In a surprise move, the Fifth Circuit vacated its recent, controversial Golf Channel opinion, potentially giving the Golf Channel a second chance in a case that seemed lost. As I discussed in my previous post, the Fifth Circuit recently held that the Golf Channel had to return over $5.9 million in payments it had received from Ponzi schemer Allen Stanford’s Stanford International Bank, pursuant to a fraudulent transfer action initiated by the bank’s receiver. The Golf Channel had asserted a “reasonably equivalent value” defense, saying that it had aired advertisements having value reasonably equivalent to the over $5.9 million in payments that the Golf Channel had received. However, the Fifth Circuit held that this defense does not apply in Ponzi scheme cases, since advertisements promoting a Ponzi scheme do not benefit a Ponzi scheme’s creditors and may actually hurt them.
After this decision, the Golf Channel filed a petition for a panel rehearing, citing a lack of Texas case law on the issue. The Fifth Circuit granted the Golf Channel’s petition, vacated the original opinion, and certified a question to the Supreme Court of Texas regarding the proper interpretation of “value” and “reasonably equivalent value” in the context of a good faith transferee of a Ponzi scheme under the Texas Uniform Fraudulent Transfer Act (a copy of the Fifth Circuit’s new opinion is here). The Supreme Court of Texas has accepted the certified question and requested briefs on the merits from the parties, but a date for oral argument has not yet been set.
So, it appears that, for the moment at least, all is not lost for the Golf Channel.