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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                              FILED
                                                                            June 30, 2015
                                       No. 13-11305
                                                                            Lyle W. Cayce
                                                                                 Clerk
RALPH S. JANVEY, In His Capacity as Court Appointed Receiver for the
Stanford International Bank Limited, et al.; OFFICIAL STANFORD
INVESTORS COMMITTEE,

                Plaintiffs – Appellants,

v.

THE GOLF CHANNEL, INCORPORATED; TGC, L.L.C., doing business as
Golf Channel,

                Defendants – Appellees.




                    Appeal from the United States District Court
                         for the Northern District of Texas


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      The original opinion in this case was filed on March 11, 2015. 1 In that
opinion we reversed the district court’s judgment and rendered judgment in
favor of the receiver pursuant to the Texas Uniform Fraudulent Transfer Act
(TUFTA), codified at Texas Business and Commerce Code §§ 24.001–.013. We
held that, for purposes of the “good faith and for a reasonably equivalent value”
affirmative defense in section 24.009(a), value must be measured from the



      1   Janvey v. Golf Channel, 780 F.3d 641 (5th Cir. 2015).
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                                  No. 13-11305
standpoint of a debtor’s creditors and proof of market value is insufficient.
Because The Golf Channel, Inc. (Golf Channel) failed to offer any evidence
showing that its advertising services benefitted the creditors of Stanford
International Bank Limited, we rendered judgment in favor of the receiver.
Golf Channel filed a petition for panel rehearing and a petition for rehearing
en banc, which are now pending before the court. In its petitions, Golf Channel
requested, in the alternative, that we certify a question to the Supreme Court
of Texas given “the lack of any Texas case law . . . interpreting TUFTA’s
definition of ‘value’ in the context of a good faith transferee of a Ponzi scheme.”
      The petition for panel rehearing is GRANTED, the original opinion is
VACATED, and a majority of the panel substitutes the following opinion
certifying a question to the Supreme Court of Texas.


      CERTIFICATION           FROM   THE     UNITED      STATES     COURT      OF
APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF
TEXAS, PURSUANT TO THE TEXAS CONSTITUTION ART. 5 § 3-C AND
TEXAS RULE OF APPELLATE PROCEDURE 58.1.


                         I.    STYLE OF THE CASE
      The style of the case is Ralph S. Janvey, In His Capacity as Court
Appointed Receiver for the Stanford International Bank Limited, et al.; Official
Stanford Investors Committee, Plaintiffs – Appellants, v. The Golf Channel,
Incorporated; TGC, L.L.C., doing business as Golf Channel, Defendants –
Appellees, Case No. 13-11305, in the United States Court of Appeals for the
Fifth Circuit, on appeal from the judgment of the United States District Court
for the Northern District of Texas, Dallas Division. Federal jurisdiction over
the issues presented in the case is based on 15 U.S.C. §§ 77v(a), 78aa, and 28



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                                       No. 13-11305
U.S.C. § 754, as the district court, the court that appointed Janvey as receiver,
has jurisdiction over any claim brought by the receiver to execute his
receivership duties.
                        II.    STATEMENT OF THE CASE
       The facts are undisputed.           For nearly two decades, Allen Stanford
operated a multi-billion dollar Ponzi scheme 2 through more than 130 affiliated
entities centered around Stanford International Bank Limited (Stanford). 3 To
sustain the scheme, Stanford promised investors exceptionally high rates of
return on certificates of deposit (CD) and sold these investments through
advisors employed at the affiliated entities. Some early investors received the
promised returns, but, as was later discovered, these returns were merely
other investors’ principal.       Before collapsing, Stanford had raised over $7
billion selling these fraudulent CDs.
       Beginning in 2005, Stanford developed a plan to increase awareness of
its brand among sports audiences. It targeted this group because of the group’s
large proportion of high-net-worth individuals, the people most likely to invest
with Stanford. Stanford became a title sponsor of the Stanford St. Jude’s
Championship, an annual PGA Tour event held in Memphis, Tennessee. Upon
hearing of Stanford’s sponsorship, The Golf Channel, Inc. (Golf Channel),
which broadcasted the tournament, offered Stanford an advertising package to



       2 “‘A “Ponzi scheme” typically describes a pyramid scheme where earlier investors are
paid from the investments of more recent investors, rather than from any underlying
business concern, until the scheme ceases to attract new investors and the pyramid
collapses.’” Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185, 188 n.1
(5th Cir. 2013) (quoting Eberhard v. Marcu, 530 F.3d 122, 132 n.7 (2d Cir. 2008)).

