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Securities and Exchange Commission v. Bradley L. Ruderman; Ruderman Capital Management

January 15, 2013

SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF,
v.
BRADLEY L. RUDERMAN; RUDERMAN CAPITAL MANAGEMENT, LLC; RUDERMAN CAPITAL PARTNERS, LLC; AND RUDERMAN CAPITAL PARTNERS A, LLC, DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

ORDER GRANTING PETITION FOR APPROVAL OF SETTLEMENT [153]

I.INTRODUCTION

David Ray, as the appointed Receiver for the Ruderman Capital Defendants, petitions the Court to approve a settlement reached with American Express Company and American Express Travel Related Services Company, Inc. (collectively "American Express"). (ECF No. 153.) Plaintiff Securities and Exchange Commission has not submitted an opposition to the Receiver's petition. Having carefully considered the papers the Receiver filed in support of its Petition, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L. R. 7-15. The Court finds the Receiver has met his burden of demonstrating that the proposed settlement falls within the range of reasonableness and was negotiated in good faith. Accordingly, the Court GRANTS the Receiver's Petition for Approval of Settlement.

II.FACTUAL BACKGROUND

On April 28, 2009, the Securities and Exchange Commission filed a Complaint against Bradley Ruderman; Ruderman Capital Management, LLC ("RCM"); Ruderman Capital Partners, LLC ("RCP"); and Ruderman Capital Partners A, LLC ("RCP-A"). (ECF No. 1.) The SEC alleged that Ruderman engaged in a scheme to defraud investors by offering investment materials through RCM to secure investments in the hedge funds RCM and RCP-A, which allegedly would never have been repaid. (Id.)

On May 7, 2009, based on the SEC's request and Defendants' consent, the Court entered a permanent injunction and appointed David L. Ray as receiver of RCM, RCP, and RCP-A. (ECF Nos. 25, 31.) On August 31, 2009, the Court subsequently entered default as to Defendants RCM, RCP, and RCP-A for failure to obtain counsel. (ECF No. 59.) Additionally, on motion of the Receiver and stipulation of bankruptcy trustee for RCP, the Court (1) terminated the duties of the Receiver as to RCP; and (2) required advance approval of acts falling outside of Section IV ¶ C of the May 7, 2009 Injunction. (ECF No. 31.) Section IV ¶ C permitted investigation and discovery to account for all assets of Defendants. (ECF No. 59.) The Court also permitted the Receiver to retain attorneys for purposes of Section IV ¶ C. (Id.)

On September 9, 2009, the Court entered an Order modifying the Receiver's duties so as to be consistent with the Receiver's stipulation with the Trustee. (ECF No. 62.) As a result, the Receivership Estate currently consists of RCM and RCP-A only. (Id.) Subsequently, on September 2, 2010, the Court entered an Order permitting the Receiver to retain legal counsel to investigate and pursue all viable claims and avoidance actions of the Receivership Estate, but required the Receiver to obtain additional approval on the terms and conditions for which counsel was to be retained. (ECF No. 105, at 2.)

With respect to American Express, the Receiver asserts that Ruderman used funds obtained from investors held in an RCM account to make payments to American Express on certain outstanding charges incurred primarily for Ruderman's personal benefit. (Pet. 5.) The Receiver does not contend, however, that American Express had any involvement in Ruderman's diversion of investor funds, had any knowledge that Ruderman and the entities he controlled were engaged in a Ponzi scheme or any other fraudulent activity, or had knowledge that any transfer American Express received from RCM was related to fraudulent activity. (Id.) Further, American Express contends it "may have provided value to RCM in connection with the charges incurred on the credit card accounts maintained by RCM and on the payments thereon made to American Express." (Id.)

The Receiver, American Express, and the bankruptcy trustee engaged in a collective mediation resulting in a settlement agreement.*fn1 The proposed settlement calls for American Express to pay the Receiver $10,000.00 in full and complete satisfaction of all claims the Receiver and the Receivership Estate have against American Express.

III.LEGAL STANDARD

Local Rule 66-8 states, "[e]xcept as otherwise ordered by the Court, a receiver shall administer the estate as nearly as possible in accordance with the practice in the administration of estates in bankruptcy." Accordingly, bankruptcy procedure informs the Court's approval of the proposed settlements. Federal Rule of Bankruptcy Procedure 9019 governs compromises and settlements reached in bankruptcy court and provides that a court may approve a compromise or settlement on motion and following notice and a hearing. In examining a proposed settlement, the Court must evaluate four factors:

(a) [t]he probability of success in the litigation;

(b) the difficulties, if any, to be encountered in the matter of collection;

(c) the complexity of the litigation, as well as the expense, and the expense, inconvenience and delay ...


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