U.S. Securities & Exchange Commission v. Altomare

300 F. App'x 70

• Court: Court of Appeals for the Second Circuit
• Decided: November 13, 2008
• Docket: No. 07-2407-cv.
• Status: Published

Opinion

SUMMARY ORDER

The United States Securities and Exchange Commission (“SEC”) sued, inter alia, defendants Richard A. Alternare and Chris G. Gunderson, alleging violations of various federal securities laws. The SEC then moved, in relevant part, for summary judgment against Alternare and Gunderson with respect to its claims that they violated sections 5 and 17(a) of the Securities Act of 1933, section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. Alternare and Gunderson cross-moved for summary judgment with respect to the section 5 claims. The district court denied Altomare’s and Gunderson’s motion and granted the SEC’s motion. Alternare and Gunderson appeal both aspects of that decision.

We review the district court’s grant of summary judgment de novo, “examining the evidence in the light most favorable to, and drawing all inferences in favor of, the non-movant.” Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

Alternare and Gunderson argue two points on appeal. They contend first that they did not violate section 5 of the Securities Act because the shares they issued to various consultants were exempt from registration pursuant to sections 1125(e) and 1145 of the Bankruptcy Code. They assert next that there were genuine issues of fact as to their state of mind so as to make summary judgment with respect to the fraud claims inappropriate. Having carefully considered the record, we find these arguments to be without merit. Substantially for the reasons stated in the district court’s thorough and thoughtful opinion and order, SEC v. Universal Express, Inc., 475 F.Supp.2d 412 (S.D.N.Y.2007), the judgment of the district court is AFFIRMED.