U.S. v. Marathon Inv. Partners, Lp, 05-CV-10255-MEL.

• Decision Date: 23 May 2005
• Docket Number: No. 05-CV-10255-MEL.,05-CV-10255-MEL.
• Citation: 399 F.Supp.2d 1
• Parties: UNITED STATES of America, Plaintiff, v. MARATHON INVESTMENT PARTNERS, LP, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 1

399 F.Supp.2d 1

UNITED STATES of America, Plaintiff, v. MARATHON INVESTMENT PARTNERS, LP, Defendant.

No. 05-CV-10255-MEL.

United States District Court, D. Massachusetts.

May 23, 2005.

Charles R. Bennett, Jr., Hanify & King, P.C., Boston, MA, for Marathon Investment Partners, LP, Defendant.

Christopher R. Donato, United States Attorney's Office, Boston, MA, for United States of America, Plaintiff.

Arlene M. Embrey, U.S. Small Business Administration, Washington, DC, for United States of America, Plaintiff.

Theodore J. Folkman, Hanify & King, Boston, MA, for Marathon Investment Partners, LP, Defendant.

MEMORANDUM AND ORDER

LASKER, District Judge.

The United States of America, on behalf of its agency, the United States Small Business Administration ("SBA"), moves for permanent injunctive relief against Marathon Investment Partners, LP ("Marathon") a small business investment company licensee, as a result of Marathon's alleged violations of the Small Business Investment Act of 1958, as amended, 15 U.S.C. § 661, et seq. ("the Act") and the regulations promulgated thereunder at 13 C.F.R. § 107.1, et seq. ("the Regulations"). The SBA further moves to be appointed permanent receiver of Marathon.

The motion is GRANTED.

I.

Pursuant to the Act and the Regulations, the SBA has authority to license non-bank financial institutions, as well as private companies including corporations, as Small Business Investment Companies ("SBIC"). See 15 U.S.C. § 681. The SBA provides financing for the formation, growth and expansion of small business concerns, and is authorized to invest federal funds in the SBICs. See 15 U.S.C. § 681(c) and 683(b).

Marathon is a Delaware limited partnership organized in 1998. On September 30, 1998 the SBA licensed Marathon as a SBIC. The SBA provided financing to Marathon through the guarantee of a series of subordinate debentures amounting to a total of approximately $14,450,000. Consistent with the purposes of the Act, Marathon invested in a series of small business companies.

Under the Regulations at 13 C.F.R. § 107.1830(c), a licensee, such as Marathon, is considered to have a condition of "capital impairment" if its capital impairment percentage is greater than 45%. It is undisputed by the parties that Marathon has been in a state of capital impairment since the year 2000, and that the SBA has been aware of that fact since that time.

II.

The Act provides that in the event the SBA determines that one of its licensed SBICs is in violation of the Act or the Regulations, the SBA may apply to the appropriate Federal District court for an adjudication of such a violation. 15 U.S.C. § 687(d). Upon a showing of a violation of the Act or its Regulations, the license of the SBIC may then be revoked. See U.S. v. Norwood Capital Corp., 273 F.Supp. 236, 239 (D.S.C.1967). The SBA argues that Marathon has violated, and continues to violate, the Act and the Regulations by virtue of its condition of capital impairment. The SBA further alleges that Marathon is also in violation of the Regulations at 13 C.F.R. § 107.507(a) as a result of its failure to comply with the terms of its Agreement of Limited Partnership which requires Marathon to operate in conformity with the Regulations.

15 U.S.C. § 687c is the statutory provision dealing with remedies available for violations of the Act. It provides in pertinent part:

"(a) Grounds; jurisdiction of court Whenever, in the judgment of the [SBA], a licensee ... has engaged ... in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or of any rule or regulation under this chapter, ... the [SBA] may make application to the proper district court of the United States ... for an order enjoining such acts or practices, ..., and such courts shall have jurisdiction of such actions and, upon a showing by the [SBA] that such licensee ... has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order, shall be granted without bond." 15 U.S.C. § 687c(a).

As demonstrated by the record, and as conceded by Marathon, since 2000 to the present Marathon's percentage of capital impairment has far exceeded its maximum permitted capital impairment percentage as prescribed under 13 C.F.R § 107.1830(c). Therefore, I conclude that the SBA has made the necessary showing that Marathon is in violation of the Act and its Regulations. Accordingly, as specifically mandated under 15 U.S.C. § 687c(a) the SBA is entitled to a permanent injunction.¹

The question of significance which remains is whether the SBA should be appointed...