Securities and Exchange Commission v. Founding Partners Capital Management, Co. et al

Filing 475

ORDER granting 474 the Receiver Daniel S. Newman's Motion to Extend Order Governing the Use of Confidential Discovery Information Dated January 25, 2010 [D.E. 191]. Signed by Magistrate Judge Carol Mirando on 4/21/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.

Case No: 2:09-cv-229-FtM-29CM

FOUNDING PARTNERS STABLEVALUE FUND, LP, FOUNDING
PARTNERS STABLE-VALUE
FUND II, LP, FOUNDING
PARTNERS GLOBAL FUND, LTD,
FOUNDING PARTNERS HYBRIDVALUE FUND, LP, PAMELA L
GUNLICKS and REGIONS BANK,
Defendants.
ORDER
This matter comes before the Court upon review of the Receiver Daniel S.
Newman’s (the “Receiver”) Motion to Extend Order Governing the Use of Confidential
Discovery Information Dated January 25, 2010 [D.E. 191] (Doc. 474) filed on March
13, 2017.

The parties have not filed a response to this motion, and their time to do

so has expired.

The parties’ non-response to the present motion creates a

presumption that the motion is unopposed.

Great Am. Assur. Co. v. Sanchuk, LLC,

No. 8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan. 23, 2012).
On May 20, 2009, United States District Judge John E. Steele appointed
Newman as the Receiver for various companies, including Defendant Founding
Partners Capital Management Company.

Doc. 73.

On January 25, 2010, then

United States Magistrate Judge Sheri Polster Chappell entered an Order Governing
the Use of Confidential Discovery Information (the “SEC Action Confidentiality
Order”). 1 Doc. 191. Paragraph 4 of the SEC Action Confidentiality Order states
that:
Confidential Discovery Material (including Highly Confidential
material) may be used only for the purposes of this Action, the SEC
action to which it is ancillary (no. 2:09-cv-229) (“the SEC Action”)
(including for appropriate reports to the Court by the Receiver in the
SEC Action), and any other action brought by the Receiver pursuant to
the Order Appointing Replacement Receiver entered in the SEC Action
for which such information is reasonably necessary (a “Receiver
Action”), provided that in the event of such Receiver Action, the Receiver
shall specifically apply to the Court to extend this Order to said Receiver
Action after giving notice to the Defendants and any non-parties
providing information under the protections of this Order of his
intention to do so. Such material shall not be used for any other
purpose, including, without limitation, any business or commercial
purpose or any other litigation or proceeding, except for a business
resolution of this Action between the Parties to this Action or a Receiver
Action; provided, however, that the foregoing shall not apply to
Discovery Material that properly is or becomes part of the public record.

Id.
Under Paragraph 4, the Receiver seeks the Court’s permission to use
confidential discovery information in a related action initiated by the Receiver, Daniel

Newman v. Ernst & Young, LLP and Mayer Brown LLP, Case No. 10-49061, in the
Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida
(the “Receiver Action”).

Doc. 474 at 1-2. The Receiver provides a copy of the Order

This Order is identical to the Order Governing the Use of Confidential Discovery
Information (Doc. 178) (the “Sun Capital Confidentiality Order”) entered in Newman v. Sun
Capital, Inc., No. 2:09-cv-445-FtM-99SPC (M.D. Fla. Mar. 18, 2010) (the “Sun Capital
Action”).
1

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Governing the Use of Confidential Discovery Information entered on December 9,
2016 in the Receiver Action, which provides:
discovery and other proceedings in this Action will necessarily involve
the production and use of certain documents and information produced
pursuant to the SEC Action Confidentiality Order and/or the Sun
Capital Confidentiality Order, and other documents and information of
a similar nature to the documents and information subject to the SEC
Action Confidentiality Order and/or Sun Capital Confidentiality
Order[.]
Doc. 474-1 at 2.
The Receiver also argues that he received the formal requests for production
of documents from one of the defendants in the Receiver Action, which included
confidential discovery information produced pursuant to the SEC Action
Confidentiality Order and/or the Sun Capital Confidentiality Order.
3.

Doc. 474 at 2-

The Receiver asserts that he provided the requisite notice to Ernst & Young,

which is one of the defendants in the Receiver Action, and the Sun Capital entities2
in the Sun Capital Action.

Id. at 3.

Because the Receiver alleges that he provided the requisite notice under
Paragraph 4 of the SEC Action Confidentiality Order, and the parties did not file an
opposition to the present motion, the Court will grant the present motion and extend
the SEC Action Confidentiality Order to permit the use of confidential discovery
information in the Receiver Action.

Id.

The Sun Capital entities are Sun Capital, Inc. and Sun Capital Healthcare, Inc.,
which are the defendants in the Sun Capital Action. Doc. 474 at 3 n.1; Newman v. Sun
Capital, Inc., No. 2:09-cv-445-FtM-99SPC (M.D. Fla. Apr. 9, 2014).
2

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ACCORDINGLY, it is hereby
ORDERED:
1.

The Receiver Daniel S. Newman’s Motion to Extend Order Governing the

Use of Confidential Discovery Information Dated January 25, 2010 [D.E. 191] (Doc.
474) is GRANTED.
2.

The Order Governing the Use of Confidential Discovery Information (Doc.

191) is extended to permit the use of confidential discovery information in Daniel

Newman v. Ernst & Young, LLP and Mayer Brown LLP, Case No. 10-49061, filed in
the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County,
Florida.
DONE and ORDERED in Fort Myers, Florida on this 21st day of April, 2017.

Copies:
Counsel of record

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