FILED
                                              United States Court of Appeals
                                                      Tenth Circuit

                                                     March 9, 2017
                                   PUBLISH        Elisabeth A. Shumaker
                                                      Clerk of Court
             UNITED STATES COURT OF APPEALS

                            TENTH CIRCUIT


SECURITIES AND EXCHANGE
COMMISSION,

      Plaintiff-Appellee,

v.                                           No. 16-4013

CURTIS L. DEYOUNG, an individual,

      Defendant-Appellee,

AMERICAN PENSION SERVICES,
INC., a Utah corporation,

      Defendant.

_______________________

RICHARD SEILER; MICHELLE
SEILER; CHRISTA ZARO,

      Intervenors-Appellants.

_______________________

FIRST UTAH BANK,

      Interested Party-Appellee,

and

DIANE THOMPSON,

      Receiver-Appellee.
                 Appeal from the United States District Court
                           for the District of Utah
                    (D.C. No. 2:14-CIV-00309-RJS-DBP)


Brent D. Wride (Mark W. Pugsley and Jared N. Parrish with him on the briefs), of
Ray Quinney & Nebeker P.C., Salt Lake City, Utah, for Richard Seiler, Michelle
Seiler, and Christa Zaro, Intervenors-Appellants.

Gary E. Doctorman (Matthew D. Cook and Emily D. Holt with him on the brief),
of Parsons Behle & Latimer, Salt Lake City, Utah, for First Utah Bank, Interested
Party-Appellee.

Mark R. Gaylord (Melanie J. Vartabedian with him on the brief), of Ballard Spahr
LLP, Salt Lake City, Utah, for Receiver-Appellee.

Theodore J. Weiman, Senior Counsel (Anne K. Small, General Counsel, Sanket J.
Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, and Tracey A.
Hardin, Assistant General Counsel, with him on the brief), Securities and
Exchange Commission, Washington, D.C., for Plaintiff-Appellee SEC.



Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.


SEYMOUR, Circuit Judge.

      The Securities and Exchange Commission (“SEC”) brought this civil action

against American Pension Services (“APS”), a third-party administrator of self-

directed individual retirement and 401(k) accounts (collectively “IRA Accounts”),

and its President and CEO, Curtis DeYoung. The SEC alleged that DeYoung

misappropriated $24 million in APS customer funds that APS had commingled in

a Master Trust Account at First Utah Bank (“First Utah”), custodian of the funds.


                                       -2-
The district court appointed a Receiver, who ultimately entered into a Settlement

Agreement with First Utah. The settlement included a Claims Bar Order, which

barred all other claims against First Utah relating to any IRA Accounts

established with APS. Three of the approximately 5,500 APS clients (collectively

“IRA Account Owners”) who had a financial stake in the receivership entity

intervened and contended that the court could not bar them from filing their own

claims against First Utah. The district court disagreed and approved the

settlement. Intervenors appeal, and we affirm.



                                         I

      In 1992, APS requested that First Utah act as custodian for the IRA

Accounts it held for the benefit of its IRA Account Owners because APS was not

a bank and did not qualify to serve as custodian under the Internal Revenue Code.

APS entered into a Custodian Agreement with First Utah that described each of

their duties and established a depository account titled the Master Trust Account.

APS’s CEO, Curtis DeYoung, was the sole signatory with authority to withdraw

money from the Master Trust Account.

      In 2009, APS and First Utah renewed the 1992 Custodian Agreement. Both

custodian agreements delegated to APS the duty to provide all accounting

services for IRA Account Owners with respect to their individual accounts with

APS. The agreements included an indemnity provision that arguably entitled First

                                        -3-
Utah and its officers and directors to indemnity from all claims in connection with

APS’s performance under the agreements. APS commingled all of the IRA

Account Owners’ cash into the Master Account at First Utah and maintained all

the records reflecting individualized ownership of the IRA Account Owner funds.

        The district court found that between 2000 and 2014, DeYoung

misappropriated approximately $24 million from the APS investors. In so doing,

DeYoung falsified “IRA account statements to assure that the funds missing from

the Master Accounts would reconcile with the cash APS reported to be in the IRA

Account Owner’s [sic] accounts.” 1 Aplt. App., vol. 3 at 475, D. Ct. Findings at

¶ 17.

