Present: All the Justices 

JEROME GREENBERG 

v. Record No. 971472 OPINION BY JUSTICE CYNTHIA D. KINSER

 April 17, 1998 

COMMONWEALTH OF VIRGINIA, EX REL. 

ATTORNEY GENERAL OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

In this case, the Commonwealth of Virginia seeks 

restitution from Jerome Greenberg, chairman of the board 

and majority shareholder of Allstate Express Check Cashing, 

Inc. (Allstate), of all amounts Allstate received from 

borrowers in connection with its cash advancement loan 

program in violation of the Consumer Finance Act (CFA). 

The Commonwealth proceeded on two theories under which to 

hold Greenberg personally liable: (1) actively 

participating in the commission of the illegal conduct; and 

(2) piercing the corporate veil. The trial court refused 

to pierce the corporate veil but held Greenberg personally 

liable by applying an active participation theory. Because 

we find that Code § 6.1-308(B) precludes imposition of 

restitution on any entity or individual other than the 

lender, we will reverse the trial court’s judgment imposing 

liability on Greenberg. However, we find, as a matter of 

law, that the evidence is insufficient to pierce the 
corporate veil and will affirm the trial court’s judgment 

on that issue. 

We will discuss each theory relied upon by the 

Commonwealth and the relevant facts seriatim. 

I. ACTIVE PARTICIPATION 

A. Facts 

From February 10, 1992, until approximately February 

1, 1993, Allstate, a Virginia corporation doing business as 

Allstate Express Checking, operated a check cashing/cash 

advance business from four different locations in Hampton, 

Norfolk, and Virginia Beach. Allstate provided two basic 

services to its customers. One service involved cashing 

government, payroll, travelers, insurance, and personal 

checks for individuals without checking accounts. 

Allstate’s fees for this service started at 2% and varied 

depending on the type of check. Only a small percentage of 

Allstate’s customers utilized this service. 

 The second service that Allstate offered was for 

customers with a checking account and involved advancing 

cash against present-dated checks at a discount from the 

face amount of the checks and holding the checks for a 

specified period of time before cashing them. The fee 

Allstate charged for this service was a fixed percentage of 

the amount advanced, such as 25% or 30%, depending on the 

2
amount of the advancement. The majority of Allstate’s 

customers used this service. 

The three major principals in Allstate were Greenberg, 

Loran S. Martin, and Joseph P. Lynch. They comprised 

Allstate’s board of directors, with Greenberg serving as 

the chairman. Martin was Allstate’s president and chief 

operations officer, and Lynch was Allstate’s secretary and 

treasurer. All three were also shareholders of Allstate, 

with Greenberg being the majority shareholder. 

In early 1993, the Commonwealth brought suit against 

Allstate alleging that it had violated the CFA by making 

loans in amounts and at interest rates prohibited under 

Code § 6.1-249.1 In that suit, the Circuit Court of the 

City of Richmond determined that Allstate’s cash advance 

services constituted “loans” within the meaning of the CFA 

________________ 1

 The version of Code § 6.1-249 in effect in 1993 

provided in pertinent part: 

No person shall engage in the business of lending 

in amounts of the then established size of loan 

ceiling or less, and charge, contract for, or receive, 

directly or indirectly, on or in connection with any 

loan, any interest, charges, compensation, 

consideration or expense which in the aggregate are 

greater than the rate otherwise permitted by law 

except as provided in and authorized by this chapter 

and without first having obtained a license from the 

Commission. 

The General Assembly amended this section in 1995. 

3
and that Allstate’s fees for these services exceeded the 

CFA’s statutory limits. Accordingly, the trial court 

enjoined Allstate from violating the CFA and entered 

judgment for the Commonwealth, “as trustee for the use and 

benefit of affected borrowers,” against Allstate “for 

restitution of all amounts it received from borrowers in 

connection with its check advancement loan program.” 

On January 5, 1994, the Commonwealth filed a bill of 

complaint against Greenberg and alleged, inter alia, that 

Greenberg actively participated in the illegal acts 

perpetrated by Allstate.2 The Commonwealth sought to hold 

Greenberg individually liable for restitution to borrowers 

under Code § 6.1-308(B). 

