Securities & Exchange Commission v. Aaron
Opinion of the Court
This case is before us on remand from the Supreme Court, pursuant to its mandate in Aaron v. SEC, 48 U.S.L.W. 4609 (U.S. June 2, 1980), vacating the judgment of our court in SEC v. Aaron, 605 F.2d 612 (2d Cir. 1979). Following the filing of the Supreme Court’s mandate in our court on July 29, 1980, we ordered that supplemental briefs be filed, requesting that the parties in particular direct their attention to whether the judgment of the district court should be affirmed on the basis of the district court’s finding of scienter. See SEC v. E. L. Aaron & Co., [1977-1978 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶96,043, at 91,684-85 (S.D. N.Y. May 5, 1977). Cf. Aaron v. SEC, supra, 48 U.S.L.W. at 4615 (Burger, C. J., concurring). After careful consideration of the supplemental briefs, which we have found helpful, we conclude that the judgment of the district court should be so affirmed.
In light of the Supreme Court’s decision, we must now consider whether the scienter requirement was satisfied in this case. We see no error in the district court’s finding that Aaron’s inaction constituted a wilful failure to stop the fraud being committed by his subordinates. Aaron had actual knowledge of the misrepresentations being made by the sales representatives: this is not a case of mere recklessness in failing to learn of a fraud being committed. And while Aaron argues that his failure to take steps to stop the fraud shows no more than “carelessness or . . . poor judgment,” the district court expressly found that his inaction was intentional, and we see no basis for disturbing this finding. See Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 45 (2d Cir.), cert. denied, 439 U.S. 1039 (1978). In short, we agree with Judge Gagliardi’s conclusion that “the fact that Peter Aaron intentionally failed to terminate the false and misleading statements made by Schreiber and Jacobson, knowing them to be fraudulent, is sufficient to establish his scienter under the securities laws.” SEC v. E. L. Aaron & Co., supra, [1977-1978 Transfer Binder] Fed.Sec.L.Rep. (CCH) at 91,685.
Accordingly, we affirm the permanent injunction issued by the district court.
Reference
- Full Case Name
- SECURITIES AND EXCHANGE COMMISSION v. Peter E. AARON, and E. L. Aaron & Co., Inc., Lawn-A-Mat Chemical & Equipment Corp., Edward L. Aaron, Peter E. Aaron, Norman Lawrence Schreiber, Donald Darwin Jacobson, Daniel Dorfman, and Fernando Erazo
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- 1 case
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- Published