101 F.Supp. 981 (1951)
LOEW'S Inc.
v.
WOLFF et al.
No. 10526-C.
United States District Court S. D. California, Central Division.
December 21, 1951.
*982 Loeb & Loeb, Los Angeles, Cal., for plaintiff.
Morris E. Cohn, Beverly Hills, Cal., for defendant Erich Wolff.
Harold A. Fendler and Robert W. Lerner, Beverly Hills, Cal., for defendant Victoria Wolf.
Pacht, Tannenbaum & Ross, Beverly Hills, Cal., for Screen Writers Guild Inc., amicus curiae.
JAMES M. CARTER, District Judge.
This case raises novel questions concerning literary property; and warranties, express and implied, in the sale thereof. The case arises under the diversity jurisdiction of this court.
On March 21, 1949, defendants, Victoria Wolf and Erich Wolff, sold to the plaintiff, Loew's Inc., a story in manuscript form entitled, "Case History." On that date, a regular form contract used by plaintiff was executed by the defendants. The present action is based upon alleged violations of certain provisions of this contract.
The facts, as disclosed at the trial which led up to the execution of this contract, are as follows:
Erich Wolff, a doctor, specializing in cardialgy, had met his former wife, Cathy, during chemistry lectures where she was a laboratory assistant at the institute at which he studied.
Following their marriage, she later became subject to spells of extreme melancholia and attempted suicide. He investigated shock treatment and radium treatment for ovarian glands. Following her second suicide attempt, she submitted to radium treatment which produced a marked change in her personality. A third suicide attempt followed and she died on May 22, 1942.
A year and a half later, Doctor Wolff read articles in medical journals describing *983 a pre-frontal lobotomy operation for melancholia and the marked change it produced in a patient's personality. It will be noted that all of these matters, as testified to by Dr. Wolff, were factual matters and in the public domain.
Victoria Wolf, a short story writer and novelist met Erich Wolff in 1943. Late that year, he first discussed with her the operation on the brain, known as a pre-frontal lobotomy, as the basis of a story. She knew, and Erich Wolff told her, of the tragic experiences of Wolff and his former wife. Wolff told her of the lobotomy operation; its cure of melancholia, and its transformation of the character of the patient. Due to other commitments, Victoria Wolf was unable to write the story for Erich Wolff at that time.
After his discussion with Victoria Wolf, he then contacted Elsie Foulstone, also a writer, and discussed the possibility of her aiding him in preparing a draft of the story for motion picture purposes. He told her of the facts above and she wrote a synopsis of a story entitled, "Swear Not by the Moon," based on those facts, plus additional fictional matter. The end product did not please Erich Wolff and he relieved her of any further duties.
Nothing further was done about the story until some time in 1945, when Erich Wolff again contacted Victoria Wolf and prevailed upon her to work on the story. In that year Victoria Wolf wrote a synopsis of a story entitled, "Through Narrow Streets," which was based upon the doctor's former wife's experiences, the doctor's description of a lobotomy operation and her own research concerning it, and additional fictional matter.
Dissatisfied, she next wrote a revision entitled, "Brain Storm" and late in 1948 or early 1949, wrote a second revision entitled, "Case History," the story in suit. It was a combination of fact and fiction. As stated above, this story was sold to the plaintiff in March 1949 for $15,000.
The document executed by the parties was entitled "Assignment of All Rights." By its language, (Sec. 1) defendants Erich Wolff and Victoria Wolf transferred and sold to plaintiff all rights of every kind in and to the story and "the complete, unconditional and unencumbered title" thereto. Section 4 of the assignment provided that defendants represented and warranted that each was the "sole author and owner of said work, together with the title thereof,"[1] and "the sole owner of all rights of any and all kinds whatsoever in and to said work, throughout the world;" that each had "the sole and exclusive right to dispose of each and every right herein granted;" that "neither said work nor any part thereof is in the public domain;"[2] that "said work is original with me in all respects;" that "no incident therein contained and no part thereof is taken from or based upon any other literary or dramatic work or any photoplay, or in any way infringes upon the copyright or any other right of any individual, firm, person or corporation."
Section 5 provides for the appointment of the purchaser as lawful attorney, irrevocably, for the sole benefit of the purchaser to institute and prosecute any action to protect the rights granted herein.
By Section 6, the defendants guarantee and warrant that they will "indemnify, make good, and hold harmless the purchaser of, from and against any and all loss, damage, costs, charges, legal fees, recoveries, judgments, penalties, and expenses which may be obtained against, imposed upon or suffered by the purchaser by reason of any infringement or violation or alleged violation of any copyright or any other right of any person, firm or coporation, or by reason of or from any use which may be made of said work by the purchaser, *984 or by reason of any term, covenant, representation, or warranty herein contained, or by reason of anything whatsoever which might prejudice the securing to the purchaser of the full benefit of the rights herein granted and/or purported to be granted."
Section 7 provides that the sellers "agree duly to execute, acknowledge and deliver, and/or to procure the due execution, acknowledgment and delivery to the purchaser of any and all further assignments and/or other instruments which in the sole judgment and discretion of the purchaser may be deemed necessary or expedient to carry out or effectuate the purposes or intent of this present instrument."
About three months after the execution of this instrument and the sale, Elsie Foulstone discovered that Erich Wolff had sold his story, and on July 1, 1949, plaintiff was notified that she claimed a portion of the proceeds of the sale because of the work she had done in 1944. On that same day plaintiff notified defendants' agent of the Foulstone claim. On July 30, 1949, plaintiff made a demand on defendants that they obtain a quitclaim and release from Foulstone within a reasonable time or they would be compelled to rescind their agreement of March 21st. On September 21, 1949, Elsie Foulstone filed action in the Superior Court of the State of California, County of Los Angeles, naming Erich Wolff, Victoria Wolf and Metro-Goldwyn-Mayer Pictures as defendants. The present plaintiff was not served and did not appear. Both of the present defendants were served and appeared in the Superior Court action.
On September 30, 1949, the plaintiff served defendant Erich Wolff with a notice of rescission. On October 1, 1949, defendant, Victoria Wolf, was served with a like notice. On February 28, 1950, the Superior Court rendered a judgment in favor of defendants finding that Elsie Foulstone had no valid claim or interest in or to the story, "Case History" which was sold to the plaintiff. The present action was filed on November 2, 1949, prior to the above mentioned judgment.
Plaintiff's complaint contains seven causes of action, some of which may be promptly disposed of, while others raise new and novel questions concerning expressed and implied warranties concerning the sale of literary property.
Plaintiff's complaint contains the following causes of action:
First cause of action, alleges breaches of certain express promises and warranties, to-wit,
1. That defendants did not own the complete, unconditional and unencumbered title to the story.
2. That defendants were not the sole owners or authors of said story.
3. That defendants did not have sole or exclusive rights to said story.
4. That defendants caused the assigned rights to be impaired.
5. That the story was not original with defendants.
6. That the use of said story by the plaintiff would violate the rights of another person.
7. That "Case History" was copied in large part from another work.
Plaintiff alleges the right to rescind, and that it rescinded, and claims the return of the purchase price.
Second cause of action is based upon the express warranties of the first cause and the additional theory that defendants agreed to sell plaintiff a "marketable and perfect" title to the story, "Case History," free from reasonable doubt.
Third cause of action alleges failure of consideration because of the breach by defendants of the warranties set forth in the first and second causes.
Fourth cause of action alleges defendants fraudulently induced plaintiff to enter into said contract and plaintiff was therefore entitled to and did rescind said contract.
Fifth cause of action alleges that plaintiff entered into said contract under a mistake of fact, relying on the express warranty of the first cause and the theory of "perfect and marketable" title in the second cause.
*985 Sixth cause of action alleges that under provision 6 of the contract defendants agreed to indemnify and hold harmless the plaintiff in any action for all costs, losses, etc., incurred by plaintiff by reason of any infringement or violation or alleged violation of the right of another person. This cause of action is for damages for the decrease in value of the story and for all costs and attorneys' fees involved in this action.
Seventh cause of action alleges fraudulent representations, to-wit the express warranties above, and claims money damages.
At the conclusion of the trial, the court found:
1. That "Case History" was a different story from "Swear Not By the Moon", and that the only points of similarity were factual matters from the public domain.
2. That Erich Wolff collaborated with Elsie Foulstone on the story, "Swear Not By the Moon."
3. That there had been proved no fraud or fraudulent representations on the part of the defendants, Erich Wolff and Victoria Wolf.
The court now finds:
1. That defendants owned the complete, unconditional and unencumbered title to the story, "Case History".
2. That defendants were the sole owners and authors of said story.
3. That defendants had the sole and exclusive rights to said story.
4. That defendants did not cause the rights assigned to be impaired.
5. That the story was original with defendants.
6. That the use of the story by plaintiff would not violate any rights of Miss Foulstone.
7. That there was no fraudulent concealment of material facts.
These findings dispose of causes of action one, four and seven.
The second cause of action, in addition to setting forth express warranties which we have found were not breached rests on plaintiff's claim to a "marketable and perfect" title, free from reasonable doubt. This raises the question of the existence and validity of what will hereafter be referred to as "implied warranties."
The third and fifth causes of action raise the same question, since they incorporate the allegations of the second cause.[3]
The sixth cause of action will depend upon the interpretation given to provision 6 of the "Assignment."

