ROBB EVANS & ASSOCIATES LLC Receiver of WG Trading Investors, LP, WGIA, LLC, Westridge Capital Management, Inc. Stephen Walsh, Paul Greenwood, Certain Relief Defendants, et al. Commodity Futures Trading Commission v. Westridge Capital Management, et al. CASE No. 09-CV-1749 (GBD) Securities and Exchange Commission v. WG Trading Investors, L.P., et al. CASE No. 09-CV-1750 (GBD) Notice of Motion and Motion for Approval of Settlement Agreement Between Receiver and James L. Carder; Memorandum of Points and Authorities in Support Thereof; Declaration of Brick Kane in Support Thereof Filed December 7, 2012
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ROBB EVANS & ASSOCIATES LLC
Receiver of WG Trading Investors, LP, WGIA, LLC, Westridge Capital Management, Inc.
Stephen Walsh, Paul Greenwood, Certain Relief Defendants, et al.
Commodity Futures Trading Commission v. Westridge Capital Management, et al.
CASE No. 09-CV-1749 (GBD)
Securities and Exchange Commission v. WG Trading Investors, L.P., et al.
CASE No. 09-CV-1750 (GBD)
Notice of Motion and Motion for Approval of Settlement Agreement
Between Receiver and James L. Carder;
Memorandum of Points and Authorities in Support Thereof;
Declaration of Brick Kane in Support Thereof
Filed December 7, 2012
1095798.1
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK
COMMODITY FUTURES TRADING COMMISSION,
Plaintiff,
-against-
STEPHEN WALSH, PAUL GREENWOOD, WESTRIDGE CAPITAL MANAGEMENT, INC., WG TRADING INVESTORS, LP, WGIA, LLC,
Defendants,
WESTRIDGE CAPITAL MANAGEMENT ENHANCEMENT FUNDS INC., WG TRADING COMPANY LP, WGI LLC, K&L INVESTMENTS, AND JANET WALSH,
Relief Defendants.
Civil Action No.: 09-CV-1749 (GBD)
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
-against-
WG TRADING INVESTORS, L.P., WG TRADING COMPANY LIMITED PARTNERSHIP, WESTRIDGE CAPITAL MANAGEMENT, INC., PAUL GREENWOOD, and STEPHEN WALSH
Defendants,
ROBIN GREENWOOD and JANET WALSH
Relief Defendants.
Civil Action No.: 09-CV-1750 (GBD)
NOTICE OF MOTION AND MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT
BETWEEN THE RECEIVER AND JAMES L. CARDER
Case 1:09-cv-01749-GBD Document 620 Filed 12/07/12 Page 1 of 4
1095798.1 2
TO THE PARTIES TO THIS ACTION, AND TO ALL CREDITORS AND OTHER
INTERESTED PARTIES TO THE RECEIVERSHIP PROCEEDING:
COMES NOW Robb Evans & Associates LLC, as Receiver over WG Trading Investors,
L.P., WG Trading Company Limited Partnership, and other entities (the “Receiver”), and hereby
moves the Court for an order approving the Settlement Agreement and Release dated as of
October 24, 2012 (the “Carder Settlement Agreement”) by and between the Receiver and James
L. Carder ("Carder"), a copy of which is attached as Exhibit 1 to the declaration of Brick Kane
filed in support of this motion, and seeks an order for the following relief:
1. That the Court determine the notice provided by service of this motion on the
interested parties to the receivership proceeding is adequate and sufficient, and that no further
notice is necessary before the Court enters an Order granting the requested relief;
2. That the Court authorize the Receiver to enter into the Carder Settlement
Agreement attached as Exhibit 1 to the declaration of Brick Kane; and
3. That the Court authorize the Receiver to execute, acknowledge and deliver any
and all agreements, documents and instruments necessary or convenient, and to take all steps
necessary or convenient to complete, implement, effectuate, consummate and perform the
provisions of the Carder Settlement Agreement.