        The SEC instituted this action against APS and DeYoung. The district

court subsequently appointed a receiver to gather and manage the assets of APS

and DeYoung. The Receiver was given the power to, among other things,

“pursue, resist and defend all suits, claims and demands which may now be

pending or which may be brought by or asserted against the Receivership

Estates.” 

20 (quoting Order Appointing Receiver).

        In May 2014, the Receiver initiated discussions with First Utah regarding

its potential liability with respect to the misappropriation of $24 million of IRA

        1
         Going forward, when referring to facts located in District Court’s
Findings of Fact, Conclusions of Law, and Order on Motions to Intervene and
Approve Settlement with First Utah Bank and for a Claims Bar Order, we will be
citing to the specific paragraph number in that document, which is located in
volume 3 of the Appellants’ Appendix at pages 470 to 498.

                                         -4-
Account Owner funds from the Master Account. The Receiver took depositions

and had access to APS’s records, “including documents, agreements, and records

pertaining to the relationship among APS, First Utah, and the IRA Account

Owners, and financial information regarding First Utah, including the Written

Agreement with the Federal Revenue Bank of San Francisco . . . and insurance

policies potentially insuring First Utah.” 

29. In furtherance of these

discussions, the Receiver provided First Utah with a draft complaint setting forth

the nature of the claims the Receiver intended to pursue against First Utah on

behalf of APS and for the benefit of the IRA Account Owners. All of the claims,

in some form, focused on First Utah’s “failure to take necessary steps to assure

the IRA Account Owners’ deposits were safe.” Aplt. App., vol. 2 at 346.

      First Utah responded by asserting numerous defenses and counterclaims it

intended to argue if the Receiver or any IRA Account Owner filed an action

against it based on its role as custodian, including fraudulent inducement by APS

and DeYoung, statute of limitations, rescission, comparative negligence, and First

Utah’s right to indemnification under the 2009 Agreement. The district court

noted that “[e]xtensive investigation, discovery and research were conducted

regarding the claims and defenses raised by First Utah, Everest [National

Insurance Company, First Utah’s insurance provider], and the Receiver on behalf

of APS.” D. Ct. Findings at ¶ 33. Moreover, the district court found the

following with regard to the Receiver’s claims against First Utah:

                                         -5-
              35. The Receiver’s claims on behalf of APS against First Utah
       are substantially identical to the claims the IRA Account Owners
       could assert against First Utah if filed separately. The defenses and
       counter claims asserted by First Utah in defense of such claims are
       substantially identical to the defenses and counter claims that could
       be asserted against the IRA Account Owners claims. The claims are
       all from the same loss, from the same entities, relating to the same
       conduct, and arising out of the same transactions and occurrences by
       the same actors.

              36. After several months of arm’s length negotiations between
       the Receiver on behalf of APS and First Utah, and Everest, including
       three days of mediation with a professional mediator, all under plain
       view of the SEC, the SEC, the Receiver, First Utah and Everest
       determined it to be in their respective best interests, to be fair and
       reasonable, and in the best interests of the Receivership Estate, to
       resolve the claims, defenses, and counter-claims by entering into the
       Settlement Agreement.

¶ 35, 36. The district court also noted the importance of all parties

reaching a settlement in the case:

               40. The claims, defenses and counter claims of the Receiver,
       the IRA Account Owners, the Receivership Estate and First Utah are
       complex and so inextricably intertwined such that a determination of
       each party’s liabilities and rights independently may be impossible
       or, at a minimum, impracticable without extensive litigation.

40.

       With respect to the financial condition of First Utah at the time of the

settlement negotiations, the district court found:

             51. The Receiver undertook an analysis of the financial
       condition of First Utah, including reviewing publicly available
       financial reports and meeting with and discussing First Utah’s
       financial condition with key bank personnel and the Receiver’s
       independent banking consultants.


