S.E.C. v. Colello
Decision Date | 18 March 1998 |
Docket Number | No. 95-56688,95-56688 |
Citation | 139 F.3d 674 |
Parties | Fed. Sec. L. Rep. P 90,166, 98 Cal. Daily Op. Serv. 1915, 98 Daily Journal D.A.R. 2681 SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. Michael J. COLELLO, Defendant-Appellant, Cross Financial Svc., Inc.; Owen R. Fox; Carroll E. Siemens; Bruce Franklin; Douglas S. Cross, Defendants. |
Court | U.S. Court of Appeals — Ninth Circuit |
Frederick D. Friedman and Edward A. Klein, O'Neill, Lysaght & Sun, Santa Monica, California, for defendant-appellant.
Richard M. Humes and Noran J. Camp, Securities and Exchange Commission, Washington, DC, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California Richard Paez, District Judge, Presiding. D.C. No. CV-94-4228-RAP.
Before: LAY, * GOODWIN and SCHROEDER, Circuit Judges.
This appeal challenges the right of the Securities and Exchange Commission (the "SEC") to recover, from a non-party to a fraud, investor funds traced to the "nominal defendant" in an action in personam. In the district court proceedings against a number of defendants, the SEC named Michael Colello as a nominal defendant after he had been dismissed as a party to the fraud. Upon a motion for summary judgment, the district court ordered Colello to disgorge over $2.6 million. On appeal, Colello argues that the district court lacked subject matter jurisdiction and that, in any event, summary judgment was in error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
This case arises from a scheme whereby a company called Cross Financial Services, Inc. ("CFS") and a number of individuals defrauded more than 700 public investors out of more than $21 million. The SEC claims that Colello received approximately $2.9 million of the $21 million. Colello claims that the money he received was to obtain letters of credit for CFS, that he did not keep most of it, and that what he did retain was payment for services rendered.
The SEC sued the perpetrators, initially naming Colello as a participant in the scheme to defraud. After losing on a motion for a preliminary injunction against Colello, the SEC amended its complaint to name Colello as a defendant "solely for the purpose of obtaining full relief." The SEC and Colello then cross-filed motions for summary judgment. The district court granted the SEC's motion for summary judgment and ordered Colello to disgorge $2,620,598.00 and pay $276,954.63 in interest. Judgments were also entered against the other defendants, who are not involved in this appeal. Colello failed to pay the judgment against him on the order to disgorge. In a post-judgment proceeding, the district court found Colello in contempt for noncompliance. The district court ordered Colello to pay the judgment or surrender himself for arrest. It then stayed the arrest warrant pending Colello's submission of supplemental evidence that he is unable to comply with the district court's order.
This court reviews de novo both the grant of the SEC's summary judgment motion and the denial of Colello's. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). We likewise review the district court's exercise of subject matter jurisdiction and its denial of Colello's motion to dismiss for failure to state a claim. San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 818 n. 3 (9th Cir.1987). This court reviews the disgorgement order for abuse of discretion. SEC v. Clark, 915 F.2d 439, 453 (9th Cir.1990).
Two district courts have allowed the SEC to sue a "nominal defendant" to recover fraud proceeds, SEC v. Egan, 856 F.Supp. 401 (N.D.Ill.1993); SEC v. Antar, 831 F.Supp. 380 (D.N.J.1993), and the Seventh Circuit has endorsed such actions in SEC v. Cherif, 933 F.2d 403 (7th Cir.1991). This circuit has not yet spoken on the subject.
A nominal defendant is a person who "holds the subject matter of the litigation in a subordinate or possessory capacity as to which there is no dispute." Cherif, 933 F.2d at 414 (internal quotations and citation omitted). The paradigmatic nominal defendant is "a trustee, agent, or depositary ... [who is] joined purely as a means of facilitating collection." Id. (internal quotations and citation omitted). As the nominal defendant has no legitimate claim to the disputed property, he is not a real party in interest. Id. Accordingly, "there is no claim against him and it is unnecessary to obtain subject matter jurisdiction over him once jurisdiction of the defendant is established." 1 Id.
Colello asks this court to reject per se the use of nominal defendants. He relies upon such cases as Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 191, 114 S.Ct. 1439, 1455, 128 L.Ed.2d 119 (1994) ( ) and Pinter v. Dahl, 486 U.S. 622, 650, 108 S.Ct. 2063, 2079-80, 100 L.Ed.2d 658 (1988) ( ). Each of these cases stands for the proposition that causes of action under the securities laws must have a basis in the text of the statute. Colello correctly notes that the text of the securities laws does not mention the use of nominal defendants.
Nevertheless, there is law to support the use of nominal defendants in securities' actions to collect the proceeds of fraud. While no precedent speaks directly to this point, ample authority supports the proposition that the broad equitable powers of the federal courts can be employed to recover ill gotten gains for the benefit of the victims of wrongdoing, whether held by the original wrongdoer or by one who has received the proceeds after the wrong. For example, the Supreme Court has held that a plaintiff who has a cause of action under the securities laws can enforce those rights "by such legal or equitable actions or procedures as would normally be available to him." Deckert v. Independence Shares Corp., 311 U.S. 282, 287-88, 61 S.Ct. 229, 232-33, 85 L.Ed. 189 (1940). 2 This court has declared that "federal courts have inherent equitable authority to issue a variety of 'ancillary relief' measures in actions brought by the SEC to enforce the federal securities laws." SEC v. Wencke, 622 F.2d 1363, 1369 (9th Cir.1980) ("Wencke II "). This broad power extends over third parties to the action. Wencke II, 622 F.2d at 1369 ( ).
