Securities and Exchange Commission v. Nadel et al

Filing 622

MOTION to Approve Settlement re: Vivian K. Kouvant by Burton W. Wiand. (Attachments: #1 Exhibit A - Vivian K. Kouvant Settlement Agreement)(Lamont, Michael)

EXHIBIT A

SETTLEMENT AGREEMENT
WHEREAS, by orders dated January 21, 2009, June 3, 2009, January 19, 2010,
and September 23, 2010, the Court in Securities & Exch. Comm'n v. Arthur Nadel, et al..
Case No. 8:09-cv-87-T-26TBM (M.D. Fla.) (the "SEC Receivership Action"), appointed
Burton W. Wiand as Receiver (the "Receiver") for Scoop Capital, LLC; Scoop
Manageinent, Inc.; 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; Viking Management, LLC; and Traders Investment Club and
all of their subsidiaries, successors, and assigns (collectively, the "Receivership
Entities"); and
WHEREAS, the Receiver sued Vivian K. Kouvant (the "Defendant"), in an action
styled Burton W. Wiand, as Receiver v. Vivian K. Kouvant (the "Kouvant Action"), Case
No. 8:10-cv-225-T-17-MAP (M.D. Fla), seeking the return of certain funds received by
the Defendant from or at the direction of one or more of the Receivership Entities in
excess of her investment in one or more of the Receiversliip Entities (the "Settled
Claims"); and
WHEREAS, the Defendant executed a financial affidavit in connection with this
settlement and hereby represents and warrants that she lacks the financial ability to pay
the amounts sought by the Receiver in the Kouvant Action from assets other than her
disclosed homestead residential property in Florida; and
WHEREAS, the Defendant, without admitting liability, wishes to resolve these
matters amicably; and

WHEREAS, any resolution of this action by agreement of the Receiver and the
Defendant is subject to approval by the Court presiding over the SEC Receivership
Action (the "SEC Receivership Court"); and
NOW, THEREFORE, and subject to the approval of the SEC Receivership Court,
the Defendant has agreed to pay and the Receiver has agreed to accept a total of $25,000
in full settlement of the Settled Claims to be paid within 14 days of approval by the SEC
Receivership Court.
Upon receipt and clearing of full settlement payment, the Receiver, on behalf of
the Receivership Entities and their employees, agents, representatives, beneficiaries, and
assigns, shall release and forever discharge the Defendant of and from any and all claims
asserted, or which could have been asserted, in the Kouvant Action, as well as any and all
other claims, demands, rights, promises, and obligations arising from or related in any
way to the Defendant's investment in any product, fund, entity, or venture established,
operated, or controlled by Arthur Nadel and Receivership Entities.
In further consideration of the release of claims described above, the Defendant
warrants that $420,000 is the total amount of money or value Defendant received from
Receivership Enthies in excess of her investment, and the Defendant agrees to waive and
does hereby waive any claim that she had, has, or hereafter may have against the
Receiver and/or the Receivership Estate.
The Receiver and the Defendant understand and agree that, subject to the
approval of the SEC Receivership Court, the payment of the aforesaid total sum and
waiver of claims is in full accord and satisfaction of and in compromise of disputed

claims, and the payment and waiver are not an admission of liability, M'hich is expressly
denied, but are made for the purpose of terminating a dispute and avoiding Htigation.
After execution of this Settlement Agreement by all parties, the Receiver will
promptly move the SEC Receivership Court for approval of this settlement. I f the SEC
Receivership Court approves the settlement, following receipt and clearing of the
payment, the Receiver will promptly move the Court to dismiss the Kouvant Action whh
prejudice. To the extent necessary, the Defendant agrees to assist the Receiver in seeking
the SEC Receivership Court's approval of this settlement and following any such
approval, in securing the dismissal of the Kouvant Action. The Defendant understands
and agrees that each party shall bear his own individual costs and attorney fees incurred
in the resolution of this matter.
The Defendant agrees that failure to make payment shall constitute a material
breach of this agreement and as such, shall entitle the Receiver to an entry of a Judgment
for the total amount she received in excess of her investment. Should the Receiver
believe that the Defendant has made a material misrepresentation concerning her
financial matters the Receiver shall move the Court to set aside the Settlement and the
parties shall move forward on that issue alone before the Court. Should the Court
determine there has been a material misrepresentation by the Defendant a judgment shall
be entered for $420,000, less any payments, plus interest at the legal rate from the date of
this agreement.
The Receiver and the Defendant agree this Settlement Agreement shall be
governed by and be enforceable under Florida law in the United States District Court for
the Middle District of Florida, Tampa Division.

Counsel for the Receiver is expressly authorized to sign this agreement on behalf
of the Receiver.

The Receiver and the Defendant also agree that electronically

transmitted copies of signature pages will have the full force and affect of original signed
pages,
In witness whereof the parties have set their hands as of the dates indicated.

By: ty^^-UxZA^.^
Vivian K, Kouvatit

Date:

Burton W. Wiand, as Receiver
of the Receivership Entities

Date: