KIMBA M. WOOD, District Judge.
On February 24, 2011, Anthony Paduano, Esq., the court-appointed receiver ("Receiver") for Plaintiffs Cobalt Multifamily Investors I LLC, Cobalt Multifamily CO. I, LLC, Cobalt Capital Funding, LLC, and Vail Mountain Trust ("the Cobalt Entities") moved for summary judgment against Arthur Landsman, Michael Eisemann, Susan Kagan, John Dundon (the "individual defendants"), and Comvest Financial Corporation (collectively, "Defendants").
The Receiver moved for summary judgment on (1) his first cause of action, against Defendants for violations of Section 12(a)(1) of the Securities Act by selling unregistered securities, and (2) his third cause of action against Defendants for disgorgement of commissions paid to Defendants for their sale of unregistered securities, and for additional disgorgement under the theory that Defendants have been unjustly enriched.
On September 9, 2011, Magistrate Judge Michael H. Dolinger issued a Report and Recommendation (the "R & R"), familiarity with which is assumed. In the R & R, Judge Dolinger recommended that (1) summary judgment on the Receiver's first cause of action for sale of unregistered securities be granted against the individual defendants, but denied against Comvest Financial Corporation; and (2) summary judgment on the Receiver's third cause of action be granted as against the individual defendants, who shall be ordered to disgorge the commissions that they received for their sale of unregistered securities; but (3) summary judgment be denied against Defendant for additional disgorgement on the theory of unjust enrichment.
The R & R informed the parties that, pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Civil Procedure 72(b), they had fourteen days from service of the R & R to file any objections. No objections have been filed to the Report, and the time to object has expired.
When no objections are filed to an R & R, a district court need only satisfy itself that there is no "clear error on the face of the record" in order to accept the recommendation. Fed.R.Civ.P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).
As noted in the R & R, the parties' failure to object to the R & R also precludes appellate review of this Court's decision to adopt the R & R. The Second Circuit has held that failure to timely object to a magistrate judge's report and recommendation operates as a waiver of appellate review of the district court's ultimate order. See DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir.2000) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989)). The Supreme Court has also upheld this practice, "at least when the parties receive clear notice of the consequences of their failure to object." Small, 892 F.2d at 16 (citing Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)).
The Court has reviewed the R & R and finds it to be well-reasoned and free of any clear error on the face of the record.
The Court thus adopts the R & R in its entirety. Accordingly, (1) summary judgment on the Receiver's first cause of action for sale of unregistered securities is GRANTED against the individual defendants and denied against Comvest; and (2) summary judgment on the Receiver's third cause of action is GRANTED against the individual defendants, who are ordered to disgorge the commissions that they received for their sale of unregistered securities;
The Receiver shall submit a status letter to the Court by October 12, 2011 outlining how he intends to proceed with the case, and whether the case should be closed.
The Clerk of Court shall terminate Docket Entry Number 139.
SO ORDERED.
MICHAEL H. DOLINGER, United States Magistrate Judge
Anthony Paduano, Esq., is the courtappointed receiver for plaintiffs Cobalt Multifamily Investors I, LLC, Cobalt Multifamily Co. I, LLC, Cobalt Capital Funding, LLC, and Vail Mountain Trust, which we refer to collectively as "the Cobalt entities." The receiver was appointed after the Securities and Exchange Commission (the "Commission") initiated a lawsuit against the three principals of Cobalt — Mark Shapiro, Irving Stitsky and William Foster — for securities fraud. The receiver brought this action to recover commissions that were paid to Cobalt sales employees while the fraud was ongoing.
On February 24, 2011, the receiver moved for summary judgment against Arthur Landsman, Michael Eisemann, Susan Kagan, John Dundon (together, the "individual defendants"), and Comvest Financial Corporation. All other defendants have settled or have had judgments entered against them. (Decl. of Anthony Paduano, Esq. ("Paduano Decl.") p. 2 n. 1, Feb. 23, 2011).
On March 27, 2006, the Commission filed an enforcement action that arose out of a fraudulent scheme perpetrated by Shapiro, Stitsky and Foster. (See Paduano Decl. ¶ 2). The receiver was appointed on a temporary basis the next day, see Sec. & Exch. Comm. v. Cobalt Multifamily Investors I, LLC, 06-cv-236 (Order, 1-3, Mar. 28, 2006), and his appointment was made permanent on July 20, 2006. See id. (Order, 1 July 20, 2006). Shapiro and Stitsky were both sentenced to 85 years in prison, and Foster was sentenced to three years in prison plus three years of supervised release. See United States v. Shapiro, 06cr-357 (Shapiro J., 2, Oct. 21, 2010; Foster J., 4, Sept. 22, 2010; Stitsky J., 2, July 7, 2010); (Paduano Decl. Exs. D-F).
