Ki Capital Consultants, LLC; Jeffrey L. Grayson; Barclay L. Grayson v. Capital Consultants, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
and
EIGHTH DISTRICT ELECTRICAL
PENSION FUND; EIGHTH DISTRICT
ELECTRICAL BENEFIT FUND, No. 03-35406
Claimants-Appellants, D.C. No.
v. CV-00-01290-KI
CAPITAL CONSULTANTS, LLC;
JEFFREY L. GRAYSON; BARCLAY L.
GRAYSON,
Defendants.
THOMAS F. LENNON,
Receiver-Appellee. 
1341

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 SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
and
UNITED ASSOCIATION UNION LOCAL
290 PLUMBER, STEAMFITTER &
SHIPFITTER INDUSTRY PENSION No. 03-35407
TRUST, D.C. No. Claimant-Appellant,  CV-00-01290-KI
v.
CAPITAL CONSULTANTS, LLC;
JEFFREY L. GRAYSON; BARCLAY L.
GRAYSON,
Defendants.
THOMAS F. LENNON,
Receiver-Appellee. 
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 ELAINE L. CHAO, Secretary of the
United States Department of
Labor,
Plaintiff-Appellant,
v. No. 03-35409
CAPITAL CONSULTANTS, LLC; D.C. No.
JEFFREY L. GRAYSON; BARCLAY L. CV-00-01291-KI
GRAYSON,
Defendants,
and
THOMAS F. LENNON,
Appellee. 
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 SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
and
OREGON LABORERS-EMPLOYERS
PENSION TRUST FUND; OREGON
LABORERS-EMPLOYERS HEALTH AND
WELFARE TRUST FUND; OREGON
LABORERS-EMPLOYERS DEFINED
CONTRIBUTION TRUST FUND AND No. 03-35412
PLAN, D.C. No. Claimants-Appellants,  CV-00-01290-GMK
v. OPINION
CAPITAL CONSULTANTS, LLC,
Defendant-Appellee,
and
JEFFREY L. GRAYSON; BARCLAY L.
GRAYSON,
Defendants.
THOMAS F. LENNON,
Receiver-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
July 16, 2004—Portland, Oregon
Filed February 2, 2005
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Before: Thomas M. Reavley,* William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Reavley;
Partial Concurrence and Partial Dissent by
Judge W. Fletcher
*The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
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COUNSEL
Christopher T. Carson, Portland, Oregon, for claimants-
appellants, Eighth District Electrical Pension Fund, et al.
Barbee B. Lyon, Portland, Oregon, for claimant-appellant,
United Association Union Local 290 Plumber, Steamfitter &
Shipfitter Industry Pension Trust.
Stacey E. Elias, U.S. Dept. of Labor, Washington, D.C., for
appellant, Elaine L. Chao, Secretary of Labor.
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Harvey L. Rochman, Los Angeles, California, for appellants,
Oregon Laborers-Employers Pension Trust Fund, et al.
Jeffrey R. Patterson, San Diego, California, for appellee,
Thomas F. Lennon and defendants, Capital Consultants, LLC.
OPINION
REAVLEY, Circuit Judge:
In these consolidated appeals, beneficiaries to a receiver-
ship complain about various aspects of the receiver’s plan of
distribution. The district court approved the plan of distribu-
tion, and we affirm.
BACKGROUND
Capital Consultants, LLC (CCL),1 was an Oregon invest-
ment management company that made investments for several
hundred individuals, corporations, and employee benefit
plans. The employee plans are retirement and other employee
benefit plans subject to the Employee Retirement Income
Security Act (ERISA).2 Under investment advisory agree-
ments and powers of attorney, CCL generally had broad dis-
cretion to invest funds on behalf of its clients in publicly-held
securities as well as private assets such as real estate and pri-
vate notes.
The Securities and Exchange Commission (SEC) and the
United States Department of Labor (DOL) brought this suit to
1CCL previously did business as Capital Consultants, Inc. (CCI), and in
some of the agreements discussed below CCI was the signing or desig-
nated party. Hereinafter, CCL refers to CCL and CCI.
229 U.S.C. §§ 1001-1461. Some of the ERISA plans were also multi-
employer trust funds subject to the Labor Management Relations Act. See
29 U.S.C. § 186(c).
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place CCL into receivership. These agencies claimed that
CCL and its principals, Jeffrey and Barclay Grayson, had
invested huge sums of client money in nearly worthless loans,
and engaged in disloyal conduct and self-dealing. The briefs
describe the CCL investments in private assets as “junk debt”
and a Ponzi scheme.
The district court promptly placed CCL into receivership
and appointed appellee Thomas Lennon as receiver, on Sep-
tember 21, 2000. On this date, CCL had approximately $1 bil-
lion in client funds under management. Early in the
receivership, the receiver returned the publicly-held securities
to each client on whose behalf CCL had purchased these
securities. This action allowed the clients to see about $500
million in securities returned in relatively prompt fashion, so
that the clients could manage these assets themselves or turn
them over to new brokerage firms or investment managers.
The receiver also returned about $20 million in cash held in
clients’ custodial accounts.3 The publicly-held securities and
cash were “traced” to each CCL client.
The assets remaining with the receiver were the bad loans
and other relatively illiquid private assets CCL had purchased
on behalf of various clients, and included private loans, pri-
vate equities, and seven real estate assets. Unlike the public
securities, the private assets of the receivership were not
traced to individual clients, except that interim distributions of
certain real estate parcels were distributed to specific clients.
Clients who had invested in the real estate assets were given
the option of receiving in-kind distributions. Four properties
were distributed to clients through interim distributions.
3The $500 million and $20 million figures are based on a receiver affi-
davit in the record. The receiver’s appellate briefs, however, state that as
of the date the receivership was created, “CCL reported approximately
$442 million invested in public equities and cash.” This discrepancy may
be due to timing or other reasons, but is irrelevant to our analysis.
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In early 2002, the private loans and private equities were
sold as a single unit to an investment bank for $60 million.
The receiver also provided funds to the receivership corpus
through litigation and mediation of claims against CCL, its
principals, and other parties, and through the management and
servicing of private investments prior to their sale. The corpus
of the receivership also included the above-described real
estate. In an August 2002 affidavit, the receiver stated that the
receivership had marshaled assets valued at $259.5 million to
cover claims including administrative claims, one secured
claim, vendor claims, investor claims, and other claims. The
largest group of claims are those of the CCL clients, the
investor claims. According to the affidavit, the clients had
invested approximately $480 million in CCL private invest-
ments.
Under the Second Amended Distribution Plan developed
by the receiver and approved by the district court (the distri-
bution plan),4 the private assets of the receivership have been
pooled and each client will receive a pro rata distribution of
these assets. The value of real estate distributed through
interim distributions to individual clients was deducted from
the pro rata distribution due to these clients. This treatment of
real estate is different from the treatment of publicly-held
securities previously distributed to clients, since the distribu-
tion of publicly-held securities did not affect the pro rata dis-
tribution of private assets.
The distribution plan provides for dividends to clients
under a money-in-money-out or “MIMO” formula. Under this
formula, the client’s net loss is measured by the total amount
4The parties agree that the order implementing the plan of distribution
and a related order concerning individual properties at issue in these
appeals are final orders for purposes of appellate jurisdiction or are other-
wise appealable. To resolve any doubts as to the appealability of these
orders, the district court also certified these orders for appeal under FED.
R. CIV. P. 54(b).
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invested in private assets (money in) minus the total amount
returned to the client before the receivership (money out).5
Each client receives its pro rata share (computed by that cli-
ent’s loss to total loss of all clients) of its net loss under this
formula. The assets of the receivership are insufficient to
cover the net losses of the CCL clients. The receiver states
that he has made two distributions under the plan, in addition
to the earlier distribution of public equities and cash and the
interim real estate distributions.
Some clients have brought suits against third parties such
as trustees or professional advisors who made the decision to
invest client funds with CCL. Some of these claims are cov-
ered by insurance or fidelity bonds which retirement plans or
other CCL customers purchased themselves,6 while other
claims either are not covered by insurance or are covered by
malpractice or other insurance purchased by the third parties
who have been sued by the CCL clients or the DOL on behalf
of CCL clients. Some third-party suits have been settled,
some are ongoing, and some may be initiated in the future.
