Securities and Exchange Commission v. Unioil, and William M. Mulderig

951 F.2d 1304, 293 U.S. App. D.C. 37

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 14, 1992
• Docket: 91-5044
• Status: Published

Opinions

PER CURIAM Judgment.

Separate Concurring Opinion filed by Circuit Judge EDWARDS.

JUDGMENT

PER CURIAM.

Our review in this appeal rests on the record from the United States District Court for the District of Columbia, the briefs filed by the parties, and oral argument by the Securities and Exchange Commission. Appellant Mulderig, an attorney proceeding pro se, did not appear at oral argument.

Disgorgement is an equitable remedy available to redress the violation of securities laws. See SEC v. First City Financial Corp., 890 F.2d 1215, 1230 (D.C.Cir.1989). Given appellant’s default on Count One, charging violations of section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5, the district court’s disgorgement order was appropriate.

Nor was the amount ordered disgorged plain error. In view of the company’s insolvency, the Commission assumed, not without cause, that the fraudulent Soberz campaign was responsible for the entire value of the corporation reflected in the December 1986 stock price. Most critically, appellant offered no calculation of his own for the district court to consider, but simply insisted that he gained nothing from the fraud. The Commission suggested that a loan Mulderig received against a pledge of the stock might have been an appropriate basis for the disgorgement calculation; but Mulderig, on the Commission’s inquiry, could not recall the amount of that loan. It is accordingly

Ordered and Adjudged that the judgment from which this appeal has been taken be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.