Fed. Sec. L. Rep. P 93,747securities and Exchange Commission, Plaintiff-appellee, v. United Financial Group, Inc., Formerly Known As Usi Group,inc., et al., Defendants-appellants, 474 F.2d 354 (9th Cir. 1973)

This case is before us on an interlocutory appeal authorized by 28 U.S.C. § 1292(a) (1) and (2). United Financial Group, Inc. (hereinafter "UFG"), et al. appeal from the ruling of the district court in favor of the Securities and Exchange Commission (hereinafter "SEC") granting a preliminary injunction and appointing a receiver pendente lite. Our opinion is limited to the issues of whether there is subject matter jurisdiction and whether the district judge abused his discretion in granting the relief mentioned.¹  We affirm.

UFG is a Delaware corporation with its headquarters in Novato, California. The individual appellants are officers and directors of UFG and of various of the appellant companies owned by UFG. UFG is a holding company owning and, from its home base in the United States, controlling quite a large number of service and investment companies incorporated in foreign countries. Such investment companies are commonly referred to as "offshore mutual funds." Most of such funds, including the ones here, have very substantial investments in companies and property in the United States. Many offshore mutual funds were created subsequent to the passage of the Foreign Investors Tax Act of 1966, 80 Stat. 1541, which made certain tax advantages available to foreign investors and to the companies in which they invested so long as such companies were not engaged in a domestic business.

Although appellants insist that all offers and sales of shares in the mutual funds of the various investment companies were confined to foreigners, there is evidence in the record to the contrary. A 1969 UFG-complex shareholder list disclosed a number of shareholders with addresses in the United States. Appellants advertised in overseas editions of American newsweeklies, which are read widely by Americans residing and traveling abroad. An American serviceman swore that, in response to such an advertisement, he was sold mutual fund shares of one of the appellant companies. A doctor employed by the Veterans Adminstration who was temporarily living in the Philippines was sold shares after having been informed that such a sale to American citizens temporarily living abroad was not illegal. An American citizen employed overseas by one of the appellant companies swore that she was sold shares in the company and that no purchase restrictions with regard to citizenship were brought to her attention. There is also clear evidence that an offer to exchange shares of one of the appellant companies for shares of another of the appellant companies or for interest in land owned by a third appellant company was made to an American citizen, addressed to him at his residence in the United States.

In short, there are American owners of the shares of some of the appellant companies, and there have been offers and sales of stock to American citizens. Coupled with the other evidence before the district court that the complex of foreign companies was in fact directed and controlled as an integrated whole from the United States, that appellants obtained money from investors by means of untrue statements and omissions of material facts, and that the mails and other facilities of interstate commerce of the United States were used in preparation and distribution of prospectuses, to set up sales meetings and to consummate investment transactions, there was sufficient evidence for subject matter jurisdiction under Sec. 22(a) of the Securities Act of 1933 and Sec. 27 of the Securities Exchange Act of 1934.²  Compare Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (2d Cir. 1968), rev'd on other grounds, 405 F.2d 215 (2d Cir. 1968) (en banc), cert. denied sub nom. Manley v. Schoenbaum, 395 U.S. 906, 89 S. Ct. 1747, 23 L. Ed. 2d 219 (1969); SEC v. Gulf Intercontinental Finance Corp., 223 F. Supp. 987, 994-996 (S.D. Fla. 1963).

Although there was a showing of only a few instances involving American investors relative to the total sales volume, jurisdiction may not be resolved by a mere tallying of domiciles of shareholders.³  The relative number of American citizen shareholders vis-a-vis alien shareholders is not determinative of whether United States courts may assert jurisdiction. In this case, focus should be upon appellants' activities within the United States and the impact of those activities upon American investors. Here, there was a showing of very substantial activities by appellants within the United States and a showing that, as a result of those activities, at least three American investors now hold nearly $10,000 worth of stock for which there appears to be no market and which appellants have declined to redeem although requested to do so. Since the securities laws have always been construed very broadly to promote the remedial purposes behind them,⁴  we find unpersuasive the argument that jurisdiction should be declined because only a very few instances of sales to American citizens have been shown, especially given the practical difficulties present in this case.⁵  "That the jurisdictional hook need not be large to fish for securities law violations is well established." Lawrence v. SEC, 398 F.2d 276, 278 (1st Cir. 1968).

An alternate theory of jurisdiction advanced by respondent is based solely upon appellants' use of the facilities of interstate commerce. If accepted without qualification, there would be jurisdiction in every case regardless of whether American investors were involved. Such a theory is squarely at odds with appellants' argument of improper extraterritorial application of legislation. Although the "interstate commerce facilities use" theory⁶  may have some merit, it is unnecessary to our decision in this case and we, therefore, express no opinion as to its soundness.⁷ 

Appellants argue that Sec. 30(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78dd(b), protects them from application of that Act. The section provides:

The provisions of this chapter or of any rule or regulation thereunder shall not apply to any person insofar as he transacts a business in securities without the jurisdiction of the United States, unless he transacts such business in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate to prevent the evasion of this chapter.

Since the Commission has not exercised its rule-making power under this section, the argument runs, the appellants' activities are exempt from regulation. The difficulty with such a position is that it overlooks the key phrase of "without the jurisdiction of the United States." (Emphasis added.) Appellants' argument has apparently construed "jurisdiction" to mean "territorial limits." It is clear from prior decisions,⁸  and we so hold, that it has no such meaning. Another difficulty with appellants' position is that they neglect to take into account the fact that offers and sales were made to United States citizens and that substantial activities were carried on by them in the United States in order to facilitate the sales of securities abroad. We therefore hold that in the circumstances of this case, Sec. 30(b) has no application.

Appellants also insist that they were denied due process of law by not being allowed a full evidentiary hearing on the question of subject matter jurisdiction. The basic flaw in such an argument is that, at the time of the hearings, they did not offer to call any witnesses or to introduce any evidence on the question. Apparently content to treat the issue as purely a matter of law, appellants merely filed briefs on the question. Twice the trial judge demonstrated his concern that appellants receive due process by denying the SEC's motions for a preliminary injunction, emphasizing that the appellants should have a "fair opportunity to be heard on the issuance of a preliminary injunction."

Since we have found that jurisdiction was proper, the only remaining issue is whether the judge abused his discretion in granting a preliminary injunction and in appointing a receiver. Washington Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472, 475-476 (9th Cir. 1969); Jones v. Board of Regents, 397 F.2d 259 (9th Cir. 1968). "An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found." Bowles v. Quon, 154 F.2d 72, 73 (9th Cir. 1946). A prima facie case of the probable existence of fraud and mismanagement was demonstrated by the SEC.⁹  Such a showing is sufficient to call into play the equitable powers of the court. SEC v. Keller Corp., 323 F.2d 397, 403 (7th Cir. 1963). The district court has broad powers and wide discretion to frame the scope of appropriate equitable relief. International Manufacturing Co. v. Landon, Inc., 327 F.2d 824 (9th Cir. 1964); SEC v. Keller Corp., supra. Under the circumstances, we cannot say that the trial court abused its discretion.¹⁰