U.S. Supreme Court Defines Standard for Defalcation



In the landmark decision of Bullock v. BankChampaign, NA, 133 S. Ct. 1754 (May 13, 2013), the United States Supreme Court settled a question confounding courts and litigants since 1867. The Court accepted this case after noting that there were numerous lower court interpretations of the term defalcation resulting in at least three different applications of the term in bankruptcy cases.  In oral arguments, it was noted that this case presented one of the most confounding questions of bankruptcy law, the meaning of defalcation, which is found in Section 523(a)(4) of the United States Code, 11 U.S.C. § 101 et seq. (the “Bankruptcy Code”).

It is an undefined term in the Bankruptcy Code with more than 100 defined terms and has been so in every version since 1867. There is no plain contemporary, ordinary meaning that can settle the dispute regarding interpretation of the word because it is not in common use. Legal authorities have long disagreed about its meaning. Broad definitions of the term in modern and older dictionaries are unhelpful, and courts of appeals have disagreed about what mental state must accompany the definition of defalcation.

This case presented both the question of the action required to establish defalcation and the mental state that must accompany it.

There are two main purposes for bankruptcy: 1) to give debtors a fresh financial start by eliminating most if not all of their debts; and 2) to fairly distribute debtors’ assets amongst creditors.

According to statistics released by the Administrative Office of the U.S. Courts, 936,795 bankruptcies were filed in the year ended December 31, 2014 (909,812 personal and 26,983 business). Kmart Corp. is the biggest U.S. retailer to declare bankruptcy, according to data going back to 1980, with total pre-bankruptcy assets of more than $17 billion, Reuters reported.

The statistics for personal bankruptcies are as follows: average age: 38; 44% of filers are couples; 30% are women filing alone; 26% are men filing alone; slightly better educated than the general population; two out of three have lost a job; half have experienced a serious health problem; fewer than 9% have not suffered a job loss, medical event or divorce; highest bankruptcy rates: Tennessee, Utah, Georgia, Alabama.

The primary expected outcome of filing for bankruptcy is a discharge of most if not all of one’s debt.  Creditors may object to the discharge of the debt owing to them, and under certain circumstances, the debt may be deemed to be non-dischargeable under the Bankruptcy Code.  Section 523 of Title 11 of the Bankruptcy Code, provides that certain debts may not be discharged, including debts incurred by “fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny.” 11 U.S.C. § 523(a)(4).

Background of the Case

Bullock was the trustee of a Life Insurance Trust (the “Trust”), created by his father for the benefit of Bullock and his four siblings. On several occasions, Bullock borrowed funds from the Trust for various investments which resulted in profit for himself.  Bullock repaid the Trust in full, but his brothers sued him in Illinois state court, alleging that he breached his fiduciary duty to the Trust, as these loans were not authorized by the terms and conditions of the Trust. The state court held that even though he had repaid the Trust in full, Bullock had breached his fiduciary duty as trustee by engaging in self-dealing. Interestingly, the state court issued this opinion while noting the absence of a malicious intent on Bullock’s part. The state court awarded Bullock’s brothers the sum of $250,000 (representing the “benefit received” by Bullock from his breach) plus $35,000 in attorneys’ fees. Additionally, it imposed constructive trusts on some of Bullock’s property and on the original trust.

Bullock then filed for bankruptcy relief and his brothers opposed discharge of Bullock’s debts to the Trust on the grounds of defalcation.  The issue before the Supreme Court was the scope of the term defalcation, including the conduct and state of mind required to constitute and exception to discharge of debts under the Bankruptcy Code.

Oral Argument

The transcript of the oral argument before the Supreme Court makes it clear that the Justices and counsel had significant difficulty in analyzing this case. The Justices attempted to have counsel define the mental state required and the kind of loss, if any, required for defalcation.  The Court looked to the requirements for fraud in the general sense, as well as embezzlement and larceny as those terms are nearest to defalcation in the Bankruptcy Code.  The Court questioned the parties regarding what mental state should be required: whether it mattered if Bullock knew taking out the loans constituted self-dealing and constituted a breach of fiduciary duty; whether some higher standard was required. The specifics of the conduct involved and the nature of the terms of the Trust were also examined.

The Decision

In the final analysis, the Supreme Court held that where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, the term defalcation requires an intentional wrong. The Court went further to state that its definition of intentional conduct included not only conduct that the fiduciary knows is improper, but also reckless conduct of the kind that the criminal law often treats as the equivalent. Therefore, in situations where actual knowledge of wrongdoing is lacking by the fiduciary, the conduct satisfies the requirement if the fiduciary consciously disregards or is willfully blind to a substantial and unjustifiable risk that such conduct will result in a violation of a fiduciary duty.