The receiver brought this lawsuit in 2006, asserting three claims against defendants. (Compl. ¶¶ 91-102, Aug. 11, 2006). Defendants are sales employees of the Cobalt
The receiver now moves for summary judgment against defendants on the first and third causes of action. (Pl.'s Mem. of Law in Support of Mot. for Summ. J. at 1, Feb. 24, 2011). With the exception of pro se defendant Michael Eisemann, who sent a letter to the court in opposition, defendants have not responded to the receiver's motion.
We first discuss the admissibility of defendant Eisemann's letter and then analyze the merits of the receiver's motion.
Defendant Eisemann's letter opposing this motion does not meet the standards for admissibility set forth in Federal Rule of Civil Procedure 56 or Local Civil Rule 56, does not provide admissible evidence controverting the receiver's motion, and attempts to raise defenses that are without merit. Accordingly, we recommend that the letter be disregarded.
Courts afford pro se litigants greater latitude than represented parties. See, e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) ("submissions of a pro se litigant must be construed liberally and interpreted `to raise the strongest arguments that they suggest'" (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006))). This solicitude is particularly important in the summary judgment context, in which pro se litigants might be unaware of the deleterious effects of failing to respond adequately to a summary-judgment motion. See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir.2010). Accordingly, when a party opposing a pro se litigant moves for summary judgment, it must notify that litigant of both the potential repercussions of a failure to respond as well as the formal requirements of any such response. See id.; S.D.N.Y. Local Civil Rule 56.2. Eisemann was so notified here. (See Notice to Pro Se Litigant, Feb. 24, 2011).
In pertinent part, Eisemann's letter reads:
(Letter to the Court from Michael Eisemann, received Mar. 18, 2011).
The improper form of Eisemann's letter renders it inadmissible. In order to be admissible, a letter must either be sworn and based on personal knowledge, see Beyah v. Coughlin, 789 F.2d 986, 989-90 (2d Cir.1986), or declared under penalty
Eisemann's letter is also substantively deficient. A party opposing summary judgment "is required to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (internal quotation marks omitted). The opposing party must demonstrate more than "[t]he mere existence of a scintilla of evidence in support" of his position; he "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Antunes v. Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 2011 WL 1990872, *3 (S.D.N.Y. May 19, 2011) (internal citations and quotation marks omitted). Eisemann provides only a conclusory allegation that there is a question of fact that should be tried by jury. (See Eisemann letter). Accordingly, his letter does not fulfill the substantive requirements for opposition to a summary-judgment motion.
Finally, we note that the defenses that Eisemann attempts to raise are without merit. Giving Eisemann an appropriate amount of latitude, we interpret his letter to introduce two issues relating to the receiver's first cause of action: first, that he should escape liability because he acted in reliance on the advice of Cobalt's counsel; second, that he did not have the requisite state of mind to be liable for selling unregistered securities. These defenses would have no merit even if they were properly raised, since selling unregistered securities is a strict liability offense. See Sec. & Exch. Comm. v. Cavanagh, 2004 WL 1594818, *17 (S.D.N.Y. July 16, 2004) ("the advice of counsel defense ... provides no protection against a violation of a strict liability statute like Section 5"), aff'd, 445 F.3d 105 (2d Cir.2006); Sec. & Exch. Comm. v. U.N. Dollars Corp., 2003 WL 192181, *2 (S.D.N.Y. Jan. 28, 2003) ("[S]cienter is not an element of a Section 5 violation") (citing cases) aff'd sub nom. Sec. & Exch. Comm. v. Harris, 96 Fed. Appx. 778 (2d Cir.2004).
Eisemann's letter is deficient in form and substance, and the defenses he attempts to raise are without merit. Accordingly, this court should not hesitate to disregard the letter when evaluating the receiver's motion. See LaSalle Bank Nat. Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir.2005) ("The evidence considered on summary judgment must generally be admissible evidence ... a district court has wide discretion in determining
Summary judgment will be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial burden of informing the court of the basis for his motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making this judgment, all evidence must be viewed in the light most favorable to the non-moving party, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004), and the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.2004).