I.

There Was No Warranty, Express or Implied, of "Marketable and Perfect Title" to the Story.
A. There was no express warranty.
The plaintiff argues that an express warranty of "marketable and perfect" title, free from reasonable doubt, arose by the use of the words, "complete, unconditional and unencumbered title"; "sole author and owner of said work"; "sole owner of all rights of any and all kinds whatsoever in and to said work, throughout the world"; and "I have the sole and exclusive right to dispose of each and every right herein granted." Nowhere in this most comprehensive instrument can be found the words "marketable, perfect or free *986 from reasonable doubt." Thus, in order to find such an express warranty it must be found that the words actually used in the "Assignment of Rights" were or are synonymous with "marketable and perfect" title.
No case has been cited by counsel nor can any be found by this court which holds that the phrase "complete, unconditional and unencumbered title" is synonymous with "marketable and perfect" title. The common meaning of the word "complete" is "Filled up, with no part, item, or element lacking." It means that the "whole" title has been given and that no part or portion of it has been kept by the seller or sold to any other person. In two cases involving the sale of real estate, the words "complete title" were found to mean the instruments which constitute the evidence of title, and not to mean the estate or interest conveyed. Slidell v. Grandjean, 1883, 111 U.S. 412, 4 S.Ct. 475, 28 L.Ed. 321; Dingey v. Paxton, 60 Miss. 1038, at page 1054.
The warranty of "marketability of title" is a warranty found almost exclusively in connection with the sale of real property. Such words as "merchantable title," "clear title," "good title" and "perfect title" have been held in cases involving the sale of land to mean the same as "marketable title." Lund v. Emerson, Tex.Civ.App., 204 S.W. 2d 639, 641; O'Meara v. Saunders, Tex. Civ.App., 199 S.W.2d 689, 692; Silfvast v. Asplund, 93 Mont. 584, 20 P.2d 631; Northouse v. Torstenson, 146 Neb. 187, 19 N.W. 2d 34, 36; Johnson v. Malone, 252 Ala. 609, 42 So.2d 505, 509. None of these words can be found in the present instrument. As used in this assignment the word "complete" was not meant to be synonymous with the word "marketable or perfect." It was used to mean just what the word indicated, i. e. "whole title," that is, that no other person owned any interest in the property nor was any kept by the sellers. In this respect, the plaintiffs got what they bargained for. It seems evident that the remaining words used in the assignment are not synonymous with "marketable or perfect" title.
B. There was no implied warranty.
Plaintiff argues that the law implies the warranty of marketable title in the sale of literary property. In doing so, plaintiff wishes to have this court apply a well established doctrine used exclusively in the sale of real property to the sale of personal property. To support its contention, plaintiff cites the case of Hollywood Plays, Inc., v. Columbia Pictures Corp., 299 N.Y. 61, 85 N.E.2d 865, 10 A.L.R.2d 728. In this case, the plaintiffs sought damages for breach of a contract to purchase the motion picture, television, and radio rights to a play. The plaintiffs had purchased an interest in these rights from the trustee of one Woods, who had originally received 50 per cent of these rights by license from the proprietors of the copyright. In Woods' schedules in bankruptcy, he had listed his ownership as 25 per cent. There was no question but that Woods had owned 50 per cent up to two years before his adjudication in bankruptcy, and the plaintiffs contended that the insertion in his schedules of the lesser figure had been due to a mere error. No other explanation was forthcoming, and the plaintiffs relied on the fact that all of Woods' property had in fact, passed to his trustee, and had been included in the sale and assignment by the trustee to the plaintiffs. The New York court in reversing the lower courts, held that "the defendant was excused from performance because of a defect in plaintiffs' title." The court avoided the finding by the trial court that plaintiffs had actual title, and in our opinion erroneously declared the issue to be whether or not plaintiffs had an "unclouded title."
There are more than mere historical reasons for concluding that the doctrine of "marketable title" should be limited to cases involving the sale of real property. This doctrine has a basis in the traditional concepts of judicial fair play. Briefly, the doctrine developed because the courts at common law believed, and rightly so, that since the law required there be a recorded title in the sale of real estate, then that record title should be clear and free from reasonable doubt. A buyer, desiring to purchase the seller's land, would request that the seller deliver to him a "marketable" *987 record of title to the property. If by searching the record, the title was free from reasonable doubt, it was proclaimed that the buyer had a "marketable" title and could not avoid the enforcement of the contract. If on the other hand, a defect appeared in the record title, then the common law courts felt that justice demanded that the seller either clear the record title or they would allow the buyer to avoid the contract. But the doctrine was not applied to the sale of personal property. At common law and with few exceptions the law as it exists today, there was no requirement that the sale of personal property be recorded. The doctrine of caveat emptor therefore prevailed. Without the application of this latter doctrine, it is highly doubtful that any sale of personal property would ever become final. There are no records to search. There is no way to ascertain that a cloud exists on the title. It is not a requirement that a record title be produced before a purchaser will buy the article in question. Thus, because of these differences between the sale of real and personal property, the courts neither then nor now could imply by law into a contract of sale of personal property the doctrine of "marketable" title. If they did so, then there would be no case in which the seller could rest in ease, for if any third person asserted a claim to the property the courts would be compelled to avoid the contract between the parties. To do this would be to place upon the seller an unsurmountable burden, and would leave the door open to allow a discontented purchaser to avoid any contract involving the sale of personal property.
For these reasons, in adopting the Uniform Sales Act the warranty of "marketable" title was conspicuously excluded. The implied warranties of title are found in Section 1733 of the Civil Code of California. There it is declared that the only implied warranties of title are, (1) that the seller has the "right" to sell; (2) "that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale", and (3) "that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person * * *". With these exceptions there are no other implied warranties of title in the sale of personal property and this court will not imply any others. De Witt v. Berry, 1890, 134 U.S. 306, 10 S.Ct. 536, 33 L.Ed. 896; El Zarape Tortilla Factory v. Plant Food Corp., 1949, 90 Cal. App.2d 336, 203 P.2d 13.
It is obvious that sales involving literary property are different in some respects from the sale of ordinary goods. The sale of literary property is more analogous to the sale of patents and patent rights. Both literary properties and patents are products of the mind, plus skill. Both utilize matters in the public domain. A review of patent cases confirms the position taken by this court.
In Consumers' Gas Co. v. American Electric Construction Co., 3 Cir., 1892, 50 F. 778, 780, the action was by an electric construction company against a gas company to recover the price of installing an electric plant. The gas company set up by affidavit of defense that a certain patentee had threatened it with a claim for damages for infringement of patent rights if it used the machinery installed by the plaintiff, and that by such use the defendant would also be liable to another patentee. The court held that these facts were no defense, declaring: "A purchaser of property, who has had the full use and enjoyment of the same, and is in the undisturbed possession thereof, in the absence of fraud, cannot withhold the purchase price because a third person claims to have a superior title thereto, or an adverse right therein, and threatens to bring suit to enforce the same, or because of an alleged liability on the part of the purchaser to a patentee for an infringement of letters patent, by reason of the use of the property." This case was followed in The Electron, 2 Cir., 1896, 74 F. 689.
It has also been held that the vendee of patent rights cannot maintain, as against an action for the price, the defense that he rescinded because he had been notified by a third party that the patent was an infringement and that he would be held liable therefor. Geist v. Stier, 1890, 134 *988 Pa. 216, 19 A. 505. In Tinsman v. Independent Harvester Co., 1917, 205 Ill.App. 239 it was held that the vendee must show the actual invalidity of the patent, or at least that he had been enjoined after reasonable defense, Herzog v. Heyman, 1897, 151 N.Y. 587, 45 N.E. 1127.
The rule has been well put in the case of Computing Scales Co. v. Long, 66 S.C. 379, 44 S.E. 963, 964, 65 L.R.A. 294. There the court said: "If, however, the vendor at the time of the sale knew of a valid outstanding title or incumbrance, and failed to give notice to the vendee, the element of fraud is introduced, and the vendee may rescind without waiting for actual loss to come to him. * * * But mere dispute about the title, or the contingency of future loss, does not warrant a rescission, and, where the buyer returns the goods, and refuses to pay the purchase money, it is incumbent on him to show that there is a valid adverse claim, from which loss to him would inevitably occur. * * The application of the rule may sometimes result in hardship, but to adopt any other would make it possible for a purchaser to escape from his contract upon any claim coming to his notice, however baseless or absurd it might be."
The above rules should be even more strictly applied in the sale of literary property and no court should be led into the pitfall of the real estate rule. In Golding v. R. K. O. Pictures, Inc., 1950, 35 Cal. 2d 690, 710, 221 P.2d 95, Justice Schauer of the Supreme Court of California refers to the fact that there are approximately thirty-six basic plots in all writing. Consequently, assertions of similarity and of plagiarism are practically a concomitant of all story writing. To establish then, a rule permitting the purchaser of literary property to return the property and demand back the purchase price upon a mere assertion of similarity or plagiarism is to create a right without the support of reason or principle, the exercise of which would result in untold hardship. There can be no other conclusion but that the law will not imply a warranty of "marketable" title in the sale of literary property.
Since it is the opinion of this court that there was neither an express nor implied warranty of "marketability of title", the second cause of action is accordingly disposed of. Consequently, the third and fifth causes of action which are predicated upon there being a warranty of "marketable" title must likewise fail.

