U.S. Securities and Exchange Commission v. Christopher J. Hall

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 4, 2019
• Docket: 17-13897
• Status: Unpublished

Opinion

Case: 17-13897 Date Filed: 01/04/2019 Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13897 ________________________

D.C. Docket No. 1:15-cv-23489-CMA

U.S. SECURITIES AND EXCHANGE COMMISSION,

Plaintiff - Appellee,

versus

CHRISTOPHER J. HALL,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(January 4, 2019)

Before JILL PRYOR, BRANCH, and BOGGS, * Circuit Judges.

PER CURIAM:

* Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 17-13897 Date Filed: 01/04/2019 Page: 2 of 16

This appeal stems from an enforcement action that the Securities and

Exchange Commission (“SEC”) brought against Christopher Hall for violating

Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. §78j(b),1 and

Section 17(a) of the Securities Act of 1933, 15 U.S.C. §77q(a)2 (hereinafter “the

antifraud provisions of federal securities law”). After a seven-day trial in February

2017, a unanimous jury determined that Hall committed multiple violations of the

antifraud provisions of federal securities law. The district court then entered an

order and final judgment against Hall, granting the SEC’s requests for an

injunction and imposing an officer-and-director bar against Hall. The district court

also ordered Hall to disgorge ill-gotten gains in the amount of approximately $3.7

million and also pay approximately $1 million in prejudgment interest.

1 “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange . . . [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities- based swap agreement[,] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C. §78j(b). Hall was also found liable of violating the Rule promulgated thereunder, Exchange Act Rule 10b-5. See 17 C.F.R. § 240.10b-5. 2 “It shall be unlawful for any person in the offer or sale of any securities (including security- based swaps) or any security-based swap agreement (as defined in section 78c(a)(78) of this title) by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” 15 U.S.C. § 77q. 2 Case: 17-13897 Date Filed: 01/04/2019 Page: 3 of 16

Because the district court did not abuse its discretion in imposing the

remedies requested by the SEC, we AFFIRM the district court’s order.

I. BACKGROUND

The timeline of events in this case dates back to the nationwide financial

crisis in 2008. The full factual background is extensive and “involve[s] multiple

parties and transactions.” SEC v. Hall, No. 1:15-cv-23489-CMA, slip op. at 1 (S.D.

Fla. April 13, 2017) (hereinafter “First Order”). We provide only the relevant facts

here; they are fairly straightforward. Because this case involves a jury verdict, we

must view the evidence in the light most favorable to the prevailing party, drawing

all reasonable inferences and credibility determinations in favor of the jury’s

verdict. See Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997).

Throughout 2009 and 2010, Hall obtained millions of dollars in loans from

his brokerage firm, Penson Financial Services, Inc. (“PFSI”). Hall was the

chairman and controlling shareholder of Call Now, Inc., which also had a

brokerage account with PFSI. Prior to the financial crisis in 2008, Hall and Call

Now borrowed millions of dollars in margin loans through these brokerage

accounts to purchase bonds and to fund operating expenses at Retama Park, a

financially struggling Texas horse racetrack operated by Call Now.

By 2009, both Hall and Call Now’s brokerage accounts had substantially

diminished in value, so PFSI required Hall and Call Now to deposit additional

3 Case: 17-13897 Date Filed: 01/04/2019 Page: 4 of 16

collateral. In response to PFSI’s call for collateral, Hall pledged Call Now stock,

but told PFSI he needed loans to unencumber the shares because they were pledged

to other lenders. PFSI agreed to loan him approximately $3.68 million. In fact,

Hall’s shares were unencumbered; Hall had lied so that PFSI would loan him more

money.

In 2010, Hall and Call Now again had shortfalls in their margin accounts

with Penson. To avoid liquidation, Hall agreed to a restructuring that required him

to sell some of his Call Now shares back to Call Now, which would then pledge

the shares as additional collateral to PFSI. Hall claimed that the shares were

encumbered and that he could not sell the shares back to Call Now until he paid off

a $1.8 million lien. PFSI loaned him $1.8 million, and the shares were pledged.

