========================================================================= Date: Tue, 4 Dec 2007 09:12:14 -0500 Reply-To: Chaim Saiman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Chaim Saiman Subject: restitution, tracing and judicial discretion Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit Content-Disposition: inline Dear RDG Friends. There is a line of American cases, stemming from the Supreme Court's decision in the original Ponzi scheme case, Cunningham v. Brown, 265 U.S. 1, 11(1924), which teach that when it comes to tracing money into and out of common funds, either because of commercial fraud, or when the assets are placed in receivership, courts are allowed to disregard the rules of restitution and tracing and arrive at some at some "equitable" answer. My sense is that as compared to the commonwealth courts, American courts are disinterested in working through these sorts of questions and are happy to allow the district court to sort it out under a very deferential standard of review. The reach this result through a syllogism as shown in the following language of US v. Durham, 86 F.3d 70 (5th Cir. 1996). When fashioning a restitution order or imposing a constructive trust, the district court is acting pursuant to its inherent equitable powers. See United States v. Brown, 988 F.2d 658, 661 (6th Cir.1993); United States v. Cen-Card Agency/C.C.A.C., 724 F.Supp. 313, 318 (D.N.J.1989). In entering a restitution order, adherence to specific equitable principles, including rules concerning tracing analysis are "subject to the equitable discretion of the court." In re Intermountain Porta Storage, Inc., 74 B.R. 1011, 1016 (D.C.Colo.1987). Accordingly, we will review the lower court's imposition of an equitable remedy for abuse of discretion. S.E.C. v. AMX, International, Inc., 7 F.3d 71, 73 (5th Cir.1993). Based on these premises, the Durham court concluded: Sitting in equity, the district court is a "court of conscience." Wilson v. Wall, 73 U.S. (6 Wall.) 83, 90, 18 L.Ed. 727 (1867). Acting on that conscience, the lower court in the instant case rationally considered the positions of the victims and held that following the tracing principle would be inequitable. Claremont's frustration with the lower court's ruling is understandable but the court was not required to impose a constructive trust in Claremont's favor. Because the court used its discretion in a logical way to divide the money, the court committed no error requiring our intervention. Much the same arguments are made regarding a courts distribution of funds under receivership proceedings. Some of the most baroque language I have come across comes from a recent district court decision. Quilling v. Trade Partners, Inc., 2007 WL 107669, *1 (W.D.Mich. Jan 09, 2007), which held District courts sit as courts of equity in federal receivership proceedings. As courts of equity, district courts have broad powers and wide discretion to fashion appropriate relief in federal receivership proceedings. In ruling on a plan of distribution, the standard is simply that the district court must use its discretion in a logical way to divide the money. It is well within the district court's discretion to reject equitable principles of tracing, restitution, reclamation, etc. and order a pro rata distribution to treat all defrauded investors equally in proportion to their losses. (citations and internal quotation marks omitted). My sense is that commonwealth courts are: (i) more interested in the technical and conceptual details of such cases (ii) more sophisticated as to the principles restitution/unjust enrichment the restitution, and (iii) have a more grounded notion of what "equity" means would never make such statements. I was wondering whether anyone can point me to any decisions or discussions that might confirm or deny this hypothesis. Thanks and warmest regards, Chaim Saiman Chaim Saiman Assistant Professor Villanova Law School 610.519.3296 saiman@law.villanova.edu http://ssrn.com/author=549545 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Tue, 4 Dec 2007 16:03:28 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: restitution, tracing and judicial discretion Comments: To: Chaim Saiman In-Reply-To: Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_1611168907==_.ALT" --=====================_1611168907==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Dear Chaim I expect that modesty will prevent him from saying so, but by far and away the best account of the Commonwealth law in this area is Lionel Smith's The Law of Tracing (OUP, 1997), which gives a very full account of the detailed decision-making that you are interested in. Best wishes Charles At 09:12 04/12/2007 -0500, Chaim Saiman wrote: >Dear RDG Friends. > >There is a line of American cases, stemming from the Supreme Court's >decision in the original Ponzi scheme case, Cunningham v. Brown, 265 >U.S. 1, 11(1924), which teach that when it comes to tracing money into >and out of common funds, either because of commercial fraud, or when the >assets are placed in receivership, courts are allowed to disregard the >rules of restitution and tracing and arrive at some at some >"equitable" answer. > > >My sense is that as compared to the commonwealth courts, American >courts are disinterested in working through these sorts of questions and >are happy to allow the district court to sort it out under a very >deferential standard of review. The reach this result through a >syllogism as shown in the following language of US v. Durham, 86 F.3d 70 >(5th Cir. 1996). > >When fashioning a restitution order or imposing a constructive trust, >the district court is acting pursuant to its inherent equitable powers. >See United States v. Brown, 988 F.2d 658, 661 (6th Cir.1993); United >States v. Cen-Card Agency/C.C.A.C., 724 F.Supp. 313, 318 (D.N.J.1989). >In entering a restitution order, adherence to specific equitable >principles, including rules concerning tracing analysis are "subject >to the equitable discretion of the court." In re Intermountain Porta >Storage, Inc., 74 B.R. 1011, 1016 (D.C.Colo.1987). Accordingly, we will >review the lower court's imposition of an equitable remedy for abuse of >discretion. S.E.C. v. AMX, International, Inc., 7 F.3d 71, 73 (5th >Cir.1993). > >Based on these premises, the Durham court concluded: > >Sitting in equity, the district court is a "court of conscience." >Wilson v. Wall, 73 U.S. (6 Wall.) 83, 90, 18 L.Ed. 727 (1867). Acting on >that conscience, the lower court in the instant case rationally >considered the positions of the victims and held that following the >tracing principle would be inequitable. Claremont's frustration with the >lower court's ruling is understandable but the court was not required to >impose a constructive trust in Claremont's favor. Because the court used >its discretion in a logical way to divide the money, the court committed >no error requiring our intervention. > > >Much the same arguments are made regarding a courts distribution of >funds under receivership proceedings. Some of the most baroque language >I have come across comes from a recent district court decision. Quilling >v. Trade Partners, Inc., 2007 WL 107669, *1 (W.D.Mich. Jan 09, 2007), >which held > >District courts sit as courts of equity in federal receivership >proceedings. As courts of equity, district courts have broad powers and >wide discretion to fashion appropriate relief in federal receivership >proceedings. In ruling on a plan of distribution, the standard is simply >that the district court must use its discretion in a logical way to >divide the money. It is well within the district court's discretion to >reject equitable principles of tracing, restitution, reclamation, etc. >and order a pro rata distribution to treat all defrauded investors >equally in proportion to their losses. (citations and internal >quotation marks omitted). > > > My sense is that commonwealth courts are: (i) more interested in the >technical and conceptual details of such cases (ii) more sophisticated >as to the principles restitution/unjust enrichment the restitution, and >(iii) have a more grounded notion of what "equity" means would >never make such statements. I was wondering whether anyone can point me >to any decisions or discussions that might confirm or deny this >hypothesis. > > >Thanks and warmest regards, > >Chaim Saiman > > >Chaim Saiman >Assistant Professor >Villanova Law School >610.519.3296 >saiman@law.villanova.edu >http://ssrn.com/author=549545 > >____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --=====================_1611168907==_.ALT Content-Type: text/html; charset="us-ascii" Dear Chaim

