receiver's motion to expand scope of receivership

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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 Case 0:15-cv-60082-WPD Document 171 Entered on FLSD Docket 02/08/2017 Page 1 of 8

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Page 1: 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

Case 0:15-cv-60082-WPD Document 171 Entered on FLSD Docket 02/08/2017 Page 1 of 8

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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]

Case 0:15-cv-60082-WPD Document 171 Entered on FLSD Docket 02/08/2017 Page 7 of 8

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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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