Case 2:11-cv-01165-BSJ Document 2565 Filed 05/28/15 Page 1 of 7 Barry N. Johnson (6255) Brigman L. Harman (12538) Eric Boyd Vogeler (12707) BENNETT TUELLER JOHNSON & DEERE 3165 E. Millrock Dr., Suite 500 Salt Lake City, Utah 84121 Telephone: (801) 438-2000 Facsimile: (801) 438-2050 bjohnson@btjd.com; bharman@btjd.com; evogeler@btjd.com Attorneys for Sean Hansen IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, SEAN HANSEN S OBJECTION TO THE RECEIVER S MAY 14, 2015 CLAIMS ANALYSIS REPORT vs. MANAGEMENT SOLUTIONS, INC., a Texas Corporation; WENDELL A. JACOBSON; ALLEN R. JACOBSON, Case No. 2:11-cv-01165 Judge Bruce S. Jenkins Defendants. Sean Hansen ( Hansen ), by and through the undersigned counsel, herein submits his Objection to the Receiver s May 14, 2015 Claims Analysis Report. For the reasons set forth herein, the Court should disregard the proposed Claims Analysis Report (the Report ) and order the Receiver to value Hansen s claim at the amount he submitted in September 2014 or, alternatively, reserve sufficient funds to satisfy Hansen claim entirely.
Case 2:11-cv-01165-BSJ Document 2565 Filed 05/28/15 Page 2 of 7 BACKGROUND Hansen s Claim and the Receiver s Proposed Plan 1. On approximately September 2, 2014, Hansen submitted his proposed claim to the Receiver (the Claim ), setting forth the basis of Hansen s Claim and setting the amount claimed at $89,100. See Claim, a true and correct copy of which is attached hereto as Exhibit A. 2. On February 27, 2015, Gil A. Miller, the Court-appointed receiver in this matter (the Receiver ), submitted his proposed Plan, Docket No. 2311-2, together with a Motion for Approval of the Plan (the Plan Motion ), Docket No. 2311. 3. On April 13, 2015, the Court conducted a hearing on the Plan and the Plan Motion (the Plan Hearing ). Docket No. 2458. 4. At the Plan Hearing, the Court noted that contested matters existed and that objections to the Plan had been filed and asked the Receiver how much he had reserved in the way of set-asides for those contested matters, to which the Receiver s counsel indicated the Receiver planned to hold[ ] back approximately $30 million. See Transcript of Plan Hearing, 11:4 10. 5. This amount was again affirmed and reemphasized by the Receiver later in the Plan Hearing. See id. at 27:4 8. 6. At the close of the Plan Hearing, the Court again noted that the Receiver set aside amounts or properties that currently enjoy an existing contest, and that makes sense because those that have a specific interest in either a specific property or a question as to classification or a question as to amount, the [R]eceiver has indicated that they have set aside about 30, $31 million. Id. at 36:9 16. 2
Case 2:11-cv-01165-BSJ Document 2565 Filed 05/28/15 Page 3 of 7 7. The Court ultimately approved the Plan, but in its ruling and order required the Receiver to expressly point out that [the Receiver] ha[d] set aside and ha[d] left for future determinations those contests amongst those who have objected. Id. at 38:25 39:5. 8. On April 14, 2015, the Court entered an Order Granting Motion for Approval of Plan of Distribution, Docket No. 2459. The Claim Analysis Report and Motion to Approve First Distribution 9. On May 14, 2015, the Receiver filed a Motion to Approve Claims Analysis Report and attached his Report as Exhibit A thereto. Docket No. 2522. 10. In the Report, the Receiver valued Hansen s Claim at $0.00, a marked departure from the Claim of $89,100 submitted by Hansen. Docket No. 2522-1 at 8 (declining to value Hansen s claim at all). 11. On that same day, May 14, 2015, the Receiver also filed a Motion to Approve First Distribution (the Distribution Motion ). Docket No. 2523. 12. In the Distribution Motion, the Receiver attached as Exhibit B a document titled First Distribution Reserved Amounts. Docket No. 2523-2. 13. Exhibit B purports to lay out all of the reserved amounts for current contested matters, and indicates that only $22,104,485.72 has been set aside from those amounts. Id. ARGUMENT Hansen objects to the Report and the claim analysis done by the Receiver with regard to his Claim. Specifically, the Receiver has valued Hansen s Claim as $0.00. In conversations with the Receiver, the Receiver has indicated that Hansen s Claim was valued at $0.00 because, as of December 31, 2008, Hansen s capital account contribution to a Management Solutions, Inc. ( MSI ) entity Kulia I Ka Nu u Estates, LLC ( Kulia ) was negative. See Declaration of 3
