The opinion of the court was delivered by: MOTLEY
This is a petition to review an order and decision of the referee in bankruptcy, Edward J. Ryan, who authorized the trustee in bankruptcy, Charles Seligson, as trustee for the bankrupt, Ira Haupt and Company (Haupt), to compromise two controversies. These controversies arise out of the sea of litigation spawned by the so-called "Salad Oil Scandal" of November 1963. American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277 (2d Cir. 1967). The referee also approved the proposed settlement agreements and authorized the trustee to take any and all steps in the performance of the agreements. The referee's decision and order are affirmed.
The first controversy involves the claims of Haupt against American Express Company (Amexco). These claims are embodied in a complaint filed by the trustee on behalf of Haupt and pending in the Supreme Court of New York. The complaint contains three causes of action.
The first cause of action alleges, in essence, that Amexco conducted its field warehousing activities at Bayonne and Jersey City, New Jersey, through subsidiaries, American Express Field Warehousing Corporation (Field) and its successor, American Express Warehousing, Limited (Limited) and that both of these subsidiaries were dominated and controlled by Amexco to such an extent that they were mere agents and instrumentalities of Amexco. It is further alleged that these field warehousing subsidiaries were operated in a negligent manner in that Amexco failed to take reasonable precautions, although the danger was foreseeable, to prevent the fraud and forgery which occurred with respect to the storage of goods in, and the issuance of receipts at, its field warehouses. It is then alleged that as a result of such negligence, Anthony DeAngelis, the president of Allied Crude Vegetable Oil Refining Corporation (Allied) caused Amexco to issue millions of dollars worth of warehouse receipts for which there was, in fact, no oil in tanks under the control of Field and Limited at Bayonne. It is next alleged that such negligence enabled DeAngelis, in or about October or November 1963, to appropriate from Limited at its field warehouse in Bayonne a quantity of warehouse receipts which DeAngelis thereafter caused to be forged or otherwise caused to be executed and to appear to have been validly issued by Limited. Then such forged receipts were allegedly transferred by DeAngelis to Haupt, or to banks for Haupt's account, as security for loans made by Haupt to Allied or for margin for commodity transactions engaged in by Allied in which Haupt acted as Allied's broker. These receipts had an alleged face value of $18,461,707.44, the loss of which allegedly has been sustained by Haupt. It is further alleged that Haupt's business, valued at $20,000,000, has been completely destroyed as a result of Amexco's negligence. Allied, since November 1963, has been adjudicated a bankrupt and, it is alleged, Allied's total indebtedness to Haupt is $31,823,726.13. This latter amount, together with $20,000,000 for the alleged value of Haupt's business, is sought as damages in the first and second causes of action.
The second cause of action alleges that the negligence described in the first cause of action was gross negligence and wilful, wanton, and reckless conduct on the part of Amexco resulting in injury to Haupt of more than $50,000,000. Punitive damages are also sought. It is alleged that the first two causes of action arise under New Jersey law.
The third cause of action seeks $18,000,000 damages, in the alternative, on the theory that the ten forged warehouse receipts were issued to Haupt, or its banks, by agents or employees of Amexco with actual or apparent authority from Amexco on which Haupt relied to its detriment. Amexco is, consequently, estopped, the complaint alleges, to deny its liability as to the face amount of these receipts.
The second controversy arises out of the claims of Haupt against Allied and result from their mutual arrangements. These claims have been filed in Allied's bankruptcy proceeding now pending in the United States District Court in New Jersey claiming $31,823,726.13 against that estate.
The settlement of each of these controversies is conditioned upon approval of each by the appropriate bankruptcy court. Thus, the proposed settlement with Allied (Trustee's Exh. 5) was submitted to the Allied Bankruptcy Court in New Jersey which has approved that proposed settlement (Tr. p. 451-452).
