*1 undermining Holly’s BEAM, MAGILL, Also contentions on this Before and MORRIS government ARNOLD, fact never Judges. SHEPPARD Circuit proved that the statement the truth PER CURIAM. is, that, fact, Holly of the matter —that Nicholas Euroamerican Securi- Vasquez leg. Accordingly, the horse’s break ties, S.A., Tuschner, John M. and Tuschner Af- appeal the district court’s1 order firmed. granting injunction preliminary to the Se- (SEC) Exchange
curities and Commission denying their motions to dismiss for lack personal subject-matter jurisdiction. currently subject Zahareas is to a 1993 SEC prohibiting bar associating order him from with a broker or dealer. The (1) injunction mandates that com- SECURITIES AND EXCHANGE COM ply with enjoins the 1993 bar order and him MISSION, sued as United States Securi (2) dealer; associating from with a broker or Exchange Commission, Appel ties and enjoins Tuschner permitting & Co. from lee, person subject to a bar order to become (3) Co.; associated with Tuschner & v. enjoins Zahareas, agents Tuschner and their ZAHAREAS, Defendant, Nicholas A. aiding abetting any from violations of 15 78o(b)(6)(B)(i) (ii). § U.S.C. Company, Inc.; Tuschner & John After careful review the record and the Tuschner, Appellants, M. briefs, parties’ we affirm for the reasons set forth in opinion. the district court’s See 8th Securities, S.A., Euroamerican Defendant. Cir. R. 47B. Exchange Commission, Securities and ARNOLD, MORRIS SHEPPARD Circuit sued as United States Securities and Judge, dissenting. Exchange Commission, Appellee, consenting After to a 1993 SEC order that permanently barred him participation from Zahareas, Appellant, Nicholas A. industry the securities in the United
States, Mr. Zahareas established a broker- Company, Inc.; John dealer business called Euroamerican in Ath- Tuschner, Defendants, M. ens, Greece. Minneapolis SEC, pro- Securities, S.A., Appellant. cured American securities for Euroameri- can’s Greek clients. The SEC commenced 98-1524, Nos. 98-1527. this enforcement claiming action associating violated the law registered broker-dealer, that Tuschner & Co. violated associating the law with a 19, Submitted: Nov. 1998. person, barred and that the aided and Filed: abetted each other in Feb. these violations. against order entered Suggestion did not allow him to “associate with” broker- En April Banc Denied dealers. Exchange The Securities Act of 78c(a)(18), § see U.S.C. defines
“person associated with a broker or dealer” Doty, The Honorable Judge David S. United States District for the District of Minnesota. *2 397 ed; “any partner, party right that to dis- neither person” as an “associated or director, other, officer, manager charge although right or of such both had a branch the (or and, any person occupying relationship; to business or dealer sever their broker important, or similar func- had no performing status most that Tuschner & Co. similar tions), directly indirectly any person or con- right to the means and manner of control trolling, by, or under common controlled Euroamerican’s and Mr. business. Zahareas’s dealer, any with such or or control broker it Euroamerican had its own clients before dealer.” Co., of such or The employee broker working with Tuschner & and started below, the district court and SEC free it was to advise those clients however held, by Mr. Zahar- performed that the acts any in it engage wanted to that and business Euroamerican were similar to those eas and wanted with those clients. that Za- performed employee, an and Mr. The calls our to several SEC attention person” an “associated hareas was therefore support that that facts it believes its claim & Co. of Tuschner agent Mr. was an Zahareas of holding, difficulty the The with this as particularly persuasive none which is of out, parentheti- Defendants is to me. contends that Mr. Zahar- The SEC language upon by relied the SEC and the cal acted eas in a manner similar to that of (“or any proposition this representative, Tuschner but the ac- & Co. occupying per- status or person a similar points to it inconsis- tivities which were not functions”), forming is located similar direct- doing separate companies tent with two referring ly portion the the definition after of other; it points business each out that officers, directors, partners, and branch to compliance Tuschner officer re- & Co.’s any not in managers. language This does documents, that is viewed all orders but
way modify part the purport to the of statute only expected to be because Tuschner & Co. employees, thus ex- that defines cannot subject the to was employee. pand the definition of an There- regulation; it SEC notes that Tuschner (and only persons not employees fore actual when kept & Co. Euroamerican’s clients employees) can be “associated per- similar to relationship Tuschner severed its sons.” and Mr. but that appeal, appears the to have aban- On SEC simply could be because those clients wished original in favor an position doned its of securi- to continue investments American Mr. was an argument that “associ- ties, appeared service it that person” he was under Tuschner ated because Considering no all of longer provide. could agree the & Co.’s control. The that facts, clear me that the these it seems to control decided issue of should be basic Zahar- SEC has failed to establish that Mr. principles agency law. The considerations of eas was Tuschner control. under & Co.’s guide inquiry the into whether control that right include the to control the existed where case do not Although the briefs this resided, performance means and manner of matter, the I note the district raise that was, payment the mode of who fur- what findings court’s on the relevant factual issues tools, who con- nished relevant materials self-contradictory. seem to The district be workplace, right the who had trolled the was an court found both See, discharge. e.g., Guhlke Roberts to employee and that he Co. Lines, 268 Minn. 128 N.W.2d Truck exercised control over Tuschner & Co. Since (1964). important The of these most relation- employer/employee the core of an right had the to control considerations who control, ship effectively found the court performance. means and manner of Id Zahareas were that Tuschner & Co. Mr. employees each other. The two busi- evidence the district court in before degree of appear have had tended show that Euroamerican nesses to some this case to another, separate influence one as well as differ- operated with materials and tools at over ing degrees over various com- separate separate that of control location in a nation they leadership ponents business deals executed & Co.’s had never visit- Tuschner legally together, neither was under the but
control of the other. record, present ap-
On the state of the it
pears to that the district court erred in me injunction.
entering I would
therefore reverse the and remand proceedings.
for further
Jeffrey CARTER, Appellant, D. UNIVERSITY,
ST. LOUIS Missouri Corporation;
Benevolent Donald L.
Kaminski, M.D., Appellees.
No. 97-2699.
Submitted Feb.
Filed Feb. En Banc
Denied March