The total number of claims and dollar sums that have been or
5More precisely, the distribution plan provides that CCL clients shall
receive a pro rata share of the receivership’s assets “on a Money-in/
Money-out basis calculated as follows:
The total of the cost value of the client’s Private Investment Port-
folio investments as of January 1, 1996, if any, together with all
funds and non-cash assets paid by the client to CCL for the fund-
ing of any asset in the Private Investment Portfolio or the pay-
ment of Pre Receivership Management Fees from January 1,
1996 through September 21, 2000 (‘Money-in’), less all principal
paydowns, interest payments, or other payments in funds, securi-
ties or other property credited to the client’s account as a result
of its investment in the Private Investment Portfolio from January
1, 1996 through September 21, 2000 (‘Money-out’). In addition,
to the extent the client obtains or has obtained any Third Party
Recoveries, 50% of those amounts shall also be treated as
Money-out and deducted from the total Money-in.”
6We note that ERISA requires fiduciaries and other persons handling
plan funds to be bonded. 29 U.S.C. § 1112.
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might in the future be recovered via third-party claims are not
readily ascertained from the record.
The receiver initially proposed that third-party recoveries
should reduce a client’s claim to the receivership’s private
assets on a dollar for dollar basis. After receiving objections
to this proposal, the receiver proposed a 50 percent offset,
whereby each dollar received through third-party recoveries
would reduce the distribution from the receiver by fifty cents.
This 50 percent offset provision (the offset provision) became
a part of the final distribution plan approved by the district
court.
The appellants have filed four appeals challenging the off-
set provision and other aspects of the distribution plan. Appel-
lants in No. 03-35406 are the Eighth District Electrical
Pension Fund and the Eighth District Electrical Benefit Fund
(the Electrical Funds). Appellant in No. 03-35407 is the
United Association Union Local 290 Plumber, Steamfitter &
Shipfitter Industry Pension Trust (the Plumber’s Trust).
Appellant in No. 03-35409 is the DOL. Appellants in No. 03-
35412 are the Oregon Laborers-Employers Pension Trust
Fund, the Oregon Laborers-Employers Health and Welfare
Trust Fund, and the Oregon Laborers-Employers Defined
Contribution Trust Fund (the Oregon Laborers).
DISCUSSION
“[A] district court’s power to supervise an equity receiver-
ship and to determine the appropriate action to be taken in the
administration of the receivership is extremely broad.” SEC v.
Hardy, 803 F.2d 1034, 1037 (9th Cir. 1986). “[T]he district
court has broad powers and wide discretion to determine the
appropriate relief in an equity receivership.” SEC v. Lincoln
Thrift Ass’n, 577 F.2d 600, 606 (9th Cir. 1978). “The basis for
this broad deference to the district court’s supervisory role in
equity receiverships arises out of the fact that most receiver-
ships involve multiple parties and complex transactions.”
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Hardy, 803 F.2d at 1037. A district court’s decision concern-
ing the supervision of an equitable receivership is reviewed
for abuse of discretion. Commodity Futures Trading Comm’n
v. Topworth Int’l, Ltd., 205 F.3d 1107, 1115 (9th Cir. 1999).
A. The Offset Provision
All appellants except the Plumber’s Trust complain about
the offset provision. They advocate for the elimination
entirely of an offset provision for third-party recoveries.
1. General Objections
[1] Appellants object to the offset provision based on gen-
eral principles of equity and receivership. We believe that the
offset provision together with the other terms of the distribu-
tion plan represent an administratively workable and equitable
method of allocating the limited assets of the receivership.
The offset provision imposes a reasonable compromise that
balances the goal of encouraging CCL clients to seek third-
party recoveries and rewarding them for their efforts, and the
goal of distributing the limited assets of the receivership in a
roughly equal fashion.
These goals conflict. Eliminating the offset provision
would make for a more inequitable distribution of assets by
recognizing more loss than these appellants actually suffered.
The Ninth Circuit has noted that equity demands equal treat-
ment of victims in a factually similar case. In United States
v. Real Property Located at 13328 and 13324 State Highway
75 North, 89 F.3d 551 (9th Cir. 1996), an investment advisor
pleaded guilty to defrauding his customers and a fund was
established to partially reimburse the customers for their
losses. The district court approved an SEC-administered plan
to distribute the fund to the defrauded customers on a pro rata
basis. One customer wanted to receive all the proceeds of a
particular real estate sale, claiming that the funds to purchase
this property could be traced to it. We held that allowing this
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claim in lieu of a pro rata distribution “would frustrate equi-
ty,” and agreed with the district court that “the equities
demand that all [customers] share equally in the fund of
pooled assets in accordance with the SEC plan.” Id. at 553.
Quoting the original Ponzi scheme case, we held that “this is
a case where ‘equality is equity.’ ” Id. at 554 (quoting Cun-
ningham v. Brown, 265 U.S. 1, 13 (1924)).
We have also approved of offset provisions in cases involv-
ing similar equitable considerations. In our view, these cases
support the district court’s decision in the pending case,
despite some factual distinctions. In In re Cement and Con-
crete Antitrust Litigation, 817 F.2d 1435 (9th Cir. 1987),
rev’d on other grounds, 490 U.S. 93 (1989), we approved of
an offset provision in a antitrust class action settlement. The
class action alleged a conspiracy to fix prices for cement. The
district court approved a plan providing that amounts recov-
ered by any class member from nonsettling defendants would
offset that class member’s share of the settlement fund. We
noted that without such an offset there would exist “the possi-
bility that class members with claims against nonsettling
defendants could secure double recovery: collect from the set-
tlement fund for purchases made from settling defendants,
and also collect against the nonsettling defendants under
another settlement or a judgment.” Id. at 1439. We held that
“in adopting the offset provision, the district judge forged an
equitable solution and did not abuse his discretion,” id. at
1440, and that the offset provision “in effect applies an equi-
table weighting to claims,” id. at 1439.
In re Equity Funding Corp. of America Securities Litiga-
tion, 603 F.2d 1353 (9th Cir. 1979), also involved a class
action settlement fund. The suit arose out of the securities
fraud perpetrated by Equity Funding Corporation of America
(EFCA) and its related companies. EFCA filed for bankruptcy
in a separate proceeding, and the class action suit proceeded
against accountants and other defendants. The district court
approved a settlement plan under which members of the
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plaintiff classes would “ ‘share and share alike’ ” in the settle-
ment based on their “ ‘net adjusted losses.’ ” Id. at 1357. The
plan provided for an offset which reduced the amount of the
class member’s net losses by the value of cash and stock
received under the EFCA bankruptcy reorganization plan. The
district court and the Ninth Circuit approved of the offset pro-
vision. While the offset provision was adopted in part to
address a peculiar issue concerning the appropriate recovery
of one group of class members,7 the provision was also
approved on the basis of the district court’s more general
belief “that those claimants who had participated in the reor-
ganization proceeding had already received a varying degree
of partial recovery for those losses which formed the basis of
their claims in the securities litigation.” Id. at 1363. The dis-
trict court’s approval of the plan derived in part “from the fact
that claims of the class members far exceeded the sums in the
settlement fund,” id. at 1365, a fact also present in the pend-
ing case.
We note that Equity Funding and Cement and Concrete
involved 100 percent offset provisions, while the pending
case only involves a 50 percent offset provision. So any argu-
ments that the offset provision in the pending case would
improperly penalize those clients who made efforts to pursue
claims in other proceedings would have applied with even
greater force in Equity Funding and Cement and Concrete, yet
we approved the 100 percent offset provisions in those cases.
The parties make no persuasive argument that some CCL
clients are less deserving of compensation under the distribu-
tion plan because they were more sophisticated than other cli-
7The offset provision addressed the district court’s concern that, due to
the timing of certain securities offerings, debenture holders had been
assigned a relatively high priority as compared with other fraud claimants
in the bankruptcy plan, but had claims in the class action which arguably
were weaker than the claims of other class members. Equity Funding, 603
F.2d at 1365-66.
