Tue07222014

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Judge rules against local businessman in Ponzi-like case

After a year of back-and-forth, a judge concluded this week that Los Altos resident Mark Feathers and his company, Small Business Capital Corp., violated federal securities and exchange laws.

U.S. District Judge Edward J. Davila accepted Securities and Exchange Commission evidence that because of fraud and mismanagement, SB Capital’s 400 investors have lost approximately 25 percent of the $42 million they invested.

In an order filed Friday, Davila granted the SEC’s request for a summary judgment and denied Feathers’ competing request for the same. He ordered the “disgorgement of ill-gotten gains” and set a hearing date Oct. 22 to consider “what remedies are to be granted and in what amounts.”

A court renders a summary judgment when a judge finds no genuine dispute as to any material fact – in other words, when evidence appears so conclusive as to not require a full trial. Representing himself and his company, Feathers had to show what Davila called a “genuine issue for trial.” In his order, Davila laid out why Feathers’ submissions to the court did not meet that standard and discussed to what extent the court had to cut Feathers some slack – to “liberally construe” his submissions – because he represented himself without a lawyer. Evidence submitted to the court must include affidavits or “other evidentiary material,” and Davila described Feathers’ submissions as falling short of that standard.

“I have been outnumbered by a large margin in the manpower necessary to present facts, never mind putting them into the right legal framework,” Feathers told the Town Crier in an email.

He wrote to investors that he would appeal the judgment.

Investors, many of them Los Altos residents, bought into two mortgage investment funds Feathers managed from an office on San Antonio Road. The SEC contended that Feathers transferred money from the funds to pay expenses and make cash distributions to investors that masqueraded as “returns on investment,” maintaining an illusion of profitability.

SEC attorney John Bulgozdy described the process of using investor money to pay returns as “Ponzi-like.” Feathers maintained that because he disclosed the loans and transfers to investors, his actions were aboveboard and not in fact evidence of fraud and misrepresentation.

Feathers submitted hundreds of documents including SB Capital paperwork and emails to the court, but Davila wrote that Feathers didn’t indicate with sufficient specificity what he believed they proved – “It is not the task of the court to comb through the record in search of genuine issue of triable fact.”

In his order, Davila referenced testimony from an auditor and a consultant suggesting that Feathers loaned himself money from the funds, then documented it in a way that made the business appear to still be generating profit.

Davila had to weigh whether a “reasonable investor” might have made a different decision with his or her money if he or she had known about the loans and money transfers at SB Capital. He concluded, based in part on declarations two investors made to the SEC, that investors might have withdrawn their investments if they had known what the company was doing.

Davila declared that Feathers’ accounting demonstrated an intent to deceive or, at a minimum, “extreme recklessness in his management of the (f)unds.”

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