The Receiver submits that good cause exists for the approval of the Carder Settlement
Agreement and entry of an order granting the relief set forth above because (1) it is a reasonable
and cost-efficient compromise of disputed claims, which includes a release by Carder of more
than $4.4 million in claims against the receivership estate, (2) it allows the Receiver to release
$800,000 for the benefit of the receivership estate, which had been withheld by the Receiver as a
potential distribution pending further investigation of Carder's claims, (3) it does not seek to bar
claims that the government, investors or other parties may have against Carder, and (4) it
preserves the rights of the receivership estate with respect to any indemnity claims that Carder
may assert in the future.
Case 1:09-cv-01749-GBD Document 620 Filed 12/07/12 Page 2 of 4
1095798.1 3
This motion is made and based on this notice of motion and motion, the memorandum of
points and authorities and declaration of Brick Kane filed concurrently herewith, the Receiver’s
reports of activities, including the Report of Temporary Receiver’s Activities February 25, 2009
Through May 22, 2009 (the “Receiver’s First Report”) (Docket No. 102 in the above-captioned
SEC Action and Docket No. 110 in the above-captioned CFTC Action), the Report of Receiver’s
Activities for the Period From May 25, 2009 Through May 28, 2010 (the “Receiver’s Second
Report”) (Docket No. 303 in the SEC Action and Docket No. 329 in the CFTC Action), and such
other pleadings, records and files of the Court of which the Receiver may request the Court take
judicial notice in connection with the motion, and on such further evidence and arguments of
counsel as may hereafter be presented in support of the motion.
PLEASE TAKE FURTHER NOTICE that pursuant to Local Civil Rule 6.1(b) of the
Local Rules of the United States District Courts for the Eastern and Southern Districts of New
York, the deadline for any party or other interested party to the receivership estate to file a
response, opposition or objection to this motion is 14 days after service of this motion.
WHEREFORE, the Receiver respectfully requests that the Court approve the Carder
Settlement Agreement and grant the relief as requested herein.
Dated: December 7, 2012Los Angeles, California
Respectfully submitted,
/s/ Thomas S. Arthur__________ Thomas S. Arthur, Esq.Craig A. Welin, Esq.Admitted Pro Hac Vice in the United States District Court-Southern District of New YorkFRANDZEL ROBINS BLOOM & CSATO, L.C.6500 Wilshire Boulevard, 17th FloorLos Angeles, California 90048-4920Telephone: (323) 852-1000Facsimile: (323) 651-2577E-mail: [email protected]: [email protected] for ReceiverRobb Evans & Associates LLC
Case 1:09-cv-01749-GBD Document 620 Filed 12/07/12 Page 3 of 4
1095798.1 4
-and-
Gary Owen Caris, Esq.Lesley Anne Hawes, Esq. Admitted Pro Hac Vice in the United States District Court-Southern District of New YorkMCKENNA LONG & ALRIDGE LLP300 South Grand Avenue, 14th FloorLos Angeles, California 90071-3124Telephone: (213) 688-1000Facsimile: (213) 243-6330E-mail: [email protected]: [email protected] for ReceiverRobb Evans & Associates LLC
-and-
Christopher F. Graham, Esq.MCKENNA LONG & ALRIDGE LLP230 Park Avenue, Suite 1700New York, NY 10169Telephone: (212) 922-1800Facsimile: (212) 922-1819E-mail: [email protected] for ReceiverRobb Evans & Associates LLC
Case 1:09-cv-01749-GBD Document 620 Filed 12/07/12 Page 4 of 4
1095799.1
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK
COMMODITY FUTURES TRADING COMMISSION,
Plaintiff,
-against-
STEPHEN WALSH, PAUL GREENWOOD, WESTRIDGE CAPITAL MANAGEMENT, INC., WG TRADING INVESTORS, LP, WGIA, LLC,
Defendants,
WESTRIDGE CAPITAL MANAGEMENT ENHANCEMENT FUNDS INC., WG TRADING COMPANY LP, WGI LLC, K&L INVESTMENTS, AND JANET WALSH,
Relief Defendants.
Civil Action No.: 09-CV-1749 (GBD)
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
-against-
WG TRADING INVESTORS, L.P., WG TRADING COMPANY LIMITED PARTNERSHIP, WESTRIDGE CAPITAL MANAGEMENT, INC., PAUL GREENWOOD, and STEPHEN WALSH
Defendants,
ROBIN GREENWOOD and JANET WALSH
Relief Defendants.