Unlike before, these shares were actually subject to a lien, but Hall had reached a

deal with the lienholder to satisfy the lien for only $850,000. After Hall satisfied

the lien, he kept the rest of the money that PFSI had loaned him. All told, as a

result of these lies about the liens, Hall obtained millions in loans (about $5.5

million) from PSFI, but paid only $850,000 to a single lender who had a valid lien

on Hall’s Call Now Stock.3 Hall also pledged his interest in a real-estate limited

3 Hall claims he also paid an additional $350,000 and interest payments, for a total of $1,231,666.69. However, there is no evidence that this additional $350,000 payment was ever made. Hall’s only support for this assertion was his own unsubstantiated trial testimony. He did not call the lender as a witness, nor did he point to any documentary or testimonial evidence. 4 Case: 17-13897 Date Filed: 01/04/2019 Page: 5 of 16

partnership as additional collateral for his margin loans. As he had with the Call

Now stock, Hall claimed that his interest in the limited partnership was subject to

an existing lien, and failed to disclose that he was the holder of that lien, through

an entity created for his benefit to hide his assets.

In September 2015, the SEC brought an enforcement action against Hall for

violating Section 17(a) of the Securities Act of 1933 and Section 10(b) of the

Securities Exchange Act of 1934. In February 2017, a seven-day trial was held.

During the trial, Hall admitted he lied to PFSI numerous times to receive millions

of dollars in loans. 4

At the close of evidence, Hall moved for judgment as a matter of law under

Federal Rule of Civil Procedure 50(a), arguing that the SEC failed to show that his

lies were material or made in connection with a securities transaction. The district

court denied the motion. A unanimous jury found that Hall committed multiple

violations of the antifraud provisions of the federal securities laws. Hall never filed

a renewed motion for judgment as a matter of law or moved for a new trial.

In March 2017, after the trial concluded, the SEC filed a Motion for Final

Judgment seeking: (1) entry of a final judgment; (2) a permanent injunction barring

Hall from violating the securities laws in the future; (3) disgorgement of

$3,747,717.12; (4) prejudgment interest of $955,583.39; (5) a civil penalty of

4 For example, when asked if he lied about liens, he admitted, “I did.” 5 Case: 17-13897 Date Filed: 01/04/2019 Page: 6 of 16

$3,747,717.12; and (6) a permanent officer-and-director bar. Hall opposed the

requested remedies, calling them “highly excessive and not supported by record

evidence or the prevailing law.”

On April 13, 2017, after considering the parties’ briefs, the district court

issued the First Order and final judgment. The district court granted the SEC’s

request for a permanent injunction and imposed a ten-year officer-and-director bar.

In addressing the SEC’s disgorgement request, the district court accepted that the

SEC had proven that Hall improperly obtained $3,747,717.12 through his fraud.5

But the district court ordered no disgorgement because it found that the SEC was

required to offset this amount by the value of the collateral Hall had deposited into

his margin account. The district court explained that “[b]ecause Hall pledged the

collateral as security for repayment of these loans, presumably [PFSI] retained the

full value of the collateral.” First Order at 15 n.2. Without evidence about the value

of the collateral, the court concluded that it would be inappropriate to order

disgorgement. The district court instead imposed a $225,000 civil money penalty

against Hall.

5 This amount included the $ 6,856,785.12 in loans Hall received from PFSI to pay off actual and purported liens on Call Now shares offset by the $850,000 Hall paid to a Call Now lienholder. The district court also excluded proceeds that Hall received from lies he told outside the statute of limitations period. 6 Case: 17-13897 Date Filed: 01/04/2019 Page: 7 of 16

The following month, on May 11, 2017, the SEC filed a motion asking the

district court to reconsider its ruling on disgorgement. The SEC argued that Hall

was entitled to no offset based on the value of the Call Now shares that he pledged

as collateral to PFSI. The SEC asserted that once Hall’s account had insufficient

collateral, he was obligated either to pledge additional collateral to PFSI or risk

that the existing collateral pledged in his margin account would be liquidated. So

even if Hall had not lied to PFSI, he still would have been required to post the

collateral. When Hall provided the collateral, PFSI posted the full value of the

collateral as a credit to his margin debt. The SEC argued that giving Hall an offset

now for the value of the collateral would give him credit twice for the same

collateral.

In the alternative, the SEC argued that if the value of the pledged collateral

was relevant, Hall failed to carry his burden to prove its value. The SEC explained

that Hall had the burden of proving the value of the offset. And given his failure to

show the value of his Call Now stock, he could not show that he was entitled to

any offset.

The district court agreed with the SEC and, on June 29, 2017, issued an

order granting the motion (the “Second Order”) and an amended judgment. SEC v.