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ents, deliberately made riskier investments, have unclean
hands, or other reasons. According to the DOL, “which client
ultimately invested in which investment and who was left in
the lurch when CCL was shut down was more a product of
luck and timing than any exercise of discretion or informed
investment decision.” All the clients are innocent victims.
Eliminating the offset provision could mean a double recov-
ery for some clients, although the parties seem to agree that
the chances of a double recovery are small at best, and the
offset provision does not eliminate all possibility of a double
recovery anyway.8 Even if no double recoveries occur, elimi-
nating the offset provision would mean at the very least that
8The Electrical Funds claim in their brief that “[n]o ERISA plan will
obtain a double recovery, or windfall, by pursuing claims under its own
fiduciary liability insurance or bonds.” A double recovery on such claims
may not be possible if the insurance company has a right of subrogation.
However, while some clients may have recovered insurance proceeds from
their own insurance policies subject to a right of subrogation of the
insurer, the third-party claims are not limited to such claims. The Oregon
Laborers assert that a double recovery is “plainly impossible,” but we fail
to see why this is so. Indeed, for all we can tell from this record, a double
recovery is possible even with the offset provision in place, since the pro-
vision only reduces the amount of the MIMO claim by 50 percent of the
third-party recoveries. If, as appellants complain, some third-party claims
have not even been brought and tolling agreements have been formed to
circumvent the effect of the offset provision, it is impossible at this time
to conclude that no double recoveries will occur. The Electrical Funds, for
example, claim that some CCL clients have “adopted a more sensible
strategy of waiting to pursue their claims until after the Receivership
closes.” The DOL argues that “it is possible (and may well be prudent) for
CCL investors to delay asserting third-party claims until after the termina-
tion of the receivership.” The Oregon Laborers state that “[s]ome claims
. . . are subject to investigation and have yet to be litigated.” The district
court does state in its opinion and order approving of the distribution plan:
“I also acknowledge that some clients may reach a 100% recovery
between distributions from the Receiver and recoveries from third parties.
If this occurs, the Receiver is to temporarily cap that client’s distribution
until all have received a 100% recovery.” However, the court states in the
same decision that “[t]he Receiver does not propose to keep the receiver-
ship open for any additional period solely to monitor third-party claims,”
and that tolling agreements might “be used to stretch out a third-party
recovery to a point after the receivership is closed.” Therefore, the possi-
bility of a double recovery exists, whether the result of a conscious effort
to circumvent the court’s temporary cap or the offset provision, or any
other reason that a client might obtain a third-party recovery after the ter-
mination of the receivership.
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the partial recoveries for the losses of the innocent CCL cli-
ents would be more uneven than recoveries with the offset
provision in place.
Appellants variously argue that the offset provision creates
a free rider problem, in that it penalizes the CCL client who
went to the expense of purchasing insurance or who success-
fully pursues third-party claims, and correspondingly
increases the recovery of those clients who did not purchase
insurance or who do not successfully pursue third-party
claims. They argue that the offset provision creates a disin-
centive to pursue third-party claims. We do not find these
arguments so compelling that we are persuaded to hold that
the district court abused its discretion in approving a distribu-
tion plan which includes the offset provision.
First, as discussed above, the offset provision allows for
more equal compensation to innocent CCL clients, and equal
treatment is a legitimate goal in itself, even if it to some
extent conflicts with other legitimate goals. Second, clients
still have an incentive to pursue third-party claims, and are
still rewarded for their efforts, or their decision to purchase
insurance, since only half of any third-party recovery is
deducted from the client’s net loss claim. Third, to the extent
that a client incurs expenses in pursuing a third-party claim,
these expenses are offset against the amount of the third-party
recovery as measured by the receiver.9 Only the net third-
party recovery is deducted from the receivership claim.
9We so conclude because paragraph IV(G) of the distribution plan
makes reference to net third-party recoveries. The receiver states in his
briefing that “[a]ll attorney fees and costs incurred in obtaining the recov-
ery are netted and 50% of that net figure is deducted from the client’s
claim in the receivership.” The district court likewise has interpreted the
offset provision as “net of costs and fees,” and the Electrical Funds also
agree in their briefing that the 50 percent offset is “net of legal expenses.”
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2. ERISA Objections
Appellants argue that the offset provision violates ERISA.
They contend, and the receiver does not dispute, that as to
those receivership claimants who are ERISA plans, the
receiver is an ERISA fiduciary, defined to include a person
who, with respect to a plan, “exercises any discretionary
authority or discretionary control respecting management of
such plan or exercises any authority or control regarding man-
agement or disposition of its assets. . . .” 29 U.S.C.
§ 1002(21)(A).
[2] Assuming without deciding that the receiver is an
ERISA fiduciary, we find nothing in the ERISA statute which
prohibits the offset provision. Appellants cite general ERISA
provisions requiring a fiduciary to act with prudence and
undivided loyalty, and stating that the fiduciary must use plan
assets for the exclusive benefit of plan beneficiaries. E.g., 29
U.S.C. §§ 1103(c)(1), 1104(a)(1)(A) & (B). They also cite a
provision prohibiting the transfer of plan benefits to persons
other than plan beneficiaries. 29 U.S.C. § 1056(d)(1) (“Each
pension plan shall provide that benefits provided under the
plan may not be assigned or alienated.”). Appellants do not
persuade us that the offset provision violates those provisions.
In this case, any distribution scheme necessarily requires
the receiver to divide up assets of the receivership which are
inadequate to cover all the net losses of all the CCL clients.
A change in the distribution formula that increases the distri-
butions to some clients and reduces the distributions to others
does not alone imply a breach of fiduciary duty by the
receiver. By this reasoning, eliminating the offset clause
would violate ERISA since it would favor some ERISA plans
over others.
In this context, we find unpersuasive the argument of the
Electrical Funds that the receiver violated ERISA because
“[u]nder the duty of loyalty, the inquiry is not whether the
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50% offset is fair to the CCL clients as a whole. The Receiver
must show that he has acted in the best interests of the partici-
pants and beneficiaries of each of the ERISA Plans.” This
argument ignores the limited fund aspect of this case. In a
zero sum game, favoring one fund necessarily disfavors
another. The Oregon Laborers’ argument that the receiver
never “considered what was best for any plan” ignores the
impossibility of doing what is best for every claimant to a
limited fund. Holding the receiver to a standard of undivided
loyalty to a particular client makes little sense in this context.
The ERISA statute does not require the fiduciary to achieve
the impossible; it requires that he act “with the care, skill, pru-
dence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a
like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B)
(emphasis added).
To the extent appellants argue that some non-ERISA plans
would see increased distributions at the expense of ERISA
plans, they cite no authority persuading us that the receiver
was legally obligated to favor ERISA plans over non-ERISA
plans. The DOL appears to concede that no such higher duty
to ERISA clients exists.10
Further, appellants do not explain, with appropriate citation
to proof in the record, what effect the elimination of the offset
provision would have on the overall split of receivership
assets between ERISA and non-ERISA claimants. The
receiver claims that many ERISA plans are not expected to
obtain third-party recoveries. If the receiver is correct, these
ERISA plans will actually be worse off if the offset provision
is eliminated.
10The DOL states that it “does not suggest that the receiver’s duties of
prudence and loyalty obligated him to favor the [ERISA] plans in any way
or prioritize their claims.”
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The DOL argues that it is improper “to require ERISA
plans to effectively transfer 50% of recoveries that are
uniquely available to them to other CCL investors before the
plans have been made whole for their own losses.” The Elec-
trical Funds and the Oregon Laborers similarly argue that
under ERISA and receivership law the receiver and the dis-
trict court had no power or “jurisdiction” over their third-
party claims, and that ERISA prohibits their “dominion” over
such claims. The receiver is not in our view illegally transfer-
ring from one ERISA plan to another CCL client an asset
belonging to the ERISA plan. The ERISA plan is free to pur-
sue third-party claims as it wishes. The receiver is adjusting
the claim of the ERISA plan to the assets of the receivership,
to reflect monies received from third-party claims. Ultimately,
this argument is simply another way of arguing that the offset
rule creates a free rider problem, and we find no provision in
the ERISA statute that compels us to alter our analysis or our
conclusion that the district court did not abuse its discretion.
