A recent decision by Magistrate Judge Jane Magnus-Stinson in the Southern District of Indiana, G4S Justice Services, Inc. v. Correctional Program Services, Inc., 2009 U.S. Dist. LEXIS 88689 (S.D. Ind. 2009) (.pdf), explains, albeit indirectly, why efforts to collect judgments by piercing the corporate veil are more appropriate in the context of proceedings supplemental.
Strategic decision. In G4S, the plaintiff pursued a strategy I have seen but have never myself utilized. The plaintiff filed a lawsuit against a defendant corporation seeking, among other things, damages for breach of contract. The contract/debt was not personally guaranteed by the owners of the corporation. Nevertheless, the plaintiff included a cause of action seeking to pierce the defendant’s corporate veil and named the corporation’s shareholders, personally. I’ve posted about veil piercing before, most recently on January 19, 2009.
Dismissal, on technicality. The Court’s opinion arose out of the defendant shareholders’ pre-trial motion for judgment on the pleadings seeking a dismissal of the count asserted against them. The Court held that the plaintiff’s veil-piercing allegations in the complaint were conclusory and did not contain any details “that would plausibly justify concluding that [defendant corporation] did in fact [fraudulently] pay the [shareholders’] personal obligations.” The Court seemed to feel that the allegations were not based upon anything other than speculation. The Court therefore dismissed the count related to the defendant shareholders: there was a “complete absence of any allegations that would justify piercing [defendant corporation’s] corporate veil.”
Better strategy. In dicta (legalese for “opinions of a judge which do not embody the resolution or determination of the court,” Black’s Law Dictionary), Judge Magnus-Stinson suggested that veil-piercing claims are better left for post-judgment proceedings. In the event the plaintiff in G4S subsequently obtained a money judgment that the assets of the defendant corporation could not satisfy, the plaintiff would have the ability to conduct proceedings supplemental, a post-judgment proceeding I touched upon on June 29, 2007. Proceedings supplemental, commonly referred to by lawyers as “pro supp,” are equitable in nature and “permit the judgment-creditor to discover and obtain property held by third-parties that ought to be used to satisfy the judgment.” For example, in that process:
The judgment-creditor can obtain access to the judgment-debtor’s books and records. See Fed. R. Civ. Pro. 69(a)(2); Ind. T.R. 69(E)(4). Using information obtained from those sources, judgment-creditors can—and do—argue that a court should pierce the judgment-debtors’ corporate veil and make their shareholders’ assets available to satisfy the judgment.
Later, perhaps. The Court made it clear that the dismissal of the defendant shareholders was without prejudice (not final or permanent) and that the plaintiff could revisit veil-piercing during proceedings supplemental “in the event it obtains a judgment against [defendant corporation], and assuming that it can obtain evidence to support the imposition of such a remedy.”
The notion is that there is a time and place for piercing the corporate veil - during post-judgment proceedings, not during the litigation of the underlying claims. Perhaps other judges or lawyers may feel differently, but I share the Court’s view in G4S. Please e-mail or post a comment with your thoughts.