SEC v. Penn

Opinion

21-1348-cv SEC v. Penn UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 7th day of July, two thousand twenty-two. 4 5 PRESENT: ROSEMARY S. POOLER, 6 RAYMOND J. LOHIER, JR., 7 WILLIAM J. NARDINI, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 UNITED STATES SECURITIES AND 11 EXCHANGE COMMISSION, 12 13 Plaintiff-Appellee, 14 15 v. No. 21-1348-cv 16 21-1352-cv 17 LAWRENCE E. PENN, III, CAMELOT 18 ACQUISITIONS SECONDARY 19 OPPORTUNITIES MANAGEMENT, LLC, THE 20 CAMELOT GROUP INTERNATIONAL, LLC, 21 22 Defendants-Appellants,

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1 CASO CO-INVEST A, LLC, CAMELOT 2 ACQUISITIONS SECONDARY 3 OPPORTUNITIES GP, LLC, 4 5 Interested Parties-Appellants, 6 7 MICHAEL ST. ALTURA EWERS, SSECURION, 8 LLC, A BIGHOUSE PHOTOGRAPHY AND 9 FILM STUDIO, LLC, 10 11 Defendants, 12 13 NEW YORK COUNTY DISTRICT ATTORNEY’S 14 OFFICE, 15 16 Intervenor. 17 18 ------------------------------------------------------------------ 19 20 FOR PLAINTIFF-APPELLEE: DANIEL STAROSELSKY (Dan M. 21 Berkovitz, Michael A. Conley, 22 on the brief), Securities & 23 Exchange Commission, 24 Washington, DC 25 26 FOR DEFENDANT-APPELLANT 27 LAWRENCE E. PENN, III: LAWRENCE E. PENN, pro se, 28 New York, NY 29 30 FOR DEFENDANTS-APPELLANTS AND 31 INTERESTED PARTIES-APPELLANTS: KEITH W. MILLER, Perkins Coie 32 LLP, New York, NY

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1 Appeal from orders of the United States District Court for the Southern 2 District of New York (Valerie E. Caproni, Judge). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 4 AND DECREED that the challenged orders of the District Court are AFFIRMED. 5 Lawrence Penn, proceeding pro se, and two entities he controlled, The 6 Camelot Group International, LLC (“CGI”) and Camelot Acquisitions Secondary 7 Opportunities Management, LLC (“CASO Management”) (together, the 8 “Camelot Defendants”), appeal from orders of the United States District Court 9 for the Southern District of New York (Caproni, J.) denying their motions under 10 Federal Rule of Civil Procedure 60(b) for relief from the final judgments against 11 them. Penn and two other companies he controlled, Camelot Acquisitions 12 Secondary Opportunities GP, LLC (“CASO GP”) and CASO Co-Invest A, LLC 13 (“CASO Co-Invest”), also appeal from the District Court’s order granting a 14 motion filed by the Securities and Exchange Commission (“SEC”) for turnover of 15 assets. We assume the parties’ familiarity with the underlying facts and the 16 record of prior proceedings, to which we refer only as necessary to explain our 17 decision to affirm. 18 Penn managed the private equity fund Camelot Acquisitions Secondary

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1 Opportunities LP (the “Fund”) from 2007 until 2014.1 During that period he 2 misappropriated approximately $9.3 million from the Fund by using a shell 3 corporation to send the Fund invoices for services the corporation did not 4 perform and then forwarding the proceeds from payment of the invoices to the 5 Camelot Defendants. In 2014 the SEC filed a civil enforcement action in federal 6 court against Penn, the Camelot Defendants, and others. In 2015, based on the 7 same facts that underlay the SEC action, Penn pleaded guilty to grand larceny 8 and falsifying business records in a parallel criminal proceeding in New York 9 state court. In the civil action, the District Court granted the SEC’s motions for 10 summary judgment as to Penn and the Camelot Defendants, whom it concluded 11 had violated the federal securities laws, and it ordered them to disgorge their ill- 12 gotten gains. 13 In July 2020 the SEC filed a motion for the turnover of assets held in bank 14 accounts belonging to Penn, the Camelot Defendants, and non-parties CASO GP, 15 CASO Co-Invest, and CASO Offshore. In September 2020 Penn and the

1 “The appeal from the denial of a motion to vacate pursuant to Rule 60(b) brings up for review only the validity of that denial, not the merits of the underlying judgment itself.”

