-JCG Securities and Exchange Commission v. LADP Acquisition, Inc. et al, No. 2:2010cv06835 - Document 70 (C.D. Cal. 2011)

Court Description: ORDER by Judge R. Gary Klausner: granting 62 Plaintiff Securities and Exchange Commission Motion for Summary Judgment as to Defendants LAPD, Acquisition Inc., William A Goldstein and Marc E Bercoon. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants and Defendants officers, agents, servants, employees, attorneys-in fact, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrai ned and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, by using any means or instru mentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue state ment of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business whi ch operates or would operate as a fraud or deceit upon any person. Defendants otherwise are permanently restrained and enjoined from violating Section 5 of the Securities Act. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants are jointly a nd severally liable for disgorgement of $3,192,735, which represents profits gained in connection with the Defendants offering of securities as alleged in the Complaint, and prejudgment interest thereon of $267,477.61, for a total of $ 3,460,212.61. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Goldstein shall pay a third tier civil penalty in the amount of $150,000 and Defendant Bercoon shall pay a third tier civil penalty in the amount of $150,000 pursuant to Section 20(d) of the Securities Act. This Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. (shb)

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-JCG Securities and Exchange Commission v. LADP Acquisition, Inc. et al Doc. 70 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, 13 14 15 16 17 v. LADP ACQUISITION, INC.; WILLIAM A. GOLDSTEIN and MARC E. BERCOON, Defendants. Case No. CV 10-6835 RGK (JCGx) ORDER GRANTING MOTION BY PLAINTIFF SECURITIES AND EXCHANGE COMMISSION FOR SUMMARY JUDGMENT AND FINAL JUDGMENT AS TO DEFENDANTS LADP ACQUISITION, INC.; WILLIAM A. GOLDSTEIN AND MARC E. BERCOON 18 19 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 This matter having come before the Court on Plaintiff Securities and 2 Exchange Commission’s Motion For Summary Judgment As To Disgorgement 3 And Civil Penalties Against Defendants LADP Acquisition, Inc., William A. 4 Goldstein, And Marc E. Bercoon; the Defendants previously having admitted the 5 Court’s jurisdiction over each of them and over the subject matter of this action 6 and consented to the entry of a Judgment Of Permanent Injunction And Other 7 Relief as to each of them, which Judgments were entered as to each of the 8 Defendants (Docket Nos. 52-54); and the Court having considered the motion by 9 the Securities and Exchange Commission (“Commission”), and all papers and 10 arguments submitted regarding that motion: 11 I. 12 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the 13 Commission’s Motion For Summary Judgment As To Disgorgement And Penalties 14 Against Defendants LADP Acquisition, Inc., William A. Goldstein, And Marc E. 15 Bercoon is GRANTED. II. 16 17 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that 18 Defendants and Defendants’ officers, agents, servants, employees, attorneys-in- 19 fact, and all persons in active concert or participation with them who receive actual 20 notice of this Final Judgment by personal service or otherwise are permanently 21 restrained and enjoined from violating, directly or indirectly, Section 10(b) of the 22 Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78j(b), and 23 Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, by using any means or 24 instrumentality of interstate commerce, or of the mails, or of any facility of any 25 national securities exchange, in connection with the purchase or sale of any 26 security: 27 (a) to employ any device, scheme, or artifice to defraud; 28 (b) to make any untrue statement of a material fact or to omit to state a 1 1 material fact necessary in order to make the statements made, in the 2 light of the circumstances under which they were made, not 3 misleading; or 4 (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. 5 III. 6 7 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that 8 Defendants and Defendants’ officers, agents, servants, employees, attorneys-in- 9 fact, and all persons in active concert or participation with them who receive actual 10 notice of this Final Judgment by personal service or otherwise are permanently 11 restrained and enjoined from violating Section 17(a) of the Securities Act of 1933 12 (the “Securities Act”), 15 U.S.C. § 77q(a), in the offer or sale of any security by 13 the use of any means or instruments of transportation or communication in 14 interstate commerce or by use of the mails, directly or indirectly: 15 (a) to employ any device, scheme, or artifice to defraud; 16 (b) to obtain money or property by means of any untrue statement of a 17 material fact or any omission of a material fact necessary in order to 18 make the statements made, in light of the circumstances under which 19 they were made, not misleading; or 20 21 22 (c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. IV. 23 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that 24 Defendants and Defendants’ officers, agents, servants, employees, attorneys-in- 