II.

Are Defendants Obligated to Reimburse Plaintiff for Any Expenses Incurred in This Suit Under Provision 6, of the "Assignment."
Plaintiff's sixth cause of action is predicated upon the theory that regardless of the outcome of the other causes of action, defendants have agreed, by virtue of provision 6 of the "Assignment of Rights" to "indemnify, make good and hold harmless the purchaser of, from and against any and all loss, damage, costs, charges, legal fees, recoveries, judgments, penalties and expenses which may be obtained against, imposed upon or suffered by the purchaser by reason of any infringement or violation or alleged violation of any copyright or any other right of any person, firm or corporation, or by reason of or from any use which may be made of said work by the purchaser, or by reason of the breach of any term, covenant, representation, or warranty herein contained, or by reason of anything whatsoever which might prejudice the securing to the purchaser of the full benefit of the rights herein granted and/or purported to be granted."
Plaintiff contends that by bringing this action they have incurred legal expenses and costs and that the story has become valueless because they have not used it according to their planned schedules, and that because of this loss and expense, defendants are liable under the above provision.
The answer to this contention lies in well established rules pertaining to the interpretation of contracts. The basic question is, "What was the intent of the parties"? Did defendants agree to reimburse *989 plaintiff for any action brought by plaintiff against defendants, or any loss which plaintiff might inadvisably cause itself to suffer? We think not. The more logical interpretation would be that defendants agreed to reimburse plaintiff in the event the plaintiff were forced to defend an action brought by some third party. The plaintiff here was notified of the action filed in the California Superior Court. They refused to come in as party defendants. They expended no money in the defense of that action and incurred no loss thereby.
The expenses and any other loss which plaintiff might have incurred by bringing this action are self-imposed, and defendants are not liable therefor.
NOTES
[1]  Sec. 8 provides that if two or more persons appear as signatories to the assignment, the agreement shall bind them jointly and severally. No point has been made that each states, "I am the sole author and owner of said work."
[2]  This is an obviously fictitious provision and must have been so known by both parties. No story can exist without some matter, be it minute, from the public domain.
[3]  Causes of action two, three and five, although entitled "rescission" are really claims for money after an alleged rescission by the act of the plaintiff. This court is not asked to rescind the contract between the parties. The plaintiff contends that prior to the judgment of the Superior Court, it has rescinded and that this judgment in no way affected that rescission. Even though this court found that defendants owned the complete, unconditional and unencumbered title to the story, it does not mean that this court found defendants had a "perfect and marketable title, free from reasonable doubt," at the time of the sale or at the time of the attempted rescission by the plaintiff. If such a warranty existed, either expressly or by implication, then the rescission by plaintiff might have been effective. Our question then is, "Did such a warranty exist?"


885 F.2d 871
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.TRUSTEES FOR MICHIGAN CARPENTERS' COUNCIL HEALTH AND WELFAREFUND, Michigan Carpenters' Council Pension Fund, MichiganCarpenters' Council Apprenticeship & Training Fund, andMichigan Chapter Associated General Contractors of America,Plaintiffs-Appellants Cross-Appellees,v.SOBIE COMPANY, INC., a Michigan corporation,Defendant-Appellee Cross-Appellant.
Nos. 88-1439, 88-1738 and 88-1799.
United States Court of Appeals, Sixth Circuit.
Sept. 25, 1989.

Before RALPH B. GUY, Jr., BOGGS and ALAN E. NORRIS, Circuit Judges.
RALPH B. GUY, Jr., Circuit Judge.

1
In this action to recover delinquent fringe-benefit contributions, brought pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1001, et seq., plaintiffs, the trustees of three multiemployer fringe-benefit funds (the Funds)1 and the Michigan Chapter of the Associated General Contractors of America, appeal the district court's judgment for the defendant employer, Sobie Company, Inc.  (Sobie), and the award of attorney's fees in favor of Sobie.  Sobie cross-appeals the district court's pretrial decision that the applicable statute of limitations in this case is Michigan's six-year statute for general contract actions as opposed to its one-year statute governing claims for wages and fringe benefits.  We are persuaded that the district court's ruling as to liability and attorney's fees was correct.  Accordingly, we affirm that ruling without reaching the statute of limitations issue.

2
Sobie is a specialty building contractor based in Grand Rapids, Michigan.  Sobie had a bargaining relationship with the Union2 for some thirty to thirty-five years, during which they executed various collective bargaining agreements (CBAs).3   The Funds are multiemployer benefit funds that receive contributions pursuant to CBAs negotiated between Sobie and the Union.  By their terms, the CBAs in this case covered "journeymen carpenters and apprentices."    (App. 34).  An apprentice, as understood by the parties, is a carpenter who is enrolled in an organized apprenticeship program, as referenced in the CBA.  (App. 42).  A journeyman is a carpenter who has completed the apprenticeship program or its equivalent and who has been designated by the Union as a fully-skilled carpenter.  The provisions of the various CBAs are identical with respect to Sobie's obligation to make fringe-benefit contributions, but vary from year to year on the amount of contribution rates.4   The CBA's Union security clause requires employees covered by the agreement to become members of the Union.  The bargaining relationship between the Union and Sobie ended in 1986, when a majority of Sobie employees voted to decertify the Union as their collective bargaining representative.  This suit commenced shortly thereafter.

3
The CBA grants Sobie "full and exclusive power and discretion in hiring new employees for their respective jobs."    (App. 35).  Historically, Sobie employed workers classified as journeymen carpenters to carry out construction work.  Sobie also employed workers who performed carpentry work from time to time, but whose skill levels precluded them from being classified as carpenters by the company.  Sobie's journeymen carpenters were members of the Union, as required.  Pursuant to the CBA, Sobie paid fringe-benefit contributions to the Funds for its journeymen carpenters and apprentices.  Sobie did not, however, make any contributions on behalf of those employees not classified as journeymen or apprentice carpenters.  Likewise, those employees were not required to join the Union.  Both Union and management testimony indicated that an employee did not become covered by the CBA merely because he periodically performed carpentry work.  Moreover, the Union never objected to Sobie's employment practices.

4
The Funds, in 1981, conducted a payroll audit of Sobie and queried "non-carpenter/non-Union" employees about the nature of their work.  Some workers indicated that they were performing carpentry work.  Thus, by at least 1981, the Funds became aware that Sobie was not making fringe-benefit contributions for some employees who performed carpentry work.  Nevertheless, the Funds did not issue any notice of delinquent contributions or take other action against Sobie.

5
In 1984, the Funds again audited Sobie and, again, contacted and queried non-carpenter/non-Union employees about the nature of their work.  When Sobie's president, Jake Austhof, learned of these contacts and realized that the Funds might be trying to collect delinquent contributions for those employees, he refused to sign a new CBA5 with the Union until the fringe-benefit contribution issue was resolved.  Subsequently, the Union secretary-treasurer, Art Selles, approached Austhof seeking his signature on a new CBA.  Selles promised to take care of the fringe-benefit issue regarding non-Union employees.  According to Austhof, Selles, in Austhof's presence, picked up the phone and spoke to someone at the Funds about the matter and proclaimed, "It's settled, business as usual."    Austhof, believing that the issue had been resolved, signed the new CBA.  Again, the Funds did not issue a notice of delinquency or otherwise make a claim against Sobie.

6
In June 1985, State Carpenters representative Harold McCastle was assigned to Sobie by Marv Grisham, the secretary-treasurer of State Carpenters, who also served as the head trustee of the Funds.  McCastle began probing into the Funds' perceived difficulties with Sobie.  Representatives of the Funds and State Carpenters coordinated efforts to resolve two concerns:  (1) completing a 1984 audit and resolving the fringe-benefit problem, and (2) Sobie's employment of both Union and non-Union workers performing carpentry work.  McCastle asked Grisham to defer any action by the Funds in order to see if Union representatives could resolve the matter.

7
Previously, in April 1985, State Carpenters representative Freeman Billock persuaded Sobie to classify six more employees as journeymen carpenters or apprentices.  Those employees then joined the Union.  Effective May 1, 1985, Sobie began paying fringe-benefit contributions on those six employees.  Neither the Union nor the Funds claimed that Sobie was obligated to pay retroactive benefits for those employees for the period prior to their reclassification.

8
On May 31, 1985, James Hutchison, the president of the District Council, pursuant to the CBA, notified Sobie by mailgram (App. 252) that it was in violation of the Union security and fringe-benefit provisions of the CBA.  On the same day, the Funds demanded an audit of payroll records.  Subsequently, State Carpenters representative Harold McCastle, District Council President James Hutchison, and Carpenters Local business agent Orville Hubert met with Sobie officials to discuss the issues noticed in the mailgram.  Key Fund representatives were aware that these issues were going to be negotiated.  The negotiations culminated in a June 14, 1985, "Settlement Agreement" (App. 259) in which Sobie agreed that any employees performing carpentry work would be reclassified as apprentices and become Union members as of June 1, 1985.  Appended to the Settlement Agreement was a list of employees identified for reclassification and enrollment in the Union.  Sobie and the Union ultimately agreed that Sobie would commence making fringe-benefit contributions as of January 1, 1986, for all newly-enrolled employees.6   (App 268).  Austhof understood that the Union representatives with whom he was dealing had authority to negotiate with the company with respect to fringe benefits.7   At no time did any of the Union representatives advise him that the Union or the Funds reserved a claim for retroactive fringe-benefit contributions on employees who were reclassified in May or June of 1985.  McCastle and Hubert testified that the purpose of the Settlement Agreement was to get Sobie to start paying contributions on the employees who, theretofore, had been non-Union employees.  Pursuant to the Settlement Agreement, the identified employees enrolled in the Union and Sobie began paying contributions to the Funds for them.

