Ussec v. Michael Hooper ( 2019 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
U.S. SECURITIES & EXCHANGE No. 17-35835
COMMISSION, Applicant,
D.C. No. 2:16-mc-00022-MKD
Petitioner-Appellee,
v. MEMORANDUM*
MICHAEL J. HOOPER,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, Magistrate Judge, Presiding
Submitted April 15, 2019**
San Francisco, California
Before: D.W. NELSON, BEA, and N.R. SMITH, Circuit Judges.
Michael J. Hooper appeals (1) the district court’s grant of the Securities and
Exchange Commission’s (hereafter “SEC”) petition to enforce the terms of his
suspension order, see 15 U.S.C. §§ 77t(c), 78u(e), and (2) the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
requiring Hooper to disgorge $30,833.13 for accounting services he performed in
violation of the suspension order. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Practicing as an accountant before the SEC includes, “[t]he preparation of
any statement, opinion or other paper by any . . . accountant . . . filed with the
Commission in any registration statement, notification, application, report or other
document with the consent of such . . . accountant.” 17 C.F.R. § 201.102(f)(2)
(“Rule 102(f)”).1 The district court did not err when it concluded that Hooper
violated the suspension order2 by appearing or practicing as an accountant before
the SEC, because Hooper prepared financial statements for several publicly traded
companies that were included in various documents those companies filed with the
1
We reject Hooper’s argument that the applicable definition of accountant is
not provided by Rule 102(f), but is instead provided by 17 C.F.R. § 210.2-01(“Rule 2-01”), which governs audits. Hooper is not alleged to have violated the
suspension order by performing audit activities. Moreover, Rule 2-01 states
specifically that the definition of accounting that it provides is “[f]or purposes of
this section” and “as used in paragraphs (b) through (e)” of Rule 2-01, 17 C.F.R.
§ 210.2-01(f)(1), and this action does not arise under or concern that rule.
2
Hooper argues that the suspension order did not provide adequate notice
that the conduct at issue here would violate the suspension order. We are not
persuaded by this argument. The only plausible reading of the suspension order is
that Hooper was prohibited from practicing as an accountant—which under Rule
102(f) plainly includes preparing financial statements for a company that will be
filed with the SEC—unless he applied for (and was granted) reinstatement.
2
SEC, and he does not dispute that he knew that those statements would be used for
that purpose.
2. Hooper argues that the Supreme Court’s decision in Kokesh v. SEC, 137 S.
Ct. 1635 (2017), deprived the SEC of any authority to request disgorgement.
However, Kokesh specifically declined to consider that issue, id. at 1642 n.3, so
that case is not “clearly irreconcilable” with our longstanding precedent on this
subject. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The
district court did not abuse its discretion when it determined that the fees that
Hooper received in connection with his violation of the suspension order were
“gains flowing from [Hooper’s] illegal activities,” which should be disgorged.
SEC v. JT Wallenbrock & Assocs., 440 F.3d 1109, 1114 (9th Cir. 2006) (citation
omitted).
AFFIRMED.
3