     12-1680-cv
     SEC v. Pentagon Capital Management

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term 2012

4              (Argued: April 9, 2013       Decided: August 8, 2013)

5                           Docket No. 12-1680-cv
6    -----------------------------------------------------x

 7   SECURITIES AND EXCHANGE COMMISSION,
 8
 9         Plaintiff-Appellee,
10
11                               -- v. –-
12
13   PENTAGON CAPITAL MANAGEMENT PLC, LEWIS CHESTER,
14
15         Defendants-Appellants,
16
17   PENTAGON SPECIAL PURPOSE FUND, LTD.,
18
19         Relief Defendant.
20
21   -----------------------------------------------------x

22   B e f o r e : WALKER and CHIN, Circuit Judges, and RESTANI, Judge.*

23         Defendants-Appellants Pentagon Capital Management and Lewis

24   Chester appeal from the 2012 judgment of liability of the United

25   States District Court for the Southern District of New York (Sweet,

26   Judge).    After a bench trial, Defendants-Appellants were found

27   liable for securities fraud under Section 17(a) of the Securities

28   Act of 1933, Section 10(b) of the Securities Exchange Act of 1934,

29   and Rule 10b-5.    The district court ordered disgorgement and

30   imposed a civil penalty.     Both monetary awards were imposed jointly

31   and severally in the amount of $38,416,500.        We find no error in

32   the district court’s determination of liability, its disgorgement

     * The Honorable Jane A. Restani, of the United States Court of
     International Trade, sitting by designation.
1    award, or its decision to impose joint and several liability for

2    the disgorgement amount, but we reverse the district court’s

3    imposition of joint and several liability for the civil penalty,

4    vacate that penalty, and remand for reconsideration of the amount

5    of the civil penalty in light of the Supreme Court’s decision in

6    Gabelli v. SEC, 133 S. Ct. 1216 (2013).   AFFIRMED in part, VACATED

7    in part, and REMANDED in part.

 8                                    BENJAMIN L. SCHIFFRIN (Michael A.
 9                                    Conley, John W. Avery, Susan S.
10                                    McDonald, David Lisitza, on the
11                                    brief), Securities and Exchange
12                                    Commission, Washington, DC, for
13                                    Appellee.
14
15                                    FRANK C. RAZZANO (Ivan B. Knauer,
16                                    Matthew D. Foster, John C.
17                                    Snodgrass, on the brief), Pepper
18                                    Hamilton LLP, Washington, DC, for
19                                    Defendants-Appellants.
20
21   JOHN M. WALKER, JR., Circuit Judge:

22        Defendants-Appellants Pentagon Capital Management and Lewis

23   Chester appeal from a judgment of the United States District Court

24   for the Southern District of New York (Sweet, Judge).   After a

25   bench trial, the district court found the defendants liable for

26   securities fraud under Section 17(a) of the Securities Act of 1933

27   (the “Securities Act”), Section 10(b) of the Securities Exchange

28   Act of 1934 (the “Exchange Act”), and Rule 10b-5; ordered

29   disgorgement; and imposed a civil penalty.   Each monetary award was

30   imposed jointly and severally in the amount of $38,416,500.    We
                                        2
1    find no error in the district court’s determination of liability,

2    the amount of its disgorgement award, and its decision to impose

3    that award jointly and severally.       But we reverse the district

4    court’s imposition of joint and several liability for the civil

5    penalty, vacate that penalty, and remand for reconsideration of its

6    amount in light of the Supreme Court’s decision in Gabelli v. SEC,

7    133 S. Ct. 1216 (2013).

8                                  BACKGROUND

9           We assume the parties’ familiarity with the background of this

10   case and recite only those facts relevant on appeal.      For

11   additional detail, we refer the parties to the district court’s

12   thorough opinion.   See SEC v. Pentagon Capital Mgmt. PLC, 844 F.

