Securities and Exchange Commission v. Nadel et al

Filing 1182

MOTION for Settlement re: Brian L. Meeker, as trustee of the Brian L. Meeker Trust by Burton W. Wiand. (Attachments: # 1 Exhibit A - Executed Settlement Agreement)(Lamont, Michael)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.

Case No. 8:09-cv-87-T-26TBM

ARTHUR NADEL,
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.
Defendants,
SCOOP REAL ESTATE, L.P.
VALHALLA INVESTMENT PARTNERS, L.P.,
VALHALLA MANAGEMENT, INC.
VICTORY IRA FUND, LTD,
VICTORY FUND, LTD,
VIKING IRA FUND, LLC,
VIKING FUND, LLC, AND
VIKING MANAGEMENT,
Relief Defendants.
/
RECEIVER’S MOTION TO APPROVE SETTLEMENT
Burton W. Wiand, as Receiver, moves the Court for an order approving a settlement
relating to payment of the judgment obtained by the Receiver Burton W. Wiand, as Receiver
v. Brian L. Meeker, as trustee of the Brian L. Meeker Trust, Case No. 8:10-cv-166-T-17MAP
(M.D. Fla.) (the “Meeker Action”) on the basis of the Agreement attached hereto as Exhibit
A.

MEMORANDUM IN SUPPORT
The Securities and Exchange Commission (the “Commission” or “SEC”) instituted
this action to “halt [an] ongoing fraud, maintain the status quo, and preserve investor assets . .
. .” (Dkt. 1, Compl., ¶ 7.) Burton W. Wiand was appointed by this Court as the Receiver for
Defendants other than Arthur Nadel and for Relief Defendants. (See Order Reappointing
Receiver (Dkt. 140).) Additionally, the Receivership was expanded to include Venice Jet
Center, LLC and Tradewind, LLC (Dkt. 17); Laurel Mountain Preserve, LLC, Laurel
Preserve, LLC, the Marguerite J. Nadel Revocable Trust UAD 8/2/07, and the Laurel
Mountain Preserve Homeowners Association, Inc. (Dkt. 44); The Guy-Nadel Foundation,
Inc. (Dkt. 68); Lime Avenue Enterprises, LLC, and A Victorian Garden Florist, LLC (Dkt.
81); Viking Oil & Gas, LLC (Dkt. 153); Home Front Homes, LLC (Dkt. 172); Traders
Investment Club (Dkt. 454); Summer Place Development Corp. (Dkt. 911); Respiro, Inc.
(Dkt. 916); and Quest Energy Management Group, Inc. (Dkt. 1024). All of the entities in
receivership are collectively identified herein as the Receivership Entities.
Pursuant to the Order Reappointing Receiver (Dkt. 984), the Receiver has the duty
and authority to:
2.
Investigate the manner in which the affairs of the Receivership
Entities were conducted and institute such actions and legal proceedings, for
the benefit and on behalf of the Receivership Entities and their investors and
other creditors as the Receiver deems necessary . . . against any transfers of
money or other proceeds directly or indirectly traceable from investors in the
Receivership Entities; provided such actions may include, but not be limited
to, seeking imposition of constructive trusts, disgorgement or profits, recovery
and/or avoidance of fraudulent transfers under Florida Statute § 726.101, et.
seq. or otherwise, rescission and restitution, the collection of debts, and such
orders from this Court as may be necessary to enforce this Order.

2

Further, the Order Reappointing Receiver (at paragraph 6) authorizes the Receiver to
“[d]efend, compromise or settle legal actions . . . in which the Receivership Entities or the
Receiver is a party . . . with authorization of this Court . . . .”
By a Complaint filed January 19, 2010, the Receiver sued Brian L. Meeker, as trustee
of the Brian L. Meeker Trust (the “Defendant”) to recover sums received from the
Receivership Entities with a view to marshaling assets for an eventual distribution to
investors with verifiable claims in an equitable and appropriate manner. The Receiver
obtained a Judgment against Defendant on March 7, 2013 in the amount of $645,641.67.
The Eleventh Circuit affirmed the Judgment on July 15, 2014.1
As shown by the attached Agreement, the Receiver and the Defendant, subject to the
approval of this Court, have agreed to Defendant paying a total of $25,000.00, which will be
paid in accordance with a set payment schedule, to satisfy the Judgment and all pending
issues.

In reaching this agreement, the Receiver’s primary consideration involved the

financial circumstances of the Defendant.

The Receiver’s discovery has revealed that the

Defendant has few, if any, assets with which to satisfy the Judgment. The Receiver believes
that the settlement provides a practical solution which results in the maximum benefit to the
Receivership. Further, the settlement reflected by the Agreement is in the best interests of
the Receivership, the investors in the Receivership Entities, and Defendant, because

1

The District Court denied the Receiver prejudgment interest, concluding that Meeker had “suffered enough.”
The Receiver cross-appealed, and the Eleventh Circuit concluded that the Court’s denial of an award of
prejudgment interest based on Meeker’s purported suffering was an abuse of discretion. See Wiand v. Meeker,
572 Fed. Appx. 689, 692 (11th Cir. 2014) (citing Wiand v. Lee, 753 F.3d 1194 (11th Cir. 2014)). The Eleventh
Circuit remanded and directed the Court “to apply the factors in [Blasland, Bouck & Lee, Inc. v. City of N.
Miami, 283 F.3d 1286, 1297 (11th Cir. 2002)] to determine whether equitable considerations justify denying or
reducing a prejudgment interest award in this case.” Id. The District Court has not yet reached a decision on
this issue.

3

resolution of the Judgment avoids continued efforts to try to collect on a judgment against a
Defendant with few, if any, assets, and conserves Receivership assets and judicial resources.
WHEREFORE, the Receiver moves the Court to approve the settlement reflected by
the attached Agreement.
LOCAL RULE 3.01(g) CERTIFICATE OF COUNSEL
The undersigned counsel for the Receiver is authorized to represent to the Court that
the SEC has no objection to the Court’s granting this motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 12, 2015, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system.

s/Michael S. Lamont
Gianluca Morello, FBN 034997
Email: [e-mail]
Michael S. Lamont, FBN 0527122
Email: [e-mail]
WIAND GUERRA KING P.A.
5505 West Gray Street
Tampa, FL 33609
Tel: [phone]
Fax: [phone]
Attorneys for the Receiver, Burton W. Wiand

4