SECURITIES AND EXCHANGE COMMISSION v. ALTAHAWI (2021)

SUMMARY ORDER

Andy Altahawi appeals from the July 21, 2020 order of the United States District Court for the Southern District of New York (Cote, J.), denying his motion under Rule 60(b)(5) and Rule 60(b)(6) of the Federal Rules of Civil Procedure to modify the District Court's June 7, 2019 consent judgment between Altahawi and the Securities and Exchange Commission (SEC). We assume the parties’ familiarity with the underlying facts and prior record of proceedings, to which we refer only as necessary to explain our decision to affirm.

For substantially the reasons stated in the District Court's July 21, 2020 opinion and order, we conclude that the District Court did not abuse its discretion in concluding that Altahawi failed to establish that the potential tax consequences under the consent judgment provide a basis for relief in this case under Rule 60(b)(5) or Rule 60(b)(6). In particular, we see no abuse of discretion in the District Court's determination that the potentially unfavorable tax treatment about which Altahawi complains, including the creation of a Fair Fund pursuant to Section 308(a) of the Sarbanes-Oxley Act of 2002, 15 U.S.C. § 7246, did not constitute a significant change in circumstances under Rule 60(b)(5) warranting an alteration of the consent judgment, which specifically anticipated that the SEC might establish such a fund. App'x 117 (the SEC “may propose a plan to distribute the Fund subject to the Court's approval”); see Barcia v. Sitkin, 367 F.3d 87, 99 (2d Cir. 2004); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 385, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) (“Ordinarily ․ modification [of a consent decree] should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.”).

We have considered Altahawi's remaining arguments and conclude that they are without merit. For the foregoing reasons, the order of the District Court is AFFIRMED.