       3  Stanford marketed itself as the “Stanford Financial Group” and sometimes entered
into contracts through an affiliate, the Stanford Foundation. Given the large number of
affiliated entities, for simplicity, we use “Stanford” throughout this opinion to refer to the
whole enterprise.

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                                  No. 13-11305
augment its marketing efforts. In October 2006, Stanford entered into a two-
year agreement with Golf Channel for a range of marketing services, including
but not limited to: commercial airtime (682 commercials per year); live
coverage of the Stanford St. Jude’s Championship with interspersed messaging
regarding Stanford’s charitable contributions, products, and brand; display of
the Stanford Logo throughout the event; promotion of Stanford as the sponsor
of tournament-update segments that included video highlights every half-
hour; and identification of Stanford as a sponsor of Golf Channel’s coverage of
the U.S. Open (one of the four major annual golf tournaments in the world).
Golf Channel did not design Stanford’s media strategy or develop the content
of the advertisements. However, the agreement required Golf Channel’s final
approval. Stanford satisfied most of its monthly-payment obligations to Golf
Channel and, before the agreement expired, entered into a four-year renewal.
By the time this lawsuit was initiated, Stanford had paid at least $5.9 million
to Golf Channel pursuant to the agreement.
      In February 2009, the SEC uncovered Stanford’s Ponzi scheme and filed
a lawsuit in the Northern District of Texas against Stanford and related
entities, requesting that the district court appoint a receiver over Stanford.
The district court assumed exclusive jurisdiction, seized Stanford’s assets, and
appointed Ralph S. Janvey to serve as receiver. Pursuant to his powers, the
receiver took custody of any and all assets owned by or traceable to the
receivership estate, which included recovering any voidable transfers made by
Stanford before going into receivership.
      In the process of investigating Stanford’s accounts, the receiver
discovered the payments to Golf Channel, and in 2011, he filed suit under
TUFTA to recover the full $5.9 million. After initial discovery, the parties filed
cross-motions for summary judgment. Despite the fact that Golf Channel



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                                       No. 13-11305
offered no evidence to show how its services benefitted Stanford’s creditors, the
district court granted Golf Channel’s motion and denied the receiver’s motion.
The district court determined that although Stanford’s payments to Golf
Channel were fraudulent transfers under TUFTA, Golf Channel was entitled
to judgment as a matter of law on its affirmative defense that it received the
payments in good faith and in exchange for reasonably equivalent value (the
market value of advertising on The Golf Channel).                  As the district court
explained, “Golf Channel looks more like an innocent trade creditor than a
salesman perpetrating and extending the Stanford Ponzi scheme.”
       As discussed below, we initially reversed the district court’s judgment
and, relying on the text of TUFTA, the comments in the Uniform Fraudulent
Transfer Act (“UFTA”), and our precedent, rendered judgment in favor of the
receiver. Golf Channel, supported by several amici 4 who have similar claims
pending against them, filed petitions for rehearing en banc and panel
rehearing, arguing that market value is sufficient proof of “value” for purposes
of TUFTA’s affirmative defense, and alternatively arguing that we should
certify the question to the Supreme Court of Texas.
                                III.    LEGAL ISSUES
       To decide whether the receiver is entitled to disgorge the $5.9 million
payment for advertising services from Golf Channel, we must interpret Texas
law, specifically the meanings of “value” and/or “reasonably equivalent value”
in TUFTA. To decide questions of Texas law, we normally look first to the final
decisions of the Supreme Court of Texas. See Vanderbrook v. Unitrin Preferred
Ins. Co. (In re Katrina Canal Breaches Litig.), 495 F.3d 191, 206 (5th Cir. 2007).