There were a number of other conditions precedent which had to be satisfied before these settlements could become final and binding on all parties. (Trustee's Exh. 2, p. 6; Exh. 3, p. 2; Exh. 7, p. 21-22). These conditions have now been met, except a final approval of this court and a Haupt closing date (which must now be fixed within ten business days after final approval here). (Tr. p. 460-461).
Suit was brought unsuccessfully by shareholders of Amexco in the Supreme Court of New York seeking to enjoin these and other proposed settlements. (Trustee's Exh. 15B, 15C). The final determination of this suit in favor of the settlements was another condition precedent. (Tr. p. 31, Trustee's Exh. 2, p. 6, Trustee's Exh. 7, p. 21-22).
The final approval of Limited's petition for an arrangement under Chapter XI of the Bankruptcy Act was another related condition precedent. (Tr. p. 32, Trustee's Exh. 7, p. 22). A claim for $18,461,637.44 had been filed on behalf of Haupt in that proceeding. (Trustee's Exh. 2, p. 1).
Another significant condition which has already been met was a ruling from the Internal Revenue Service that funds being made available by Amexco under this settlement with Amexco and under the Basic Proposal are deductible. (Tr. p. 30, Trustee's Exh. 3, p. 2; Exh. 7, p. 21).
The Basic Proposal (Trustee's Exh. 7) is an underlying agreement presented by Limited's official creditor's committee whereby Amexco has agreed to establish a fund, over and above Limited's insurance, for the payment of claims against Limited resulting from Limited's issuance of warehouse receipts for which there was, in fact, no oil in its possession and for the payment of claims arising out of forged receipts. The Basic Proposal has been adopted by the official creditor's committee of Limited as a part of its reorganization plan (Trustee's Exh. 7, p. 1-3) and that plan has been approved by this Court. (Ryan, J.) (Trustee's Exh. 26).
Claims filed in Haupt's bankruptcy, Allied's bankruptcy, Limited's bankruptcy and the suit against Amexco, along with other suits arising out of the Salad Oil Scandal, are the subject of these related compromise proposals. (Trustee's Exhs. 1-8). Consequently, the terms of the proposed settlements and the underlying agreements are complex and interrelated with the claims of many others who were likewise engulfed in this financial debacle. However, the salient provisions of the instant settlements and agreements (for which the official creditor's committee of Limited will act as special trustee for the purpose of receiving and disbursing funds and documents (Tr. p. 27, Trustee's Exh. 1)), are as follows:
1) The Haupt trustee will receive from the special trustee $2,500,000, in cash, on the Haupt closing date in full settlement of its claims against Amexco and its affiliates and certain insurers. Amexco is committed to pay to Haupt's trustee $1,150,000 (Amexco-Special Trustee Agreement, Trustee's Exh. 3, p. 1-2). The balance of $1,350,000 is payable in accordance with directions given by various acceptors of the Basic Proposal (Trustee's Exh. 6, p. 2).
2) The trustee's claim against Allied in the sum of $31,823,726.13 is to be allowed (subject to withdrawal or disallowance of duplicative claims) but will be subordinated to "the extent of its proportionate interest in the aggregate amount required to pay each composition creditor, after payment of administration expenses and priority claims, an amount equal to fifty percent" of its allowed claims, plus interest on such distribution at the rate of 6% per annum. (Trustee's Exh. 5, p. 1).
3) If Limited executes and delivers a general release in favor of Haupt and the Haupt trustee, the Haupt claim filed in Limited's Chapter XI proceeding will be withdrawn (Trustee's Exh. 2, p. 2 of Exh. A thereto).
4) The collateral security held by Continental Illinois National Bank and Trust Company of Chicago, represented by warehouse receipts pledged by Haupt, shall be valued in the sum of $1,400,624.18 (less reasonable collection expenses, including attorney's fees and legal expenses, as may be fixed by this Court but not to exceed $200,000). This valuation is determined by the amount Continental is to receive from Amexco pursuant to agreement. (Trustee's Exh. 8).