9
Following the 1986 decertification of the Union, the Funds conducted another audit of Sobie's payroll records and, subsequently, claimed that Sobie was obligated to pay contributions on each employee who had been reclassified as a carpenter or apprentice in May or June 1985 for the entire duration from his date of hire to the date he was reclassified.  The Funds presumed that if an employee was reclassified in May or June of 1985, he was engaged in carpentry work from his date of hire and Sobie was liable for contributions for that entire period.8   The Funds have never paid any claims on behalf of any of the employees for whom they seek contributions.

I.

10
Resolution of this dispute requires us to review and interpret the various contractual agreements establishing Sobie's obligation to make contributions to the Funds.9   Our standard of review of these contractual agreements is de novo.  Carpenters Local Union No. 345 Health & Welfare Fund v. W.D. George Constr.  Co., 792 F.2d 64 (6th Cir.1986) (citing Weimer v. Kurz-Kasch, Inc., 773 F.2d 669, 671 (6th Cir.1985)).

11
We first consider whether the district court erred in interpreting the CBA as requiring contributions only for "journeymen carpenters and apprentices" and not for employees who only periodically engaged in carpentry work for the company.

12
The "intent and purpose" provision of the CBA provides, in pertinent part:

13
This agreement establishes by mutual consent of all parties specific rules and regulations to govern employment, wage scales and working conditions of journeymen carpenters and apprentices employed by the contractors....

14
(App. 34).

15
The CBA provision governing Sobie's obligation to make fringe-benefit contributions provides, in pertinent part:

16
Section 1:  Apprenticeship Fund.    The Employer agrees to pay into the Joint Apprenticeship and Training Fund for each hour worked by all employees covered by this agreement in accordance with the schedule in Article VIII.

17
* * *

18
* * *

19
Section 3:  Health and Welfare and Pension Fund.    The employer agrees to pay into the Michigan Carpenters Council Health & Welfare Fund and the Michigan Carpenters Council Pension Fund for each hour worked by all employees covered by this agreement, in accordance with the schedule in Article VIII, and in accordance with the Trust Fund Agreement negotiated between the Michigan State Carpenters' Council and the Michigan Chapter Associated General Contractors of America, Inc.

20
(App. 40).  The district court construed the CBA in accordance with its literal terms, i.e., as covering only those employees classified as journeymen carpenters or apprentices and as excluding employees not classified as such, but who, nevertheless, periodically engaged in carpentry work.  The Funds urge that such a construction is illegal because it discriminates between Union and non-Union employees vis-a-vis fringe benefits.

21
We have recognized that, although the enforcement and interpretation of CBAs are matters of federal substantive law, traditional rules of contract interpretation are applicable to the extent they coincide with federal labor policies.    International Union, UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir.1983), cert. denied, 465 U.S. 1007 (1984).  The first step in interpreting a CBA requires reference to "the explicit language of the collective bargaining agreement for clear manifestations of intent."    Id. at 1479 (citation omitted).  In Yard-Man, we also noted that:

22
The intended meaning of even the most explicit language can ... only be understood in light of the context which gave rise to its inclusion ... [and requires interpretation of] each provision in question as part of the integrated whole.  If possible, each provision should be construed consistently with the entire document and the relative positions and purposes of the parties.  As in all contracts, the collective bargaining agreement's terms must be construed so as to render none nugatory and avoid illusory promises.

23
Id. at 1479-80 (citations omitted).

24
Applying these basic contract construction principles to the present case persuades us that the district court properly determined that the CBA did not extend to the non-Union/non-carpenter employees until Sobie reclassified them as journeymen carpenters and apprentices pursuant to the May 1985 agreement and the June 1985 Settlement Agreement.  Whether a particular employee is covered by the CBA in this case depends on whether that employee was designated by Sobie as a journeyman carpenter or an apprentice and not on the nature of work he performed.  This case is distinct from those in which a CBA's coverage extends to any employees "performing work" covered by the agreement.    See, e.g., Pierce County Hotel Employees & Restaurant Employees Health Trust v. Elks Lodge B.P.O.E., No. 1450, 827 F.2d 1324, 1326 (9th Cir.1987).  Here, coverage was expressly limited by job classification, and the CBA expressly confers upon Sobie full and exclusive discretion to hire and classify employees for their respective positions.

25
We reject, as without merit, the Funds' claim that the district court's construction of the CBA impermissibly discriminates between Union and non-Union workers.  Although it is true that the Union security clause in the CBA requires employees to join the Union within eight days, the fact remains that once an employee is classified as a journeyman carpenter or apprentice, he is covered by the CBA, whether or not he is a Union member.  We are convinced that the district court correctly determined that the CBA did not obligate Sobie to make fringe-benefit contributions on behalf of the reclassified employees until such time that the employees were redesignated as journeymen carpenters or apprentices.

26
Although no extrinsic evidence is necessary to support the district court's interpretation of the explicit language of the CBA, such evidence was, nevertheless, available.  The record is replete with testimony reflecting both the Union's and Sobie's understanding of the term apprentice, an understanding that is inconsistent with the Funds' attempted characterization of the employees in question as covered by the CBA.10   Both Union and Sobie testimony reflected the parties' understanding that Sobie maintained the full and exclusive right to hire and classify new employees.  When Union officials felt that certain employees should be reclassified, Sobie was receptive and compliant.  Until a given employee was reclassified, however, the Union and Sobie understood that he simply was not covered by the CBA.  Therefore, Sobie had no obligation to make fringe-benefit contributions on his behalf and, accordingly, is now not obliged to make retroactive contributions on behalf of any reclassified employee.

27
The Funds also challenge the district court's order awarding attorney's fees to Sobie, pursuant to 29 U.S.C. Sec. 1132(g)(1).  This issue is not properly before us because the Funds failed to oppose Sobie's motion for costs and attorney's fees, or to otherwise properly raise the issue before the district court.11   Boone Coal & Timber Co. v. Polan, 787 F.2d 1056 (6th Cir.1986).  Even if the issue was properly before us, we would find that, contrary to the Funds' position, section 1132(g)(1) does authorize the discretionary award of costs and attorney's fees, even when the Fund is seeking delinquent contributions.  We would also find that the district court did not abuse its discretion in awarding such costs and fees here.  Section 1132(g) of ERISA provides:

28
(1) In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.

29
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan--

30
(A) the unpaid contributions,

31
(B) interest on the unpaid contributions,

32
(C) an amount equal to the greater of--

33
(i) interest on the unpaid contributions, or

34
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),

35
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and

36
(E) such other legal or equitable relief as the court deems appropriate.

37
For purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26.

38
Section 1145, referred to in section 1132(g)(2), is entitled "Delinquent contributions" and requires all employers obligated, pursuant to a CBA, to contribute to a multiemployer plan to make such contributions in accordance with the terms and conditions of that CBA.12   The Funds claim that section 1132(g)(2) is the exclusive provision governing attorney's fees and costs when, as here, a plan's fiduciaries bring an action for delinquent contributions.  We would disagree with the Fund's construction of section 1132(g)(1).  That section authorizes the discretionary award of costs and attorney's fees to either party.  The only exception to this section is found in section 1132(g)(2), which makes the award of costs and attorney's fees mandatory when a plan prevails in an action to recover delinquent contributions.  Although this action is one by a plan to recover delinquent contributions, it is not one in which the Funds prevailed.  Therefore, section 1132(g)(2) does not compel the mandatory award of costs and fees to the plan, nor does it bar such award to Sobie under section 1132(g)(1).  Instead, pursuant to section 1132(g)(1), the award to either party becomes discretionary.    See Carpenters S. Cal.  Admin. Corp. v. Russell, 726 F.2d 1410, 1415 (9th Cir.1984) (rejecting the construction taken by the Funds and finding nothing in ERISA's legislative history supporting that construction or denying district court discretion to award attorney's fees to employers in section 1145 actions);  see also Paddack v. Morris, 783 F.2d 844 (9th Cir.1986).

39
In evaluating the propriety of the discretionary award of attorney's fees and costs under ERISA, we typically have considered the following five factors:

40
(1) the degree of the opposing party's culpability or bad faith;  (2) the opposing party's ability to satisfy an award of attorney's fees;  (3) the deterrent effect of an award on other persons under similar circumstances;  (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA;  and (5) the relative merits of the parties' positions.

