Securities and Exchange Commission v. Nadel et al

Filing 423

RESPONSE in opposition re #416 MOTION to quash Receiver's Subpoena to SunTrust Bank and Joining in Receiver's Response filed by Securities and Exchange Commission. (Masel, Scott)

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. / PLAINTIFF'S RESPONSE JOINING THE RECEIVER'S OPPOSITION TO NON-PARTY'S OBJECTIONS AND MOTION TO QUASH SUBPOENA ON SUNTRUST BANK, INC. (DOC. 416) Plaintiff Securities and Exchange Commission joins the Receiver's Opposition to NonParty Donald H. Rowe's Motion to Quash Subpoena (DE 420). The Court has already

authorized the Receiver to conduct the investigation and discovery he is dutifully pursuing through the subpoena on SunTrust Bank. See Order Granting Motion to Appoint Receiver and Order Reappointing Receiver (DE 8 and 316). The Receiver quite properly is using all legal means to track down funds from the fraud underlying this case for the benefit of the Receivership Entities and their investors. As the Receiver has done many times in the instant action, he is

gathering information necessary to seek relief from the Court resulting in the return of money fraudulently drained from the Receivership Entities. Mr. Rowe presents no solid legal basis for attempting to quash the subpoena, as the Magistrate Judge in the Clawback Case has already ruled, and may not prevent the Receiver from shining a light on what may be a significant trail of funds from Arthur Nadel's fraud to Mr. Rowe's (or anyone else's) pockets. Besides the legal authority already granted by the Court, the Receiver more than establishes a basis to conduct this discovery. In light of the substantial evidence now presented by the Receiver, it seems likely Mr. Rowe's goal is to slow the Receiver's attempts to recover Receivership Entity funds that Mr. Rowe received because of fraud. The Receiver is applying routine discovery tools and exceptional diligence to develop the evidence necessary to protect and recover investors' money. As he explains in his response, the Receiver ultimately will use this evidence to ask the Court for equitable relief that Mr. Rowe may then oppose as he sees fit. WHEREFORE the Commission joins the Receiver in opposing Mr. Rowe's motion to quash the Receiver's subpoena, and requests the Court allow the Receiver to continue fulfilling his assigned duties. June 23, 2010 Respectfully submitted,

By:

s/ Scott A. Masel Scott A. Masel Senior Trial Counsel Florida Bar No. 0007110 Direct Dial: [phone] E-mail: [e-mail] Lead and Trial Counsel Attorney for Plaintiff SECURITIES AND EXCHANGE COMMISSION 801 Brickell Avenue, Suite 1800

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Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] CERTIFICATE OF SERVICE I hereby certify that on June 23, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. I further certify that on the same date I mailed the foregoing document and the notice of electronic filing by U.S. Mail or as indicated below to the following non-CM/ECF participant: Arthur G. Nadel Register No. 50690-018 MCC New York Metropolitan Correctional Center 150 Park Row New York, NY 10007 Via U.S. Mail s/ Scott A. Masel Scott A. Masel, Esq.

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