United States Securities and Exchange Commission v. Alpine Securities Corporation
Filing
129
MEMORANDUM OPINION & ORDER.....Alpines April 20 motions for reconsideration and for certification for interlocutory appeal are denied. (Signed by Judge Denise L. Cote on 6/18/2018) (gr)
Case 1:17-cv-04179-DLC Document 129 Filed 06/18/18 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES SECURITIES AND EXCHANGE :
COMMISSION,
:
:
Plaintiff,
:
:
-v:
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ALPINE SECURITIES CORPORATION,
:
:
Defendant.
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:
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17cv4179(DLC)
MEMORANDUM OPINION
& ORDER
For the plaintiff:
Zachary T. Carlyle
Terry R. Miller
U.S. Securities and Exchange Commission
1961 Stout Street, 17th Floor
Denver, CO 80294
For the defendant:
Maranda E. Fritz
Thompson Hine LLP
335 Madison Avenue, 12th Floor
New York, NY 10017
Brent R. Baker
Aaron D. Lebenta
Jonathan D. Bletzacker
Clyde Snow & Sessions
One Utah Center, 201 South Main Street, Suite 1300
Salt Lake City, Utah 84111
DENISE COTE, District Judge:
On March 30, 2018, the Court denied the motion for summary
judgment and for judgment on the pleadings filed by defendant
Alpine Securities Corporation (“Alpine”), and granted in part
the motion for partial summary judgment of plaintiff United
Case 1:17-cv-04179-DLC Document 129 Filed 06/18/18 Page 2 of 6
States Securities and Exchange Commission (“SEC”).
See SEC v.
Alpine Sec. Corp., No. 17cv4179(DLC), 2018 WL 1633818 (S.D.N.Y.
Mar. 30, 2018) (the “March Opinion”).
On April 20, Alpine filed
motions seeking reconsideration of rulings in the March Opinion.1
These motions became fully submitted on May 25.
Alpine also
moves for certification of several questions for interlocutory
appeal.
For the reasons that follow, Alpine’s April 20 motions
are denied.
Discussion
“[T]he standard for granting a . . . motion for
reconsideration is strict.”
Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation
omitted).
“A motion for reconsideration should be granted only
when the [moving party] identifies an intervening change of
controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.”
Kolel
Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust,
729 F.3d 99, 104 (2d Cir. 2013) (citation omitted).
It is “not
a vehicle for relitigating old issues, presenting the case under
new theories, securing a rehearing on the merits, or otherwise
Alpine also moved on April 20 to supplement the record for the
purposes of its motions for reconsideration, which was denied on
April 23.
1
2
Case 1:17-cv-04179-DLC Document 129 Filed 06/18/18 Page 3 of 6
taking a second bite at the apple.”
Analytical Surveys, 684
F.3d at 52 (citation omitted).
An issue may be certified for interlocutory appeal in the
following circumstances:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of
such action may thereupon, in its discretion, permit
an appeal to be taken from such order, if application
is made to it within ten days after the entry of the
order.
28 U.S.C. § 1292(b).
“[O]nly exceptional circumstances will
justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.”
Flor v. BOT Fin. Corp., 79 F.3d 281, 284 (2d Cir. 1996) (per
curiam) (citation omitted).
At the invitation of the Court, the parties filed motions
for summary judgment addressed to a few exemplar suspicious
activity reports (“SARs”).
See SEC v. Alpine Sec. Corp., No.
17cv4179(DLC), 2018 WL 1633818, at *7 (S.D.N.Y. Mar. 30, 2018).
Alpine principally argued in its motion that the SEC cannot
enforce Bank Secrecy Act regulations via Rule 17a-8.
*14.
See id. at
The SEC contended in its motion that Alpine violated its
obligations under Rule 17a-8 as to 36 SARs the SEC submitted
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with its motion.
See id. at *3.
Alpine moves for reconsideration of almost every aspect of
the March Opinion, arguing that the Opinion overlooked
controlling authority cited by Alpine and inappropriately
granted summary judgment to the SEC despite genuine disputes of
material fact.
Alpine argues that the March Opinion is
therefore clearly erroneous and manifestly unjust.
Alpine’s
arguments are unavailing.
A significant portion of Alpine’s moving papers present
arguments that were raised by Alpine in its summary judgment
papers and discussed in the March Opinion.
These topics include
the appropriate measure of deference to FinCEN guidance
documents, the validity of the SEC’s theory of violation of Rule
17a-8, and Alpine’s contention that imposing liability would
violate its due process rights.
Alpine’s may not use its
motions for reconsideration to relitigate issues that have
already been fully considered by the Court, and its attempt to
do so is denied.
Turning to Alpine’s motion for reconsideration of the
denial of its motion for summary judgment and for judgment on
the pleadings, Alpine fails to address the most important
aspects of the March Opinion.
For example, Alpine does not
address FinCEN’s acknowledgement that the SEC would be able to
use Rule 17a-8 to bring actions such as this one, which is
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Case 1:17-cv-04179-DLC Document 129 Filed 06/18/18 Page 5 of 6
premised on deficient suspicious activity reporting by brokerdealers.
See Alpine, 2018 WL 1633818, at *15.
As a result,
reconsideration of the March Opinion’s denial of Alpine’s motion
for summary judgment and for judgment on the pleadings is not
warranted.
Certification for interlocutory appeal of the questions
proposed by Alpine is also unwarranted.
Although Alpine
contests the rulings in the March Opinion, it has not shown that
this case is so extraordinary that the final judgment rule
should not apply.
Moreover, Alpine has failed to show any
serious reason to doubt the March Opinion’s application of
settled administrative law principles to the suspicious activity
reporting regime at issue here.
Finally, Alpine has not shown that reconsideration of the
partial grant of the SEC’s motion for partial summary judgment
is warranted.
Alpine’s motion for reconsideration conflates the
question of whether a broker-dealer has an adequate anti-money
laundering (“AML”) program with the question of whether a
particular SAR filed by a broker-dealer is adequate.
As the SEC
explains, this case is not a test of the adequacy of Alpine’s
AML program as a program, but instead a test of whether the SARs
identified by the SEC satisfy the requirements of 31 C.F.R.
§ 1023.320.
Alpine has not shown that the March Opinion erred
in ruling that the exemplar SARs submitted by the SEC in
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Case 1:17-cv-04179-DLC Document 129 Filed 06/18/18 Page 6 of 6
connection with its motion were deficient.
(In many instances,
the Opinion’s findings were conditioned on the SEC proving at
trial that each SAR was required to be filed.
WL 1633818, at *18.)
See Alpine, 2018
As a result, Alpine’s motion for
reconsideration of the March Opinion insofar as it partially
granted the SEC’s motion for partial summary judgment is denied.
It should be noted that an interlocutory appeal would be
particularly unwarranted since the parties’ full summary
judgment motions are due to be filed in a few weeks, on July 13.
The partial summary judgment motion practice gave the parties
the opportunity to learn the legal framework that will govern
that motion and to address the evidence in that context.
Conclusion
Alpine’s April 20 motions for reconsideration and for
certification for interlocutory appeal are denied.
Dated:
New York, New York
June 18, 2018
____________________________
DENISE COTE
United States District Judge
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