Securities and Exchange Commission v. Nadel et al
Filing
931
Unopposed MOTION to dismiss with Prejudice Plaintiff's Disgorgement and Civil Penalty Claims as to Defendant Nadel, Joint MOTION for miscellaneous relief, specifically for an Order Authorizing the Receiver to Deposit into the Receivership Estate Tax Refunds Made Payable to Defendant Nadel by Securities and Exchange Commission. (Attachments: #1 Text of Proposed Order)(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 (1) UNOPPOSED MOTION TO DISMISS WITH PREJUDICE ITS
DISGORGEMENT AND CIVIL PENALTY CLAIMS AS TO DEFENDANT NADEL
AND (2) JOINT MOTION WITH THE RECEIVER FOR AN ORDER AUTHORIZING
THE RECEIVER TO DEPOSIT INTO THE RECEIVERSHP ESTATE TAX REFUNDS
MADE PAYABLE TO DEFENDANT NADEL
Plaintiff Securities and Exchange Commission, pursuant to Rule 41(a)(2), Fed.R.Civ.P.,
moves the Court for an Order dismissing with prejudice the Commission’s claims for
disgorgement and a civil penalty against Defendant Arthur Nadel, who died on April 16, 2012.
Further, the Commission moves jointly with the Receiver for an Order authorizing the Receiver
to deposit into the Receivership Estate all tax refunds made payable to Nadel and directing
financial institutions holding accounts for the Receiver to accept any such check for deposit into
any account held by the Receiver.
At his death Nadel was serving a fourteen-year prison sentence and was subject to a
restitution judgment of almost $175 million as a result of a criminal prosecution arising from the
same facts underlying the Commission’s case. Because Nadel has died, and in light of the
Receiver’s role in obtaining assets and distributing them to Nadel’s victims, the Commission
seeks to dismiss its claims against Nadel for disgorgement and civil penalties rather than
proceeding with seeking entry of a judgment. By moving to dismiss those claims, however, the
Commission is not retracting any of its allegations or conclusions relating to Nadel. Indeed, the
Court-appointed Receiver continues fulfilling his duties in marshaling assets generated by
Nadel’s fraud, including funds related to Nadel’s estate, and the Commission in no way wishes
to undermine those efforts.
Dismissing the Commission’s monetary claims therefore is
appropriate at this stage, since the Receiver will continue obtaining Nadel’s assets for the benefit
of injured investors.
In furtherance of the Receiver’s duties, the Commission and the Receiver also jointly
seek an Order with respect to any tax refund that may be made payable to Nadel. Presently, the
Receiver is expecting a tax refund from the Internal Revenue Service of approximately
$1,184,312 relating to Nadel’s 2007 tax filing. The Receiver expects the U.S. Treasury to issue
the aforementioned refund check payable to “Arthur Nadel.” The Court previously considered
the Receivership’s entitlement to Nadel’s tax refund checks, and concluded the Receiver’s
request to deposit those checks into the Receivership Estate was well founded and within the
Court’s powers to supervise equity receiverships. See July 20, 2010, Order (Dkt. 440). The
Commission and the Receiver therefore jointly seek an order authorizing the Receiver to deposit
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the check and any other checks from the IRS payable to Arthur Nadel into the Receivership
Estate, and directing all financial institutions holding Receivership accounts in the Receiver’s
name to accept for deposit tax refund checks made payable to Nadel without the need for any
endorsement or other additional action by the Receiver.
Certification of Compliance with Local Rule 3.01(g)
Pursuant to Middle District of Florida Local Rule 3.01(g), undersigned counsel has
conferred with counsel for the Court-appointed Receiver, who does not object to this motion.
WHEREFORE for the foregoing reasons, the Commission respectfully requests (1) the
Court enter an Order dismissing with prejudice the Commission’s claims for disgorgement and a
civil penalty against Arthur Nadel and (2) jointly with the Receiver, also asks the Court to enter
an order authorizing the Receiver to deposit into the Receivership Estate all tax refund checks
made payable to Arthur Nadel and directing financial institutions holding Receivership accounts
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to accept for deposit all such checks without an endorsement or any other action by the Receiver.
Date: October 25, 2012.
Respectfully submitted,
By:
s/ Scott A. Masel
Scott A. Masel
Senior Trial Counsel
Florida Bar No. 0007110
E-mail: masels@sec.gov
SECURITIES AND EXCHANGE
COMMISSION
801 Brickell Avenue, Suite 1800
Miami, Florida 33131
Direct Dial: (305) 982-6398
Facsimile: (305) 536-4154
Lead Counsel for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on October 25, 2012, I electronically filed the foregoing with the
Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to
the following:
Burton W. Wiand, Esq.
Wiand Guerra King P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Telephone: (813) 347-5100
Facsimile: (813) 347-5199
Court-appointed Receiver for Corporate Defendants
and Relief Defendants
Gianluca Morello, Esq.
Wiand Guerra King P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Telephone: (813) 347-5100
Facsimile: (813) 347-5199
Email: grmorello@wiandlaw.com
Counsel for Receiver Burton W. Wiand
Sean P. Keefe, Esq.
James, Hoyer, Newcomer, Smiljanich & Yanchunis, PA
Suite 550
4
4830 W Kennedy Blvd
Tampa, FL 33609
813/286-4100
Fax: 813/286-4174
Email: skeefe@jameshoyer.com
Counsel for Receiver Burton W. Wiand
Terry Alan Smiljanich , Esq.
James, Hoyer, Newcomer, Smiljanich & Yanchunis, PA
Suite 550
4830 W Kennedy Blvd
Tampa, FL 33609
813/286-4100
Fax: 813/286-4174
Email: tsmiljanich@jameshoyer.com
Counsel for Receiver Burton W. Wiand
Maya M. Lockwood, Esq.
Wiand Guerra King P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Telephone: (813) 347-5100
Facsimile: (813) 347-5199
Email: mlockwood@wiandlaw.com
Co-counsel for Receiver Burton W. Wiand
Louis Joseph Shaheen, Jr. . Esq.
Akerman Senterfitt
Suite 1700
401 E Jackson St
Tampa, FL 33602-5803
813-209-5016
Fax: 813-223-2837
Email: joseph.shaheen@akerman.com
Counsel for Wells Fargo Bank, N.A.
Steven R. Wirth, Esq.
Akerman Senterfitt
Suite 1700
401 E Jackson St
Tampa, FL 33602-5803
813/223-7333
Fax: 813/223-2837
Email: steven.wirth@akerman.com
Counsel for Wells Fargo Bank, N.A.
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Ana T. Barnett, Esq.
Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, PA
Suite 2200
150 W Flagler St
Miami, FL 33130
305/789-3514
Fax: 305/789-3395
Email: abarnett@stearnsweaver.com
Counsel for Wells Fargo Bank, N.A.
Julie Fishman Berkowitz, Esq.
Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, PA
Suite 2200
150 W Flagler St
Miami, FL 33130
305/789-3353
Fax: 305/789-2698
Email: jberkowitz@stearnsweaver.com
Counsel for Wells Fargo Bank, N.A.
s/ Scott A. Masel
Scott A. Masel, Esq.
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