Hall, No. 15-23489-CIV, 2017 WL 3635108 (S.D. Fla. June 29, 2017). The

Second Order noted that, “as demonstrated by the SEC and not rebutted by Hall,

7 Case: 17-13897 Date Filed: 01/04/2019 Page: 8 of 16

had Hall not lied about liens encumbering the collateral, [PFSI] and Hall still

would have agreed to Hall posting the collateral, but [PFSI] would not have loaned

him the $3.68 million in cash.” Id. at *3. The district court determined that the SEC

reasonably calculated Hall’s profits and reasonably declined to offset those profits

with the value of Hall’s posted collateral. The district court imposed the

disgorgement and prejudgment interest amounts identified and requested by the

SEC, and ordered Hall to disgorge $3,747,717.12 and prejudgment interest of

$955,583.39 (totaling $4,703,300.51).

Hall timely appealed. On appeal, Hall argues that the district court abused its

discretion in assessing disgorgement and in requiring him to pay prejudgment

interest. Hall also takes issue with the imposition of the injunction and officer-and-

director bar, and disputes evidence supporting the jury’s verdict at trial. 6

6 On appeal, Hall challenges the jury’s finding that he was liable, arguing that there was insufficient evidence to establish that the misrepresentations he made to PFSI were “material” or occurred “in connection with the purchase and sale” of securities. “Federal Rule of Civil Procedure 50 sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges—prior to submission of the case to the jury, and after the verdict and entry of judgment.” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 399 (2006). Rule 50(a) governs the first stage, allowing a party to challenge the sufficiency of the evidence prior to submission of the case to the jury, and authorizes the district court to grant such motions at the court’s discretion. Id. Rule 50(b) sets forth the requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment. Id. at 400. The Supreme Court has explained that to challenge on appeal the sufficiency of the evidence supporting a verdict, a party must file a Rule 50(b) motion. Id. A “postverdict motion is necessary because the determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.” Id. (internal quotation marks omitted). If a party fails to make an appropriate post-verdict

8 Case: 17-13897 Date Filed: 01/04/2019 Page: 9 of 16

II. DISCUSSION

A. Disgorgement and Prejudgment Interest

1. Standard of Review

When reviewing the amount of ill-gotten gains to be disgorged by a

defendant, we review the district court’s findings for abuse of discretion. SEC v.

Calvo, 378 F.3d 1211, 1217–18 (11th Cir. 2004)). “[W]hen reviewing a district

court’s disposition of a motion for reconsideration after final judgment, we have

consistently stated that the decision to grant such relief is committed to the sound

discretion of the district judge and will not be overturned on appeal absent an

abuse of discretion.” Region 8 Forest Serv. Timber Purchasers Council v. Alcock,

993 F.2d 800, 806 (11th Cir. 1993) (footnote omitted).

2. Discussion

“Generally, disgorgement is a form of ‘[r]estitution measured by the

defendant’s wrongful gain.’ Disgorgement requires that the defendant give up

‘those gains . . . properly attributable to the defendant’s interference with the

claimant’s legally protected rights.’” Kokesh v. SEC, 137 S. Ct. 1635, 1640 (2017)

(alteration in original) (quoting Restatement (Third) of Restitution and Unjust

motion, we have “no authority” to consider its challenge to the sufficiency of the evidence. Hi Ltd. P’Ship v. Winghouse of Fla., Inc., 451 F.3d 1300, 1302 (11th Cir. 2006). Here, Hall made a Rule 50(a) motion, arguing that the SEC failed to show that his lies were material or made in connection with a securities transaction. But he failed to file a post- verdict motion, which means that we have no authority to review Hall’s challenges to the sufficiency of the SEC’s evidence at trial. 9 Case: 17-13897 Date Filed: 01/04/2019 Page: 10 of 16

Enrichment § 51, cmt. a, p. 204 (2010)). “The SEC is entitled to disgorgement

upon producing a reasonable approximation of a defendant’s ill-gotten gains. . . .

Exactitude is not a requirement; so long as the measure of disgorgement is

reasonable, any risk of uncertainty should fall on the wrongdoer whose illegal

conduct created that uncertainty.” Calvo, 378 F.3d at 1217 (internal quotation

marks and citations omitted). After the SEC produces its approximation of ill-

gotten gains, “[t]he burden then shifts to the defendant to demonstrate that the

SEC’s estimate is not a reasonable approximation.” Id.

It is clear that the district court carefully considered the disgorgement issue

and the evidence provided by the parties on both occasions. The district court’s

Second Order (the order at issue in this appeal) amended the First Order in

response to the SEC’s Motion for Reconsideration of the district court’s First

Order. In the Second Order, the district court revisited the disgorgement issue and

determined that the SEC “reasonably” set forth the calculation for determining

Hall’s profits.

