Richard Schoenfeld V.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2017
• Docket: 15-56871
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 07 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS In re: RICHARD ALAN SCHOENFELD, No. 15-56871

Debtor, D.C. No. 2:12-cv-02220-SJO ______________________________

RICHARD ALAN SCHOENFELD, MEMORANDUM**

Appellant,

v.

EDWARD HUGLER,* Acting Secretary of Labor, United States Department of Labor,

Appellee.

EDWARD HUGLER,* Acting Secretary of No. 15-56872 Labor, United States Department of Labor, D.C. No. Plaintiff-Appellee, 2:12-cv-00618-SJO-AGR

* Edward Hugler, Acting Secretary of Labor, is substituted for his predecessor, Hilda L. Solis, Secretary of Labor, pursuant to Federal Rule of Appellate Procedure 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. TOMCO AUTO PRODUCTS, INC., a corporation,

Defendant,

and

RICHARD ALAN SCHOENFELD, an individual,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted February 3, 2017*** Pasadena, California

Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

In these consolidated appeals, Richard Schoenfeld appeals from the district

court’s judgments, on remand from this court, permanently enjoining him from

serving as a fiduciary to Employee Retirement Income Security Act (“ERISA”)

plans. As the parties are familiar with the facts, we do not recount them here. We

affirm.

*** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 We previously vacated and remanded the district court’s holding on

summary judgment that Schoenfeld’s debts were nondischargeable because his

actions constituted defalcation under 11 U.S.C. § 523(a)(4) in light of intervening

Supreme Court precedent. See Perez v. TOMCO Auto Prods., Inc., 594 F. App’x

930 (9th Cir. 2015). On remand, Schoenfeld’s debt was satisfied and the district

court then reissued an injunction related to his violations of ERISA. Schoenfeld

now challenges the portions of the district court’s orders which permanently enjoin

him from “violating the provisions of Title I of ERISA” and “serving as a fiduciary

to any ERISA-covered employee benefit plan in the future.”

The district court did not abuse its discretion by determining that the law of

the case doctrine precluded Schoenfeld from relitigating the district court’s prior

ruling that Schoenfeld had breached his fiduciary duties under ERISA. See United

States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“Under the ‘law of the

case’ doctrine, a court is generally precluded from reconsidering an issue that has

already been decided by the same court, or a higher court in the identical case.”

(internal quotation marks and citation omitted)). Schoenfeld waived his

opportunity to challenge the district court’s ERISA ruling when he failed to contest

it in his initial appeal. See Kesselring v. F/T Arctic Hero, 95 F.3d 23, 24 (9th Cir.

1996) (per curiam) (“Since appellant failed to raise this issue in its first appeal, it is

3 waived.”). We previously vacated and remanded for the district court to reconsider

the unrelated issue of whether Schoenfeld’s debt was dischargeable under the

Bankruptcy Code, and did not disturb the district court’s order as it pertained to

Schoenfeld’s violations of ERISA.

In addition, contrary to Schoenfeld’s contention, the satisfaction of his debt

did not moot the injunctive relief designed to protect against future violations of

ERISA. See F.T.C. v. Affordable Media, 179 F.3d 1228, 1238 (9th Cir. 1999)

(holding that injunctive relief is not moot based on voluntary cessation unless the

defendant shows that it is “absolutely clear” his wrongful activities cannot

reasonably be expected to recur); S.E.C. v. Koracorp Indus., Inc., 575 F.2d 692,

698 (9th Cir. 1978) (“An inference arises from illegal past conduct that future

violations may occur. The fact that illegal conduct has ceased does not foreclose

injunctive relief.” (citations omitted)).

We grant the Secretary of Labor’s Motion to Take Judicial Notice.

AFFIRMED.