Securities & Exchange Commission v. Banc de Binary Ltd.

Filing 103

ORDER denying 94 Motion to Reconsider. Granting 97 Motion to Seal. Signed by Judge Robert C. Jones on 12/16/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 SECURITIES AND EXCHANGE COMMISSION, ) ) ) Plaintiff, ) ) vs. ) ) BANC DE BINARY LTD. et al., ) ) Defendants. ) ________________________________________ ) 2:13-cv-00993-RCJ-VCF ORDER 12 13 This case arises out of the alleged trading of unregistered securities. The Court has 14 entered a preliminary injunction, ruling that although they are not in fact options, the “binary 15 options” at issue are “securities” under the Securities Exchange Act of 1934, as amended. The 16 Court has also granted offensive summary judgment against Defendants Oren Shabat Laurent, ET 17 Binary Options Ltd., and BO Systems Ltd. Seychelles (collectively, “Liable Defendants”). All 18 Defendants, including Banc de Binary Ltd. and BDB Services Ltd. Seychelles (collectively, 19 “Remaining Defendants”), have objected under Civil Rule 72(a) to a discovery order (the 20 “Order”) issued by the Magistrate Judge. For the reasons given herein, the Court denies the 21 objection. 22 I. 23 24 25 LEGAL STANDARDS Rule 72(a) permits a district court judge to modify or set aside a magistrate judge’s non- dispositive ruling that is clearly erroneous or contrary to law: When a pretrial matter not dispositive of a party’s claim or defense is referred 1 to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. 2 3 4 Fed. R. Civ. P. 72(a); see also Local R. IB 3-1(a). “Under Rule 72(a), ‘[a] finding is “clearly 5 erroneous” when, although there is evidence to support it, the reviewing court on the entire 6 evidence is left with the definite and firm conviction that a mistake has been committed.’” 7 Rafano v. Patchogue-Medford Sch. Dist., No. 06-CV-5367 (JFB)(ARL), 2009 WL 789440, at 8 *12 (E.D.N.Y. Mar. 20, 2009) (quoting Burgie v. Euro Brokers, Inc., No. 05 Civ. 9 0968(CPS)(KAM), 2008 U.S. Dist. LEXIS 71386, at *18 (E.D.N.Y. Sept. 5, 2008) (quoting 10 Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 11 622 (1993))). “An order is contrary to law when it fails to apply or misapplies relevant statutes, 12 case law or rules of procedure.” Id. 13 II. DISCUSSION 14 Defendants argue that the Magistrate Judge clearly erred in ordering discovery against 15 Liable Defendants in two ways. First, Defendants argue that Plaintiff’s allegation that all 16 Defendants worked in concert is insufficient to support discovery against Liable Defendants for 17 the purpose of discovering evidence of such cooperation. The Court disagrees. Discovery may 18 be directed to any nonprivileged matter relevant to any claim or defense, even if not admissible at 19 trial but reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 20 26(b)(1). Although Defendants argue that they did not work in concert, Plaintiff points to several 21 pieces of evidence before the Magistrate Judge indicating that they did. It was not clear error for 22 the Magistrate Judge to find that further discovery would help prove the fact. Nor does it matter 23 that Liable Defendants no longer dispute their liability. Remaining Defendants still dispute their 24 liability. Evidence of relationships between Remaining Defendants and Liable Defendants is 25 Page 2 of 3 1 therefore relevant to Plaintiff’s yet-unadjudicated claims that Remaining Defendants are liable. 2 Second, Defendants argue that the Magistrate Judge’s conclusion that the stipulations of 3 liability—now superseded by the summary judgment order—were not “final” was clearly 4 erroneous. The Court disagrees. As Plaintiff notes, the stipulations of liability were only to be 5 filed if and when Remaining Defendants settled, which never occurred. And although liability of 6 Liable Defendants has now been established via the summary judgment order, the information 7 sought via the motion to compel is relevant to the claims against Liable Defendants, because, as 8 Plaintiff notes, only the fact of liability, not the amount, has been determined. Information 9 concerning the amount of proceeds obtained by Liable Defendants via their unlawful acts has not 10 yet been determined, and that amount is relevant to the claims against them, upon which final 11 judgment has not yet been entered, because the remedy is disgorgement and civil fines. 12 CONCLUSION 13 IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 94) is DENIED. 14 IT IS FURTHER ORDERED that the Motion to Seal (ECF No. 97) is GRANTED. 15 IT IS SO ORDERED. 16 Datedthis 4th day of December, 2014. Dated this 16th day of December, 2014. 17 18 _____________________________________ ROBERT C. JONES United States District Judge 19 20 21 22 23 24 25 Page 3 of 3

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