. Weis, Voisin,

18
Cannon, Inc., 325 F. Supp. 50, 57–58 (S.D.N.Y. 1971)). For that reason, the Court

explained that a tippee’s complaint should be barred “only where (1) as a direct

result of his own actions, the plaintiff bears at least substantially equal

responsibility for the violations he seeks to redress, and (2) preclusion of suit

would not significantly interfere with the effective enforcement of the securities

laws and protection of the investing public.” Id. at 310–11, 105 S. Ct. at 2629.

Under Perma Life Mufflers and Bateman Eichler, the application of the

defense of in pari delicto to causes of action created by federal statutes depends on

two factors: (1) the plaintiffs’ active participation in the violation vel non and (2)

the policy goals of the federal statute. See Pinter v. Dahl, 486 U.S. 622, 632–33,

108 S. Ct. 2063, 2071 (1988). Both of these factors support the application of the

in pari delicto doctrine in this appeal. We consider each factor in turn.

First, it is beyond doubt that the allegations of the trustee’s complaint render

ETS in active participation with the IRA Custodians. If anything, the conduct of

ETS was in majore delicto. Laddin alleged that “ETS devised the scheme and

promoted and marketed the sale and leaseback of payphones as investment

opportunities to individuals.” ETS also “control[led] all aspects of the operation,”

“created marketing and promotional materials,” and “promised returns . . . of 14%

19
or 15%” although it “assumed a liability it could not satisfy.” Although the IRA

Custodians allegedly “enabled thousands of investors to partake of the ETS scheme

and caused ETS to incur millions of dollars in additional debt,” ETS “devised the

scheme,” transferred funds from IRA accounts, and “with the sale of each phone, []

assumed a liability it could not satisfy.”

On appeal, Laddin fails to explain how the IRA Custodians violated RICO

while ETS was a passive bystander in their scheme to defraud. Laddin’s complaint

alleged that ETS was the hub of the Ponzi scheme to defraud investors. The

allegations in the complaint logically compel the conclusion that ETS had

“substantially equal responsibility for [its] injury.” Bateman Eichler, 472 U.S. at

308–09, 105 S. Ct. at 2628.

Second, the application of in pari delicto to bar Laddin’s complaint advances

the policy of civil liability under the federal RICO statute. Laddin argues that

plaintiffs should be allowed to recover to serve the deterrent purposes underlying

the civil liability provision of RICO regardless of whether the plaintiffs

participated in the wrongdoing. We disagree. Under RICO, “[i]t shall be unlawful

for any person employed by or associated with any enterprise . . . to conduct or

participate . . . in the conduct of such enterprise’s affairs through a pattern of

racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c)

20
(emphasis added). It would be anomalous, to say the least, for the RICO statute to

make racketeering unlawful in one provision, yet award the violator with treble

damages in another provision of the same statute. “Congress intended RICO’s

civil remedies to help eradicate ‘organized crime from the social fabric’ by

divesting ‘the association of the fruits of ill-gotten gains.’” Genty v. Resolution

Trust Corp., 937 F.2d 899, 910 (3d Cir. 1991) (quoting United States v. Turkette,

452 U.S. 576, 585, 101 S. Ct. 2524, 2529 (1981)). Laddin’s recovery under RICO

would not divest RICO violators of their ill-gotten gains; it would result in a

wealth transfer among similarly situated conspirators.

Laddin argues that some district courts and bankruptcy courts have held that

the doctrine of in pari delicto is not an available defense in federal RICO actions

because the public policy objectives of RICO are similar to those of the antitrust

laws, but Laddin’s reliance on these decisions is misplaced. See, e.g., Harper v.

AT&T, 54 F. Supp. 2d 1371 (S.D. Ga. 1999); Bieter Co. v. Blomquist, 848 F.

Supp. 1446 (D. Minn. 1994); In re Nat’l Mortgage Equity Corp., 636 F. Supp.

1138 (C.D. Cal. 1986). These courts have relied on Perma Life Mufflers to

conclude that the punitive and deterrent aspects of antitrust treble damages are

equally applicable in the racketeering context, In re Nat’l Mortgage Equity Corp.,

636 F. Supp. at 1156 (stating that the reasoning in Perma Life Mufflers is “equally

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applicable to RICO treble damage actions”), but they misinterpret the holding of

Perma Life Mufflers. Because federal RICO violations, as a matter of law, require

affirmative wrongdoing rather than passive acquiescence, Perma Life Mufflers

does not preclude the defense of in pari delicto in the RICO context.

