Securities and Exchange Commission v. Mowen et al

Filing 121

MEMORANDUM DECISION granting 115 Motion for Summary Judgment. Signed by Judge Dee Benson on 12/13/11. (jlw)

Case 2:09-cv-00786-DB -PMW Document 115 Filed 11/16/11 Page 1 of 4

2011 DEC 13 P ~.~
Stephen C. McKenna, Esq. (pro hac vice)
[e-mail]
Polly A. Atkinson, Esq.
[e-mail]
Securities and Exchange Commission
1801 California Street, Suite 1500
Denver, CO 80202
[phone]

r:::

DISTRICT OF UTA~U ~~..j.

d

~~

r;

L:.

>:~-:'~,

,',,,,,,,:,"~:;_

J.lj

Thomas M. Melton, Esq.
[e-mail]
Securities and Exchange Commission
15 W. South Temple Street
Suite 1800
Salt Lake City, UT 84101
(80l) 524-6748
Attorneysfor Plaintiff

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

SECURlTIES AND EXCHANGE
COMMISSION,
Plaintiff

PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT
AGAINST DEFENDANT
DAVID G. BARTHOLOMEW

v.
Jeffrey L. Mowen, Thomas R. Fry,

Bevan J. Wilde, Gary W. Hansen, Michael

G. Butcher, James B. Mooring, David G.
Bartholomew, and Michael W. Averett,

Case No. 2:09-cv-00786-DB
District Court Judge Dee Benson
Magistrate Judge Paul M. Warner

Defendants,
Erin O'Malley flk/a Erin O. Mowen,
Relief Defendant.

Case 2:09-cv-00786-DB -PMW Document 115 Filed 11/16/11 Page 2 of 4

Plaintiff, Securities and Exchange Commission, moves pursuant to Fed. R. Civ. P. 56(a)
and DU CivR 56-1 for summary judgment against defendant David G. Bartholomew
("Bartholomew") on all counts of the Complaint. Bartholomew, through his company LOA
Capital LLC, offered and sold over $6.7 million of unregistered promissory notes (i.e. securities)
to investors, in violation of Sections 5(a) and 5(c) of the Securities Act of 1933 ("Securities
Act") - Count 3. In selling those securities, Bartholomew acted as an unregistered broker-dealer,
in violation of Section 15(a) of the Securities Exchange Act of 1934 ("Exchange Act") - Count
4. Further, Bartholomew's offering memorandum under which he sold the securities, as well as
his oral representations to investors, fraudulently contained mUltiple material misrepresentations
and omissions, in violation of Section 17(a) of the Securities Act, Section lOeb) of the Exchange
Act, and Rule 10b-5 thereunder - Counts 2 and 1, respectively.
The Memorandum of Law in Support of this Motion demonstrates that there is no
disputed issue of material fact as to Bartholomew's violations of the federal securities laws. The
Memorandum also sets forth Bartholomew's ill-gotten gains from his illegal conduct. The
Commission therefore seeks summary judgment: 1) finding that Bartholomew violated Sections
1O(b) and 15(a) of the Exchange Act, Rule 10b-5 thereunder, and Sections 5(a), 5(c), and 17(a)
of the Securities Act; 2) enjoining Bartholomew from future violations of those provisions; 3)
ordering disgorgement of Bartholomew's ill-gotten gains of$3,926,337; 4) ordering prejudgment
interest of$587,182 on that disgorgement; and 5) imposing a third-tier penalty to be determined
by the Court.

1

Case 2:09-cv-00786-DB -PMW Document 115 Filed 11/16/11 Page 3 of 4

Respectfully submitted this 16th day of November, 2011,

sf Stephen C. McKenna
Stephen C. McKenna, Colo. Bar No. 28744

Polly A. Atkinson, Colo. Bar No. 18703

Attorneys for Plaintiff
Securities and Exchange Commission

1801 California Street, Suite 1500

Denver, CO 80202

Telephone [phone]

Fax [phone]

Email: [e-mail]
Email: [e-mail]

2

Case 2:09-cv-00786-DB -PMW Document 115 Filed 11/16/11 Page 4 of 4

CERTIFICATE OF SERVICE
I certify that on this 16th day of November, 2011, I caused a copy of the PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT DAVID G.
BARTHOLOMEW to be served upon the following parties by Notice of Electronic Filing to
their attorneys, who are registered users ofECF. For unrepresented parties, a copy was served
via U.S. Mail.
Douglas E. Griffith: [e-mail]
Attorney for Defendants Mooring and Averett
Brad Lam:
[e-mail]
Attorney for Defendants Hansen and Butcher
Jennifer A. James: [e-mail]
Attorney for Defendant Fry
Robert S. Clark: [e-mail]
James Logan Ahlstrom: jahlstrom(w,parrbrown.com
Attorneys for Defendant Bartholomew
Jeffrey L. Mowen
Inmate No. 43589-279
c/o Florence FCI
Federal Correctional Institution
PO Box 6000
Florence, CO 81226
Bevan J. Wilde
4872 Sampson Court
Highland, UT 84003
s/ Nicole L. Nesvig

3