UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CIV-81205-RAR

SECURITIES AND EXCHANGE 

COMMISSION,

Plaintiff,

v.

COMPLETE BUSINESS SOLUTIONS 

GROUP, INC. d/b/a PAR FUNDING, et al.,

Defendants.

___________________________________/ 

ORDER DENYING DEFENDANTS’ JOINT MOTION 

FOR PARTIAL SUMMARY JUDGMENT

THIS CAUSE comes before the Court on Defendants’ Joint Motion for Partial Summary 

Judgment and Incorporated Memorandum of Law [ECF No. 804] (“Motion”) and accompanying

Statement of Facts [ECF No. 805] (“DSOF”), filed on October 4, 2021. The Motion is made on 

behalf of Defendants Joseph LaForte, Lisa McElhone, and Joseph Cole Barleta, Mot. at 2, and 

Defendants Perry Abbonizio and Dean Vagnozzi filed Notices of Joinder to the Motion on October 

6, 2021 and October 20, 2021, respectively, [ECF Nos. 819, 849]. 

Plaintiff filed a Response in Opposition [ECF No. 894] (“Response”), and Opposition to 

Defendants’ Joint Statement of Undisputed Facts [ECF No. 887-1] (“PRSOF”), on October 28, 

2021. In addition, Plaintiff filed a Statement of Undisputed Facts [ECF No. 816-1] (“PSOF”), and 

Defendants filed a Joint Statement of Facts in Support of their Response to the SEC’s Motion for 

Partial Summary Judgment [ECF No. 895] (“DRSOF”). Defendants filed a Reply in support of 

their Motion [ECF No. 947] (“Reply”) on November 15, 2021. Having reviewed all the pleadings, 

and being otherwise fully advised, it is

ORDERED AND ADJUDGED that the Motion is DENIED as set forth herein.

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 1 of 17
Page 2 of 17

BACKGROUND

As the parties are familiar with the underlying facts in this case and the Court extensively 

covered such background in its Order Denying Motion to Dismiss [ECF No. 583] (“Order Denying 

Motion to Dismiss”), only a summary is warranted.1

I. Factual Background

This case is an enforcement action brought by the Securities and Exchange Commission 

(“SEC”) alleging that Defendants issued, marketed, and sold unregistered, fraudulent securities to 

fund short-term loans to small businesses—known as “merchant cash advances.” Par Funding—

a company founded in 2011 by husband-wife duo McElhone and LaForte—was engaged in the 

business of making “opportunistic loans” to small businesses across the country. See Am. Compl. 

¶ 1. From approximately August 2012 through mid-2020, to fuel these merchant cash advances 

(MCAs), Defendants raised nearly half a billion dollars through unregistered securities sold to over 

a thousand investors nationwide. Id. The SEC describes the alleged scheme as consisting of two 

primary phases. During the first phase, from August 2012 until around December 2017, Par 

Funding primarily issued promissory notes and offered them to the investing public directly and 

through a network of sales agents (“Phase I”). Id. ¶ 2. 

Then, in early January 2018—after learning it was under investigation by the Pennsylvania 

Department of Banking and Securities for violating state securities laws through the use of 

unregistered agents—Par Funding implemented a new way to raise funds for the MCAs (“Phase 

II”). Id. ¶¶ 3-4. Par Funding began relying on “Agent Funds” that were “created for the purpose 

of issuing their own promissory notes, selling the notes to the investing public through unregistered 

security offerings, and funneling investor funds to Par Funding.” Id. ¶ 4. Par Funding would 

1

 The Court sets forth the facts as described in the SEC’s Amended Complaint, many of which Defendants 

vehemently dispute.

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 2 of 17
Page 3 of 17

compensate the Agent Funds by offering them promissory notes that had higher rates of return 

than the notes the Agent Funds sold to investors. Id. ¶ 4. 

The Amended Complaint states that McElhone and LaForte “orchestrate[d] the scheme” 

through Par Funding and McElhone’s company, Full Spectrum Processing, Inc., whose employees 

operated Par Funding. LaForte, Cole (Full Spectrum’s CFO), and Abbonizio (Par Funding’s 

investment director and partial owner) solicited investors to invest in the securities. Am. Compl. 