The Court in Perma Life Mufflers premised its holding on the passive

characteristics of antitrust participants. In that context, “participation [i]s not

voluntary in any meaningful sense” when antitrust violators do not “seek each and

every clause of the agreement,” but must accept questionably violative terms to

obtain an otherwise attractive business opportunity. Perma Life Mufflers, 392 U.S.

at 139, 88 S. Ct. 1985. Perma Life Mufflers explicitly left open the possibility that

a defense of active involvement could bar a complaint about an antitrust

conspiracy, and our sister circuits have accordingly barred antitrust claims where

the plaintiff was completely involved in the antitrust conspiracy. See THI-Hawaii,

Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 995 (9th Cir. 1980) (holding that

there is “complete involvement” where “the illegal conspiracy would not have

been formed but for [the plaintiff’s] participation” and barring recovery by a

plaintiff who negotiated, prepared, and earned revenues from an exclusive sales

agreement with the defendant); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d

3, 15–16 (4th Cir. 1971) (“[W]hen parties of substantially equal economic strength

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mutually participate in the formulation and execution of the scheme and bear equal

responsibility for the consequent restraint of trade, each is barred from seeking

treble damages from the other.”); cf. Premier Elec. Constr. Co. v. Miller-Davis Co.,

422 F.2d 1132, 1138 (7th Cir. 1970) (“[W]e believe that Perma Life holds only that

plaintiffs who do not bear equal responsibility for creating and establishing an

illegal scheme, or who are required by economic pressures to accept such an

agreement, should not be barred from recovery simply because they are

participants.”).

In contrast with antitrust violations, a federal RICO violation requires

affirmative and deliberate participation. A violation of RICO requires that the

defendants “participated, either directly or indirectly, in the conduct of the affairs

of the enterprise . . . through a pattern of racketeering activity.” United States v.

Starrett, 55 F.3d 1525, 1541 (11th Cir. 1995); 18 U.S.C. § 1962(c). A “‘pattern of

racketeering activity’ requires at least two acts of racketeering activity.” 18 U.S.C.

§ 1961(5) (emphasis added); see id. § 1961(1) (defining “racketeering” as “any act

or threat involving murder, kidnapping, gambling, arson, robbery, bribery,” etc.).

The defendant also must “knowingly implement[]” and “mak[e]” decisions.

Starrett, 55 F.3d at 1548; see Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.

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Ct. 1163, 1173 (1983) (holding that the defendant “participates” if he “directs” the

pattern of racketeering activity).

Because a complaint brought by ETS, outside of bankruptcy, against other

members of its RICO conspiracy would have been barred by the doctrine of in pari

delicto, Laddin is likewise barred from recovery within bankruptcy. Laddin’s

complaint is barred because ETS was an active participant in the Ponzi scheme and

the application of the defense of in pari delicto furthers the policy of the federal

RICO statute. The district court did not err when it dismissed Laddin’s claim for

treble damages under the federal RICO statute, because his recovery was barred

based on the face of his complaint.

C. Georgia Does Not Recognize a Claim for Aiding and Abetting a Breach of
Fiduciary Duties.

Laddin contends that the doctrine of in pari delicto does not bar his claims

for aiding and abetting a breach of fiduciary duties. We need not reach this issue

because we previously have held that Georgia courts have not recognized a cause

of action for aiding and abetting a breach of fiduciary duties. Munford v.

Valuation Research Corp., 98 F.3d 604, 613 (11th Cir. 1996); see also Monroe v.

Bd. of Regents of Univ. Sys. of Ga., 602 S.E.2d 219, 224 (Ga. Ct. App. 2004)

(“Georgia has never recognized a claim for aiding and abetting a breach of

fiduciary duty.”). “[W]e may affirm for any reason supported by the record, even

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if not relied on by the district court.” Cochran v. U.S. Health Care Fin. Admin.,

290 F.3d 775, 778 n.3 (11th Cir. 2002). “Even assuming that Georgia courts will

someday recognize a cause of action for aider and abettor liability in the context of

a breach of fiduciary claim, the facts in this case do not warrant its creation now.”

Munford, 98 F.3d at 613. Because the bankruptcy trustee may only “bring any suit

that the debtor could have instituted had it not been thrown into bankruptcy,”

O’Halloran, 350 F.3d at 1202, the district court correctly dismissed Laddin’s claim

for aiding and abetting a fiduciary duty.

IV. CONCLUSION

The dismissal of Laddin’s complaint for federal RICO violations and aiding

and abetting a breach of fiduciary duties under Georgia law is

AFFIRMED.

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