13   Supp. 2d 377 (S.D.N.Y. 2012).   The basis for the district court’s

14   imposition of fraud liability was the defendant’s practice of late

15   trading in the mutual fund market.       Late trading occurs when, after

16   the price of a mutual fund becomes fixed each day, an order is

17   placed and executed as though it occurred at or before the time the

18   price was determined, thereby allowing the purchaser to take

19   advantage of information released after the price becomes fixed but

20   before it can be adjusted the following day.

21     I.     Mutual Funds and Late Trading

22          Mutual fund shares are priced according to the fund’s “net

23   asset value,” or NAV.   SEC Rule 22c-1, promulgated under the


                                         3
1    Investment Company Act of 1940, requires that a mutual fund

2    calculate its NAV at least once per day, Monday through Friday.         17

3    C.F.R. § 270.22c-1(b)(1) (2013).   A mutual fund’s NAV is generally

4    calculated “by using the closing prices of portfolio securities on

5    the exchange or market on which the securities principally trade.”

6    Disclosure Regarding Market Timing and Selective Disclosure of

7    Portfolio Holdings, 68 Fed. Reg. 70,402-01, 70,403 (proposed Dec.

8    17, 2003) (to be codified at 17 C.F.R. pts. 239, 274) (final rule

9    adopted in 69 Fed. Reg. 22,300).   However, if the closing price of

10   a security held in a mutual fund’s portfolio does not reflect its

11   current market value at the time of the fund’s NAV calculation, a

12   mutual fund must calculate its NAV “by using the fair value of that

13   security, as determined in good faith by the fund’s board.”       Id.

14   This could occur, for example, when some price-affecting event

15   occurs after the closing price is established but before the fund’s

16   NAV calculation.   If a mutual fund’s shares are mispriced, “an

17   investor may take advantage of the disparity between the portfolio

18   securities’ last quoted prices and their fair value.”    Id.

19        Rule 22c-1 also requires that mutual funds “sell and redeem

20   their shares at a price based on the NAV next computed after

21   receipt of an order,” a practice called “forward pricing.”     Id.

22   (emphasis added); see also 17 C.F.R. § 270.22c-1(a).    Forward

23   pricing prevents dilution of mutual fund shares by keeping traders


                                        4
1    from profiting off of a stale share price.    Some mutual fund

2    investors, however, engage in late trading, “the practice of

3    placing orders to buy or redeem mutual fund shares after 4 p.m.,

4    Eastern time, as of which most funds calculate their [NAV], but

5    receiving the price based on the 4 p.m. NAV,” instead of the next

6    day’s NAV, as required by Rule 22c-1.    Disclosure, 68 Fed. Reg. at

7    *70,402.    In VanCook v. SEC, 653 F.3d 130 (2d Cir. 2011), we held

8    that such late trading violated Rule 22c-1.

9        II.   Pentagon Capital Management

10         Chester formed Pentagon Capital Management (“Pentagon”) in

11   1998 to facilitate mutual fund trading in the European markets with

12   a market timing strategy.1    In 1999, Chester and Pentagon explored

13   the possibility of market timing and late trading in the United

14   States mutual fund market.2   To facilitate its trading in the United


     1
       If a mutual fund misprices its shares, such as by failing to
     appropriately use fair value pricing, “short-term traders have an
     arbitrage opportunity that they can use to exploit the fund and
     disadvantage the fund’s long-term investors by extracting value
     from the fund without assuming any significant investment risk.”
     This practice is known as “market timing.” Disclosure, 68 Fed.
     Reg. at 70,403. Because market timing can dilute the value of
     long-term shareholders’ interests in a mutual fund, many funds have
     imposed trading restrictions to minimize the practice, including
     “identifying market timers and restricting their trading privileges
     or expelling them from the fund.” Id. at 70,404.
     2
       International market timers can have an additional advantage
     because they
                profit from purchasing or redeeming fund
                shares based on events occurring after foreign
                market closing prices are established, but
                before the events have been reflected in the
                                       5
1    States, Pentagon formed Pentagon Special Purpose Fund (“PSPF”), the

2    relief defendant in this case.     PSPF was the sole member and

3    manager of three Delaware limited liability companies that were

4    established solely for Pentagon’s use in trading mutual funds in

5    the United States.    At all times relevant to this case, Pentagon

6    was PSPF’s investment advisor and made all of its trading

7    decisions.

