Securities and Exchange Commission v. Nadel et al

Filing 673

Unopposed MOTION to Seal Document specifically, to seal document containing identity of claimants by Burton W. Wiand. (Morello, Gianluca)

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; and
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, LLC,
Relief Defendants.
/
UNOPPOSED MOTION TO SEAL CLAIMANT INFORMATION
Burton W. Wiand, as Receiver (the “Receiver”), moves the Court pursuant to Local
Rule 1.09 for an order permitting the Receiver to file under seal very limited information
relating to the identity of claimants that have submitted claims as part of the claims process
established in this case (the “Claimants”).
1.

Shortly, the Receiver will file a motion seeking an order approving: his

determination and priority of claims, the pooling of receivership assets and liabilities,
approving a plan of distribution, and establishing an objection procedure (the “Claims

Motion”).
2.

In the Claims Motion, the Receiver will reference and attach Exhibits

identifying submitted claims by claim number rather than by Claimant or account name. The
Receiver assigned each claim a number and intends to send each Claimant a letter providing
the Claimant’s claim identifying number. The Receiver proposes to file with the Court under
seal a separate cross-reference list with the names of each Claimant, the related account
name, and the corresponding claim number (the “Cross-Reference List”) so the Court is able
to match the Claimants to the claim determinations proposed by the Receiver in the Claims
Motion.
3.

The purpose of filing this information under seal is to protect the privacy of

the Receivership Entities’ investors and the financial repercussions they experienced from
Arthur Nadel’s Ponzi scheme. The Receiver believes the preservation of investor privacy,
especially with respect to financial information, is a sufficient reason to depart from the
general policy of public court filings.
4.

As previously noted, the filing of the Cross-Reference List is necessary to

provide the Court with the ability to match Claimants to the claim numbers used by the
Receiver in the exhibits to the Claims Motion. The Receiver is unaware of any other means
of providing the Court with this information and of protecting the privacy of the Claimants.
5.

Sealing the Cross-Reference List will neither prejudice any party’s interests

nor cause any harm to any third parties.
6.

Pursuant to Local Rule 1.09(c), the Receiver requests that the Cross-Reference

List be sealed indefinitely until further order of the Court. This will alleviate the need to

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employ Receivership resources to move to renew the seal and will prevent inadvertent
release of sensitive information.
MEMORANDUM OF LAW
The Receiver respectfully submits that the narrow request to file under seal a list of
the names of the Claimants and their related accounts with corresponding claim numbers
used in the Claims Motion to protect the privacy of the Claimants outweighs the public’s
right of access to this information. The right of access to judicial records pursuant to
common law is well established, but is not absolute. Microlumen, Inc. v. Allegrati, 2007 WL
1247068 (M.D. Fla. Apr. 30, 2007). The presumption of public access must be balanced
against any competing interest. United States v. Maali, 2004 WL 2656879 (M.D. Fla. Aug.
30, 2004). “[I]n contrast to the compelling justification required for closure of criminal
trials, the trial court has broad latitude where only the common-law right of access to court
records is implicated.” Id. (quoting United States v. Noriega, 752 F. Supp. 1037, 1040 (S.D.
Fla. 1990)).
Here, the public has no overriding interest in learning the identities of the victims of
Nadel’s scheme or the details relating to their investments. Indeed, this Court approved a
procedure identical to that set forth in this motion in S.E.C. v. HKW Trading LLC, Case No.
8:05-cv-01076-T-24TBM, Order granting Unopposed Motion To File Claimant Information
Under Seal (M.D. Fla.) (Doc. 159).
WHEREFORE, the Receiver respectfully requests that this Court enter an Order
permitting the filing under seal of the Cross-Reference List identifying the account and

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Claimant name(s) that correspond to the assigned claim number on exhibits to the Claims
Motion.
LOCAL RULE 3.01(G) CERTIFICATE OF COUNSEL
The undersigned counsel for the Receiver has conferred with counsel for the
Commission and is authorized to represent to the Court that the Commission has no objection
to the relief sought herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 30, 2011, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system.
I FURTHER CERTIFY that on November 30, 2011, I mailed a copy of the
foregoing and notice of electronic filing by first-class mail delivery to the following nonCM/ECF participant(s):
Arthur Nadel, Register No. 50690-018
FCI BUTNER LOW
Federal Correctional Institution
P.O. Box 999
Butner, NC 27509
s/Gianluca Morello
Gianluca Morello (Trial Counsel)
Florida Bar No. 034997
[e-mail]
Michael S. Lamont, FBN 0527122
[e-mail]
Maya Lockwood, FBN 0175481
[e-mail]
WIAND GUERRA KING P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Tel. [phone]
Fax [phone]
Attorneys for the Receiver, Burton W. Wiand

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