Securities & Exchange Commission v. Loomis , 17 F. Supp. 3d 1026 ( 2014 )

ORDER

K.J. MUELLER, District Judge.

A motion for remedies filed by the Securities and Exchange Commission (SEC) against defendant Lawrence “Lee” Loomis (Loomis) is currently pending before the court. The motion was submitted without argument and the court now GRANTS the motion in part and DENIES it in part.

I. BACKGROUND

On February 23, 2010, the SEC filed a complaint against Loomis, Loomis Wealth Solutions (LWS), LLC, John Hagener, and Lismar Financial Services, LLC (defendants), alleging the defendants had misappropriated approximately $10 million from investors through the fraudulent sale of interests in the Naras Funds. ECF No. 1 ¶ 1. The complaint is comprised of six claims: (1) violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. § 240.10b-5 against all defendants; (2) violations of Section 17(a)(1) of the Securities Act of 1933,15 U.S.C. § 77q(a) against all defendants; (3) violations of Sections 17(a)(2) and (3) of the Securities Act, 15 U.S.C. § 77q(a)(2) against all defendants; (4) violations of Sections 5(a) and 5(c) of the Securities Act, 15 U.S.C. §§ 77e(a) and 77e(c) against all defendants; (5) violations of Section 206(1) and 206(2) of the Advisers Act, 15 U.S.C. § 89b-6(a), against Ha-gener and Lismar; and (6) violations of Section 206(4) of the Advisers Act, 15 U.S.C. § 206(4), 15 U.S.C. § 806b-6(4) against Hagener and Lismar. ECF No. 1.

On June 10, 2010, the Clerk of the Court entered defaults as to Lismar and LWS. ECF No. 16. The court denied the SEC’s motion for default judgments without prejudice to a later renewal. ECF Nos. 23, 25.

On May 3, 2011, Hagener filed a motion to stay the case pending resolution of criminal charges. ECF No. 30. After further proceedings, the court ultimately denied the motion for a stay on February 24,2012. ECF No. 52.

On February 13, 2013, the SEC filed a motion for summary judgment against Loomis and Hagener, alleging that Loomis had violated the following provisions of the securities laws: (1) Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (Exchange Act) and Section 17(a)(1) of the Securities Act of 1933 (Securities Act) by knowingly or recklessly making material misstatements and omissions to the investors in Naras Secured Funds, LLC (Naras Fund 1) and Naras Secured Fund # 2 (Naras Fund 2) and by knowingly or recklessly engaging in a fraudulent scheme; (2) Sections 17(a)(2) and (3) of the Securities Act by negligently making material misstatements and omissions to the Naras Funds 1 and 2 investors and by negligently engaging in a fraudulent scheme; and (3) Sections 5(a) and 5(c) of the Securities Act by offering and selling Naras Fund 1 securities and Naras Fund 2 securities in interstate commerce without first registering the offers and sales with the SEC and without having an exemption from registration. ECF No. 64 at 2. The motion raised additional claims against Hagener.

On March 5, 2013, defendant filed a motion for an extension of time and appointment of counsel. ECF No. 73. The court stayed the motion as to Loomis until resolution of his motion for the expansion of the appointment of his counsel in the criminal case. ECF No. 70.

On March 6, 2013, the SEC and Hagener submitted a stipulation for an injunction and on March 13, 2013, the SEC filed a notice that Hagener’s consent to the injunction resolved the summary judgment motion as to him. ECF Nos. 69, 71. The court issued the order of injunction as to Hagener on April 15, 2013. ECF No. 82.

On April 1, 2013, counsel appeared on behalf of Loomis and thereafter the parties stipulated to new dates for hearing on the summary judgment motion. ECF Nos. 79, 81. After the opposition and reply had been filed on the summary judgment motion, Loomis filed a motion to stay the motion. ECF Nos. 86, 88. The court denied the requested stay without prejudice on August 27, 2013 2013 WL 4543939.

On September 3, 2013, 969 F.Supp.2d 1226 (E.D.Cal.2013), the court granted the SEC’s motion for summary judgment on the following grounds: (1) Loomis violated Rule 10b-5 and Section 17(a)(1) by informing investors that the Naras loan funds were secured by second mortgages, that the investments were highly liquid and had a twelve percent rate of return; (2) Loom-is engaged in a scheme to defraud in violation of Rule 10b-5, subparts (a) and (c), and Section 17(a), subparts (1) and (3), by misrepresenting the solvency of the Naras Funds while accepting money from new investors to use as payments to older investors; and Loomis violated Sections 5(a) and 5(c) of the Securities Act by offering unregistered securities for sale.

On March 11, 2014, the SEC filed a motion for remedies against Loomis. ECF No. 108. Defendant’s untimely opposition was filed on April 3 and the SEC’s reply was filed on April 4, 2013. ECF Nos. 112,113.

