The opinion of the court was delivered by: AUGELLI
On July 21, 1960, this Court issued a preliminary injunction in this case which enjoined defendants, pending final determination of the matter,
'* * * from engaging in the business of a broker buying and selling securities for the account of others and engaging in the business of a dealer buying and selling securities for its own account while registered as a broker-dealer with the plaintiff while and at a time when the books and records required by Section 17(a) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78q(a) and the rule promulgated thereunder, 17 CFR 240.17a-3 are not maintained and kept current, and while and at a time when the defendants, as a registered broker-dealer, are permitting their aggregate indebtedness to all other persons to exceed 2,000 per centum of their net capital in contravention of Rule 17 CFR 240.15c3-1.'
This order was issued after a contested hearing. The evidence adduced at that hearing, as reflected in the findings of fact made by the Court, clearly established that there had been a violation by defendants of the so-called 'bookkeeping' and 'net capital' provisions of the Securities Exchange Act of 1934, 15 U.S.C.A. §§ 78o(c)(3) and 78q(a).
In December, 1960, defendants moved to vacate the preliminary injunction. Defendant Cohn filed an affidavit in support of the motion. Therein he pointed out that the injunction prohibited carrying on the business of a broker-dealer only 'so long as violations continue'. The affidavit then went on to recite that the violations (relating to the maintenance and filing of proper records, and capital requirements) had been corrected, and that at all times since the entry of the injunctive order of July 21, 1960, defendants had been in compliance with the Act. The affiant then concluded with the statement that since 'the defendants have demonstrated their good faith and ability to comply with the law and regulations pertaining to a broker-dealer', the preliminary injunction should be vacated. By order dated December 22, 1960, the Court denied the motion to vacate the injunction 'without prejudice to the right of the defendants to make further application but not earlier than March 15, 1961'.
Such further application was made in May, 1961, supported by the affidavit of defendant Giannetti, which was substantially the same as the one filed by Cohn in the earlier motion to vacate. Giannetti's affidavit stressed the fact of continued compliance by defendants with the applicable sections of the Securities Exchange Act of 1934, and also the improved financial stability of defendants, as shown by statements attached to both the Cohn and Giannetti affidavits.
After a review of the entire record the Court determined that the preliminary injunction should remain in force pending final hearing, and by order dated December 29, 1961, denied the motion to vacate and ordered the matter to be listed for final hearing at an early date.
On September 13, 1962, defendants Giannetti and Phoenix consented to the entry of a permanent injunction against them, and such order was signed on that date. The case was then set down for final hearing as to the defendant Cohn. This took place on December 11, 1962. The facts were stipulated by the parties and briefs pro and con were filed. It was also stipulated that all prior papers filed in this action by the parties could be used by the Court in its consideration of the remaining issue as to whether the preliminary injunction of July 21, 1960, should be dissolved or made permanent as to defendant Cohn.
The stipulated facts
are basically the same as those considered by the Court at the hearing for a preliminary injunction and on the two subsequent applications to vacate the injunctive order. It is admitted that at least on four separate occasions, defendants were in violation of the Securities and Exchange Commission's net capital rule, 17 C.F.R. 240.15c3-1, which provides that no broker or dealer shall permit his aggregate indebtendness to all persons to exceed 2,000 per cent of his net capital. Defendants' trial balances of February 29, 1960, April 22, 1960, May 31, 1960 and June 24, 1960 all disclosed a capital deficiency. The trial balances of April 22, 1960 and May 31, 1960, were brought into apparent compliance with the net capital rule by resorting to mere bookkeeping entries. It is also admitted that the Commission's rule relating to the maintenance and filing of certain records (Rule 17 C.F.R. 240.17a-3) was violated on a number of occasions. These lapses, says Cohn, were more or less due to inadvertence and laxity, rather than to any wilfulness on the part of defendants.
At the present hearing it was brought to the Court's attention that defendant Cohn is 70 years of age; that he is an attorney-at-law of this State, having been admitted to practice in 1915; and that he ceased being a partner in Phoenix on or about February 24, 1961, when the Phoenix partnership was dissolved. Curiously enough, Giannetti's affidavit, verified on May 5, 1961, which was used on the second application to vacate the injunctive order, makes no mention of the dissolution of the partnership. It is a stipulated fact that no amendment to Phoenix's broker-dealer application reflecting this dissolution was filed until May 18, 1961.
Standing alone, the age of a defendant and his station in life are irrelevant considerations in this type of action. The delay in bringing the matter on for final hearing can be ascribed in the main to the heavy work load of the Court prior to the recent appointment of additional judges. Moreover, the record does not reflect any overzealousness on the part of defendants to shorten the time interval. And it is well established, upon a proper showing being made, that an injunction may issue regardless of the mala-fides or bona-fides of a defendant, and regardless of a defendant's cessation of illegal conduct if the likelihood of the resumption of such conduct is found to exist. Securities and Exchange Commission v. Lawson, 24 F.Supp. 360 (D.Md.1938); Securities and Exchange Commission v. Universal Service Association, 106 F.2d 232 (7 Cir., 1939); Securities and Exchange Commission v. Okin, 139 F.2d 87 (2 Cir., 1943); Securities and Exchange Commission v. Boren, 283 F.2d 312 (2 Cir., 1960).
The likelihood of future violations must be considered in the light of past conduct. In this case there have been recurrent violations. The alleged contributions to capital, referred to in paragraphs 15 and 16 of the Stipulation of Facts (see Appendix), turned out to be illusory. There was also the failure to maintain and file proper records, which extended over a period of time. And while the Court is willing to accept defendants' statements that these violations were not wilful, it nevertheless must be borne in mind that the Securities Exchange Act was designed to prevent certain practices which might prove detrimental to the public interest. It should be obvious that compliance with the net capital rule and the rule requiring maintenance of accurate records are important safeguards established for the protection of the investing public. Securities and Exchange Commission v. Graye, 156 F.Supp. 544 (S.D.N.Y.1957); Securities and Exchange Commission v. Mainland Securities Corp., 192 F.Supp. 862 (S.D.N.Y.1961); Blaise D'Antoni & Associates, Inc. v. Securities and Exchange Commission, 290 F.2d 688 (5 Cir., 1961).
Based on defendants' past performances, as disclosed by the record, the Court is satisfied that there exists the likelihood of a resumption of illegal conduct unless a permanent injunction is granted. Under the circumstances a permanent injunction will issue against the defendant Cohn, similar to the one entered against the other defendants. Such injunction is not intended to be punitive in nature. It does not seek to prevent Cohn from engaging in the business of a broker-dealer. In the public interest the injunction prohibits doing business in violation of the Securities Exchange Act and the rules promulgated pursuant thereto. If in fact defendant Cohn has no intention of again violating any provisions of the Act, the injunction can cause him no harm.
This opinion, including the stipulated facts set forth in the Appendix, shall constitute findings of fact and conclusions of law in accordance with Rule 52(a) ...