41
Secretary, Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985).

42
The district court regarded the issue of the Funds' culpability or bad faith as a close call.  Nevertheless, the court found an absence of evidence to support the Funds' construction of the CBA, and further found that, at least by 1981, the Funds were aware that the Union's and Sobie's construction of the CBA was contrary to that which the Funds propounded at trial.  The district court also was concerned about the Funds' encouragement of Union representatives to bind Sobie to contribute to the Funds in the face of the Funds' subsequent refusal to be bound by the Union's and Sobie's Settlement Agreement.  The court concluded that, although the suit was not necessarily begun in bad faith, it was unreasonable to continue it in the face of the Union's position and the credible evidence adduced at trial.  The court also determined that the Funds were capable of satisfying a reasonable attorney's fee award and that the award could conceivably deter the Funds from pursuing similar claims against other employers.  Additionally, the court noted that the action did not further any significant legal issues or benefits sought to be conferred uniquely under ERISA and that the Funds did not claim liability for claims by any of the disputed employees.  Finally, the district court regarded the merits of the parties' position as favoring Sobie.  In exercising its discretion to award Sobie attorney's fees, the court expressed its cognizance of ERISA's purpose of providing a framework for administering employee benefits and for enforcing employer obligations.  Nevertheless, having concluded that the prosecution of this case was "unreasonable and unfair" and that the Funds' position was meritless, the court awarded Sobie attorney's fees and costs.  However differently we might have considered this issue de novo, we would not conclude that the fee award constituted an abuse of discretion.

III.

43
Because we are in accord with the district court's construction of the parties' obligations under the CBA, we need not consider the validity of the district court's alternate grounds for its decision.13   Likewise, we decline to resolve the statute of limitations issue raised in Sobie's cross-appeal.  In its cross-appeal, Sobie contends that the district court erred in its pretrial decision that the appropriate statute of limitations governing this claim is six years in accordance with the statute of limitations generally applicable to contract actions in Michigan, Mich.Comp.Laws Ann. Sec. 600.5807(8), rather than one year pursuant to section 408.481(1) of Michigan's Wages and Fringe Benefit Act, Mich.Comp.Laws Ann. Sec. 408.471, et seq.    The issue arises because ERISA does not contain a statute of limitations applicable to actions to recover delinquent contributions.  Consequently, the district court was required to adopt the appropriate analogous state statute of limitations under the principles set forth in International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 705 (1966) (court employs analogous state statute of limitations in federal action under Labor Management Relations Act).

44
Having found that the district court's judgment with respect to liability and costs should be affirmed, we find it unnecessary to resolve the statute of limitations issue at this time.14

45
The district court's judgment is AFFIRMED.

1
 The Funds are the Michigan Carpenters' Council Health and Welfare Fund, the Michigan Carpenters' Council Pension Fund, and the Michigan Carpenters' Council Apprenticeship & Training Fund

2
 The term Union herein collectively refers to the Michigan State Carpenters' Council (State Carpenters), the Southwestern Michigan Carpenters' District Council (District Council), and Carpenters Local 335 (Carpenters Local), which are all affiliated with the United Brotherhood of Carpenters and Joiners of America

3
 Sobie and the Union were parties to various CBAs in effect for most of the period from June 1980 through May 1986

4
 Because the present dispute arises out of Sobie's obligation under the applicable CBAs to pay fringe-benefit contributions, we shall hereinafter refer to the 1982-83 CBA (App. 32) as representative of the applicable provisions creating Sobie's obligation to contribute

5
 The existing CBA expired on May 31, 1984

6
 Originally, Sobie planned to begin paying benefits as the identified employees completed work on projects for which the contributions were deemed waived because of the fact that the project, when bid, did not contemplate liability for such contributions.  When recordkeeping became cumbersome, the parties agreed to the January 1, 1986, commencement date

7
 Generally, although employee benefit funds are not parties to the collective bargaining process or agreements, they maintain regular contact and work closely with unions.  They confer with union representatives on fringe-benefit issues and vicariously provide the language used in the fringe-benefit provisions of the CBA.  Moreover, once the CBA is executed, the funds maintain regular contact with union officials and rely on those officials to monitor compliance with the CBA's fringe-benefit contribution requirements and to report any discrepancies.  The funds may periodically audit an employer's payroll records, sometimes at the request of the union.  Although funds operate independently, in this case, seveal of the Union's business representatives served as trustees of the Funds

8
 The Funds considered themselves bound by the Settlement Agreement and, accordingly, waived contributions for the period from June 1985 through December 1985 for those employees enrolled in the Union pursuant to the Settlement Agreement

9
 The Funds are essentially third-party beneficiaries to the CBAs between Sobie and the Union.    Central States, Southeast & Southwest Areas Pension Fund v. Kraftco, 799 F.2d 1098, 1107 (6th Cir.1986), cert. denied, 479 U.S. 1086 (1987)

10
 The testimony revealed that the Union and Sobie understood the term apprentice as referring to a carpenter enrolled in an organized apprenticeship program described in the CBA.  The CBA provision on apprenticeship provides, in pertinent part:
It is considered to be the joint obligation of both the contractors and the Union to provide and train an adequate number of apprentices.  Each employer employing four (4) or more journeymen carpenters shall be obligated to employ and train under the Apprenticeship Committee one (1) apprentice when available and one (1) additional apprentice for every additional eight (8) journeymen employed.  Uniform apprenticeship standards that have been adopted by both parties shall remain in full force and effect and any future changes made by the parties apprenticeship committees shall be considered a part of this agreement.  The placement or replacement of apprentices shall be governed by the Carpenters Joint Apprenticeship Committee.
CBA Article XIV (App. 42).

11
 The Funds did file an untimely motion for reconsideration of the fee award, which was denied.  The May 11, 1988, order awarding attorney's fees was an appealable order.    Myers v. Ace Hardware, Inc., 777 F.2d 1099 (6th Cir.1985).  On June 2, 1988, the Funds filed their motion for reconsideration.  Construing the motion for reconsideration as a motion to alter or amend a judgment or, alternatively, for a new trial, under Fed.R.Civ.P. 59(b) or 59(e), we note that the motion for reconsideration was not filed within the requisite ten days after entry of the judgment.    See Kennedy v. Cleveland, 797 F.2d 297 (6th Cir.1986), cert. denied sub nom.  Hanton v. Kennedy, 479 U.S. 1103 (1987)

12
 Section 1145 provides:
Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.

13
 The district court determined that the June 1985 Settlement Agreement between Sobie and the Union barred the Funds' claims based on principles of apparent authority, equitable estoppel, and/or accord and satisfaction

14
 Although we decline to reach the statute of limitations issue, we note that in Laborers' Pension Trust Fund v. Sydney Weinberger Homes, Inc., 872 F.2d 702 (6th Cir.1988), we found the six-year statute of limitations governing contract actions appropriate in Tennessee.    See also Kraftco, 799 F.2d 1098


888 N.E.2d 872 (2008)
BALDWIN
v.
HARSTAD.
No. 18A02-0802-CV-86.
Court of Appeals of Indiana.
June 5, 2008.
MATHIAS, J.
Disposition of case by unpublished memorandum decision. Affirmed.
MAY, J. Concurs.
VAIDIK, J. Concurs.


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 14-7757

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CARL L. LINYARD, a/k/a Gus, a/k/a Big Kahuna, a/k/a Kahuna,

                Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort.       Solomon Blatt, Jr., Senior
District Judge. (9:03-cr-00620-SB-1; 9:13-cv-02658-SB)

Submitted:   March 17, 2015                 Decided:   March 20, 2015

Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Carl L. Linyard, Appellant Pro Se. Robert Nicholas Bianchi,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Carl L. Linyard seeks to appeal the district court’s order

granting relief on his motion for reduction of his sentence,

under 18 U.S.C. § 3582(c)(2) (2012), and denying, as successive,

his 28 U.S.C. § 2255 (2012) motion.                    Linyard does not allege

error regarding his § 3582 relief.               Thus we affirm this part of

the appeal for the reasons stated by the district court.                        United

States    v.    Linyard,     Nos.    9:03-cr-00620-SB-1;            9:13-cv-02658-SB

(D.S.C. Nov. 17, 2014).

     Regarding Linyard’s § 2255 motion, he cannot appeal unless

a   circuit      justice        or     judge     issues       a     certificate     of

appealability.      28 U.S.C. § 2253(c)(1)(B) (2012).                 A certificate

of appealability will not issue absent “a substantial showing of

the denial of a constitutional right.”                      28 U.S.C. § 2253(c)(2)

(2012).    When the district court denies relief on the merits, a

prisoner       satisfies     this       standard       by     demonstrating       that

reasonable      jurists      would     find     that    the       district   court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003).                  When the district court

denies     relief       on   procedural        grounds,       the    prisoner     must

demonstrate      both    that    the    dispositive         procedural   ruling     is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right.              Slack, 529 U.S. at 484-85.

                                          2
     We have independently reviewed the record and conclude that

Linyard has not made the requisite showing.               Accordingly, we

deny a certificate of appealability and dismiss the appeal.               We

dispense   with     oral   argument   because     the    facts   and   legal

contentions   are   adequately   presented   in    the   materials     before

this court and argument would not aid the decisional process.