II. ANALYSIS

The SEC seeks three remedies: a permanent injunction against further securities violations by Loomis; disgorgement of $11,695,840 raised from Naras investors plus prejudgment interest of $2,575,426 for a total of $14,271,426; and monetary penalties of $273,000. ECF No. 108-1.

Defendant concedes he is subject to a permanent injunction based on the court’s ruling on summary judgment and his continued invocation of his right to remain silent. He argues disgorgement is improper because he no longer has the money, either because it was used to fund his other business entities or was forfeited by the order in United States v. Approximately $138,803.53 in U.S. Currency, Civ. No. S-09-461 TLN, and because the evidence on summary judgment was insufficient to show that all Naras investors were defrauded. Finally, he claims imposing a civil penalty would penalize his invocation of the right to remain silent and would constitute an excessive fine in violation of the Eighth Amendment. He cites no case authority for any of his arguments.

In reply, the SEC says disgorgement is appropriate even though Loomis does not have any of the money and that in its summary judgment order, the court found Loomis had consistently made material misrepresentations to investors. It also argues the proposed civil penalty is not constitutionally excessive.

A. The Injunction

Under both 15 U.S.C. §§ 77t(b) and 78u(b), the SEC may seek a permanent injunction against a person who has violated securities laws; it bears the burden of showing “ ‘a reasonable likelihood of future violations of the securities laws SEC v. Fehn, 97 F.3d 1276, 1295 (9th Cir.1996) (quoting SEC v. Murphy, 626 F.2d 633, 655 (9th Cir.1980)). In evaluating the likelihood of future violations, the court must consider:

‘(1) the degree of scienter involved; (2) the isolated or recurrent nature of the infraction; (3) the defendant’s recognition of the wrongful nature of his conduct; (4) the likelihood, because of defendant’s professional occupation, that future violations might occur; (5) and the sincerity of his assurances against future violations.’

Id. at 1295-96 (quoting Murphy, 626 F.2d at 655). This court has discretion to grant or deny the request for injunctive relief. SEC v. Goldfield Deep Mines Co. of Nev., 758 F.2d 459, 465 (9th Cir.1985); SEC v. Alpha Telcom, Inc., 187 F.Supp.2d 1250, 1262 (D.Or.2002), affirmed by SEC v. Rubera, 350 F.3d 1084 (9th Cir.2003).

As noted in the order on summary judgment, Loomis solicited over $11 million from investors from March 2007 through August 2008, representing that the investments were secured by second mortgages even though he was aware they were not. ECF No. 97 at 9-10. He also told investors there was a guaranteed rate of return and their investments could be redeemed quickly. Id. at 12-13. Loomis thus acted with a high degree of scienter over a period of time, factors favoring the issuance of the injunction. See, e.g. SEC v. Abellan, 674 F.Supp.2d 1213, 1220-21 (W.D.Wash.2009) (finding defendant acted with high degree of scienter when he sidestepped registration requirements in order to manipulate demand, deceived the public and caused tangible financial losses); SEC v. Cross Fin. Servs., 908 F.Supp. 718, 720, 734 (C.D.Cal.1995) (defendants acted with high degree of scienter in telling investors they would use funds to engage in factoring accounts receivable, that the annual returns would be between 15 and 20 percent, and the investments were low risk when in fact they did not factor any accounts; their knowing orchestration of and participation in the scheme shows high degree of scienter).

Loomis has never acknowledged that his actions were wrong, expressed any remorse, or suggested that he will not engage in future violations, as he relies on his Fifth Amendment right to remain silent. Because the court is not able to evaluate whether Loomis’s current attitude suggests future violation, these factors favor an injunction, but only slightly in light of Loomis’s Fifth Amendment rights.

Loomis is currently detained and facing charges of mail and wire fraud carrying substantial penalties; the case is set for trial on October 6, 2014. United States v. Lee Loomis, Cr. No. S-12-315 JAM, ECF Nos. 103, 117. Nevertheless courts have enjoined people from future securities violations despite imprisonment. See, e.g., SEC v. Bravata, 3 F.Supp.3d 638, 662, 2014 WL 897348, at *21 (E.D.Mich. Mar. 6, 2014) (entering permanent injunction based on the fact that defendants “likely will have a chance to commit future violations when released from prison”); SEC v. Lion Capital Mgmt., LLC, No. C 12-05116 WHA, 2013 WL 5945081, at *3 (N.D.Cal. Nov. 1, 2013) (entering a permanent injunction even though the defendant was serving a sentence and would likely be deported upon release); SEC v. Zafar, No. 06-CV-1578 (JG)(MDG), 2009 WL 129492, at *6 (E.D.N.Y. Jan. 20, 2009) (enjoining person who was then serving a sentence even though there was no indication he would return to a profession conducive to securities fraud); SEC v. Musella, 578 F.Supp. 425, 445 (S.D.N.Y.1984) (“[T]he inquiry goes to predilection rather than immediate probability.”). As Loomis’s ultimate sentence, if any, has not been determined, this factor favors the injunction.