¶ 5. Vagnozzi, through his company ABetterFinancialPlan.com d/b/a A Better Financial Plan 

(“ABFP”), recruited individuals to create the Agent Funds and provided them training and other 

materials to assist them with the creation and operation of the funds. Id. ¶ 6. Vagnozzi, along with 

Michael Furman and John Gissas, operated Agent Funds that raised money for Par Funding 

through unregistered securities offerings. Id. ¶ 7. 

The SEC avers that in addition to violating the federal securities laws by selling 

unregistered securities, Defendants also made false or misleading statements and omissions 

concerning the Par Funding offering in violation of the antifraud provisions of the Securities Act 

of 1933 (“Securities Act”) and the Securities Exchange Act of 1934 (“Exchange Act”). Id. at 29-

50. These misleading statements and omissions included misrepresentations regarding Par 

Funding’s underwriting process, loan default rate, and insurance offered on the MCAs; omissions 

as to LaForte’s background to investors, specifically that he is a twice-convicted felon; and

omissions regarding Defendants’ regulatory history.

II. Procedural Background

The SEC filed this action on July 24, 2020, seeking—among other things—a temporary 

restraining order and preliminary injunction, an asset freeze, appointment of a receiver, a 

permanent injunction, disgorgement, and penalties. See Compl. [ECF No. 1]. The Court entered 

an order appointing a receiver over certain Defendant entities, as well as several subsequent orders 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 3 of 17
Page 4 of 17

expanding the scope of the receivership [ECF Nos. 141, 238, 436, 484, 517]. The Court also 

granted the SEC’s request for a temporary restraining order and asset freeze [ECF No. 42] and 

held a two-day preliminary injunction hearing [ECF Nos. 170, 192]. Following the hearing, each 

Defendant consented to a preliminary injunction [ECF Nos. 173, 176, 187, 200, 201, 221, 255, 

336]. On October 27, 2020, the Court stayed this case as to Defendant Gissas, who reached a 

tentative settlement with the SEC [ECF No. 349]. On November 2, 2020, Defendants filed a 

Motion to Dismiss, seeking dismissal of the Amended Complaint that the SEC filed on August 10, 

2020. [ECF No. 363] (“Motion to Dismiss”). The Court denied the Motion to Dismiss on May 

11, 2021. Defendants filed the instant Motion on October 4, 2021, seeking partial summary 

judgment regarding certain claims in the Amended Complaint.

LEGAL STANDARD 

Summary judgment is rendered if the pleadings, the discovery and disclosure materials on 

file, and any affidavits show there is no genuine issue as to any material fact and the movant is 

entitled to judgment as a matter of law. See FED.R.CIV. P. 56(a), (c). An issue of fact is “material” 

if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable jury to find 

for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986). At summary judgment, the moving party has the burden of proving the 

absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the 

non-moving party. See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). The nonmoving party’s presentation of a “mere existence of a scintilla of evidence” in support of its 

position is insufficient to overcome summary judgment. Anderson, 477 U.S. at 252. If there are 

any factual issues, summary judgment must be denied, and the case proceeds to trial. See Whelan 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 4 of 17
Page 5 of 17

v. Royal Caribbean Cruises Ltd., No. 12-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 

2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981)). 

ANALYSIS 

Defendants move for partial summary judgment on claims under Section 17(a)(1)-(3) of 

the Securities Act, Section 10(b) of the Exchange Act, and SEC Rule 10b-5(a)-(c). Defendants 

contend that the SEC cannot prove the necessary elements to establish a violation under each 

statute or rule—namely, that Defendants made certain material misrepresentations or omissions to 

investors and in doing so, acted with scienter.

2 Mot. at 2. But contrary to Defendants’ assertions, 

discovery has, in fact, revealed the existence of genuine issues of material fact barring partial 

summary judgment in their favor. Id.

To allege claims under Section 17(a)(1)-(3), Section 10(b), and Rule 10b-5(a)-(c), the SEC 

must show: (1) a device, scheme, artifice to defraud; a material misrepresentation or omission; or

an act, practice, or course of business which would operate as a fraud or deceit; (2) in the offer of 

or in connection with the purchase or sale of a security; and (3) in interstate commerce. See S.E.C. 

v. Quiros, No. 16-21301, 2016 WL 11578637, at *12 (S.D. Fla. Nov. 21, 2016). For claims under 

Section 17(a)(1) and Rule 10b-5, the SEC must also allege facts supporting scienter. S.E.C. v. 