If the non-moving party has the burden of proof as to a particular issue, the movant may satisfy his initial burden by demonstrating the absence of evidence supporting an essential element of the nonmoving party's claim. See, e.g., Repp v. Webber, 132 F.3d 882, 890 (2d Cir.1997); Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). If the movant fails to meet his initial burden, the motion will fail even if the opponent does not submit any evidentiary matter to establish a genuine factual issue for trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); BBS Norwalk One, Inc. v. Raccolta, Inc., 117 F.3d 674, 677-78 (2d Cir.1997).
When, as here, a summary judgment motion is unopposed, the movant must nonetheless meet his burdens. See Vt. Teddy Bear, 373 F.3d at 244. The motion may fail if the moving party's submission fails to establish that no material issue of fact remains for trial, Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001), or if the "undisputed facts fail to show that the moving party is entitled to judgment as a matter of law." See Vt. Teddy Bear, 373 F.3d at 244. The non-moving party is not required to defend itself against "an insufficient showing." Amaker, 274 F.3d at 681 (quoting Adickes, 398 U.S. at 161, 90 S.Ct. 1598).
The receiver alleges that defendants violated Section 12(a)(1) of the Securities Act. (Compl. ¶¶ 91-94). Section 12(a)(1) establishes civil liability for breach of Section 5 of the Securities Act, see 15 U.S.C. § 77l, which prohibits the use of the mails or means of interstate commerce to offer or sell a security unless it is registered with the Commission or is exempt from registration. See 15 U.S.C. § 77e.
A prima facie case for violation of Section 5 of the Securities Act is comprised of three elements: "(1) [t]hat the
It is undisputed that each defendant fulfills the first element. Each defendant solicited investors; defendants Kagan, Dundon, Eisemann, and Landsman each "made telephone calls ... to potential investors to invite them to purchase" Cobalt securities. (Paduano Decl. ¶ 12). Dundon also solicited investors on behalf of Comvest, and Comvest received commissions for the successful sales. (Id. at ¶ 38). It is also clear that the securities were unregistered, since Cobalt's offering materials indicated as much. The securities were offered through private placement memoranda (each a "PPM") dated December 29, 2003, July 1, 2004, and December 15, 2004. (Paduano Decl. ¶¶ 13-14). Each PPM expressly stated that the securities it offered were unregistered. (See id. Ex. I (Dec. 2004 PPM), ii; id. Ex. J (July 2004 PPM), ii; id. Ex. K (Dec.2004 PPM), ii).
Finally, each individual defendant meets the third element of a Section 5 violation, but Comvest does not. As noted above, Defendants Kagan, Dundon, Eisemann, and Landsman each "made telephone calls ... to potential investors to invite them to purchase" Cobalt securities. (Paduano Decl. ¶ 12). The third element of a Section 5 violation, requiring the use of interstate means in connection with the sale or offering of a security, "is broadly construed to include ... intrastate telephone calls." Sec. & Exch. Comm. v. Softpoint, Inc., 958 F.Supp. 846, 861 (S.D.N.Y. 1997) affd, 159 F.3d 1348 (2d Cir.1998). Therefore, Kagan, Dundon, Eisemann, and Landsman meet the jurisdictional requirement. With regard to Comvest, however, it is established only that Dundon "solicited investors" while acting as Comvest's representative. (Id. at ¶ 38). The receiver has not established that Dundon made calls or used other means of interstate commerce while acting on behalf of Comvest. Given the mandate to construe evidence presented on summary judgment in favor of the nonmoving party, we recommend that this court find that Comvest does not meet the jurisdictional requirement of Section 5 for purposes of this motion.
The receiver alleges that the Cobalt securities were not exempt from the registration requirement, but he appears to misapply the exemption criteria. We first discuss the application of Regulation D to the Cobalt securities before turning to the receiver's failure to demonstrate the absence of a registration exemption.
To be exempt from the registration requirement under Rule 505, an offering must have an aggregate offering price not exceeding five million dollars and must be purchased by no more than thirty-five purchasers. 17 C.F.R. § 230.505. Rule 506 has no aggregate offering price cap, and exempts offerings sold to thirty-five or fewer purchasers if "each purchaser who is not an accredited investor either alone or with his purchaser representative(s) has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment." 17 C.F.R. § 230.506. Importantly, the calculation of the number of purchasers under Rules 505 and 506 excludes accredited investors. 17 C.F.R. § 230.501(e).