5) For the purposes of enforcement and consummation of the agreements only, the parties involved will submit to the summary jurisdiction of this Bankruptcy Court and provision is made for the service of process relating to such jurisdiction. (Trustee's Exh. 2, p. 6).
6) Provision is made for the Haupt closing date, a date by which all conditions precedent to the effectiveness of the agreements must be satisfied, and a date for terminating the agreements if the conditions have not been met. (Trustee's Exh. 2, p. 5-6).
The proposed settlements and the underlying agreements resulted from negotiations which commenced in the spring of 1966 between representatives of the Haupt estate, Amexco, the Allied estate and other interested parties, for the purpose of attempting this settlement. (Tr. p. 2031). It was finally reduced to writing on August 1, 1966. (Tr. p. 17-18). An earlier proposed settlement of approximately $600,000 payable over a six year period had been rejected by the trustee. (Tr. p. 10-14, 234). This rejected proposal is a part of the Basic Proposal (Trustee's Exh. 7) which has now been superseded by the Haupt Settlement Agreement (Trustee's Exh. 2), the Amexco-Special Trustee Agreement (Trustee's Exh. 3), and Direction to the Disbursing Agent (Trustee's Exh. 6).
Notice of the proposed settlements was given to all interested parties. In addition to the trustee, the proposed settlements are supported by all the remaining creditors of Haupt (largely the banks and the New York Stock Exchange) whose claims aggregate $29,000,000. The objectants are certain limited partners of Haupt whose claims aggregate $2,750,000.
Hearings on the proposed settlements commenced before the referee on November 28, 1966. They continued, intermittently, on 18 days thereafter until May 23, 1967. Thirteen witnesses, most of whom were called by the objectants, testified upon the hearing. The transcript of these hearings consists of more than 2,000 pages. There were exhibits received in evidence aggregating, at least, 2,000 additional pages. The trustee and the objectants filed briefs following the hearing aggregating almost 300 pages.
After the hearing and submission of briefs, the referee concluded that the trustee had arrived at an informed, independent judgment that the claims should be settled. (Referee's Opinion, p. 41-42). He also concluded that the trustee had demonstrated that the proposed settlements were fair and should be approved. (Id. p. 43).
The referee acknowledged in his opinion the applicability of the requisites to approval of settlements of claims in bankruptcy proceedings enunciated by the Supreme Court in Protective Committee, etc., of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 88 S. Ct. 1157, 20 L. Ed. 2d 1 (1968). However, he gave no clear indication that he, himself, after an evaluation of the claims, had arrived at an informed, independent judgment that these claims should be settled. Nevertheless, such informed, independent judgment by the referee is clear. He afforded a full hearing to the objectants (Tr. p. 380-381, 495-496, 1178-1179), discussed the strengths and weaknesses of the trustee's claims as the testimony came in (e.g. Tr. p. 1722, 1760-1761), and received briefs on the applicable law (Referee's Opinion, p. 45-46) before concluding that the trustee had based his judgment with respect to settlement upon the required informed basis.
It is clear to this court, after a review of the record, the exhibits and briefs before the referee, that the referee had apprised himself of "all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the [claims] be litigated." Protective Committee, etc., of TMT Trailer Ferry v. Anderson, Inc., supra, p. 424, 88 S. Ct. p. 1163. It is also evident that the referee formed "an educated estimate of the complexity, expense, and likely duration of such litigation, the possible difficulties of collecting on any judgment which might be obtained [against Allied], and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise." Id. p. 424, 88 S. Ct. p. 1163. Finally, it is obvious that the referee compared "the terms of the compromise with the likely rewards of litigation", Id. p. 425, 88 S. Ct. p. 1163, against Amexco and Allied.