8         In the United States, unlike in Europe, Pentagon was required

9    to trade through a broker.     As relevant here, Pentagon primarily

10   used two individual brokers, James Wilson and Scott Christian,

11   first at other brokerage firms, and finally at Trautman, Wasserman

12   & Company (“Trautman”).     Pentagon began trading through Trautman on

13   February 15, 2001.

14        Based on Pentagon’s instructions, Wilson and Christian

15   executed Pentagon’s trades through Bank of America, Trautman’s

16   clearing broker.     Notwithstanding that the NAV was normally fixed

17   at 4:00 p.m., Bank of America used a processing system for mutual

18   fund orders that allowed brokers to change an order until 5:15 p.m.

19   or 5:30 p.m. and later, until 6:30 p.m.


               fund’s NAV. In order to turn a quick profit,
               market timers then reverse their positions by
               either redeeming or purchasing the fund’s
               shares the next day when the events are
               reflected in the NAV.
     SEC v. Gabelli, 653 F.3d 49, 53 (2d Cir. 2011), rev’d on other
     grounds, 133 S. Ct. 1216 (2013).
                                         6
1         The parties do not dispute that Pentagon utilized Bank of

2    America’s permissive clearing system to engage in late trading with

3    the assistance of Trautman’s brokers.   Pentagon opened 67 different

4    accounts with Trautman, each of which could trade separately

5    without a mutual fund knowing they were related.   Wilson and

6    Christian registered the accounts with different broker numbers

7    with the effect that if a mutual fund detected late trading or

8    market timing and blocked one account from trading, other accounts

9    could remain active.   Pentagon knew that various of its accounts

10   had been expelled from at least thirteen funds, but it continued to

11   trade in those funds using different accounts.

12        In April 2001, Chester sent an email to Wilson and Christian

13   detailing Pentagon’s “After Hours Trading Instructions.”   Chester

14   instructed that Wilson and Christian would receive a target figure

15   on the Standard & Poors (“S&P”) future3 near the close of the

16   markets from a Pentagon employee; then, if the future exceeded or

17   fell below the target, the brokers were to contact Pentagon to ask

18   them what to do.   Chester then emailed other executives at Pentagon

19   about the potential for late trading through Trautman:


     3
       Black’s Law Dictionary defines futures as “standardized assets
     (such as commodities, stocks, or foreign currencies) bought or sold
     for future acceptance or delivery.” Black’s Law Dictionary 746
     (9th ed. 2009). Whether an index future (like the S&P future)
     rises or falls depends on whether other investors believe the
     stocks comprising that index will rise or fall on a specified date
     in the future.
                                       7
 1             For this week only, [Trautman] can place or
 2             cancel any trades up to 5:00pm (10pm UK time).
 3             From next week – [Trautman] to confirm – the
 4             time will be 6:30pm (11:30 pm UK time).
 5
 6             The significance of this is great.
 7
 8             For instance, last night, the S & P future
 9             shot up at around 9:45pm [UK time]. Even
10             though we hadn’t placed any trades before 9pm
11             [UK time], we STILL COULD HAVE PLACED THE
12             TRADE after the bell, which we should have
13             done given the marked rise in the future.
14
15             I have been in Jimmy [Wilson’s] office. Every
16             day, whether we do a trade or not, they time-
17             stamp our trade sheets before 4pm, and then
18             sit on them until they leave the office, at
19             which point they will process them or not.
20             Hence, the ability to place a buy order after
21             the bell, even if we haven’t done so before
22             the bell.
23
24             . . .
25
26             This facility is VERY VALUABLE and we should
27             utilize it accordingly.
28
29             . . .
30
31             It doesn’t matter whether we place trades or
32             not before the bell, we can do so afterwards,
33             up to Trautman’s time limits.
34
35   Pentagon, 844 F. Supp. 2d at 400-01 (alterations omitted).