Merch. Cap., LLC, 483 F.3d 747, 766 (11th Cir. 2007). The SEC need only demonstrate 

negligence for claims under Sections 17(a)(2) and (3). Id. There is “considerable overlap among 

the subsections of the Rule and related provisions of the securities laws”—i.e., they prohibit some 

2

 Defendants do not challenge that the promissory notes offered by Par Funding are securities. In its Order 

Denying Motion to Dismiss, the Court previously found that, based on the Reves factors, Defendants had 

not overcome the presumption that the promissory notes are securities. Order Denying Motion to Dismiss 

at 19. Therefore, the Court proceeds under the assumption that these notes are securities and will focus its 

analysis on whether Defendants made material misrepresentations or omissions to investors and in doing 

so, acted with scienter. 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 5 of 17
Page 6 of 17

of the same conduct. Lorenzo v. S.E.C., 139 S. Ct. 1094, 1102 (2019). However, Rule 10b-5(b) 

and Section 17(a)(2) specifically require misrepresentation.

Scienter is “a mental state embracing intent to deceive, manipulate, or defraud.” S.E.C. v. 

Ginsburg, 362 F.3d 1292, 1297 (11th Cir. 2004) (internal quotations and citation omitted). 

Scienter can be established by a showing of knowing misconduct or severe recklessness. S.E.C. 

v. Monterosso, 756 F.3d 1326, 1335 (11th Cir. 2014). To show severe recklessness, the SEC must 

demonstrate “that the defendant’s conduct was an extreme departure of the standards of ordinary 

care, which presents a danger of misleading buyers or sellers that is either known to the defendant 

or is so obvious that the actor must have been aware of it.” Id. (quoting S.E.C. v. Carriba Air, 681 

F.2d 1318, 1324 (11th Cir. 1982)). Circumstantial evidence may be used to support a strong 

inference of scienter. S.E.C. v. City of Miami, Fla., 988 F. Supp. 2d 1343, 1360 (S.D. Fla. 2013). 

Typically, scienter is an issue left to the trier of fact. Monterosso, 756 F.3d at 1335. For the Court 

to make any finding on scienter in a motion for summary judgment, there must be no doubt that a 

reasonable jury would make the same finding. See S.E.C. v. Lyttle, 538 F.3d 601, 604 (7th Cir. 

2008). 

With the applicable law in mind, the Court proceeds to address each argument advanced 

by Defendants in turn—while noting the presence of genuine issues of material fact sufficient to 

defeat partial summary judgment.

I. Whether Defendants made materially misleading omissions regarding the ceaseand-desist orders issued by Pennsylvania and New Jersey is disputed.

Here, Defendants present two arguments: (1) the SEC cannot prove that failing to disclose 

three Cease-and-Desist Orders to investors constituted a material omission; and (2) in failing to 

disclose the Cease-and-Desist Orders, Defendants acted with scienter. A statement or omission is 

material where “there is a substantial likelihood that the disclosure of the omitted fact would have 

been viewed by the reasonable shareholder as having significantly altered the ‘total mix of 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 6 of 17
Page 7 of 17

information available.’” S.E.C. v. Monterosso, 768 F. Supp. 2d 1244, 1263 (S.D. Fla. 2011), aff’d, 

756 F.3d 1326 (11th Cir. 2014) (quoting S.E.C. v. DCI Telecommunications, Inc., 122 F. Supp. 2d 

495, 498 (S.D.N.Y. 2000)). Materiality is a mixed question of law and fact. Ganino v. Citizens 

Utilities Co., 228 F.3d 154, 162 (2d Cir. 2000). Summary judgment on the issue of materiality is 

only appropriate if the established omissions are “so obviously important to an investor, that 

reasonable minds cannot differ on the question of materiality.” TSC Indus., Inc. v. Northway, Inc., 

426 U.S. 438, 450 (1976).

In their Motion, Defendants contend that the “SEC failed to present any evidence that Par 

Funding’s regulatory history has any connection to or impact on its financial performance.” 

Mot. at 3. Simply put, Defendants argue that Par Funding’s regulatory history is not material to 

its financial performance; thus, failing to disclose such history is not a material omission.3 In 

response, the SEC points to the undisputed fact that LaForte touted the success of Par Funding at 

a November 2019 investor presentation without disclosing the Pennsylvania and New Jersey 

cease-and-desist orders that had been entered against Par Funding. PSOF ¶ 94; DRSOF ¶ 94; 

PRSOF ¶ 87. Therefore, the SEC argues, by failing to disclose Par’s regulatory history, LaForte’s

statements touting Par Funding’s success were materially misleading. Mot. at 3. Applying the 

standard laid out in TSC Indus., Inc. to LaForte’s statements, the Court finds that reasonable minds 

could differ as to whether failing to disclose Par Funding’s regulatory history was a material 

omission in the context of a statement asserting that Par Funding was a successful company.