                                          -6-
      52. First Utah is a highly regulated, small Utah community
bank with only seven branches, all in Salt Lake County, Utah. It has
limited capital that it can use to fund its portion of the settlement
amount. See Written Agreement; financial call reports publicly filed
by First Utah with the Utah Department of Financial Institutions.

       53. On February 23, 2009, First Utah became subject to a
Written Agreement with the Federal Reserve under the Board of
Governors Federal Reserve System, Docket No. 09-130-WA-RB-SM.
Under the Written Agreement, First Utah was required to increase its
capital. While First Utah was recently released from the Written
Agreement, it remains under a mandate of its federal regulators to
increase its capital. Given First Utah’s current capital structure, First
Utah’s contribution toward settlement, although limited, remains
substantial ($2.0 million) in relation to or as a percentage of its total
capital. The settlement contribution will also reduce its regulatory
capital.

       54. According to First Utah’s current capital structure, as
reflected in the financial call reports publicly filed by First Utah with
the Utah Department of Financial Institutions, the payment of $2
million by First Utah toward the settlement will reduce First Utah’s
capital.

       55. In reviewing First Utah’s financial condition, the totals of
the aggregated claims asserted by the Receiver ($24 million) and
indirectly by the Intervenors and the capital available from First Utah
to satisfy the maximum amount of such claims, would result in First
Utah being unable to pay the claims were the Receiver to prevail.

       56. It is also determined that all of the funds realistically
available from First Utah are being paid to the Receiver and devoted
to the claims—that is the entire $3 million from Everest and $2
million from First Utah, plus the additional consideration.

      57. Further, demanding a greater cash contribution from First
Utah would reduce capital to an unreasonably low level for
regulatory purposes which could negatively impact First Utah’s
financial stability.

      58. In contrast, if the Receiver were to pursue First Utah to

                                   -7-
       judgment, there is a very real risk that the capital now available for
       the settlement payments may be exhausted and/or substantially
       limited ultimately resulting in less potential recovery for the
       Receivership Estate and the ultimate distribution to IRA Account
       Owners.

¶ 51-58.

       The settlement exceeded $5 million and the bulk of it came from a $2

million contribution from First Utah and a $3 million contribution from Everest. 2

The settlement proceeds were to be distributed to the IRA Account Owners on a

pro rata basis. Finally, and most importantly for this case, the settlement was

conditioned on the district court entering a Claims Bar Order:

              63. The payments and releases in the Settlement Agreement
       are conditioned upon this Court’s entry of the Claims Bar Order,
       permanently barring or enjoining APS, the IRA Account Owners, and
       their respective affiliates from commencing or continuing any
       judicial, administrative, arbitration, or other proceeding and/or
       asserting or prosecuting any claims against First Utah, Everest, and
       their affiliates, arising out of, in connection with, or relating to any
       APS self-directed IRA.

63.

       As to the fairness of the settlement agreement, the district court made the

following findings:

             67. The Court scrutinized the proposed settlement very
       carefully and did not merely accept the representations of the
       Receiver.

       2
         The Everest insurance policy was a “wasting policy,” meaning that “if
th[e] case were to be litigated rather than settled, the Everest Policy would first
pay defense costs incurred by First Utah and only the remainder, if any, would be
available toward satisfaction of a judgment.” 

48.

                                          -8-
      68. Sophisticated parties spent the better part of one year in
arm’s-length negotiations under the view of the SEC.

       69. . . . [B]ecause of the financial condition of First Utah and
the very real possibility that protracted litigation may render First
Utah unable to satisfy a judgment, it is in the best interest to settle
rather than engage in protracted litigation, particularly in light of the
wasting nature of the Everest Policy.

      ....

       71. If the claims against First Utah were litigated or allowed to
be litigated as a class-action or through multiple individual cases,
First Utah would not be willing to settle this case. Moreover, the
Everest Policy would be used to pay First Utah’s defense costs until
the Everest policy limit was depleted and there would be little, if
any, insurance proceeds available to satisfy any judgments in favor
of the IRA Account Owners.

      72. Based on its existing capital structure, First Utah has
limited capital to satisfy multiple judgments or settlements with the
Receiver and/or IRA Account Owners.

      ....