The trial court found that Greenberg did actively 

participate in Allstate’s illegal conduct and that the 

Commonwealth could, therefore, obtain restitution from 

Greenberg for the benefit of Allstate’s borrowers. In 

doing so, the court rejected Greenberg’s argument that Code 

§ 6.1-308(B) allows for restitution only from the “lender” 

for violations of the CFA. Rather, in a letter opinion, 

the court reasoned: 

________________ 2

 The Commonwealth also included Martin and Lynch in 

its suit. However, the claims against them were resolved 

and are not before this Court. 

4
The liability has been imposed against the 

corporation, according to the statute, as a result of 

the illegal acts of the corporation. Because it was 

actually individuals who committed the illegal acts, 

the individuals can be held responsible. Mr. 

Greenberg is to be held personally liable, not because 

he was the “lender”, but because he was a responsible 

actor within the corporation which was the “lender.” 

The statute imposes the liability on the corporation 

as lender and the doctrine of active participation 

extends that liability to the individuals involved. 

Subsequently, in an order dated April 15, 1997, the trial 

court entered a permanent injunction against Greenberg and 

final judgment in favor of the Commonwealth in the amount 

of $237,154, as restitution in trust and for the benefit of 

Allstate’s borrowers, and $30,000 as attorney’s fees. 

Greenberg appeals. 

B. Analysis 

Code § 6.1-303(A)(2) of the CFA provides that “[t]he 

Attorney General may seek and the circuit court may order 

or decree such other relief allowed by law, including 

restitution to the extent available to borrowers under 

subsection B of § 6.1-308.” Code § 6.1-308 sets forth the 

penalties for CFA violations and provides as follows: 

A. Any person and the several members, officers, 

directors, agents, and employees thereof, who violate 

or participate in the violation of any provision of 

§ 6.1-249 shall be guilty of a Class 2 misdemeanor. 

B. Any contract of loan in the making or 

collection of which any act has been done which 

violates § 6.1-249 shall be void and the lender shall 

not collect, receive, or retain any principal, 

5
interest, or charges whatsoever, and any amount paid 

on account of principal or interest on any such loan 

shall be recoverable by the person by or for whom 

payment was made. 

This Court has stated that “[a] corporation can act 

alone through its officers and agents, and where the 

business itself involves a violation of the law, the 

correct rule is that all who participate in it are liable.” 

Crall and Ostrander v. Commonwealth, 103 Va. 855, 859, 49 

S.E. 638, 640 (1905). See also Bourgeois v. Commonwealth, 

217 Va. 268, 274, 227 S.E.2d 714, 718 (1976). Relying on 

these cases, the Commonwealth argues that Greenberg is 

personally liable for Allstate’s violations of the CFA. 

Greenberg, however, contends that the trial court erred in 

using the active participation theory to hold him 

personally liable because Code § 6.1-308(B) precludes the 

imposition of restitution on any individual or entity other 

than the lender. 

A resolution of this issue necessarily requires us to 

examine Code § 6.1-308(B). At the outset, we note that the 

CFA is a remedial statute. Valley Acceptance Corp. v. 

Glasby, 230 Va. 422, 428, 337 S.E.2d 291, 295 (1985). 

Consequently, we construe it liberally so as “to avoid the 

mischief at which it is directed and to advance the remedy 

for which it was promulgated.” Id. In doing so, we 

6
cannot, however, deviate from the language of Code § 6.1-

308, which we find to be plain and unambiguous. 

Our duty is “to construe the law as it is written.” 

Hampton Roads Sanitation Dist. Comm’n v. Chesapeake, 218 

Va. 696, 702, 240 S.E.2d 819, 823 (1978). We assume that 

“the legislature chose, with care, the words it used when 

it enacted the relevant statute, and we are bound by those 

words . . . .” Barr v. Town & Country Properties, Inc., 

240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). “To depart 

from the meaning expressed by the words is to alter the 

statute, to legislate and not to interpret.” Faulkner v. 

