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Securities and Exchange Commission v. Allen

United States District Court, Fifth Circuit

January 10, 2014

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
DAVID RONALD ALLEN et al., Defendants.

MEMORANDUM OPINION AND ORDER

REED O'CONNOR, District Judge.

Before the Court are United States Securities and Exchange Commission's Motion for an Order to Show Cause Why Defendant Ilya Drapkin ("Drapkin") Should Not Be Held in Contempt ("Motion for an Order to Show Cause") (ECF No. 293), filed October 4, 2013; Drapkin's Response to Motion for an Order to Show Cause (ECF No. 297), filed October 21, 2013; Drapkin's Memorandum of Law in Opposition to Motion for an Order to Show Cause (ECF No. 298), filed October 21, 2013; and Memorandum of Law in Reply to Drapkin's Opposition to Motion for an Order to Show Cause (ECF No. 301), filed October 28, 2013. For the reasons below, the Court finds that Drapkin is in contempt of the Court's final judgment entered against him.

I. FACTUAL & PROCEDURAL BACKGROUND

Plaintiff the Securities and Exchange Commission ("the SEC") commenced this action alleging that China Voice Holding Corp. ("China Voice"), certain China Voice executives, and various related entities made false and misleading public statements about the financial condition of China Voice. See 2d Am. Compl. 2-3, ECF No. 75. The SEC also alleged that Drapkin, a China Voice shareholder, perpetuated the fraudulent scheme through stock promotion campaigns. Id. at 17-20. On, April 28, 2011, the Court entered an order placing a freeze on certain MG TK Corp. accounts ("the Accounts") at JP Morgan Chase bank. See Mot. Order Show Cause Ex. 13 (Freeze order), 1-17, ECF No. 293-7. Drapkin is the "director, officer, and/or managing member of MG TK Corp." 2d Am. Compl. 2-3, ECF No. 75; Def.'s Answer 2d Am. Compl. ΒΆ 10, ECF No. 103.

On April 29, 2011, before the bank froze the Accounts, Drapkin's wife removed $502, 806.55 from the Accounts. See Ex Parte Mot. Seal Writ Execution Ex. 3 (Accounts wires & withdrawals), ECF No. 286-5. Drapkin previously testified that his wife does not transfer money from the Accounts unless he directs her to do so. Id. Ex. 14 (Drapkin tr.), 3-4, ECF No. 293-8.

Thereafter, Drapkin consented to the entry of a judgment permanently restraining and enjoining him from violating enumerated securities laws (ECF No. 132). Drapkin was also ordered to pay disgorgement of ill-gotten gains, prejudgment interest thereon, and a civil penalty. On July 6, 2012, the Court entered final judgment against Drapkin, which was corrected nunc pro tunc on October 11, 2012 (ECF Nos. 238 & 243). After the Court entered final judgment, Drapkin contacted the Dallas Art Gallery and arranged the sale of more than $700, 000 worth of artwork. See Ex Parte Mot. Seal Writ Execution Exs. 6-10 (Artwork documentation), ECF No. 286-5. To date, Drapkin has failed to make any payments toward the disgorgement orders.

The SEC now asks the Court to hold Drapkin in civil contempt for failure to pay disgorgement and interest as required by the Court in its final judgment. See Reply Opp'n Mot. Order Show Cause, ECF No. 301. Drapkin filed his response in opposition on October 21, 2013, and the SEC filed its reply on October 28, 2013. Accordingly, this matter has been fully briefed and is ripe for determination.

II. LEGAL STANDARD

Courts have the inherent power to enforce compliance with their orders through civil contempt. In re Bradley, 588 F.3d 254, 265 (5th Cir. 2009) (citing Spallone v. United States, 493 U.S. 265, 276 (1990); NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir.1990)). Civil contempt "is remedial, and for the benefit of the complainant, " while criminal contempt is "punitive, to vindicate the authority of the court." Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827-28 (1994) (quoting Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441 (1911)) (internal quotation marks omitted).

Civil contempt may be imposed following notice and an opportunity to be heard and "[n]either a jury trial nor proof beyond a reasonable doubt is required."[1] Id. Sanctions in civil contempt proceedings may be used for two purposes: (1) to coerce the defendant into compliance and (2) to compensate the complainant for losses suffered. United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947) (citing Gompers, 221 U.S. at 448-49).