After the SEC provided a reasonable approximation of Hall’s ill-gotten

profits, the burden then shifted to Hall “to demonstrate that the SEC’s estimate

[was] not a reasonable approximation.” Id. But the district court found that Hall

failed meet this burden because he did not provide “any evidence he would not

have pledged the same collateral in the first transaction even without the

10 Case: 17-13897 Date Filed: 01/04/2019 Page: 11 of 16

fraudulently obtained up-front cash payment, nor has he shown he incurred any

losses as a result of his fraudulent misrepresentations in the second and third

transactions.” Hall, 2017 WL 3635108, at *4. Because Hall failed to rebut the

SEC’s reasonable approximation, the district court’s decision to impose the

reasonable disgorgement amount proposed by the SEC was not an abuse of the

court’s discretion. Accordingly, we affirm the district court’s order requiring Hall

to disgorge $3,747,717.12.

Relatedly, the decision to grant prejudgment interest—and the rate at which

interest is awarded—falls squarely within the discretion of the district court. SEC

v. Carrillo, 325 F.3d 1268, 1273 (11th Cir. 2003). On appeal, Hall fails to prove

that the district court was acting outside of its discretion in imposing the

prejudgment interest amount. He continues to rely on the same overvaluation of the

collateral he provided to PFSI that the district court correctly disregarded. This

overvaluation was resisted by the SEC in its approximation, and the district court

found that it was “reasonable not to offset those profits by the value of the Call

Now stock Hall sold, as the fraud was not in the sale of stock to Call Now; rather

the fraud occurred when Hall fraudulently induced [PFSI] to loan more cash to

Call Now than was needed to pay off the liens on that stock.” Hall, 2017 WL

3635108, at *3. Accordingly, we affirm the district court’s order requiring Hall to

pay prejudgment interest in the amount of $955,583.39.

11 Case: 17-13897 Date Filed: 01/04/2019 Page: 12 of 16

B. Permanent Injunction and Officer-and-Director Bar

1. Permanent Injunction

“[T]he decision whether to grant or deny injunctive relief is addressed to the

sound discretion of the district court and will not be disturbed on appeal except for

clear abuse.” SEC v. Caterinicchia, 613 F.2d 102, 105 (5th Cir. 1980). 15

U.S.C. § 78u (d)(1) 7 and 15 U.S.C. § 77t(b)8 grant the SEC the authority to obtain

a permanent injunction, which it sought and the district court granted here.

In determining whether to grant the SEC’s request for a permanent

injunction, a court applies a two-part test, which requires the SEC to establish: “(1)

a prima facie case of previous violations of federal securities laws, and (2) a

reasonable likelihood that the wrong will be repeated.” Calvo, 378 F.3d at 1216.

Because the jury found Hall liable for violations of securities laws, we consider the

7 “Whenever it shall appear to the Commission that any person is engaged . . . in acts or practices constituting a violation of any provision of this chapter [or] the rules or regulations thereunder . . . [the SEC] may in its discretion bring an action in the proper district court of the United States . . . to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction . . . shall be granted without bond.” 8 “Whenever it shall appear to the Commission that any person is engaged . . . in any acts or practices which constitute . . . a violation of the provisions of this subchapter, or of any rule or regulation prescribed under authority thereof, the Commission may, in its discretion, bring an action in any district court of the United States . . . to enjoin such acts or practices, and upon a proper showing, a permanent or temporary injunction or restraining order shall be granted.” 12 Case: 17-13897 Date Filed: 01/04/2019 Page: 13 of 16

prima facie case required by part one as easily met. Likewise, Hall “do[es] not

dispute that the SEC has established a prima facie case for its . . . claims.” S.E.C. v.

Big Apple Consulting USA, Inc., 783 F.3d 786, 807 (11th Cir. 2015).

Thus, only part two is at issue here. Under part two, the district court should

consider the following “[i]ndicia that a wrong will be repeated[:] . . . [the]

‘egregiousness of the defendant’s actions, the isolated or recurrent nature of the

infraction, the degree of scienter involved, the sincerity of the defendant’s

assurances against future violations, the defendant’s recognition of the wrongful

nature of the conduct, and the likelihood that the defendant’s occupation will

present opportunities for future violations.’” Calvo, 378 F.3d at 1216 (quoting SEC

v. Carriba Air, Inc., 681 F.2d 1318, 1322 (11th Cir. 1982)). Hall argues that the

permanent injunction imposed by the district court is inappropriate because the

SEC failed to properly show that Hall’s conduct was “egregious.” 9 The district

court, however, engaged in a lengthy, thoughtful, and well-reasoned analysis of the

part-two factors and determined that “Hall is a repeat violator . . . [who] acted

egregiously, with a high degree of scienter, and is very likely to encounter

9 The language of the permanent injunction in this case appears to track the language of the relevant securities statutes and regulations. We do not assess, however, whether the injunction was an improper obey-the-law injunction because Hall failed to raise the issue in the district court or on appeal. See Access Now, Inc., v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (recognizing that if an argument is not briefed on appeal that “evaluating its merits would be improper”). 13 Case: 17-13897 Date Filed: 01/04/2019 Page: 14 of 16

opportunities for future violations.” See First Order at 9. We agree, and find that

the district court did not abuse its discretion.