The receiver indicates that $22 million of securities were sold to more than thirtyfive investors, "many" of whom were not accredited. (Paduano Decl. ¶¶ 21-22). But the receiver does not specify how much money was invested in each offering, and he does not give an exact count of the unaccredited investors. Accordingly, it is unclear whether the December 2003 offering exceeded $5 million,
After the receiver made a prima facie case for a violation of Section 5 by the individual defendants, he ultimately failed to demonstrate that Cobalt securities were required to be registered. We nonetheless recommend that the receiver's motion be granted with regard to the individual defendants for the reasons set forth below.
Once the receiver established his prima facie case for a violation of Section 5, the individual defendants bore the burden of demonstrating that a registration exemption applied. See Sec. & Exch. Comm. v. Empire Dev. Group, LLC, 2008 WL 2276629, *7 (S.D.N.Y. May 30, 2008) ("If plaintiff makes out a prima facie case for a Section 5 violation, defendants then bean the burden of proving the applicability of an exemption") (internal quotation marks
The receiver also bears the burden of demonstrating that there exists no genuine dispute as to any material fact. Amaker, 274 F.3d at 681. A colorable argument could be made that the receiver, by stating that the Cobalt securities were required to be registered but failing to effectively support that statement failed to meet this burden. Ultimately, we believe this argument must fail. "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir.2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Given the individual defendants' burden to prove that an exemption applies and their failure to rebut the receiver's prima facie case of a violation of Section 5, a reasonable jury could not find for the individual defendants. See Universal, 475 F.Supp.2d. at 426 (concluding that summary judgment was appropriate when no reasonable factfinder could find that unregistered securities were subject to an exemption).
It is true that summary judgment standards do not embrace default judgment principles, Vt. Teddy Bear, 373 F.3d at 242, and a party should not be penalized for failing to oppose a motion if the moving party does not present sufficient evidence. Amaker, 274 F.3d at 681 (quoting Adickes, 398 U.S. at 161, 90 S.Ct. 1598). But it does not follow that failing to respond to a motion for summary judgment has no negative repercussions; rather, it is a "perilous path." Amaker, 274 F.3d at 681. Though it appears conceivable that the individual defendants may have been able to successfully defend themselves on this motion, they chose not to do so and therefore failed to rebut the receiver's prima facie case. Accordingly, we recommend that summary judgment on the receiver's first cause of action be granted against the individual defendants and denied against Comvest.
The receiver seeks to recover the commissions that were paid to defendants for their sale of unregistered securities. (See Paduano Decl. ¶ 2; Pl.'s Mem. of Law, p. 8). Disgorgement is an "equitabl[e] remed[y] premised on the powers and discretion of the Court to prevent unjust gain and to deter others." Universal, 475 F.Supp.2d at 434. It is wellsettled that disgorgement is an appropriate remedy for breach of federal securities laws. See, e.g., Sec, & Exch. Comm. v. Zwick, 2007 WL 831812, *22 (S.D.N.Y. Mar. 16, 2007) aff'd, 317 Fed.Appx. 34 (2d Cir.2008). This is true even when the defendants may not have acted with scienter, as is the case here; disgorgement is "remedial and not punitive." See Sec. & Exch. Comm. v. World Gambling Corp., 555 F.Supp. 930, 934 (S.D.N.Y.1983) (ruling that disgorgement, but not a permanent injunction, was appropriate when the owner and controlling officer of a firm were unaware that a principle trader was selling unregistered securities) (internal citations removed); Sec. & Exch. Comm. v. DiBella, 409 F.Supp.2d 122, 135 (D.Conn. 2006) (finding that disgorgement was proper where the Commission "adequately pled
Furthermore, this court has indicated that the receiver is an appropriate party to receive the disgorged commissions. See Cobalt MultiFamily Investors I, LLC v. Lisa Arden, 2010 WL 3791040, *3 (S.D.N.Y. Sept. 9, 2010) ("The salespeople are plainly not entitled to retain such commission payments, and the receiver appears to be a proper person to pursue those funds on behalf of the Cobalt estate, which in turn will presumably be held responsible for the ultimate reimbursement of the shareholders"), adopted 2010 WL 3790915 (S.D.N.Y. Sept. 28, 2010); see also Hays v. Adam, 512 F.Supp.2d 1330, 1343 (N.D.Ga.2007) ("[if] a receiver can recover Ponzi scheme profits from investors who have done nothing wrong, he would also be entitled to recover Ponzi scheme profits held by sales agents like the defendants, who illegally sold unregistered securities, and without whose efforts the scheme could not have occurred").
