Securities and Exchange Commission v. Thurlow
- Vernon Broderick
- 1:21-cv-07700
- U.S. District Court · Southern District of New York
- 4
In Securities and Exchange Commission v. Thurlow, Judge Broderick granted Bradley Fidler’s requests to proceed based on indigence and for the court to seek volunteer counsel.
Defendant Bradley Fidler received permission to proceed based on indigence and the court’s request for volunteer counsel. The Office of Pro Se Litigation was directed to search for an attorney, but the court did not itself appoint one.
What happened
In Securities and Exchange Commission v. Thurlow, the Securities and Exchange Commission’s complaint alleges that Bradley Fidler used fraudulently backdated debt instruments, converted debt into shares, sold the shares without registering them, and directed some proceeds to his father, R. Fidler.
Bradley Fidler asked to proceed based on his inability to afford counsel and asked the court to seek a volunteer lawyer. Judge Broderick found that Fidler was indigent and that the allegations were serious, complex, and likely to involve conflicting evidence and difficult discovery.
Judge Vernon S. Broderick granted both requests. The court directed its Office of Pro Se Litigation to seek a volunteer attorney for Fidler through the remaining pretrial proceedings, settlement discussions, pretrial motions, and trial; the order did not itself appoint an attorney.
The detailed version
- Securities and Exchange Commission v. Thurlow · No. 1:21-cv-07700
- Vernon Broderick
- Feb. 7, 2025
Background
Defendant B. Fidler asked to proceed in forma pauperis, meaning under a procedure for a person unable to afford counsel, and asked the court to request volunteer, or pro bono, counsel in this Securities and Exchange Commission civil enforcement action. The complaint alleges that B. Fidler obtained debt issued by a company described as a “shell company,” using fraudulently backdated debt instruments; converted the debt into shares; obtained an attorney letter based on misrepresentations that the shares could be freely traded; sold the shares without registering them with the Securities and Exchange Commission; and funneled some proceeds to R. Fidler, his father.
The complaint alleges violations of Sections 5(a) and 5(c) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5, and Section 17(a) of the Securities Act. It also alleges that B. Fidler aided and abetted violations by other defendants.
Legal standard
The court explained that federal law permits a court to request an attorney to represent a person who cannot afford counsel, but does not require courts to provide counsel in civil cases. The court also explained that it may request, but cannot itself appoint, an attorney under this statute, and that volunteer counsel must be requested sparingly because courts have no funds to pay attorneys in these civil matters.
Under the factors established by the Court of Appeals for the Second Circuit, a person must first show indigence and that the claims appear likely to be substantial. The court then considers matters such as the person’s ability to investigate important facts, whether conflicting evidence will make cross-examination important, the person’s ability to present the case, the complexity of the legal issues, and whether counsel would be more likely to produce a fair result.
Court’s analysis
Judge Vernon S. Broderick found that B. Fidler’s application demonstrated indigence. The court also found that the allegations appeared likely to be substantial because they involved serious securities-law violations requiring substantial effort to defend.
The court further found that the case raised questions about the extent to which R. Fidler directed B. Fidler’s alleged unlawful conduct, making cross-examination potentially important. The complexity of the Securities and Exchange Commission’s allegations, the number of defendants, and B. Fidler’s possible need for assistance responding to discovery requests also supported seeking volunteer counsel.
Disposition
The court granted B. Fidler’s request to proceed in forma pauperis and granted his application for the court to request pro bono counsel. The Office of Pro Se Litigation was directed to request and search for a volunteer attorney to represent B. Fidler through the remainder of general pretrial proceedings overseen by Magistrate Judge Sarah Netburn, including discovery, settlement negotiations, pretrial motions, and trial.
The order did not decide whether the Securities and Exchange Commission’s allegations were ultimately proven. The Clerk of Court was directed to terminate the pending motions at Documents 135 and 136 and mail the order to B. Fidler.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.