2. Officer-and-Director Bar

District courts are afforded substantial discretion in deciding whether to

impose an injunction that bars an individual from serving as an officer or director.

SEC v. Patel, 61 F.3d 137, 141 (2d Cir. 1995).

Similar to its authority to issue an injunction as discussed above, the court’s

ability to impose an officer-and-director bar is also statutory. See 15 U.S.C. §

78u(d)(2) (“[T]he court may prohibit, conditionally or unconditionally, and

permanently or for such period of time as it shall determine, any person who

violated section 78j(b) of this title or the rules or regulations thereunder from

acting as an officer or director . . . if the person’s conduct demonstrates unfitness to

serve as an officer or director of any such issuer.”); see also 15 U.S.C. § 77t(e)

(“[T]he court may prohibit, conditionally or unconditionally, and permanently or

for such period of time as it shall determine, any person who violated section

77q(a)(1) of this title from acting as an officer or director . . . if the person’s

conduct demonstrates unfitness to serve as an officer or director of any such

issuer.”).

14 Case: 17-13897 Date Filed: 01/04/2019 Page: 15 of 16

When deciding whether to impose a bar—and, relatedly, how long the bar

should be—the district court considered the following factors: “(1) the

egregiousness of the underlying securities law violation; (2) the defendant’s repeat

offender status; (3) the defendant’s role or position when he engaged in the fraud;

(4) the defendant’s degree of scienter; (5) the defendant’s economic stake in the

violation; and (6) the likelihood that misconduct will recur.” Patel, 61 F.3d at 141.

See also SEC v. Huff, 758 F. Supp. 2d 1288, 1356 (S.D. Fla. 2010) (citing SEC v.

First Pac. Bancorp, 142 F.3d 1186, 1193 (9th Cir. 1998)), aff’d, 455 F. App’x 882

(11th Cir. 2012). 10 Again, the district court engaged in a careful analysis of these

factors. The district court’s officer-and-director analysis echoed its injunction

analysis, noting that Hall’s multiple, repeated violations were egregious and

conducted with a high degree of scienter—all while Hall was the Chairman of Call

Now. At trial, Hall also admitted that he lied to PFSI in order to obtain numerous

loans. Notably, although the district court found that there was a “high likelihood

[Hall’s] conduct may recur,” the district court declined to impose the SEC’s

requested permanent bar. First Order at 11. Instead, the district court found a ten-

year bar appropriate after “factor[ing] in the egregiousness and recurrence of Hall’s

10 Hall does not challenge the use of these factors as a matter of law. He instead focuses his argument on the test’s application, arguing that the imposition of a ten-year bar is inappropriate because the SEC failed to show that his conduct was egregious. Accordingly, we need not decide whether a district court must consider these factors in all cases. 15 Case: 17-13897 Date Filed: 01/04/2019 Page: 16 of 16

actions, as well as his apparent recognition that he knowingly lied to receive large

sums of money, while holding fast to the position he did not commit any securities

violations.” Id. We find that the district court did not abuse its discretion.

We also note that Hall’s arguments in this appeal continue to showcase his

insistence that he did not commit any securities violations—in spite of his own trial

testimony, in which he admitted the existence of the liens was a lie aimed at

inducing PFSI to advance him more money. Likewise, Hall had not even paid the

initial $225,000 penalty amount imposed by the First Order by the time the Second

Order was issued, and the district court noted that Hall failed to pay “in defiance of

the Court’s [First] Order and as further evidence of his lack of remorse.” Hall,

2017 WL 3635108, at *1. If anything, Hall’s continued proclamation of his

innocence and resistance to paying any amount of restitution evidences his

continued failure to recognize “the wrongful nature of [his] conduct.” See Calvo,

378 F.3d at 1216 (internal quotation marks omitted). These facts create further

support for the district court’s initial determination that a ten-year injunction and

an officer-and-director bar were appropriate.

Because we have not identified any abuse of discretion by the district court,

we AFFIRM.