4

 

3

 Defendants cite to Fries v. Oil & Gas, Inc. for support. 285 F. Supp. 3d 706, 719 (S.D.N.Y. 2018). 

However, the Court agrees with the SEC that Fries is inapposite to the instant case. In Fries, the court was 

focused on whether Defendants misled investors by emphasizing the importance of the CEO to the company 

while failing to disclose his uncharged criminal behavior—misconduct wholly different from the case at 

hand. Id. at 718–719. 

4

 In Reply, Defendants argue that where “the non-moving party bears the burden of proof at trial, the 

moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue of 

material fact as to any essential element of a non-moving party’s claim or affirmative defense.” Reply at 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 7 of 17
Page 8 of 17

Because summary judgment on an issue related to materiality is only appropriate when reasonable 

minds could not differ as to the omission’s importance, the entry of summary judgment is 

unwarranted here.

Next, Defendants argue the SEC cannot prove that Defendants acted with scienter5 in 

failing to disclose the Pennsylvania and New Jersey cease-and-desist orders to investors because 

there is no evidence that Defendants knew or had reason to know that such disclosures were 

required. Mot. at 3. For instance, Defendants claim that their counsel, Phillip Rutledge

(“Rutledge”), who was aware of Par Funding’s regulatory history, never advised them to make 

such disclosures. Mot. at 4; DSOF ¶ 43. This assertion is directly at odds with facts set forth by 

the SEC.

6 Mr. Rutledge testified that in 2018, he advised Defendants in writing that if 

Pennsylvania regulators entered an Order against Par Funding, that may give rise to a disclosure 

requirement. Resp. at 5; Rutledge Tr., Vol. II at 316:18-21. Further, Rutledge testified that he 

recommended, several times, that Defendants prepare a private placement memorandum for the 

2. They are correct. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1984). However, Defendants have 

not established the nonexistence of a genuine issue of material fact as to any essential element of the SEC’s 

claims. Notably, the Eleventh Circuit has noted that “[t]he existence of a state cease and desist order against 

identical instruments is clearly relevant to a reasonable investor, who is naturally interested in whether 

management is following the law in marketing the securities.” See Merch. Cap., LLC, 483 F.3d at 766. 

Therefore, LaForte’s omission of Par Funding’s regulatory history creates a genuine issue of material fact 

as to whether LaForte’s proclamation of Par Funding’s success was a material misrepresentation as 

contemplated by Section 10(b) of the Exchange Act, SEC Rule 10b-5(a)-(c), and Section 17(a)(1)-(3) of 

the Securities Act.

5

 The SEC must prove that Defendants acted with scienter to find a violation of both Section 17(a)(1) and 

Rule 10b-5.

6

 In Reply, Defendants repeatedly argue that the SEC has failed to put forth evidence that Defendants knew 

or understood they may have an obligation to disclose the cease-and-desist orders to investors. Reply at 5. 

Defendants argue that the SEC has erroneously represented that paragraphs 37, 47, and 61-75 of their

Opposition to Defendants’ Statements of Facts [ECF No. 887-1] support the proposition that Rutledge told 

Defendants “that if Pennsylvania entered an Order against Par Funding, it could give rise to a disclosure 

requirement.” Resp. at 5, n.5. This is true. However, the Court presumes that this was an inadvertent 

scrivener’s error by the SEC and instead relies on its review of the entire record. And upon said review,

the Court has found that Rutledge did tell Defendants that a Pennsylvania Order could give rise to a 

disclosure requirement. See [ECF No. 896-13] (“Rutledge Tr., Vol. II”) at 316:18-21. 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 8 of 17
Page 9 of 17

offer and sale of the promissory notes. Rutledge Tr., Vol. II at 316:25-317:10. If Defendants had 

heeded his advice, he would have advised Defendants to disclose the Pennsylvania Order in the 

memorandum. Id. Rutledge’s testimony alone denotes a genuine issue of material fact—whether 

Defendants knew or had reason to know that the disclosures should have been made. The Court 

need not delve deeper into this argument as Rutledge’s testimony alone bars summary judgment.

