Securities & Exchang v. Dowdell, et al

Filing 976

ORDER APPROVING 975 REPORT AND RECOMMENDATIONS ; granting 965 Motion To Approve Financial Statements; and further relief as set forth in said order. The clerk is directed to close this case for administrative and statistical purposes. Signed by Senior Judge Norman K. Moon on 2/1/18. (hnw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA

02/01/2018

CHARLOTTESVILLE DIVISION
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v.

CASE NO. 3:01–cv–00116

ORDER ADOPTING REPORT AND
RECOMMENDATION

TERRY DOWDELL, ET AL.,
JUDGE NORMAN K. MOON
Defendants.
Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge
Robert S. Ballou on the Receiver’s final report and motion to conclude the receivership. (Dkts.
965, 975). The period for objections to the R&R has expired without any objections being filed.
Accordingly, the R&R is hereby ADOPTED, and it is ORDERED as follows:
1. The Motion to Approve Financial Statements, attached as Exhibit A to the Receiver’s
Report in Preparation for Final Distribution (Dkt. No. 965) is GRANTED.
2. The Final Report is APPROVED.
3. The Receiver is authorized to establish a reserve of $30,323 for fees needed to conclude
the receivership.
4. The Receiver is authorized to pay from the reserve any reasonable professional fees and
expenses performed after April 30, 2017, including the conclusion of activities
undertaken in implementing the provisions of this Report and Recommendation. The
Receiver shall seek court approval for any professional fees and expenses to be paid
greater than five thousand dollars ($5,000.00).

5. The Receiver and his agents are authorized to undertake any and all activities necessary
to wind up the affairs of the Receivership, including but not limited to, filing tax returns
for 2016 and 2017.
6. The Receiver is authorized in his discretion to destroy all of the pre-receivership records
and records created during the course of the Receivership that he deems unnecessary to
maintain. The Receiver shall exercise sound business judgment in executing document
retention decisions.
7. The Receiver is authorized to make a final distribution to investor claimants. Any funds
from the final distribution not claimed within ninety (90) days from the date on the check
shall be forfeited to the Clerk of Court.
8. After all activities of the Receiver have been completed, the Receiver shall: a) pay into a
Court deposit fund all forfeited and unclaimed funds, judgment payments, restitution
payments, and unused funds from the reserve; b) provide to the Clerk of Court in a
compatible electronic format the Receiver’s mailing matrix listing the percentage of
distribution to each claimant with an Approved Claim, and any related information
including the balance due on each Approved Claim; c) file a supplemental accounting of
all activity after December 31, 2016, and c) file a Notice with the Court advising that all
matters of the Receivership have been concluded. The Receiver shall file the Notice
within seven (7) months from the entry of an order approving the Motion to Conclude
Receivership.
9. Within thirty (30) days of entry of an order approving the Motion to Conclude
Receivership, the Receiver shall provide to the Clerk of Court the remaining amount of
restitution due in USA v. Dowdell, No. 3:02-cr-107.

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10. Upon receiving funds from the Receiver at the conclusion of the Receivership, the Clerk
of Court shall: a) place those funds into the deposit fund currently existing for criminal
cases USA v. Dowdell, No. 3:02-cr-107 and USA v. Ganger, et al., No. 3:07-cr-10;
b) allocate the funds against those defendants ordered to pay restitution in both cases on a
pro rata basis; c) and maintain the deposit fund in the Clerk of Court’s usual procedure
and course of business.
11. Upon filing of the Notice that the Receivership is concluded, the Receivership shall be
terminated and the Receiver will be discharged from any and all claims and causes of
action which might be brought against him arising from his administration of the assets
turned over to him.
12. If the Receiver or Securities and Exchange Commission is presented with additional
funds from civil judgments after the conclusion of this Receivership, those funds shall be
promptly remitted to the Court.
13. The Court shall enter an order in the criminal cases USA v. Dowdell, No. 3:02-cr-107 and
USA v. Ganger, et al., No. 3:07-cr-10 that all future payments on judgments or restitution
payable to the Receiver shall be paid into the Court for disbursement through the Court’s
deposit fund, rather than the Receiver.
14. The Clerk shall send a copy of the Final Order concluding the Receivership to the Federal
Court for the District of Arizona and request that the Court enter an order in the criminal
action for Michael Hardesty, No. 2:09-cr-50129, directing that all future restitution
payments be paid to the Clerk of Court for the Western District of Virginia.
15. The Court shall retain jurisdiction of any future claims or actions against the Receiver
arising out of his duties as Receiver and for management of all funds received.

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It is so ordered. The Clerk is directed to close this case for administrative and statistical
purposes.
1st
Entered this _____ day of February, 2018.

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