Civil Action No.: 09-CV-1750 (GBD)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT BETWEEN THE RECEIVER
AND JAMES L. CARDER
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 1 of 21
1095799.1 i
TABLE OF CONTENTS
Page
I. INTRODUCTION ...............................................................................................................1
II. FACTUAL AND PROCEDURAL BACKGROUND.........................................................1
A. Commencement of the Receivership. .......................................................................1
B. The Fraudulent Ponzi Scheme. ................................................................................2
C. The Claims Verification Procedures Order. ............................................................3
D. The Claims Administration Procedures Order. .......................................................4
E. Carder's Proposal in Response to the Claims Administration Procedures Order........................................................................................................................4
F. The Receiver's Initial Distribution Plan. .................................................................5
G. Responses By Investors And Carder to The Receiver's Motion, And Entry Of The Distribution Order. ......................................................................................5
H. The Receiver's Further Investigation of Carder's Claims. ......................................7
I. Potential Indemnity Claims......................................................................................9
J. The Receivership Estate's Potential Claims Against Carder...................................9
K. The Receiver's Settlement with Carder. .................................................................10
III. THE SETTLEMENT IS FAIR AND SHOULD BE APPROVED ...................................11
A. Standards for Approval and Role of the Court. .....................................................11
B. The Settlement Agreement Is Well Within the Range of Reasonableness. .............14
IV. CONCLUSION..................................................................................................................16
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 2 of 21
1095799.1 ii
TABLE OF AUTHORITIES
Page(s)FEDERAL CASES
Bennett v. Behring,737 F.2d 982 (11th Cir. 1984)) .................................................................................................11
Girsh v. Jepson,521 F. 2d 153 (3rd Cir. 1975) ..................................................................................................13
Gordon v. Dadante,336 Fed. Appx. 540 (6th Cir. 2009)..............................................................................11, 12, 13
Gordon v. Dadante,No. 1:05CV2726, 2008 WL 1805787 at *13 (N.D. Ohio 2008), aff’d 336 Fed. Appx. 540............................................................................................................................................13
In re Iridium Operating LLC,478 F.3d 452 (2d Cir. 2007).....................................................................................................14
In re W.T. Grant Co.,699 F.2d 599 (2d Cir. 1983).....................................................................................................14
Newman v. Stein,464 F.2d 689 (2d Cir. 1972)...............................................................................................13, 14
Protective Committee for Independent Stockholders of TMT Trailer Perry, Inc. v. Anderson,390 U.S. 414, 88 S.Ct. 1157 (1968).........................................................................................14
Securities and Exchange Commission v. Arkansas Loan and Thrift Corp.,427 F.2d 1171 (8th Cir. 1970) ............................................................................................11, 13
Securities and Exchange Commission v. Credit Bancorp, Ltd.,No. 99 Civ. 11395, 2002 WL 1792053 (S.D.N.Y. August 2, 2002)..................................11, 12
Securities and Exchange Commission v. Parish,2010 U.S. Dist. LEXIS 11786 (D.S.C. 2010) ..........................................................................12
Securities and Exchange Commission v. Princeton Economic International, Inc.,No. 99 Civ. 9667, 2002 WL 206990 (S.D.N.Y. February 8, 2002)...................................11, 12
Sterling v. Stewart,158 F.3d 1199 (11th Cir. 1998) ................................................................................................11
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 3 of 21
1095799.1 iii
OTHER AUTHORITIES
3 Clark, Ralph Ewing, A Treatise on the Law and Practice of Receivers, § 770 (3d ed. 1992) ..................................................................................................................12
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 4 of 21
1095799.1 -1-
Robb Evans & Associates LLC (the "Receiver") respectfully submits its memorandum of
points and authorities in support of its motion for approval of a settlement agreement (the
"Settlement Agreement") between the Receiver and James L. Carder ("Carder").
I.
INTRODUCTION
When the Receiver was appointed in these consolidated cases, it was instructed by the
Court to, among other things, verify and administer claims against the receivership estate.
