The Content of Veil Piercing Complaints
posted by Dave Hoffman
Over the last two years, Christy Boyd and I have been working to collect and analyze a representative sample of federal district court veil piercing cases. (Previous blogging: here on ERISA and here on weird complaints.) We now are ready to circulate the first paper arising from the data — there will be at least two others. That paper, Disputing Limited Liability, is now up on SSRN and is forthcoming in the Northwestern Law Review. I figured that having spent so much time collecting the data, I might as well get a few blog posts out of talking about our findings! I’m going to start today with some information about the kinds of complaints that plaintiffs file. In future posts, I’ll talk about who gets sued, how to model litigation in light of selection effects, the kinds of factors that influence plaintiffs’ success, and the larger implications of our findings for lawyers and scholars.
Briefly, we collected a representative sample of veil piercing complaints filed in federal court from 2000-2006, and then coded information about the important motions in such cases through PACER, together with their resolution. Our goal was to get a complete picture of how veil piercing cases are litigated.
I’ll start with a sense of our expectations about the kinds of causes of actions in plaintiffs’ complaints. Based on previous work, we expected to find that most veil piercing complaints contained a claim sounding in contract. Not only were such causes of action reported to be successful in reported opinions, but they were the most common claims in such datasets to boot. The data bore out our hypothesis:
Dot plot of the causes of action present in the complaints in our data (2000-2006). Almost fifty percent of our complaints contain a contract cause of action, thirty percent contain a veil piercing allegation made as a separate cause of action, and less than ten percent state an employment law cause of action. For more information on the data, see the text.
Here’s the problem with this chart: it suggests that there’s such a thing as a “contract” case or a “tort” case. Parties can – and are encouraged– to bring multiple causes of action in each complaint. Only as litigation develops, and the various causes of action are tested against the facts (was there really a manufacturing defect) or the law (did the contract satisfy the statute of frauds) can both sides decide which causes of action are worthy of a fact-finder’s adjudication. Litigation winnows initial clusters of causes of action to manageable contract, tort, and fraud “cases.” Thus, contrary to the conventional wisdom, many plaintiffs can assert claims as both involuntary and voluntary creditors, at least in their first-filed complaint. The figure below illustrates the effect. In it, we’ve combined various different causes of action into “voluntary” and “involuntary” creditor groupings (i.e., tort plus regulatory actions plus statutory actions where the individual had know potential warning of the defendants’ creditworthiness).
Incidence of causes of action, where "voluntary only" means that there were no involuntary creditor causes of action present, and visa versa.
To those familiar with the debate about veil piercing, this overlap is pretty interesting. A very hot focus on that debate is whether voluntary creditors (in general) should be less likely to win veil piercing cases, because they’ve assume the risk that they won’t get paid. Our data suggests that distinguishing between voluntary and involuntary creditors isn’t as easy as previous work assumed.
As separate question discussed in the literature is which kinds of veil piercing grounds ought to and do matter to plaintiffs’ success. The figure below describes the incidence of such grounds in complaints:
The percentage of complaints in our data that contain a particular VP ground.
What’s interesting about this figure is that it matches very well with the incidence of such veil piercing grounds in published opinions, the advice given lawyers in form complaints, but it is quite unlike the results from studies on the grounds successfully used in opinions piercing the veil. (See manuscript at page 33 for the details). This suggests that the grounds for piercing asserted in complaints reflect the underlying facts of the case – - enough so that they remain in cases throughout their disposition. It also suggests that lawyers are more likely to rely on form complaint books that law professors. [Duh!] Whether the use of popular grounds promote (or retard) veil piercing success is obviously a question that these descriptive statistics can’t answer. For more, you’ll have to check out the paper, or wait for the later posts in this series!
October 6, 2009 at 1:45 pm
Posted in: Corporate Law, Empirical Analysis of Law
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Responses (5)
Lawrence Cunningham - October 6, 2009 at 6:14 pm
Dave,
Great work. I was looking for exactly this when updating my Corporations casebook, which now relies on the old Bob Thompson study from Cornell L Rev.
Thanks!
Larry
Dave Hoffman - October 6, 2009 at 6:56 pm
You could do worse! Bob’s paper is in the canon for a reason. Our inspiration, obviously, was from his work: we take his basic approach back a step in litigation and try to apply some more complex statistics. But the relevant factors of analysis are very similar.
Greg Weston - October 7, 2009 at 4:25 pm
Besides the classic attack on limited liability corporate forms, plaintiffs sometimes have statutory shortcuts.
For example, in my practice I utilize the Interstate Land Sales Full Disclosure Act’s creation of liability for “indirect” real estate developers who hide behind special purpose entities created to develop particular properties.
Miami attorney Jared Beck has a discussion of this:
http://beckandlee.wordpress.com/2008/06/02/reaching-for-the-deep-pocket-in-real-estate-litigation-does-the-interstate-land-sales-full-disclosure-act-ilsa-have-a-long-arm/
Piercings - October 16, 2009 at 3:53 am
I believe veil piercings is not a success and most of the people have disliked it.
Dave Hoffman - October 16, 2009 at 7:06 am
I would delete “piercings’s” spam comment, which originally linked to some commercial site. But I’m so happy to get comments on this work, and so impressed by how close the bot got to something a lawyer would say, that I decided to simply disable the link. Spam bots, I love you guys!
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