SEC v. Capital Consultants LLC (Appeal of Distribution Plan)

The following case effects the rights of claimants in a distribution plan to file an appeal.

– Phil Stenger

SEC v. Capital Consultants LLC 453 F.3d 1166 (9th Cir. 2006) is a case of first impression in the Ninth Circuit, addressing the appealabillity of an order finally determining the rights of some, but not all, claimants to a receivership distribution plan. The Ninth Circuit determined that such orders are not appealable as collateral orders [rejecting the holdings of the Sixth Circuit in SEC v. Basic Energy & Affiliated Resources, Inc., 273 F.3d 657, 665-67 (6th Cir. 2001), and the Fifth Circuit in SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325, 33031 (5th Cir. 2001)], but can be appealed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure if but only if the requirements of that Rule (an express determination by the district court that “no just reason for delay exists” coupled with the entry of judgment) are satisfied.