20

- 2751

- cv

S EC v. Altahawi

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second Circuit, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 8 t h day of J u n e , two thousand twenty

- one

. 3

4

PRESENT: RAYMOND J. LOHIER

, JR., 5

WILLIAM J. NARDINI, 6

Circuit Judges

, 7

JOHN P. CRONAN

, 8

Judge. * 9

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SECURITIES AND EXCHANGE COMMISSION, 11

12

Plaintiff

- Appell ee

, 13

14

v. 20

- 2751

- cv 15

16

ANDY ALTAHAWI, 17

18

Defendant

- Appell ant

. ∗ ∗ 19

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* Judge John P. Cronan , of the United States District Court for the Southern District of New

York , sitting by designation.

∗ ∗ The Clerk of Court is directed to amend the caption as above

.2 FOR DEFENDANT

- APPELLANT: R OBERT G. H EIM , Tarter 1

Krinsky & Drogin LLP, New 2

York, NY 3

4

FOR PLAINTIFF

- APPELL EE : B ROOKE W ILLIG (Jeffrey A. 5

Berger, Senior Litigation 6

Counsel, on the brief ), for 7

Michael A. Conley, Acting 8

General Counsel, Securities 9

and Exchange Commission, 10

Washington, D.C. 11

12

Appeal from an order of the United States District Court for the Southern 13

District of New York ( Denise L. Cote

, Judge ). 14

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 15

AND DECREED that the order of the District Court is AFFIRMED. 16

Andy Altahawi appeals from the July 21, 2020 order of the United States 17

District Court for the Southern District of New York (Cote, J. ), denying his 18

motion under Rule 60(b)(5) and Rule 60(b) (6) of the Federal Rules of Civil 19

Procedure to modify t he District Court ’s June 7, 2019 conse nt judgment between 20

Altahawi and the Securities and Exchange Commission (SEC)

. We assume the 21

parties’ familiarity with the under lying facts and prior record of proceedings, to 22

which we refer only as necessary to explain our decision to affirm. 233 For substantially the reasons stated in the District Court’s July 21, 2020 1

opinion and order, we conclude that the District Court did not abuse its 2

discretion in concluding that Altahawi failed to establish that the potential tax 3

consequences under the consent judgment provide a basis for relief in this case 4

under Rule 60(b)(5) or Rule 60(b)(6). In particu lar, we see no abuse of discretion 5

in the District Court’s determination that the potentially unfavorable tax 6

treatment about which Altahawi complains, including the creation of a Fair Fund 7

pursuant to Section 308( a ) of the Sarbanes

- Oxley Act of 2002, 15 U.S.C. § 7246, 8

did not constitute a significant change in circumstance s under Rule 60(b)(5) 9

warranting an alteration of the consent judgment, which specifically anticipated 10

that the SEC might establish such a fund

. App’x 117 (the SEC “ may propose a 11

plan to distribute the Fund subject to the Court's approval ”) ; see Barcia v. Sitkin

, 12

367 F.3d 87, 99 (2d Cir. 2004) ; Rufo v. Inmates of Suffolk C n ty. Jail , 502 U.S. 367, 13

385 (1992) (“Ordinarily

. . . modification [of a consent decree] should not be 14

granted where a party relies upon events that actually were anticipated at the 15

time it entered into a decree.”)

. 16

174 We have considered Altahawi’s remaining arguments and conclude that 1

they are without merit. For the foregoing reasons, the order of the District Court 2

is AFFIRMED. 3

FOR THE COURT: 4

Catherine O’Hagan Wolfe, Clerk of Court 5

6