Town of South Boston, 141 Va. 517, 524, 127 S.E. 380, 382 

(1925). 

We agree with Greenberg that Code § 6.1-308(B) permits 

a recovery of restitution only from the lender. In Code 

§ 6.1-308(A), the General Assembly prescribed misdemeanor 

criminal liability for “[a]ny person and the several 

members, officers, directors, agents, and employees 

thereof.” The CFA defines “person” to include 

“individuals, copartnerships, associations, trusts, 

corporations, and all other legal and commercial entities.” 

Code § 6.1-245. Thus, “individuals, . . . corporations, 

and all other legal . . . entities” and their “members, 

officers, directors, agents, and employees” are subject to 

7
misdemeanor penalties for violating the CFA. The General 

Assembly explicitly created a broad category of individuals 

and entities subject to Code § 6.1-308(A). 

In contrast to subsection (A), Code § 6.1-308(B), 

provides that only the “lender shall not collect, receive, 

or retain any principal, interest, or charges whatsoever, 

and any amount paid on account of principal or interest on 

any such loan shall be recoverable by the person by or for 

whom payment was made.” (Emphasis added). Absent from 

subsection (B) is the broad category of entities found in 

subsection (A). In other words, subsection (B) does not 

include any individual, officer, director, or entity other 

than the lender. 

“When the General Assembly uses two different terms in 

the same act, it is presumed to mean two different things.” 

Forst v. Rockingham Poultry Mktg. Coop. Inc., 222 Va. 270, 

278, 279 S.E.2d 400, 404 (1981). As evident in subsection 

(A), the General Assembly knew how to broaden the range of 

liability, and the absence of any such provisions in 

subsection (B) indicates the General Assembly’s intent to 

limit those from whom borrowers may obtain restitution. To 

determine otherwise would be to rewrite the statute and to 

contradict the General Assembly’s express intent. Thus, we 

hold that the trial court erred in using the active 

8
participation theory to allow the Commonwealth to recover 

restitution from Greenberg for Allstate’s violations of the 

CFA. 

Our decision is not inconsistent with other cases in 

which we used the active participation theory to impose 

individual liability on corporate officers or directors. 

The distinction between such cases and the present one lies 

in the language of the relevant statutes. For example, in 

Bourgeois, a corporate officer was found guilty of grand 

larceny by obtaining money by false pretenses. The statute 

at issue provided that “[i]f any person obtain, by any 

false pretense or token, from any person, with intent to 

defraud, money or other property which may be the subject 

of larceny, he shall be deemed guilty of larceny thereof; 

. . . .” Bourgeois, 217 Va. at 269 n.1, 227 S.E.2d at 715 

n.1. (Emphasis added). Likewise, in Crall, the 

corporation’s vice-president was criminally liable under a 

statute which provided “[a]ny peddler who shall peddle for 

sale, or sell or barter, without a license, shall pay a 

fine . . . .” Crall, 103 Va. at 858, 49 S.E. at 639. The 

statute defined “peddler” as “[a]ny person who shall carry 

from place to place any goods, wares or merchandise, and 

offer to sell or barter the same, or actually sells or 

9
barters the same . . . .” Id. at 857, 49 S.E. at 639. 

(Emphasis added). 

In contrast to the above two statutes, Code § 6.1-

308(B) permits a recovery of restitution solely from the 

“lender” and does not impose liability on “any person.” 

Therefore, to allow the Commonwealth to obtain restitution 

from Greenberg would be to invade the province of the 

legislature and to expand the scope of liability in Code 

§ 6.1-308(B).3

II. PIERCING THE CORPORATE VEIL 

A. Facts 

Greenberg first became involved in Allstate prior to 

its incorporation4 when Martin and Lynch gave Greenberg a 

business prospectus and asked him to provide the initial 

capitalization for Allstate.5 After consulting about the 

proposed business venture with his attorney, who did not 

________________ 3

 The Commonwealth summarily argued in its brief that, 

under Code § 6.1-303(A)(1), the Attorney General may sue 

“any person” who has violated the CFA for monetary relief. 