This court, therefore, concludes that there were adequate facts and valid authority before the referee to make the requisite determinations imposed upon the bankruptcy courts in approving settlements by the TMT case, and that his failure to discuss the evidence and to evaluate the claims in terms of the applicable law are merely formal defects. Protective Committee, etc. of TMT Trailer Ferry v. Anderson, Inc., supra, at p. 437, 88 S. Ct. 1157. It is evident from a reading of the record that the referee's conclusions were based upon the following considerations: 1) although the trustee has amassed enough evidence to get to a jury on the question of Amexco's liability, the outcome is in doubt, the chief problem being whether Amexco's negligence was the proximate cause of the injury to Haupt or, as the referee put it, whether Amexco knew of the theft and forgeries (Tr. p. 729, 732, 919, 1621-1624, 1760-1761, 1802-1804, 1984-1986); 2) litigation of the trustee's claims against Amexco and Allied would involve protracted and expensive litigation, consequently, when these facts are considered against possible actual monetary recovery, if there was one against Amexco and Allied, the amount offered in settlement is fair and reasonable (Tr. p. 176-178, 210-216, 453, 591, 913-925, 935-938); 3) the claim against Allied has been allowed in full by the terms of the settlement, although the likelihood of recovering anything substantial on the trustee's claim against Allied is not very great (Tr. p. 652), since Allied's present assets are only $2,000,000 (Tr. p. 212) and claims already filed against Allied ($176,374,938) are staggering in amount (Tr. 283-286), and since such substantial recovery would be dependent upon the outcome of complex and protracted litigation, brought by Allied's trustee against others likewise involved in the "Salad Oil Scandal", about which there is no certainty. (Tr. p. 211-216, 338, 1027-1032, 1133).
As this court has already found, Palmieri, J., In re Ira Haupt and Company, 234 F. Supp. 167 (S.D.N.Y.1964), aff'd 343 F.2d 726 (2nd Cir. 1965) and Ira Haupt & Co. v. Klebanow, 348 F.2d 907 (2nd Cir. 1965), Haupt was a limited partnership with 16 general partners and 13 limited partners. It engaged in a general brokerage and commission business with its principal place of business in New York City. 234 F. Supp. at 168. It had a number of branches throughout the country and utilized the services of approximately 700 employees. (Id. p. 168). The limited partnership came into existence in April 1960.
By the terms of the partnership agreement, the partnership was to expire on December 31, 1963, about five weeks before its collapse. (Id. p. 168).
In May, 1963, Haupt entered into business arrangements with Allied. Allied's business was the manufacture, purchase, sale and export of vegetable oils and the purchase of contracts for same. Pursuant to their understanding, Haupt was to furnish financing for certain of Allied's operations. This financing was to be limited to two types of transactions. The first involved loans to Allied by Haupt against cottonseed oil or soybean oil "hedged" by earmarked futures contracts sold to Haupt on the New York Produce Exchange or the Chicago Board of Trade. The second type of transaction involved loans to Allied by Haupt secured by contracts for the sale of refined soybean oil to prime buyers. In connection with certain of the loans, Haupt was to receive as collateral warehouse receipts for refined cottonseed or soybean oil. Pursuant to this agreement, Haupt began to act as Allied's broker in connection with the purchase and sale of commodities on the New York Produce Exchange and the Chicago Board of Trade. (Trustee's Petition, p. 2, Trustee's Exh. 24, p. 5, Schedule A, Sloan Exhs. N-1, N-8).
In connection with its business, Allied maintained a tank farm for the storage of commodities in Bayonne, New Jersey. It had been involved in the purchase and sale of cottonseed and soybean oil and the storage of same in tanks for several years. It was in conjunction with Allied's tank farm in Bayonne that Field and Limited conducted, and had conducted for many years, their field warehouse activities. This consisted of the maintenance of custody and control of tanks at the Bayonne tank farm and at Jersey City away from the main offices of Field and Allied.
Commodities were stored in the tanks at Bayonne and Jersey City for the benefit of the owners of the various commodities such as Allied (at Bayonne) and similar companies such as Freezer House, Inc. (at Jersey City).
Some of the tanks at Bayonne had been leased by Allied from Bayonne Industries, Inc. and subleased by Allied to Field and Limited.
