RECEIVER'S MOTION TO EXPAND SCOPE OF RECEIVERSHIP
Transcript of RECEIVER'S MOTION TO EXPAND SCOPE OF RECEIVERSHIP
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-cv-60082-DIMITROULEAS/SNOW
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff, v.
FREDERIC ELM f/k/a FREDERIC ELMALEH, et al.,
Defendants,
and
AMANDA ELM f/k/a AMANDA ELMALEH,
Relief Defendant. ______________________________________________ )
RECEIVER'S MOTION TO EXPAND SCOPE OF RECEIVERSHIP
Grisel Alonso, not individually but solely in her capacity as the Receiver appointed over
Elm Tree Investment Advisors, LLC ("ETIA"), Elm Tree Investment Fund, LP, Elm Tree
'e'Conomy Fund, LP, and Elm Tree Motion Opportunity, LP (collectively, the "Receivership
Entities"), by and through undersigned counsel, respectfully moves to expand the scope of the
Receivership previously set forth by this Court in its Order dated January 16, 2015 [D.E. 13], to
add a related entity – Etopia, LP (“Etopia”) – to the Receivership estate. The Securities and
Exchange Commission was consulted prior to the filing of this Motion, and it does not object to
the relief sought herein.
INTRODUCTION
The Receiver has discovered, after reviewing investor claim support and other continuing
due diligence, that Etopia should be included within the Receivership. Expansion of the scope of
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the Receivership Order is critical to ensuring that assets, documents, and information are not
dissipated. Among other things, the following facts support expansion of the Receivership over
Etopia: (i) Receivership assets were commingled with Etopia's assets; (ii) Etopia was marketed
to investors of the Receivership Entities as a fund with which they could invest; (iii) the
principals of the Receivership Entities distributed private placement memoranda for Etopia and
solicited subscriptions; (iv) ETIA is identified in subscription documents as Etopia's "fund
manager"; (v) ETIA's address is identified in subscription documents as the address for
correspondence related to Etopia; (vi) numerous investors of the Receivership Entities invested
in Etopia; (vii) Etopia is also, at times, referred to as an "Elm Tree" fund; and (viii) Etopia is
owned by the father of Defendant Frederic Elm, f/k/a Frederic Elmaleh ("Defendant Elm").
BACKGROUND
A. The SEC’s Motion
On January 15, 2015, the SEC filed its Complaint for Injunctive and Other Relief [D.E.
1] and Emergency Motion to Appoint for Appointment of Receiver [D.E. 8]. In the Complaint,
the SEC seeks to temporarily and permanently enjoin Defendant Elm and the Receivership
Entities from violating the antifraud and registration provisions of federal securities laws. [D.E. 1
at 1]. The Commission also seeks to protect and preserve millions of dollars of investor assets at
risk. Id. at 2.
B. The Receivership Order and the Receiver's Power to Expand the Receivership
On January 16, 2015, the Court entered the Receivership Order. [D.E. 13]. The
Receivership Order placed the Receiver in charge of the Receivership Entities. Id. at 2. The
Receivership Order authorized and directed the Receiver to, among other things:
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• take immediate possession of all property, assets and estates of every kind of the Receivership Entities;
• investigate the manner in which the affairs of the Receivership Entities were conducted;
• employ legal counsel and other professionals as the Receiver deems necessary and to take possession of the assets and business and to fix and pay their reasonable compensation and reasonable expenses;
• engage persons in the Receiver’s discretion to assist the Receiver in carrying out the Receiver’s duties and responsibilities;
• defend, compromise or settle legal actions in which the Receivership Entities or the Receiver is a party;
• assume control of all of the Receivership Entities’ financial accounts, as necessary;
• make payments and disbursements from the funds and assets taken into control as necessary in discharging the Receiver’s duties; and
• have access to and review all mail of the Receivership Entities, Defendant Elm, and Relief Defendant Amanda Elm f/k/a Amanda Elmaleh.
[D.E. 13 at 2-3].
Notably, the Receivership Order also provides that the Receiver may move to extend this
Receivership to include persons or entities holding funds of investors who invested in the "Elm
Tree Funds" in the event that the Receiver discovers additional misappropriated funds. [D.E. 13
at ¶ 24].