However, the Commonwealth did not bring this suit under 

Code § 6.1-303(A)(1). Rather, it asked to be trustee for 

the benefit of the borrowers under Code § 6.1-303(A)(2). 

Therefore, we will not address this argument. 

4

 Allstate was incorporated on January 22, 1992. 

5

 Lynch, a CPA, had prepared the prospectus. Martin 

had experience working in another check cashing/cash 

advance company. 

10
advise Greenberg of any potential legal problems, 

Greenberg agreed to loan $60,000 to Allstate interest-free 

with the understanding that Allstate would repay Greenberg 

in full within six months.6

Martin, Lynch, and Greenberg each had different 

responsibilities in regard to Allstate’s business. 

Martin’s responsibilities included developing Allstate’s 

fee schedules, managing personnel, screening customers, and 

advertising. Lynch handled all the bookkeeping, 

accounting, and record-keeping functions. Greenberg was 

Allstate’s financial consultant for which he received $500 

a week as compensation. As the financial consultant, 

Greenberg addressed start-up and expansion problems and 

kept “tabs on what [Martin and Lynch] were doing to protect 

his investment.” 

However, unlike Martin and Lynch, Greenberg, according 

to Martin, did not participate in the daily operations of 

Allstate in any substantial way. Greenberg occasionally 

visited the four stores, and an Allstate employee testified 

________________ 6

 During the course of Allstate’s business, Greenberg 

actually loaned more than $60,000 to Allstate. When it 

became apparent that Allstate could not repay Greenberg 

during the first six months of its operation, Allstate 

began paying interest to him at a rate of 4% per month, 

which was later increased to 5% after other individuals 

made similar investments in Allstate and received the 

higher interest rate. 

11
that during one such visit, Greenberg instructed her not to 

use the terms “loan,” “interest,” and “advance” when 

speaking to customers.7 At times, Greenberg would also make 

bank deposits for Allstate and transfer cash between 

offices. However, these activities were not part of his 

regular responsibilities and were considered a “rare 

event.” Greenberg did attend meetings of the directors 

and, occasionally, those of the managers. However, his 

participation at the meetings with the managers was 

minimal, and he was considered a “spectator.” 

 In late November or early December 1992, Greenberg 

learned that the Commonwealth had filed suits alleging 

violations of the CFA by other companies similar to 

Allstate. After discovering that other “cash-advance” 

companies had, in response to the suits, initiated a “gift 

certificate catalogue business,” Greenberg, Martin, and 

Lynch concluded that Allstate should do the same.8 At this 

________________ 7

 Martin testified that Greenberg’s attorney had 

advised against using these terms to avoid the implication 

that Allstate was a licensed lending institution. 

8

 Prior to making this change, Greenberg consulted with 

his attorney to ascertain if the gift certificate program 

posed any legal problems or issues. Greenberg’s attorney 

assured him that the program was “perfectly fine.” 

However, a former Allstate employee did testify that Martin 

referred to the gift certificates as a “front.” 

Under the gift certificate program, Allstate gave its 

customers a gift certificate in the amount of Allstate’s 

12
point, however, Greenberg decided that he “want[ed] to get 

out of the business” and asked for a return of his money.9 

Allstate then began “winding down” its business and paid 

its trade debts and withholding taxes. 

 After considering the testimony and exhibits, the 

trial court concluded that the evidence was insufficient to 

pierce the corporate veil. In its letter opinion, the 

court stated that the evidence failed to show “that 

Greenberg incorporated [Allstate] for the purpose of 

disguising his wrongful actions and evading liability.” 

B. Analysis 

In its assignment of cross-error, the Commonwealth 

argues that sufficient evidence exists to justify piercing 

the corporate veil to impose personal liability on 

Greenberg. The Commonwealth contends, and we agree, that 

the trial court’s analysis focused only on Greenberg’s 

intent in incorporating Allstate and failed to address his 

subsequent use of the corporation. Nevertheless, based 

upon our review of the record, we conclude that, as a 

____________ 

fee. The customers could then use the certificates to 

offset the price of furniture that they bought at a 

furniture retail store owned by Greenberg. 