To summarize, the term defalcation in the Bankruptcy Code includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the fiduciary behavior.  In adopting this standard, the Court


Before Bullock, the standard for defalcation ranged from no specific state of mind to some degree of fault to extreme recklessness.  Bullock resolved the circuit split and set forth the minimum culpability required by a fiduciary to make a debt non-dischargeable as one closer to the extreme recklessness end of the spectrum. This higher standard is likely to result in more debts arising from a debtor’s breach of fiduciary duty to be dischargeable, and furthers the bankruptcy policy of providing debtors with a fresh start.  The result is one clearly articulated standard, but there still remains ample room for courts to be inconsistent in their application of this defalcation exception to discharges in bankruptcy.

Negotiation and Drafting of Construction Contracts

Significant risks to the construction contractor can arise from the contracts entered into for various projects.  However, these risks can be managed by a thorough understanding of key contract provisions and assistance of counsel in negotiating and drafting contract provisions to clarify rights and obligations of the parties, fair allocation of risks, and other protections that may be available.  A well-drafted construction contract clearly defines key terms such as scope of work, price, terms and conditions of payment, and allocation of foreseeable risks.

The contract process in the construction industry often starts with the bidding process.  Bidding for construction jobs can make or break the construction contractor.  It is essential for the contractor to know how to effectively bid for work to make a profit and have a successful business.  There are a number of ways to bid construction contracts.  But whichever method is used, success depends upon developing the most accurate cost estimate and formulating the lowest reasonable bid.

A project can be either private or public.  Usually a private project is one let by a private individual or entity, while a public project is let by a governmental entity.  The private project process usually involves solicitation of quotes or formal bid proposals from contractors, bids or offers by the contractors, and acceptance of the bid, resulting in a legally enforceable contract.  On the other hand, the public construction contract bidding process must follow set requirements under federal, state, and local laws.

Construction contracts are usually priced according to one of several methods involving two basic types, fixed price and cost reimbursable.

Two more common fixed price methods are Lump Sum and Unit Price.

Lump Sum is an agreement to a fixed price prior to the contract award which is not subject to adjustment except for changes in the scope of work. An example would be an agreement that the contractor will build a garage for a fixed price of $15,000.  Under this scenario, the contractor bears any overage in labor and/or material costs.

Unit Price is an agreement to a fixed price for a given unit of work and the total price is the unit price times the quantity of items delivered, installed or erected.  An example would be an agreement that a contractor build a garage for a set price per square foot.

One of the more common cost reimbursable methods is Cost Plus Fee.  Under this method, the agreement is for payment of all contractor labor and material costs plus a fee which can be expressed as a percentage or a lump sum, such as an agreement that a contractor will build a garage for the cost of labor and materials plus 25%.

Ten significant contract provisions that should be considered are as follows:

  1. Scope of Work – Statement of the scope of work including quality, completeness of design, and nature of the parties’ duties is critical to avoiding costly disputes later.
  1. Price and Payment Methods – Typically the contract will contain a schedule for specific items of work and, as they are completed, the contractor certifies that a percentage of the work is completed and will request payment for it.
  1. Insurance – At a minimum, construction contracts require insurance coverage for comprehensive general liability (CGL), automobile, and worker’s compensation coverage. Additionally, some type of proof of insurance may be required from subcontractors. The owner may also provide for other insurance coverage to protect against risks such as catastrophic events.
  1. Indemnification – One party agrees to cover certain losses which might be incurred by the other party as a result of claims which might arise under the contract, holding the other party harmless.
  1. Warranties and Bonds – Certain warranties are customary such as a warranty that goods furnished will be of good quality. Contract bonds such as performance and payment bonds may be required guaranteeing completion of the project and payment under the contract.
  1. Project Changes and Change Orders – Provision for submission and approval of necessary changes in plans and specifications during the course of the project.
  1. Delays – Contracts often provide an allowance of certain delays, and penalties for other delays by the contractor.
  1. Suspension and Termination – If the contractor fails to comply with the certain provisions of the contract, the owner may suspend or terminate the contract.
  1. Disputes – Many contracts contain an arbitration clause which requires disputes to be resolved in arbitration rather than in court.
  1. Transaction Rules for Particular Industries – Construction contracts should set out required industry procedures for the transaction where necessary.

A properly negotiated and drafted construction contract will be fairly complex if it is to be clear as to all material terms and provide for a fair allocation of risks.  Any contractor or owner preparing to take on a construction project would be well advised to have a solid understanding of all of the primary contract provisions and to seek legal counsel to assist in negotiation and drafting of the construction contract.  Failure to understand the contract one signs or the failure to seek assistance of counsel are not legal defenses to problems that might arise later after the project is underway.