The end is in sight for New York Attorney General Letitia James’ suit against Donald Trump, but the most important questions have still not been posed or addressed. Indeed, much has proceeded in the reverse of the usual order. The trial was preceded by the verdict: a finding by the court on a pre-trial summary judgment motion that Donald Trump was guilty of fraudulent conduct and had inflated the value of the Trump Organization’s assets. Most of us have little doubt that Trump and his staff did inflate the value of various Trump properties. Still, this finding does not tell us what sanctions are thereby authorized. Judge Arthur Engoron has ordered that receivers be appointed, apparently to oversee the dissolution of the Trump Organization’s limited liability companies (or “LLCs”), and has further directed that the “assumed name” certificates be cancelled for these LLCs, which were filed under Section 130 of the New York General Business Law. Although the Appellate Division has stayed this order, some in the press appear to have concluded that the cancellation of these certificates might mean that the assets held by these LLCs would somehow forfeit to the state.
That is nonsense! Most states have a similar statute requiring business entities that do business under an assumed name to disclose the identity of those who own the business, but nowhere (to my knowledge, anyway) is asset forfeiture the sanction for a violation of these common statutes. Indeed, New York courts have repeatedly ruled that there is no private cause of action under Section 130; it is pretty much an empty cannon.
This is not to say that the Trump real estate empire in New York is not exposed to real danger – but only if additional steps are taken that no one in this lawsuit seems yet to have addressed. The key statute in this case is New York Executive Law Section 63(12), which uniquely authorizes the New York attorney general to sue any person who engages “in repeated fraudulent or illegal acts” or otherwise demonstrates “persistent fraud or illegality in the carrying on, conducting or transaction of business.” Passed in 1956 and seldom used, it arguably had someone much like Donald Trump in mind: namely, a serial recidivist who will likely do it again.
But what does it authorize? Not a word is said in it about cancelling a charter or forfeiting an entity’s assets. Instead, Section 63(12) authorizes the attorney general “to apply… for an order enjoining the continuance of such business activity” and seeking “restitution and damages.” This statute also permits the court to order “cancelling any certificate” under Section 130 of the General Business Law, but the consequences of such a cancellation are never spelled out.
Interestingly, New York Business Corporation Law Section 1101 does authorize the attorney general to bring an action for the dissolution of a corporation on a variety of grounds, including acting in a “persistently fraudulent or illegal manner,” but the attorney general has not cited this section or even suggested dissolution as a remedy. Even if she had, a further problem is that Section 1101 only authorizes the dissolution of a corporation, and no New York statute authorizes the judicial dissolution of a limited liability company. This is likely a consequence of the fact that limited liability companies did not appear in New York until well after Section 1101 was enacted.
Where does this leave us? To some, these criticisms may sound like the nitpicking of a pedantic law professor. Perhaps, but consider this from the perspective of an appellate court. It sees a trial court seemingly ordering the de facto dissolution of the Trump empire, even though the attorney general has never requested such a remedy. At the outset, the attorney general seemed only to be seeking a monitor and damages. Executive Law Section 63(12) states that the “court may award the relief applied for or so much thereof as it may deem proper.” This hardly suggests that a court can go well beyond what the attorney general requested.
Next, Section 63(12) indicates the court may award “restitution and damages.” Although the court has to date been discussing only disgorgement, disgorgement and restitution are very different concepts so that again there is a mismatch. Also, little, if any, evidence has been heard as to what should be “disgorged” (as neither victims nor the attorney general have identified any losses or pointed to any ill-gotten gains by the defendants).
Such confusion seems predictable for a case involving Donald Trump, who characteristically invites chaos. Still, what can be done to achieve some coherence, while staying within the statutory limits of Section 63(12)? Here are two simple steps: First, the court should ask the attorney general to clarify the relief that is being requested, pointing out that the attorney general may request an injunction enjoining “the continuance of such business activity” plus restitution or other damages, and it might request written clarification within, say, two business days. Second, the attorney general now has a choice: If she wishes to be bold, she could seek an injunction against the “continuance of real estate business activities in New York by the defendants, including the ownership, leasing or management of residential or commercial buildings or property in New York.” If the attorney general wishes to be more cautious, she could seek an injunction enjoining only further fraudulent acts or statements, including the making of any real estate valuations not supported by independent experts. This is equivalent to the standard SEC “Go-And-Sin-No-More” injunction that prohibits further fraudulent acts. Such SEC injunctions have arguably achieved little (and some public corporations have accumulated a number of such orders without changing their behavior). If the attorney general opted for the bolder course, Trump could be forced to sell his New York assets, but Fox News would erupt in outrage. Possibly, the Appellate Division will overturn or modify any such injunction as disproportionate to the proven misconduct (and in any event the Court of Appeals might see it differently).
There is a logic to this suggested approach, particularly because it stays within the language of the statute. To this point, the attorney general has not sought to enjoin any “business activity,” and the proceeding has not shown that the Trump defendants have received any ill-gotten gain that should be disgorged. Somewhere in the course of future appellate events, these omissions might haunt this case. Unless the requested relief is described with more precision, this litigation could wind up resembling a giant turkey, flapping around with its head cut off.
This post comes to us from John C. Coffee, Jr., the Adolf A. Berle Professor of Law at Columbia University Law School and Director of its Center on Corporate Governance.