The Supreme Court's hostility to causes of action without textual support and precedent supporting broad equitable powers can be reconciled by distinguishing between causes of action and forms of relief, a distinction drawn by the Supreme Court. See Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 2273-74, 60 L.Ed.2d 846 (1979) (). See also SEC v. Sands, 902 F.Supp. 1149, 1158 (C.D.Cal.1995) () (internal quotations and alteration omitted). Accordingly we conclude that the SEC may name a non-party depository as a nominal defendant to effect full relief in the marshalling of assets that are the fruit of the underlying fraud.
Colello also argues that even if the SEC is allowed to name a nominal defendant, in this case he is not one. As noted above, the standard nominal defendant is a bank or trustee, which has only a custodial claim to the property. Colello contends that his relationship with the principal defendants in this case is very different. He claims that he provided services to CFS by securing letters of credit. He asserts that he paid over to others most of the money in doing so, and the amount that he retained was his fee for services. Colello contends that the district court improperly placed the burden on him to show that he had a legitimate claim to the funds. Moreover, he contends that he produced evidence below raising genuine issues of material fact as to the validity of his claims.
Colello's claims are not without substance. Indeed, we emphasize that in the typical case, the creditor plaintiff must show that the nominal defendant has received ill gotten funds and that he does not have a legitimate claim to those funds. 3 The SEC attempts to counter Colello's argument by characterizing Colello's claim that he has a legitimate interest in the funds as an affirmative defense. We disagree with the SEC because the lack of a legitimate claim to the funds is the defining element of a nominal defendant.
This case, however, is atypical because Colello has consistently invoked his Fifth Amendment privilege not to testify. The district court expressly based its summary judgment for the SEC on Colello's failure to go forward with evidence, as well as his resort to the Fifth Amendment. SEC v. Cross Financial Services, 908 F.Supp. 718, 732 (C.D.Cal.1995) ().
Parties are free to invoke the Fifth Amendment in civil cases, but the court is equally free to draw adverse inferences from their failure of proof. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976); United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir.1997) (...
To continue reading
Request your trial-
S.E.C. v. Ross
...as a nominal defendant to effect full relief in the marshaling of assets that are the fruit of the underlying fraud." SEC v. Colello, 139 F.3d 674, 677 (9th Cir. 1998). A nominal defendant is not a real party in interest because he "has no legitimate claim to the disputed property." Id. at ......
-
Southern Union Co. v. Southwest Gas Corp.
...Amendment in civil cases, but the [C]ourt is equally free to draw adverse inferences from their failure of proof." S.E.C. v. Colello, 139 F.3d 674, 676 (9th Cir.1998); see, e.g., Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ("[T]he Fifth Amendment does not f......
-
In re Sherman
...held by defendants, see SEC v. Wencke, 783 F.2d 829, 837 n. 9 (9th Cir.1986), and by third-party nominal defendants, SEC v. Colello, 139 F.3d 674, 676-77 (9th Cir.1998). In the present case, the SEC brought the Whitworth action pursuant to its authority under 15 U.S.C. §§ 78u(d)(1) and 77t(......
-
In re Sherman
...held by defendants, see SEC v. Wencke, 783 F.2d 829, 837 n. 9 (9th Cir.1986), and by third-party nominal defendants, SEC v. Colello, 139 F.3d 674, 676-77 (9th Cir.1998). In the present case, the SEC brought the Whitworth action pursuant to its authority under 15 U.S.C. §§ 78u(d)(1) and 77t(......
-
SECURITIES FRAUD
...indicating that disgorgement and restitution are theoretically the same thing and should be equated). 496. See SEC v. Colello, 139 F.3d 674, 679 (9th Cir. 1998) (stating that it is only necessary to show a likelihood of future violations when a permanent injunction is involved, and that it ......
-
Table of Cases
...No. 99-civ-3822, 2000 WL 777930 (S.D.N.Y. June 19, 2000), 159 SEC v. Chapman, 826 F. Supp. 2d 847 (D. Md. 2011), 256 SEC v. Colello, 139 F.3d 674 (9th Cir. 1998), 166, 167 Table of Cases 333 SEC v. Farkas, 557 F. App’x 204 (4th Cir. 2014), 256 SEC v. First Financial Group of Texas, Inc., 65......
-
The Privilege Against Self-Incrimination
...in toxic tort case permitting jury to draw adverse inference from defendant corporation president’s refusal to testify); SEC v. Colello, 139 F.3d 674, 677 (9th Cir. 1998) (holding that parties are free to invoke the Fifth Amendment in civil cases, but the court is equally free to draw adver......
-
Securities fraud.
...not of restitution, but of recovery by government of the illegal gains for remedial and enforcement purposes."). (374.) SEC v. Colello, 139 F.3d 674, 679 (9th Cir. 1998) (stating requirement that court find future violations likely only applies to permanent injunctions); Warde, 151 F.3d at ......