Case 0:08-cv-60870-PCH Document 67

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. 06-20975-CIV-HUCK-SIMONTON SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v.
JOHN P. UTSICK, et a!., Defendants. _____________________________/

MICHAEL I.. GOLDBERG, as Receiver for Worldwide Entertainment, Inc., The Entertainment Group Fund, Inc., American Enterprises, Inc., and Entertainment Funds, Inc., Plaintiffs, vs. MICHAEL J. MALIK, SR.,

Case No. 08-CV-60870-Huck-Rosenbaum

Defendant. ________________________________________________/ RECEIVER'S MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT REGARDING FRAUDULENT TRANSFERS, TO DISMISS CASE, AND INCORPORATED MEMORANDUM OF LAW Michael I. Goldberg (the "Receiver"), in his capacity as the court-appointed Receiver for Worldwide Entertainment, Inc. ("Worldwide"), The Entertainment Group Fund, Inc. ("TEGFI"), American Enterprises, Inc. ("AEI"), and Entertainment Funds, Inc. ("EFI"), by and through undersigned counsel, files this Motion for Approval of Settlement Agreement between the Receiver

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and Defendant Michael J. Malik, Sr.. In support of this motion, the Receiver states as follows: I. Facts The Appointment and Powers of the Receiver 1. On April 17, 2006, the Securities and Exchange Commission ("SEC") commenced this action in the United States District Court for the Southern District of Florida (the "Court") against Worldwide, TEGFI, AEI and EFI (collectively referred to as the "Receivership Entities"), and their principals, John P. "Jack" Utsick, Robert Yeager and Donna Yeager. The SEC alleged violations of the anti-fraud and registration provisions of the federal securities laws and sought an injunction against their further violation. 2. By Order dated April 20, 2006 (the "Receivership Order"), the Court appointed Michael I. Goldberg as receiver over the Receivership Entities. Under the terms of the Receivership Order, the Receiver is authorized to investigate the affairs of the Receivership Entities, to marshal and safeguard these entities' assets, and to institute legal proceedings for the benefit and on behalf of the Receivership Entities' investors and other creditors against individuals or entities which the Receiver claims have improperly received funds traceable from investors in the Receivership Entities, including but not limited to actions seeking constructive trusts, disgorgement of profits and recovery and avoidance of fraudulent transfers under Florida Statute § 726.101, et seq. or otherwise. II. The Nature of the Receiver’s Claims Against Malik 3. The Receiver contends that Malik improperly received fraudulent transfers totaling $620,000 traceable from other investors of the Receivership Entities and the Receiver seeks to avoid the Transfers pursuant to Florida's Uniform Fraudulent Transfer Statute. Fla. Stat. §726.01 et. seq. Substantial discovery was taken in this case including depositions of Malik, William

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Sewer, Esq. (Malik’s transactional attorney, who documented loans from Malik to Utsick), Bruce Glatman (the person who introduced Malik to Utsick), the Receiver, and the Receiver’s experts. III. 4. The Proposed Settlement The settlement terms are summarized in Exhibit A, which includes the following information concerning the settlement: Column 1 – The Defendant(s).1 Column 2 – Notation if lawsuit was filed.2 Column 3 - Amount of Receiver's claim.3 Column 4 - Amount of settlement. Column 5 – Portion of settlement proceeds paid at time of filing Motion. Column 6 – Defendant's outstanding balance due to Receiver, if any. Column 7 – Notes, including payment terms, regarding any outstanding balance due to Receiver. IV. 11. Receiver's Settlement Considerations In determining whether to settle with a particular Defendant, the Receiver considered

various factors including without limitation: i) the Defendant's ability to pay; ii) whether the payments were Profits or Commissions; iii) the lapse of time from the date of the payments until the demand (i.e. statute of limitations); iv) the Defendant's lack of knowledge of alleged wrongdoing by the Receivership Entities or their principals; v) the ability of the Receiver to set-off the claims of related persons against the amount demanded by the Receiver; vi) the costs and risks of litigation; and, vii) the dollar amounts involved. 12. The Receiver believes, in his sound business judgment, that the settlement is in the

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best interests of the estates of the Receivership Entities and their creditors and urges the Court to approve the settlement. V. Memorandum of Law The Court has broad powers and wide discretion to determine relief in an equity receivership. SEC v. Elliott, 953 F.2d 1560, 1566 (11th Cir. 1992). The right of a receiver to settle claims and compromise actions with the approval and sanction of the court is well recognized. O'Neal v. General Motors Corporation, 841 F.Supp. 391, 398 (M.D. Fla. 1993). The Receivership Order specifically authorizes the Receiver to, among other things: "Defend, compromise or settle legal actions . . . in which the Defendants or the Receiver is a party, commenced either prior to or subsequent to this Order, with authorization of this Court…" See ¶ 6 of the Receivership Order. Accordingly, the Receiver seeks approval of this Court to enter into the Settlement Agreement with the Defendant. The Receiver believes the Settlement Agreement is in the best interest of the parties and the Receivership Entities’ estates. Moreover, the Receiver entered into the settlement in good faith following an analysis of the merits of the case, the defenses, the potential costs of litigation and the impact on the resources of the Receivership Entities’ estates. WHEREFORE, the Receiver respectfully requests this Court (i) enter an Order approving the terms and conditions of the Settlement Agreement; (ii) reserve jurisdiction to enforce the terms of the Settlement Agreement; and (iii) grant such other relief as is just and proper. LOCAL RULE 7.1 CERTIFICATION OF COUNSEL Pursuant to Local Rule 7.1, undersigned counsel hereby certifies that the Receiver has conferred or attempted to confer with counsel on the attached service list and has not received a response or an objection to this motion at the time it was filed. Counsel for Malik takes no position on the motion. Counsel for the SEC has no opposition to this motion.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served on the Clerk of Court, via CM/ECF, which will send a Notice of Electronic Filing to the parties on the service list attached below, this 28st day of April, 2009. By: s/ Jeffrey R. Sonn Jeffrey R. Sonn, Esquire Florida Bar Number: 773514 SONN & EREZ Attorneys for Plaintiff Broward Financial Centre 500 E. Broward Boulevard, Suite 1600 Fort Lauderdale, Florida 33394 Telephone: (954) 763-4700 Facsimile: (954) 763-1866

