It is widely known that federal law criminalizes certain bad acts in connection with bankruptcy cases. See 18 U.S.C. §§ 151—158. For example, 18 U.S.C. § 152 makes it a crime to, among other things, conceal bankruptcy estate assets, make false oaths or declarations, and file false proofs of claim. Parties in bankruptcy cases, the public, and the U.S. Trustee Program—a component of the Department of Justice that oversees bankruptcy cases—make thousands of criminal referrals of suspected bankruptcy crimes each year. See, e.g., Report to Congress: Criminal Referrals by the United States Trustee Program Fiscal Year 2022.

Creditors in bankruptcy cases often possess information that points to potential criminal bankruptcy misconduct. But what happens when a creditor, rather than referring that information to law enforcement for investigation and potential prosecution, leverages the threat of a criminal referral to gain an advantage in a dispute with the bankrupt debtor?

The Eleventh Circuit Court of Appeals recently addressed this question in its unpublished opinion in Sewalk, et al. v. Valpak Direct Mktg. Sys., LLC, No. 22-13819, 2024 WL 767619 (11th Cir. Feb. 26, 2024). The underlying dispute arose from a franchise agreement between a franchised marketing agency (the “Franchisee”) owned by an individual (the “Debtor”) and a nationwide full-service marketing agency (the “Franchisor”). The Debtor filed an individual Chapter 11 bankruptcy case in which he valued the Franchisee at $12,000. The Debtor did not schedule the Franchisor as a creditor or contract counterparty, or otherwise notify the Franchisor about his bankruptcy case until several months after it was filed, shortly before it was dismissed because the Debtor had failed to confirm a plan of reorganization.

The Franchisor promptly terminated its franchise, invoking a provision in the franchise agreement that allowed it to terminate if the Franchisee’s owner filed a bankruptcy petition. The Debtor and Franchisee in turn sued the Franchisor in federal district court in Florida, alleging that the Franchisor’s termination of the agreement violated the automatic stay in the owner’s bankruptcy case and that the termination was without cause. In this litigation, the Debtor valued the Franchisee at about $1 million. The case was sent to mediation under the district court’s local rules. The parties agreed that the mediation would be confidential.

The mediation was apparently successful, resulting in a settlement agreement, and the district court dismissed the case without prejudice. Shortly thereafter, the Debtor and Franchisee moved to reopen the case and for sanctions against the Franchisor and its counsel. They claimed that, at mediation, the Franchisor had threatened to refer the Debtor to law enforcement authorities for bankruptcy fraud if he and Franchisee did not quickly agree to settle. The Debtor’s affidavit submitted in support of the motion to reopen disclosed statements allegedly made during the confidential mediation.

The district court denied the motion to reopen and struck it for impermissibly disclosing the details of the confidential mediation. Construing the motion to reopen as a motion to rescind the settlement agreement based on coercion and duress, the district court, relying on unpublished Eleventh Circuit precedent, held that under Florida law a threat of criminal prosecution was insufficient to justify rescission. The Debtor and Franchisee subsequently filed a motion styled a “motion for leave” to disclose confidential information from the mediation, which the district court construed and denied as a motion for reconsideration of the motion to reopen.

On appeal, the Eleventh Circuit, after quickly rejecting the Franchisor’s argument that the appeal was untimely filed, extensively reviewed Florida law and affirmed the district court’s denial of the Debtor and Franchisee’s motions. A line of Florida Supreme Court and Court of Appeals cases “recognizes the general rule that a threat of lawful criminal prosecution will not constitute duress and will not justify obtaining relief from a contract.” 2024 WL 767619 at *6. In other words, a party may leverage a threat of criminal prosecution to its advantage in the course of negotiations provided that the threatening party justifiably believes that a crime has been committed.

The court confirmed that the Franchisor’s belief that the Debtor had committed a bankruptcy crime was justifiable. The Debtor inconsistently gave the Franchisee a very low value in his bankruptcy schedules, and a very high value in the litigation against the Franchisor. The Court noted that it was “likely” that the Debtor had made false statements about the Franchisee’s value and that, while the Debtor apparently alleged (in a sealed affidavit) that he had prepared his own bankruptcy schedules despite being represented by counsel in the Chapter 11 case — which arguably demonstrated that the Debtor lacked the requisite intent to have committed a bankruptcy crime — the Franchisor was unaware of this allegation at the time of the mediation, and thus its threat was of a lawful criminal prosecution.

The Debtor and Franchisee also argued that, despite being justified, the Franchisor’s threat violated Florida’s criminal extortion statute and, citing a different line of Florida cases, the settlement agreement should be rescinded. See, e.g., Berger v. Berger, 466 So. 2d 1149 (Fla. 4th Dist. Ct. App. 1985) (finding that a husband’s threat to turn his wife into the IRS for failing to disclose income, despite being lawful, constituted criminal extortion and justified rescission of a marital settlement agreement because he made the threat to gain a pecuniary advantage). The Court distinguished Berger and its progeny, noting that they dealt exclusively with family law disputes, where different sensitivities are in play, and finding that the older line of Florida Supreme Court cases controls.

Notwithstanding the Eleventh Circuit’s decision, creditors seeking to utilize a bankruptcy debtor’s potential bankruptcy crimes to gain a litigation advantage should tread cautiously. First, the contours of what a creditor is and is not permitted to do in order to avoid rescission of a settlement agreement negotiated under the threat of criminal prosecution is dependent on state laws, which may vary. Second, as highlighted by Sewalk, whether a creditor’s threat of criminal prosecution is justified under Florida and similar laws requires a close examination of the particular facts of a given case.