[3] The district court and the receiver were not attempting
to exercise “jurisdiction” over third-party actions. A judge is
allowed to reduce a judgment in his own court to reflect the
amount a plaintiff has already received from another party or
in another proceeding. See, e.g., Vesey v. United States, 626
F.2d 627, 633 (9th Cir. 1980); Layne v. United States, 460
F.2d 409, 411 (9th Cir. 1972). The court in the pending case
was simply fashioning equitable relief in its own case to allow
for a more equal distribution of limited funds to the many
innocent victims of CCL’s collapse. A somewhat similar
argument was rejected in Equity Funding, discussed above.
The district court in that class action approved an offset provi-
sion which reduced distributions to class members who had
already received assets in a separate bankruptcy proceeding.
The Ninth Circuit rejected the argument that the offset vio-
lated the “integrity” of the bankruptcy proceeding and held
that the distributions made in the bankruptcy court “were not
reduced or modified” by the class action settlement plan. 603
F.2d at 1363-64.
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3. Collateral Source Rule
The Electrical Funds and the Oregon Laborers argue that
the offset provision violates the collateral source rule under
Oregon law. The DOL makes the same argument, citing the
Restatement (Second) of Torts § 920A(2) and comment b.
Appellants cite no authority as to why Oregon law or any
state’s common law should govern this question, and incon-
sistently argue that ERISA, a statute known for its complete
preemption of state law, should govern. Regardless, the col-
lateral source rule strikes us as inapplicable to the circum-
stances presented.
[4] Generally, “[u]nder the collateral source rule, the tort-
feasor is not entitled to be relieved of the consequences of its
tort by some third party’s compensation to the victim.”
Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1134 (9th Cir.
2003). In the pending case, the alleged tortfeasors, including
CCL and the Graysons, were not relieved of the consequences
of their conduct by the offset provision. The offset provision
only affected the distribution of limited receivership funds,
obtained through litigation and other means, to the various
innocent CCL clients. “The primary justifications for the col-
lateral source rule are that the defendant should not get a
windfall for collateral benefits received by the plaintiff and
that the defendant should not profit from benefits that the
plaintiff has paid for himself.” McLean v. Runyon, 222 F.3d
1150, 1156 (9th Cir. 2000). Again, the alleged wrongdoers
pursued by the receiver—the Graysons, CCL, and others—did
not receive a windfall from the offset provision. The offset
provision only affects how the assets recovered by the
receiver are distributed among the innocent claimants. We
similarly noted in Equity Funding that the offset rule was not
applied in that case “to benefit any joint tortfeasor. Rather, the
use of the offset was for the purpose of allocating the avail-
able settlement funds among the various claimants.” 603 F.2d
at 1364.
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B. Treatment of Interim Real Estate Distributions
The Oregon Laborers and the Plumber’s Trust complain
about the way interim real estate distributions were treated by
the receiver. As discussed above, publicly-traded equities
were traced and returned to each client. The value of the pub-
lic equities did not affect the distribution of pooled private
assets under the receiver’s distribution plan. Instead, each cli-
ent’s claim to the pooled private assets was a pro rata share
of that client’s net loss in the private investments only.
The receiver later allowed CCL clients to take interim dis-
tributions of real estate assets. The Oregon Laborers and six
other clients took an interim distribution of a building known
as the AT&T building, and the Plumber’s Trust took distribu-
tions of three properties known as Crimson Corners, One
Tech, and Two Tech. Unlike the public securities, the value
of an interim real estate distribution was deducted from the
client’s claim under the distribution plan, thereby reducing its
loss and pro rata share.
1. Oregon Laborers
The Oregon Laborers complain that the receiver should not
have given different treatment to the public equities and the
real estate parcels traced and distributed to particular CCL cli-
ents via interim distributions. They argue that either (1) the
receiver should have included the public equities in the
pooled assets, presumably using a net gain or loss calculation
similar to that used for private investments; or (2) the receiver
should not have deducted the value of interim real estate dis-
tributions from clients’ claims to the receivership’s pooled
private asset fund.
This argument is not wholly without merit. While some
CCL clients had agreements restricting investments in public
securities, these requirements were not always followed, and
in the end the mix of private and public investments for any
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particular client was a matter of chance. As the receiver con-
cedes in his brief, “clients were frequently swapped in and out
of particular investments in order to meet funding require-
ments and client requests to liquidate investments. In the end,
by the time the receivership was initiated, a particular client’s
portfolio mix was, to a large degree, a result of fortuity.”
However, we cannot agree that failing to treat the public
and private equities in an identical fashion was an abuse of
discretion. The receiver’s prompt distribution of public equi-
ties (along with cash) allowed the receiver to return a large
portion of CCL assets under management to the CCL clients
or new investment managers, rather than tying these assets up
for years in this receivership litigation. In an affidavit, the
receiver justified this treatment of public equities on “their
relatively liquid nature, volatility in price, and the lack of
competent CCL staff to manage the public equity portfolios
on a daily basis.” This justification strikes us as entirely
sound. The receiver was not in a position to actively manage
portfolios of publicly-traded securities for clients in addition
to his other difficult duties. There was no need to pool the
public equities to facilitate their liquidation. The distribution
was made promptly, before the receiver had time to conduct
litigation and mediation regarding the private assets, and oth-
erwise attempt to marshal the private assets and the proceeds
from the management and bulk sale of these assets. As far as
we can tell from the record, no CCL client preferred that the
public equities remain under the control of the receiver or
objected to the early distribution of these assets out of the
receivership.
[5] Looking at the treatment of interim distributions of real
estate, the receiver was entirely justified in deducting the
value of a distribution to a particular client from that client’s
claim to the remaining pooled private assets of the receiver-
ship. There is simply no sound reason to do otherwise, if the
distribution of private assets is considered by itself, without
regard to the earlier distribution of public equities. A party
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should have his claim to the pooled fund reduced by the value
of the property he received, since such a distribution is a valu-
able dividend just like any other dividend of assets from the
receivership.
Failing to deduct the value of the interim distribution of the
AT&T building would be particularly unfair, since the Ore-
gon Laborers chose to take an interim distribution of that
property, which is worth more than they paid for it, but chose
to leave in the common pool of private assets two other prop-
erties which are worth less than they paid for them. In effect,
the Oregon Laborers want to keep for themselves their win-
ner, but leave their losers in the shared pool. We agree with
the district court that this result would be inequitable.
Our only difficulty is deciding whether, assuming that the
early distribution of public equities was warranted, the value
of the public equities should have been carried in the receiv-
er’s books and considered when calculating the net loss of
each client, for purposes of deciding each client’s pro rata
share of the private assets pooled in the receivership. In the-
ory, the receiver could have calculated each client’s net loss
based on client funds invested in both public and private
assets. To the extent the Oregon Laborers make this argu-
ment, we find it a close one.
We conclude, however, that the district court did not abuse
its discretion in overruling this objection. First, requiring the
calculation of public equity gains and losses would impose a
massive new administrative burden on the receiver, one he
describes as Herculean. The receiver was not previously
required to calculate gains and losses in the public securities
because they were simply returned to individual clients or
designated agents.
Second, there is some inconsistency in the Oregon Labor-
ers’ position. Like other appellants, they argue that their third
party recoveries should not in effect be pooled through the
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offset provision, because these recoveries are separate assets
belonging to each CCL client, but they take issue with the
receiver’s failure to pool all the public assets held by CCL cli-
ents. Clever lawyers can no doubt explain away this apparent
inconsistency, but the truth is that all appellants (except the
DOL) make elaborate and less than compelling arguments for
redistributing the assets of the receivership in ways that will
benefit them at the expense of other CCL clients or even each
other.
Third, the receiver points out that recalculating gains and
losses at this late stage based on a unified approach that con-
siders the gains and losses in both public and private assets
would require some innocent clients to disgorge the value of
distributions of public equities received years ago. Such a
result strikes us as unnecessary and undesirable.