Carder, who is a principal of one of the companies that is in receivership and a limited partner in
another receivership entity, has asserted various claims against the receivership estate. The
Receiver engaged in extensive negotiations with Carder regarding his claims, as well as potential
offsets and claims by the receivership estate against Carder. The negotiations were successful
and have resulted in the Settlement Agreement. By this motion, the Receiver seeks the Court's
approval of the Settlement Agreement.
The Receiver respectfully submits that this is an outstanding settlement for the
receivership estate and should be approved because (1) it is a reasonable and cost-efficient
compromise of disputed claims, which includes a release by Carder of more than $4.4 million in
claims against the receivership estate, (2) it allows the Receiver to release $800,000 for the
benefit of the receivership estate, which had been withheld by the Receiver as a potential
distribution pending further investigation of Carder's claims, (3) it does not seek to bar claims
that the government, investors or other parties may have against Carder, and (4) it preserves the
rights of the receivership estate with respect to any indemnity claims that Carder may assert in
the future.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Commencement of the Receivership.
On February 25, 2009, the Receiver was appointed as the receiver over WG Trading
Investors, L.P. (“WGTI”), WG Trading Company, Limited Partnership (“WGTC”) and
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 5 of 21
1095799.1 -2-
Westridge Capital Management, Inc. (“Westridge Capital”),1 and over the assets of Greenwood,
Walsh, Robin Greenwood and Janet Walsh, in the case captioned Securities and Exchange
Commission v. WG Trading Investors, L.P., et al., United States District Court, Southern District
of New York, Case No. 09-CV-1750 GBD (the “SEC Action”). The Receiver was made
permanent receiver in the SEC Action by an order of preliminary injunction dated May 21, 2009.
SEC Action Dckt. Nos. 2, 100. See, Declaration of Brick Kane in Support of Motion for
Approval of Conditional Settlement Between the Receiver and James L. Carder (the "Kane
Declaration") filed concurrently herewith, ¶ 3.
On February 25, 2009, the Receiver was also appointed as the receiver over WGTI,
WGI, LLC, K&L Investments, and over the assets of Janet Walsh, in the case captioned
Commodity Futures Trading Commission v. Stephen Walsh, et al., United States District Court,
Southern District of New York, Case No. 09-CV-1749 GBD (the “CFTC Action”). The
Receiver was made permanent receiver in the CFTC Action by an order of permanent injunction
dated May 21, 2009. CFTC Action Dckt. Nos. 2, 108. Kane Declaration, ¶ 4.
The orders appointing the Receiver in the SEC Action and CFTC Action provide, among
other things, that the Receiver has full power to take and retain immediate possession and control
of all assets and property of WGTC, WGTI and Westridge, and to sue for, collect, receive and
take possession of all monies of the defendants and the relief defendants.
B. The Fraudulent Ponzi Scheme.
The Receiver filed two reports with the Court setting forth its activities and findings,
which demonstrate that WGTI and WGTC (hereinafter referred to collectively as the
“Receivership Entities”) were financially inseparable and were operated as a unitary Ponzi-type
1 Westridge Capital is a Delaware corporation formed by Stephen Walsh ("Walsh"), Paul Greenwood ("Greenwood") and Carder in 1983. Stock ownership was distributed 51% to Greenwood and Walsh, and 49% to Carder. Greenwood and Walsh resigned as directors of Westridge Capital in 2000, but the ownership percentages did not change. Carder was also a limited partner of WGTC.
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 6 of 21
1095799.1 -3-
fraudulent enterprise.2 Kane Declaration, ¶ 6. The Receiver determined that the general partners
of the Receivership Entities - - Walsh and Greenwood - - hid their misappropriation of investor
funds and losses in connection with an investment in a company known as Signal Apparel
Company, Inc. ("Signal Apparel") through, among other things, improper “employee advances”.
Kane Declaration, ¶ 7.
Walsh and Greenwood misappropriated a substantial portion of the investor funds, in
excess of $130 million, for their own personal use and to fund their lavish lifestyles. First
Report, pp. 13-14. The Receivership Entities lost in excess of $180 million in connection with
the investment in Signal Apparel. First Report, pp. 19-24. As a result of, among other things,
Walsh and Greenwood’s misappropriation of investor funds and their efforts to hide the
substantial losses in Signal Apparel, the Receivership Entities did not invest all of the money
raised from investors that should have been invested. Kane Declaration, ¶ 7.
