AFH Complaint
AFH Complaint
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In re
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ARCHITECTURE FOR HUMANITY, INC.)
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Debtor.
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____________________________________)
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JANINA M. HOSKINS, Trustee
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in Bankruptcy of the Estate of
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ARCHITECTURE FOR HUMANITY, INC.)
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Plaintiff,
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v.
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CAMERON SINCLAIR; KATE STOHR; )
MATTHEW CHARNEY;
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CLARK MANUS; SCOTT MATTOON;
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NIAMA JACOBS; CLIFF CURRY;
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MARGARET STEWART; PAUL GABIE; )
NARRY SINGH; TAYLOR MILSAL,
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and TOSHIKO MORI;
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Defendants.
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____________________________________)
AP No.
COMPLAINT FOR DAMAGES
FOR (1) NEGLIGENCE, (2) GROSS
NEGLIGENCE, AND (3) BREACH OF
FIDUCIARY DUTY
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INTRODUCTION
1.
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charitable trust named Architecture for Humanity, Inc. (the Debtor), founded to solicit
charitable donations to fund design and construction services in geographical areas subject to
natural disasters or endemic poverty, such as Haiti, areas of the U.S. Eastern Seaboard
devastated by Hurricane Sandy, and areas of Japan destroyed by the Fukushima tsunami.
Defendants were all either compensated or uncompensated members of the Board of Directors of
2.
During the relevant periods of time referenced in this Complaint, the Debtor
solicited millions of dollars of donations from corporate and individual donors, all of which were
transmitted to the Debtor in trust. Most of these donations were restricted, meaning that they
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could only be used for actual project expenses. A much smaller portion of the donations were
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unrestricted, meaning that they could be used for executive and staff salaries, promotional
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expenses, and other overhead items. The Debtor was obligated to maintain these donations in
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restricted and unrestricted accounts. Through written grant agreements, Debtor was
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obligated to return most of the restricted funds to the donors in question if the funds were not
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3.
Starting no later than the year 2013, the Debtor, acting through the above-named
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Defendants, completely disregarded the restricted and unrestricted nature of the funds and
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began a wholesale looting of the restricted funds and used them to pay executive and staff
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salaries, promotional expenses, and other overhead items which were properly paid only with
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unrestricted funds. The Debtor, acting through the above-named Defendants, continued
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soliciting more donations and continued this practice of disregarding the distinction between
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restricted and unrestricted funds up to the filing of the petition for relief, even though it was
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provided an opinion from its auditors that it was out of trust and could not survive as a going
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concern and even though it was provided an opinion by its counsel that this practice
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4.
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breach of trust by the Defendants and each of them, from and after 2013, the Debtor incurred in
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On April 17, 2015 (the Petition Date), Architecture for Humanity (Debtor)
filed a voluntary petition for relief under Chapter 7 in the above-entitled Court (the Main
Case). Thereafter, Plaintiff was duly appointed as the Chapter 7 Trustee in Bankruptcy and
vested with all causes of action and other litigation rights held by the Debtor which she now
6.
This U.S. District Court for the Northern District of California has original
subject matter jurisdiction over this adversary proceeding pursuant to the provisions of 28 USC
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157 and 1334 and 11 USC 541. The District Court has, by general order, referred the Main
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Case and all adversary proceedings filed in connection with the Main Case to the U.S.
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Bankruptcy Court for the Northern District of California. Venue is proper here pursuant to the
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USC 157. Plaintiff consents to final judgment of the Bankruptcy Court pursuant to the
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PARTIES
8.
Plaintiff Janina M. Hoskins is the duly appointed Chapter 7 Trustee of the Estate
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of Architecture for Humanity. Due to the fact that Plaintiff was not appointed until after the
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Petition Date, Plaintiff does not have personal knowledge of the facts alleged in this complaint
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that arose prior to the filing of the Main Case, and therefore alleges all of those facts on
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information and belief. Plaintiff reserves her right to amend this Complaint to allege additional
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claims against the Defendants and to challenge and recover avoidable transfers made to or for
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the benefit of any of the Defendants in addition to those claims for relief alleged in this
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Complaint.
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9.