Based on consideration of the relevant factors, the court finds the SEC has borne its burden of justifying the entry of a permanent injunction.

B. Disgorgement and Prejudgment Interest

“ ‘[A] district court has broad equity powers to order disgorgement of ill-gotten gains obtained through the violation of the securities laws. Disgorgement is designed to deprive a wrongdoer of unjust enrichment, and to deter others from violating securities laws by making violations unprofitable.’ ” SEC v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1096 (9th Cir.2010) (quoting SEC v. First Pac. Bancorp., 142 F.3d 1186, 1191 (9th Cir.1998)). The SEC bears the burden of showing the causal relationship between the wrongdoing and the funds, SEC v. One or More Unknown Traders, 853 F.Supp.2d 79, 83 (D.D.C.2012), and of showing that the disgorgement figure “ ‘reasonably approximates the amount of unjust enrichment.’ ” Platforms Wireless, 617 F.3d at 1096 (quoting SEC v. First City Fin. Corp., 890 F.2d 1215, 1232 (D.C.Cir.1989)). A court may order disgorgement even if the violator “ ‘is no longer in possession of such funds due to subsequent, unsuccessful investments or other forms of discretionary spending.’ ” SEC v. JT Wallenbrock & As-socs., 440 F.3d 1109, 1115-16 (9th Cir.2006) (quoting SEC v. Thomas James Assocs., 738 F.Supp. 88, 95 (W.D.N.Y.1990)). Moreover, when parties “unlawfully received money from investors by distributing unregistered securities .... [t]his was the rough equivalent of receiving an ‘interest free loan’ from investors,” and so “[t]he proper measurement of the benefit of the ‘loan’ is the interest rate the defendants would have otherwise paid to finance their business operations with a comparable, unsecured loan.” Platforms Wireless, 617 F.3d at 1099.

The SEC has presented the declaration of forensic accountant Caroline Van Alst, who reviewed records of the Naras I and II Funds as well as of other entities that received funds from the Naras Funds. Decl. of Caroline Van Alst, ECF No. 108-2 ¶¶ 1, 6. Van Alst concluded that the primary source of cash in the Naras Funds was investor cash and the primary use of that cash was transfers to and on behalf of Loomis entities, such as LWS for real estate purchasing activity, or to Hagener and Lismar. Id. ¶ 9. The thirty investors in Naras I, excluding Lismar, provided $1,303,083.97 and the eighty-one investors in Naras II, again excluding Lismar, provided $10,392,756.33.

Documents from Loomis’s outside accounting and auditing firm Francis, Scinto & Graziano, LLP, show that Loomis controlled a number of entities in addition to LWS: Advantage Financial Group, Advantage Financial Partners, LLC-East, Advantage Financial Partners, LLC-West, Nationwide Lending Group, Shasta Equity Exchange, AFG Information Technologies, G & L Real Estate Group, JP Realty Group, LLC and Advantage Plan Plus. Id. ¶ 11. Van Alst determined that through “loans” and transfers from the two Naras Funds to Loomis entities, there was a total cash disbursement of $8,003,827.30. Id. ¶ 13. Van Alst says the money transferred from the Naras Funds to the various Loomis entities was used to pay operating expenses. Id. ¶ 15. This is borne out by evidence submitted in connection with the SEC’s motion for summary judgment. Karen White, the former controller of Advantage Financial Partners-West, averred when she did not have sufficient cash to pay AFP’s bills, Loomis would direct her or another employee to ask Hagener to transfer money from the Nar-as Funds to the impecunious Loomis entities. Decl. of Karen White, ECF No. 64-19 ¶¶2, 4. She rarely transferred money back to the Naras Funds as interest payments on the “loans.” Id. ¶ 7.

In JT Wallenbrock, the defendants raised money from investors through the fraudulent sale of unregistered promissory notes and first deposited it in one of the group’s business checking accounts. 440 F.3d at 1111-12. From the funds so deposited, they paid investors “returns” to maintain the illusion they were investing the money as promised; used some of it to cover their operating expenses and personal expenses; and invested some of the money to fund numerous start-up companies. Id. at 1112. The district court ordered disgorgement of the entire proceeds of the scheme, less the money paid to investors, plus prejudgment interest. Id. at 1113. The Ninth Circuit affirmed, noting that

[t]he essence of the defendants’ scheme was to obtain investors’ money under false pretenses in order to fund the defendants’ business ventures. Rather than put their own money at risk, the defendants benefitted from the use of investors’ money to spend at defendants’ discretion — whether to cover operating expenses, invest in start-up companies, pay personal expenses or pay fake returns to investors to perpetrate the fraud.... Given these circumstances, all 253.2 million obtained from investors was an ill-gotten gain that unjustly enriched the defendants.

