FILED

NOT FOR PUBLICATION MAR 30 2016

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In the Matter of: FLASHCOM, INC., No. 13-57161

Debtor, D.C. No. 8:11-cv-01883-FMO

CAROLYN A. DYE, MEMORANDUM*

Appellant,

v.

COMMUNICATIONS VENTURES III,

LP; et al.,

Appellees.

In the Matter of: FLASHCOM, INC., a No. 13-57162 California Corporation, D.C. No. 5:13-cv-00114-FMO Debtor,

CAROLYN A. DYE, Liquidating Trustee and DAVID R. WEINSTEIN,

Appellants,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. v.

COMMUNICATIONS VENTURES III,

LP; et al.,

Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted March 9, 2016 Pasadena, California

Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

Carolyn Dye, the bankruptcy trustee for Flashcom, appeals the bankruptcy

court’s judgment and sanctions imposed on her attorney and her personally for

violation of Federal Rule of Bankruptcy Procedure 9011. We affirm.

The Trustee seeks to recover $9 million from the VC Funds and their

employees (Defendants) under the theory that Flashcom’s payment to Andra for

her common stock, or agreement to make that payment, was a fraudulent transfer

pursuant to 11 U.S.C. § 548 and that the payment was a “preference” under § 547.

1. To recover the payment as a preference, the Trustee must show among

other things that (1) Flashcom was insolvent at time of the payment, § 547(b)(3),

and (2) that the Defendants are “entit[ies] for whose benefit such transfer was

2 made” under § 550(a)(1). The bankruptcy court found at trial that Flashcom was

solvent, which is not surprising because contemporaneous arm’s length

transactions valued Flashcom’s equity at roughly $400 million. The court also

found that the transfer was not made to benefit Defendants under § 550.

The Trustee contends that § 547(b)(3) was satisfied as a matter of law

because when Andra settled with the Trustee she stipulated to the entry of a

judgment stating that § 547(b)’s criteria were met. Although we are doubtful of

the Trustee’s argument, we need not address it because she does not challenge the

bankruptcy court’s § 550 finding. Thus any error with respect to § 547(b) would be

harmless. See Fed. R. Bankr. P. 9005; Fed. R. Civ. P. 61. Although the Trustee

mentions the issue in her statement of issues and summary of the argument

sections, she does not argue the point in the body of the arguments section. This

3 waives the issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996).1

Even if we were to reach the merits, we would uphold the bankruptcy

court’s § 550 ruling. Section 550(a) requires that “the debtor must have been

motivated by an intent to benefit the individual or entity from whom the trustee

seeks to recover. It is not enough that an entity benefit from the transfer; the

transfer must have been made for his benefit.” Danning v. Miller (In re Bullion

Reserve of N. Am.), 922 F.2d 544, 547 (9th Cir. 1991) (internal quotation and

citation omitted). The bankruptcy court found that Flashcom did not intend to

benefit the Defendants. We review for clear error. See Boyer v. Belavilas, 474 F.3d

375, 377 (7th Cir. 2007). The bankruptcy court first observed that any obligation

of Defendants to Andra had been extinguished by the time of the transfer. More

1 We briefly address the Trustee’s arguments about errors in the solvency trial because such errors might affect her state law claim. Those arguments are, however, without merit. It was appropriate for the judge, in a bench trial, to defer consideration of the Daubert motion until after the testimony was given and the judge gave well reasoned explanations for admitting that testimony. The Trustee relies on Estate of Barabin v. AstenJohnson, Inc., which is plainly inapposite. See 740 F.3d 457, 464 (9th Cir. 2014). Similarly, the bankruptcy judge correctly determined that Flashcom should be valued as a going concern because it was not on its deathbed, as shown by the fact that it had just raised $84 million in equity from arm’s length parties, had recently received an unqualified audit, and was easily accessing credit markets. See Wolkowitz v. Am. Research Corp. (In re DAK Indus., Inc.), 170 F.3d 1197, 1199 (9th Cir. 1999). 4 important, it concluded that Andra’s common stock was substantially equivalent to

the new Series B shares. This meant that the VC Funds agreement to buy Andra’s

shares at a 15% discount compared to the price for the Series B shares was

advantageous for the VC Funds. Thus the court found that the only effect of

Flashcom buying Andra’s shares instead of the VC Funds doing so was that the

Funds paid more for the Flashcom shares they purchased in February 2000 than

they would have under the original agreement.