36        Thereafter, Christian would create potential trade sheets for

37   Pentagon each day and time-stamp them before 4:00 p.m.,

38   notwithstanding that the actual decision to place the order or not

39   would be made after 4:00 p.m.   Then, sometime after 4:00 p.m., a

40   Pentagon employee would email Christian the instructions for


                                       8
1    Pentagon’s late trades for that day.   The district court found that

2    Pentagon realized profits of “approximately $38,416,500 from the

3    U.S. mutual fund [late] trades they executed through [Trautman]”

4    between February 15, 2001 and September 3, 2003.      Id. at 427.

5         Pentagon tried to conceal its late trading activities.         For

6    example, on July 30, 2002, Chester sent an email to a broker that

7    instructed him not to use the words “market timing” (which, viewed

8    broadly, includes late trading) on any correspondence, telling him

9    “‘to label what we do . . . “dynamic asset allocation,” but never

10   market timing!’”   Id. at 396.   In August 2002, Chester instructed

11   another Pentagon employee to “phone around First Union” to see if

12   late trading was available because “late trading is key,” adding

13   “[I] don’t know how you find out about this [late trading] without

14   actually saying it.   No doubt you’ll work it out!”     Id. at 408.

15        In September 2003, the New York Attorney General announced

16   that it had settled an enforcement action with Canary Capital

17   Partners for violations of the New York State securities laws,

18   including late trading.   Shortly thereafter, Chester received a

19   request from an investor for a letter stating that Pentagon had not

20   engaged in late trading or any other illegal activity.     Chester

21   provided the letter, stating that Pentagon had “‘never entered into

22   arrangements with any U.S. onshore Mutual Fund in order to trade

23   post-4:00pm EST for same-day NAV,’” and that all of Pentagon’s


                                        9
1    trading arrangements were “‘in accordance with the relevant rules,

2    regulations, investment prospectus, and/or any other such relevant

3    documentation relating to the investment(s) concerned.’”   Id. at

4    410.

5           On April 3, 2008, the SEC brought this enforcement action

6    against Pentagon.   The complaint alleged that Pentagon’s market

7    timing and late trading activities violated Section 17(a) of the

8    Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5.

9    After a seventeen-day bench trial, the district court found Chester

10   and Pentagon primarily liable for late trading.4   The district court

11   found that appellants “did not act merely in reliance on their

12   broker-dealers . . . [but] directed, indeed micromanaged, the late

13   trading that [Trautman] performed on their behalf.”5   Id. at 421.

14   The district court entered an injunction prohibiting Pentagon from

15   late trading in the future.   It also held Pentagon, Chester, and

16   PSPF jointly and severally liable for a $38,416,500 disgorgement

     4
       The district court found that because market timing is not illegal
     per se and because the SEC “did not establish the funds’ particular
     market timing rules . . . or that Defendants in fact took actions
     that would have operated a fraud with respect to those rules,” that
     the defendants were not liable under the securities laws for their
     market timing activities not involving late trading. SEC v.
     Pentagon Capital Mgmt. PLC, 844 F. Supp. 2d 377, 416 (S.D.N.Y.
     2012).
     5
       With respect to late trading, because the district court made a
     finding of primary liability, it did not reach the question of
     whether defendants had aided and abetted Trautman in the late
     trading scheme. See id. at 423. Hence, the question of aider-and-
     abettor liability is not presented on this appeal.
                                       10
1    award and $38,416,500 in civil penalties.      The amount of

2    $38,416,500 was based on the district court’s valuation of the

3    profit Pentagon, Chester, and PSPF realized in late trading through

4    Trautman between February 15, 2001 and September 3, 2003.        This

5    appeal followed.

