Federal regulators claimed victory Tuesday in a jury verdict against a hedge fund manager accused of malfeasance for the loss of more than $220 million in the Ponzi scheme of former Wayzata businessman Tom Petters.
The jury in U.S. District Court in Minneapolis deliberated just 5 ½ hours over two days before concluding that Marlon Quan and his Connecticut-based hedge funds misled and deceived clients about the safety and source of their investments with Petters, which were wiped out when the fraud imploded in the fall of 2008.
“Facilitators of Ponzi schemes are just as culpable and harmful to investors as those who are conducting the schemes,” said Andrew Ceresney, enforcement director for the Securities and Exchange Commission. “We thank the jury for sending that message in its verdict.”
But attorneys for Quan disputed the government’s victory claim, noting that jurors exonerated Quan on one of the SEC’s claims against him.
Calling the verdict “internally inconsistent,” defense attorney Bruce Coolidge said in an interview: “The verdict in favor of the SEC therefore cannot stand.”
As a civil case, the final result is in the hands of U.S. District Judge Ann Montgomery, who presided over the two-week trial. With prison time not an issue in the noncriminal case, any judgments or penalties also will be determined by Montgomery.
The confusion comes over the different language in two sections of the securities law that were used to sue Quan and the difference between “negligent” and “intentional” misrepresentation of securities for sale or purchase.
“This is very strange,” said Richard Painter, a law professor at the University of Minnesota who specializes in securities fraud. “The judge can accept the verdict or declare a mistrial.”
The SEC is seeking to have Quan return “ill-gotten gains,” including $33 million in commissions and fees he received for investing hedge fund moneys with the Petters operation.
The civil case against Quan alleged that he failed to implement safeguards as promised to minimize risk in the investment with Petters. Prosecutors also alleged that Quan did not inform clients when short-term loans to Petters became delinquent. His hedge funds included Acorn Capital Group and Stewardship Investment Advisors.
Attorneys for Quan asserted that Acorn’s lawsuit against the Petters operation in August 2008 started the chain of events that uncovered the decadelong fraud operated by Petters and a close circle of associates.
The SEC contended during the trial that the lucrative fees that Quan collected from Petters caused him to overlook warning signals that the investments were not what they purported to be and to promise audits and other safety procedures, including due diligence oversight and credit insurance, that were never implemented.
Quan, who started investing with Petters in 2001, was introduced to him by Frank Vennes Jr., another Petters investor who last year pleaded guilty to criminal charges of securities fraud and money laundering for his role in the scheme. Vennes is serving a 15-year prison sentence.
Petters is serving a 50-year prison sentence for his role in the fraud, which included the fictitious purchase of consumer electronics for sale to big-box retailers. Instead, funds from new investors were used to pay off old investors and finance other business opportunities.