The court’s finding is not illogical, implausible, or without support in the

record and therefore is not clearly erroneous. See United States v. Hinkson, 585

F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). The court correctly found that the

new Series B shares and Andra’s common shares were very similar, and would be

identical after an IPO. While the Series B shares offered some limited benefits not

given to common shares in the event that Flashcom was purchased for less than

$400 million or in the highly unlikely event of a solvent liquidation, it was not

erroneous for the court to conclude that the 15% discount the VC Funds had

negotiated was a favorable price. Therefore, if the VC Funds did not want to use

the discount themselves, other investors would have been willing to buy Andra’s

common shares at this price in the “Unit Purchase,” leaving the VC Funds no

5 obligation. Flashcom cannot have intended to benefit the VC Funds by relieving

them of what was in essence an asset.2

2. The bankruptcy court granted summary judgment for Defendants on the

Trustee’s constructive fraudulent transfer claim under § 548(a)(1)(B)(i) because

Flashcom received “reasonably equivalent value.” A debtor receives reasonably

equivalent value if there is no negative net effect on the estate. See Frontier Bank

v. Brown (In re N. Merch., Inc.), 371 F.3d 1056, 1059 (9th Cir. 2004). We

examine the net effect of an integrated transaction as a whole and do not

formalistically look at only some part of it. See id.

We conclude that even viewing the evidence in the light most favorable to

the Trustee, Flashcom’s repurchase of Andra’s shares must be analyzed along with

the Series B offering, the net effect of which was positive¯$75 million of new

funds. The undisputed evidence showed the new equity sale and the repurchase

were interdependent. First, it was Flashcom’s investment banker who convinced

Flashcom to simplify the offering by issuing an additional $9 million of new Series

2 The Trustee points out that in denying summary judgment to Defendants on the preference issue in 2004, the bankruptcy court found that drawing all reasonable inferences for the Trustee, Defendants were benefitted parties under § 550. Insofar as the Trustee asks us to rely on this finding, she ignores the posture of the order. When the Trustee then moved for summary judgment on § 550, the bankruptcy court denied it, finding that there were material issues of disputed facts. 6 B shares and using the proceeds to retire Andra’s shares. This plan yielded

Flashcom the exact same amount of new funds on net as the Unit Purchase, but

allowed it to sell only one security, the Series B shares, instead of marketing both

Andra’s common shares and the new Series B shares. Second, the arm’s length

outside investors explicitly conditioned their purchase of the Series B shares on the

release of Andra’s legal claims against Flashcom, which in turn depended on

Flashcom’s repurchase of her shares.

The Trustee maintains that there were actually two separate transactions

here: (1) the VC Funds foist a losing contract on Flashcom and (2) Flashcom

independently raises new equity. We do not, however, find the Trustee’s evidence

sufficient for a reasonable trier of fact to conclude that the apparently

interdependent transactions should be analyzed separately. The facts of this case

closely parallel Official Comm. of Unsecured Creditors of Phar-Mor, Inc. v. Action

Indus., Inc. (In re Phar-Mor, Inc. Sec. Litig.), 185 B.R. 497, 504 (W.D. Pa. 1995).

That court granted summary judgment for the defendants, rejecting the same

argument that the Trustee makes here that outside investors would have purchased

new equity even without the buyback. It concluded that although the plaintiff

“would have us ignore the express provisions of the stock purchase agreement[,] . .

7 . [w]e will not do so.” Id.3 The same is true here. The grant of summary judgment

was appropriate.

In addition, we conclude that any error in granting summary judgment for

Defendants was harmless because, as with the preference claim, the Trustee cannot

recover under § 548 unless she shows Defendants met § 550(a). The § 550

analysis is very similar to the one discussed above. The only difference is that at

the time Flashcom agreed to buy Andra’s shares, Defendants’ contract with Andra

was still extant. Nevertheless we still conclude that the Defendants do not satisfy

§ 550(a)(1) because, as discussed, Flashcom did not intend to benefit the VC Funds

by taking on what was an asset for the Funds.

3. The bankruptcy court sanctioned Dye, her counsel, David Weinstein, and

his firm for bringing a motion in limine seeking to prevent Defendants from

contesting § 547(b) because of the stipulated judgment. This theory had already

been rejected four times. At pretrial conference, the court warned that “[Plaintiffs]

can bring whatever motion they want [on this question]. . . . And if Rule 11

sanctions are appropriate, then they may be imposed.” Dye and her counsel

3 The Trustee’s only evidence suggesting that there are separate transactions is that the VC Funds had previously agreed to buy Andra’s shares, but this is not enough. It would be speculative to conclude on this evidence that the VC Funds induced third parties to create the appearance of an integrated transaction to cover up the Funds having constructively defrauded Flashcom. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009). 8 nevertheless pushed on, bringing the motion in limine. The bankruptcy court

found the motion frivolously sought relief that was contrary to law of the case

without citing a change in the law or the facts, and that the motion was brought

with an improper purpose. The court sanctioned Dye, Weinstein, and his firm

jointly $60,000.