Id. at 1114. In this case, as well, the court found Loomis profited from the sale of unregistered securities and from material misrepresentations about the security and profitability of the investments, made to all investors, not just the four who submitted declarations in support of summary judgment. ECF No. 97 at 9-16. Loomis similarly profited from the use of the investors’ money and so should be directed to disgorge those funds, along with the interest he avoided by using those funds as an interest-free loan. See SEC v. Abacus Int’l Holding Corp., No. C 99-02191, 2001 WL 940913, at *5 (N.D.Cal. Aug. 16, 2001) (“In assessing whether to order prejudgment interest, the Court may consider the degree of personal wrongdoing on the part of the defendant.”).

Nevertheless, in connection with its motion for summary judgment, the SEC presented evidence, that in traditional-Ponzi-scheme-fashion, Loomis and Hagener did use some new investors’ payments to pay fake returns to earlier investors. Decl. of Caroline Van Alst, ECF No. 64-18 ¶¶ 16-17 & Exs. C & D. In exercising its equitable powers to “deprive a wrongdoer of unjust enrichment,” Platforms Wireless, 617 F.3d at 1096, the court declines to order disgorgement of that portion of investors’ funds Loomis used to pay lulling “returns” to other investors. The SEC is thus directed to provide updated figures, showing how much of the $11,695,840 raised from Naras investors was returned to other Naras investors and to calculate the prejudgment interest based on that figure.

C. Civil Penalties

The securities laws provide for civil monetary penalties in three tiers. A court may impose third tier penalties when the violations “involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement [and] such violation directly or indirectly resulted in substantial losses .... ” 15 U.S.C. § 78u(d)(3)(B); see also 15 U.S.C. § 77t(d)(2)(C). A third-tier penalty “shall not exceed the greater amount of $110,000 for a natural person ... or the gross amount of pecuniary gain to such defendant as a result of the violation ....” Id. For violations occurring after February 15, 2005 and before February 25, 2009, the maximum third tier penalty for an individual is $130,000. Bravata, 3 F.Supp.3d at 663, 2014 WL 897348, at *22. In addition, the maximum penalty at the first tier, for violations not involving scienter, is $6500. 15 U.S.C. § 77t(d)(2)(A); 17 C.F.R. § 201.1004. The SEC asks the court to impose a $130,000 penalty for Loomis’s violation of Section 10(b), a separate $130,000 penalty for violation of Section 17(a), and two $6,500 penalties for his violations of Sections 5(a) and 5(c), for a total of $273,000.

A district court has discretion to impose civil penalties for securities violations. SEC v. Pentagon Capital Mgmt. PLC, 725 F.3d 279, 287 (2d Cir.2013). Courts in the Ninth Circuit sometimes consider the Fehn factors in deciding whether a civil penalty is appropriate. See SEC v. Wilde, No. SACV 11-0315 DOC(AJWx), 2012 WL 6621747, at *16 (C.D.Cal. Dec. 17, 2012) (citing Fehn, 97 F.3d at 1295-96). The court may also consider “other sanctions the defendant faces, whether criminal or civil.” SEC v. Church Extension of the Church of God, Inc., 429 F.Supp.2d 1045, 1051 (S.D.Ind.2005); but see SEC v. Henke, 275 F.Supp.2d 1075, 1086 (N.D.Cal.2003), affirmed by 130 Fed.Appx. 173 (9th Cir.2005) (unpublished) (imposing civil penalties even though defendant had paid restitution following a guilty plea).

As noted above, Loomis acted with a high degree of scienter, soliciting over $11 million in investments, which he used largely to fund his other businesses. Nevertheless, he is facing criminal charges carrying the potential of a substantial term of imprisonment, large fines, and restitution. In addition, money from LWS is subject to forfeiture in United States v. Approximately $133,803.53 in U.S. Currency, Civ. No. S-09-461 TLN EFB. Given the magnitude of other civil and criminal penalties Loomis faces, the court declines to impose a civil penalty. Accordingly, it does not reach the question whether the imposition of a fine would violate the Eighth Amendment.

IT IS THEREFORE ORDERED that within fourteen days of the date of this order, the SEC submit a proposed final judgment against Loomis, incorporating the permanent injunction, the amount of disgorgement discussed above and the appropriate prejudgment interest, and reflecting that no civil penalties are imposed.