                                                         AFFIRMED IN PART;
                                                         DISMISSED IN PART

                                      3


746 So.2d 1172 (1999)
DEPARTMENT OF HEALTH, OFFICE OF VITAL STATISTICS, Appellant,
v.
The ADOPTION OF Baby GILLI, Appellee.
No. 99-596.
District Court of Appeal of Florida, Fifth District.
December 3, 1999.
Janine B. Myrick, Senior Attorney, Department of Health, Office of Vital Statistics, Tallahassee, for Appellant.
No Appearance for Appellee.
COBB, J.
This appeal arises from a petition for adoption information filed on September *1173 15, 1998 by Beverly Outlaw (birth mother of Baby Gilli) in the Circuit Court of Volusia County, Florida. The petition requested all information concerning the adoption of her now adult girl who was born on March 3, 1953. Additionally, Outlaw requested "all information to be released to Bertie Hunt as court intermediary." The reason given by Outlaw for the request was that her daughter had a "right to know her heritage" and Outlaw wanted to tell her the reasons why she was placed for adoption. Finally, Outlaw indicated that "there is a need for medical information to be given to her."
On September 17, 1998, the lower court appointed Bertie Hunt, who was a notary and private investigator in Orange County, Florida, as intermediary and ordered that she could receive all identifying information concerning the adoption and all records relating to the adoption. The intermediary was appointed to act as an agent to determine whether the adoptive family or adoptee could be located and would consent to the release of identifying information.
The Department of Health, Office of Vital Statistics, filed a motion for relief pursuant to Rule 1.540 from the order appointing the intermediary and releasing adoption information. The Department challenged, inter alia, the jurisdiction of the Volusia County Circuit Court since it was not the court that entered the judgment of adoption. That judgment was entered by the Orange County Circuit Court. The circuit court below rejected the arguments of the Department, including those directed to the issue of jurisdiction. The court noted that all circuit courts in Florida have jurisdiction over adoptions and that a birth parent should not have to seek out the correct one.
We disagree with the jurisdictional analysis of the court below. Clearly, all circuit courts within the State of Florida have subject matter jurisdiction to hear adoptions and related proceedings. § 63.032(3), Fla. Stat. (1997). However, that is not the question. As stated by the First District Court of Appeal:
[T]he issue of whether or not to disclose information from the file is under the continuing authority of the court in which the judgment of adoption was entered as it is that court which has custody of the case file. That court is obviously the court referred to throughout section 63.162 of the Florida Statutes. It would be unreasonable to construe it otherwise. The complexity that would occur in having an adoption judgment entered in the Columbia County Circuit Court but having further issues involved in the same file considered only by the Leon County Circuit Court is unnecessary and not the intent of the statute.
Department of Health and Rehabilitation Services v. Kimmick, 390 So.2d 1218 (Fla. 1st DCA 1980).
In Dixon v. Melton, 515 So.2d 1309 (Fla. 1st DCA 1987), the district court indicated that the question of whether to disclose adoption file information lies with the court in which the adoption was entered and "remains under the continuing authority of that court after the final judgment of adoption was entered.... Once one court has exercised its jurisdiction over a particular case, another court lacks authority to determine the existence of good cause and to order the file opened."
Under the above rationale, Judge Sanders in Volusia County had no authority to enter the order of disclosure and order appointing intermediary. Accordingly, we quash the order of the Volusia County Circuit Court entered on September 17, 1998.
ORDER QUASHED.
DAUKSCH and GOSHORN, JJ., concur.


     Case: 11-10704     Document: 00512029502         Page: 1     Date Filed: 10/23/2012

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 23, 2012

                                       No. 11-10704                        Lyle W. Cayce
                                                                                Clerk

RALPH S. JANVEY, as Court-Appointed Receiver for the Stanford
International Bank, Ltd., et al.,

                                                  Plaintiff-Appellee,
v.

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE, INC.;
DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE, INC.;
NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE;
REPUBLICAN NATIONAL COMMITTEE; and NATIONAL REPUBLICAN
SENATORIAL COMMITTEE,

                                                  Defendants-Appellants.

                   Appeals from the United States District Court
                        for the Northern District of Texas

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
        Ralph Janvey, the Receiver over Allen Stanford and his companies’ assets
(collectively, the Stanford Defendants),1 brought this case under the Texas
Uniform Fraudulent Transfer Act (“TUFTA”), TEX. BUS. & COM. CODE § 24.001

        1
        Stanford ran a Ponzi scheme through his companies, one of the largest in U.S. history.
See Juan A. Lozano, Allen Stanford Gets 110 Years in Prison for $7B Ponzi Scheme, CHRISTIAN
SCIENCE MONITOR, June 14, 2012, http://www.csmonitor.com/Business/Latest-News-Wires/
2012/0614/Allen-Stanford-gets-110-years-in-prison-for-7B-Ponzi-scheme.
   Case: 11-10704    Document: 00512029502      Page: 2   Date Filed: 10/23/2012

                                  No. 11-10704

et seq., to recover approximately $1.6 million in political contributions made to
various political committees by the Stanford Defendants between 2000 and 2008.
There are two Democratic committees—the Democratic Senatorial Campaign
Committee (“DSCC”) and the Democratic Congressional Campaign Committee
(“DCCC”)     (“the   Democratic     Committees”)—and         three    Republican
committees—the Republican National Committee (“RNC”), the National
Republican Senatorial Committee (“NRSC”), and the National Republican
Congressional Committee (“NRCC”) (“the Republican Committees”)—which, for
convenience, we collectively refer to as “the Committees.” The district court
granted summary judgment in favor of the Receiver, and the Committees
appealed.
      On appeal, the Committees advance three arguments. They are that (1)
the Receiver may not stand in the shoes of the creditors of the Stanford
Defendants as to the TUFTA claims, (2) the Receiver’s action was untimely
under TUFTA, and (3) federal campaign finance law preempts the Receiver’s
TUFTA claims. Because we conclude that (1) the Receiver may stand in the
shoes of the creditors of the Stanford Defendants, (2) the Receiver’s TUFTA
claims were brought “within one year after the transfer[s] . . . w[ere] or
reasonably could have been discovered by the claimant,” TEX. BUS. & COM. CODE
§ 24.010(a)(1), and (3) they are not preempted, we reject the Committees’
arguments and, therefore, AFFIRM the judgment of the district court.
                                BACKGROUND
      The Securities Exchange Commission (“SEC”) brought suit against the
Stanford Defendants in 2009 for perpetrating an enormous Ponzi scheme. See
Janvey v. Adams, 588 F.3d 831, 833 (5th Cir. 2009). The district court appointed
Janvey to be Receiver over the assets and the records of the Stanford Defendants
(the Receivership Estate). The court “specifically directed and authorized [the
Receiver] to . . . [c]ollect, marshal, and take custody, control, and possession of

                                        2
   Case: 11-10704      Document: 00512029502         Page: 3    Date Filed: 10/23/2012

                                      No. 11-10704

all the funds, accounts, mail, and other assets of, or in the possession or under
the control of, the Receivership Estate, or assets traceable to assets owned or
controlled by the Receivership Estate, wherever situated.” The Receiver was
also directed to file “such actions or proceedings to impose a constructive trust,
obtain possession, and/or recover judgment with respect to persons or entities
who received assets or records traceable to the Receivership Estate” with the
same court.
       On February 19, 2009 and pursuant to its directive, the Receiver filed the
instant lawsuit to recover approximately $1.6 million worth of contributions
made by the Stanford Defendants to the Committees. It is undisputed that the
Stanford Defendants gave $950,500 to the DSCC; $238,500 to the NRCC;
$200,000 to the DCCC; $128,500 to the RNC; and $83,345 to the NRSC. The
Receiver contends that the Committees have to disgorge the above funds because
the contributions were fraudulent transfers, given “with actual intent to hinder,
delay, or defraud” creditors of the Stanford Defendants. See TEX. BUS. & COM.
CODE § 24.005(a).
       The Committees each filed a motion to dismiss, and the Receiver and the
Republican Committees moved for summary judgment. The district court
granted the Receiver’s motion for summary judgment and denied the motions to
dismiss and the Republican Committees’ motion for summary judgment. The
court ruled that the Receiver stands in the shoes of the creditors of the Stanford
Defendants and therefore may bring the TUFTA claims and determined that the
Receiver’s TUFTA actions were timely. The district court also concluded that
federal campaign finance law2 does not preempt the Receiver’s state law claim.
On the merits, the district court determined that summary judgment in favor of

       2
         Specifically, the Committees refer to the Federal Campaign Act of 1971 (“FECA”), 86
Stat. 3 (1972), amended by Bipartisan Campaign Reform Act of 2002 (“BCRA”), 116 Stat. 81,
2 U.S.C. § 431 et seq., and the regulations implementing the FECA and BCRA.