SEC v. McNulty, 137 F.3d 732, 741 (2d Cir. 1998). These facts are therefore taken from the District Court’s prior opinions determining liability. See Special App’x 1–16, 47–62.

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1 Camelot Defendants each filed a Rule 60(b) motion, arguing that the District 2 Court’s disgorgement orders conflicted with Liu v. SEC, 140 S. Ct. 1936 (2020). 3 The District Court denied the Rule 60(b) motions and granted the SEC’s turnover 4 motion. 5 I. Rule 60(b) Motions 6 “The decision whether to grant a party’s Rule 60(b) motion is committed to 7 the ‘sound discretion’ of the district court, and appellate review is confined to 8 determining whether the district court abused that discretion.” Stevens v. 9 Miller, 676 F.3d 62, 67 (2d Cir. 2012) (quoting In re Emergency Beacon Corp., 666 10 F.2d 754, 760 (2d Cir. 1981)). The District Court entered final judgment against 11 the Camelot Defendants on April 30, 2020, after which they had sixty days, until 12 June 29, 2020, to file an appeal. See Fed. R. App. P. 4(a)(1)(B). Although this 13 deadline fell after the Supreme Court issued its decision in Liu on June 22, 2020, 14 the Camelot Defendants did not appeal the final judgment against them or file a 15 request to extend the time to file a notice of appeal. See Fed. R. App. P. 16 4(a)(5)(A). Instead, they waited until August 18, 2020—months after the final 17 judgment, the decision in Liu, and the deadline to appeal—to inform the District 18 Court of their intention to file a Rule 60(b) motion. Their principal argument in

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1 that motion and on this appeal—that the disgorgement award is inconsistent 2 with Liu—should have been brought on direct appeal because “[i]n no 3 circumstances . . . may a party use a Rule 60(b) motion as a substitute for an 4 appeal it failed to take in a timely fashion.” Stevens, 676 F.3d at 67. 5 The Camelot Defendants respond that their failure to appeal should be 6 excused because they were unrepresented during the litigation. But they were 7 represented until Penn fired their counsel. Our review of the record persuades 8 us that the District Court reasonably concluded that the Camelot Defendants’ 9 “lack of representation is far from an innocent excuse; instead, it was a calculated 10 decision by Penn, their sole owner.” Special App’x 92. We also agree with the 11 District Court that the Camelot Defendants improperly used their Rule 60(b) 12 motion as a substitute for a timely appeal, and we therefore find no abuse of 13 discretion in the District Court’s denial of their motion. 14 As for Penn’s motion, Rule 60(b)(6) motions must be made within a 15 “reasonable time” and are granted only in “extraordinary circumstances.” 16 Stevens, 676 F.3d at 67. 2 “In considering whether a Rule 60(b)(6) motion is

2 We previously dismissed Penn’s timely appeal of the final judgment against him because it lacked an arguable basis either in law or in fact. See SEC v. Penn, No. 18-

3602 (2d Cir. Oct. 4, 2019).