       IMG Worldwide, Inc., International Players Championship, Inc., ATP Tour, Inc., and
       4

PGA Tour, Inc. filed a joint amicus brief, and the University of Miami filed a separate amicus
brief.


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However, in the absence of a definite pronouncement from the Supreme Court
of Texas on an issue, we may certify a question to the Supreme Court of Texas.
Under Texas law, “[t]he Supreme Court of Texas may answer questions of law
certified to it by any federal appellate court if the certifying court is presented
with determinative questions of Texas law having no controlling Supreme
Court precedent.” Tex. R. App. P. 58.1; see also Tex. Const. art. V, § 3-c(a)
(conferring jurisdiction on the Supreme Court of Texas and the Texas Court of
Criminal Appeals to answer questions of state law certified to them by a federal
appellate court).    “[C]ertification may be advisable where important state
interests are at stake and the state courts have not provided clear guidance on
how to proceed.” La. State v. Anpac La. Ins. Co. (In re Katrina Canal Breaches
Litig.), 613 F.3d 504, 509 (5th Cir. 2010) (internal quotation marks omitted).
      Because there is no decision by the Supreme Court of Texas that resolves
the determinative issue in this case—whether market value is sufficient proof
of reasonably equivalent value for purposes of the affirmative defense in
section 24.009(a) of TUFTA—we certify the question to the Supreme Court of
Texas.
                                        A.
      Fraudulent transfer laws like TUFTA were enacted to protect creditors
against depletion of the debtor’s estate. Corpus v. Arriaga, 294 S.W.3d 629,
634 (Tex. App.—Houston [1st Dist.] 2009, no pet.); SEC v. Res. Dev. Int’l, LLC,
487 F.3d 295, 301 (5th Cir. 2007); see also Englert v. Englert, 881 S.W.2d 517,
518 (Tex. App.—Amarillo 1994, no writ) (“[The] right to prefer does not extend
to transfers made in fraud of the rights of the other creditors.”). To that end,
TUFTA allows creditors to void fraudulent transfers made by a debtor and
force the transferee to return the transfer to the debtor’s estate. Tex. Bus. &
Com. Code § 24.008. A transfer is fraudulent if made “with actual intent to



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                                  No. 13-11305
hinder, delay, or defraud any creditor of the debtor.”          Bus. & Com. §
24.005(a)(1). “In this circuit, proving that [a transferor] operated as a Ponzi
scheme establishes the fraudulent intent behind the transfers it made.”
Janvey v. Brown, 767 F.3d 430, 439 (5th Cir. 2014) (alteration in original)
(quoting Janvey v. Alguire, 647 F.3d 585, 598 (5th Cir. 2011)); accord Warfield
v. Byron, 436 F.3d 551, 558 (5th Cir. 2006) (citing Scholes v. Lehmann, 56 F.3d
750, 757 (7th Cir. 1995)).
      However, TUFTA provides an affirmative defense that transferees may
assert to prevent creditors from voiding transfers. Even where a transfer is
fraudulent under TUFTA, a creditor cannot void the transfer if the transferee
proves two elements: (1) that it took the transfer in good faith; and (2) that, in
return for the transfer, it gave the debtor something of “reasonably equivalent
value.” Bus. & Com. § 24.009(a).
      We analyze reasonably equivalent value under a two-step framework.
First, we review de novo whether the property or service exchanged
categorically had any value under TUFTA, as this is a question of law. See,
e.g., Warfield, 436 F.3d at 559–60 (holding that broker services furthering a
Ponzi scheme have no value as a matter of law); accord Pension Transfer Corp.
v. Beneficiaries Under the Third Amendment to Fruehauf Trailer Corp. Ret.
Plan No. 003 (In re Fruehauf Trailer Corp.), 444 F.3d 203, 212 (3d Cir. 2006)
(“[A] court should not consider the ‘totality of the circumstances’ in evaluating
the threshold question of whether any value was received at all.”). If there is
some value, we review for clear error whether the value exchanged is
reasonably equivalent to the value of the transfer. Tex. Truck Ins. Agency, Inc.
v. Cure (In re Dunham), 110 F.3d 286, 289 (5th Cir. 1997) (abrogating Butler
Aviation Int’l, Inc. v. Whyte (In re Fairchild Aircraft Corp.), 6 F.3d 1119, 1125
(5th Cir. 1993)).