An analogous line of authority holds, in the bankruptcy
context, that a reorganization plan should not be “undone” if
it has been substantially implemented and it would be inequi-
table for the court to consider the merits of an appeal due to
a “comprehensive change of circumstances.” In re Roberts
Farms, Inc., 652 F.2d 793, 798 (9th Cir. 1981). The courts
sometimes refer to this doctrine as the “equitable mootness”
doctrine. The doctrine turns in part on whether the appellant
moved for a stay in the district court. Id. The Oregon Laborers
did not move to stay the distribution of public equities.11 The
11The Oregon Laborers point out that, in seeking the early distribution
of public equities, the receiver stated to the court and to CCL clients that
he was reserving claims the receivership may have to the value of the pub-
lic equities, including the right to offset their value against future distribu-
tions. Nevertheless, the Oregon Laborers did not seek a stay of the
distribution of public equities, nor do they point to any proof that they
were remotely interested in such a stay or in the pooling of public equities
at the time the receiver distributed them. The Oregon Laborers also claim
that early in the receivership the receiver even stated that he might find it
necessary to seek disgorgement of the public equities, but their record cite
is to a passage in an interim report less than two months after the receiv-
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doctrine also turns in part on whether the transactions at issue
are complex and would be difficult to unwind. In re
Lowenschuss, 170 F.3d 923, 933 (9th Cir. 1999). The receiver
persuades us that attempting at this stage to pool the value of
the public securities with the private assets and to recalculate
every CCL client’s net loss would be a highly complex under-
taking. The ability of the receiver to require and obtain dis-
gorgement where necessary, at a reasonable cost, is also in
question.
Even where the appellate court does not find the equitable
mootness doctrine applicable, we have held, in a case where
we refused to order a disgorgement of fees and expenses, that
“a court may still hold that the equities weigh in favor of dis-
missing the appeal.” In re S.S. Retail Stores Corp., 216 F.3d
882, 885 (9th Cir. 2000).
[6] The pending case is not a bankruptcy case that falls
squarely within the equitable mootness doctrine, but the cir-
cumstances are sufficiently analogous for us to conclude that
the district court did not abuse its discretion in rejecting the
Oregon Laborer’s request for identical treatment of public
equities and interim real estate distributions.
er’s appointment, where he states that he “must be careful not to overpay
dividends from the liquidation of Private Investments in order to minimize
the need to seek disgorgement of funds from clients” (emphasis added).
We cannot tell whether this passage is referring to the possible need for
disgorgement of public equities or private assets to be distributed by the
receiver at a later date. Furthermore, by the time of this report, the distri-
bution of public equities was underway, and the receiver states at the
beginning of this report, in bold print, that due to “the shortness of time,
the complexity of the matters analyzed and the need for additional infor-
mation,” the report must be considered preliminary and “the Receiver may
need to materially modify its contents after further consideration.” Even
if the receiver had stated that disgorgement of public equities might be
necessary, there is no citation to the record to prove that the Oregon
Laborers sought a stay of the distribution of public equities, or refrained
from doing so based on reliance on this preliminary, cryptic comment
made after the distribution had begun.
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2. Plumbers
Three real estate parcels known as One Tech, Two Tech,
and Crimson Corners were returned to the Plumber’s Trust
via interim distributions. The Plumber’s Trust complains that
the receiver effectively “took” or “seized” these properties
and improperly gave them to others. They argue that the prop-
erties should be excluded from the receivership estate. We
reject this argument.
All of the assets held by CCL and later by the receiver were
held in trust for CCL’s clients. The three parcels at issue were
returned to the Plumber’s Trust. As with other interim real
estate distributions, the value of these assets were deducted
from the Plumber’s Trust’s claim to the pooled private assets
held by the receiver and distributed pro rata to CCL clients.
We endorse the fairness of this approach for the reasons dis-
cussed above. The Plumber’s Trust give no persuasive rea-
sons that their properties were entitled to different treatment.
[7] To the extent that the Plumber’s Trust complains that
the parcels “belonged” exclusively to them, and must be
returned to them under ERISA or principles of receivership or
property law, these properties were returned to them. To the
extent that it argues that it “owned” the properties or had
“title,” “legal title,” or “sole legal title” to them, we fail to
grasp the significance of such ownership with respect to the
equitable distribution of CCL’s assets under management.
The receiver did not sell the properties and thereby divest the
Plumber’s Trust of its legal title to them. Equitable, if not
legal, title to all assets under the management and control of
CCL was held by CCL clients. This is always the case where
a fiduciary or agent manages assets for a principal. All
garden-variety stock brokerage firms, for example, hold equi-
ties in trust for their clients, and holding the stock in street
name is little more than an administrative convenience that
does not deprive the clients of equitable and legal rights in the
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securities.12 By the reasoning of the Plumber’s Trust, the dis-
trict court could not have ordered the pooling and pro rata dis-
tribution of public equities, because each client owns and has
title to the equities CCL purchased for that client’s account,
a position directly at odds with the position of the Oregon
Laborers, who argue that the pooling of public equities was
not only allowed but required if the receiver does not alter its
treatment of interim real estate distributions. In our view, the
pooling and pro rata distribution of public equities was neither
prohibited nor required by ERISA or general principles of
receivership or state property law.
Whether or not legal documents identified the Plumber’s
Trust or CCL as the title holders of the properties strikes us
as irrelevant to the receiver’s task of equitably distributing the
private assets CCL invested in and controlled for the benefit
of its clients, once one accepts that the pooling of such assets
and a pro rata distribution was an appropriate method of equi-
tably distributing the private assets. We agree with the district
court that a pooling and pro rata distribution, as opposed to
the tracing of assets, was appropriate. See Real Property, 89
F.3d at 553.13
We do not understand the Plumber’s Trust to argue that
pooling should be abandoned entirely. Indeed, the Plumber’s
12See Silber v. Mabon, 957 F.2d 697, 699 (9th Cir. 1992) (“Under com-
mon industry practice, most publicly traded stock is held in the ‘street
name’ of brokerage houses for the benefit of their customers. Only broker-
age houses or other ‘record owners’ appear on official corporate transfer
records. The actual interest in the stock (and consequently, the interest in
any lawsuit relating to the stock) is that of the beneficial owner.”).
13In Real Property, we agreed with the following “eminently sensible
statement of the law” by the district court: “ ‘[W]here, as here, the struggle
over the res derived from fraudulent conduct is between innocent parties,
tracing should not and will not apply. . . . Instead of engaging in a tracing
fiction, the equities demand that all [defrauded customers] share equally
in the fund of pooled assets in accordance with the SEC plan.’ ” 89 F.3d
at 553.
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Trust does not object to other properties in which it has partial
ownership interests being left in the receivership for pooling
and pro rata distribution. Like the Oregon Laborers, the
Plumber’s Trust wishes to engage in cherry picking, taking
for itself those properties in which it has a gain and leaving
in the shared pool of assets the properties in which it has huge
losses.
The only colorable argument the Plumber’s Trust appears
to make is that the three parcels at issue were never under the
control and management of CCL, and therefore did not
devolve to the receiver for distribution in any manner. Stated
another way, the Plumber’s Trust argues that the receiver’s
interim distribution of the properties was a non-event, in that
the properties were never part of the receivership estate, and
should not have been considered when calculating the Plumb-
er’s Trust’s pro rata claim to the remaining pooled private
assets of the receivership. We reject this argument.
The order appointing the receiver granted him “full powers
of an equity receiver, including . . . full power over all funds,
assets, collateral, premises (whether owned, leased, occupied,
or otherwise controlled), . . . and other property belonging to
or in the possession of or control of Capital Consultants.
. . .” CCL decided to place the Plumber’s Trust as an investor
in the three parcels and the properties were controlled and
managed by CCL like other assets under CCL management.
In our view, there is nothing unique about these properties
that places them outside the receivership. They were, like
other assets belonging to the Plumber’s Trust and other cli-
ents, part of a portfolio of assets managed by CCL as agent
for the benefit of the Plumber’s Trust.
The documentation in the record, whose authenticity is not
disputed, indicates that CCL had significant if not absolute
management and control authority over the three properties.