All of these facts led the Receiver to the inescapable conclusion that the Receivership
Entities were in fact a unitary Ponzi-type fraudulent investment enterprise. Over a 13-year
period commencing in 1996, the Receivership Entities had net earnings of approximately $331
million, but paid out and promised to pay out earnings to its investors of approximately $982
million, creating a shortfall of approximately $651 million. The money paid out and promised
for payment could not have been paid without raising new investor capital. Second Report, pp.
19-20; Kane Declaration, ¶ 8.
C. The Claims Verification Procedures Order.
On August 5, 2009, the Court entered an Order Granting the Motion [of the Receiver] for
Order Approving the Receiver's Proposed Claims Verification Procedures (the "Claims
2 The Receiver’s first report, entitled Report of Temporary Receiver’s Activities February 25, 2009 Through May 22, 2009, is referred to as the “First Report." The First Report is Dckt. No. 102 in the SEC Action and Dckt. No. 110 in the CFTC Action. The Receiver’s second report, entitled Report of Receiver’s Activities for the Period From May 25, 2009 Through May 28, 2010, is referred to as the “Second Report." The Second Report is Dckt. No. 303 in the SEC Action and Dckt. No. 329 in the CFTC Action.
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 7 of 21
Action Dckt. No. 386. Carder asserted claims based on "investments in [WGTC], WGQ, LLC
and WGIA, LLC, his ownership of 49% of the shares of [Westridge Capital], his unpaid
compensation for 2008 and contractual indemnity owed to him by [Westridge Capital]." Id. at p.
2, fn 1. Carder proposed a pro rata distribution based upon the amount of principal invested by
each investor less their withdrawals/distributions. In addition, Carder proposed that the Receiver
set aside sufficient funds to deal with "claims that cannot yet be calculated or will arise in the
future," and that such claims should be resolved "upon the wind-up period of the Receivership."
Id. at pp. 2-3.
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 8 of 21
1095799.1 -5-
F. The Receiver's Initial Distribution Plan.
The Receiver reviewed and carefully considered Carder's proposal as well as proposals
submitted by other investors. After giving due consideration to the proposals, the Receiver filed
a motion on January 19, 2011, for orders allowing claims and approving the Receiver's proposed
initial distribution plan.3 Kane Declaration, ¶ 12. The Receiver had been successful in securing
and liquidating substantial assets of the Receivership Entities and was holding approximately
$825 million. The Receiver recommended an initial distribution of $815 million from those
funds. The Receiver proposed a plan based on funds that were available for distribution and
investor claims that had been carefully investigated and approved by the Receiver. The Receiver
reviewed relevant Second Circuit authority and other authority regarding the most appropriate
distribution methodology to utilize given the facts of the case, and concluded that a pro rata
distribution on approved claims, based on net investments without an adjustment for inflation,
was most appropriate. With respect to Carder, the Receiver recommended that no distribution be
made pending further investigation of his claims.
G. Responses By Investors And Carder to The Receiver's Motion, And Entry Of The
Distribution Order.
Investors submitted detailed briefs in response to the Receiver's motion. See, for
example, SEC Action Dckt. Nos. 349-363. On March 2, 2011, Carder submitted his own brief
(the "Carder Brief") in response to the motion. Kane Declaration, ¶ 13; SEC Action Dckt. No.
415; CFTC Action Dckt. No. 450. In his brief, Carder questioned the Receiver's desire to
conduct further investigation regarding his role in Westridge Capital and the Receivership
Entities.4 He requested that the Receiver advise him of any disputes regarding his claims and
3 The Receiver's Motion for Orders Allowing Claims and Approving the Receiver's Proposed Initial Distribution Plan is at SEC Action Dckt. Nos. 390-393 and CFTC Action Dckt. Nos. 425-428.4 After the Receiver's motion was filed, the Receiver obtained a redacted report prepared by the SEC's Office of Inspector General, which raised issues related to the SEC Action and the CFTC Action. The Receiver advised Carder's counsel in a letter dated March 1, 2011, that the report
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 9 of 21
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suggested that the parties attempt to resolve any disputes through negotiations. Carder also
requested that a formal motion be filed by the Receiver regarding Carder's claims after the
parties had an opportunity to meet and confer, and that in the meantime sufficient funds should
be set aside by the Receiver to satisfy Carder's claims. Carder Brief, pp. 7-8.