6                                   DISCUSSION

7           On appeal, Pentagon and Chester argue that they cannot be held

8    liable because their actions involved no fraud or deceit and that

9    as investment advisors (as opposed to brokers), they cannot be held

10   primarily liable for securities fraud.      They further argue that the

11   district court made various errors related to the monetary awards.

12   Following a bench trial, we review the district court’s findings of

13   fact for clear error and its legal conclusions de novo.        SEC v.

14   Mayhew, 121 F.3d 44, 50 (2d Cir. 1997).

15     I.     Primary Liability for Securities Fraud

16          Section 17(a) of the Securities Act makes it

17               unlawful for any person in the offer or sale
18               of any securities . . .
19
20               (1)   to employ any device, scheme, or artifice
21                     to defraud, or
22               (2)   to obtain money or property by means of
23                     any untrue statement of a material fact
24                     or any omission to state a material fact
25                     necessary in order to make the statements
26                     made, in light of the circumstances under
27                     which they were made, not misleading; or
28               (3)   to engage in any transaction, practice,
29                     or course of business which operates or


                                        11
1                     would operate as a fraud or deceit upon
2                     the purchaser.
3
4    15 U.S.C. § 77q(a) (2012).   Section 10(b) of the Exchange Act, in

5    relevant part, makes it unlawful for any person to “use or employ,

6    in connection with the purchase or sale of any security registered

7    on a national securities exchange . . . any manipulative or

8    deceptive device or contrivance in contravention of such rules and

9    regulations as the Commission may prescribe.”   15 U.S.C. § 78j(b)

10   (2012).   Finally, Rule 10b-5, implementing Section 10(b), includes

11   three subsections:

12              It shall be unlawful for any person, directly
13              or indirectly, by the use of any means or
14              instrumentality of interstate commerce, or of
15              the mails or of any facility of any national
16              securities exchange,
17
18              (a)   To employ any device, scheme, or artifice
19                    to defraud,
20              (b)   To make any untrue statement of a
21                    material fact or to omit to state a
22                    material fact necessary in order to make
23                    the statements made, in light of the
24                    circumstances under which they were made,
25                    not misleading, or
26              (c)   To engage in any act, practice, or course
27                    of business which operates or would
28                    operate as a fraud or deceit upon any
29                    person,
30
31              in connection with the purchase or sale of any
32              security.
33
34   17 C.F.R. § 240.10b-5 (2013).

35        We have held that to violate Section 10(b) and Rule 10b-5, a

36   party must have “(1) made a material misrepresentation or a
                                       12
1    material omission as to which he had a duty to speak, or used a

2    fraudulent device; (2) with scienter; (3) in connection with the

3    purchase or sale of securities.”    SEC v. Monarch Funding Corp., 192

4    F.3d 295, 308 (2d Cir. 1999).    The requirements for a violation of

5    Section 17(a) apply only to a sale of securities but in other

6    respects are the same as Section 10(b) and Rule 10b-5, except that

7    “no showing of scienter is required for the SEC to obtain an

8    injunction under [Section 17] (a)(2) or (a)(3).”     Id.

9         Pentagon and Chester do not deny that they engaged in late

10   trading.   The defendants argue, however, that there was no fraud or

11   deceit in their actions.    The defendants also argue that an

12   investment advisor—as opposed to a broker—may not be held liable

13   for securities fraud because the advisor is not responsible for

14   communicating the direction to late trade to the clearing broker.

15   We reject both arguments.

16        First, the defendants’ argument that their lack of fraudulent

17   or deceitful intent bars a finding of liability fails because

18   deceitful intent is inherent in the act of late trading.     The late

19   trader places an order after the daily mutual fund price is set,

20   but receives the benefit of additional information that the earlier

21   price does not reflect.     For this reason, we have held that late

22   trading violates all three subsections of Rule 10b-5 because, as

23   discussed above, it violates Rule 22c-1, the forward-pricing rule.