Under investment advisory agreements between CCL and the
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Plumber’s Trust, CCL had broad authority to manage and
control assets for the Plumber’s Trust.14
CCL’s authority is apparent from the management history
of the individual properties. The Crimson Corners property
was a shopping center originally built with a loan from
another CCL client. The client decided to terminate its rela-
tionship with CCL, so CCL substituted Plumber’s Trust on
this loan through a document styled an assignment of trust
deed. The borrower later defaulted on this loan and a deed in
lieu of foreclosure was prepared naming the Plumber’s Trust
as the title holder of this property. We agree with the receiver
that it was fortuitous that the default and the decision of
another client to terminate its relationship with CCL resulted
in the Plumber’s Trust being named in a deed as fee title
owner to this property. The Plumber’s Trust played no role in
selecting this property as a part of its asset portfolio.
The One Tech and Two Tech properties were adjacent
properties conveyed to general partnerships in 1984 and 1985,
respectively. Plumber’s Trust board meeting minutes indicate
that the initial Plumber’s Trust investment in One Tech was
proposed by CCL, with a view toward keeping the assets of
14Under a 1975 Investment Advisory Agreement, CCL was granted the
authority to manage a designated portfolio of assets for the Plumber’s
Trust, and was authorized “to invest and reinvest the assets in the Portfolio
on behalf of CLIENT. ADVISER’s authority includes the power to pur-
chase, sell and exchange property, and exercise whatever rights are con-
ferred upon the holder of property held in the Portfolio. . . .” Attached to
this agreement and incorporated by reference was CCL’s standard form
Trading Authorization and Limited Power of Attorney, appointing CCL as
the agent and attorney in fact for the Plumber’s Trust, “with full power
and authority . . . to buy, sell, and to trade in stock, bonds and any other
securities, commodities, or other properties . . . .” A 1994 Trading Autho-
rization and Limited Power of Attorney contains the same language. A
1987 Investment Advisory Agreement states that CCL, “in its sole discre-
tion, shall have the unlimited right to invest and reinvest the Plan’s
assets.”
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the trust diversified.15 The Plumber’s Trust was one of three
general partners in each of these partnerships. Funds from the
Plumber’s Trust were used to construct buildings on the One
Tech and Two Tech properties pursuant to the terms of the
partnership agreements. The partnership agreements were
signed on behalf of the Plumber’s Trust by David Nelson, a
CCL vice president. The agreements required that notices to
the Plumber’s Trust be sent to CCL and counsel for CCL,
rather than to the Plumber’s Trust or its counsel. The other
two partners withdrew from the partnerships in 1998, pursu-
ant to agreements signed by CCL vice president Linda Lucas
on behalf of the Plumber’s Trust. In 1995, CCL recommended
that the direct management of the buildings constructed on the
One Tech and Two Tech properties “be taken in-house by
[CCL] in order to effect a cost savings to the Trust of approxi-
mately 30%.” The Plumber’s Trust agreed to this proposal.
In 1999, CCL’s Linda Lucas, on behalf of the Plumber’s
Trust, conveyed One Tech and Two Tech to limited liability
companies in which the Plumber’s Trust was the sole mem-
ber. Under Operating Agreements also signed by Lucas, CCL
was named as the sole manager of these companies, with the
“sole and exclusive right to manage the business of the Com-
pany,” including the right and power to control and manage
the properties, although it appears that the approval of the
15Minutes of an August 10, 1984 board meeting indicate that there was
a discussion of the investment earlier reported on by Mr. Grayson of CCL.
August 17, 1984 minutes state that further discussion of the investment
occurred at a board meeting held at CCL offices. “The Trustees discussed
this investment of approximately $3 million in view of ERISA and the
portfolio diversification.” Counsel for the Plumber’s Trust, Mr. Zalutsky,
“reminded the [Plumber’s Trust] Trustees that Capital Consultant’s Inc.
has the responsibility to make investment decisions for the Plan. The pur-
pose of this meeting was merely to advise the Trustees of the investment.
Mr. Zalutsky inquired and Mr. Grayson [of CCL] confirmed that Capital
Consultants, Inc. has the sole responsibility for the investments of the
Trust . . . .”
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Plumber’s Trust was required before CCL could sell the prop-
erties in their entirety.16
The Plumber’s Trust offered an affidavit from a title com-
pany officer opining that CCL lacked the authority to transfer
“insurable title” to the three properties, but the investment
advisory agreements, operating agreements, and related docu-
ments gave CCL authority to control and manage these prop-
erties at the very least. Whether a title company would be
willing to issue title insurance does not decide the question of
whether these properties were under the control and manage-
ment of CCL in like manner with other private assets of CCL
clients for purposes of deciding whether to treat these proper-
ties as part of the receivership. To the extent that the Plumb-
er’s Trust relies on its expert’s opinion to argue the extent of
CCL’s authority under the agreements between these parties,
the interpretation of these agreements and their legal effect is
16Specifically, the Operating Agreements granted CCL the exclusive
“right and power, on behalf of and in the name of the Company, to . . .
[p]urchase, take receive, lease or otherwise acquire, own, hold, improve,
use and otherwise deal in or with real or personal property or any interest
in real or personal property, wherever situated,” and to “[s]ell, convey,
mortgage, pledge, create a security interest in, lease, exchange, transfer
and otherwise dispose of all or any part of the Company property or
assets.” The agreements also provided, however, that the approval of the
Plumber’s Trust was required before CCL as manager could sell or trans-
fer all or substantially all the assets of the company. So far as we can tell
the One Tech and Two Tech properties were the only assets of the limited
liability companies. However, the receiver contends that even though the
Operating Agreements required the Plumber’s Trust’s consent to sell the
properties, the then operative Trading Authorization and Limited Power of
Attorney, described above, gave CCL authority to give that consent as the
Plumber’s Trust’s agent and attorney in fact. We also note that while CCL
might have needed the approval of the Plumber’s Trust to sell the proper-
ties, it does not follow that the Plumber’s Trust had authority to sell the
properties, since the Operating Agreements also state that the Plumber’s
Trust, as a member of the limited liability companies who was not a man-
ager, “shall not have any authority or power to act as agent for or on
behalf of the Company, [or] to do any act which would bind the Company
with respect to any third party . . . .”
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an issue of law for the court. Experts may interpret and ana-
lyze factual evidence but may not testify about the law. Crow
Tribe of Indians v. Racicot, 87 F.3d 1039, 1045 (9th Cir.
1996).
[8] With regard to the three properties, the district court
was faced with a novel and arcane dispute. “As we have rec-
ognized, case law involving district court administration of an
equity receivership . . . is sparse and is usually limited to the
facts of the particular case.” Hardy, 803 F.2d at 1037. The
district court carefully analyzed the history of the three par-
cels in a separate opinion. It concluded, “[b]ased on CCL’s
control of the three pieces of real property . . . that all three
should be included in the receivership estate and distribution
plan.” We agree with this conclusion. During the relevant
period the three properties were always a part of the portfolio
of assets under the management of CCL for the benefit of the
Plumber’s Trust or another client. The Plumber’s Trust offers
no legal or equitable reasons compelling us to hold that the
district court abused its discretion in allowing the receiver to
deduct from the Plumber’s Trust’s pro rata distribution claim
the value of the three parcels it had already received via
interim real estate distributions. Given that “a district court’s
power to supervise an equity receivership and to determine
the appropriate action to be taken in the administration of the
receivership is extremely broad,” Hardy, 803 F.2d at 1037,
and that “the district court has broad powers and wide discre-
tion to determine the appropriate relief in an equity receiver-
ship,” Lincoln Thrift, 577 F.2d at 606, the district court was
not required to do otherwise.
AFFIRMED.
W. FLETCHER, Circuit Judge, concurring and dissenting:
All members of the panel agree that the Receiver has done
an excellent job in this difficult and complex case, and I agree
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with the majority’s opinion in all respects but one. Unlike the
majority, I would hold that the district court erred in approv-
ing the 50% offset for damages recovered by ERISA plans
from third parties.
The United States Secretary of Labor (“the Secretary”) has
the statutory responsibility to administer ERISA. See, e.g., 29
U.S.C. §§ 1031(c) and 1135 (authority to issue regulations);
id. § 1132 (a)(2) (authority to bring civil enforcement
actions); id. § 1134 (investigative authority); id. § 1137
(administrative procedure); id. § 1138 (appropriations to carry
out “functions and duties” under ERISA). The Secretary con-
tends that the 50% offset for third-party recoveries violates
ERISA. I agree with the Secretary.