After the matter was fully briefed, a lengthy hearing on the Receiver's motion took place
on March 16, 2011. The Court carefully considered the papers and permitted a full airing of the
parties' positions. At the hearing, the Court noted that the Agencies and a majority of the
investors supported the Receiver's proposed distribution plan. The Court approved the claims of
the current investors based on their net investments. The Court determined that the investors
were similarly situated in relation to the parties who defrauded them and that the distribution
plan proposed by the Receiver was fair and reasonable. The Court further found that the
Receivership Entities were operated as a uniform Ponzi scheme and that the extensive
commingling of funds between the Receivership Entities justified a pro rata distribution based on
the investors' net investments. Kane Declaration, ¶ 14.
Based on these findings, the Court granted the Receiver's motion and ordered that the
funds be disbursed by the Receiver thirty days after entry of a formal order granting the motion
(the "Distribution Order"). Kane Declaration, ¶ 15. The Distribution Order was entered on
A district court’s determination of the fairness of a settlement by a receiver is subject to
the sound discretion of the court and will be overturned only on a clear showing of abuse of
discretion. Gordon v. Dadante, 336 Fed. Appx. at 545 (holding that district court did not abuse
its discretion in approving settlement agreement entered into by a receiver); Sterling v. Stewart,
158 F.3d at 1202 (quoting Bennett v. Behring, 737 F.2d 982, 986 (11th Cir. 1984)); Securities and
Exchange Commission v. Arkansas Loan and Thrift Corp., 427 F.2d 1171, 1172 (8th Cir. 1970)
(no abuse of discretion in trial court’s approval of receiver’s settlement on fidelity bond claim).
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 15 of 21
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A receiver’s authority to settle claims is inherent in the charge to an equity receiver to
collect assets:
Since the court has authority to authorize the receiver to collect assets of a corporation, it has the further authority to authorize the receiver to sue to collect the assets of the corporation. It naturally follows, as a necessary corollary of the foregoing, that the receiver has the power, when so authorized by the court, to compromise claims either for or against the receivership and whether in suit or not in suit.
3 Clark, Ralph Ewing, A Treatise on the Law and Practice of Receivers, § 770, p. 1424
(3d ed. 1992) (cited with approval in Securities and Exchange Commission v. Credit Bancorp,
Ltd., 2002 WL 1792053 at *4 (S.D.N.Y. August 2, 2002)). Settlement of claims by a receiver
furthers the purposes of an equity receivership to marshal the estate’s assets for the benefit of
injured creditors. Securities and Exchange Commission v. Parish, 2010 U.S. Dist. LEXIS 11786
at *18-19 (D.S.C. 2010) (receiver’s proposed settlement approved by the court, finding the
settlement was “consistent with and furthers the purposes of the receivership”).
No particular procedure applies to approval of a settlement under federal law in an equity
receivership. See, Gordon, 336 Fed. Appx. at *548-49. "[N]o federal rules prescribe a particular
standard for approving settlements in the context of an equity receivership; instead, a district
court has wide discretion to determine what relief is appropriate." Gordon, 336 Fed. Appx. at
*549. Nevertheless, courts in receivership proceedings have looked to decisions in other legal
contexts, such as bankruptcy cases or class action lawsuits, for factors that may be weighed to
reach an informed decision that the proposed settlement is fair and reasonable. For example, the
standard for approval of a settlement by a receiver and the factors that should be weighed in
assessing the fairness of the settlement were described in Securities and Exchange Commission
v. Princeton Economic International, Inc., 2002 WL 206990 at *1:
A settlement proposed by a temporary or permanent receiver warrants approval if the district court finds that the proposed settlement is fair. [Citations omitted.] Moreover, the Court should consider “whether such action is prudent in the administration of the assets of the estate” and should balance and weigh various factors including, inter alia: (1) the probable validity of the claim; (2) the apparent difficulties attending its enforcement through the courts; (3) the collectability of judgment thereafter; (4) the delay and expenses of the litigation to
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 16 of 21
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be incurred; and (5) the amount involved in the compromise.” Securities and Exchange Commission v. Arkansas Loan & Thrift Corp., 297 F.Supp. 73, 78 (W.D. Ark. 1969) (citation omitted), aff’d 427 F.2d 1171 (8th Cir. 1970).