                                        13
1    See VanCook, 653 F.3d at 138.     In VanCook, an individual broker

2    sought out a clearing broker that would allow him to clear late

3    trades, used time-stamped trade sheets as evidence that orders were

4    placed before 4 p.m. when they were not, and assured his employer

5    that he had not facilitated late trading.     In short, “he was [the

6    scheme’s] architect.”   Id. at 139.     We found that VanCook went

7    beyond making misrepresentations, taking “a series of actions over

8    several years to implement a scheme that he devised.”      Id.    On

9    these grounds, we held that VanCook’s late trading violated all

10   three subsections of Rule 10b-5.    Although Section 17(a) was not at

11   issue in VanCook, the requirements for a violation of Section

12   17(a), as relevant here, are identical to the requirements for a

13   violation of Section 10(b).     Thus, we have no trouble concluding

14   that Section 17(a) is also implicated by late trading activity (so

15   long as some of the late trading involves the sale of securities).

16        Pentagon and Chester engaged in similarly deceitful behavior.

17   They sought out brokers who would engage in late trading.        As

18   evidenced by Chester’s email, they knew that the trade sheets were

19   time-stamped before 4 p.m., even though they had no intention of

20   trading before that time.   Finally, they issued a false and

21   deceitful letter of assurance that they were not engaging in late

22   trading, similar to VanCook’s false assurances to his employer.




                                        14
1         The defendants are not identically situated to VanCook,

2    however.   VanCook was a broker, directly bound by the language of

3    Rule 22c-1, which applies to issuers of securities, persons

4    “authorized to consummate transactions in any such securit[ies],”

5    principal underwriters, and dealers in securities.   17 C.F.R.

6    § 270.22c-1(a).   Investment advisors are not explicitly mentioned

7    in Rule 22c-1, but that is of no moment when the claims are brought

8    under Sections 17 and 10 and Rule 10b-5.   Pentagon and Chester were

9    as much the “architects” of this scheme as VanCook was, and they

10   orchestrated the late trading program carried out by their brokers.

11   They are liable under Section 17(a), Section 10(b), and Rule 10b-5

12   because their actions caused the misrepresentations as to the time

13   of the trades and led to their concomitant deception.6   Pentagon’s

14   role as an investment advisor therefore does not shield it from

15   liability under the securities laws.

     6
       We endorse the reasoning of the district court in SEC v. Simpson
     Capital Management, Inc., 586 F. Supp. 2d 196 (S.D.N.Y. 2008),
     which dealt with the late trading activities of an investment
     advisor and the relevance of Rule 22c-1 in the context of a motion
     to dismiss. In Simpson, the SEC alleged that the investment
     advisor “was responsible for all investment decisions[,] . . .
     carefully identified individuals . . . who agreed to participate in
     the late trading scheme[, and] . . . orchestrated late-trading
     schemes.” Id. at 208. We endorse the district court’s finding in
     Simpson that these allegations were sufficient to state a claim for
     primary 10b-5 liability against an investment advisor.
     Specifically, the district court reasoned that “the existence of
     [Rule 22c-1] . . . provides the background for why the defendants
     . . . engaged in a scheme where they could obtain the prices that
     were set as of 4:00 p.m. ET, even though their transactions
     actually occurred at a later time.” Id. at 203.
                                      15
1         We also reject the defendants’ corollary argument that they

2    may not be held liable because they did not communicate directly

3    with the mutual funds.   In Janus Capital Group, Inc. v. First

4    Derivative Traders, 131 S. Ct. 2296 (2011), shareholders of Janus

5    Capital Group sued Janus Capital Group and Janus Capital Management

6    for making false statements in mutual fund prospectuses filed by

7    Janus Investment Fund.   Because Janus Investment Fund retained

8    ultimate control over the content of the prospectuses, the Supreme

9    Court held that Janus Capital Management could not be liable as a

10   “maker” of the statement under Rule 10b-5:

11             For purposes of Rule 10b-5, the maker of
12             a statement is the person or entity with
13             ultimate authority over the statement,
14             including its content and whether and how
15             to communicate it. Without control, a
16             person or entity can merely suggest what
17             to say, not “make” a statement in its own
18             right. One who prepares or publishes a
19             statement on behalf of another is not its
20             maker.
21
22   Id. at 2302.   To illustrate its point, the Supreme Court used the

23   analogy of “the relationship between a speechwriter and a speaker.

