United States Securities & Exchange Commission v. A Chicago Convention Center, LLC

961 F. Supp. 2d 905, 2013 WL 4012638, 2013 U.S. Dist. LEXIS 109936
CourtDistrict Court, N.D. Illinois
DecidedAugust 6, 2013
DocketNo. 13 C 982
StatusPublished
Cited by7 cases

This text of 961 F. Supp. 2d 905 (United States Securities & Exchange Commission v. A Chicago Convention Center, LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Securities & Exchange Commission v. A Chicago Convention Center, LLC, 961 F. Supp. 2d 905, 2013 WL 4012638, 2013 U.S. Dist. LEXIS 109936 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

On February 26, 2013, the United States Securities and Exchange Commission [907]*907(“SEC”) filed a three-count Complaint against Defendants A Chicago Convention Center, LLC (“ACCC”), Anshoo Sethi (“Sethi”), and Intercontinental Regional Center Trust of Chicago, LLC (“IRCTC”), alleging violations of the Securities Act of 1933, 15 U.S.C § 77q(a)(l)-(a)(3) (the “Securities Act”), Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b), and Exchange Act Rule 10b-5, 17 C.F.R. § 240.10b-5 (“Rule 10b — 5”). (R. 3, Compl.) On April 29, 2013, A Chicago Convention Center, LLC and Intercontinental Regional Center Trust of Chicago, LLC (collectively, the “Corporate Defendants”) filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (R. 77, Mot.) For the following reasons, the Court denies the Corporate Defendants’ motion.

BACKGROUND

The SEC’s allegations, which the Court must take as true at this stage, are as follows. For “over ... 18 months,” Anshoo Sethi (“Mr. Sethi”) and the Corporate Defendants (collectively, “Defendants”) “have perpetrated a large scale investment scheme.” (Compl. ¶ 1.) Specifically, Defendants “fraudulently sold over $145 million in securities and collected an additional $11 million in administrative fees from over 250 investors.” (Id. ¶¶ 1, 7.) These investors were Chinese nationals who hoped to obtain United States citizenship through their investments as part of the E13-5 Program. (Id. ¶¶ 2-3.) The Immigration and Nationality Act of 1990 created the E13-5 Program, which allows foreign nationals to qualify for a green card “if the individuals invest $1,000,000 (or at least $500,000 in a “Target Employment Area” — ie., a high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers.” (Id. ¶ 2.) Defendants, “[ujsing the lure” of the E13-5 program, “targeted” these foreign investors by selling securities in the form of an interest in ACCC, an Illinois limited liability company claiming to “finance and build the ‘World’s First Zero Carbon Emission Platinum LEED certified’ hotel and conference center in the Chicago area.” (Id. ¶¶ 3, 15, 20.) According to the SEC, ACCC and IRCTC were “alter egos for Sethi.” (Id. ¶ 18.) Mr. Sethi “is the primary representative of each company in their business dealings with USCIS and investors,” and he “controlled nearly every aspect of ACCC’s and IRCTC’s business, and asserted control over their actions.” (Id.)

The SEC further alleges that Defendants made false claims to further this scheme. First, Defendants “used false and misleading information” to solicit investments in the project. (Id. ¶ 4.) Defendants, for example, have falsely claimed “that several major hotel chains have signed on to the Defendants’ project, that Defendants have acquired all the necessary permits and approvals to construct the project, that the Defendants will contribute land valued at over $177 million to the project, and that the project is likely to generate over 8,000 jobs.” (Id. ¶¶4, 21, 28-36, 40.) Defendants also made false claims and presented false documents to U.S. Citizenship and Immigration Services (“USCIS”), the agency that oversees the EB-5 program. (Id. ¶¶2, 5, 17, 37.) Specifically, Defendants provided false information to USCIS in order to obtain the agency’s “preliminary approval of the project,” so that USCIS would grant “provisional visas” to the foreign investors. (Id. ¶¶ 5-6.) To do this, Defendants “provided a business plan and two economic studies to USCIS” to demonstrate that “the project will create or save enough U.S. jobs to qualify investors for green cards under the EB-5 program.” (Id. ¶ 55.) The SEC [908]*908contends that this “fraud upon USCIS is a necessary part of the scheme to defraud investors and misappropriate investment funds.” {Id. ¶ 6.)

To date, Defendants “have convinced over 250 Chinese investors to wire a minimum of $500,000 apiece plus a $41,500 ‘administration fee’ to the Defendants’ U.S. bank accounts.” {Id. ¶¶ 3, 20.) Defendants claimed that the “administrative fees” were fully refundable, but have in fact “already spent or dissipated over 90% of the administrative fees collected from investors.” {Id. ¶ 7 (emphasis in original)); (see also id. ¶¶ 51-52.) In response to Defendants’ alleged conduct, and in an effort “to protect the interests of current and future investors,” the SEC brought this lawsuit, seeking various forms of injunctive relief. {Id. ¶ 8; R. at 23-26.)

LEGAL STANDARD

A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). Under the federal notice pleading standards, a plaintiffs “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiffs favor.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir.2011); see also Tel-labs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“faced with a Rule 12(b)(6) motion to dismiss a § 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true”).

ANALYSIS

The Corporate Defendants argue that the Supreme Court’s holding in Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), governs this case and necessitates dismissal for failure to state a claim. (R. 89, Defs.’ Mem. at 1.) Specifically, the Corporate Defendants argue that, under the “transactional” test set forth in Morrison, the SEC cannot assert a claim against them because the transactions at issue here were not “domestic transactions.” {Id. (citing Morrison, 130 S.Ct. at 2883).) The SEC, however, contends that the “transactional” test is not the proper inquiry because the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. No. 111-203, 124 Stat. 1376 (2010) (the “Dodd-Frank Act”) superseded Morrison

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

Related

SEC. & Exch. Comm'n v. Scoville
913 F.3d 1204 (Tenth Circuit, 2019)
Securities & Exchange Commission v. Sabrdaran
252 F. Supp. 3d 866 (N.D. California, 2017)
United States Securities & Exchange Commission v. Battoo
158 F. Supp. 3d 676 (N.D. Illinois, 2016)
Coleman v. Medtronic, Inc.
223 Cal. App. 4th 413 (California Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
961 F. Supp. 2d 905, 2013 WL 4012638, 2013 U.S. Dist. LEXIS 109936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-securities-exchange-commission-v-a-chicago-convention-ilnd-2013.