In Gordon v. Dadante, 336 Fed. Appx. 540, the Sixth Circuit rejected the contention that
the district court abused its discretion by failing to explicitly consider all of the factors courts
analyze in approving class action settlements as set forth in Girsh v. Jepson, 521 F. 2d 153, 157
(3rd Cir. 1975). In concluding the district court correctly determined that it was not obligated to
consider each of the Girsh factors, the Sixth Circuit noted that the district court in Gordon
referred to the factors in Girsh as being a "useful guide." Gordon v. Dadante, 336 Fed. Appx. at
*548. The district court in Gordon cited the Girsh factors generally in its consideration of the
settlement in that case, including the following factors that are relevant here: (1) the complexity,
expense and potential length of the litigation; (2) the response to the proposed settlement by the
potential beneficiaries of the settlement; (3) the risks of establishing liability and damages at
trial; (4) the “range of reasonableness” of the amount of the settlement in comparison to the
maximum potential recovery; and (5) the “range of reasonableness” of the amount of the
settlement in relation to the potential risks of litigation. Gordon v. Dadante, No. 1:05CV2726,
2008 WL 1805787 n. 12 at *13 (N.D. Ohio 2008), aff’d 336 Fed. Appx. 540.
The standards for approval of settlements in bankruptcy may also provide an appropriate
analogy and list of factors to consider in approving a settlement in a receivership as “fair,” and
courts in class actions also look to those factors in reviewing proposed settlements. See Newman
v. Stein, 464 F.2d 689, 692, n. 6 (2d Cir. 1972) (citing the standards set forth by the United States
Supreme Court for approval of settlements in bankruptcy in Protective Committee for
Independent Stockholders of TMT Trailer Perry, Inc. v. Anderson, 390 U.S. 414, 88 S.Ct. 1157
(1968)). The factors cited in TMT Trailer and subsequent bankruptcy decisions that should be
considered by the bankruptcy court in reviewing and approving a proposed compromise in
bankruptcy were summarized by the Court of Appeals for the Second Circuit:
Those interrelated factors are: (1) the balance between the litigation’s possibility of success and the settlement’s future benefits; (2) the likelihood of complex and protracted litigation, “with its attendant expense, inconvenience and delay,”
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including the difficulty of collecting on the judgment; (3) the “paramount interests of the creditors,” including each affected class’s relative benefits “and the degree to which creditors either do not object to or affirmatively support the proposed settlement”; (4) whether other parties in interest support the settlement; (5) the “competency and experience of counsel” supporting, and “[t]he experience and knowledge of the bankruptcy court judge” reviewing, the settlement; (6) “the nature and breadth of releases to be obtained by officers and directors”; and (7) “the extent to which the settlement is the product of arm’s length bargaining.” [Citations omitted.]
In re Iridium Operating LLC, 478 F.3d 452, 462 (2d Cir. 2007).
Relying on the standards established in the TMT Trailer decision, the Court of Appeals
for the Second Circuit also explained the role played by the bankruptcy judge in determining
whether to approve a settlement in a leading bankruptcy case:
In undertaking an examination of the settlement, we emphasize that this responsibility of the bankruptcy judge, and ours upon review, is not to decide the numerous questions of law and fact raised by appellants but rather to canvass the issues and see whether the settlement “fall[s] below the lowest point in the range of reasonableness” [Citations omitted].
In re W.T. Grant Co., 699 F.2d 599, 608 (2d Cir. 1983). In W.T. Grant, the court emphasized
that the bankruptcy judge was not required “to determine whether the settlement was the best
that could have been obtained, something that neither he nor we can ever know.” Id. at 613.
Thus, under the standard for approval of a settlement in bankruptcy, while the court
reviewing the proposed settlement must apprise itself of the facts and issues necessary “to
compare the terms of the compromise with the likely rewards of litigation” (TMT Trailer v.