25 fact, and all persons in active concert or participation with them who receive actual 26 notice of this Final Judgment by personal service or otherwise are permanently 27 restrained and enjoined from violating Section 5 of the Securities Act, 15 U.S.C. 28 § 77e, by, directly or indirectly, in the absence of any applicable exemption: 2 1 (a) Unless a registration statement is in effect as to a security, making use 2 of any means or instruments of transportation or communication in 3 interstate commerce or of the mails to sell such security through the 4 use or medium of any prospectus or otherwise; 5 (b) Unless a registration statement is in effect as to a security, carrying or 6 causing to be carried through the mails or in interstate commerce, by 7 any means or instruments of transportation, any such security for the 8 purpose of sale or for delivery after sale; or 9 (c) Making use of any means or instruments of transportation or 10 communication in interstate commerce or of the mails to offer to sell 11 or offer to buy through the use or medium of any prospectus or 12 otherwise any security, unless a registration statement has been filed 13 with the Commission as to such security, or while the registration 14 statement is the subject of a refusal order or stop order or (prior to the 15 effective date of the registration statement) any public proceeding or 16 examination under Section 8 of the Securities Act, 15 U.S.C. § 77h. 17 V. 18 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that 19 Defendants are jointly and severally liable for disgorgement of $3,192,735, which 20 represents profits gained in connection with the Defendants’ offering of securities 21 as alleged in the Complaint, and prejudgment interest thereon of $267,477.61, for a 22 total of $3,460,212.61. Defendants shall satisfy this obligation by paying 23 $3,460,212.61 within 14 days after entry of this Final Judgment by certified check, 24 bank cashier’s check, or United States postal money order payable to the Clerk of 25 this Court, together with a cover letter identifying the Defendant as a defendant in 26 this action; setting forth the title and civil action number of this action and the 27 name of this Court; and specifying that payment is made pursuant to this Final 28 Judgment. Defendant shall simultaneously transmit photocopies of such payment 3 1 and letter to the Commission’s counsel in this action. By making payments 2 pursuant to this Final Judgment, the Defendants relinquish all legal and equitable 3 right, title, and interest in such funds, and no part of the funds shall be returned to 4 the Defendants. Pursuant to Local Rule 67-1, the Clerk shall deposit the funds into 5 an interest bearing account. These funds, together with any funds paid by any 6 financial institution or brokerage firm pursuant to paragraph VI of this Final 7 Judgment in partial satisfaction of this Final Judgment, and any interest and 8 income earned thereon (collectively, the “Fund”), shall be held in the interest 9 bearing account until further order of the Court. In accordance with Local Rule 10 67-2, the Clerk is authorized and directed, without further order of this Court, to 11 deduct from the income earned on the money in the Fund a fee not to exceed the 12 amount prescribed by the Judicial Conference of the United States. The 13 Commission may propose a plan to distribute the Fund subject to the Court’s 14 approval. Defendants shall pay post-judgment interest on any delinquent amounts 15 pursuant to 28 U.S.C. § 1961. 16 17 VI. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, except 18 as otherwise ordered by this Court, the previously ordered freeze placed on all 19 monies and assets (with an allowance for necessary and reasonable living expenses 20 to be granted only upon good cause shown by application to the Court with notice 21 to and an opportunity for the Commission to be heard) in all accounts at any bank, 22 financial institution or brokerage firm, all certificates of deposit, and other funds or 23 assets, held in the name of, for the benefit of, and/or over which account authority 24 is held by any of the Defendants or any entity affiliated with any of the 25 Defendants, remains in full force and effect, except to the extent that all funds and 26 assets held in any such accounts shall be disgorged by the financial institution or 27 brokerage firm holding the account in partial satisfaction of this Final Judgment, 28 such accounts including but not limited to, the accounts set forth below: 4 1 Institution Account name/signatories Account number 2 Alpha Bank and Trust Marc E. Bercoon Account number unknown Bank of North Georgia JCN Holdings, Inc. 00100001767 Bank of North Georgia William A. Goldstein C. John Dean 100019090 Mesirow Financial Marc E. Bercoon Account number unknown Mesirow Financial Marc E. Bercoon IRA 88016593 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) Marc E. Bercoon 820-03610 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) Marc E. Bercoon 832-00867 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) WAG Holdings LLC 832-00814 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) William A. Goldstein 820-03936 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) William A. Goldstein 815-01513 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) William