436 F. App'x 1
2d Cir.2011Background
- Milligan, pro se, appeals district court’s final judgment and injunction granting SEC summary judgment and relief for violations of §17(a) of the Securities Act, §10(b) of the Exchange Act, and Rule 10b-5.
- Court reviews summary judgment de novo; determines no genuine issues of material fact and entitlement to judgment as a matter of law.
- Magistrate judge found $93,600 is an appropriate disgorgement amount and that Milligan failed to prove a lesser amount.
- Magistrate judge considered factors and remediable goals in awarding prejudgment interest.
- Magistrate judge recommended third-tier civil penalties based on egregious conduct, fraud participation, denial of responsibility, and deception; district court adopted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly granted summary judgment | SEC prevailed; no genuine issues of material fact | Milligan contends there are genuine issues of material fact | Affirmed |
| Whether the disgorgement amount was proper | Disgorgement of $93,600 is a reasonable approximation | Milligan argues a lesser amount should be disgorged | Disgorgement amount upheld |
| Whether prejudgment interest was properly awarded | Award aligns with remedial goals and statutory scheme | Milligan challenges the calculation | Prejudgment interest upheld |
| Whether civil penalties were properly imposed and sized | Factors supported third-tier penalties | Milligan disputes severity or basis for penalties | Third-tier penalties affirmed |
Key Cases Cited
- Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) (summary judgment standard; de novo review)
- Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) (ambiguities resolved in non-movant's favor)
- Davis v. New York, 316 F.3d 93 (2d Cir. 2002) (conclusory statements not enough to defeat summary judgment)
- SEC v. AbsoluteFuture.com, 393 F.3d 94 (2d Cir. 2004) (abuse of discretion standard for disgorgement)
- SEC v. Kern, 425 F.3d 143 (2d Cir. 2005) (abuse of discretion for civil penalties)
- New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599 (2d Cir. 2003) (abuse of discretion for prejudgment interest)