Anderson, 390 U.S. at 425), the settlement hearing must not be turned into a trial or mini-trial
since that would defeat one of the key purposes of the settlement, which is avoiding costly and
wasteful litigation. Newman v. Stein, supra, 464 F.2d at 692.
B. The Settlement Agreement Is Well Within the Range of Reasonableness.
For several reasons, the Receiver believes that the Settlement Agreement is an
outstanding settlement for the receivership estate and well within the "range of reasonableness"
standard to be utilized by the Court in determining whether it should be approved. Kane
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Declaration, ¶¶ 30-31. First, the settlement is a reasonable compromise of disputed claims. It
requires Carder to waive and release all of his claims (other than the potential Indemnity
Claims), which total more than $4.4 million, in exchange for the receivership estate waiving and
releasing approximately $2 million in disputed claims against him. The settlement avoids
expensive litigation that would be involved in defending against and prosecuting the claims.
Moreover, even if the Receiver were successful in such litigation, there is no certainty that
Carder would have sufficient assets to satisfy a judgment after his resources were depleted by the
litigation or that he would not seek to discharge the judgment through bankruptcy. Given these
uncertainties, the Receiver believes it is a better use of the receivership estate's assets to resolve
the disputed claims through settlement.
Second, the release of the Carder Claims allows the receiver to release the $800,000,
which had been withheld as a potential distribution to Carder, for the benefit to the receivership
estate.
Third, claims other than the Receivership Claims against Carder will not be affected by
the Settlement Agreement, including claims by investors and the Agencies. The Receiver is not
asking the Court for a bar order here so as not to affect the rights of investors and the Agencies,
if any, against Carder given his role as a principal of Westridge Capital.
Fourth, all rights are reserved regarding the potential Indemnity Claims. The issue may
be moot if Carder never asserts Indemnity Claims against the receivership estate. However, if he
does, the receivership estate retains all rights with respect to such claims. Moreover, Carder
understands and agrees that he will not be able to assert any Indemnity Claims if they accrue
after the receivership estate is terminated. Thus, the possibility of the Indemnity Claims arising
at some time in the future will not impair or impede the timely administration and termination of
the receivership.
For all of these reasons, the Settlement Agreement is well within the range of
reasonableness and is a cost effective resolution of the Carder Claims. The settlement results in
real value to the receivership estate without the substantial expense and uncertainty of litigation,
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and it is without prejudice to the rights of investors, the Agencies or other parties who may have
claims of their own against Carder.
IV.
CONCLUSION
For the foregoing reasons, it is respectfully requested that the Court grant the Receiver’s
motion and enter orders approving the Settlement Agreement. The settlement results in real
value to the receivership estate without the substantial expense and uncertainty of litigation, and
it is without prejudice to the rights of investors, the Agencies or other parties who may have
claims of their own against Carder.
Dated: December 7, 2012Los Angeles, California
Respectfully submitted,
/s/ Thomas S. Arthur Thomas S. Arthur, Esq.Craig A. Welin, Esq.Admitted Pro Hac Vice in the United States District Court-Southern District of New YorkFRANDZEL ROBINS BLOOM & CSATO, L.C.6500 Wilshire Boulevard, 17th FloorLos Angeles, California 90048-4920Telephone: (323) 852-1000Facsimile: (323) 651-2577E-mail: [email protected]: [email protected] for ReceiverRobb Evans & Associates LLC
-and-
Gary Owen Caris, Esq.Lesley Anne Hawes, Esq. Admitted Pro Hac Vice in the United States District Court-Southern District of New YorkMCKENNA LONG & ALRIDGE LLP300 South Grand Avenue, 14th FloorLos Angeles, California 90071-3124Telephone: (213) 688-1000Facsimile: (213) 243-6330
Case 1:09-cv-01749-GBD Document 621 Filed 12/07/12 Page 20 of 21
Christopher F. Graham, Esq.MCKENNA LONG & ALRIDGE LLP230 Park Avenue, Suite 1700New York, NY 10169Telephone: (212) 922-1800Facsimile: (212) 922-1819E-mail: [email protected] for ReceiverRobb Evans & Associates LLC
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