Top state court tosses out right to sue 'abettors'

Law allows recovery from perpetrator only
2013-02-23T00:00:00Z Top state court tosses out right to sue 'abettors'Howard Fischer Capitol Media Services Arizona Daily Star
February 23, 2013 12:00 am  • 

PHOENIX - The Arizona Supreme Court unanimously ruled Friday that there is no longer a right in this state to sue someone for aiding and abetting others in defrauding people.

The justices said a strict reading of the wording of the Arizona Securities Act says it can be used only against those who "directly participated in the scheme."

State Attorney General Tom Horne said the ruling will make it harder to recover what has been stolen.

"Usually it's these other firms that have assets," Horne said. "Very often, the actual perpetrator doesn't have any assets left."

Friday's ruling overturns the precedent the court set more than 30 years ago when it interpreted the exact same law.

But Justice John Pelander, writing the new decision, pointed out that the U.S. Supreme Court, in a 1994 ruling, said victims cannot use the federal Securities Exchange Act to sue those who do not themselves engage in manipulative or deceptive practices but only assist others in doing that.

Pelander said this case was the first to reach the Arizona Supreme Court since that ruling. He said the Arizona law "tracks the language" of federal law. Based on that, Pelander and his colleagues concluded the 1979 Arizona decision allowing such suits is no longer good law.

Horne said Friday's ruling puts the issue into the hands of state lawmakers. He said it is up to them whether to add the words to the Arizona Securities Act that Pelander said are missing.

Rebecca Wilder, spokeswoman for the Arizona Corporation Commission, which regulates securities in the state, said staffers are still studying the ruling for its implications.

But the commission was so concerned about the issue that its attorneys filed their own legal pleadings with the state's high court asking the justices to leave Arizona case law the way it was, calling it "critical for investor protection."

"It allows injured investors the possibility to recover against those who assisted in harming them," wrote commission attorney Julie Coleman. "Furthermore, secondary liability, including aider-abettor liability, for violations of the (state) act plays an important role in the commission's own enforcement actions."

Coleman said there are several prime examples of how investors will be hurt.

One involves the failure of Baptist Foundation of Arizona.

Lawsuits in that case involved claims that the foundation operated a Ponzi scheme, enticing new investors while using that money to make it look as if its holders were secure. The foundation eventually declared bankruptcy in 1999 after the commission ordered it to stop selling investments.

The accounting firm of Arthur Andersen was accused of helping the foundation misrepresent its financial condition by giving it a clean bill of health.

In a 2002 deal, the accounting firm agreed to pay a record $217 million to settle all claims against it by the state and investors in the failure of the foundation.

That deal also required two top officers at Andersen's Arizona operations to give up their accounting licenses. And it required that the Phoenix office be monitored for two years at company expense.

In another case, the commission went after attorney Gregory Groh in 2007, saying he aided and abetted in the sale of unregistered securities to his law clients by an insurance salesman and American Elder Group.

Coleman said Groh allowed the salesman to go to the homes of his estate planning clients under the guise of being a paralegal. Then Groh authorized the salesman to offer annuities and other insurance products to his law clients in exchange for a commission.

"Usually it's these other firms that have assets. Very often, the actual perpetrator doesn't have any assets left."

Tom Horne

attorney general

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