MEMORANDUM OF LAW
"Federal courts have broad discretion to determine relief in equity receiverships." S.E.C.
v. Elliott, 953 F.2d 1560, 1566 (11th Cir. 1992). When an entity is substantially funded by
proceeds derived from the fraudulent scheme sought to be remedied by the appointment of a
receiver, it is appropriate for a court to expand the receivership to include that entity. See S.E.C.
v. Torchia, 2016 WL 6212002, at *4 (Oct. 25, 2016 N.D. Ga.); see also S.E.C. v. Nadel, 2013
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WL 2291871, at *2 (May 24, 2013 M.D. Fla.) (noting that, on a motion to expand receivership,
when an entity received proceeds from the fraudulent scheme, a determination does not need to
be made as to whether the entity is an "alter ego" of the entities in a receivership). In Nadel, the
receiver moved to expand the scope of the receivership to include another entity that was funded
using proceeds from defrauded investors. See 2013 WL 2291871, at *1. That entity diverted the
defrauded investors' money to the purchase the oil and gas leases for its owner's personal benefit.
Id. at *2. The court granted the receiver's motion. Id. at *3. Similarly, in Torchia, the court
granted a receiver's motion to expand the receivership because the "target entity" was funded
using the proceeds from the fraudulent scheme at issue in that case. 2016 WL 6212002, at *4.
Here, as further described below, the evidence clearly reflects that Etopia was
substantially funded by proceeds derived from the Defendants' scheme. The Receiver’s
investigation has uncovered commingling of funds, intertwined business operations, and related
officers and principals (among other things), such that expansion of the Receivership to include
Etopia, in an effort to maximize the recovery to the Receivership Estate, is necessary and
appropriate. See S.E.C. v. Elmas Trading Corp., 620 F. Supp. 231, 233-34 (D. Nev. 1985)
(receivership expanded where entities sought to be brought into receivership had intertwined
operations with receivership entities and extensive commingling of funds was established).
Under these circumstances, it is appropriate to disregard the separate corporate forms, and to
give effect to the substance of the enterprise. Id. This action is analogous to Nadel, Torchia, and
Elmas, and the Court should likewise grant the Receiver's Motion to Expand the Receivership to
include Etopia.
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FACTUAL SUPPORT FOR EXPANSION OF THE RECEIVERSHIP OVER ETOPIA
A. Commingling Of Assets With The Receivership Entities
Consistent with Nadel and Torchia, Etopia was funded using the proceeds derived from
the Defendants' scheme to defraud investors.
i. Use of the Elm Tree Name
A brochure was prepared for Etopia, which was intended to induce investments in the
entity. A copy of the brochure is attached as Exhibit A. The brochure refers to Etopia as "Elm
Tree Etopia Fund, LP," and provides, in part, that: "[ETIA, a Receivership Entity] is proud to
announce the launch of the Elm Tree Etopia Fund, LP (ETOPIA), our latest fund leveraging the
success of our previous Pre-IPO funds." See Ex. A at 2. The brochure goes on to boast about the
success of ETIA's "other funds," which includes the Elm Tree Motion Opportunity, LP, another
Receivership Entity. Id. Finally, the brochure provides contact information for ETIA and
Defendant Elm for investors to make investments in Etopia. See Ex. A at 14.
ii. ETIA as Etopia's General Partner and Fund Manager
The Private Placement Memorandum ("PPM") and Subscription Document released by
Etopia (attached as Exhibits B-C) further confirm Etopia's link to the Receivership Entities. The
PPM lists ETIA, a Receivership Entity, as Etopia's "General Partner" and Etopia's "Fund
Manager." See Ex. B at 1-3. The PPM also lists ETIA as the primary contact for inquiries related
to Etopia, providing ETIA's address and telephone number, and Defendant Elm's e-mail address.
See Ex. B at 3.
Moreover, Etopia's Subscription Documents also confirm that ETIA is Etopia's Fund
Manager (see e.g., Ex. C at 2), and indicate that the primary banking address for domestic and
international wires for Etopia subscriptions is ETIA's address. See e.g., Ex. C at 3.