I expect that modesty will prevent him from saying so, but by far and away the best account of the Commonwealth law in this area is Lionel Smith's The Law of Tracing (OUP, 1997), which gives a very full account of the detailed decision-making that you are interested in.

Best wishes
Charles



At 09:12 04/12/2007 -0500, Chaim Saiman wrote:
Dear RDG Friends. 

There is a line of American cases, stemming from the Supreme Court's
decision in the original Ponzi scheme case, Cunningham v. Brown, 265
U.S. 1, 11(1924), which teach that when it comes to tracing money into
and out of common funds, either because of commercial fraud, or when the
assets are placed in receivership, courts are allowed to disregard the
rules of restitution and tracing and arrive at some at some
"equitable" answer.


My sense is that as compared to the commonwealth courts, American
courts are disinterested in working through these sorts of questions and
are happy to allow the district court to sort it out under a very
deferential standard of review.  The reach this result through a
syllogism as shown in the following language of US v. Durham, 86 F.3d 70
(5th Cir. 1996).

When fashioning a restitution order or imposing a constructive trust,
the district court is acting pursuant to its inherent equitable powers.
See United States v. Brown, 988 F.2d 658, 661 (6th Cir.1993); United
States v. Cen-Card Agency/C.C.A.C., 724 F.Supp. 313, 318 (D.N.J.1989).
In entering a restitution order, adherence to specific equitable
principles, including rules concerning tracing analysis are "subject
to the equitable discretion of the court." In re Intermountain Porta
Storage, Inc., 74 B.R. 1011, 1016 (D.C.Colo.1987). Accordingly, we will
review the lower court's imposition of an equitable remedy for abuse of
discretion. S.E.C. v. AMX, International, Inc., 7 F.3d 71, 73 (5th
Cir.1993).

Based on these premises, the Durham court concluded:

Sitting in equity, the district court is a "court of conscience."
Wilson v. Wall, 73 U.S. (6 Wall.) 83, 90, 18 L.Ed. 727 (1867). Acting on
that conscience, the lower court in the instant case rationally
considered the positions of the victims and held that following the
tracing principle would be inequitable. Claremont's frustration with the
lower court's ruling is understandable but the court was not required to
impose a constructive trust in Claremont's favor. Because the court used
its discretion in a logical way to divide the money, the court committed
no error requiring our intervention.