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organized under the laws of the State of New York and qualified as a tax exempt corporation
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pursuant to Section 501(c)(3) of the Internal Revenue Code. At all relevant times, the Debtor
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was headquartered in the State of California and registered with the State of California as a
charitable trust. As such, the Debtor and the Defendants are subject to the substantive laws of
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Defendants Cameron Sinclair and Kate Stohr are each individuals residing and
doing business in the Northern District of California. At relevant times, Defendants Sinclair and
Stohr have been some, but not all, of the officers and directors of the Debtor. As such,
Defendants Sinclair and Stohr owed the Debtor fiduciary duties of care and loyalty. Defendants
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Taylor Milsal, Margaret Stewart, Narry Singh, and Toshiko Mori are each individuals who did
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business in the Northern District of California during the periods referenced in this complaint.
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These Defendants are referred to below as the Volunteer Directors. At relevant times, the
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Volunteer Directors were the remaining members of the Board of Directors of the Debtor. As
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such, the Volunteer Directors owed the Debtor fiduciary duties of care and loyalty. To the extent
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that the Volunteer Directors are subject to the substantive law of the State of California, the
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Volunteer Directors are not entitled to the immunities set forth in California Corporations Code
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Sections 5047.5 and 5239 because (a) the acts and omissions of the Volunteer Directors alleged
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below constituted gross negligence and (b) on information and belief, the Volunteer Directors
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are indemnified by liability insurance for their grossly negligent acts and omissions.
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GENERAL ALLEGATIONS
12.
On January 16, 2002, the Debtor was organized as a New York nonprofit
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corporation. Thereafter, the Debtor established its principal place of business in the State of
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13.
Starting in the calendar year 2009, the Debtor experienced a dramatic increase in
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its revenues, all of which were either public or private charitable donations. Its gross revenues
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went from $1,747,262 in the year 2009; to $5,501,336 in the year 2010; to approximately
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$7,200,000 in the year 2011; to over $10,000,000 in the year 2012; to $12,365,805 in year 2013.
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14.
in the Debtors overhead and administrative expenses, including payment for fundraising
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However, although the Debtor had sufficient cash on hand to pay these
dramatically increased expenses, using that cash commonly resulted in a breach of trust with the
Debtors donors.
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Most of the donations made to the Debtor were made in trust with significant
restrictions on the use of the donated funds, known generally in nonprofit administration and
designated internally by the Debtor as restricted funds. Donated funds which could be used
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for any purpose including overhead and administrative expenses are known as unrestricted
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funds.
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forth below:
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Examples of the restricted donations made or agreed to be made to the Debtor are set
a)
On January 15, 2013, Nike USA made a grant to the Debtor in the amount
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the express condition that 15% of the grant could be used for the Debtors
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b)
On June 20, 2013, the Alcoa Foundation made a grant to the Debtor in the
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$642,402 in the year 2013, $527,799 in the year 2014, and $329,799 in the
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year 2015. This grant was made for the purpose of implementing a project
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made on the express condition that Only expenses directly related to the
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percentage of indirect costs are not allowed. A correct copy of this letter
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c)
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and budget providing that only $28,547 of the grant funds could be used
for general overhead and further requiring that all funds advanced by the
labeled Exhibit 3.
d)
On April 16, 2014, the Prudential Foundation made a grant to the Debtor
in the amount of $1,000,000 pursuant to a written Memorandum of
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used ...in order to cover its expenses for administering the grant(s)... A
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e)
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and budget providing that only $3,900 of the grant funds could be used for
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general overhead and further requiring that all funds advanced by the
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No later than July 21, 2012, the Defendants were notified by the Debtors
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management that there was a deficit in the Debtors unrestricted funds account in the amount
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of $185,000. In other words, as of that date, the Debtor had committed a breach of trust as to
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one or more of its donors and misused the funds donated to the Debtor in trust.
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On October 26, 2012, the Defendants were each transmitted a Memorandum from
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the Finance Committee of the Board of Directors entitled, Material Deterioration in Financial
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Outlook Special Board Meeting Required. This Memorandum noted, among other things that
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the deficit on the Debtors unrestricted funds had increased to $529,000 as of 9/30/2012, that
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the Finance Committee was ...deeply concerned about the fiscal outlook of the organization...,
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and that, If the deficit in unrestricted assets worsens in the Q2 FY 2012-13, which ends on 31
December, we will find ourselves in an exceedingly dire financial position. A correct copy of
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them continued to manage the Debtor in a grossly negligent fashion and in breach of their
fiduciary duties throughout the remainder of 2012 and 2013. The deficit in unrestricted funds
and the corresponding breach of trust as to restricted funds did, in fact, continuously worsen
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report for the fiscal year ending 6/30/2013, noting, among other things, that the deficit in
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unrestricted funds had increased to $1,144,775 as of 6/30/13, that the Debtor still had cash and
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cash equivalents of $4,247.220 as of that date, and ...the Organization has suffered recurring
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losses in unrestricted activities and has a net deficit in unrestricted assets that raise substantial
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doubt about its ability to continue as a going concern. A correct copy of this independent
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auditors report is attached to this Complaint and labeled Exhibit 7. Shortly prior to the
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transmission of the independent auditors report, the Defendants were advised by management
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that the Debtor was bringing in only $6,000 per month in unrestricted funding, but that it was
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making $165,000 per month in unrestricted expenditures, and that by the end of November,
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corresponding instances of breach of trust as to the restricted funds donated in trust by the
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Debtors donors, the prudent course of action would have been for the Debtor to terminate
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operations no later than January 29, 2014 to further prevent dissipation of the restricted funds
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and return those funds to the Debtors donors and other creditors on a pro rata basis. As of that
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date, the Debtor had cash and cash equivalents on hand of not less than $3,000,000 to do so.