We have reviewed the documentation upon which the receiver based his calculation of disgorgement amounts for the individual defendants (see Paduano Decl. Exs. P (Eisemann payments), S (Kagan payments), V (Dundon payments), and X (Landsman payments)), and have confirmed that the disgorgement amounts proposed by the receiver comport with the documentation. We are not obligated to inquire further into these figures. See Zwick, 2007 WL 831812 at *22 ("The disgorgement amount need only be a reasonable approximation of profits causally connected to the violation ... Any risk of uncertainty in calculating disgorgement should fall on the wrongdoer whose illegal conduct created that uncertainty") (internal citation and quotation marks omitted). Accordingly, we recommend defendant Eisemann be ordered to disgorge $39,115.59, defendant Landsman be ordered to disgorge $13,425.00, defendant Kagan be ordered to disgorge $71,234.45, and defendant Dundon be ordered to disgorge $2,223.00. As discussed above, the receiver did not demonstrate that Comvest meets the jurisdictional requirement for a Section 5 violation; consequently, we recommend that the receiver's motion for summary judgment on his first cause of action be denied with regard to Comvest.
The receiver also seeks recovery under the theory that defendants were unjustly enriched by receiving commissions from the Cobalt entities. To establish unjust enrichment under New York law, a plaintiff must show that the defendant was enriched at the plaintiff's expense, and that restitution is required "in equity and good conscience." Design Strategies, Inc. v. Davis, 384 F.Supp.2d 649, 676 (S.D.N.Y.2005) aff'd, 469 F.3d 284 (2d Cir.2006). In considering whether to order restitution, a court may take into account not only the culpability of the defendant but also that of the plaintiff. See Laugh Factory, Inc. v. Basciano, 608 F.Supp.2d 549, 560 (S.D.N.Y.2009) ("It is well-established that a court of equity will not exercise its power in favor of a plaintiff whose actions show inequitable conduct on bad faith where the misconduct has a material relation to the equitable relief that plaintiff seeks"); Granite Partners, L.P. v. Bear, Stearns & Co. Inc., 17 F.Supp.2d 275, 310 (S.D.N.Y.1998) ("Under New York law, a court may decline to exercise its equitable powers in favor of a party whose unconscionable act ... has immediate and necessary relation to the matter
As established above, the receiver did not show that Comvest violated securities laws, and the receiver identifies no other basis for his claim. Accordingly, we recommend that the unjust enrichment claim against Comvest be denied. We discuss below the merits of the receiver's claim against the individual defendants.
We emphasize that, for this cause of action to succeed against the individual defendants, they must have been unjustly enriched at the expense of the Cobalt entities, not the Cobalt investors. The Second Circuit held in Shearson Lehman Hutton, Inc. v. Wagoner that a bankruptcy trustee can bring claims on behalf of the bankrupt corporation that she represents, but not on behalf of that entity's creditors. 944 F.2d 114, 118 (2d Cir.1991); see also Scholes v. Lehmann, 56 F.3d 750, 753 (7th Cir.1995) (holding that an equity receiver may sue only to redress injuries to the entity in receivership); Scholes v. Stone, 821 F.Supp. 533, 535 (N.D.Ill.1993) ("[A] receiver can bring only those claims belonging to the entity it represents ... receivers in general have standing to assert state-law claims on behalf of entities in receivership but such claims must involve damages which belong to the entities rather than to the investors"). This court has indicated that the Wagoner rule applies to the receiver because he fulfills a role "sufficiently analogous" to that of a bankruptcy trustee. Cobalt Multifamily Investors I, LLC v. Shapiro, 2008 WL 833237, *3 (S.D.N.Y. Mar. 28, 2008) on recons., 2009 WL 2058530 (S.D.N.Y. July 15, 2009). Accordingly, by necessity, the receiver can seek restitution only under the theory that the defendants were unjustly enriched at the expense of Cobalt, as opposed to Cobalt investors.