The bankruptcy court did not abuse its discretion. We have frequently

upheld sanctions for filing motions that duplicate one that was previously denied.

See, e.g., Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-

39 (9th Cir. 1992); Pipe Trades Council of N. Cal., U.A. Local 159 v. Underground

Contractors Ass’n of N. Cal., 835 F.2d 1275, 1281 (9th Cir. 1988). Dye and

Weinstein contend that the bankruptcy court erred in finding their motion contrary

to law of the case because a denial of summary judgment cannot establish law of

the case. We disagree: a court’s decisions on purely legal issues, like the

interpretation of § 547 and § 550 at issue here, establish law of the case, even in a

denial of summary judgment. See Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 815-16 (1988) (stating that law of the case applies “when a court decides

upon a rule of law”) (internal quotation and citation omitted). It was not improper

for Dye and Weinstein to seek reconsideration of the ruling nor to seek

interlocutory appeal and reconsideration of the denial thereof, as they did. After

9 that, however, trying to litigate the issue again without a change in the law or facts

was frivolous.

The bankruptcy court also found an intent to injure Defendants because Dye

and Weinstein knew that their filing would force Defendants to defend, yet again,

their right to litigate the § 547 question. Dye and Weinstein were warned by the

court concerning sanctions. In light of this, finding intent to injure was not

illogical, implausible, or without support in the record.

We also do not find the decision to award $60,000 an abuse of discretion.

The bankruptcy court found that defendants had reasonably expended $97,000

responding to the motion in limine and bringing sanctions. Rule 9011 specifically

authorizes the award of fees for bringing sanctions. Fed. R. Bankr. P.

9011(c)(1)(A). The court nevertheless concluded that $60,000 was sufficient to

deter repetition of such vexatious litigation by Dye and Weinstein and “others

similarly situated.” Dye and Weinstein contend that $60,000 still exceeds

Defendants’ reasonable fees. Even if the bankruptcy court were confined to

considering solely the Defendants’ fees, however, we find $60,000 to have been

reasonable. It was also proper to defer considering sanctions, at Dye’s own

10 request, until after trial. This did not make awarding sanctions at that later date

punitive.4

AFFIRMED

4 Dye’s argument that she was not on notice that she would be personally held responsible is without merit. “The Bankruptcy Code forbids reimbursing trustees for expenses incurred in actions not ‘reasonably likely to benefit the debtor’s estate,’” including sanctionable litigation conduct. See Maxwell v. KPMG LLP, 520 F.3d 713, 718-719 (7th Cir. 2008) (quoting 11 U.S.C. § 330(a)(4)(A)(ii)(I)). It was thus clear that the sanctions motion ran against her personally. 11

FILED

Dye v. Communications Ventures III et al., 13-57161, 13-57162 MAR 30 2016

MOLLY C. DWYER, CLERK

Reinhardt, J., concurring in part and dissenting in part: U.S. COURT OF APPEALS

I join in the disposition except with respect to the sanctions. Having

reviewed the record, I conclude that the Trustee’s counsel firmly believed that his

legal position was correct and filed the motion in limine to serve the interests of his

client and obviate the need for an extensive trial. He did not do so to harass or

injure the Defendants. There was no improper purpose.

As to frivolousness, the bankruptcy judge stated that the Trustee would have

to overcome a presumption in favor of the initial rulings, but he hardly made it

clear that he would view a motion giving additional reasons for reconsideration to

be sanctionable: “The Court will follow Judge Ryan's rulings on those claims

unless the Plaintiff has shown that there's reason that the Court should reconsider

Judge Ryan's rulings . . . So the ball will be in the Plaintiff's court on that.”

Indeed, the fact that Defendants spent $35,000 responding to the motion in limine

suggests that they felt there were new arguments in that motion that had not been

addressed in their previous briefing.

Sanctions are “an extraordinary remedy, one to be exercised with extreme

caution.” Operating Eng'rs Pension Trust v. A–C Company, 859 F.2d 1336, 1345

(9th Cir.1988). “Such sanctions can have an unintended detrimental impact on an

attorney's career and personal well-being.” Conn v. Borjorquez, 967 F.2d 1418, 1421 (9th Cir. 1992). Because I do not believe that the bankruptcy court here

exercised that extreme caution, I respectfully dissent as to sanctions.