Securities & Exchange Commission v. Capital Consultants, LLC

397 F.3d 733
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 2, 2005
DocketNos. 03-35406, 03-35407, 03-35409, 03-35412
StatusPublished
Cited by56 cases

This text of 397 F.3d 733 (Securities & Exchange Commission v. Capital Consultants, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities & Exchange Commission v. Capital Consultants, LLC, 397 F.3d 733 (9th Cir. 2005).

Opinions

REAVLEY, Circuit Judge.

In these consolidated appeals, beneficiaries to a receivership complain about various aspects of the receiver’s plan of distribution. The district court approved the plan of distribution, and we affirm.

BACKGROUND

Capital Consultants, LLC (CCL),1 was an Oregon investment management company that made investments for several hundred individuals, corporations, and employee benefit plans. The employee plans are retirement and other employee benefit plans subject to the Employee Retirement Income Security Act (ERISA).2 Under investment advisory agreements and powers of attorney, CCL generally had broad discretion to invest funds on behalf of its clients in publicly-held securities as well as private assets such as real estate and private notes.

The Securities and Exchange Commission (SEC) and the United States Department of Labor (DOL) brought this suit to place CCL into receivership. These agencies claimed that CCL and its principals, Jeffrey and Barclay Grayson, had invested huge sums of client money in nearly worthless loans, and engaged in disloyal conduct and self-dealing. The briefs describe the CCL investments in private assets as “junk debt” and a Ponzi scheme.

The district court promptly placed CCL into receivership and appointed appellee Thomas Lennon as receiver, on September 21, 2000. On this date, CCL had approximately $1 billion in client funds under management. Early in the receivership, the receiver returned the publicly-held securities to each client on whose behalf CCL had purchased these securities. This action allowed the clients to see about $500 million in securities returned in relatively prompt fashion, so that the clients could manage these assets themselves or turn them over to new brokerage firms or investment managers. The receiver also returned about $20 million in cash held in clients’ custodial accounts.3 The publicly-held securities and cash were “traced” to each CCL client.

The assets remaining with the receiver were the bad loans and other relatively illiquid private assets CCL had purchased on behalf of various clients, and included private loans, private equities, and seven real estate assets. Unlike the public securities, the private assets of the receivership were not traced to individual clients, except that interim distributions of certain real estate parcels were distributed to specific clients. Clients who had invested in the real estate assets were given the option of receiving in-kind distributions. Four properties were distributed to clients through interim distributions.

In early 2002, the private loans and private equities were sold as a single unit to an investment bank for $60 million. The receiver also provided funds to the receivership corpus through litigation and mediation of claims against CCL, its principals, [737]*737and other parties, and through the management and servicing of private investments prior to their sale. The corpus of the receivership also included the above-described real estate. In an August 2002 affidavit, the receiver stated that the receivership had marshaled assets valued at $259.5 million to cover claims including administrative claims, one secured claim, vendor claims, investor claims, and other claims. The largest group of claims are those of the CCL clients, the investor claims. According to the affidavit, the clients had invested approximately $480 million in CCL private investments.

Under the Second Amended Distribution Plan developed by the receiver and approved by the district court (the distribution plan),4 the private assets of the receivership have been pooled and each client will receive a pro rata distribution of these assets. The value of real estate distributed through interim distributions to individual clients was deducted from the pro rata distribution due to these clients. This treatment of real estate is different from the treatment of publicly-held securities previously distributed to clients, since the distribution of publicly-held securities did not affect the pro rata distribution of private assets.

The distribution plan provides for dividends to clients under a money-in-money-out or “MIMO” formula. Under this formula, the client’s net loss is measured by the total amount invested in private assets (money in) minus the total amount returned to the client before the receivership (money out).5 Each client receives its pro rata share (computed by that client’s loss to total loss of all clients) of its net loss under this formula. The assets of the receivership are insufficient to cover the net losses of the CCL clients. The receiver states that he has made two distributions under the plan, in addition to the earlier distribution of public equities and cash and the interim real estate distributions.

Some clients have brought suits against third parties such as trustees or professional advisors who made the decision to invest client funds with CCL. Some of these claims are covered by insurance or fidelity bonds which retirement plans or other CCL customers purchased themselves,6 while other claims either are not covered by insurance or are covered by malpractice or other insurance purchased [738]*738by the third parties who have been sued by the CCL clients or the DOL on behalf of CCL clients. Some third-party suits have been settled, some are ongoing, and some may be initiated in the future. The total number of claims and dollar sums that have been or might in the future be recovered via third-party claims are not readily ascertained from the record. .

The receiver initially proposed that third-party recoveries should reduce a client’s claim to the receivership’s private assets on a dollar for dollar basis. After receiving objections to this proposal, the receiver proposed a 50 percent offset, whereby each dollar received through third-party recoveries would reduce the distribution from the receiver by fifty cents. This 50 percent offset provision (the offset provision) became a part of the final distribution plan approved by the district court.

The appellants have filed four appeals challenging the offset provision and other aspects of the distribution plan. Appellants in No. 03-35406 are the Eighth District Electrical Pension Fund and the Eighth District Electrical Benefit Fund (the Electrical Funds). Appellant in No. 03-35407 is the United Association Union Local 290 Plumber, Steamfitter & Shipfit-ter Industry Pension Trust (the Plumber’s Trust). Appellant in No. 03-35409 is the DOL. Appellants in No. 03-35412 are the Oregon Laborers-Employers Pension Trust Fund, the Oregon Laborers-Employers Health and Welfare Trust Fund, and the Oregon Laborers-Employers Defined Contribution Trust Fund (the Oregon Laborers).

DISCUSSION

“[A] district court’s power to supervise an equity receivership and to determine the appropriate action to be taken in the administration of the receivership is extremely broad.” SEC v. Hardy, 803 F.2d 1034, 1037 (9th Cir.1986).”[T]he district court has broad powers and wide discretion to determine the appropriate relief in an equity receivership.” SEC v. Lincoln Thrift Ass’n, 577 F.2d 600, 606 (9th Cir.1978).

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Cite This Page — Counsel Stack

Bluebook (online)
397 F.3d 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-capital-consultants-llc-ca9-2005.