Much the same arguments are made regarding a courts distribution of
funds under receivership proceedings. Some of the most baroque language
I have come across comes from a recent district court decision. Quilling
v. Trade Partners, Inc., 2007 WL 107669, *1 (W.D.Mich. Jan 09, 2007),
which  held

District courts sit as courts of equity in federal receivership
proceedings. As courts of equity, district courts have broad powers and
wide discretion to fashion appropriate relief in federal receivership
proceedings. In ruling on a plan of distribution, the standard is simply
that the district court must use its discretion in a logical way to
divide the money.  It is well within the district court's discretion to
reject equitable principles of tracing, restitution, reclamation, etc.
and order a pro rata distribution to treat all defrauded investors
equally in proportion to their losses.  (citations and internal
quotation marks  omitted). 


 My sense is that commonwealth courts are: (i) more interested in the
technical and conceptual details of such cases (ii) more sophisticated
as to the principles restitution/unjust enrichment the restitution, and
(iii) have a more grounded notion of what "equity" means  would
never make such statements.  I was wondering whether anyone can point me
to any decisions or discussions that might confirm or deny this
hypothesis.


Thanks and warmest regards,

Chaim Saiman


Chaim Saiman
Assistant Professor
Villanova Law School
610.519.3296
saiman@law.villanova.edu
http://ssrn.com/author=549545