Other tanks at that same farm in Bayonne belonged to Harbor Tank, with whom DeAngelis did business, and still others belonged to Allied. These tanks were all interconnected by a maze of pipes. It appears that it was possible to siphon off oil from one of these interconnected tanks to the other. Warehouse receipts were issued by Field and Limited to the owners of the commodities, such as Allied and Freezer House which, in turn, used these receipts to secure loans. (Sloan Exh. R., p. 24-25, 112-117, Trustee's Exhs. 19, 21A-21W, Tr. p. 392-395, 1475, 1484, 1707, 1720-1721).
The Field warehousing corporation existed from May 19, 1944 to May 31, 1963. Amexco owned all of the issued and outstanding capital stock of Field. On May 31, 1963 Amexco sold all of its stock in Field to Lawrence Warehousing Company. Prior to the sale, Amexco caused Field to transfer its most prosperous warehouse business, which consisted of the Allied and Freezer House, Inc. accounts, to Limited in exchange for all of Limited's capital stock, the assumption by Limited of all obligations of Field arising out of the business transferred, and Limited's indemnification of Field against all liability arising out of such business. Field thereafter distributed to Amexco all of Limited's capital stock. (Trustee's Exh. 7, p. 1-2; Sloan Exh. R., p. 4-21).
Many of the directors and officers of Limited were also directors and officers of Amexco (Tr. p. 1697-1707). Some of the personnel of Field and Limited were paid by Amexco (Sloan Exh. R., p. 139; Tr. p. 1699). The subsidiaries used many of Amexco's business forms (Exh. R., p. 137). Some of Amexco's officials solicited business for the subsidiaries (Exh. R. p. 167). Amexco's officials could sign Limited's checks (Tr. p. 777). Amexco's employees did Limited's legal work (Tr. p. 779). Amexco participated in some of Limited's major business decisions such as the amount of insurance necessary for Limited (Tr. p. 770, 775-776), and whether Limited should declare dividends (Tr. p. 778).
DeAngelis used receipts issued by Field and Limited as collateral security for loans made to him. (Tr. p. 1512-1514). Between June 1962 and June 1963, DeAngelis used such receipts as collateral for three loans made to Allied by another subsidiary of Amexco, the American Express Company, Incorporated (Tr. p. 1498-1499). The first loan of $566,695 was made in June 1962 by the New York Agency of American Express Company, Inc., (Tr. p. 1460-1464, 1514). The president of Amexco who was also president of Amexco, Inc., and other dual capacity officers were on the credit committee which approved a line of credit to Allied up to $600,000. (Tr. p. 1496). The second loan for $566,000 was made on October 15, 1962 and secured by another receipt. (Tr. p. 1527-1533). The third loan for $566,000 was made on June 7, 1963, secured by a third warehouse receipt (Tr. p. 1548-1549, 1551-1552), but was still outstanding on November 19, 1963 when Allied commenced its Chapter XI proceeding (Tr. p. 1570). Amexco, Inc. had difficulty in getting Allied to repay the first two loans on time and in getting adequate additional collateral for all of the loans from DeAngelis. It made each of these loans with full knowledge of DeAngelis' unfavorable business reputation. (Tr. p. 1460-1565).
During the period May 29, 1963 to November 19, 1963, Allied also delivered to Haupt numerous warehouse receipts which it received from Amexco's subsidiaries. (Tr. p. 734, 1129-1131). On November 19, 1963 when Allied filed its bankruptcy proceeding, there were 10 warehouse receipts outstanding, purportedly issued by Limited, representing crude soybean oil and crude degummed soybean oil. (Tr. p. 406, 734). These warehouse receipts had an assigned aggregate face valuation of $18,461,707.44. (Trustee's Petition, p. 4, Tr. p. 920-921, 1128, 1132). Nine of these receipts, representing about 13 million dollars of that amount, had been pledged by Haupt with various banks. (Tr. p. 920-922, 1224). The tenth receipt had been received on the very day on which Allied filed its petition for an arrangement under Chapter XI of the Bankruptcy Act in the United States District Court for the District of New Jersey and was thereafter adjudged a bankrupt. (Tr. p. 205). This receipt had an assigned face value of $5,400,000 and had not been pledged by Haupt as security for any loan. It is the only receipt held by the trustee (Tr. p. 205, 617, 1118, 1126-1128).