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On March 28, 2014, and April 8, 2014, the Defendants received further
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Memorandums from the law firm of Jenner & Block, counsel for the Debtor, advising them that
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their ongoing misuse of restricted funds was likely grossly negligent, a breach of trust, and a
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breach of fiduciary duty. Correct copies of these Memoranda are attached to this Complaint and
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management and the Debtors business advisors, the Defendants continued to operate the Debtor
in the same grossly negligent fashion throughout the year 2014, invading the restricted funds
to pay ongoing operating losses in overhead, and dissipating the assets of the Debtor so that by
the time the Debtor filed its Chapter 7 petition for relief, the amount of cash had been reduced to
$200,000, the Debtors general liabilities had increased, and the amount by which the Debtor
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As officers and directors of the Debtor, the Compensated Directors owed the
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Debtor a duty of care to exercise the diligence, care, and skill that ordinary prudent persons
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would exercise under similar circumstances in the management, supervision, and conduct of the
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Debtors business and financial affairs, including its fund raising, accounting, and project
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funding practices.
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Also, the Compensated Directors and each of them agreed and were obligated by
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statute, contract, and/or common law to diligently and honestly administer the affairs of the
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Debtor, and were under a duty to ensure that the Debtor operated in compliance with all laws,
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rules, and regulations, as well as all applicable donor contracts, policies, rules, and regulations of
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the Debtor. The Compensated Directors, collectively and individually, owed to the Debtor the
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highest duty of due care and diligence in the management and administration of the affairs of the
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Debtor, in the use and preservation of its assets and property, and in the adoption and carrying
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judgment rule because none of the Compensated Directors actions or inactions that are the basis
of this negligence claim were in taken in good faith. Nor were the Compensated Directors
reasonably well-informed in taking such actions or inactions because the Compensated Directors
repeatedly approved donor grants and expenditures in violation of the grant agreements in
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Directors failed to discharge their duties to the Debtor as described herein, breaching the
statutory and common law duties that they owed to the Debtor and were thus negligent.
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Each of the Compensated Directors, during the period of time he or she was an
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officer or director of the Debtor, was negligent in abdicating his/her responsibilities to the
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Debtor as an officer or director. Each of the Compensated Director was unreasonable in failing
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to investigate material facts; failing to carry out his/her responsibilities to the Debtor by failing
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to act with appropriate care, including reasonable inquiry, as an ordinary prudent person in a like
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position would use under similar circumstances; and failing to act in good faith. Each of the
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Compensated Director was ignoring the danger his/her negligence was causing to the Debtor,
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negligently soliciting restricted charitable donations without the intent to utilize such donations
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for the restricted purposes in question; negligently accounting for such donations; and
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authorizing the expenditure of such donations for improper purposes, including their own
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Complaint.
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32.
California Corporations Code Sections 5047.5 and 5239 and New York Nonprofit
Corporations Law Sections 719 and 720-a, provide that directors and officers of a nonprofit
corporation maybe held liable to the nonprofit corporation in question for loss or damage caused
by their gross negligence, as defined by applicable law. California law defined gross
negligence as either a want of even scant care or an extreme departure from the ordinary
standard of care.
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As officers and directors of the Debtor, the Defendants owed the Debtor a duty of
care to exercise the diligence, care, and skill that ordinary prudent persons would exercise under
similar circumstances in the management, supervision, and conduct of the Debtors business and
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financial affairs, including its fund raising, accounting, and project funding practices.