____________________________________________________________________
 This message was delivered through the Restitution Discussion Group,
 an international internet LISTSERV devoted to all aspects of the law
 of unjust enrichment. To subscribe, send "subscribe enrichment" in
 the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
 send "signoff enrichment" to the same address. To make a posting to
 all group members, send to <enrichment@lists.mcgill.ca>. The list is
 run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --=====================_1611168907==_.ALT-- ========================================================================= Date: Tue, 4 Dec 2007 11:20:49 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: restitution, tracing and judicial discretion Comments: To: Charles Mitchell In-Reply-To: <5.1.0.14.2.20071204160007.03066060@pop.kcl.ac.uk> Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3279612049_370655" > This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. --B_3279612049_370655 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable I have sent Chaim some thoughts off-list, so I will only thank Charles for his kind words and note this interesting article, "Transplanting Equitable Subordination: The New 'Free-Wheeling' Equitable Discretion in Canadian Insolvency Law?" (2001) 36 Canadian Business Law Journal 36-88. US bankruptcy courts claim discretion to adjust rights not only in tracing situations, but, under the rubric of equitable subordination, whenever ther= e seems to be a good (but non-legislated) reason to downgrade someone=B9s ranking in the distribution scheme. Telfer reviews this law and looks at some suggestions that it should form part of Canadian bankruptcy law. Lionel --=20 "As there were no quales but only tales, it follows that there were not tales because you cannot have a tales without a quales." Lord Goddard CJ in R. v. Solomon, [1958] 1 Q.B. 203, 208. On 4/12/07 11:03, "Charles Mitchell" wrote: > Dear Chaim >=20 > I expect that modesty will prevent him from saying so, but by far and awa= y the > best account of the Commonwealth law in this area is Lionel Smith's The L= aw of > Tracing (OUP, 1997), which gives a very full account of the detailed > decision-making that you are interested in. >=20 > Best wishes > Charles >=20 >=20 >=20 > At 09:12 04/12/2007 -0500, Chaim Saiman wrote: >> Dear RDG Friends. >>=20 >> There is a line of American cases, stemming from the Supreme Court's >> decision in the original Ponzi scheme case, Cunningham v. Brown, 265 >> U.S. 1, 11(1924), which teach that when it comes to tracing money into >> and out of common funds, either because of commercial fraud, or when the >> assets are placed in receivership, courts are allowed to disregard the >> rules of restitution and tracing and arrive at some at some >> "equitable" answer. >>=20 >>=20 >> My sense is that as compared to the commonwealth courts, American >> courts are disinterested in working through these sorts of questions and >> are happy to allow the district court to sort it out under a very >> deferential standard of review. The reach this result through a >> syllogism as shown in the following language of US v. Durham, 86 F.3d 70 >> (5th Cir. 1996). >>=20 >> When fashioning a restitution order or imposing a constructive trust, >> the district court is acting pursuant to its inherent equitable powers. >> See United States v. Brown, 988 F.2d 658, 661 (6th Cir.1993); United >> States v. Cen-Card Agency/C.C.A.C., 724 F.Supp. 313, 318 (D.N.J.1989). >> In entering a restitution order, adherence to specific equitable >> principles, including rules concerning tracing analysis are "subject >> to the equitable discretion of the court." In re Intermountain Porta >> Storage, Inc., 74 B.R. 1011, 1016 (D.C.Colo.1987). Accordingly, we will >> review the lower court's imposition of an equitable remedy for abuse of >> discretion. S.E.C. v. AMX, International, Inc., 7 F.3d 71, 73 (5th >> Cir.1993). >>=20 >> Based on these premises, the Durham court concluded: >>=20 >> Sitting in equity, the district court is a "court of conscience." >> Wilson v. Wall, 73 U.S. (6 Wall.) 83, 90, 18 L.Ed. 727 (1867). Acting on >> that conscience, the lower court in the instant case rationally >> considered the positions of the victims and held that following the >> tracing principle would be inequitable. Claremont's frustration with the >> lower court's ruling is understandable but the court was not required to >> impose a constructive trust in Claremont's favor. Because the court used >> its discretion in a logical way to divide the money, the court committed >> no error requiring our intervention. >>=20 >>=20 >> Much the same arguments are made regarding a courts distribution of >> funds under receivership proceedings. Some of the most baroque language >> I have come across comes from a recent district court decision. Quilling >> v. Trade Partners, Inc., 2007 WL 107669, *1 (W.D.Mich. Jan 09, 2007), >> which held=20 >>=20 >> District courts sit as courts of equity in federal receivership >> proceedings. As courts of equity, district courts have broad powers and >> wide discretion to fashion appropriate relief in federal receivership >> proceedings. In ruling on a plan of distribution, the standard is simply >> that the district court must use its discretion in a logical way to >> divide the money. It is well within the district court's discretion to >> reject equitable principles of tracing, restitution, reclamation, etc. >> and order a pro rata distribution to treat all defrauded investors >> equally in proportion to their losses. (citations and internal >> quotation marks omitted). >>=20 >>=20 >> My sense is that commonwealth courts are: (i) more interested in the >> technical and conceptual details of such cases (ii) more sophisticated >> as to the principles restitution/unjust enrichment the restitution, and >> (iii) have a more grounded notion of what "equity" means would >> never make such statements. I was wondering whether anyone can point me >> to any decisions or discussions that might confirm or deny this >> hypothesis. >>=20 >>=20 >> Thanks and warmest regards, >>=20 >> Chaim Saiman=20 >>=20 >>=20 >> Chaim Saiman >> Assistant Professor >> Villanova Law School >> 610.519.3296 >> saiman@law.villanova.edu >> http://ssrn.com/author=3D549545 >>=20 >> ____________________________________________________________________ >> This message was delivered through the Restitution Discussion Group, >> an international internet LISTSERV devoted to all aspects of the law >> of unjust enrichment. To subscribe, send "subscribe enrichment" in >> the body of a message to . To unsubscribe, >> send "signoff enrichment" to the same address. To make a posting to >> all group members, send to . The list is >> run by Lionel Smith of McGill University, . >> ____________________________________________________________________ Thi= s >> message was delivered through the Restitution Discussion Group, an >> international internet LISTSERV devoted to all aspects of the law of unj= ust >> enrichment. To subscribe, send "subscribe enrichment" in the body of a >> message to . To unsubscribe, send "signoff >> enrichment" to the same address. To make a posting to all group members,= send >> to . The list is run by Lionel Smith of McGi= ll >> University, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --B_3279612049_370655 Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Re: [RDG] restitution, tracing and judicial discretion I hav= e sent Chaim some thoughts off-list, so I will only thank Charles for his ki= nd words and note this interesting article,

"Trans= planting Equitable Subordination: The New 'Free-Wheeling' Equitable Discreti= on in Canadian Insolvency Law?" (2001) 36 Canadian Business Law Jour= nal 36-88.

US bankruptcy courts claim discretion to adjust rights not only in tracing = situations, but, under the rubric of equitable subordination, whenever there= seems to be a good (but non-legislated) reason to downgrade someone’s= ranking in the distribution scheme. Telfer reviews this law and looks at so= me suggestions that it should form part of Canadian bankruptcy law.

Lionel

--
"As there were no quales but only tales, it follows that there were no= t tales because you cannot have a tales without a quales."
Lord Goddard CJ in R. v. Solomon, [1958] 1 Q.B. 203, 208.



On 4/12/07 11:03, "Charles Mitchell" <charles.mitchell@KCL.AC.= UK> wrote:

Dear Chaim

I expect that modesty will prevent him from saying so, but by far and away = the best account of the Commonwealth law in this area is Lionel Smith's T= he Law of Tracing (OUP, 1997), which gives a very full account of the de= tailed decision-making that you are interested in.