                                             3
   Case: 11-10704    Document: 00512029502      Page: 4   Date Filed: 10/23/2012

                                  No. 11-10704

the Receiver was warranted because he had demonstrated that the Stanford
Defendants gave contributions to the Committees with actual intent to defraud,
as required by TUFTA. The district court was unconvinced that the statutory
defense available for contributions taken “in good faith and for a reasonably
equivalent value,” TEX. BUS. & COM. CODE § 24.009(A), applied because the
Committees failed to create a genuine issue of material fact regarding whether
the contributions were given for a reasonably equivalent value.
      The Committees timely appealed, raising three issues: (1) whether the
Receiver may stand in the shoes of the creditors of the Stanford Defendants as
to the TUFTA claims; (2) whether the Receiver’s action was untimely under
TUFTA; and (3) whether federal campaign finance law preempts the Receiver’s
TUFTA claims.
                           STANDARD OF REVIEW
      We review de novo a district court’s disposition of motions to dismiss and
motions for summary judgment. E.g., LeClerc v. Webb, 419 F.3d 405, 413 (5th
Cir. 2005).
                                 DISCUSSION
                                        A.
      The Committees first dispute the district court’s conclusion that the
Receiver stands in the shoes of the creditors of the Stanford Defendants and that
he is therefore empowered to bring the TUFTA claims. We disagree and
conclude that the Receiver has the authority to pursue the instant action on
behalf of the creditors.
      The Committees highlight that the district court relied on language from
Janvey v. Alguire, 628 F.3d 164 (5th Cir. 2010) (Alguire I), in reaching its
conclusion that the Receiver may bring claims on behalf of the creditors of the
Stanford Defendants. The Committees correctly note that this language does not
appear in Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011) (Alguire II), the opinion

                                        4
   Case: 11-10704       Document: 00512029502          Page: 5     Date Filed: 10/23/2012

                                       No. 11-10704

that replaced and superseded Alguire I. Nonetheless, although we reached a
different conclusion in Alguire II, id. at 603-04, this is not because we concluded
that the Receiver represented the company rather than the creditors.3 Thus,
although Alguire II does not include the language on which the district court
relied, it also does not reject this language or the reasoning underpinning it.4
Moreover, we subsequently recognized, in Jones v. Wells Fargo Bank, N.A., 666
F.3d 955 (5th Cir. 2012), that under Texas law—which also governs this
appeal—“[a] receiver is ‘the representative and protector of the interests of all
persons, including creditors, shareholders and others, in the property of the
receivership.’” Id. at 966 (quoting Sec. Trust Co. of Austin v. Lipscomb Cnty.,
180 S.W.2d 151, 158 (Tex. 1944)). Thus, “‘when the receiver acts to protect
innocent creditors . . . he can maintain and defend actions done in fraud of
creditors even though the corporation would not be permitted to do so.’” Id.
(quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. E-Court, Inc., 2003 WL
21205030 at *5 (Tex. Ct. App. 2003)).5 Not only is Jones controlling, but its
reasoning finds support in the decisions of several other circuits. See, e.g.,
Marion v. TDI Inc., 591 F.3d 137, 148 (3d Cir. 2010); Wulliger v. Man. Life Ins.

       3
         Rather, we concluded that we did not have jurisdiction to decide whether the
receiver’s claims were subject to arbitration because the district court had not issued an order
deciding the defendants’ motion to compel arbitration. Id.
       4
         Notably, in Alguire II, we continued to refer to the receiver as representing the
interests of the creditors in the TUFTA context. Id. at 601.
       5
         The Committees submit that Jones is distinguishable because we further noted that
the receiver in that case was authorized by the order appointing him “to pursue actions for the
benefit of ‘all investors who may be the victims of the fraudulent conduct’” of the receivership
entities, id. at 966, and that this language does not appear in the appointment order here. We
disagree. Jones does not require that such language appear in an appointment order before
a receiver may exercise the authority given to him under Texas law. Regardless, the order
appointing the Receiver in this case included language even broader than that cited in Jones;
the Receiver is authorized to institute actions to recover any “assets . . . traceable to the
Receivership Estate,” and it is undisputed that the contributions at issue are traceable to the
Receivership Estate.

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                                  No. 11-10704

Co., 567 F.3d 787, 795 (6th Cir. 2009); Donell v. Kowell, 533 F.3d 762, 776-77
(9th Cir. 2008); Eberhard v. Marcu, 530 F.3d 122, 132-33 (2d Cir. 2008); Scholes
v. Lehmann, 56 F.3d 750, 753-54 (7th Cir. 1995). Accordingly, we conclude that
the Receiver represents the creditors, via the Stanford corporations, in pursuing
the TUFTA claims.
                                        B.
                                         1.
      Given that the Receiver may represent the creditors in pursuit of the
TUFTA claims, the next question we must answer is whether the Receiver filed
the instant action “within one year after the transfer[s] . . . w[ere] or reasonably
could have been discovered by the claimant.”              TEX. BUS. & COM. CODE
§ 24.010(a)(1).
      “A defendant moving for summary judgment on the affirmative defense of
limitations has the burden to establish that defense conclusively.” Johnston v.
Crook, 93 S.W.3d 263, 269 (Tex. App. 2002) (citing KPMG Peat Marwick v.
Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999)). “Thus, the
defendant must (1) conclusively prove when the cause of action accrued, and (2)
negate the discovery rule, if it applies and has been pleaded or otherwise raised,
by proving as a matter of law there is no genuine issue of material fact about
when the plaintiff discovered, or in the exercise of reasonable diligence should
have discovered, the nature of its injury.” Id. (citing KPMG Peat Marwick, 988
S.W.2d at 748). “If the movant establishes that the statute of limitations bars
the action, the non-movant must then adduce summary judgment proof raising
a fact issue in avoidance of the statute of limitations.” Id. (citing KMPG Peat
Marwick, 988 S.W.2d at 748).
      “The discovery rule [in TEX. BUS. & COM. CODE § 24.010] defers the accrual
of a cause of action until the plaintiff knew or, through the exercise of reasonable
diligence, should have known of the facts giving rise to the cause of action.”

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                                    No. 11-10704

Cadle Co., 136 S.W.3d at 350. “When a plaintiff knew or should have known of
an injury is generally a question of fact.” Id. at 352. “However, if reasonable
minds could not differ about the conclusion to be drawn from the facts in the
record, then the start of the limitations period may be determined as a matter
of law.” Id.
                                           2.
      The Committees argue that the Receiver reasonably could have discovered
the fraudulent transfers, at the very latest, by February 18, 2009.6 They contend
that the existence of the donations was not “inherently undiscoverable” because
records of the donations were available online (for instance, on the websites of
the Federal Election Commission (“FEC”) and Open Secrets) and because the
donations were discussed in the media.
      The Committees’ argument misses the mark. Even if the existence of the
donations was discoverable, their fraudulent nature was not. Moreover, when
the Receiver was first appointed on February 16, 2009, he had a number of
duties to attend to, which involved the many Stanford offices, systems, and
employees, and, because February 16, 2009 fell on Presidents’ Day, he was not
able to enter the Stanford offices until February 17, 2009. Given the extent of
the Stanford enterprises, the Receiver’s duties with regard to them, and the
extent of the fraudulent transfers, it would not have been reasonable to expect
him to immediately discover the fraud. Moreover, the Political Committees
submitted no summary judgment evidence indicating that the Receiver actually
discovered the transfers earlier than February 20, 2009. The burden is on the
Committees to “(1) conclusively prove when the cause of action accrued, and (2)
negate the discovery rule, if it applies and has been pleaded or otherwise raised,
by proving as a matter of law there is no genuine issue of material fact about

      6
       Because the Receiver filed suit on February 19, 2010, accepting the Committees’
argument would mean that the Receiver failed to bring suit within the limitation period.

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                                        No. 11-10704

when the plaintiff discovered, or in the exercise of reasonable diligence should
have discovered, the nature of its injury.”                 Cadle, 136 S.W.3d at 352.
Accordingly, we reject their argument and conclude that, based on the record
made in support of summary judgment, the Receiver exercised reasonable
diligence and thus brought the action within one year of when the transfers
reasonably could have been discovered.
                                               3.
       Finally, and related to their argument regarding to the discovery rule, the
Committees assert that the district court abused its discretion in denying their
discovery request (a motion to compel) and that they were prejudiced as a result.
Specifically, the Committees requested that the Receiver be compelled to
produce correspondence relating to, and several drafts of, documents that he had
issued regarding the contributions made to the Committees. The Committees
claim that the documents may contain metadata indicating that they were
created before February 19, 2009. The Receiver refused on multiple grounds,
but a common thread was that the requested documents and correspondence
were protected by attorney-client privilege and work-product doctrine. However,
the Receiver provided the Committees with a log of the documents that were
withheld, and the district court reviewed the documents in camera and
determined that they did not fall under the exception to the privilege and the
doctrine outlined in Conkling v. Turner, 883 F.2d 431 (5th Cir. 1989).7
       On appeal, the Committees do not dispute that the documents are
privileged. Rather, the Committees contend that the Conkling exception applies
because the materials sought will help determine when the Receiver discovered,

       7
         In Conkling, the plaintiff claimed that a statute of limitations should be equitably
tolled because he did not know that a defendant’s statement was false until his (the plaintiff’s)
attorney informed him of such. Id. at 434. Because the plaintiff “injected into [the] litigation
the issue of when he knew or should have known of the falsity of [the defendant’s] assertion,”
we permitted the defendants to conduct a limited deposition of the plaintiff’s attorney. Id.

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                                  No. 11-10704

or reasonably could have discovered, the contributions made to the Committees.
However, the ultimate question is when the Receiver knew or should have
known about the fraudulent nature of the contributions, not just their existence.
Thus, the district court would have been obliged to find the Conkling exception
inapplicable if none of the sealed documents tended to show that the Receiver,
prior to the crucial date, not only knew that the contributions had been made but
also that they had been made with fraudulent intent.
      Even if we assume, for the sake of argument, that the district court erred
in not applying the Conkling exception, the Committees have failed to preserve
this issue for appeal by failing to provide any meaningful way to review the
disputed documents. Had the Committees wished to pursue this argument, they
should have moved to have the documents, along with any metadata, made
available for review. See, e.g., Miss. Pub. Employees’ Retirement Sys. v. Boston
Scientific Corp., 649 F.3d 5, 30 n.22 (1st Cir. 2011). The district court examined
the documents, determined that it was not necessary to look at the metadata
they may have contained, and concluded that they did not fit the criteria for the
Conkling exception to apply. Absent a meaningful way to review the disputed
documents, it is not possible to examine whether the district court abused its
discretion by denying the Committees’ discovery request as to the documents.
      Furthermore, insofar as the Committees suggest that the district court’s
in camera review of the hardcopy documents was inadequate because it did not
include the metadata itself, their argument is waived because they did not raise
it until their reply brief. E.g., Medina Cnty. Envtl. Action Ass’n v. Surface
Transp. Bd., 602 F.3d 687, 702 (5th Cir. 2010). Consequently, we cannot say
that the district court abused its discretion in denying the Committees’ discovery
request.

