Securities and Exchange Commission v. Nadel et al

Filing 723

Unopposed MOTION for leave to file to respond to objections to motion to approve settlement (Doc. 679) with Goldman Sachs Execution & Clearing, L.P. 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,
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 UNOPPOSED MOTION FOR LEAVE TO RESPOND TO
OBJECTIONS TO MOTION TO APPROVE SETTLEMENT (DOC. 679)
WITH GOLDMAN SACHS EXECUTION & CLEARING, L.P.
On December 14, 2011, Burton W. Wiand, as Receiver (the “Receiver”), filed a
motion (the “Motion”) to approve a settlement (the “Settlement”) with Goldman Sachs
Execution & Clearing, L.P. (“GSEC”) (Doc. 679). In accordance with the procedures set
forth in the Motion and in the related Receiver’s Motion To Approve Notice Of Settlement
(Doc. 681), the Receiver mailed settlement notices and published notice as specified in those
filings. (See Docs. 686, 699.) Overall, over 700 notices were mailed to investors in the

scheme underlying this case, to potential joint tortfeasors, and to other interested parties
whose rights may be affected by the Settlement. The notices advised recipients of their right
to object to the Settlement, of the procedure for objecting, and of the January 17, 2012,
deadline for filing objections. In response to the over 700 notices mailed by the Receiver, 7
objections (the “Objections”) were filed (on behalf of 8 individuals in their individual
capacity and/or in their capacity as trustees of trusts (the “Objectors”)). (Docs. 707-11, 715,
716.) The Objections have no merit, and the Receiver seeks leave to file an omnibus reply to
the Objections because he believes it will assist the Court with resolving the Motion.
In the reply, the Receiver intends to address certain matters raised by the Objections,
including the following:
(1)
the Objectors lack standing to object because none of them has a right to
receive distributions of assets from the Receivership Estate for one or more
reasons, including: the failure to file a claim in the claims process; their status as
“profiteers” (i.e., investors who received more money from the scheme than they
invested); and, for one of them, his status as a non-investor;
(2)
several incorrect factual and legal contentions, such as a
mischaracterization of Shoreline Trading Group LLC as GSEC’s subsidiary,
mischaracterizations about settlements in the Receiver’s “clawback” cases, and
inaccurate comparisons between those cases and a potential case against GSEC;
and
(3)
certain legal and factual distinctions between the circumstances and filings
here and those in S.E.C. v. Citigroup Global Markets Inc., 2011 WL 5903733
(S.D.N.Y. Nov. 28, 2011), and in SEC v. Koss Corp., Case No. 2:11-C-991-RTR,
Doc. 5 (E.D. Wi. Dec. 20, 2011) (letter from the Hon. R. Randa to A. Wood and
J. Davidson of the S.E.C.), which cases involved resolution of claims by the
S.E.C. by Consent Judgments, including the substantial benefit provided by the
Settlement to investors in Nadel’s scheme who suffered losses and filed allowed
claims.
WHEREFORE, the Receiver respectfully seeks leave to file a reply of no more than
ten pages within 10 days of an order on this motion.

2

LOCAL RULE 3.01(g) CERTIFICATION
Counsel for the Receiver has conferred with counsel for the S.E.C. and with counsel
for the Objectors who are represented, and neither objects to the Receiver having leave to
reply.
s/Gianluca Morello
Gianluca Morello, FBN 034997
[e-mail]
Michael S. Lamont FBN 0527122
[e-mail]
Jared J. Perez, FBN 0085192
[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

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 23, 2012, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system.
I FURTHER CERTIFY that on January 23, 2012, I mailed the foregoing document
and the notice of electronic filing by first-class mail to the following non-CM/ECF
participants:

3

Arthur G. Nadel, Register No. 50690-018
Butner Low FCI
Federal Correctional Institution
P.O. Box 999
Butner, NC 27509

John R. Hightower, Jr., Esq.
Richard J. McIntyre, Esq.
McIntyre, Panzarella, Thanasides,
Hoffman, Bringgold & Todd, P.L.
6943 East Fowler Avenue
Temple Terrace, FL 33617

Barbara A. Meeker
3105 Deepwater Lane
Maumee, OH 43537

- AND –

Kelvin V. Lee
2287 Springs Landing Blvd.
Longwood, FL 32779

Paul B. Thanasides, Esq.
McIntyre, Panzarella, Thanasides,
Hoffman, Bringgold & Todd, P.L.
400 North Ashley Drive
Suite 1500
Tampa, FL 33602

Diane Pezick
110 Piedmont Circle
Maryville, TN 37803
Tyna L. Gaylor
11811 Lakewood Lane
Fairfax Station, VA 22039

Attorneys for Investors, Vernon M. Lee,
Individually and as Trustee of the Vernon
M. Lee Trust, Brian L. Meeker, as Trustee
for the Brian L. Meeker Trust dtd
12/06/1991, and Samuel Ross Morgan, III

Martin Huppert
3829 North Woodrow Street
Arlington, VA 22207

s/Gianluca Morello
Gianluca Morello, FBN 034997
[e-mail]
Michael S. Lamont FBN 0527122
[e-mail]
Jared J. Perez, FBN 0085192
[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