Best wishes
Charles



At 09:12 04/12/2007 -0500, Chaim Saiman wrote:
Dear RDG Friends.  

There is a line of American cases, stemming from the Supreme Court's
decision in the original Ponzi scheme case, Cunningham v. Brown, 265
U.S. 1, 11(1924), which teach that when it comes to tracing money into
and out of common funds, either because of commercial fraud, or when the assets are placed in receivership, courts are allowed to disregard the
rules of restitution and tracing and arrive at some at some
"equitable" answer.


My sense is that as compared to the commonwealth courts, American
courts are disinterested in working through these sorts of questions and are happy to allow the district court to sort it out under a very
deferential standard of review.  The reach this result through a
syllogism as shown in the following language of US v. Durham, 86 F.3d 70 (5th Cir. 1996).

When fashioning a restitution order or imposing a constructive trust,
the district court is acting pursuant to its inherent equitable powers.
See United States v. Brown, 988 F.2d 658, 661 (6th Cir.1993); United
States v. Cen-Card Agency/C.C.A.C., 724 F.Supp. 313, 318 (D.N.J.1989).
In entering a restitution order, adherence to specific equitable
principles, including rules concerning tracing analysis are "subject to the equitable discretion of the court." In re Intermountain Porta Storage, Inc., 74 B.R. 1011, 1016 (D.C.Colo.1987). Accordingly, we will
review the lower court's imposition of an equitable remedy for abuse of
discretion. S.E.C. v. AMX, International, Inc., 7 F.3d 71, 73 (5th
Cir.1993).

Based on these premises, the Durham court concluded:

Sitting in equity, the district court is a "court of conscience."=
Wilson v. Wall, 73 U.S. (6 Wall.) 83, 90, 18 L.Ed. 727 (1867). Acting on that conscience, the lower court in the instant case rationally
considered the positions of the victims and held that following the
tracing principle would be inequitable. Claremont's frustration with the lower court's ruling is understandable but the court was not required to impose a constructive trust in Claremont's favor. Because the court used its discretion in a logical way to divide the money, the court committed no error requiring our intervention.


Much the same arguments are made regarding a courts distribution of
funds under receivership proceedings. Some of the most baroque language
I have come across comes from a recent district court decision. Quilling v. Trade Partners, Inc., 2007 WL 107669, *1 (W.D.Mich. Jan 09, 2007),
which  held

District courts sit as courts of equity in federal receivership
proceedings. As courts of equity, district courts have broad powers and
wide discretion to fashion appropriate relief in federal receivership
proceedings. In ruling on a plan of distribution, the standard is simply that the district court must use its discretion in a logical way to
divide the money.  It is well within the district court's discretion t= o
reject equitable principles of tracing, restitution, reclamation, etc.
and order a pro rata distribution to treat all defrauded investors
equally in proportion to their losses.  (citations and internal
quotation marks  omitted).  


 My sense is that commonwealth courts are: (i) more interested in the<= BR> technical and conceptual details of such cases (ii) more sophisticated
as to the principles restitution/unjust enrichment the restitution, and
(iii) have a more grounded notion of what "equity" means would never make such statements.  I was wondering whether anyone can point = me
to any decisions or discussions that might confirm or deny this
hypothesis.


Thanks and warmest regards,

Chaim Saiman


Chaim Saiman
Assistant Professor
Villanova Law School
610.519.3296
saiman@law.villanova.edu
http://ssrn.com/author=3D549545
____________________________________________________________________
 This message was delivered through the Restitution Discussion Group,<= BR>  an international internet LISTSERV devoted to all aspects of the law<= BR>  of unjust enrichment. To subscribe, send "subscribe enrichment&q= uot; in
 the body of a message to <listserv@lists.mcgill.ca>. To unsubsc= ribe,
 send "signoff enrichment" to the same address. To make a po= sting to
 all group members, send to <enrichment@lists.mcgill.ca>. The li= st is
 run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca&= gt;.
____________________________________________________________________ This m= essage was delivered through the Restitution Discussion Group, an internatio= nal internet LISTSERV devoted to all aspects of the law of unjust enrichment= . To subscribe, send "subscribe enrichment" in the body of a messa= ge to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff e= nrichment" to the same address. To make a posting to all group members,= send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith= of McGill University, <lionel.smith@mcgill.ca>.