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      Given the undisputed fact that Stanford was engaged in a Ponzi scheme,
the parties stipulated that the $5.9 million dollar transfer to Golf Channel was
fraudulent. See Brown, 767 F.3d at 439. In addition, the district court held,
and the receiver did not challenge on appeal, that Golf Channel accepted the
transfer in good faith, that is, it had no knowledge of the Ponzi scheme, and
provided the advertising services for market value. Therefore, the sole issue
here is whether Golf Channel has proven the second element of its affirmative
defense—that its advertising services constituted “value” and/or “reasonably
equivalent value,” terms of art under TUFTA.
                                       B.
      There are two statutory provisions and one comment that frame the
certified question:
      Value is given for a transfer or an obligation if, in exchange for the
      transfer or obligation, property is transferred or an antecedent
      debt is secured or satisfied, but value does not include an
      unperformed promise made otherwise than in the ordinary course
      of the promisor’s business to furnish support to the debtor or
      another person.
Bus. & Com. § 24.004(a).      The relevant comment in UFTA, which is not
expressly codified in TUFTA, states:
      [The definition of “value”] is adapted from § 548(d)(2)(A) of the
      Bankruptcy Code. . . . The definition [ ]is not exclusive [and] is to
      be determined in light of the purpose of the Act to protect a debtor’s
      estate from being depleted to the prejudice of the debtor’s
      unsecured creditors. Consideration having no utility from a
      creditor’s viewpoint does not satisfy the statutory definition. The
      definition does not specify all the kinds of consideration that do not
      constitute value for the purposes of this Act—e.g., love and
      affection . . . .
Unif. Fraudulent Transfer Act § 3 cmt. 2 (emphasis added). Texas courts have
noted that we may consider the comments to UFTA, authorities interpreting
other states’ UFTA provisions, and interpretations of section 548 of the


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Bankruptcy Code (upon which UFTA’s definition of value is based). Nathan v.
Whittington, 408 S.W.3d 870, 873–74 (Tex. 2013); First Nat’l Bank of Seminole
v. Hooper, 104 S.W.3d 83, 86 (Tex. 2003); Hinsley v. Boudloche (In re Hinsley),
201 F.3d 638, 643 (5th Cir. 2000); see also Bowman v. El Paso CGP Co., L.L.C.,
431 S.W.3d 781, 786 n.6 (Tex. App.—Houston [14th Dist.] 2014, pet. filed)
(explaining the persuasiveness of these sources). Pursuant to UFTA, we have
measured value “from the standpoint of creditors,” not from that of a buyer in
the marketplace. See, e.g., Stanley v. U.S. Bank Nat’l Assoc. (In re TransTexas
Gas Corp.), 597 F.3d 298, 306 (5th Cir. 2010) (citing In re Hinsley, 201 F.3d
638, 644 (5th Cir. 2000)); Warfield, 436 F.3d at 560 (“The primary
consideration . . . is the degree to which the transferor’s net worth is
preserved.”).
       In possible tension with this comment on “value” is TUFTA’s statutory
definition of “reasonably equivalent value.” See Bus. & Com. § 24.004(d).
TUFTA defines “reasonably equivalent value” as follows:
       “Reasonably equivalent value” includes without limitation, a
       transfer or obligation that is within the range of values for which
       the transferor would have sold the assets in an arm’s length
       transaction.
Bus. & Com. § 24.004(d).           This definition suggests that value should be
measured from the perspective of a buyer in the general marketplace, not from
the perspective of creditors. 5 The affirmative defense in section 24.009(a)
specifically uses the statutorily-defined term “reasonably equivalent value.”
However, use of “transferor” and “assets” in section 24.004(d) gives us pause
because “transferor” is consistently used throughout TUFTA to refer to the