II. Defendants cannot establish that the undisputed facts show they did not engage in a 

scheme to defraud Pennsylvania Securities Regulators.

Defendants argue that the undisputed facts show they did not intend to mislead 

Pennsylvania regulators as to the nature and pay structure of their business. Mot. at 3-4. 

Pennsylvania Securities Regulators began investigating Par Funding in 2018. DSOF ¶ 26; [ECF 

No. 805-2] at 74–83 (“Rutledge Letter”).

7 At the time the Pennsylvania investigation was 

announced, Defendants had been paying commissions to those responsible for finding investors

(i.e., compensating finders in connection with the offer and sale of securities). Id. In 2018, Par 

Funding adopted a different business structure, referred to as the “Agent Fund” structure. Resp. 

at 6; DSOF ¶ 37; PRSOF ¶ 37. The SEC alleges that Par Funding would compensate the Agent 

Funds by offering them promissory notes that had higher rates of return than the notes the Agent 

Funds sold to investors. See Am. Compl. ¶ 4. After Par Funding adopted the Agent Fund structure,

Rutledge wrote to Pennsylvania regulators that Par Funding was no longer compensating finders 

in connection with the offer and sale of securities. Rutledge Letter at 77. As a result of that 

representation, the SEC contends that Defendants engaged in a scheme to deceive Pennsylvania 

Securities Regulators into believing that Par Funding was no longer paying commissions to find 

investors. Am. Compl. ¶ 62-69. 

7

 The Court notes that this fact is disputed by the SEC because it is not supported by the evidence cited. 

The SEC is correct; the record citations provided by Defendants do not support DSOF ¶ 26. However, the 

Court has found support in the record for the proposition cited. See Rutledge Letter at 74.

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 9 of 17
Page 10 of 17

In their Motion, Defendants argue (1) that they could not have intended to defraud the 

Pennsylvania regulators because the new structure they adopted, the Agent Fund structure, was 

one Defendants had been aware of for years, and therefore, Defendants did not create this structure 

to deceive regulators; and (2) that Defendants vetted the Agent Fund structure with both 

Vagnozzi’s counsel and Rutledge, asking Rutledge to disclose as much as possible to regulators to 

ensure they were in compliance with the law. Mot. at 3-5. 

On a motion for summary judgment, the Court is required to draw inferences in favor of 

the non-moving party. See Allen, 121 F.3d at 646. It is undisputed that Defendants were aware of 

the Agent Fund structure as early as 2016. Mot. at 5. Based on this undisputed fact, Defendants 

ask the Court to infer that because Defendants’ knowledge of the Agent Fund structure predated 

the Pennsylvania investigation, Defendants could not have been attempting to deceive regulators

by adopting the Agent Fund structure after the Pennsylvania regulators commenced their 

investigation. Mot. at 4-5. But, pursuant to Allen, the Court finds that this same undisputed fact

readily lends itself to the inference propounded by the SEC—that Defendants adopted the Agent 

Fund structure as the result of Pennsylvania regulators sanctioning Par Funding for paying 

commissions to finders in connection with the sale of promissory notes. Resp. at 6. Based on this 

inference alone, Defendants fail to show the absence of any genuine issue of material fact. 

Nonetheless, the Court will address Defendants’ second argument. 

Defendants assert that they sought legal advice from Rutledge with respect to their decision 

to sell notes to the Agent Funds and whether this structure was compliant with the law. Mot. at 5. 

Therefore, they argue, they could not have intended to deceive regulators when Rutledge 

represented to Pennsylvania regulators that Par Funding was no longer compensating individuals 

in connection with the sale of promissory notes. Mot. at 5. They contend that Rutledge was aware 

of this structural change prior to the resolution of the Pennsylvania investigation—and before 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 10 of 17
Page 11 of 17

Rutledge drafted his November 14, 2018 letter to Pennsylvania regulators stating that Par Funding 

was no longer compensating individuals in connection with the sale of promissory notes. Mot. at 

5; DSOF ¶ 47. 

However, Rutledge’s knowledge of the specifics of this structural change is directly 

disputed by the SEC. PRSOF ¶ 47. The SEC contends that Rutledge was not aware that as part 

of the new structure, Par Funding was still compensating individuals for raising investor funds 

through the offer and sale of securities; further, the SEC notes that Defendants provide no evidence 

that before March 2020, they sought any assurances about the conduct in question. Mot. at 7; 

PRSOF ¶¶ 47, 48. Because Rutledge’s knowledge is disputed, the Court cannot grant summary 

judgment as to this issue.

