Securities & Exchange Commission v. Kings Real Estate Investment Trust

222 F.R.D. 660, 2004 U.S. Dist. LEXIS 15067
CourtDistrict Court, D. Kansas
DecidedJune 30, 2004
DocketNo. 04-4006-RDR
StatusPublished
Cited by1 cases

This text of 222 F.R.D. 660 (Securities & Exchange Commission v. Kings Real Estate Investment Trust) is published on Counsel Stack Legal Research, covering District Court, D. Kansas 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. Kings Real Estate Investment Trust, 222 F.R.D. 660, 2004 U.S. Dist. LEXIS 15067 (D. Kan. 2004).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO INTERVENE

SEBELIUS, United States Magistrate Judge.

This matter comes before the Court upon the Motion to Intervene filed by Movant E. Paul Anderton (“Anderton”) on April 21, 2004 (Doc. 63). The plaintiff has filed its opposition Anderton’s motion (Doc. 69), and Anderton filed his Reply (Doc. 82). Ander-ton seeks to intervene in the underlying action brought by the Securities and Exchange Commission (the “S.E.C.” or the “Commission”) to protest the inclusion of his investment in the assets collected by the Receiver (the “Receivership Assets”) and to assert priority over the distribution of that investment. On June 1, 2004, the Court held a motion hearing on Anderton’s motion to intervene. At the motion hearing, the movant appeared through Gilbert Guthrie and Terry Unruh, the plaintiff appeared through Timothy Davis, and the Receiver appeared through Kenneth Weltz. The Court has reviewed the parties’ arguments and is now prepared to rule.

I. Relevant Factual Background

On January 23, 2004, the S.E.C. brought this enforcement action against Defendants Kings Real Estate Investment Trust (“Kings REIT”), Reliance Enterprises, L.L.C., Monte R. Swanzy, Stephen P. Swanzy, David L. Knudson, Van E. Brighton, Individually and d/b/a Brighton Funding Group (collectively, “Defendants”), and Relief Defendants Brighton Enterprises, Inc., Romerian Spendthrift Trust, and Patricia Swanzy (collectively, “Relief Defendants”) (Doc. 1). S.E.C. alleges that defendants Monte and Stephen Swanzy, together with defendants David Knudson and Van Brighton, fraudulently offered and sold Kings REIT securities through various Defendant and Relief Defendant entities. The SEC claims that defendants have defrauded [662]*662investors of $2.9 million.1 There appear to have been a number of investors in Kings REIT, including 18 investors from Kansas, although the exact number has not been specified in any pleading or hearing to date. Investors were told that their investments would be pooled into real estate trusts to finance real estate ventures and promised high returns on their investments and absolute security for the principal invested. It appears that the investors understood that they were investing in Kings REIT, rather than any other entity.

On January 23, 2004, Judge Rogers appointed Larry Cook as Receiver for the Receivership Assets (Doc. 8). In paragraph 9 of the Order Appointing Receiver, Judge Rogers ruled that

[t]his Order does not prohibit the prosecution of any civil action or other proceeding against Defendants or Relief Defendants, including non-dischargeability proceedings and enforcement of any judgments obtained in such actions or proceedings, or effect the release of any claim asserted therein. However, to the extent judgment creditors or other claimants seek to prosecute an action or proceeding against the Defendants or Relief Defendants or to satisfy a judgment or claim from Receivership Assets, they will do so only with the prior permission of this Court or the United States Bankruptcy Court and in accordance with an order of priority established by a plan of liquidation and distribution, or any authority or other stay provided under the Bankruptcy Court.2

On February 2, 2004, Judge Rogers entered an Order of Preliminary Injunction as to Kings REIT, Monte, Stephen and Patricia Swanzy, and Romerian Spendthrift Trust, freezing assets, requiring accounting, prohibiting destruction and alteration of documents, and requiring repatriation of funds and assets.3 As of June 1, 2004, approximately $2.1 million has been recovered by the Receiver.4

On April 21, 2004, Paul Anderton, through his attorney Gilbert Guthrie, filed a motion to intervene in this action (Doc. 63). In support of his motion to intervene, Anderton argues that he is not similarly situated to other investors in Kings REIT and that no other party to this current lawsuit adequately represents his interests. Anderton claims he invested $1 million in Romerian Spendthrift Trust in a side investment agreement between himself and Monte Swanzy. Anderton states he did not invest in Kings REIT. Anderton asserts that he is entitled to priority for his $1 million investment and that this investment, which is now in the possession of the Receiver, can be easily traced to the bank account in which he deposited it.5 In his Intervenor Complaint, Anderton seeks to recover his $1 million from the Receiver (Count I), requests declaratory judgment in his favor as to his rights in the $1 million invested (Count II), and alleges breach of contract by Monte Swanzy, individually and on behalf of Romerian Spendthrift Trust, for investing/transferring his funds from the Romerian Spendthrift Trust account without his approval (Count III). Anderton’s claim appears to be the largest individual investment; second largest appears to be an investment by a Kansas woman in the amount of $250,000. The S.E.C. opposes Anderton’s motion to intervene on the grounds that there is an “impenetrable wall” to intervention under 15 U.S.C. § 78u(g) (“Section 21(g)”), and that allowing intervention would require extension of discovery and unnecessarily complicate this action. The S.E.C. places particular emphasis on Anderton’s attempt to enlarge the action by adding a breach of contract claim against Monte [663]*663Swanzy and Romerian Spendthrift Trust.6 The S.E.C. argues that, despite his claim to the contrary, Anderton’s interests will not be impaired and are adequately represented by the existing parties to the lawsuit. Both the 5. E.C. and the Receiver have represented to the Court that Anderton is not precluded from asserting his claim at a later date, prior to the Receivership Assets being distributed.7

II. Discussion

1. Section 21(g)

The main thrust behind the S.E.C.’s opposition to Anderton’s intervention is that, absent the Commission’s consent, any intervention in an S.E.C. enforcement action is absolutely barred by Section 21(g). In support of its position, the S.E.C. relies mainly on an unpublished 1993 Northern District of Illinois case, holding that Section 21(g) represents an “impenetrable wall” to intervention.8 Anderton objects to the S.E.C.’s characterization of Section 21(g) as an impenetrable wall to intervention by pointing to a number of cases, including an Eighth Circuit decision, that reject the position advanced by the S.E.C., holding instead that Section 21(g) does not automatically preclude all intervention in S.E.C. enforcement actions.9

The positions taken by the parties on the issue of intervention preclusion mirrors the split among the courts concerning the application of Section 21(g) to intervention motions. Only one circuit court appears to have resolved this question and the district courts across the country have arrived at differing interpretations of the statutory language. Neither the Tenth Circuit nor the District Court for the District of Kansas appear to have ever addressed this issue before. Absent controlling authority, and in the face of contradictory opinions from other jurisdictions, the Court must make its own determination on the applicability of Section 21(g) to motions to intervene in S.E.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Securities & Exchange Commission v. Falor
270 F.R.D. 372 (N.D. Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
222 F.R.D. 660, 2004 U.S. Dist. LEXIS 15067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-kings-real-estate-investment-trust-ksd-2004.