Securities and Exchange Commission v. Nadel et al

Filing 653

MOTION to Approve Settlement re: EFG Bank and John or Jane Doe by Burton W. Wiand. (Attachments: #1 Exhibit A - Executed Settlement Agreement)(Lamont, Michael)

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 Management, 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 all of their subsidiaries, successors, and assigns (collectively, the
"Receivership Entities"); and
WHEREAS, the Receiver asserted claims (the "Settled Claims") against EFG Bank
("Defendant") in an action styled Burton W. Wiand. as Receiver v. EFG Bank and John or Jane
Doe. Case No. 8:10-cv-242-T-17MAP (M.D. Fla) (the "EFG Bank Action"), seeking the return
of certain funds received from one or more of the Receivership Entities in excess of and in
connection with Defendant and/or Defendant's customer's or customers' investment in
Receivership Entity Valhalla Investment Partners, L.P. as reflected in the Complaint (the "10-cv242 Investment"); and
WHEREAS, EFG Bank and the Receiver acknowledge that this settlement agreement
relates only to the Settled Claims in connection with the EFG Bank Action and the lO-cv-242
Investment and does not relate to, and specifically excludes, any and all claims relating to
investments by or through Defendant in one or more Receivership Entities made in any other
name or "account" or by any other customer or customers of Defendant, including those which
underlie Burton W. Wiand. as Receiver v. EFG Bank f/k/a EFG Private Banlc SA and D&E Unit
Trust Associates (Case No. 8:10-cv-241-T-17-MAP) (the "D&E Unit Trust Action").

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WHEREAS, Defendant, without admitting liability, wishes to resolve these matters
amicably; and
WHEREAS, any resolution of this action by agreement ofthe Receiver and Defendant is
subject to approval by the Court presiding over the SEC Receivership Action (the "SEC
Receivership Court");
NOW, THEREFORE, and subject to the approval of the SEC Receivership Court,
Defendant has agreed to pay and the Receiver has agreed to accept a total of $39,209.50, to be
paid within 30 days after approval of this settlement by the SEC Receivership Court.
Upon receipt and clearing of this full settlement payment, the Receiver, on behalf of the
Receivership Entities and their employees, agents, representatives, beneficiaries, and assigns,
shall be deemed to have released and forever discharged Defendant of and from any and all
claims asserted, or which could have been asserted, in the EFG Bank Action which relate to the
lO-cv-242 Investment. This provision does not relate to and specifically excludes any and all
claims in connection with the D&E Unit Trust Action and any and all claims relating to
investments by or through Defendant in one or more Receivership Entities made in any other
name or "account" or by or at the direction of any other customer or customers of Defendant.
In further consideration of the release of claims described above, Defendant warrants
that, in connection with the lO-cv-242 Investment, $39,209.50 is the total amount of money or
value received from Receivership Entities in excess of Defendant and/or Defendant's customer's
or customers' investment, and Defendant agrees to waive and does hereby waive any claim that
it has, had, or hereafter may have against the Receiver and/or the Receivership Entities in the
EFG Bank Action which relate to the lO-cv-242 Investment. This provision does not relate to
and specifically excludes any and all claims in connection with the D&E Unit Trust Action and

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any and all claims relating to investments by or through Defendant in one or more Receivership
Entities made in any other name or "account" or by or at the direction of any other customer or
customers of Defendant
The Receiver and 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 are in full
accord and satisfaction of and in compromise of disputed claims, and the payment and waiver are
not an admission of liability, which is expressly denied, but are made for the purpose of
terminating a dispute and avoiding litigation.
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 called for above,
the Receiver will promptly move the Court to dismiss the EFG Bank Action with prejudice. To
the extent necessary, 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 EFG Bank Action. Defendant understands and agrees that each party shall bear its own
individual costs and attorney fees incurred in the resolution of this matter.
In the event Defendant fails to malce any payment hereunder as provided by this
Settlement Agreement, Defendant hereby consents to the immediate entry of a Judgment upon
the filing of an affidavit from the Receiver certifying failure of payment.

Defendant

acknowledges and agrees that such Judgment will be for $39,209.50, less any payments, plus
interest at the legal rate from the date of this agreement.

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The Receiver and 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 o f
Florida, Tampa Division.
Counsel for tho Receiver is expressly authorized to sign this agreement on behalf o f the
Receiver. The Receiver and Defendant also agree that electronically transmitted copies o f
signature pages will have the full force and affect o f original signed pages.
Notwithstanding anything to the contrary set forth herein, this Settlement Agreement, any
statements or admissions contained in this Settlement Agreement, and the fact that this
Settlement Agreement has been entered into, shall not be admissible for any purpose whatsoever
in the D & E Unit Trust Action.
In witness whereof the parties have set their hands as o f the dates indicated.

By:.
,as authorized representative
of EFG Bank

Date:

Burton W. Wiand, as Receiver

ZP J^/gV, 2 o / /
Date:

NY241,077,629.3 117444.011500

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