 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --B_3279612049_370655-- ========================================================================= Date: Wed, 5 Dec 2007 01:32:11 -0500 Reply-To: Chaim Saiman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Chaim Saiman Subject: Re: restitution, tracing and judicial discretion Comments: To: Susan.Thomas@law.monash.edu.au Mime-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Content-Disposition: inline Dear RDG Friends.=20 Thanks so much for answering my call to what must sound like a strange = inquiry. I thought I might just summarize what I have learned in the past = 24 hours and, with your indulgences, redirect the question a bit.=20 A number of readers ( thank you) pointed me to such cases as Commerzbank = Aktiengesellschaft v IMB Morgan [2004] EWHC 277, which rely on US holdings = such as Learned Hand's decision in Re Walter J Schmidt & Co, 298 F 314, = 316 (1923) dispense with the rule of Clayton's case and allow for pro rata = distribution in Ponzi scheme type cases. =20 At the very least, these cases instruct that English courts are not = categorically opposed to the idea of scrapping the tracing/restitution = rules and doing rough justice, at least in cases where the court feels = that the fairness and efficiency gains justify doing so. (Though Lionel = Smith has taught me that in his view, this has nothing to do with tracing, = but I'll leave that debate for those more knowledgeable than me). In other = words, at least some of the elements standing behind the Cunningham line = of cases is to be found in the English law.=20 On the other hand, other readers (thank you) pointed me to the HOL's = decision in Foskett, and especially Lord Millett's speech, statement where = he says (in the midst of a somewhat complex tracing analysis) "It is, of = course, always open to the parties in any case to dispense with complex = calculations and agree upon a simpler method of apportionment. But in my = opinion the court ought not to do so without the parties' consent. If it = does, anomalies and inconsistencies will inevitably follow." I cannot overstate how different Lord Millett's assumptions are = from the dominant view found amongst US courts. American lawyers would = find Lord Milletts Foskett opinion, unnecessarily technical and complex, = overwrought and way over theorized given the stakes at issue in the case. = But such is the difference between the judicial cultures, an issue I hope = to return to in future writing.=20 Nevertheless, when looking at American cases decided on similar facts to = Foskett, (the overwhelming majority are prior to WW2), I found that while = the cases are far less interested in the technicalities of tracing the = forms of property through the transactions, since these cases pit innocent = victims against family members of the fraudster, the court does not simply = treat everyone equally. See, e.g. Lackey v. Lackey, 691 So.2d 990 (Miss., = 1997). However the differences between US and English/commonwealth approaches = show up at the margins. Specifically, when it comes to determining when a = court will forgo tracing and property based claims and throw it all up to = pro rata distribution*all shielded under a differential standard of = review.=20 American case will argue for the pro rate formula (under the equity=3D = equality syllogism) even in cases where tracing is not particularly = contentious, and where is perfectly obvious that money which moved through = various bank accounts all stemmed from one identifiable source. US v. = Durham, 86 F.3d 70; U.S. v. Real Property 89 F.3d 551 (9th Cir. 1996). = Other courts are willing to go even further to cases that involve = identifiable shares of stock, Sec v. Credit Bancorp, 290 F.3d, 325, and = there are even some cases that deny tracing where the funds of various = investors were never even commingled, e.g., Forex, 242 F.3d 325.=20 As best I can tell from the English cases, the courts at the very least = require that a common fund exist and that the assets were truly commingled.= Similarly, even the English courts that avoid the rule of Clayton's case = justify their departure on the basis that a proper accounting would be = extremely time consuming and difficult, e.g., Commerzbank at parag's 38,39 = and 49. The American courts on the other hand tend to justify departing = from the tracing rules because the pro rate method is more fair, even if = the tracing is rather straight forward.=20 One final question I'd pose is what is the relevant standard of review in = such cases. Can a court rely on a broad range of discretion in these = matters, or will it be forced to justify its decision on the basis of = solid legal arguments. I'd note that many US cases leave this matter to = the discretion of the court, saying that as a matter of law the district = court would have been within its rights to follow either the pro rata = method or the "tracing fictions." See US v. Durham; SEC v Forex. (Side = note, almost without fail, when a court calls them "tracing fictions" it = will go for a pro rata distribution).=20 Thanks for your time.=20 Chaim=20 Chaim Saiman Assistant Professor=20 Villanova Law School 610.519.3296 saiman@law.villanova.edu http://ssrn.com/author=3D549545 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Wed, 5 Dec 2007 09:01:13 -0800 Reply-To: Gerald Caplan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Gerald Caplan Subject: International Law Contracts Conference In-Reply-To: Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=__PartE9CFF549.1__=" This is a MIME message. If you are reading this text, you may want to consider changing to a mail reader or gateway that understands how to properly handle MIME multipart messages. --=__PartE9CFF549.1__= Content-Type: text/plain; charset=ISO-8859-15 Content-Transfer-Encoding: 8bit CONFERENCE ANNOUNCEMENTAND CALL FOR PAPERS Fourth International Conference on ContractsSacramento, CaliforniaFebruary 8-9, 2008 Sponsors: The Pacific McGeorge Center for Global Business and Development. Texas Wesleyan University School of LawLexis/NexisLaw Conferences International LLC Deadline for Abstract Submissions: December 17, 2007 Submissions are invited for the Fourth International Conference on Contracts, the largest annual scholarly conference devoted to all aspects of contract law, scholarship, and practice. The conference will be hosted by the McGeorge School of Law of the University of the Pacific. Each year the Conference*s goal is to present papers and works-in-progress that address the whole spectrum of contract scholarship, whether doctrinal, historical, jurisprudential, economic, philosophical, pedagogical, or interdisciplinary. Presentations by those who work in non-U.S. legal systems and by junior scholars who are new to the field are particularly encouraged. Proposals for entire panels with particular themes are welcome. Individual paper and works-in-progress submissions will be assigned to panels. There is no publication requirement for participation in the Conference, although organizers of individual panels may arrange for publication as mini-symposia in law reviews. WINE TOUR As part of the Conference, Pacific McGeorge School of Law is pleased to organize a bus tour of three Napa Valley wineries, which will include free transportation and lunch for attendees, although participants will be responsible for their own wine tasting fees and purchase. The free optional tour will take place Sunday, February 10, 2008 from 9:00 a.m. to 4:00 p.m. SUBMISSIONS Submissions should identify the author(s) and contain an abstract (not more than 500 words) of the proposed presentation. Proposed panels should include the names and contact information for all participants. Submissions will be accepted on a rolling basis. Those received after the deadline will be accepted on a space-available basis. Submissions should be made by e-mail (preferred) or regular mail, to: Franklin G. SnyderProfessor of LawTexas Wesleyan University School of Law1515 Commerce StreetFort Worth, Texas 76102fsnyder@law.txwes.edu(817) 212-3921 PARTICIPANTS(as of October 31, 2007) Stephen M. Bainbridge (UCLA); Andrea K. Bjorkland (UC-Davis); Gerald Caplan (Pacific), Miriam A. Cherry (Pacific); Sidney W. DeLong (Seattle); Franklin A. Gevurtz (Pacific); Victor P. Goldberg (Columbia); Eric Goldman (Santa Clara); Danielle Kie Hart (Southwestern); Thomas W. Joo (UC-Davis); Nancy Kim (California Western); Charles L. Knapp (UC-Hastings); Michael P. Malloy (Pacific); Scott Moss (Colorado); Joseph M. Perillo (Fordham); John C. Reitz (Iowa); Claude D. Rohwer (Pacific); Keith Rowley (UNLV/Alabama); Gordon Smith (BYU); Franklin G. Snyder (Texas Wesleyan); John G. Sprankling (Pacific) HOTELS Delta King Hotel1000 Front StreetSacramento, CA 95814www.deltaking.comFront Desk: 1 (800) 825-5464Group room rate offerred at this hotel is $139.00. Guests should call the front desk to make reservations using the group name "McGeorge." Cut off date for making reservations is January 11, 2008. Holiday Inn Capitol Plaza Hotel300 J StreetSacramento, CA 95814www.holidayinnsacramento.comFront Desk: (916) 446-0100Group room rate offerred at this hotel is $129.00 for singles and $139.00 for doubles . Guests should call the front desk to make reservations using the group name "McGeorge." Cut off date for making reservations is January 8, 2008. Gerald Caplan Professor of Law Pacific McGeorge School of Law 3200 Fifth Avenue Sacramento, CA 95817 E-Mail: gcaplan@pacific.edu Phone: (916) 739-7251 FAX: 916 -739-7111 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --=__PartE9CFF549.1__= Content-Type: text/html; charset=ISO-8859-15 Content-Transfer-Encoding: quoted-printable Content-Description: HTML

