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1999-04-16
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FILED MAY 19 1998
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SECURITIES AND EXCHANGE COMMISSION
Plaintiff,
vs.
GERALD A. DOBBINS, et al.
Defendants.
Case No. SA CV 98-229 GLT (EEx)
FINDINGS ON ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
Having reviewed the papers and considered arguments raised
at the hearing, Plaintiff's Motion for a Preliminary Injunction
is GRANTED. A Preliminary Injunction will issue in conjunction
with the findings of fact and conclusions of law set out in this
memorandum.
The SEC has alleged Defendants acted in violation of º 10(b)
and Rule 10b-5 of the Securities Exchange Act of 1934 and º 17(a)
of the Securities Act of 1933. Section 21(d) of the Exchange Act
grants the SEC authority to bring an action against any person
who "is engaged or is about to engage" in a violation, and
provides "upon a proper showing" a temporary or permanent
injunction may be issued. A proper showing is made when the
Commission establishes an individual's conduct violates federal
securities laws and a reasonable likelihood the violative conduct
will recur unless the defendant is enjoined. SEC v. Murphy, 626
F.2d 633, 655 (9th Cir. 1980). The Commission is not required to
make a showing of irreparable injury or lack of an adequate
remedy at law. SEC v. Management Dynamics, 515 F.2d 801, 808 (2d
Cir. 1975).
I. Conduct in Violations of Federal Securities Laws
To state claim for violation of securities fraud under
º10(b) and Rule 10b-5 of the Securities Exchange Act, or º 17(a)
of the Securities Act, the SEC must provide evidence of (1) a
misrepresentation or omission, (2) of material fact, (3) made
with scienter amounting at least to recklessness, (4) in offer or
sale, or in connection with purchase or sale of security.
In opposition to the Preliminary Injunction, Defendants
generally have raised two points. First, Defendants claim they
made no material misrepresentations. The valuations which
Defendants issued were allegedly "hypothetical" and as such "no
reasonable investor could or should have relied upon" them. Opp.
at 3. Second, Defendants note the Commission has provided no
evidence that Fidelity and/or Dobbins engaged in the purchase or
sale of securities. Rather, the evidence shows Defendants only
kept the bonds in custodial care for the rightful owners.
A. Material Misstatements of Fact
The SEC must show Defendants' valuations misrepresented
material facts and were made with scienter amounting at least to
recklessness. A fact is material if there is a substantial
likelihood that a reasonable investor would consider it important
in making the investment decision. See Basic v. Levinson, 485
U.S. 224, 231-32 (1988).
Here, the valuations which the SEC has logged with the Court
appear on Fidelity Secured Deposit Corporations' letterhead and
are signed by Gerald Dobbins. These valuations are material since
they provide information a reasonable investor would consider
important. [FN1] Additionally, the valuations are
misstatements. The railroad bonds at issue here have only nominal
value as historical documents. Although Defendants aver that
their valuations were "hypothetical in nature," the valuations
themselves are not labeled as such. The valuations before the
Court state: "As of [date] the total dollar amount due and
payable and value of each bond is [amount, all over
$100,000,000]." As for scienter, a January 1997 letter advised
Defendants the bonds had no intrinsic value. Yet, Defendants
continued to issue inflated valuations after receipt of this
letter. Thus, there is prima facie evidence the Defendants'
valuations misrepresented material facts and were made with
scienter.
FN1. The SEC has failed to bring forward a single investor who
relied upon these statements. However, investor reliance on any
public material misrepresentations is presumed in securities
fraud cases. 17 C.F.R. º 240.10b-5.
B. Sale or Purchase of Securities
The SEC must also produce evidence of nexus, under º 10(b)
and Rule 10b-5 the SEC must show Defendants made these material
misstatements "in connection with" purchase or sales of
securities. Under º 17(a) the SEC must show Defendants made
these material misstatements in the "offer or sale" of
securities.
1. Section 10(b) and Rule 10b-5
Section 10(b) of the Exchange Act and Rule 10b-5 prohibit
fraud "in connection with" the purchase or sale of securities.
The "in connection with" requirement looks for a nexus between
the fraudulent conduct and a securities transaction. The courts
have interpreted the requirement broadly, requiring only that the
defendant's fraud "touch" a securities transaction. See SEC v.
Rana Research. Inc., 8 F.3d 1358, 1362 (9th Cir. 1993). The nexus
is satisfied whenever misstatements are made in a manner
reasonably calculated to influence the investing public. Id.
Here, the SEC has presented the deposition of Daniel
Schneider. Based on Defendants valuations, Mr. Schneider told
investors that the railroad bonds at issue were worth in excess
of $100 million. This is sufficient to show Defendants material
misstatements were used in "connection with" the purchase or sale
of securities. The SEC has made a prima facie showing of º 10(b)
and Rule 10b-5 violations.
2. Section 17(a)
Section 17(a) of the Securities Act of 1933 makes it
unlawful for any person to engage in fraud in the "offer or sale"
of securities. The meaning of º 17(a)'s requirement, that the
fraud be used in the "offer or sale" of securities, is unclear.
Courts have considered, but have yet to hold, that "in the offer
or sale of securities" covers a narrower range of activities than
does the "in connection with" requirement of º 10(b). See Holmes
v. Securities Investor Protection Corp., 503 U.S. 258, 283 (1992)
(O'Connor concurring) (discussing whether fraud in the "offer or
sale'' of securities was intended to reach a narrower scope of
conduct than section 10(b) 's fraud "in connection with"); cf.
United States v. Bingham, 992 F.2d 975, 976 9th Cir. 1993)
(leaving the question undecided).
It appears to this Court that the scope of º 17(a) is
narrower than º 10 (b). while º 10 (b) reaches conduct "directly
or indirectly . . . in connection with" security purchase or
sale, there is no similar broad language in º 17(a) . The
stricter requirement of º 17(a) is that the party act "in the
offer or sale" of securities.
Here, the SEC has no evidence Defendants acted "in the offer
or sale" of securities. Nor has the SEC cited authority where
other courts have taken evidence similar to that alleged here and
found it sufficient to support a violation of 17(a).[FN2] The
Court finds the SEC has not made out a prima facie case under º
17(a).
FN2. As other evidence becomes available, the parties are
reminded of their obligation to update and supplement their
discovery responses in accordance with Rule 26(e).
II. Conduct Likely to Continue
The SEC must also show a reasonable likelihood the violative
conduct will recur unless Defendants are enjoined. SEC V. Murphy,
626 F.2d 633, 655 (9th Cir. 1980). When determining the
likelihood of future violations, a court should consider the
degree of scienter involved; the isolated or recurrent nature of
the infraction; the defendant's recognition of the wrongful
nature of his conduct; the extent to which the defendant's
professional and personal characteristics might enable or tempt
him to commit future violations; and the sincerity of any
assurances against future violations. Id.
Here, the SEC has provided evidence Dobbins knowingly and
continuously supplied inflated valuations after being informed
the bonds had no intrinsic value. The Defendant could easily
return to his valuations practice if no injunction were issued.
The SEC has sufficiently shown a likelihood the conduct will
continue without an injunction.
III. Preliminary Injunction
The SEC has made a prima facie showing that Defendants
conduct was in violation of º 10(b) and Rule 10b-5 of the
Securities Exchange Act of 1934. Moreover there is a reasonable
likelihood the violative conduct will recur unless Defendants are
enjoined. Plaintiff's Motion for a Preliminary Injunction is
GRANTED. A Preliminary Injunction will issue.
DATED: May 19, 1998
/s/ Gary L. Taylor
GARY L. TAYLOR
UNITED STATES DISTRICT JUDGE