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Graham-Bingham Irrevocable Trust v. Trudeau

United States District Court, Ninth Circuit

December 20, 2013

DONALD TRUDEAU, et al., Defendants.


RICHARD A. JONES, District Judge.


This matter comes before the court on the parties' motions for summary judgment. Plaintiffs requested oral argument solely as to their own motion. Defendants did not request oral argument. The court finds oral argument unnecessary. For the reasons stated below, the court GRANTS Plaintiffs' motion (Dkt. #38) in part and DENIES it in part. The court DENIES Defendant's motion. Dkt. #36. This order concludes with instructions for Defendant Donald Trudeau to indicate whether he will appear to defend himself at trial. If he does not comply with those instructions, he risks having the claims against him brought to judgment without his participation. The conclusion also contains instructions for Plaintiffs to indicate, depending on Mr. Trudeau's response to this order, how they intend to bring their claims to judgment.


Plaintiff Graham-Bingham Irrevocable Trust was the owner of a policy (the "Policy") insuring the life of Frances Graham. The John Hancock Life Insurance Company issued the Policy. The face value of the Policy's death benefit is or was $23 million, although its precise benefit depends on a host of variables that are of no relevance in this dispute.

The Policy required substantial annual premium payments to keep it in force. In December 2009, the Trust received a notice from John Hancock that the Policy would lapse on February 20, 2010, unless the Trust made a payment of about $545, 000. Appel Decl. (Dkt. #39), Ex. E. The Trust was apparently unable to make the payment, so it commissioned a broker to look for third parties who would either buy the Policy or keep it from lapsing. The broker, Chris Kosmos, contacted another broker, Kenneth Klein, who in turn contacted Donald Trudeau. Among his other endeavors, Mr. Trudeau is the sole member of Defendant Greenwich Bay Management, LLC ("Greenwich Bay"). Plaintiffs (the Trust and its trustee, Henry Dean) have presented no evidence, however, that they knew Mr. Trudeau was a member or representative of Greenwich Bay until after most of the events that matter in this dispute.

It is unclear when Mr. Trudeau first learned of the Policy and its February 20, 2010 lapse date, but he undisputedly knew of it by sometime in February 2010. He expressed some interest in either purchasing the Policy or loaning money for the premium payment to keep the Policy in force. He expressed his views entirely by communicating with Mr. Klein, who relayed them either to Mr. Kosmos or Mr. Dean. There is no evidence from which a jury could conclude that he reached any agreement with the Trust prior to February 20, nor did he definitively rule out an agreement. The Trust, hoping that Mr. Trudeau would fund the premium payment, executed a promissory note on February 19, a Friday. Appel Decl. (Dkt. #14), Ex. C at 80. The note was indorsed in blank. Id. Mr. Klein sent Mr. Trudeau an email that day with instructions for wiring payments directly to a John Hancock account. Appel Decl., Ex. G at 111. The email acknowledged that Mr. Trudeau had made no agreement to pay anything, but urged him to act by the end of the day if he decided to pay:

I wanted to send you the wiring instructions for Graham's John Hancock policy in case you decide to buy the policy today. It may be a long shot, but I wanted to ensure you had the information in case you needed it. If you do pull the trigger, the wire should go out by at least 4pm EST.


On February 20, a Saturday, Mr. Trudeau went to a Citibank branch. He signed a check from Greenwich Bay for $554, 000 and deposited it directly to the John Hancock account that Mr. Klein had designated. Appel Decl. (Dkt. #39), Ex. F at 103. He knew at the time that the Greenwich Bay bank account from which the check was drawn had nowhere near enough money to cover the check.

On February 22, a Monday, Mr. Trudeau emailed Mr. Klein the receipt he received from the February 20 deposit. Appel Decl. (Dkt. #39), Ex. L. The email included no substantive text except the phrase "dep slip." Id. The email's footer indicated that Mr. Trudeau was the President of "Benistar Admin Services, Inc." Id. The email address that Mr. Trudeau used was "" Mr. Trudeau used the same email address (and frequently the same footer) throughout his correspondence with Mr. Klein. Mr. Klein's office forwarded Mr. Trudeau's February 22 email to Mr. Kosmos.

Also on February 22, Mr. Klein provided Mr. Trudeau with a copy of the promissory note the Trust had issued. He noted correctly that the $550, 000 figure stated on the note was less than the $554, 000 that Mr. Trudeau had supposedly paid, and pointed out that the note did not state to whom it was payable. Appel Decl. (Dkt. #39), Ex. G at 113. The email also suggested that the maturity date of the note in May 2010 be advanced to March 2010. Id. Mr. Trudeau made no objection to the form of the note, and he made no request as to whom the note should be made payable.

On February 23, the bank on which the $554, 000 check was drawn sent Greenwich Bay a notice that there were insufficient funds in the account to cover the check. Appel Decl. (Dkt. #39), Ex. K. Mr. Trudeau notified no one.

The Trust, through Mr. Klein and Mr. Kosmos, continued in its efforts to sell the Policy. Mr. Trudeau continued to demonstrate interest in buying. By March 2010, Mr. Kosmos had another potential buyer, and he urged Mr. Klein to have Mr. Trudeau put a formal competing offer on the table. Appel Decl. (Dkt. #39), Ex. G at 114. The March email communications among Mr. Kosmos, Mr. Klein, and Mr. ...

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