CONFERENCE ANNOUNCEMENT

AND CALL FOR PAPERS

 

 

Fourth International = Conference on Contracts

Sacramento, California

February 8-9, 2008

 

Sponsors:

 

The Pacific McGeorge= Center for Global Business and Development.

Texas Wesleyan University School of Law

Lexis/Nexis

Law Conferences International LLC

 

Deadline for Abstract = Submissions: December 17, 2007

 

Submissions are invited for the Fourth International Conference on = Contracts, the largest annual scholarly conference devoted to all aspects = of contract law, scholarship, and practice.  The conference will be hosted by the McGeorge School of = Law of the University of the Pacific.

 

Each year the Conference's goal is to present papers and works-in-pro= gress that address the whole spectrum of contract scholarship, whether = doctrinal, historical, jurisprudential, economic, philosophical, pedagogica= l, or interdisciplinary.  Pre= sentations by those who work in non-U.S. legal systems and by junior = scholars who are new to the field are particularly encouraged.   Proposals for entire = panels with particular themes are welcome.  Individual paper and works-in-progress submissions will = be assigned to panels.

 

There is no publication requirement for participation in the = Conference, although organizers of individual panels may arrange for = publication as mini-symposia in law reviews. 

 

WINE TOUR

 

As part of the Conference, Pacific McGeorge School of Law is pleased = to organize a bus tour of three Napa Valley wineries, which will include free transportation and = lunch for attendees, although participants will be responsible for their = own wine tasting fees and purchase. = The free optional tour will take place Sunday, February 10, 2008 = from 9:00 a.m. to 4:00 p.m.

 

SUBMISSIONS

 

Submissions should identify the author(s) and contain an abstract = (not more than 500 words) of the proposed presentation.   Proposed panels should include the names = and contact information for all participants.  Submissions will be accepted on a rolling basis.  Those received after the = deadline will be accepted on a space-available basis.  Submissions should be made by e-mail (preferred) = or regular mail, to:

 

Franklin G. Snyder

Professor of Law

Texas Wesleyan University School of Law

1515 Commerce = Street

Fort Worth, = Texas 76102<= /st1:PostalCode>

fsnyder@law.txwes.edu

(817) 212-3921

 

PARTICIPANTS

(as of October 31, 2007)

 

Stephen M. Bainbridge (UCLA); Andrea K. Bjorkland (UC-Davis); Gerald = Caplan (Pacific), Miriam A. Cherry (Pacific); Sidney W. DeLong (Seattle); = Franklin A. Gevurtz (Pacific); Victor P. Goldberg (Columbia); Eric Goldman = (Santa Clara); Danielle Kie Hart (Southwestern); Thomas W. Joo (UC-Davis); = Nancy Kim (California Western); Charles L. Knapp (UC-Hastings); Michael P. = Malloy (Pacific); Scott Moss (Colorado); Joseph M. Perillo (Fordham); John = C. Reitz (Iowa); Claude D. Rohwer (Pacific); Keith Rowley (UNLV/Alabama); = Gordon Smith (BYU); Franklin G. Snyder (Texas Wesleyan); John G. Sprankling= (Pacific)

 

HOTELS

 

Delta King Hotel=

1000 Front = Street

Sacramento, = CA 95814

www.deltaking.com

Front Desk: 1 (800) 825-5464

Group room rate offerred at this hotel is $139.00. Guests should = call the front desk to make reservations using the group name "McGeorge." = Cut off date for making reservations is January 11, 2008.

 

Holiday Inn Capitol Plaza = Hotel

300 J Street

Sacramento, = CA 95814

www.holidayinnsacramento.com

Front Desk: (916) 446-0100

Group room rate offerred at this hotel is $129.00 for singles and = $139.00 for doubles . Guests should call the front desk to make reservation= s using the group name "McGeorge." Cut off date for making reservations is = January 8, 2008.

 

Gerald Caplan
Professor of Law
Pacific McGeorge School of = Law
3200 Fifth Avenue
Sacramento, CA 95817
E-Mail: gcaplan@pacific.edu
Phone: (916) 739-7251FAX: 916 -739-7111

____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --=__PartE9CFF549.1__=-- ========================================================================= Date: Sun, 16 Dec 2007 14:53:25 -0500 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Congratulations Lionel Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=__PartEDCBC225.0__=" This is a MIME message. If you are reading this text, you may want to consider changing to a mail reader or gateway that understands how to properly handle MIME multipart messages. --=__PartEDCBC225.0__= Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit Congratulations to Lionel D. Smith on being elected to membership in the American law Institute. ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --=__PartEDCBC225.0__= Content-Type: text/html; charset=US-ASCII Content-Transfer-Encoding: base64 Content-Description: HTML PEhUTUw+PEhFQUQ+DQo8TUVUQSBodHRwLWVxdWl2PUNvbnRlbnQtVHlwZSBjb250ZW50PSJ0ZXh0 L2h0bWw7IGNoYXJzZXQ9dXRmLTgiPg0KPE1FVEEgY29udGVudD0iTVNIVE1MIDYuMDAuNjAwMC4x NjU4NyIgbmFtZT1HRU5FUkFUT1I+PC9IRUFEPg0KPEJPRFkgc3R5bGU9Ik1BUkdJTjogNHB4IDRw eCAxcHg7IEZPTlQ6IDEwcHQgVGFob21hIj5Db25ncmF0dWxhdGlvbnMgdG8gTGlvbmVsIEQuIFNt aXRoIG9uIGJlaW5nIGVsZWN0ZWQgdG8gbWVtYmVyc2hpcCBpbiB0aGUgQW1lcmljYW4gbGF3IElu c3RpdHV0ZS48L0JPRFk+PC9IVE1MPg== --=__PartEDCBC225.0__=--