"In a civil contempt proceeding, the movant must establish by clear and convincing evidence that (1) a court order was in effect, (2) the order required specified conduct by the respondent, and (3) the respondent failed to comply with the court's order." United States v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir. 2004) (citing Am. Airlines, Inc. v. Allied Pilots Ass'n, 228 F.3d 574, 581 (5th Cir. 2000)). The contemptuous conduct does not need to be willful as long as the contemnor actually failed to comply with the order. Am. Airlines, Inc., 228 F.3d at 578 (citing N.L.R.B. v. Trailways, Inc., 729 F.2d 1013, 1017 (5th Cir. 1984)).

Once a violation is demonstrated, the burden falls on the contemnor "to show either mitigating circumstances that might cause the district court to withhold the exercise of its contempt power, or substantial compliance with the consent order." Whitfield v. Pennington, 832 F.2d 909, 914 (5th Cir. 1987) (citing United States Steel Corp. v. United Mine Workers of Am., Dist. 20, 598 F.2d 363, 368 (5th Cir. 1979); La. Educ. Ass'n v. Richland Parish Sch. Bd., 421 F.Supp. 973, 977 (W.D. La. 1976), aff'd 585 F.2d 518 (5th Cir.1977)).

A defendant may also assert a present inability to comply with the order as a defense to civil contempt. United States v. Rylander, 460 U.S. 752, 757 (1983) (citing Maggio v. Zeitz, 333 U.S. 56, 75-76 (1948); Oriel v. Russell, 278 U.S. 358, 366 (1929)). The defendant has the burden of proving this defense and must demonstrate that compliance with the order at issue is now factually impossible. Id. (citing McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Fleischman, 339 U.S. 349, 362-363 (1950); Maggio, 333 U.S. at 75-76; Oriel, 278 U.S. at 366). Defendants need only prove their inability to pay by a preponderance of the evidence, but courts are not required "to accept... unsubstantiated, self-serving testimony as true." SEC v. Huffman, 996 F.2d 800, 803 (5th Cir. 1993).

III. ANALYSIS

The SEC contends Drapkin is in violation of the Court's final judgment, which required Drapkin to pay disgorgement and interest. See generally Mem. Law Supp. Mot. Order Show Cause, ECF No. 293-1; see also Corrected Final J., ECF No. 243 (requiring Drapkin to pay disgorgement within fourteen business days of final judgment). To date, Drapkin has not made a payment toward the disgorgement order. Drapkin counters that he should not be held in contempt because both the Court's final judgment and the SEC's motion are vague and ambiguous, he has no assets subject to execution, and he has made all reasonable efforts to pay the final judgment. See generally Def.'s Mem. Law Opp'n Mot. Order Show Cause, ECF No. 298. The Court will first determine whether Drapkin is in violation of the final judgment before evaluating Drapkin's defenses.

A. Did the SEC Meet its Burden of Showing Drapkin Violated the Final Judgment?

The SEC has the burden to show, by clear and convincing evidence, that: (1) an order was in effect, (2) the order required specific conduct by Drapkin, and (3) Drapkin failed to comply with the order. See, e.g., United States v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir. 2004). Here, the SEC relies on the Court's final judgment, which required Drapkin to pay certain disgorgement amounts within fourteen business days of the final judgment. See Mem. Law Supp. Mot. Order Show Cause 4-5, ECF No. 293-1; Corrected Final J., ECF No. 243. Thus, the SEC has met the first two elements. Lastly, to date, Drapkin has not made any disgorgement payments. Therefore, the Court finds that the SEC has met its burden of showing Drapkin violated the Court's final judgment.

In response to the SEC's reliance on the final judgment, Drapkin counters that the final judgment is too vague to be enforced.[2] Specifically, Drapkin contends:

the final judgment is vague, ambiguous and unable to be enforced by contempt because it contains multiple options for payment, including certain obligations of a non-volitional nature and others of a volitional nature, and the lack of availability of such alleged profits or the overwhelming inability to pay such amounts in such a short time frame, as well as the volitional nature of the manner of enforcement of the Final Judgment to be utilized by the SEC.

Def.'s Mem. Law Opp'n Mot. Order Show Cause 7, ECF No. 298. A court may only hold an individual in contempt of an order if the order contains specific and definite language requiring the individual to perform or refrain from performing an act. Martin v. Trinity Indus., Inc., 959 F.2d 45, 47 (5th Cir. 1992) (citing Baddock v. Villard, 606 F.2d 592, 593 (5th Cir.1979)). "The judicial contempt power is a potent weapon which should not be used if the court's order upon which the contempt was founded is vague or ambiguous." Id. (quoting Baddock, 606 F.2d at 593) (internal quotation marks omitted). Drapkin does ...


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