A. Goldstein 832-00323 William A. Goldstein 832-00322 25 RBC Wealth Management (fka RBC Dain, fka Reliance Securities LLC) 26 Suntrust Bank Find.com Acquisition Inc. 1000096485494 27 Suntrust Bank Marc E. Bercoon Rhonda Bercoon 8815069235 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 28 5 1 Institution Account name/signatories Account number 2 Suntrust Bank Marc E. Bercoon 0008815069243 3 Suntrust Bank NPORTA Inc. 0008801042733 4 TD Ameritrade Marc E. Bercoon Account number unknown Wells Fargo Bank NA (fka Wachovia Bank) Find.com Acquisition Inc. 20000043566570 6 7 Wells Fargo Bank NA (fka Wachovia Bank) HMRZ Consulting 2000032231382 Wells Fargo Bank NA (fka Wachovia Bank) IBAR Management Group 2000042167912 Wells Fargo Bank NA (fka Wachovia Bank) LADP Acquisition Inc. 2000043566936 Wells Fargo Bank NA (fka Wachovia Bank) LADP Acquisition Inc. 2000044678506 Wells Fargo Bank NA (fka Wachovia Bank) LADP LLC 2000043566172 Wells Fargo Bank NA (fka Wachovia Bank) LADP LLC 2000057392536 Wells Fargo Bank NA (fka Wachovia Bank) Marc E. Bercoon 1010287139149 18 Wells Fargo Bank NA (fka Wachovia Bank) Marc E. Bercoon William A. Goldstein 1100005945328 19 Marc E. Bercoon 3000209898489 20 Wells Fargo Bank NA (fka Wachovia Bank) 21 Wells Fargo Bank NA (fka Wachovia Bank) Marc E. Bercoon 4737023988168328 Wells Fargo Bank NA (fka Wachovia Bank) RA Rothman William A. Goldstein 1010258391709 Wells Fargo Bank NA (fka Wachovia Bank) SEO Holdings LLC 2000043566392 Wells Fargo Bank NA (fka Wachovia Bank) SEO Holdings LLC 4828802619087019 Wells Fargo Bank NA (fka Wachovia Bank) SEO Holdings LLC 4828803051909017 5 8 9 10 11 12 13 14 15 16 17 22 23 24 25 26 27 28 6 1 Institution Account name/signatories Account number 2 Wells Fargo Bank NA (fka Wachovia Bank) Willfind LLC 20000042167705 Wells Fargo Bank NA (fka Wachovia Bank) William A. Goldstein Ray Alyssa Rothman 3000218306593 3 4 5 6 The financial institutions and/or brokerage firms shall comply with this Final 7 Judgment by paying any funds held, and by liquidating any securities held and 8 paying all proceeds from such liquidation, within 14 days after notice of entry of 9 this Final Judgment, by certified check, bank cashier’s check, or United States 10 postal money order payable to the Clerk of the Court, together with a cover letter 11 identifying the account number from which the funds are being paid and the 12 account name(s); setting forth the title and civil action number of this action and 13 the name of this Court; and specifying that payment is made pursuant to this Final 14 Judgment. The financial institution and/or brokerage firm shall simultaneously 15 transmit photocopies of such payment and letter to the Commission’s counsel in 16 this action. As set forth in paragraph V of this Final Judgment, any payments 17 made pursuant to this paragraph shall be included in the Fund, and held in an 18 interest bearing account until further order of the Court. Notice of entry of this 19 Final Judgment may be effected by the Commission causing delivery of a copy of 20 the Final Judgment to the financial institution or brokerage firm by United States 21 mail, overnight delivery service, email, telefacsimile or hand delivery. 22 VII. 23 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that 24 Defendant Goldstein shall pay a third tier civil penalty in the amount of $150,000 25 and Defendant Bercoon shall pay a third tier civil penalty in the amount of 26 $150,000 pursuant to Section 20(d) of the Securities Act, 15 U.S.C. § 77t(d), and 27 Section 21(d)(3) of the Exchange Act, 15 U.S.C. § 78u(d)(3). Defendants 28 Goldstein and Bercoon shall each make their required payment within 14 days 7 1 after entry of this Final Judgment by certified check, bank cashier’s check, or 2 United States postal money order payable to the Securities and Exchange 3 Commission. The payment shall be delivered or mailed to the Office of Financial 4 Management, Securities and Exchange Commission, Operations Center, 6432 5 General Green Way, Mail Stop 0-3, Alexandria, Virginia 22312, and shall be 6 accompanied by a letter identifying the respective defendant making the payment 7 and identifying him as a defendant in this action; setting forth the title and civil 8 action number of this action and the name of this Court; and specifying that 9 payment is made pursuant to this Final Judgment. A copy of the letter and 10 payment shall be simultaneously served on counsel for the Commission in this 11 action. Defendants shall pay post-judgment interest on any delinquent amounts 12 pursuant to 28 U.S.C. § 1961. The Commission shall remit the funds paid pursuant 13 to this paragraph to the United States Treasury. 14 VIII. 15 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this 16 Court shall retain jurisdiction of this matter for the purposes of enforcing the terms 17 of this Final Judgment. IX. 18 19 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, there 20 being no just reason for delay, the Clerk of the Court is hereby directed, pursuant 21 to Rule 54(b) of the Federal Rules of Civil Procedure, to enter this Final Judgment 22 forthwith. 23 24 25 DATED: August 30, 2011 ___________________________________ HONORABLE R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE 26 27 28 8

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