The Secretary was the first to file suit contending that Capi-
tal Consultants, LLC (“CCL”) had violated ERISA and seek-
ing a receivership. After the Secretary filed suit, plan trustees
filed suit under ERISA; non-ERISA investors filed suit under
federal and state laws; and the Securities and Exchange Com-
mission filed suit under the federal securities laws. Over the
course of several years, the Receiver marshaled the assets of
CCL, made some distributions to claimants, and recom-
mended a final plan of distribution that was approved by the
district court.
The parties and the district court agree that the Receiver is
a fiduciary of the ERISA plans that are claimants in the
receivership. The majority opinion merely assumes without
deciding that the Receiver is an ERISA fiduciary, Maj. Op. at
1358, but in my view the point is beyond debate. Under
ERISA, a person “is a fiduciary with respect to a plan to the
extent . . . he exercises any discretionary authority or discre-
tionary control respecting management of such plan or exer-
cises any authority or control respecting management or
disposition of its assets.” 29 U.S.C. § 1002(21)(A). ERISA
“defines ‘fiduciary’ not in terms of formal trusteeship, but in
functional terms of control and authority over the plan, thus
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expanding the universe of persons subject to fiduciary duties
— and to damages —” under the statute. Mertens v. Hewitt
Assocs., 508 U.S. 248, 262 (1993) (citation omitted; emphasis
in original). We construe ERISA fiduciary status “liberally,
consistent with ERISA’s policies and objectives.” Ariz. State
Carpenters Pension Trust Fund v. Citibank (Ariz.), 125 F.3d
715, 720 (9th Cir. 1997).
As an ERISA fiduciary, the Receiver must comply with
ERISA’s fiduciary duties of loyalty. ERISA requires that
a fiduciary shall discharge his duties with respect to
a plan solely in the interest of the participants and
beneficiaries and —
(A) for the exclusive purpose of:
(i) providing benefits to participants
and their beneficiaries[.]
29 U.S.C. § 1104(a)(1) (emphasis added). ERISA fiduciary
duties are “the highest known to the law.” Howard v. Shay,
100 F.3d 1484, 1488 (9th Cir. 1996) (quoting Donovan v.
Bierwith, 680 F.2d 263, 272 n.8 (2d Cir. 1982)). As a result,
an ERISA fiduciary must have “ ‘an eye single’ toward bene-
ficiaries’ interests.” Pegram v. Herdrich, 530 U.S. 211, 235
(2000) (quoting Donovan, 680 F.2d at 271).
The majority holds that the Receiver acted within his dis-
cretion when he required that any claim by an ERISA plan
would be offset by 50% of any recovery from third parties by
that plan. Although the majority does not say it in so many
words, it holds that the Receiver’s fiduciary obligation under
ERISA was overridden by some general interest in fairness,
as the Receiver understood fairness, to other receivership
claimants. However, the majority points to no provision in
ERISA itself, or in the federal common law of ERISA, that
would permit such a result.
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In interpreting ERISA’s fiduciary provisions, we draw on
the common law of trusts unless it is inconsistent with the
statute’s language, structure, or purposes. See Harris Trust &
Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 250
(2000); Waller v. Blue Cross of Calif., 32 F.3d 1337, 1344
(9th Cir. 1994). Trustees of ERISA plans (and, by extension,
fiduciaries occupying positions analogous to trustees) have an
obligation to preserve all assets of the plan. As the Supreme
Court wrote in Central States Pension Fund v. Central Trans-
port, Inc., 472 U.S. 559 (1985), “One of the fundamental
common-law duties of a trustee is to preserve and maintain
trust assets[.]” Id. at 572; see also Collins v. Pension and Ins.
Comm., 144 F.3d 1279, 1283 (9th Cir. 1998) (“Plan trustees
have a general duty to ensure a plan receives all funds to
which it is entitled, so that those funds can be used on behalf
of participants and beneficiaries.”).
In this case, a number of ERISA plans have brought suc-
cessful third-party suits arising out of the CCL debacle.
Many, though not all, of those suits were brought against
ERISA plan trustees for insufficient supervision of the plans’
investments with CCL. See 29 U.S.C. § 1104(a) (setting forth
standard of care). Recoveries have come not only from the
trustees and their insurers, but also from insurance policies
purchased by the ERISA plans to cover shortfalls in recov-
eries from trustees. See id. § 1110(b)(1) and (b)(2) (permitting
both trustees and plans to purchase insurance for losses aris-
ing from fiduciary breach). No one disputes that, absent the
receivership, all of the third-party recoveries would be assets
of the ERISA plans. Moreover, no one disputes that the plans
paid their trustees salaries sufficient to induce them to serve
as trustees despite their liability for mismanagement, and that
many of the plans paid for additional insurance out of plan
assets.
I accept as fully applicable to this case the equal treatment
principle of receivership law. Equality is, indeed, equity. See,
e.g., Cunningham v. Brown, 265 U.S. 1, 13 (1924) (in distrib-
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uting assets of estate in bankruptcy, “equality is equity”);
United States v. 13328 & 13324 State Highway 75 North, 89
F.3d 551, 553-54 (9th Cir. 1996) (disallowing tracing claim
in equity receivership when assets of all defrauded creditors
had been commingled; quoting the “equality is equity” phrase
from Cunningham). But the “equality is equity” principle
does not mean necessarily, or even usually, that all claimants
must receive equal percentage payouts on their claims. For
example, equality of treatment of secured creditors and unse-
cured creditors in bankruptcy does not mean that both receive
equal percentage payouts. Rather, secured creditors receive all
they are owed, up to the value of their security. Or, to take an
even more obvious example, equality of treatment in bank-
ruptcy does not mean that claimants get more or less from the
bankruptcy estate depending on what other assets they have.
In this case, the ERISA plans are comparable to bankruptcy
creditors who have assets outside the bankruptcy estate. The
plans are claimants in the receivership, and they have assets
— in the form of recoveries from third parties — that, absent
the receivership, are their sole and undisputed property. The
right to these assets was purchased by the plans prior to and
independently of the receivership. The third-party suits, and
the resulting plan assets, effectuate Congress’s desire in
ERISA to provide special protection to participants and bene-
ficiaries of ERISA plans. See 29 U.S.C. § 1001(b).
All investors in CCL were free to purchase insurance, or
otherwise to pay to protect themselves against malfeasance. If
they did not, that was their choice. The choice not to purchase
insurance or other protection was not irrational, for it pro-
duced an obvious potential benefit: If CCL had performed as
promised, such investors would have earned a higher rate of
return on their investment as a result of not having paid that
money. Yet the Receiver and the panel majority have
approved a distribution plan that takes away 50% of the third-
party recoveries of the ERISA plans, for which those plans
have paid and for which other claimants have not.
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The majority’s decision is purportedly in the service of the
“equality is equity” principle. But the Receiver (and the
majority) cannot justify the offset based on that principle, for
if the Receiver really believed the principle required negating
the plans’ third-party recoveries, he would not have required
merely a 50% offset. He would have required a 100% offset.
Far from producing equality of treatment, the 50% offset
makes the inequality more obvious. The Receiver (and the
majority) are in the uncomfortable position of recognizing
that the equal treatment principle does not dictate the 50%
offset, but nonetheless requiring that the ERISA plans submit
to it. The principle now appears to be that the non-ERISA
claimants are entitled to some of the ERISA plans’ money,
but just not all of it.
The majority makes a number of arguments in favor of the
50% offset. First, it relies on two supposedly comparable
cases in which offsets were allowed in receivership cases. In
In re Cement and Concrete Antitrust Litigation, 817 F.2d
1435 (9th Cir. 1987), rev’d on other grounds, 490 U.S. 93
(1989), purchasers of cement brought an antitrust class action
against cement manufacturers. A number of the defendants
settled and paid into a settlement fund. We allowed all claim-
ants against the settling companies to claim against the fund,
but required those claimants who had already recovered from
non-settling defendants (who had not paid into the fund) to
offset that recovery against any claim against the fund.
