|
|
S.E.C. v. BILZERIAN
729 F.Supp.2d 9 (2010)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
Paul A. BILZERIAN, et al., Defendants.
Civil Action No. 89-1854 (RCL).
United States District Court, District of Columbia.
November 1, 2010.
MEMORANDUM OPINION ON CONTEMPTROYCE C. LAMBERTH, Chief Judge. I. INTRODUCTION This matter now comes before the Court on David Eric Hammer's ("Hammer") Verified Consent Motion [1099] to Vacate Contempt Memorandum Order and Opinion [1091, 1092] with Respect to David E. Hammer, Esquire ("First Motion to Vacate") and his Verified Consent Motion [1100] to Vacate Contempt Memorandum Order and Opinion [986, 987] with Respect to David E. Hammer, Esquire ("Second Motion to Vacate"). Having considered Hammer's Motions to Vacate, Paul A. Bilzerian's ("Bilzerian") Response [1107], Hammer's Reply [1113], the relevant law, and the record in this case, the Court will deny the motions as set forth below. II. BACKGROUND A detailed background of this case, which is now more than twenty years old, can be found in the Court's May 11, 2009, Memorandum Opinion [987]. SEC v. Bilzerian, 613 F.Supp.2d 66, 68-69 (D.D.C. 2009). The facts relevant to the issue now before the Court are as follows. Bilzerian was convicted of securities fraud and conspiracy to defraud the United States in 1989. United States v. Bilzerian, 926 F.2d 1285 (2d Cir.1991) (affirming conviction). The SEC then filed a civil suit against him in the summer of 1989 and obtained a judgment for approximately $62 million. SEC v. Bilzerian, 29 F.3d 689 (D.C.Cir.1994) (affirming judgment). In 1993, Judge Harris of this Court ordered Bilzerian to disgorge $62 million in ill-gotten gains. SEC v. Bilzerian, 814 F.Supp. 116 (D.D.C.1993) (ordering disgorgement of $33 million in profits), aff'd 29 F.3d 689 (D.C.Cir.1994); SEC v. Bilzerian, 1993 WL 542584 (D.D.C.1993) (ordering disgorgement of $29 million in prejudgment interest).
1. This Court, on August 12, 2009, ordered that any portion of the Court's May 11, 2009, order that purported to hold Hammer in civil contempt for his participation in Caligula be vacated. Order 2, August 12, 2009, ECF No. 986. The Court went on to clarify that the order does not require Hammer to withdraw from representing Caligula Corporation. Id. Additionally, the Court ordered that the portion of its May 11, 2009, order that held Hammer liable for attorneys' fees of the National Gold Exchange movants in bringing a motion for an order to show cause be vacated. Id. Finally, the Court ordered that in the third and fifth paragraphs of its May 11, 2009, order, "Bilzerian's miscellaneous action against Ernest B. Haire, Case No. 08-mc-212 in the Bankruptcy Court for the Middle District of Florida" be replaced with: "Bilzerian's miscellaneous action against Ernest B. Haire, Case No. 08-mc-102 in the United States District Court for the Middle District of Florida." Id. The Court's May 11, 2009, order remains unmodified in all other respects. Id. at 3.
2. Hammer also requests that the Court analyze his first motion to vacate under Rule 59(a), but that rule provides for new trials and, as such, is inapplicable here. Fed. R.Civ.P. 59(a).
3. Hammer presents variations of this argument intermittently and in multiple forms in his First Motion to Vacate. At one point, he cites a D.C. Circuit opinion for the proposition that "[w]here, as here, a court's ruling has discretionary elements based on circumstances which are subject to alteration, the law recognizes the power and responsibility of the court to reconsider its ruling if a material change in circumstances has in fact occurred." See First Mot. to Vacate 6, August 9, 2010, ECF No. 1099 (citing Hodgson v. United Mine Workers of Am., 473 F.2d 118, 125 (D.C.Cir.1972)). The problem is that there has been no such material change in circumstances here. The Court based its Contempt Orders on Hammer's blatant violation of its 2001 Order. As discussed above, although Hammer was right to withdraw from the Steffen and Puma lawsuits—as the 2010 Order required him to—that action does not and cannot bring him into compliance with the 2001 Order. The moment he began pursuing the lawsuits he was in out-and-out violation of the 2001 Order, and contempt was appropriate. No circumstances have since changed that merit vacation of the Court's Contempt Order.
|
|