       75. The SEC has independently approved the terms of the
settlement and expressed its view that the settlement is fair and
reasonable and in the best interest of the Receivership Estate and the
IRA Account Owners.

      76. Under the recent Utah Supreme Court case of Graves v. N.
Eastern Servs., 

, 

, the intentional
misconduct of DeYoung could be compared with the alleged
negligence of First Utah and the outcome could impair the ability of
the Receiver to recover the missing $24 Million or any significant
sum from First Utah.

       77. The complex claims and the rights and obligations of the
parties, including the IRA Account Owners and Intervenors, are so
inextricably intertwined that resolution of the claims independently,
as opposed to collectively, would be difficult and inefficient, would

                                    -9-
      substantially increase costs to the Receivership Estate, and would
      likely reduce the ultimate recovery to the IRA Account Owners.
      Specifically, the claims involve the same parties, the same conduct,
      the same actors, the same transactions and occurrences, the same
      existence of indemnity claims of First Utah against APS and the IRA
      Account Owners, and the claims are all from the same loss.

             ....

            83. If the settlement coupled with the Claims Bar Order is not
      approved, there is a substantial likelihood that the IRA Account
      Owners will receive a smaller recovery, if any, from First Utah and
      Everest.

             ....

             86. This settlement offers the highest potential recovery for the
      Receivership Estate and IRA Account Owners and best method to
      carry out the Court’s mandate to efficiently and economically
      administer the Receivership Estate.

             87. The Court finds the proposed Settlement Agreement is fair,
      just, and equitable and in the best interest of the Receivership Estate,
      including creditors of the Estate, such as the IRA Account Owners.

¶ 67-69, 71-72, 75-77, 83, 86-87.

      While over 99% of the roughly 5,500 IRA Account Owners approved of the

settlement, three did not. These three IRA Account Owners moved to intervene in

the action for the limited purpose of objecting to the Claims Bar Order insofar as

it prohibited them from filing a separate state court action against First Utah

arising out of the transactions between APS and First Utah. Notably, Intervenors

do not otherwise object to the settlement, which they concede is “fair, just,

equitable and reasonable except for the Claims Bar Order.” 

91. The


                                         -10-
district court made the following finding regarding the nature of their claims:

              45. Recently, three IRA Account Owners filed the
       Intervenors’ Motion, wherein they seek to assert claims directly
       against First Utah, which claims closely parallel the claims the
       Receiver identified and notified First Utah she would pursue unless a
       settlement could be reached. The claims these Intervenors wish to
       assert are all from the same loss, from the same entities, relating to
       the same conduct, and arising out of the same transactions and
       occurrences by the same actors.

45.

       The district court issued an order approving the settlement and entering the

bar order. Because the Claims Bar Order operated as an injunction, it was

immediately appealable under 28 U.S.C. § 1292(a)(1). Moreover, the district

court certified its order as a final, appealable judgment pursuant to Rule 54(b) of

the Federal Rules of Civil Procedure.



                                          II

       Intervenors appeal, contending (1) the Anti-Injunction Act prohibits an

injunction in this case; (2) the district court lacked authority to issue the Claims

Bar; and (3) the Claims Bar Order rests on unsupported factual findings. We

address each argument in turn.

1. The Anti-Injunction Act

       Intervenors first argue that the “Claims Bar Order, which permanently

enjoins the Account Owners from going forward with their case against First


                                         -11-
Utah, is an impermissible injunction against a state court action.” Aplt. Br. at 7.

Whether the Anti-Injunction Act prohibits the Claims Bar Order is a question of

law we review de novo. Ambort v. United States, 

, 1140 (10th Cir.

2004).

         The Anti-Injunction Act provides:
         A court of the United States may not grant an injunction to stay
         proceedings in a State court except as expressly authorized by Act of
         Congress, or where necessary in aid of its jurisdiction, or to protect
         or effectuate its judgments.
28 U.S.C. § 2283. The Intervenors contend that the Act is “an absolute

prohibition against enjoining state court proceedings, unless the injunction falls

within one” of three exceptions listed in the Act. Aplt. Br. at 7 (quoting Atl.

Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 

, 286 (1970)).