After Allied filed its petition in bankruptcy, it was discovered that a number of warehouse receipts issued or purportedly issued by Limited and Field relating to Allied's account were issued for commodities far in excess of the actual commodities stored in the tanks at Bayonne. (Tr. p. 1725-1726). They are referred to by the parties as the authorized but fraudulent receipts. (Tr. p. 11, 406; Trustee's Exh. 7, p. 3).
It was also discovered after the Allied bankruptcy, from testimony taken by the trustee's counsel in the Allied bankruptcy proceedings, that DeAngelis had appropriated a pad of blank warehouse receipts from Limited and had forged the signatures of Limited's responsible employees on those receipts. (Tr. p. 182). See also, Bunge Corporation v. London and Overseas Ins. Co., 394 F.2d 496 (2d Cir. 1968), cert. denied, 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968). These receipts, referred to as the unauthorized or forged receipts (Trustee's Exh. 7, p. 3), were then transferred to Haupt or to various banks for Haupt's account. The receipts had been kept in an open file in Limited's office in Bayonne to which Allied's employees had access. Limited's small field office was very near to Allied's premises in Bayonne. (Tr. p. 399-403, 741, 850, 1129-1131, Trustee's Exh. 25). DeAngelis, apparently, had also caused Field and Limited (and perhaps others) to issue to other brokers and banks fraudulent receipts (receipts for which there was, in fact, no oil in the tanks) as well as other forged receipts totaling more than $100 million dollars (Tr. p. 283-285, 405-406). Bunge, supra ; see also, Procter and Gamble Distributing Co. v. Lawrence American Field Warehousing, 16 N.Y.2d 344, 266 N.Y.S.2d 785, 213 N.E.2d 873, 21 A.L.R.3d 1320 (1965). However, it must be continually born in mind that the trustee's action against Amexco is predicated wholly upon forged or unauthorized as distinguished from fraudulent though authorized receipts. (Tr. p. 1129).
On November 20, 1963, as this Court has already found (Bonsal, J.) In re Ira Haupt and Company, 252 F. Supp. 339 (1967), Haupt was in acute financial difficulties and was suspended from further trading by the New York Stock Exchange on November 23, 1963. As this Court further found, In re Ira Haupt and Company, 234 F. Supp. 167, 168 (1964), the extent of Haupt's capital deficiencies at that time was in the neighborhood of $20,000,000. In order to effect a rapid settlement of claims and curtailment of all unnecessary expenses, and "in order to preserve public confidence in the stock market", the New York Stock Exchange and Haupt's creditor banks entered into an agreement whereby the Exchange would advance a fund to pay Haupt's approximately 20 thousand customers and the banks would defer their claims against Haupt to the extent of two dollars for every dollar advanced by the Stock Exchange. Id. p. 168.
On March 23, 1964, an involuntary petition in bankruptcy was filed in this Court by three of Haupt's limited partners. Subsequently, in the Haupt bankruptcy proceedings, the banks which were parties to the agreement with the Stock Exchange filed proof of claims aggregating more than $29,000,000. Thereafter, the Haupt trustee and the banks and the Stock Exchange reached an agreement with respect to the settlement of their claims which was approved by this Court (Bonsal, J.), In re Ira Haupt and Company, 252 F. Supp. 339 (1967). On October 24, 1966, the trustee filed the present application for approval of the settlement of Haupt's claims against Amexco and Allied.
