* A Florida bankruptcy judge delivered some bad news to Bruce Rauner…
The Federal Court’s March 14 Opinion describes a “bust out” scheme orchestrated by GTCR, the private equity firm chaired by Rauner for years up until October 2012. The Court ruled that claims against GTCR for aiding and abetting a breach of fiduciary duty have merit and therefore can proceed.
The Court also ruled that claims for breach of fiduciary duty can proceed against Edgar Jannotta, formerly one of Rauner’s fellow GTCR principals. Jannotta is currently one of the largest financial contributors to Rauner’s campaign.
Under Rauner’s chairmanship of GTCR the firm was accused of complicity in the wrongful deaths of multiple nursing home residents. GTCR was then later accused of participating in a scheme allegedly intended to fraudulently transfer assets for the purpose of hiding them from successful plaintiffs and other creditors.
The opinion is here.
* The federal judge wrote that the plaintiffs’ case “has all the makings of a legal thriller” and summarized the plaintiffs’ contention with a headline about how Rauner’s “GTCR Group orchestrates the ‘Bust Out scheme’”…
In the second linked transaction, THI sold all of its stock in THMI to the Debtor for $100,000. The Debtor had been incorporated just months before the transaction by the law firm of Troutman Sanders, where Forman (one of FLTCH’s owners) was a partner.
The Debtor’s sole shareholder is Barry Saacks, an elderly graphic artist who currently lives in a nursing home. Although Saacks has some recollection of being asked if he was interested in buying computer equipment, he was not aware that he owns the Debtor or that he acquired the stock in THMI.
And, it turns out, Saacks (who did not have any money to buy any computer equipment in the first place) did not pay the purchase price—FLTCH apparently loaned him the $100,000—nor did he ever receive any of THMI’s assets. In short, the complaint paints this as a sham transaction. […]
After the sale, FLTCH rebranded THMI assets and continued generating millions of dollars of profits, but without the millions of dollars in liabilities.
* THI was funded by Rauner’s GTCR. From the opinion…
Aside from raising capital for THI, the GTCR Group was also instrumental in THI’s day-to-day management and administration. From the start, the GTCR Group entered into a Professional Services Agreement with THI in July 1998, around the time THI was created. Under its agreement with THI, the GTCR Group was responsible for formulating THI’s corporate strategy and corporate investments, including acquisitions, divestitures, and debt and equity financing
Hmm. Rauner’s firm was far more involved than he may have let on.
While the Court tends to agree with the GTCR Group that any one of facts alleged in the complaint (i.e., an 83% ownership interest, majority control of the board, day-to-day control over business operations, etc.), taken by itself, would not plausibly give rise to domination or control, all of the facts—when taken together—could.
* THMI was a wholly owned subsidiary of THI until March of 2006, when it sold its stock to FLTCH, Fundamental Long Term Care Holdings, LLC, and others. From the judge’s summary of the complaint…
According to the complaint, THI Holdings, LLC (“THIH”) and THIH’s primary shareholder, a series of entities referred to as the “GTCR Group,” conspired to allow THI’s two primary secured lenders—General Electric Capital Corporation (“GECC”) and Ventas, Inc. (“Ventas”)—to loot THI and THMI to repay $75 million in loans before the GTCR Group and THIH ultimately sold THI’s and THMI’s assets to a group of individuals and entities referred to as the “Fundamental Entities”—Fundamental Long Term Care Holdings, LLC (“FLTCH”), Fundamental Administrative Services (“FAS”), Tr ans Health, Inc.-Baltimore (“THI-Baltimore”), Murray Forman, Leonard Grunstein, and Rubin Schron—for far less than their fair market value in order to preserve the substantial investment the GTCR Group made in THI.
To complete the alleged bust-out scheme, THMI’s liabilities were transferred to the Debtor (a sham entity created for the sole purpose of acquiring THMI’s liabilities), and THI was allowed to slowly go out of business before being put into a state-court receivership.
…Adding… From the judge…
These, of course, are only allegations in the complaint. As discussed below, the Court is required to accept all well-pled allegations in the complaint as true.
By reciting the factual background of this case, the Court is not making any determination regarding the veracity of the allegations. They are just that—allegations
* More from the judge…
So the GTCR Group, in an effort to save some of its investment, hatched a scheme whereby it allowed THI’s primary lenders (GECC and Ventas) to siphon millions from the company in the form of interest and fees only to later sell the company to the Fundamental Entities for far less than fair market value, with the end result that THI-Baltimore, FLTCH, FAS, Forman, and Grunstein get a company worth—when stripped free from its liabilities—over $100 million for less than $10 million, the GTCR Group pockets $10 million for a company whose assets would have gone to pay hundreds of millions (if not billions) of dollars in judgments, and the Debtor ends up with a liability-ridden shell company.
From those facts, the Court can reasonably infer that the GTCR Group and THIH knowingly participated in Jannotta’s alleged breach of fiduciary duty.