In re Equity Funding Corp. of America Securities Litiga-
tion, 603 F.2d 1353 (9th Cir. 1979), was a securities class
action arising out of the fraud perpetrated by Equity Funding.
The suit was brought by investors against accountants, rather
than against Equity Funding itself. Equity Funding filed for
bankruptcy in a separate proceeding. A distribution was made
in the bankruptcy proceeding to debenture holders and equity
owners. In the suit against the accountants, a settlement fund
was established. Distribution from the fund was made to all
claimants, but with a dollar-for-dollar offset for the debenture
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holders and equity owners based on their earlier distributions
from the bankruptcy proceeding. The debenture holders com-
plained that the dollar-for-dollar offset was unfair to them, as
compared to the equity owners. They argued that because they
had received a much larger percentage of their claims than the
equity owners in the bankruptcy proceeding, the offset there-
fore had a disproportionately adverse affect on them. We sus-
tained the dollar-for-dollar offset for both the debenture
holders and the equity owners, based in substantial part on the
rationale that the merits of the debenture holders’ claims
against the accountants were weaker than the merits of the
equity owners’ claims. Thus, the disproportionate adverse
effect of the offset on the debenture holders was fair, given
the disproportionate weakness of their claims on the merits.
Neither In re Cement nor In re Equity Funding is easily
comparable to this case. In In re Cement, claimants who had
already received compensation for the harm they had suffered
were required to take an offset when they claimed compensa-
tion from the settlement fund for that same harm. Here, by
contrast, some ERISA plans have suffered distinct and sepa-
rately compensable harms arising from the acts or omissions
of plan fiduciaries. In In re Equity Funding, the debenture
holders complained only that their offset was disproportionate
to the offset for the equity owners; they did not argue that
they should be free from any offset. More important, in nei-
ther case was there a claim of fiduciary duty under ERISA or
a comparable statute.
Second, the majority contends that not requiring an offset
for the ERISA plans’ recoveries from third parties “could
mean a double recovery for some clients.” Maj. Op. at 1356.
The majority refers to the possibility that an ERISA plan
might recover more than its actual loss if its third-party recov-
ery is added to its distribution from the receivership without
offset. The majority’s concern is a strawman. There is no
showing on the record before us that any “double recovery”
would occur. The majority itself concedes that “the parties
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seem to agree that the chances of a double recovery are small
at best.” Maj. Op. at 1356. The Eighth District Electrical Pen-
sion Fund, one of the ERISA plan plaintiffs, asserts that a
“double recovery” will not result from insurance recoveries:
“No ERISA plan will obtain a double recovery, or windfall,
by pursing claims under its own fiduciary liability insurance
or bonds. The fundamental purpose of fiduciary liability is to
make the trust whole, not provide a double recovery.” For her
part, the Secretary “does not challenge the authority of the
District Court or the receiver to structure relief to ensure that
the plans do not receive more than a full recovery.”
Third, the majority contends that “the offset provision
allows for more equal compensation to innocent CCL vic-
tims[.]” Maj. Op. at 1357. “More equal compensation” is pre-
cisely what the offset provision does not allow, if equality
means equal treatment to equally situated parties. For exam-
ple, the offset disregards the difference between ERISA plans
that purchased insurance and claimants that did not, giving
both purchasers and non-purchasers a claim to the insurance
proceeds. Under the majority’s rationale, in the case of a com-
mon catastrophe, a family whose now-deceased breadwinner
did not purchase life insurance should have a claim on the life
insurance proceeds of the family next door whose now-
deceased breadwinner did purchase such insurance.
Fourth, the majority contends that ERISA would be vio-
lated if there were no offset provision:
A change in the distribution formula that increases
the distributions to some clients and reduces the dis-
tributions to others does not imply a breach of fidu-
ciary duty by the receiver. By this reasoning,
eliminating the offset clause would violate ERISA
since it would favor some ERISA plans over others.
Maj. Op. at 1358 (emphasis in original). The majority appears
to think that the Receiver’s fiduciary duty requires him to
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even out recoveries from third parties among all ERISA plans,
regardless of whether a particular ERISA plan has obtained a
third-party recovery. But this is demonstrably not true. There
are substantial variations among the ERISA plans in the
receivership. Some ERISA plans do not have any third-party
recoveries at all. These plans’ trustees may have been careful
but nonetheless duped by CCL, or these plans may have
delayed seeking any third-party recoveries. Other ERISA
plans have already recovered against their trustees. Among
those who have recovered against their trustees, some have
recovered additional amounts based on insurance policies pro-
tecting against shortfalls in compensation in suits against
trustees.
An ERISA fiduciary, including a Receiver, may not take
assets belonging to one ERISA plan and simply distribute
those assets to another ERISA plan of which it is also a fidu-
ciary. Far from being required to equalize distribution to all
ERISA plans, the Receiver is forbidden to equalize distribu-
tions if such equalization requires taking assets of one plan
and giving them to another.
Fifth, the majority contends that the Secretary appears to
have conceded that the offset is proper:
To the extent appellants argue that some non-
ERISA plans will see increased distributions at the
expense of ERISA plans, they cite no authority per-
suading us that the receiver was legally obligated to
favor ERISA plans over non-ERISA plans. The DOL
[Department of Labor] appears to concede that no
such higher duty to ERISA clients exists. /FN 10/
— — — —
/FN 10/ The DOL states that it “does not suggest that
the receiver’s duties of prudence and loyalty obli-
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gated him to favor the [ERISA] plans in any way or
prioritize their claims.”
Maj. Op. at 1359 (first bracket added). The majority has mis-
read the Secretary’s brief. The paragraph from which the sen-
tence in the majority’s footnote 10 was taken carries precisely
the opposite meaning. The Secretary first describes the duties
of an ERISA fiduciary. She then writes the following para-
graph, reproduced here in its entirety:
In this context, the Secretary does not suggest that
the receiver’s duties of prudence and loyalty obli-
gated him to favor the plans in any way or prioritize
their claims. But she does contend that the receiver
could not, consistent with his fiduciary duties, treat
any plan unequally by disfavoring it with respect to
the other clients of CCL. Nor could the receiver
require the plans, in effect to transfer their assets to
others CCL investors, whether they are other plans
or non-plan clients. This is, in fact, what the receiv-
er’s distribution plan does.
(Emphasis indicates language quoted by the majority.)
Finally, the majority contends that the 50% offset does not
actually take third-party recoveries from the ERISA plans:
“The receiver is not in our view illegally transferring from
one ERISA plan to another CCL client an asset belonging to
the ERISA plan.” Maj. Op. at 1360. Of course, the majority
is right in saying that it is not transferring ERISA plan assets
in the sense of seizing assets from a plan and conveying those
assets to another CCL client. But that is a distinction without
a difference. The offset has precisely the same consequence
as seizing 50% of a plan’s third-party recoveries, for the plan
is denied money that it would otherwise receive from the
receivership, solely because of its third-party recovery. The
Receiver’s duty of loyalty to the ERISA plans for which he
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is a fiduciary is a real duty, not a technicality, and cannot be
avoided by a lawyerly sleight of hand.
I would hold that the Receiver is a fiduciary of the ERISA
plans that are claimants in the receivership; that the third-
party recoveries are plan assets for which the ERISA plans
have paid; that the Receiver has a duty to protect those assets
on behalf of the plans; that the 50% offset effectively requires
the plans to donate half of their third-party recoveries to the
common pool of the receivership; and that the offset require-
ment violates ERISA.
I recognize that many of my arguments apply to the non-
ERISA receivership claimants who have recovered from third
parties, and I regard it as a close question whether the
Receiver abused his discretion in providing a 50% offset as to
those third-party recoveries. However, the Receiver is not an
ERISA fiduciary as to these claimants. Because ERISA is the
determining factor in my conclusion that the offset is
improper as to the ERISA plans, I would not reverse the 50%
offset for third-party recoveries by non-ERISA claimants. I
would nevertheless remand to the district court to allow the
Receiver to determine, within his discretion, whether he
wishes to retain the 50% offset for non-ERISA claimants if
the offset is improper for ERISA claimants.
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