III. Genuine issues of material fact exist as to whether Defendants misled investors 

regarding the Default Rate.

Defendants argue that the SEC cannot establish they made false or misleading 

representations regarding Par Funding’s default rate because Par Funding’s default rate is accurate. 

Mot. at 5. They also posit the SEC cannot show that any alleged misrepresentations about the 

default rate were material, nor that Defendants acted with scienter. Id. at 7. 

First, the accuracy of Par Funding’s default rate is a disputed fact. DSOF ¶¶ 4–12; PRSOF 

¶¶ 4–12. For instance, the SEC and Defendants dispute the accuracy of their respective experts’

findings as to the data contained in the Funding Analysis Report. DSOF ¶¶ 9–10; PRSOF ¶¶ 9–

10. These disputed facts are at the center of whether the default rate represented by Defendants 

was accurate—a key issue for the jury to decide.

Next, Defendants attempt to argue the SEC cannot establish that a misrepresentation related 

to the default rate would be material. Mot. at 7–8. In support, Defendants cite findings by their 

expert, Joel Glick, who posits that if the default rate is calculated in the way suggested by the 

SEC’s expert, it would only change by .03%—an immaterial amount. Mot. at 7; DSOF ¶¶ 18–19. 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 11 of 17
Page 12 of 17

In direct dispute, the SEC states that any analysis conducted by Defendants’ expert presupposes 

that the underlying numbers in Par Funding’s Financial Analysis Report were accurate; therefore, 

the calculations are unreliable. PRSOF ¶¶ 18–19. Given this expert witness dispute, the Court 

cannot find that any alleged misrepresentation related to the default rate was immaterial because 

there is a genuine issue of material fact as to the underlying default rate itself—as well as questions 

surrounding the accuracy of representations made in the Financial Analysis Report. And, as

previously noted by this Court, “[g]iven that borrowers defaulting on the MCA loans affects Par 

Funding’s ability to repay investors, a reasonable investor would likely attach importance to the 

default rate being ten times higher than what was represented to investors.” Order Denying Motion 

to Dismiss at 27. Even a finding that the default rate was a mere percentage point higher could 

lead reasonable minds to differ as to the importance of such a misrepresentation. 

Lastly, Defendants argue that the SEC has failed to show that Defendants acted with the 

requisite level of scienter required to establish a violation under Section 10(b) and 17(a). Mot. at 

9. Defendants’ main contention is that they could not have acted with scienter because they 

worked alongside professional accountants to implement the policies and procedures at issue in 

this litigation. Mot. at 9. In support, Defendants assert that their public accounting firm, Rod 

Ermel Associates (“Ermel”), had full and complete access to Par Funding’s books and records and 

that very same firm conducted a review of Par Funding’s Financial Analysis Report in 2016. 

DSOF ¶¶ 20–21. The SEC disputes that the evidence cited by Defendants shows that Ermel was 

given full access to the books and records; rather, the evidence shows he was given access to 

Quickbooks. PRSOF ¶ 20. However, it is undisputed that Ermel, in 2016, conducted a one-time 

review of Par Funding’s Financial Analysis Report. Id. at ¶ 21. That being said, there are still 

insufficient facts to establish that Defendants acted without scienter. For example, if the 

underlying Financial Analysis Report reviewed by Ermel contained faulty numbers, Defendants’ 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 12 of 17
Page 13 of 17

request that Ermel audit a faulty report may very well show that Defendants acted with scienter. 

Resp. at 9. Based on these facts, summary judgment as to Defendants’ scienter, or lack thereof, is

precluded.

IV. Whether or not Par Funding performed vigorous underwriting is a disputed fact.

Contrary to Defendants’ assertion that “there is no genuine issue of material fact that Par 

Funding did conduct vigorous underwriting,” the record is riddled with factual disputes. Mot. at 

10. The SEC alleges that Par Funding made material misrepresentations as to its underwriting 

processes by (1) representing that Par Funding always conducted onsite inspections before funding 

merchant cash advances; and (2) representing that Par Funding took 48–72 hours to complete its 

vigorous underwriting process. Am. Comp. ¶¶ 159-161, 165-180. 

As to the first allegation—whether Par Funding always conducted onsite inspections before 

funding merchant cash advances—it is undisputed that they did not. DSOF ¶ 58; PRSOF ¶ 58. 