III. THE FIRST CONTROVERSY
The trustee has brought suit against Amexco rather than Limited on the theory that Field and Limited were mere corporate facades behind which Amexco operated. Limited filed a petition for an arrangement in this Court pursuant to Chapter XI of the Bankruptcy Act which has been approved. (Trustee's Exh. 26). All of Field's interests in the warehouse operations at Bayonne were sold to Limited at the end of May 1963. The forged warehouse receipts upon which the trustee's suit against Amexco is based were issued by Limited between October 24, 1963 and November 19, 1963. (Trustee's Exh. 25, Referee's Opinion, p. 5).
The allegations in the trustee's complaint against Amexco are based, in the main, upon a report of the Creditors' Committee of Limited, dated July 10, 1964. (Tr. p. 726-734). The Creditors' Committee Report was introduced in evidence by objectants upon the hearing before the referee. (Sloan Exh. R.). That report, as it states, was based, primarily, upon review and analysis of approximately 75,000 documents lodged in this Court House in connection with Limited's Chapter XI reorganization proceeding. (Exh. R., p. 1-2). Most of these documents were secured from the files of Limited. Other documents were produced voluntarily by Amexco, Amexco, Inc., the trustee in bankruptcy of Allied, and others. (Id.). In addition to these documents, the report is based, in part, upon testimony of Donald K. Miller, former president of Limited, taken in the Limited proceeding, and the testimony of others taken in several proceedings pending in New Jersey state and federal courts. (Id.) The 75,000 documents upon which the Creditors' Committee Report is based were examined by the trustee's aids. (Tr. p. 978).
In addition to the material contained in the Creditors' Committee Report, the Objectants subpoenaed (Tr. p. 1459-I) as witnesses the president of Amexco (Clark), the vice president and secretary of Limited, who was also a secretary of Amexco and Amexco, Inc., (Waag), the vice president, International Banking Division of Amexco, Inc. (Powers), and the supervising inspector of Field and Limited (Turner). Clearly it was from the testimony of these officials alone, if not from the Creditors' Committee Report in addition, that the referee got a firm factual basis for concluding that the trustee could get to a jury on the issue of Amexco's liability but the outcome remains in doubt.
The first legal hurdle for the trustee is whether he can successfully pierce the corporate veil of Limited. In addition to the facts, cited above, that all of the stock of Limited was owned by Amexco and there was extensive involvement on the part of Amexco in Limited's affairs, the Creditors' Committee Report also contains a great deal of information regarding "representations" and "holdings out" by Amexco as to its warehousing business from which the public might have inferred that Amexco and Limited were one and the same. (Exh. R., p. 323-347). However, in this connection, the trustee has three problems.
First, he must show, "Control, not mere majority or complete stock control but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own." Second, he must show that, "Such control must have been used by the defendant to commit fraud or worse, to perpetrate the violation of a statutory or other positive legal duy, or a dishonest and unjust act in contravention of plaintiff's legal rights." Third, he must show that, "The aforesaid control and breach of duty must [have] proximately [caused] the injury or unjust loss complained of." Fisser v. International Bank, 282 F.2d 231, 238 (2d Cir. 1960); Hellenic Lines, Ltd. v. Winkler, 249 F. Supp. 771 (S.D.N.Y.1966); In re Sheridan's Petition, 226 F. Supp. 136 (S.D.N.Y.1964).
Consequently, from the very outset of the trustee's case, the question of Amexco's knowledge of the forgeries becomes an issue. This issue is germane to each of the three causes of action pleaded by the trustee in his complaint. Each requires proof that Amexco knew or should have known that DeAngelis stole a pad of warehouse receipts from Limited and forged thereon the signature of Limited's authorized employees and that such receipts were then used by DeAngelis to obtain millions of dollars in loans from Haupt and others.
