SEC v. Management Solutions ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 19, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff - Appellee,
v. No. 19-4090
(D.C. No. 2:11-CV-01165-BSJ)
MANAGEMENT SOLUTIONS, INC., a (D. Utah)
Texas corporation; WENDELL A.
JACOBSON; ALLEN R. JACOBSON,
Defendants.
------------------------------
ERIC WELLING; PHEASANT WOOD,
LLC,
Intervenors - Appellants.
and
GIL A. MILLER,
Receiver - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
_________________________________
In this securities-fraud case, investors Eric Welling and Pheasant Wood, LLC,
appeal from a district court order that accepted the court-appointed receiver’s final report,
terminated the receivership, and closed the case. Exercising jurisdiction under 28 U.S.C.
1291, we affirm.
BACKGROUND
In December 2011, the Securities and Exchange Commission (SEC) filed a civil
enforcement action in federal district court, alleging that Wendell and Allen Jacobson
were committing “an ongoing offering fraud and Ponzi scheme” that had “raised more
than $200 million from approximately 225 investors.” Aplt. App., Vol. II at 398. The
Jacobsons operated the scheme “under the umbrella of Management Solutions, Inc.
[MSI],” id. at 399, which had the stated goal of identifying, rehabilitating, and reselling
multi-family apartment communities, id. at 401.
The district court appointed John Beckstead as receiver and froze the assets of
MSI and the Jacobsons. The appointment order directed Beckstead “to investigate the
manner in which the financial and business affairs of the [r]eceivership [d]efendants were
conducted and . . . institute such actions and legal proceedings, for the benefit and on
behalf of the [r]eceivership [e]state, as the [r]eceiver deems necessary and appropriate.”
Id. at 431. The order granted Beckstead and his accounting team “reasonable
compensation and expense reimbursement from the [r]eceivership [e]states,” and it
required Beckstead, “[a]t the close of the receivership,” to “file a final fee application,
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describing in detail the costs and benefits associated with all litigation and other actions
pursued by the [r]eceiver during the course of the receivership.” Id. at 435.
A year later, in December 2012, MSI and the Jacobsons agreed to the entry of a
final judgment exceeding $260 million. As part of the judgment, Beckstead
acknowledged his ongoing obligation to pursue fraudulent conduct in future actions
against third parties.
Welling and Pheasant Wood were two of the many investors in this case. They
moved to intervene in the receivership based on unpaid loans they had made to an entity
controlled by Wendell Jacobson. The district court granted the motion, and they joined
the case in February 2013.
In April 2014, the district court appointed Gil Miller as the new receiver, because
Beckstead had decided to retire. Miller was the senior managing member of Rocky
Mountain Advisory, LLC, which the district court had, a few weeks earlier, appointed “to
provide consulting, investigation, accounting, and other services to [Beckstead].” Id. at
583; see also id. at 543-44.
As the new receiver, Miller moved to amend the appointment order to allow
monthly interim compensation and reimbursement of expenses. In July 2014, the district
court granted Miller’s motion and ordered the submission of “a detailed statement of
services rendered and expenses incurred by the [receiver and his team] for the month,”
and required that “[a]ny objection to the payment of fees or reimbursement of expenses in
a [r]equest . . . be filed with the Court and served on the [n]otice [p]arties within ten (10)
calendar days.” Miller’s Supp. App., Vol. IV at 1022-23.
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Over the ensuing four years, Miller worked to resolve the remaining disputes
regarding the receivership estate, including liquidating the remaining receivership
properties. In a “Final Application for Compensation and Reimbursement of Expenses,”
filed in November 2018, Miller sought “approv[al] [of] all prior approved fees.” Id.,
Vol. XV at 4062, 4072. In the application, Miller stated that “[a]ll services and costs
were reasonably necessary to the administration of the receivership estate and beneficial
at the time the services were rendered,” and that “[t]he SEC ha[d] reviewed and approved
all requests.” Id. at 4065. Welling and Pheasant Wood disagreed and sought an order
“disgorg[ing] . . . fees paid to Miller and [Rocky Mountain Advisory],” alleging they had
conflicts of interest “based on their engagement to consult for [a law firm that had
represented Wendell Jacobsen and MSI] in connection with the SEC’s investigation of
[the Jacobsons], and because they . . . agree[d] to provide expert witness services for the
State of Utah in its prosecution of the Jacobsons.” Aplt. App., Vol. III at 586. The
district court denied Welling and Pheasant Wood’s motion, stating that Miller had carried
out his duties as a receiver “in an exemplary fashion.” Miller’s Supp. App., Vol. XVII
at 4476.
In April 2019, Miller filed his “Final Report and Motion to Terminate
Receivership and Close Action.” Aplt. App., Vol. IV at 906. Therein, he reported the
payment of “100% of approved Secured Claims in the amount of $213,593,681” and
“100% of approved Investor Claims in the amount of $139,578,138.” Id. at 909
(boldface and underline omitted). Welling and Pheasant Wood objected, complaining
that the report lacked “a final cost-benefit analysis of claims against third parties.” Id. at
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926. The district court held two hearings on the matter and denied the objection,1
stressing that “nobody has raised specific problems with any receivership transaction . . .
throughout the course of the receivership, including the periodic accounting that occurred
and the applications for compensation that came before the Court.” Id. at 950.
Consequently, the district court terminated the receivership and closed the case.