It is clear that the individual defendants were enriched at the expense of the Cobalt entities, but it is far from clear that equity and good conscience require restitution. The receiver has established that the individual defendants sold unregistered securities, which is a strict liability offense; the receiver did not have to, and did not, prove that any defendant had a culpable state of mind.
Analysis of a plaintiffs wrongdoing normally arises when a defendant faced with an unjust-enrichment claim raises an in pari delicto defense. "The maxim is in pari delicto potior est conditio defendentis, that is, where parties are equally at fault, the defending party is in the stronger position ... Generally translated, it means the plaintiff should not therefore recover, and the parties should be left where they are." Ross v. Bolton, 904 F.2d 819, 824 (2d Cir.1990) (internal quotation marks omitted). The concept is based on a belief that granting equitable relief to a wrongdoer plaintiff would "contravene the public good by aiding one to profit from his own wrong." Id. Here, defendants did not raise an in pari delicto defense; accordingly, it would generally be considered to have been waived. See, e.g., Taylor v. United States, 485 U.S. 992, 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988) ("Any matter `constituting an avoidance or affirmative defense' ... must be pleaded in a timely manner or it is deemed to be waived"); Butler v. Catinella, 58 A.D.3d 145, 150, 868 N.Y.S.2d 101, 106 (2d Dep't 2008) ("Affirmative defenses ... as a general rule, would be deemed waived if not raised in the pleadings"). However, the concept underlying the in pari delicto defense is illuminating to our consideration of the wisdom of recommending restitution.
In Bateman Eichler, Hill Richards, Inc. v. Berner, the Supreme Court established a two-prong test for application of an in pari delicto defense in cases dealing with securities laws, allowing the defense "where (1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with
Shapiro, Stitsky, and Foster, acting on behalf of the Cobalt entities, engaged in a massive fraud. See United States v. Shapiro, 06-cr-357 (Shapiro J., 2,; Foster J., 4; Stitsky J., 2); (Paduano Decl. ¶¶ 5-7 & Exs. D-F). "New York law recognizes that when a corporation's managers act within the scope of their employment, their actions may generally be imputed to the corporation." In re Allou Distributors, Inc., 387 B.R. 365, 393 (Bankr.E.D.N.Y.2008); see also In re Magnesium Corp. of Am., 399 B.R. 722, 762 (Bankr.S.D.N.Y.2009) ("Even if (as is normally the case) the trustee did nothing wrong, and is instead an innocent fiduciary trying to recover for the injured corporation... former management's imputed misconduct gives rise to an in pari delicto defense"). Under this general rule, Shapiro's, Stitksy's, and Foster's intentional misconduct would be imputed to the Cobalt entities, and the corporation would be more to blame than the individual defendants for the violation of securities laws at issue.
There is an exception to this general rule. A principal's actions will not be imputed to his company if he acted solely for his own interest and adversely to the interest of the company. See, e.g., In re Bennett Funding Group, 336 F.3d 94, 100 (2d Cir.2003) (identifying this as the "adverse interest" exception); Wight v. BankAmerica Corp., 219 F.3d 79, 87 (2d Cir. 2000). The adverse-interest exception "has been defined very narrowly in New York," and applies only when a "fraud was entirely self-interested and ... the corporation did not benefit in any way." Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 197-98, 888 N.Y.S.2d 538, 542-42 (N.Y.App.Div.2009). For the exception to apply, the wrongdoer agent must have "totally abandoned the principal's interests." Ctr. v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784-85, 497 N.Y.S.2d 898, 900, 488 N.E.2d 828 (1985); see also Kirschner v. KPMG LLP, 15 N.Y.3d 446, 477, 912 N.Y.S.2d 508, 526, 938 N.E.2d 941 (2008).