They then spend much of their brief arguing that the exceptions to the Anti-

Injunction Act do not apply in this case and therefore, they conclude, the Act

must apply. The Anti-Injunction Act, however, does “not preclude injunctions

against the institution of state court proceedings, but only bar[s] stays of suits

already instituted.” Dombrowski v. Pfister, 

, 484 n.2 (1965). It is

undisputed that no state court action was pending in the instant matter at the time

the district court issued its injunction.

         Intervenors counter in their reply brief that the only reason there was no

state court action pending was because the district court entered a preliminary

injunction forbidding the IRA Account Owners from filing their lawsuits against

                                            -12-
First Utah, concluding that the Anti-Injunction Act is therefore applicable. But

Intervenors cite no authority for this argument. The language of the Act is clear

and so is the precedent interpreting it: the Act does not apply unless there is a

state court proceeding currently in progress. See 17 C HARLES A LAN W RIGHT &

A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 4222 at 64 n.19 (citing

cases). Accordingly, the Claims Bar Order does not violate the Anti-Injunction

Act. 3

2. The District Court’s Authority to Enter the Claims Bar Order

         Intervenors maintain the district court lacked authority to enter the Claims

Bar Order, asserting in part that the Receiver lacked standing to bring the claims

of investors. Whether a party has standing is a legal question we review de novo.

Lippoldt v. Cole, 

, 1216 (10th Cir. 2006).

         [T]o satisfy Article III’s standing requirements, a plaintiff must show
         (1) it has suffered an “injury in fact” that is (a) concrete and
         particularized and (b) actual or imminent, not conjectural or
         hypothetical; (2) the injury is fairly traceable to the challenged action
         of the defendant; and (3) it is likely, as opposed to merely


         3
         Intervenors also contend in their reply brief that because the preliminary
injunction was issued without notice or an opportunity to be heard, the district
court violated their due process rights. This due process argument was
completely absent from Intervenors’ opening brief, and “[i]t is well settled that
‘[t]his court does not ordinarily review issues raised for the first time in a reply
brief.’” United States v. Gordon, 

, 1150 (10th Cir. 2013) (quoting
Stump v. Gates, 

, 533 (10th Cir. 2000)). “Even then, the arguments
are presented in a perfunctory and conclusory fashion, and we are rightly hesitant
to definitively opine on such legally significant issues when they have received
such cursory treatment.” 

to address the due process argument.

                                           -13-
      speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 

, 180-81

(2000).

      For their standing argument, Intervenors maintain that “[t]he Account

Holders’ claims belong exclusively to [the individual Account Holders] and

cannot be asserted by the Receiver.” Aplt. Br. at 16. As support, they rely on

Liberte Capital Group, LLC v. Capwill (Liberte II), 248 F. App’x 650 (6th Cir.

2007) (unpublished), for the proposition that a “receiver lacks standing to

institute an action on behalf of investors in the corporation.” Aplt. Br. at 17

(quoting Liberte II, 248 F. App’x at 656 (citing 13 J AMES W M . M OORE ET AL .,

M OORE ’ S F EDERAL P RACTICE § 66.08[1][b] (3d ed. 2005))). We disagree with

Intervenors’ proposition that Liberte II is dispositive, or even relevant.

      Liberte II involved Liberte Capital Group and Alpha Capital Group, both of

which marketed viatical life insurance policies 4 to investors. Liberte Capital

Group, LLC v. Capwill (Liberte I), 

, 547 (6th Cir. 2006). Both

Alpha and Liberte used Viatical Escrow Services (VES) to provide trustee

services in handling monies received from investors to buy policies and to service



      4
         A viatical life insurance policy is an investment where one person
purchases another person’s life insurance policy at a price that is less than the
death benefit of the policy, and the purchaser collects the death benefit when the
seller dies. See Joseph M. Belth, Viatical and Life Settlement Transactions,
C ONTINGENCIES , Mar./Apr. 2002, at 22-25.

                                         -14-
premium payments over time. 

company, Capwill Fund Leasing

(CFL), in its capacity as escrow agent and fiduciary, invested the monies VES

obtained. 

