Summary
granting summary judgment to SEC on Section 17 claim where press releases "announc[ed] purported expansions and funding commitments, . . . sizeable revenues from businesses with which it actually had no connection"
Summary of this case from Sec. & Exch. Comm'n v. FarmerOpinion
No. 07-2407-cv.
November 13, 2008.
Appeal from the United States District Court for the Southern District of New York (Lynch, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court entered April 2, 2007, be and hereby is AFFIRMED.
Catherine A. Broderick (Brian G. Cartwright, Andrew N. Vollmer, Jacob H. Stillman, and Michael A. Conley, of counsel), U.S. Securities and Exchange Commission, Washington, D.C., for Plaintiff-Appellee.
Arthur W. Tifford, Tifford Tifford, P.A., Miami, FL (Lawrence A. Garvey, The Law Offices of Cushner Garvey LLP, Tarrytown, N.Y., of counsel) for Defendants-Appellants.
Present: Hon. PIERRE N. LEVAL, Hon. ROBERT A. KATZMANN and Hon. DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
The United States Securities and Exchange Commission ("SEC") sued, inter alia, defendants Richard A. Altomare and Chris G. Gunderson, alleging violations of various federal securities laws. The SEC then moved, in relevant part, for summary judgment against Altomare and Gunderson with respect to its claims that they violated sections 5 and 17(a) of the Securities Act of 1933, section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. Altomare and Gunderson cross-moved for summary judgment with respect to the section 5 claims. The district court denied Altomare's and Gunderson's motion and granted the SEC's motion. Altomare and Gunderson appeal both aspects of that decision.
We review the district court's grant of summary judgment de novo, "examining the evidence in the light most favorable to, and drawing all inferences in favor of, the non-movant." Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Altomare and Gunderson argue two points on appeal. They contend first that they did not violate section 5 of the Securities Act because the shares they issued to various consultants were exempt from registration pursuant to sections 1125(e) and 1145 of the Bankruptcy Code. They assert next that there were genuine issues of fact as to their state of mind so as to make summary judgment with respect to the fraud claims inappropriate. Having carefully considered the record, we find these arguments to be without merit. Substantially for the reasons stated in the district court's thorough and thoughtful opinion and order, SEC v. Universal Express, Inc., 475 F.Supp.2d 412 (S.D.N.Y. 2007), the judgment of the district court is AFFIRMED.