After a string of recent courtroom defeats, the U.S. Securities and Exchange Commission declared victory following a two-week securities fraud trial in Minneapolis federal court.
But the jury’s findings on Tuesday weren’t as clear-cut as the SEC suggested, since the verdict was mixed on whether the defendant, fund manager Marlon Quan, intentionally committed fraud. Quan’s lawyers from Wilmer Cutler Pickering Hale and Dorr said the findings cannot be reconciled.
In March 2011, the SEC charged Quan with funneling several hundred million dollars of investor money into a Ponzi scheme operated by Minnesota businessman Thomas Petters, who is now serving a 50-year prison sentence.
According to the SEC, Quan and his firms, Stewardship Investment Advisors and Acorn Capital Group, invested hedge-fund assets with Petters while pocketing more than $90 million in fees. They allegedly promised investors that their money would be safeguarded in “lockbox” accounts, then concealed Petters’ defaults from investors by concocting sham transactions.
“We’re very pleased the jury found Marlon Quan liable for securities fraud and that he will be held accountable for his deception,” SEC Enforcement Division head Andrew Ceresney said in a written statement. “Facilitators of Ponzi schemes are just as culpable and harmful to investors as those who are conducting the schemes, and we thank the jury for sending that message in its verdict.”
The jury’s message, though, was mixed, said Wilmer counsel Christopher Casamassima, who tried the case with of counsel Bruce Coolidge and senior associate Laura Schwalbe.
“The SEC brought two claims against Mr. Quan for securities fraud based on identical conduct under two different securities laws that are also identical in their application to this case,” Casamassima said in an interview.
The jury found that the SEC prevailed on one claim, and while Quan came out on top on the other.
“Because these findings cannot be reconciled, they reflect a split, nonunanimous jury,” Casamassima said. “Since unanimity is required for liability, the effect of the two inconsistent findings is that the SEC has failed to sustain its claim of securities fraud against Mr. Quan.”
The jury agreed with the SEC that Quan violated Rule 10b-5 of the Exchange Act. According to the jury instructions by U.S. District Judge Ann Montgomery, that meant the jury had to find that he either “employed a device, scheme, or artifice to defraud” or that he “made an untrue statement of material fact” or he “engaged in any act, practice, or course of business that operated as a fraud or deceit.”
The jury also had to find that he “acted with scienter, that is, that the defendant acted with an intent to deceive or defraud.”
The SEC also charged Quan with violating Section 17(a)(1) of the Securities Act, which Montgomery in jury instructions described as “substantially the same” as the 10b-5 claim—that is, he “employed a device, scheme, or artifice to defraud” and did so with scienter.
But it’s a narrower claim, hinging specifically on the scheme to defraud—conduct that the judge said goes beyond mere misrepresentations or omissions. By contrast, the 10b-5 claim provides two other, alternative grounds for a verdict—untrue statements or engaging in a fraudulent act.
The jury found Quan did not violate Section 17(a)(1), presumably because it determined he did not employ a device, scheme or artifice to defraud. However, the jurors did find that he violated parts 2 and 3 of Section 17, which have a lower standard and only require a finding of negligence.
The agency, which normally wins about 80 percent of its cases at trial, has struggled of late in court. In January, the SEC lost an insider-trading case in Atlanta against Ladislav “Larry” Schvacho, and in December, agency lawyers came up empty-handed an accounting fraud case in Los Angeles and a securities fraud case in Kansas.
The agency also lost its high-profile insider-trading case against billionaire Mark Cuban in Dallas in October, but did win a jury trial that month in a Tennessee securities fraud case and another in Minnesota.
Earlier this month, the SEC garnered another mixed jury verdict in a case in U.S. District Court for the Western District of Texas against Life Partners Holdings Inc. alleging a fraudulent disclosure and accounting scheme.
Contact Jenna Greene at firstname.lastname@example.org.