Liberte sued VES and CFL, alleging that they

misappropriated escrow funds. 

court appointed a receiver ‘to

oversee and to administer the business and assets of VES and CFL . . . [and] to

take and maintain exclusive and complete custody, control and possession of all

the assets belonging to VES and CFL.’” Liberte II, 248 F. App’x at 652.

      In separate matters, a few individual investors filed arbitration claims

against the broker-dealers who sold them Liberte viaticals. 

alleged the broker-dealers’ representatives fraudulently induced them to purchase

Liberte viaticals. 

these investors intervened in the receivership

action and sought a declaration that their arbitration claims belonged to them, not

to the receivership estate. The receiver argued that any proceeds recovered by the

individuals were assets of the receivership estate. 

The investors

countered that the receiver lacked standing to bring such claims. 

court disagreed and granted summary judgment to the receiver on the merits. 

665.

      The Sixth Circuit reversed on standing, emphasizing that the receiver could

not “show that the receivership entities suffered an ‘injury in fact’ that [was]

‘fairly traceable’ to the actions of [the broker-dealers].” 

“Nor [could]

the [receiver] show that the receivership entities ha[d] a ‘personal stake’ in the

                                         -15-
outcome of the controversy involving the [broker-dealers].” 

Accordingly, the court held the receiver lacked standing to sue. 

As

the Sixth Circuit explained three years later:

      The Receiver's standing problem in Liberte was that none of the
      receivership entities—VES, CFL, Capwill or Liberte—would have
      had standing to sue Liberte's brokers for the misrepresentations the
      brokers made to Liberte's investors, because none of the entities
      would have been able to claim any tangible injury traceable to the
      brokers' misrepresentations to the investors. Because the receivership
      entities all would have lacked standing, and because of the rule that
      receivers' rights are limited to those of the receivership entities, the
      Receiver also lacked standing.
Wuliger v. Mfr’s Life Ins. Co., 

, 794 (6th Cir. 2009).

      In contrast to the receiver in Liberte II, the Receiver in this case has

standing to sue First Utah because the receivership entity, APS, had standing to

bring such an action. For example, the Receiver, in negotiating the settlement on

behalf of APS, drafted a complaint against First Utah alleging that the IRA

Account Owners “agreed to have the Bank act as custodian/trustee of their IRA

accounts, while APS provided administrative services to their self-directed IRAs.”

Aplt. App., vol. 2 at 344-45. It further alleged that First Utah had contractual and

fiduciary duties which it violated, leading to the misappropriation of

approximately $24 million from the commingled master trust account into which

APS had deposited the funds. 

By delegating its custodial and

administrative duties to DeYoung, the draft complaint alleged, DeYoung was able

to “fraudulently pilfer[] millions from the commingled master trust accounts.” 

First Utah performed their duties, they would have discovered the

misappropriation.” 

the Receiver has standing because APS

suffered an injury in fact (its own insolvency), which is fairly traceable to First

Utah because allegedly First Utah negligently performed its duties as custodian,

and the wrong can be redressed by a court order requiring First Utah to reimburse

APS for First Utah’s negligence.

      We next turn to Intervenors’ contention that the district court erred by

entering the Claims Bar Order. In challenging the propriety of the bar order,

Intervenors have “the weighty burden of showing an abuse of discretion.”

Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 

, 1484 (10th Cir. 1983) (reviewing for abuse of discretion district court’s

order staying all claims against equity receiver). “It is generally recognized ‘that

the district court has broad powers and wide discretion to determine . . . relief in

an equity receivership.’” SEC v. Vescor Capital Corp., 

, 1194

(10th Cir. 2010) (citation omitted). “This discretion derives from the inherent

powers of an equity court to fashion relief.” 

no cases from this court directly addressing a Claims Bar Order

like the one at issue here. As the Fifth Circuit has recognized, “because this is a

case in equity, it is neither surprising nor dispositive that there is no case law

directly controlling the district court’s bar order.” SEC v. Kaleta, 530 F. App’x

360, 362 (5th Cir. 2013) (unpublished); see also 

(“That

                                         -17-
the appealed order is apparently unique in its context is not, of course,

dispositive.”). Although we have not addressed the issue, we find the Fifth

Circuit’s treatment of a claims bar in SEC v. Kaleta persuasive.