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iii. Marketing and Solicitation of Etopia by ETIA
From at least October 2014 through December 2014, both Defendant Elm and Chief
Operating Officer of ETIA, Ahmad Naqvi, solicited investments in Etopia from victims who also
invested in ETIA. Redacted examples of these e-mails are attached as composite Exhibit D.
These e-mail solicitations attached investment brochures, the PPM, and other marketing
materials related to Etopia.
iv. Overlapping Investors
Defendant Elm and ETIA's solicitations ultimately resulted in ETIA investors investing
money in Etopia. The Receiver's investigation of Etopia's bank account, and the cash flows
related thereto, has uncovered these investments, as well as the fact that Etopia never invested
any of the money that it received from would-be investors for their benefit.1
Indeed, Etopia received substantial amounts of money from individuals for the purpose of
investing in a legitimate open-end fund, but, similar to the entity in Nadel, chose instead to use
that money for its owner's personal benefit as evidenced by the numerous wire transfers from
Etopia's bank account to the bank accounts of entities owned by Defendant Elm's relatives.
In the absence of the requested expansion, the assets of Etopia will be subject to further
diversion and waste to the detriment of the individuals who were induced to invest in the
Defendants' fraudulent scheme. See S.E.C. v. First Financial Group of Texas, 645 F.2d 429, 438
(5th Cir. 1981). Further, given the facts described above, it is hardly conceivable that this Court
intended for Defendant Elm and ETIA be permitted to continue to operate Etopia, when ETIA,
Etopia's fund manager, is a Receivership Entity. See id.
1 The Receiver has not attached her confidential, work-product cash flow analysis to this Motion. However, the Receiver will make that information available to the Court upon request.
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B. Related Ownership
In addition to the foregoing, the Receiver has uncovered evidence that Etopia is
beneficially owned by Defendant Elm's father, and possibly other family members with direct
ties to Defendant Elm. See Harvard Business Services, Inc. registered agent document, attached
as Exhibit E, which reflects Victor Elmaleh as the contact person for Etopia.
C. Etopia Opened After SEC Investigation
Etopia was opened on or about September 30, 2014, which was close in proximity to
when Defendants first received inquiries and requests for information from the SEC. It appears
Defendants opened Etopia, through Defendant Elm's father, in an attempt to divert assets from
ETIA, and to continue their fraudulent scheme while avoiding detection by the SEC.
CONCLUSION
For the foregoing reasons, the Receiver respectfully requests that this Court enter an
Order expanding the scope of the Receivership Order to include Etopia, L.P. as a member of the
Receivership estate, and for such other and further relief as the Court deems just and proper.
Respectfully submitted, BROAD AND CASSEL Attorneys for Receiver One Biscayne Tower, 21st Floor 2 S. Biscayne Boulevard Miami, FL 33131 Telephone: (305) 373-9467 Facsimile: (305) 995-6387
By: s/Daniel S. NewmanDaniel S. Newman, P.A. Florida Bar No. 0962767 [email protected] Christopher Cavallo, Esq. Florida Bar No. 0092305 [email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 8, 2017, a true and correct copy of the foregoing
was served via electronic transmission on all counsel or parties of record on the Service List
below.
By: s/Daniel S. NewmanDaniel S. Newman, P.A.
SERVICE LIST
Patrick R. Costello, Esq. Katharine Zoladz, Esq. [email protected]@sec.govU.S. Securities and Exchange Commission 801 Brickell Avenue Suite 1800 Miami, FL 33131 Counsel for U.S. Securities and Exchange Commission
David R. Chase, Esq. [email protected] R. Chase, P.A. 1700 East Las Olas Boulevard Suite 305 Fort Lauderdale, FL 33301 Counsel for Defendant Frederic Elm and Relief Defendant Amanda Elm
Christopher Bruno, Esq. [email protected] & Degenhardt 10615 Judicial Drive Suite 703 Fairfax, VA 22030 Counsel for Defendant Frederic Elm and Relief Defendant Amanda Elm
Grisel Alonso, Esq. [email protected] Moecker & Associates, Inc. 1883 Marina Mile Blvd., Suite 106 Fort Lauderdale, FL 33315 Receiver
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