9

 Allstate’s bank records show that Greenberg received 

a total of $183,163.04 from Allstate. Of that amount, 

$126,462.01 was paid between November 25, 1992 and February 

19, 1993. 

13
matter of law, the evidence is insufficient to disregard 

the corporate structure and impose personal liability on 

Greenberg. 

 We have recognized that “no single rule or criterion 

. . . can be applied to determine whether piercing the 

corporate veil is justified.” O’Hazza v. Executive Credit 

Corp., 246 Va. 111, 115, 431 S.E.2d 318, 320 (1993). 

Disregarding the corporate entity is usually warranted if: 

 [T]he shareholder sought to be held personally liable 

has controlled or used the corporation to evade a 

personal obligation, to perpetrate fraud or a crime, 

to commit an injustice, or to gain an unfair 

advantage. . . . Piercing the corporate veil is 

justified when the unity of interest and ownership is 

such that the separate personalities of the 

corporation and the individual no longer exist and to 

adhere to that separateness would work an injustice. 

Id., 431 S.E.2d at 320-21. Ultimately, a decision whether 

to disregard the corporate structure to impose personal 

liability is a fact-specific determination, and each case 

requires a close examination of the factual circumstances 

surrounding the corporation and the questioned acts. Id., 

431 S.E.2d at 321. 

Only “an extraordinary exception” will justify 

disregarding the corporate entity, and no such exception is 

present here. Cheatle v. Rudd’s Swimming Pool Supply Co., 

Inc., 234 Va. 207, 212, 360 S.E.2d 828, 831 (1987) (quoting 

Beale v. Kappa Alpha Order and Kappa Alpha Alumni Found., 

14
192 Va. 382, 397, 64 S.E.2d 789, 797 (1951)). The evidence 

showed that Greenberg did not develop Allstate’s policy or 

procedure; rather, Martin and Lynch approached Greenberg 

with a business plan detailing Allstate’s operation. 

Further, Greenberg, before becoming Allstate’s majority 

shareholder, sought advice from his counsel regarding the 

legality of the proposed business. Thus, the trial court 

correctly concluded that Greenberg did not incorporate 

Allstate for the purpose of disguising wrongful actions or 

concealing a crime. 

Nor did Greenberg use the company to “evade a personal 

obligation, to perpetrate fraud or a crime, to commit an 

injustice, or to gain an unfair advantage.” O’Hazza, 246 

Va. at 115, 431 S.E.2d at 320. He did not determine the 

amount of or collect Allstate’s fees, solicit customers, or 

handle employment matters. At most, as Allstate’s 

financial consultant, he addressed start-up and expansion 

issues. When Greenberg instructed an employee not to use 

the words “loan” or “interest,” he did so because of advice 

he had received from his attorney. He also sought legal 

advice before Allstate implemented the gift certificate 

program. Finally, in recouping his loan to Allstate, 

Greenberg received interest only after Allstate could not 

abide by its initial agreement to repay the loan in six 

15
months and increased the amount of the interest only after 

other investors started receiving the higher rate. Thus, 

the evidence, as a matter of law, establishes that 

Greenberg, like any other shareholder, used the corporate 

structure to limit his liability to his initial investment 

and not to perpetrate or disguise illegal activities.10 In 

other words, Greenberg did not use the corporate structure 

“to mask wrongs” or to facilitate the commission of illegal 

acts. Bogese, Inc. v. State Highway and Transp. Comm’r, 

250 Va. 226, 231, 462 S.E.2d 345, 348 (1995). 

Therefore, for the reasons stated, we will affirm in 

part and reverse in part the circuit court’s judgment, and 

enter final judgment in favor of Greenberg. 

Affirmed in part, 

reversed in part,

and final judgment. 

________________ 10 The Commonwealth also claims that the trial court 

erred by failing to consider whether Allstate was the alter 

ego of Greenberg. Because we have determined, as a matter 

of law, that the evidence is insufficient to pierce the 

corporate veil, we do not address this argument. 

16