Cascade Energy and Metals Corp. v. Banks

In Cascade Energy and Metals Corp. v. Banks (10th Cir. 1990) 896 F.2d 1557, the court, concluding Utah had not recognized outside reverse piercing, reversed the district court's order holding various corporations liable for a judgment against an individual shareholder who controlled the corporations. The court criticized outside reverse piercing, identifying three significant problems with the doctrine. First, reverse piercing "bypasses normal judgment-collection procedures, whereby judgment creditors attach the judgment debtor's shares in the corporation and not the corporation's assets." (Id. at p. 1577.) Second, the court explained: "To the extent that the corporation has other non-culpable shareholders, they obviously will be prejudiced if the corporation's assets can be attached directly. In contrast, in ordinary piercing cases, only the assets of the particular shareholder who is determined to be the corporation's alter ego are subject to attachment." (Ibid.) The Cascade Energy court also recognized that legal remedies adequately protected creditors from fraud. Thus, the court stated: "Absent a clear statement by the Supreme Court of Utah that it has adopted the variant reverse piercing theory urged upon us here, we are inclined to conclude that more traditional theories of conversion, fraudulent conveyance of assets, respondeat superior and agency law are adequate to deal with situations where one seeks to recover from a corporation for the wrongful conduct committed by a controlling stockholder without the necessity to invent a new theory of liability." (Cascade Energy, supra, 896 F.2d 1557, 1577.) The Court held there was showing of inequity and therefore no alter ego liability. In discussing the alter ego doctrine, and particularly the equity element, the Cascade court noted that in consensual transactions the plaintiff generally has chosen the parties with whom it has dealt and has had some ability, through personal guarantees, security agreements, bonds or similar mechanisms, to protect itself from financial loss. The parties can allocate the risk of financial failure as they see fit. When the relationship among the parties is voluntary and contractual, as in the instant case, the court is less likely to find inequity and pierce the corporate veil. In finding there was no inequity, the Cascade court further reasoned: "Even if Weston's entities failed to comply with all of the formalities that they should have and even if Weston did freely transfer funds among the entities, the claimants here have not shown how their injury was connected with the entities' commingling or lack of formalities or how the claimants relied on the entities' separateness or the lack thereof. As the Utah corporate-veil test demonstrates, it is not enough to declare that two corporations or a corporation and its prime shareholder are not really separate. The claimant must show that recognition of the corporate form would 'sanction a fraud, promote injustice, or produce an inequitable result.' But the 'injustice' or 'inequity' on which a piercing claim is based cannot stem from the mere existence of limited liability, which is a legitimate characteristic of the corporate form. Rather, the 'injustice' or 'inequity' to the claimant must be connected with the lack of separateness between the corporation and its controlling stockholder and the failure to observe corporate formalities."