      In Kaleta, the district court approved a settlement between a court-

appointed receiver and third parties who were closely affiliated with the

receivership entities. 530 F. App’x at 361-62. As part of the settlement, the

district court entered a Claims Bar Order enjoining other investors from

commencing any legal action against the third party entities arising from the

underlying fraud. 

A subset of investors challenged the district court’s

entry of the bar order, but the Fifth Circuit affirmed. 

a

district court has wide discretion to determine the appropriate relief, the court

reviewed the factors the district court considered. It noted that there would have

been no settlement without the bar order and that “the settlement expressly

permit[ted] Intervenors and other investors to pursue their claims by

‘participat[ing] in the claims process for the Receiver’s ultimate plan of

distribution for the Receivership Estate.’” 

in original).

      Similarly, in this case, the district court carefully evaluated numerous

factors that led to its decision to enter a claims bar. First, like the third parties in

Kaleta, the court determined that First Utah would not have settled without the

Claims Bar Order. Second, as noted above, the court found that First Utah’s

liability was not the only factor the Receiver considered and that “because of the

                                           -18-
financial condition of First Utah and the very real possibility that protracted

litigation may render First Utah unable to satisfy a judgment, it [was] in the best

interest to settle rather than engage in protracted litigation.” D. Ct. Findings at

¶ 69. Third, the court considered that First Utah was settling to avoid protracted

litigation and that First Utah would not be willing to admit any wrongdoing if

claims against it were allowed to be litigated as a class action or through multiple

individual cases.

      Fourth, $3 million of the $5 million settlement amount came from First

Utah’s insurance policy with Everest National Insurance Company, and if the case

against First Utah were to be litigated, the Everest policy would first be used to

pay First Utah’s defense costs, which would most likely exhaust the policy and

reduce the amount that would otherwise be available to the IRA Account Owners.

Fifth, the district court noted that approximately “99.98% of the IRA Account

Owners did not object” to the settlement. 

92. Thus, the vast majority of

individuals who would be affected by the settlement believed it to be fair. The

court also considered that victory in a lawsuit against First Utah was not certain

because First Utah would respond by “asserting numerous defenses and counter

claims . . . if the Receiver or any other person filed an action based on its role as

custodian of APS and the IRA Accounts, including statute of limitations,

fraudulent inducement, rescission, comparative negligence.” 

32. And,

most importantly, First Utah had a right to indemnification from APS under the

                                          -19-
1992 and 2009 Custodian Agreements. 

provision could

force APS to indemnify First Utah for claims brought against it by IRA Account

Owners, which would reduce the amount the IRA Account Owners could recover

from APS.

      Accordingly, the district court found that the settlement offered the highest

potential recovery for the Receivership Estate and the IRA Account Owners, and

that the Claims Bar Order was necessary to that settlement. While a Claims Bar

Order may not be appropriate in all cases, we are persuaded that the district court

did not abuse its discretion by entering one in this case. 5

3. The District Court’s Factual Findings

      Intervenors’ last objection to the Claims Bar Order is that it rests on

unsupported factual findings. Specifically, Intervenors object only to the

following two findings of fact:

      5
         We are further persuaded by the fact that numerous district courts have
entered a claims bar order similar to the one entered in this case. See, e.g., SEC v.
Alleca, 1:12-cv-3261-WSD, 

(N.D. Ga. Oct. 15, 2015); SEC v.
Stanford Int’l Bank, Ltd, No. 3:09-CV-0298-N, 

(N.D. Tex.
Sept. 23, 2015); SEC v. Kaleta, No. 4:09-3674, 

(S.D. Tex. Feb.
7, 2012); Harmelin v. Man Fin. Inc., Nos. 06-1944, 05-2973, 

(E.D. Pa. Dec. 28, 2007); Commodity Futures Trading Comm’n v. Equity Fin.
Grp., Civil No. 04-1512 (RBK), 

(D.N.J. July 23, 2007); SEC v.
Capital Consultants, LLC, No. Civ.00-1290-KI, 

(D. Or. Mar.
8, 2002). Moreover, the Sixth Circuit, in Gordon v. Dadante, 336 F. App’x 540,
551 (6th Cir. 2009), affirmed a settlement similar to the one here that included a
bar order, although the authority of the district court to enter such an order was
not a basis for the appeal.


