The U.S. Supreme Court has declined to hear an appeal challenging the Eighth Circuit Court of Appeals’ decision to overturn a $563 million jury verdict against BMO Harris Bank N.A., bringing a final halt to long-running litigation over the bank’s alleged role in Thomas J. Petters’ multibillion-dollar Ponzi scheme.
The denial of certiorari, issued Tuesday without comment, leaves in place the Eighth Circuit’s 2023 ruling, which reversed a prior jury verdict and vacated over $1 billion in total damages and prejudgment interest awarded to the bankruptcy trustee of one of Petters’ companies.
Douglas A. Kelley, the court-appointed trustee, had sought Supreme Court review, arguing that the appellate court improperly interpreted the Bankruptcy Code and overstepped its authority by deciding a key question of Minnesota state law without certification. That legal issue centered on whether BMO Harris, as successor to M&I Bank, could be held liable for aiding and abetting breaches of fiduciary duty that enabled Petters’ $3.8 billion fraud.
Petters, convicted in 2009 and serving a 50-year sentence, used an M&I Bank account to funnel funds as part of his fraudulent operation. The trustee accused the bank of ignoring red flags and facilitating the fraud through bad faith conduct.
Although a jury sided with the trustee on one claim in 2022, the Eighth Circuit reversed, emphasizing that the legal doctrine of in pari delicto — asserting equal fault between the parties — should have been considered as a valid defense for BMO Harris. The appeals court found that this critical defense had been wrongly excluded by the trial court.
Kelley is represented by Paul D. Clement of Clement & Murphy PLLC. BMO Harris is represented by Donald B. Verrilli Jr. of Munger, Tolles & Olson LLP.
The case is Douglas A. Kelley v. BMO Harris Bank National Association, No. 24-874, before the U.S. Supreme Court.