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                                  No. 11-10704

                                        C.
      The Committees’ third defense is that federal campaign finance law
preempts the Receiver’s TUFTA claims. “Preemption can take multiple forms:
Congress can expressly preempt state law in federal statutory language, or it can
impliedly preempt state law.” Castro v. Collecto, Inc., 634 F.3d 779, 785 (5th Cir.
2011). Implied preemption may take two forms: field preemption and conflict
preemption. Id. Field preemption applies “where federal law ‘is sufficiently
comprehensive to make reasonable the inference that Congress ‘left no room’ for
supplementary state regulation,’ or ‘the federal interest [in the field] is so
dominant’ that it ‘preclude[s] enforcement of state laws on the same subject.’” Id.
(quoting Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707,
713 (1985)) (citations omitted).      Conflict preemption applies “(1) where
complying with both federal law and state law is impossible; or (2) where the
state law ‘creates an unacceptable obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.’” Id. (quoting Wyeth v. Levine,
555 U.S. 555, 563-64 (2009) (internal quotation marks omitted)). Reviewing
each form of preemption, we conclude that none applies and that, therefore, the
Receiver’s TUFTA claim is not preempted.
                                        1.
      The Committees argue that FECA expressly preempts the Receiver’s
TUFTA claim because it preempts “any provision of State law with respect to
election to federal office.” 2 U.S.C. § 453. We disagree.
      TUFTA is a general state law that happens to apply to federal political
committees in the instant case. In cases like this one, we have rejected express
preemption arguments and construed § 453 narrowly. For instance, in Karl
Rove & Co. v. Thornburgh, 39 F.3d 1273 (5th Cir. 1994), we rejected a federal
candidate’s argument that FECA preempted a company’s state law cause of
action against him for the debts of his campaign committee:

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                                  No. 11-10704

             Although Thornburgh attempts to stretch § 453 far enough to
      create a preemptive bar to applying state law to hold federal
      candidates personally liable, we cannot read FECA as extending
      that far. First, a “strong presumption” exists against preemption,
      and “courts have given section 453 a narrow preemptive effect in
      light of its legislative history.” In addition, nowhere in the text of
      FECA or accompanying regulations is the personal liability of a
      candidate addressed. Finally, the Federal Election Commission
      (“FEC”) has opined that state law supplies the answer to the
      question who may be held liable for campaign committee debts.
      Accordingly, in light of the FEC’s view, the strong presumption
      against preemption, the historically narrow reading of § 453, and
      FECA’s silence on the issue of candidate liability, we conclude that
      Thornburgh’s argument for express preemption must fail.
Id. at 1280 (footnotes and citations omitted); see also Stern v. Gen. Electric Co.,
924 F.2d 410 (2d Cir. 1991) (holding that § 453 does not preempt a state law
establishing a company’s directors’ fiduciary duty to shareholders, including not
wasting corporate assets, and explaining that “the narrow wording of [§ 453]
suggests that Congress did not intend to preempt state regulation with respect
to non-election-related activities”); Reeder v. Kans. City Bd of Police Comm’ers,
733 F.2d 543 (8th Cir. 1984) (holding that § 453 did not preempt a state law
prohibiting officers or employees of the Kansas City Police Department from
making any political contribution); Friends of Phil Gramm v. Ams for Phil
Gramm in ‘84, 587 F. Supp. 769 (E.D. Va. 1984) (holding that § 453 did not
preempt a state law prohibiting unauthorized use of a person’s name for
advertising or commercial purposes).
      The cases that the Committees cite are all inapposite because they pertain
to state laws that specifically regulated federal campaign finance in
contravention of FECA’s preemption provision. See Teper v. Miller, 82 F.3d 989
(11th Cir. 1996) (state law effectively prohibiting Georgia legislators from
accepting donations for a federal campaign while the state General Assembly
was in session); Bunning v. Ky., 42 F.3d 1008 (6th Cir. 1994) (state law

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                                      No. 11-10704

authorizing investigation of campaign expenditures of a federal political
committee); Weber v. Heaney, 995 F.2d 872 (8th Cir. 1993) (state law
establishing system under which federal congressional candidates could agree
to limit their federal expenditures in exchange for state funding for their
campaigns).
       Nor does TUFTA implicate the “core concerns” of FECA. As the Receiver
correctly explains, he does not seek a refund of the contributions. Rather, the
TUFTA claims are brought on behalf of the creditors of the Stanford Defendants
and assert that the contributions should not have been made in the first place.
Accordingly, § 453 does not expressly preempt the Receiver’s TUFTA claims.
                                            2.
       The Committees next argue that field preemption applies. However,
because Congress has not occupied the field with regard to claims like those
brought under TUFTA and because courts have consistently indicated that
FECA’s preemptive scope is narrow in light of its legislative history, see, e.g.,
Karl Rove, 39 F.3d at 1281; Stern, 924 F.2d at 475 n.3; Weber, 995 F.2d at 876,
we conclude that field preemption does not apply.
       First, the Committees contend that § 441a-k of FECA states a
“comprehensive list” of illegal sources for campaign contributions8 and that
TUFTA impermissibly designates another source of “illegal” contributions.
This, the Committees argue, is consistent with “[t]he primary purpose of FECA,
[which] . . . is to regulate campaign contributions and expenditures in order to
eliminate pernicious influence—actual or perceived—over candidates by those
who contribute large sums.” Karl Rove, 39 F.3d at 1281. But, as the Receiver

       8
          These provisions establish: limitations on the amount that may be given, § 441a;
restrictions on who may give, § 441b-f; limitations on the contribution of currency, § 441g;
regulation of soft money, § 441i; and a prohibition on fraudulent misrepresentation of
campaign authority, § 441h.

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                                 No. 11-10704

correctly observes, this appeal pertains to an impermissible source of funds for
the contributor (the Stanford Defendants), not the Committees, and § 441a-k
only pertains to the latter. Moreover, as the district court noted, neither
Congress nor the FEC “has ever attempted to graft any of these potential uses
of erstwhile campaign contributions onto the purportedly exclusive list of
prohibited limitations on contributions and expenditures.”          Finally, the
Committees’ argument would lead to absurd results: under their interpretation,
they would be allowed to keep funds that were, for example, stolen by force or
fraud so long as the contributions did not run afoul of § 441a-k.
      Second, the FEC, in advisory opinions cited by the district court, has ruled
that candidates and political committees remain subject to state contract law.
FEC Adv. Op. 1989-02 at 2 (Apr. 25, 1989); FEC Adv. Op. 1975-102 at 1 (Jan. 29,
1976). This suggests that Congress had no intention to “occupy the field” with
regard to campaign finance such that state fraudulent transfer laws would be
preempted. Given this, field preemption does not apply.
                                       3.
      Finally, we conclude that conflict preemption does not apply here. First,
the Committees argue that because FECA does not designate fraudulent
transfers as illegal, TUFTA must conflict with FECA. This is a rehashing of the
Committee’s argument regarding field preemption—namely, that because
§ 441a-k of FECA states a “comprehensive list” of illegal sources for campaign
contributions, TUFTA impermissibly designates another source of “illegal”
contributions by allowing the Receiver’s claims—which we have already rejected.
Accordingly, for the same reason that field preemption does not apply on this
basis, neither does conflict preemption.
      Second, the Committees maintain that the Receiver’s TUFTA claims
conflict with the BCRA’s soft money provisions. They submit that because the
BCRA requires them to dispose of all soft money, they may not be compelled,

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                                  No. 11-10704

under state law, to return that money. We find this argument unpersuasive. It
depends on characterizing the Receiver’s TUFTA claim as a refund, which as
previously discussed is inaccurate because the TUFTA claim is brought on behalf
of the creditors of the Stanford Defendants and alleges that the contributions
should not have been made in the first place. Furthermore, the Receiver does
not seek recovery of the exact soft money funds that the Committees asserts
have now been spent. See TEX. BUS. & COM. CODE § 24.009(b) (“[T]he creditor
may recover judgment for the value of the asset transferred . . . or the amount
necessary to satisfy the creditor’s claim, whichever is less.”). Nor does the fact
that the original funds have been spent preclude the Receiver from asserting his
claim. See, e.g., Donell v. Kowell, 533 F.3d 762, 776 & n.9 (9th Cir. 2008) (noting,
in a fraudulent transfer case, that claims may often arise “years after the money
has been received and spent” by the recipient but explaining that such claims
are nonetheless permitted). Accordingly, conflict preemption does not apply.
                                 CONCLUSION
      For these reasons, we AFFIRM the district court’s judgment.

                                        14