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SERVICE LIST

David R. Chase Florida Bar No 967970 David R. Chase, P.A. 1700 East Las Olas Blvd., Penthouse 2 Ft. Lauderdale, FL 33301 Local Counsel for John P. (Jack) Utsick Telephone : (954) 920-7779 Facsimile: (954) 923-5622 david@davidchaselaw.com Counsel for Utsick Abraham Singer, Esq. Pepper hamilton LLP 100 Renaissance Center, Suite 1600 Detroit, MI 48243 singera@pepperlaw.com Counsel for Malik

Robert Kent Levenson Securities & Exchange Commission 800 Brickell Avenue, Suite 1800 Miami, FL 33131 Telephone : (305) 982-6341 Facsimile: (305)536-4154 levensonr@sec.gov Counsel for the SEC

Richard Aldo Serafini, Esq. Katherine A. Compton, Esq. Avi Benayoun, Esq. Greenberg Traurig 401 E. Las Olas Blvd, Suite 2000 Ft. Lauderdale, FL 33301 954-768-8256 Fax: 954-765-1477 serafinir@gtlaw.com Counsel for the Yeagers and AEI

Richard S. Kraut Dilworth Paxson LLP 655 15th Street NW Suite 810 Washington, DC 20005 Telephone : (202) 466-9152 Facsimile: (202) 452-0930 rkraut@dilworthlaw.com Counsel for Jack Utsick

Teresa Jacqueline Verges Yolanda Gonzalez Andre Zamorano Securities & Exchange Commission 801 Brickell Avenue, Suite 1800 Miami, FL 33131 vergest@sec.gov gonzalezlm@sec.gov zamoranoa@sec.gov Counsel for Plaintiff

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Howard J. Berlin, Esq. Kluger Peretz, Kaplan, et al. 201 South Biscayne Blvd. - 17th Floor Miami, FL 33131 305-379-9000 Fax: 305-379-3428 hberlin@kpkb.com Counsel for Receiver

David M. Levine, Esq. Tew Cardenas, LLP Four Seasons Tower, 15th Floor 1441 Brickell Avenue Miami, FL 33131-3407 305-536-1112 Fax: 305-536-1116 dml@tewlaw.com Counsel for First Source Bank

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Exhibit “A”

Defendant

Lawsuit?

Claim

Settlement

Payme nts Yet? No

Balance Due $170,000

Payment Terms Payments over one year beginning May 1, 2009, Judgment for $620,000 less payments if not made.

Michael J. Malik

Yes

$620,000

$170,000

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

MICHAEL I.. GOLDBERG, as Receiver for Worldwide Entertainment, Inc., The Entertainment Group Fund, Inc., American Enterprises, Inc., and Entertainment Funds, Inc., Plaintiffs, vs. MICHAEL J. MALIK, SR., Defendant. ________________________________________________/ ORDER OF DISMISSALWITH PREJUDICE, AND ORDER GRANTING RECEIVER'S MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT WITH MICHAEL J. MALIK THIS MATTER came before the Court without hearing, on the Motion for Approval of Settlement Agreement with Michael Malik, Sr. Regarding Fraudulent Transfers (the "Settlement Motion") filed by Michael I. Goldberg, the Court appointed Receiver (the "Receiver"). The Court, having reviewed the Settlement Motion and its attachment, finding that the Receiver has exercised his business judgment in entering into the settlement, and being otherwise fully advised in the premises, it is: Case No. 08-CV-60870-Huck-Rosenbaum

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Case No. 08-CV-60870-Huck-Rosenbaum ORDERED AND ADJUDGED that 1. 2. The Settlement Motion is GRANTED. The Receiver is authorized to enter into the settlement summarized in Exhibit A

to the Settlement Motion, and is further authorized to execute any documents and take any actions reasonably necessary to consummate the transactions contemplated therein. 3. This case is DISMISSED WITH PREJUDICE, the parties shall bear their own

respective attorney’s fees and costs in this action. All pending motions, if any, are denied as moot. The Court reserves jurisdiction to enforce the terms of the settlement between the parties.. DONE AND ORDERED in Miami-Dade County, Florida on this ____ day of _______, 2009.

_______________________________ UNITED STATES DISTRICT JUDGE

Conformed copies to: All counsel of record

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