                                          -20-
             56. It is also determined that all of the funds realistically
      available from First Utah are being paid to the Receiver and devoted
      to the claims—that is the entire $3 million from Everest and $2
      million from First Utah, plus the additional consideration.
            57. Further, demanding a greater cash contribution from First
      Utah would reduce capital to an unreasonably low level for
      regulatory purposes which could negatively impact First Utah’s
      financial stability.

¶ 56-57. “A finding of fact is clearly erroneous if it is without factual

support in the record or if, after reviewing all the evidence, we are left with a

definite and firm conviction that a mistake has been made.” Mathis v. Huff &

Puff Trucking, Inc., 

, 1305 (10th Cir. 2015) (citation omitted). That

standard has not been met here.

      As we set out fully above, the district court made extensive findings

regarding First Utah’s financial status determining, in particular, that “[t]he

Receiver undertook an analysis of the financial condition of First Utah, including

reviewing publicly available financial reports and meeting with and discussing

First Utah’s financial condition with key bank personnel and the Receiver’s

independent banking consultants.” D. Ct. Findings at ¶ 51. The court emphasized

that First Utah is “a highly regulated, small Utah community bank” and “has

limited capital that it can use to fund its portion of the settlement amount.” 

52. Notably, First Utah “remains under a mandate of its federal regulators to

increase its capital.” 

53. Moreover, the district court found that, without

the settlement, the Everest Policy, which accounts for $3 million of the


                                         -21-
settlement, “would [have been] used to pay First Utah’s defense costs until the

Everest policy limit was depleted and there would be little, if any, insurance

proceeds available to satisfy any judgments of the IRA Account Owners.” 

71.

        The district court further stated that “[b]ased on its existing capital

structure, First Utah has limited capital to satisfy multiple judgments or

settlements with the Receiver and/or IRA Accounts Owners.” 

72. Lastly,

further supporting the court’s findings in paragraphs 56 and 57, the Settlement

Agreement discusses the Receiver’s investigation into First Utah’s financial

situation and her conclusion that First Utah’s $2 million contribution was the

most it could pay without risking undercapitalization. See Aplt. App., vol. 2 at

183. Although Intervenors’ expert contended to the contrary in his Declaration,

concluding that First Utah could have paid an additional $1 to $3 million without

the risk of undercapitalization, the district court had the exclusive function of

determining the weight to give to the expert’s Declaration. 6 See Holdeman v.

Devine, 

, 1192 (10th Cir. 2009). Thus, it was perfectly acceptable

for the district court to disregard the testimony of Intervenors’ expert.



        6
         First Utah noted that Intervenors never moved to have their expert, Mr.
McGregor, qualified as such and contends the McGregor Declaration did not meet
the requirements of expert testimony under FRE 702. Mr. McGregor’s
classification as an expert does not impact our determination that the district court
was free to disregard his testimony.

                                           -22-
      Given all of these facts, we are not persuaded that the two disputed findings

of fact are clearly erroneous. Moreover, Intervenors’ contention that “without

[findings 56 and 57], there is no justification for the extraordinary relief granted”

by the district court, Aplt. Br. at 22, is simply incorrect. Even without those two

findings, there are more than enough factual findings to support the district

court’s order approving the settlement. As First Utah pointed out in its brief,

      the need to preserve the assets and operational capacity of the
      defendant so as not to collapse a financial institution or other
      defendant are proper considerations of the Court. See Baker v. Wash.
      Mut. Fin. Grp., LLC, 193 F. App’x 294, 297-98 (5th Cir. 2006).
      Intervenors do not assert that First Utah could pay more while
      preserving its operational capacity or that its regulators would even
      approve a higher settlement. The Intervenors’ allegation that First
      Utah could pay more, even if true, does not support overturning the
      settlement.

Aple. First Utah Br. at 24.

      We AFFIRM.




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