Case 2:11-cv-01165-BSJ Document 2565 Filed 05/28/15 Page 4 of 7 Sean Hansen ( Hansen Declaration ), attached hereto as Exhibit B, 12. This analysis oversimplifies the value that Hansen brought to Kulia through sweat equity and ignores the plain terms of the Plan. Accordingly, the Court should reject the Report with regard to Hansen, order the Receiver to pay Hansen s Claim at the full amount of $89,100, or, alternatively, order the Receiver to reserve sufficient funds in the receivership estate to satisfy Hansen s claim entirely. By way of brief background, Hansen s company, Edgewise Capital LLC ( Edgewise ), was entitled to a 4% commission of the purchase price of the Hawaii property purchased by Kulia or roughly $240,000. Id. 2 6. Edgewise took 1% of that commission, or $60,000 in cash, which established a value point of the commission. Id. 7. Thereafter, and instead of going through the formality of having Kulia cut a check to Edgewise for the remaining 3% commission (or $180,000) and then investing that amount back into Kulia, Edgewise arranged with Kulia to instead give Edgewise a 3% interest in the Kulia LLC. Id. 8. Edgewise and Hansen continued to work with and for Kulia in various roles of planning and development of the Hawaii property. Id. 9. Thus, like all other investors in MSI entities did, Edgewise invested $180,000 into Kulia. Id. 10. Edgewise never took or otherwise received a distribution related to its ownership interest in Kulia. For his part, Hansen is a 49.5% owner of Edgewise, and is therefore entitled to $89,100 from the receivership estate (49.5% of $180,000). See id. 11; see also Claim. This puts Edgewise, and Hansen, in precisely the same class as the typical MSI investors. Edgewise and Hansen had a discrete and concrete value instead of a cash investment, an account receivable in the amount of the 3% commission still owing to Edgewise from Kulia and invested that value with Kulia. It would elevate form over substance to exclude Hansen s claim (or value it at zero) simply because he and Edgewise opted to forgo the 4
Case 2:11-cv-01165-BSJ Document 2565 Filed 05/28/15 Page 5 of 7 superfluous action of taking the entire amount of the commission owing Edgewise and thereafter reinvesting 3% of that commission amount back into Kulia. Rather, treating this claim on equal footing with other capital investment-based claims is more in line with the kind of equitable valuation and treatment the Receiver has been emphasizing throughout this process. Indeed, any distinction between Hansen and other traditional investors is one without a difference, especially given that Hansen s sweat equity can be objectively measured (unlike other claimants who may make sweat equity claims where their value added is inflated or unknown). The Plan itself leaves ample room for this kind of analysis. It does not limit valuation of Claim Bases to a mere K-1 balance as of a date certain, but also establishes the amount of an Investor s Claim based on principal balances on promissory notes, and other information. Plan, p. 3, 10 (emphasis added). Hansen has provided such other information to the Receiver and is working to get more information if required to allow the Receiver (and ultimately the Court, if necessary) to verify Hansen s Claim Basis as the amount he asserted in his Claim. In light of the above and the information already available and that can be gathered and provided to the Receiver or the Court if necessary, Hansen is entitled to receive at least $89,100. Although this amount may ultimately be subject to revision (up or down) based on further analysis, including analysis of documents Claimant hopes this Court will require the Receiver to produce, it is an amount very different from that proposed by the Receiver. Accordingly, and based on this discrepancy, Hansen objects to the amount of his Claim as determined by the Receiver and set forth in the Claims Analysis and requests that the Court order the Receiver to pay the full amount of his Claim or, alternatively, order the Receiver to set aside sufficient funds to satisfy Hansen s Claim in full should this matter require Court involvement and resolution. 5