However, the parties do dispute the materiality of this misrepresentation. But as explained above, 

the issue of materiality is a question of fact for the jury. As to the second allegation, Defendants 

assert that they did not make any type of misrepresentation when telling investors that underwriting 

was completed within 48–72 hours because that statement, without more, is not a promise that 

Defendants took at least 48 hours to complete their underwriting process. Mot. at 11. Again, the 

materiality of this distinction is at issue here. Mot. at 11; Reply at 8. And the Court is not in a 

position to determine materiality as a matter of law, which would invade the province of the jury. 

Thus, based on the set of facts presented, summary judgment on this point is unwarranted.

V. Whether Defendants made any materially false or misleading statements regarding

Par Funding’s insurance in connection with the purchase or sale of a security is a 

disputed fact.

Defendants argue the SEC cannot show that alleged material misrepresentations regarding 

insurance to cover merchant defaults were made in connection with the purchase or sale of 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 13 of 17
Page 14 of 17

securities. Mot. at 13.8

 But the Court is not persuaded that the SEC is unable to produce evidence 

to establish this element. See Rudolph v. Arthur Andersen & Co., 800 F.2d 1040, 1046 (11th Cir. 

1986) (citations omitted) (cleaned up) ([f]or the “in connection with” requirement to be satisfied 

it is enough that the fraud “touch” the sale in some manner . . . the requirement is satisfied, for 

example, if the purchase or sale of a security and the proscribed conduct are “part of the same 

fraudulent scheme”). For example, LaForte’s statements to investors related to Par Funding’s 

insurance coverage were made to attract investors to purchase the securities offered by Par 

Funding, and in the view of the SEC, made in furtherance of the fraudulent scheme. Am. Comp. 

¶ 205; Mot. at 13. 

Next, Defendants cite to the Declaration of Anthony Bernato [ECF No. 804-25] 

(“Bernato’s Declaration”) to show that there is no genuine issue of material fact as to whether 

Defendants made materially false or misleading statements regarding Par Funding’s insurance. 

Mot. at 12–13; DSOF ¶¶ 23–24. In actuality, however, Bernato’s Declaration highlights several 

issues of material fact. Resp. at 13.; PRSOF ¶¶ 78–79. The SEC alleges that LaForte, on June 5, 

2018, told potential investors that if a merchant defaulted on his loan, Par Funding had insurance 

to back up their investor funds. Am. Comp. ¶ 205. But Bernato did not obtain any type of 

insurance coverage for Defendants until the fall of 2018. Bernato Declaration ¶ 8. And Defendants 

do not point to any other evidence that Par Funding had insurance of the type touted by LaForte 

prior to the coverage obtained by Bernato. This discrepancy alone represents an issue of material 

fact. Further, this discrepancy undermines Defendants’ claim that the SEC cannot prove that 

Defendants acted with scienter. Mot. at 13. If proven by the SEC, LaForte’s statement could show 

8

 The Court’s prior finding that Par Funding’s promissory notes qualify as securities is not challenged—or 

even addressed—by Defendants in their Motion. Order Denying Motion to Dismiss at 19. Thus,

Defendants’ reliance on SEC v. Goble, 682 F.3d 934 (11th Cir. 2012) is misplaced. In Goble, the Court 

found that the money market fund account at issue did not meet the definition of a security under the 

Exchange Act. Id. at 945.

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 14 of 17
Page 15 of 17

an “intent to deceive, manipulate, or defraud investors” or that Defendants acted with reckless 

disregard upon touting insurance coverage to investors that they did not carry. See Mizzaro v. 

Home Depot, Inc., 544 F.3d 1230, 1238 (11th Cir. 2008).

 Accordingly, summary judgment as to whether Defendants made any materially false or 

misleading statements regarding Par Funding’s insurance in connection with the purchase or sale 

of a security is not warranted.

VI. The Court declines to entertain summary judgment on claims that are not at issue.

Defendants seek summary judgment on the SEC’s allegations that Par Funding engaged in 

unlawful loan practices. Mot. at 15. However, as repeatedly noted by this Court and the SEC, the

nature and legality of the Merchant Cash Advance business is not a feature of this case. Thus, the 

Court declines to breathe life into a non-existent cause of action.