Again, with respect to the first cause of action, from the testimony of the witnesses subpoenaed by objectants, the referee had an adequate factual basis for concluding that the trustee could probably get to a jury on the issue of Amexco's liability, but the outcome of that cause of action remains in doubt. In this connection, there is the testimony of R. J. Waag and a letter written by him which should be noted. R. J. Waag, who was called as a witness by the objectants, was a vice president and secretary of Limited at the time in question (Tr. p. 1698-1699) and a secretary of Amexco and Amexco, Inc. (Tr. 1699-1700). He wrote a letter to Howard R. Clark, president of Amexco, on November 24, 1963, the day after the public became aware of the "Salad Oil Scandal" in which he advised the president that he could not agree with the president's position, taken at a meeting the day before, that Amexco had taken "every reasonable precaution to avoid a loss of this nature." (Sloan Exh. BN). His testimony was to the same effect. Despite Waag's damaging testimony with respect to Amexco's negligence in the operation of its field warehousing facilities, upon cross examination by Haupt's counsel, Waag testified, without equivocation, that prior to November 19, 1963, notwithstanding all of his own investigation and concern about conditions at Amexco's field warehousing operations in Bayonne, he did not know, believe, or suspect that: 1) Field or Limited was issuing warehouse receipts representing oil which did not exist; 2) Allied was subleasing tanks to Limited or Field which it did not have under lease; 3) Mr. DeAngelis or anybody else had stolen warehouse receipt forms of Limited which were being forged by Mr. DeAngelis; or 4) any of the inventories taken at the tank farm in Bayonne were false. (Tr. p. 1781-1782). The other Amexco officials who were examined testified to precisely the same effect. (Tr. p. 1621-1624, 1802-1804, 1984-1986). In short, although there was a great deal of evidence before the referee from which a jury might conclude Amexco was negligent, there is also evidence from which a jury might conclude, as Amexco asserts (Tr. p. 682), that DeAngelis' theft and forgery of the warehouse receipts was an intervening superseding cause of the injury to Haupt which relieves Amexco of liability.
There is no dispute that Haupt's loss resulted from the forged receipts; all three causes of action are predicated thereon. If New Jersey law is applicable to the first cause of action for negligence, as alleged, then, in order to prevail, the trustee, in addition to showing that Amexco was negligent, must prove that Amexco's negligence was a proximate cause of the loss to Haupt. Kulas v. Public Service Elec. and Gas. Co., 41 N.J. 311, 196 A.2d 769 (1964). In determining the existence of proximate cause, the New Jersey court must first inquire whether Amexco's conduct constituted a cause in fact of Haupt's loss. Id. In other words, was Amexco's negligence a cause of the theft and forgery? Under New Jersey law, Amexco's negligence, if proved, would not be regarded as a substantial factor in bringing about Haupt's loss if Haupt's loss would have occurred just as it did even if Amexco had not been negligent. Id. In short, would DeAngelis have stolen and forged the receipts even if Amexco had not been negligent?
"The intervening cause which operates to bar a plaintiff's recovery in a negligence action must be a culpable and efficient cause." White v. Ellison Realty Corp., 5 N.J. 228, 74 A.2d 401, 403, 19 A.L.R.2d 264 (1950). "An efficient cause is 'the one that necessarily sets the other causes in operation.'" Id. "It is the 'act or omission which directly brought about the happening complained of, and in the absence of which the happening complained of would not have occurred.'" 74 A.2d at 404.
Although the trustee alleges in his complaint that the first cause of action arises under New Jersey law, neither the trustee nor the objectants rely upon New Jersey negligence cases; on the contrary, they rely upon New York negligence law. The applicable law question is not discussed by either party. However, if we assume that New York law applies, the trustee must also prove that Amexco's negligence was a proximate cause of the loss resulting to Haupt. (Again, the loss resulted from the forged receipts). Colban v. Petterson Lighterage & Towing Corp., 19 N.Y.2d 794, 279 N.Y.S.2d 735, 226 N.E.2d 541 (1967); Tsitsera v. Hudson Transit Corp., 14 N.Y.2d 855, 251 N.Y.S.2d 968, 200 N.E.2d 633 (1964); Rivera v. City of New York, 11 N.Y.2d 856, 227 N.Y.S.2d 676, 182 N.E.2d 284 (1962).
Several of the cases cited by the trustee point up the difficulty involved in overcoming the ...