       5 As an economic reality, something exchanged that has market value will often be of
value to a debtor’s creditors because the item can be resold in the general marketplace or it
in some way preserves the value of the debtor’s assets. But, value in the market and value
to the creditors may not be the same in the context of a debtor engaged in a Ponzi scheme.

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debtor, and “assets” is a defined term referring to the debtor’s property. See
Bus. & Com. § 24.002(2). Here, it is not the debtor, Stanford, who transferred
assets for cash payment, but Golf Channel who transferred services for cash
payment.
       Herein lies the tension presented in this case—how to reconcile
specifically the comment and the statutory definition of “reasonably equivalent
value.” Put another way, under TUFTA, is proof of the market value sufficient
to establish “reasonably equivalent value” for purposes of the affirmative
defense in § 24.009(a), or must the transferee produce specific evidence to show
value of the transfer to the debtor’s creditors? Moreover, such questions may
lead to the additional issue of how value might be determined when value is
viewed from the “creditor’s viewpoint.” The Supreme Court of Texas has not
answered these questions and Texas cases applying TUFTA provide little
guidance in this area. These are important questions that are determinative
in this case.
                                              C.
       On summary judgment, Golf Channel put forward no evidence that its
advertising services preserved the value of Stanford’s estate or constituted
value from the creditors’ point of view. 6 Instead, Golf Channel brought forth
evidence showing the market value of its services and conceded at oral
argument that it had no evidence specifically showing value to Stanford’s



       6 As our prior opinion noted, such evidence might exist even in the context of a debtor
engaged in a Ponzi scheme. Hypothetically, one can imagine an electricity provider putting
on evidence that its services helped preserve the building in which the debtor operated,
preventing the building’s deterioration to the benefit of the debtors’ creditors. But here, Golf
Channel has not put forth any evidence that its advertising services accrued any benefit to
Stanford’s creditors. This view of value, however, may render valueless many goods and
services, which were provided in good faith, that are unrelated to real property or
consumables.


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creditors. 7   Thus, if value is to be measured from the standpoint of the
creditors, Golf Channel has not satisfied its burden of proof.                       See Unif.
Fraudulent Transfer Act § 8 cmt. 1 (“The person who invokes this defense
carries the burden of establishing good faith and the reasonable equivalence of
the consideration exchanged.”)
       In granting Golf Channel’s motion for summary judgment, the district
court compared Golf Channel’s services to consumables and speculative
investments, which have been held to have value under UFTA and section 548
of the Bankruptcy Code. The district court stated that “[i]t seems wrong . . . to
hold that every transaction in which a debtor acquires consumables is a
fraudulent transfer.” As the district court explained, we have held that a
debtor’s purchasing jet fuel to keep an affiliated airline in business is an
exchange for reasonably equivalent value even though the value to the debtor
is merely the potential proceeds of a possible sale of that affiliated airline. In
re Fairchild, 6 F.3d at 1123–27 (interpreting “value” in section 548 of the
Bankruptcy Code).          In fact, the investment in Fairchild was ultimately
unsuccessful, yet, when measured at the time of the investment, we held that
the increased possibility of selling the business had value. Id. at 1126–27. We
explicitly rejected a definition of value that would exclude speculative or
potential gains. Id. The transferee offered sufficient proof to show that the



       7  Golf Channel argued for the first time in its petition for rehearing that Stanford’s
payments were in exchange for reasonably equivalent value because they satisfied
antecedent debt obligations owed pursuant to the advertising contract. It did not argue this
point before the district court, in its response brief in our court, or raise it at oral argument.
Therefore, under our rules regarding forfeiture, this argument is forfeited. United States v.
Scroggins, 599 F.3d 433, 446–449 (5th Cir. 2010); Haubold v. Intermedics, Inc., 11 F.3d 1333,
1336 (5th Cir. 1994); Zuccarello v. Exxon Corp., 756 F.2d 402, 407 (5th Cir. 1985).
Nevertheless, we do not presume to restrict the Supreme Court of Texas from discussing on
certification the meaning and applicability of the antecedent debt clause in TUFTA’s
definition of “value.”