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Also, the Defendants and each of them agreed and were obligated by statute,
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contract, and/or common law to diligently and honestly administer the affairs of the Debtor, and
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were under a duty to ensure that the Debtor operated in compliance with all laws, rules, and
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regulations, as well as all applicable donor contracts, policies, rules, and regulations of the
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Debtor. The Defendants, collectively and individually, owed to the Debtor the highest duty of
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due care and diligence in the management and administration of the affairs of the Debtor, in the
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use and preservation of its assets and property, and in the adoption and carrying out of business
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35.
The Defendants are not entitled to application of the business judgment rule
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because none of the Defendants actions or inactions that are the basis of this gross negligence
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claim were in taken in good faith, nor were the Defendants reasonably well-informed in taking
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such actions or inactions because the Defendants repeatedly approved donor grants and
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expenditures in violation of the grant agreements in question and the advice of the Debtors
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duties to the Debtor as described herein, breaching the statutory and common law duties that
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Each of the Defendants, during the period of time he or she was an officer or
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director of the Debtor, was grossly negligent in abdicating his/her responsibilities to the Debtor
as an officer or director, unreasonable in failing to investigate material facts, failing to carry out
his/her responsibilities to the Debtor by failing to act with appropriate care, including reasonable
inquiry, as an ordinary prudent person in a like position would use under similar circumstances,
failing to act in good faith, ignoring the danger his/her negligence was causing to the Debtor,
negligently soliciting restricted charitable donations without the intent to utilize such donations
for the restricted purposes in question, negligently accounting for such donations, and
authorizing the expenditure of such donations for improper purposes, including their own
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Complaint.
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Each Defendant was grossly negligent in that his/her manner of carrying out
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his/her duties and responsibilities to the Debtor constituted a want of even scant care or an
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extreme departure from the ordinary standard of care. Instead, Defendants acted with such a
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degree of carelessness and inattention to the performance of their duties so as to constitute gross
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negligence.
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39.
As a direct and proximate result of the gross negligence of the Defendants and
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each of them, the Estate has suffered damages in an amount to be determined at trial, in excess of
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$3,000,000.
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At all relevant times, the assets, principal place of business, and state of registry
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as a charitable trust has been in the State of California. Plaintiff is informed and believes and on
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that basis that, for those reasons, notwithstanding the fact that the Debtor is a New York
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nonprofit corporation, the rights and liabilities of the Defendants as officers and directors of the
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Debtor are properly determined by the substantive nonprofit corporate law of the State of
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As officers and directors of the Debtor, the Defendants owed it fiduciary duties
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From no later than July 21, 2012, and continuing through December 31, 2014,
the Defendants and each of them breached their fiduciary duties of care and loyalty to the
Debtor, all in violation of California Corporations Code Sections 5230, 5231, 5237(a)(1), and
5237(a)(2); California Government Code Section 12599.6 and 12599.8, and California Probate
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committed each of the following acts and omissions in their management of the Debtor:
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(a)
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(b)
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(c)
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(d)
Continued to operate and consume the assets of the Debtor solely for their
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(e)
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Plaintiff is informed and believes an on that basis alleges that had the Defendants
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not breached their fiduciary duties to the Debtor, as alleged above, the Debtor would have been
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able to liquidate its assets and return unusable restricted donations in a manner to generate a
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significant return to its existing creditors and/or limit additional liabilities to its donors.
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46.
As a direct and proximate cause of this breach of fiduciary duties, the Estate has
been damaged in an amount presently unknown, but which Plaintiff is informed and believes and
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This claim for relief is pled in the alternative that the rights and liabilities of the
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Defendants as officers and directors of the Debtor are properly determined by the substantive
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As officers and directors of the Debtor, the Insider Defendants owed it fiduciary
From no later than July 21, 2012, and continuing through December 31, 2014, the
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Defendants and each of them breached their fiduciary duties of care and loyalty to the Debtor, all
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in violation of New York N-PCL Sections 513(b) and 550-558, and New York EPTL Sections
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8-1.1 to 8.1-8.
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committed each of the following acts and omissions in their management of the Debtor:
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(a)
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(b)
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(c)
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(d)
Continued to operate and consume the assets of the Debtor solely for their
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(e)
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52.
Plaintiff is informed and believes an on that basis alleges that had the Defendants
not breached their fiduciary duties to the Debtor, as alleged above, the Debtor would have been
able to liquidate its assets and return unusable restricted donations in a manner to generate a
significant return to its existing creditors and/or limit additional liabilities to its donors.
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53.
As a direct and proximate cause of this breach of fiduciary duties, the Estate has
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been damaged in an amount presently unknown, but which Plaintiff is informed and believes and
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For such other and further relief as the Court deems proper.
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