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Case 2:11-cv-01165-BSJ Document 2565 Filed 05/28/15 Page 7 of 7 DATED this 28th day of May, 2015. BENNETT TUELLER JOHNSON & DEERE /s/ Eric B. Vogeler Barry N. Johnson Brigman L. Harman Eric Boyd Vogeler Attorneys for Sean Hansen CERTIFICATE OF SERVICE I hereby certify that on this 28th day of May, 2015, I electronically filed the foregoing SEAN HANSEN S OBJECTION TO THE RECEIVER S MAY 14, 2015 CLAIMS ANALYSIS REPORT via the Court s CM/ECF system, which in turn effected service on all counsel of record. /s/ Kenzie Dunn 7
Case 2:11-cv-01165-BSJ Document 2565-1 Filed 05/28/15 Page 1 of 18 EXHIBIT A
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Case 2:11-cv-01165-BSJ Document 2565-2 Filed 05/28/15 Page 1 of 4 EXHIBIT B
Case 2:11-cv-01165-BSJ Document 2565-2 Filed 05/28/15 Page 2 of 4 Barry N. Johnson (6255) Brigman L. Harman (12538) Eric Boyd Vogeler (12707) BENNETT TUELLER JOHNSON & DEERE 3165 E. Millrock Dr., Suite 500 Salt Lake City, Utah 84121 Telephone: (801) 438-2000 Facsimile: (801) 438-2050 bjohnson@btjd.com; bharman@btjd.com; evogeler@btjd.com Attorneys for Sean Hansen IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, DECLARATION OF SEAN HANSEN IN SUPPORT OF OBJECTION TO THE RECEIVER S MAY 14, 2015 CLAIMS ANALYSIS REPORT vs. MANAGEMENT SOLUTIONS, INC., a Texas Corporation; WENDELL A. JACOBSON; ALLEN R. JACOBSON, Defendants. Case No. 2:11-cv-01165 Judge Bruce S. Jenkins 1. I am over the age of 18 and declare that the statements made below are true and accurate to the best of my knowledge. 2. In December 2007 I formed my company, Edgewise Capital LLC ( Edgewise ). 3. In approximately March 2008, Edgewise began the process, together with several other individuals and entities, of purchasing property in the state of Hawaii (the Property ). 4. Over the course of the next several months Edgewise and I conducted due diligence, performed studies, conducted meetings and negotiations, procured financing, and
Case 2:11-cv-01165-BSJ Document 2565-2 Filed 05/28/15 Page 3 of 4 brokered agreements with multiple parties to effect the purchase of the Property and ultimately form Kulia I Ka Nu u Estates, LLC ( Kulia ) as the holding company for the Property. 5. The Property purchase closed in July 2008. 6. As a result of mine and Edgewise s work, the parties involved in the Property purchase agreed that Edgewise was entitled to a 4% commission of the purchase price of the property purchased by Kulia or $240,000. 7. Edgewise took 1% of that commission, or $60,000, in cash on July 11, 2008. 8. Afterward, the Kulia members decided that rather than have Kulia cut a check to Edgewise for the remaining 3% commission (or $180,000) and then investing that amount back into Kulia as a capital contribution, that Kulia would instead give Edgewise a 3% interest in the Kulia LLC. 9. For the next several months, I continued to work with and for Kulia in various roles of planning and development. 10. Edgewise never took or otherwise received a distribution related to its ownership interest in Kulia. 11. I am currently a 49.5% owner of Edgewise. 12. When this matter went into receivership, I submitted my Claim form asserting a 49.5% interest in the $180,000 that Edgewise had contributed to Kulia. 13. In my conversations with the Receiver in this matter, the Receiver has indicated that my Claim was valued at $0.00 because, as of December 31, 2008, my capital account contribution to Kulia was negative. 14. I declare under criminal penalty of the State of Utah that the foregoing is true and correct.
Case 2:11-cv-01165-BSJ Document 2565-2 Filed 05/28/15 Page 4 of 4 EXECUTED on May 28, 2015 /s/ Sean Hansen Sean Hansen (Signed with permission by Eric Boyd Vogeler)