The actions of Shapiro, Stitsky, and Foster that are pertinent to this lawsuit do not fit within this exception. Their offer and sale of unregistered securities, though ultimately intended for their personal gain, clearly enriched the Cobalt entities as well. While their fraud also led to Cobalt's downfall as the Cobalt entities were ultimately ordered to disgorge over $24.6 million (see Paduano Decl. ¶ 3), that injury stemmed from the discovery of the fraud as opposed to the fraud itself. Accordingly, it cannot be considered the type of harm that would invoke the adverse-interest exception. Kirschner, 15 N.Y.3d at 468, 912 N.Y.S.2d at 520, 938 N.E.2d 941, ("any harm from the discovery of the fraud rather than from the fraud itself does not bear on whether the adverse-interest exception applies"). This fits with the agency principles underlying the in pari delicto doctrine, which impute the actions of an agent to his corporate principal, even when he commits negligence or fraud "in every case, except where the corporation is actually the agent's intended victim." Kirschner, 15 N.Y.3d at 466, 912 N.Y.S.2d at
The second prong of the Bateman test is fulfilled when "preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public." 472 U.S. at 311, 105 S.Ct. 2622. In Bateman, defrauded investors who invested based on inaccurate material non-public information sued the party who had provided the information. Id. at 301, 105 S.Ct. 2622. The Supreme Court held that allowing the defrauder's in pari delicto defense would interfere with policies favoring the efficient exposure of securities-law violations. Id. at 319, 105 S.Ct. 2622 ("the public interest will most frequently be advanced if defrauded tippees are permitted to bring suit and to expose illegal practices by corporate insiders and broker-dealers to full public view for appropriate sanctions").
In a case dealing with the sale of unregistered securities, the Supreme Court held that the second prong of the Bateman test was satisfied when the plaintiff's role was primarily that of a promoter, rather than an investor. Pinter v. Dahl, 486 U.S. 622, 638, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988). The Supreme Court reasoned that, in situations where the plaintiff is an investor, "precluding suit would interfere significantly with effective enforcement of the securities laws and frustrate the primary objective of the Securities Act." Id. The Court identified this primary objective as being "to protect investors by requiring publication of material information thought necessary to allow them to make informed investment decisions concerning public offerings of securities in interstate commerce." Id. "Thus, the in pari delicto defense may defeat recovery in a 12(1) action only where the plaintiffs role in the offering or sale of nonexempted, unregistered securities is more as a promoter than as an investor." Id. at 639, 108 S.Ct. 2063.
Neither the transparency concern of Bateman nor the investorfocused approach of Pinter is implicated here. Rather than facilitating the discovery of fraudulent activity, allowing a clawback of commissions earned by employees of a fraudulent enterprise gives a disincentive to those employees to report the fraud, whereas preventing the Cobalt entities from recovering
This comports with the Second Circuit's ruling in Ross v. Bolton, in which the court considered the second prong of the Bateman test satisfied, and consequently allowed an in pari delicto defense, when the defendant engaged in "simply those [actions] of an innocent clearing agent conducting its ordinary business." 904 F.2d at 826. We concede that the relationship between a clearing agent and its client differs from the relationship between an employee and her employer. But this situation is otherwise similar to Ross, in that defendants did not stray from their ordinary course of business and acted without established scienter.
We believe that, in this case's current disposition, allowing Cobalt's wrongdoing to thwart its attempt at recovery in unjust enrichment comports with the Supreme Court's instructions in Bateman.
For the reasons set forth above, we recommend that the receiver's motion be granted in part and denied in part. We recommend that defendants Eisemann, Landsman, Kagan, and Dundon be ordered to disgorge $39,115.59, $13,425.00, $71,234.45, and $2,223.00, respectively, on the basis that they violated securities laws by selling unregistered securities. We recommend that the remainder of the receiver's motion be denied.
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to the Report and Recommendation portion of this submission. See also Fed.R.Civ.P. 6(a), 6(d). Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Kimba M. Wood, Room 1610, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Thomas v. Arn, 474 U.S. 140, 150-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986).
Even if we were to conclude that restitution in this instance is for all practical purposes equivalent to disgorgement, we arrive at the same general outcome in that we recommend that the receiver recover defendants' wrongful gain from their violation of securities law. In this alternative scenario, the question of unjust enrichment under New York state law becomes an interesting but purely academic point.
Finally, we also note that the Bateman factors are most relevant to a discussion of in pari delicto, which is pertinent to an analysis of restitution because plaintiff's fault is to be considered in weighing the equities for a reward under a theory of restitution. Because disgorgement focuses on defendants' wrong-doing, the degree of fault of plaintiff's conduct is less significant, and therefore the equities of in pari delicto are not pertinent to determining appropriate relief.
Any such contract would be void, however, because it contemplated participation in a fraud. See 15 U.S.C. § 78cc ("Every contract... the performance of which involves the violation of, or the continuance of any relationship or practice in violation of [federal securities laws] shall be void ... as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract"). If we believed that granting the receiver's third cause of action was appropriate, we would recommend that any contract between the Cobalt entities and defendants be disregarded.