24   Even when a speechwriter drafts a speech, the content is entirely

25   within the control of the person who delivers it.”    Id.   Pentagon

26   and Chester argue that because they never communicated directly

27   with the mutual funds, they cannot be held liable as “makers” of

28   any false statements.



                                      16
1         To the extent that late trading requires a “statement” in the

2    form of a transmission to a clearing broker, we find that in this

3    case, Pentagon and Chester were as much “makers” of those

4    statements as were the brokers at Trautman.   The brokers may have

5    been responsible for the act of communication, but Pentagon and

6    Chester retained ultimate control over both the content of the

7    communication and the decision to late trade.

8         Moreover, we reaffirm our holding in VanCook and find that the

9    defendants’ activities violated all three subsections of Rule 10b-

10   5, not just subsection (b), which was the only subsection at issue

11   in Janus.   Pentagon’s late trading activity, beyond the

12   communication of the trades themselves, included finding brokers

13   and a clearing system that would allow late trades, as well as the

14   specific coordination—on a daily basis—of the transmission of

15   instructions to buy or sell or refrain from doing so based on NAVs

16   and after-hours information.    In short, Pentagon’s fraudulent

17   activities independently satisfy the requirements of scheme

18   liability under Rule 10b-5(a) and (c) and Section 17(a).

19        We have considered the remainder of Pentagon’s arguments and

20   find them to be unpersuasive.    The district court’s determination

21   of liability is affirmed.




                                       17
1      II.   Monetary Awards

2         The district court imposed joint and several liability for a

3    disgorgement award and a civil penalty, each in the amount of

4    $38,416,500.    The district court first determined that both

5    monetary awards would be imposed jointly and severally because the

6    defendants (including the relief defendant) “collaborated on the

7    mutual fund trading scheme, and [Chester and Pentagon] exercised

8    complete control over PSPF’s trading.”    844 F. Supp. 2d at 425.

9    The district court then determined that a disgorgement award of

10   $38,416,500 was appropriate because it was a reasonable

11   approximation of the profit made through defendants’ late trades

12   with Trautman beginning in February 2001.    Turning to the amount of

13   the civil penalty, the district court applied Section 20(d) of the

14   Securities Act and Section 21(d)(3) of the Exchange Act.     Because

15   the violation involved “‘fraud, deceit, manipulation or deliberate

16   or reckless disregard of a regulatory requirement’ and ‘directly or

17   indirectly resulted in substantial losses or created a significant

18   risk of substantial losses to other persons,’” the district court

19   awarded the maximum penalty, in this case, the gross amount of the

20   pecuniary gain.   Id. at 427 (quoting 15 U.S.C. §§ 77t(d),

21   78u(d)(3)).    On appeal, Pentagon argues that the district court

22   erred in setting the amounts and in imposing joint and several

23   liability.


                                       18
1         A. Civil Penalty

2         We review the district court’s imposition of the civil penalty

3    for abuse of discretion.     See SEC v. Kern, 425 F.3d 143, 153 (2d

4    Cir. 2005) (“The tier determines the maximum [civil] penalty, with

5    the actual amount of the penalty left up to the discretion of the

6    district court.”).

7         In light of the Supreme Court’s recent decision in Gabelli,

8    133 S. Ct. 1216, rendered after the district court’s decision, we

9    must vacate the district court’s civil penalty award and remand it

10   for reconsideration.     In Gabelli, the Supreme Court held that the

11   so-called “discovery rule,” which tolls a statute of limitations

12   for crimes that are difficult to detect, does not apply to toll the

13   five-year statute of limitations for fraud cases in SEC enforcement

14   actions.   See id. at 1221-24.    Thus, any profit earned through late

15   trading earlier than five years before the SEC instituted its suit

16   against the defendants may not be included as part of the civil

17   penalty.   All parties agree that remand on this issue is required.