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speculative investment at least had the potential to benefit the debtor’s
creditors.
       But the case before us may be different because Stanford was engaged
in a Ponzi scheme, not a legitimate enterprise. Given that Ponzi schemes, by
definition, create greater liabilities than assets with each subsequent
transaction, each new investment in the Stanford Ponzi scheme decreased the
value of the estate by creating a new liability that the insolvent business could
never legitimately repay.          See Brown, 767 F.3d at 439 (describing the
insolvency of Stanford’s Ponzi scheme); Janvey v. Democratic Senatorial
Campaign Comm., Inc., 712 F.3d 185, 196 (5th Cir. 2013) (“[A] Ponzi scheme
is, as a matter of law, insolvent from its inception.” (internal quotation marks
omitted)); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 n.3
(2d Cir. 1995) (“The effect of such a scheme is to put the corporation farther
and farther into debt . . . .”). Because each new transaction created greater
liabilities, Golf Channel has so far been unable to offer evidence to show that
its services provided value (even potential value) to Stanford’s creditors. 8
Thus, this case turns on whether TUFTA measures “reasonably equivalent
value” from the perspective of creditors, or rather from the perspective of the
general marketplace—an open state-law question on which we now seek
guidance.
       Golf Channel has argued that determining “reasonably equivalent value”
from the perspective of a debtor’s creditors potentially could have dire effects
on innocent trade creditors who have dealt with businesses engaged in
fraudulent conduct. Such innocent providers of legitimate services having


       8Of course, to the extent Golf Channel’s services generated new investors in the
scheme, the cash from those investments could have been used to pay existing debts owed to
some earlier investors and service providers. However, viewing Stanford’s financial situation
on the whole, Stanford remained insolvent regardless of such new investments.

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value in the marketplace might unknowingly transact with a business engaged
in a Ponzi scheme only to later discover that its revenues from the transaction
have to be disgorged under TUFTA. It is clear that TUFTA was designed to
strike a balance between protecting the creditors of an insolvent business while
at the same time ensuring that third-party merchants and transferees (who,
ironically, may also be creditors post-bankruptcy) would have an affirmative
defense to protect their earnings. Precisely where TUFTA draws the line
between the various interested parties is the difficult question that Texas
courts have yet to answer.
                                        D.
      Given the possible tension within TUFTA with respect to the perspective
from which to measure “reasonably equivalent value,” that this is a question
of state law that no on-point precedent from the Supreme Court of Texas has
resolved, that the Supreme Court of Texas is the final arbiter of Texas’s law,
and that the meaning of “reasonably equivalent value” is central to this case
as well as other pending cases filed by Stanford’s receiver, we believe it is best
to certify the question at issue.
                        IV.   QUESTION CERTIFIED
      For the reasons above, we CERTIFY the following question to the
Supreme Court of Texas:
      Considering the definition of “value” in section 24.004(a) of the
      Texas Business and Commerce Code, the definition of “reasonably
      equivalent value” in section 24.004(d) of the Texas Business and
      Commerce Code, and the comment in the Uniform Fraudulent
      Transfer Act stating that “value” is measured “from a creditor’s
      viewpoint,” what showing of “value” under TUFTA is sufficient for
      a transferee to prove the elements of the affirmative defense under
      section 24.009(a) of the Texas Business and Commerce Code?
      We disclaim any intention or desire that the Supreme Court of Texas
confine its reply to the precise form or scope of the question certified.


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