Welling and Pheasant Wood now appeal, arguing that the district court erred by
granting Miller’s motion “without requiring a detailed cost-benefit analysis.” Aplt.
Opening Br. at 15-16.
DISCUSSION
I. Standard of Review
“It is generally recognized that the district court has broad powers and wide
discretion to determine relief in an equity receivership.” SEC v. Vescor Capital Corp.,
599 F.3d 1189, 1194 (10th Cir. 2010) (ellipsis and internal quotation marks omitted).
Accordingly, we review the district court’s order terminating the receivership and closing
the case for an abuse of that discretion, see SEC v. Scoville, 913 F.3d 1204, 1213
(10th Cir.), cert. denied, 140 S. Ct. 483 (2019), which “occurs only when the trial court
bases its decision on an erroneous conclusion of law or where there is no rational basis in
1
At the May 15, 2019 hearing, Welling and Pheasant Wood asked the district
court to delay closing the receivership so they could “see if there is more money out
there.” SEC’s Supp. App. at 68. The district court noted that they had identified
“nothing by way of a specific complaint as to a specific transaction involving a specific
event,” id. at 70, and it declared, “[W]e need to bring [the receivership] to an end,” id. at
79.
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the evidence for the ruling,” Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061,
1065 (10th Cir. 2001) (internal quotation marks omitted).
II. Cost-Benefit Analysis
The crux of Welling and Pheasant Wood’s appeal is that Miller and his team were
paid too much. They state that Miller and his team were paid $38.4 million out of
receivership assets but recovered only $2.6 million pursuing “seventy-five claims
(including forty-five lawsuits) against third parties.” Aplt. Opening Br. at 4. According
to Welling and Pheasant Wood, the district court should have required Miller to submit a
cost-benefit analysis justifying his “expensive and largely unsuccessful efforts” against
third parties, especially “[i]n light of [his] conflict” of interest. Id. at 5. We disagree.
Although the district court included the requirement of a final cost-benefit analysis
in its 2011 order appointing a receiver, nothing prevented the court from terminating the
receivership and closing the case without having received such an analysis. Indeed, a
district court has the inherent power “to manage [its] own affairs so as to achieve the
orderly and expeditious disposition of cases,” which includes “the power to modify or
rescind its orders at any point prior to final judgment in a civil case.” Dietz v. Bouldin,
136 S. Ct. 1885, 1891-92 (2016).
As the district court noted in deciding this matter, it was time—after seven years
and “3,500 docket entries,” SEC’s Supp. App. at 77—to bring the receivership to a close.
The district court explained that Welling and Pheasant Wood had numerous opportunities
throughout the receivership to contest Miller’s handling of the receivership, but they
failed to do so until the very end. In particular, just three months after Miller became the
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receiver, the district court ordered Miller to submit monthly compensation and expense
reports, and it established a process for contemporaneous objections, but Welling and
Pheasant Wood made none. Under these circumstances, we cannot say that the district
court abused its discretion in terminating the receivership and closing the case without
receiving a cost-benefit analysis.2
To the extent Welling and Pheasant Wood contend otherwise based on their view
that Miller was a conflicted receiver,3 we are unpersuaded for two reasons. First, the
receiver is not an agent of the parties; rather, he is “an officer or arm of the court[,] . . .
appointed to assist the court in protecting and preserving, for the benefit of all parties
concerned, the properties in the court’s custody.” Crites, Inc., v. Prudential Ins. Co. of
2
Welling and Pheasant Wood point out that the requirement of a cost-benefit
analysis was also contained in the SEC’s Billing Instructions. But they do not
indicate how those instructions could have confined the district court’s discretion in
terminating the receivership. Further, the SEC supported “allowing [Miller and his
team] to be paid fully for the work that they have done and for there to be some
closure.” Miller’s Supp. App., Vol. XVIII at 4664-65. See SEC v. Byers, 590 F.
Supp. 2d 637, 644 (S.D.N.Y. 2008) (observing that “in a securities receivership,
opposition or acquiescence by the SEC to the fee application will be given great
weight” (brackets and internal quotation marks omitted)).
3
Welling and Pheasant Wood assert that Miller had a conflict of interest due to
(1) his consulting work for the Jacobsons during the SEC’s investigation; (2) his
being designated as an expert witness for the state in Utah’s prosecution of the
Jacobsons; (3) his accounting work for Beckstead during the receivership; and (4) his
support of Beckstead’s effort to establish the existence of a Ponzi scheme. But
Welling and Pheasant Wood make no attempt to show how any of these grounds
actually conflicted with Miller’s duties as receiver for the court. Nor did they ever
object to his appointment as receiver. They simply argue on appeal, under the rubric
of “conflict of interest,” that Miller’s work before becoming the receiver should have
influenced the district court to require a cost-benefit analysis. We reach only that
limited argument.
7
Am., 322 U.S. 408, 414 (1944). And according to the district court, Miller discharged his
duties as receiver in an “exemplary fashion,” recovering “100 cents on the dollar of
[Welling and Pheasant Wood’s] qualified claims.” Miller’s Supp. App., Vol. XVII at
4476. Second, Welling and Pheasant Wood do not explain why Miller’s work in this
case before becoming the receiver in 2014 necessitated his submission of a cost-benefit
analysis in 2019. The district court found no such connection, and we will not upset that
determination based on Welling and Pheasant Wood’s mere conjecture that Miller and his
team “squandered or wasted” receivership assets, Aplt. Opening Br. at 16.
CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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