18        We also must reverse the district court’s decision to impose

19   joint and several liability for the amount of the civil penalty as

20   an error of law.     See Johnson v. Univ. of Rochester Med. Ctr., 642

21   F.3d 121, 125 (2d Cir. 2011) (“A court abuses its discretion when .

22   . . its decision rests on an error of law . . . .”) (per curiam).

23   The statutory language allowing a court to impose a civil penalty


                                        19
1    plainly requires that such awards be based on the “gross amount of

2    pecuniary gain to such defendant.”     15 U.S.C. § 77t(d)(2) (emphasis

3    added).   This language does not provide room for the district

4    court’s interpretation that the civil penalty be imposed jointly

5    and severally.7

6         B. Disgorgement Award

7         The district court’s disgorgement award is also reviewed for

8    abuse of discretion.   See SEC v. Warde, 151 F.3d 42, 49 (2d Cir.

9    1998).

10        We find no abuse of discretion in the amount of the

11   disgorgement award, which reflected a “reasonable approximation of

12   profits causally connected to the [late trading] violation.”     SEC

13   v. First Jersey Sec., Inc., 101 F.3d 1450, 1475 (2d Cir. 1996)

14   (quotation marks omitted).8   It was reasonable for the district

15   court to consider the profit to PSPF as well as Chester and

16   Pentagon in light of the fact that PSPF existed only to enable


     7
       Although we vacate the civil penalty award, we find no error in
     the district court’s methodology for calculating the maximum
     penalty by counting each late trade as a separate violation. See
     15 U.S.C. § 77t(d)(2)(C) (“[T]he amount of penalty for each such
     violation shall not exceed the greater of (i) $100,000 for a
     natural person or $500,000 for any other person, or (ii) the gross
     amount of pecuniary gain to such defendant as a result of the
     violation.” (emphasis added)).
     8
       Aside from appellants’ assertion that the disgorgement award
     should be considered a penalty because it incorporated profits
     earned by PSPF, an argument we reject, we do not understand the
     appellants to argue that a disgorgement award would be subject to
     the statute of limitations provided by 28 U.S.C. § 2642.
                                       20
1    Pentagon’s trading in the United States.   See SEC v.

2    AbsoluteFuture.com, 393 F.3d 94, 96 (2d Cir. 2004) (“It is only

3    logical that the total disgorgement of multiple defendants be

4    determined by the total amount of profit realized by those

5    defendants.”) (per curiam).

6         We also affirm the district court’s decision to impose the

7    disgorgement award jointly and severally on all defendants.     Unlike

8    the civil penalty, there is no statutory requirement that a

9    disgorgement award be measured as to each individual defendant.

10   The district court found that relief defendant PSPF opened accounts

11   at Pentagon’s direction and that defendants late-traded on PSPF’s

12   behalf.   Hence, the district court found that defendants and PSPF

13   had “collaborated” on the late trading scheme, and concluded that

14   joint and several liability with respect to disgorgement was

15   warranted.   See id. at 97 (in reviewing disgorgement award, holding

16   that “joitn and several liability for combined profits on

17   collaborating . . . parties” is “appropriate”).   We agree with the

18   district court that, in light of their collaboration, Pentagon,

19   Chester, and PSPF should be held liable for the disgorgement award

20   on a joint and several basis.   See First Jersey, 101 F.3d at 1475-

21   76 (affirming district court’s decision to impose joint and several

22   liability of disgorgement award).




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1                               CONCLUSION

2        For the foregoing reasons, the district court’s rulings are

3   AFFIRMED in part, VACATED in part, and REMANDED in part for further

4   proceedings in accordance with this opinion.




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