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1 timely, we must scrutinize the particular circumstances of the case, and balance 2 the interest in finality with the reasons for delay.” PRC Harris, Inc. v. Boeing 3 Co., 700 F.2d 894, 897 (2d Cir. 1983). The District Court concluded that Penn 4 unreasonably delayed filing his Rule 60(b) motion and provided “no explanation 5 or justification for his delay.” Special App’x 86–87. On appeal, Penn has failed 6 to provide any explanation for his delay. We conclude that the District Court 7 did not abuse its discretion in finding that Penn’s Rule 60(b) motion was not 8 made within a “reasonable time.”3 9 II. Turnover Motion 10 Penn, CASO GP, and CASO Co-Invest appeal from the District Court’s 11 order granting the SEC’s turnover motion. “Once the district court has found

3 The District Court denied another Rule 60(b) motion by Penn that was based on New York Governor Andrew Cuomo’s pardon of his state criminal offenses. See SEC v.

Penn, 14 Civ. 581, 2022 WL 1991381 (S.D.N.Y. June 3, 2022). Penn filed a separate appeal of that District Court decision. SEC v. Penn, 2d Cir. No. 22-1262. The SEC filed a motion to consolidate the two appeals. See SEC v. Penn, 2d Cir. No. 21-1348, ECF Nos. 123, 130. Penn raises similar arguments in this appeal regarding the gubernatorial pardon. The District Court’s liability finding was based not only on Penn’s plea allocution in state court but also separately on the admissions in his amended answer in this action, which are not the subject of the pardon and “are judicial admissions that bind the defendant throughout th[e] litigation.” Gibbs ex rel. Gibbs v.

CIGNA Corp., 440 F.3d 571, 578 (2d Cir. 2006). We therefore need not consider the effect of the pardon on the District Court’s judgment.

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1 federal securities law violations, it has broad equitable power to fashion 2 appropriate remedies, including ordering that culpable defendants disgorge their 3 profits.” SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1474 (2d Cir. 1996). 4 “Federal courts may order equitable relief against a person who is not accused of 5 wrongdoing in a securities enforcement action where that person: (1) has 6 received ill-gotten funds; and (2) does not have a legitimate claim to those 7 funds.” SEC v. Cavanagh, 155 F.3d 129, 136 (2d Cir. 1998). 8 The District Court granted the turnover motion as to Penn because his 9 objections “simply rehash his claims of innocence.” Special App’x 107. Penn 10 repeats the same claims on appeal, arguing that he had the “right to make 11 investments, pay expenses and receive distributions from the Fund.” Penn 12 Opening Br. 42. But an “appeal from the denial of a motion to vacate pursuant 13 to Rule 60(b) brings up for review only the validity of that denial, not the merits 14 of the underlying judgment itself.” SEC v. McNulty, 137 F.3d 732, 741 (2d Cir. 15 1998). We therefore affirm the District Court’s turnover order as to Penn. 16 Turning to the non-parties, the District Court concluded that the funds in 17 the CASO GP and CASO Co-Invest accounts were ill-gotten because bank 18 records showed that the relevant funds were the remainder of $10,000 wire

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1 transfers from Defendant CGI that were made “while the . . . scheme was on- 2 going.” Special App’x 108–10. Neither CASO GP nor CASO Co-Invest had 3 legitimate claims to the funds because there was no evidence that CGI received 4 any consideration for the funds. See CFTC v. Walsh, 618 F.3d 218, 226 (2d Cir. 5 2010); Special App’x 109, 111. We therefore conclude that the District Court did 6 not abuse its discretion in determining that, based on bank account records, 7 neither CASO GP nor CASO Co-Invest “provided some form of valuable 8 consideration in good faith in return for proceeds of fraud.” Walsh, 618 F.3d at 9 226. 10 We have considered the Appellants’ remaining arguments and conclude 11 that they are without merit. For the foregoing reasons, the challenged orders of 12 the District Court are AFFIRMED. 4

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15

4 We also GRANT the SEC’s motion to consolidate this appeal with No. 22-1262 and DISMISS appeal No. 22-1262 because it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Penn separately filed a motion to certify a question regarding his pardon to the New York Court of Appeals. SEC v.

Penn, 2d Cir. No. 21-1348, ECF No. 119. That motion is DENIED.