Similarly, Defendants seek summary judgment on an alleged claim by the SEC that 

Defendants misled investors when they represented that Par Funding was at risk of defaulting on 

then-existing notes or entering bankruptcy before the exchange note offering. Mot. at 19. Upon 

careful review of the Amended Complaint, it is clear that the SEC did not make this allegation and 

the paragraphs cited by Defendants do not allege any misrepresentation or omission. Therefore, 

the Court, again, refuses to weigh in on an illusory cause of action.

VII. Genuine issues of material fact exist as to Defendants’ advice of counsel defense.

Defendants argue the SEC cannot prove they acted with scienter in failing to disclose 

LaForte’s criminal history to investors because Defendants relied on the advice of counsel, who 

advised them that disclosure was not necessary under Rule 502(b).

9

 Mot. at 18. To establish an

advice of counsel affirmative defense, Defendants must show that: (1) they fully disclosed all 

relevant facts to their counsel; and (2) that they relied in good faith on counsel’s advice. S.E.C. v. 

9 Rule 502(b) governs required disclosures for offerings of securities to non-accredited investors.

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 15 of 17
Page 16 of 17

Huff, 758 F. Supp. 2d 1288, 1348 (citing United States v. Parker, 839 F.2d 1473, 1486 n.6 (11th 

Cir. 1988)). Because it is an affirmative defense, Defendants bear the burden of proving these 

elements. U.S. v. Vernon, 723 F.3d 1234, 1269 (11th Cir. 2013). Here, Defendants fail to even 

address these elements in their Motion.

Moreover, summary judgment is precluded by the record. Squarely at issue here is whether

Defendants disclosed all relevant facts to their counsel. Defendants state that Rutledge, in 2018,

advised them that they did not have to make certain disclosures under 502(b). Mot. at 17. These 

disclosures included matters pertaining to management. Rutledge provided this advice based on 

the information available to him at the time. PSOF ¶ 73. However, at the time Rutledge provided 

counsel, he was not aware that LaForte was involved in Par Funding—nor that he had a criminal 

history. PRSOF ¶ 74; [ECF No. 896-12] (“Rutledge Tr., Vol. I”) at 36:16–39:22. Regardless of 

whether Defendants were required to make certain disclosures under 502(b), LaForte’s role in the 

business is likely a relevant fact that should have been disclosed to counsel. Indeed, Rutledge 

testified that LaForte’s involvement and criminal history were facts he would have wanted to 

know. Rutledge Tr., Vol. II at 393:7–21. 

In sum, the Court finds that summary judgment is precluded as to Defendants’ advice of 

counsel affirmative defense because they have failed to meet their burden as to the elements 

required to establish such a defense—namely, that they fully disclosed all relevant facts to counsel.

VIII. Whether or not Defendants failed to disclose that the Texas Securities Regulators 

had entered an Emergency Cease-and-Desist Order is disputed.

Defendants contend that the Cease-and-Desist Order entered by Texas was disclosed to 

investors in the 2020 exchange offering. In support, they cite the deposition testimony of Rutledge. 

Mot. at 19; Rutledge Tr., Vol. II at 319–320. However, Defendants do not provide any evidence 

regarding the exchange offering itself, or whether investors received or were aware of such 

disclosures. In opposition, the SEC contends they have provided record evidence disputing 

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 16 of 17
Page 17 of 17

Defendants’ purported disclosure, nebulously citing to paragraph 138 of the Amended Complaint 

and the Temporary Restraining Order (without directing the Court to any specific page in which 

such evidence might be found). The SEC further maintains that “paragraph [138] is supported by 

a different exhibit that does not include that language.” Resp. at 16.

Based on these inadequate citations, and even after extensive review of the record, the 

Court is unable to discern what exhibit the SEC may be referring to. However, during the Court’s 

review, it came across Exhibit 109 to the SEC’s Temporary Restraining Order. [ECF No. 41-25] 

at 67–101. Exhibit 109 appears to contain the exchange note materials provided to investors in 

2020. Within these materials, the Court does not see any disclosures related to the Texas 

Emergency Cease-and-Desist Order. Therefore, the Court finds that this is a disputed issue of 

material fact and summary judgment is not appropriate.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendants’ 

Motion for Partial Summary Judgment [ECF No. 804] is DENIED. 

DONE AND ORDERED in Fort Lauderdale, Florida, this 19th day of November, 2021. 

_________________________________

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

Case 9:20-cv-81205-RAR Document 988 Entered on FLSD Docket 11/19/2021 Page 17 of 17