Securities and Exchange Commission v. Angel Acquisition Corp et al, No. 8:2008cv00880 - Document 45 (C.D. Cal. 2009)
Court Description: FINAL JUDGMENT as to Defendant Florian R Ternes by Judge James V. Selna, Related to: Settlement Agreement 44 . (See Judgment for details) (db)
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Securities and Exchange Commission v. Angel Acquisition Corp et al 1 2 3 4 5 6 7 8 9 10 11 Doc. 45 JOHN E. BIRKENHEIER Email: birkenheierj@sec.gov ANDREA R. WOOD Email: woodar@sec.gov MARGARET GEMBALA NELSON Email: nelsonm@sec.gov U.S. Securities and Exchange Commission 175 W. Jackson Blvd., Suite 900 Chicago, Illinois 60604 Telephone: (312) 353-7390 Facsimile: (312) 353-7398 LOCAL COUNSEL DAVID J. VAN HAVERMAAT, Cal. Bar No. 175761 Email: vanhavermaatd@sec.gov U.S. Securities and Exchange Commission 5670 Wilshire Blvd., 11th Floor Los Angeles, California 90036 Telephone: (323) 965-3998 Facsimile: (323) 965-3908 Attorneys for Plaintiff U.S. Securities and Exchange Commission 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 SECURITIES AND EXCHANGE COMMISSION, 17 Plaintiff, 18 19 20 vs. ANGEL ACQUISITION CORP. et al., Case No. SACV 08-880 JVS (ANx) FINAL JUDGMENT AS TO DEFENDANT FLORIAN R. TERNES Defendants. 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 The Securities and Exchange Commission having filed a Complaint and 2 Defendant Florian R. Ternes (“Defendant”) having entered a general appearance; 3 consented to the Court’s jurisdiction over Defendant and the subject matter of this 4 action; consented to entry of this Final Judgment without admitting or denying the 5 allegations of the Complaint (except as to jurisdiction); waived findings of fact and 6 conclusions of law; and waived any right to appeal from this Final Judgment: 7 I. 8 9 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant 10 and Defendant’s agents, servants, employees, attorneys, and all persons in active 11 concert or participation with them who receive actual notice of this Final Judgment 12 by personal service or otherwise are permanently restrained and enjoined from 13 violating Section 5 of the Securities Act [15 U.S.C. § 77e] by, directly or 14 indirectly, in the absence of any applicable exemption: 15 (a) Unless a registration statement is in effect as to a security, making use 16 of any means or instruments of transportation or communication in 17 interstate commerce or of the mails to sell such security through the 18 use or medium of any prospectus or otherwise; 19 (b) Unless a registration statement is in effect as to a security, carrying or 20 causing to be carried through the mails or in interstate commerce, by 21 any means or instruments of transportation, any such security for the 22 purpose of sale or for delivery after sale; or 23 (c) Making use of any means or instruments of transportation or 24 communication in interstate commerce or of the mails to offer to sell 25 or offer to buy through the use or medium of any prospectus or 26 otherwise any security, unless a registration statement has been filed 27 with the Commission as to such security, or while the registration 28 statement is the subject of a refusal order or stop order or (prior to the 2 1 effective date of the registration statement) any public proceeding or 2 examination under Section 8 of the Securities Act [15 U.S.C. § 77h]. 3 4 5 II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED 6 that Defendant is liable for disgorgement of $259,000, representing profits gained 7 as a result of the conduct alleged in the Complaint, together with prejudgment 8 interest thereon in the amount of $87,014, for a total of $346,014. Based on 9 Defendant’s sworn representations in his Statement of Financial Condition dated 10 September 5, 2008, and other documents and information submitted to the 11 Commission, however, the Court is not ordering Defendant to pay a civil penalty 12 and payment of all disgorgement and pre-judgment interest thereon is waived. The 13 determination not to impose a civil penalty and to waive payment of all 14 disgorgement and pre-judgment interest is contingent upon the accuracy and 15 completeness of Defendant’s Statement of Financial Condition. If at any time 16 following the entry of this Final Judgment the Commission obtains information 17 indicating that Defendant’s representations to the Commission concerning his 18 assets, income, liabilities, or net worth were fraudulent, misleading, inaccurate, or 19 incomplete in any material respect as of the time such representations were made, 20 the Commission may, at its sole discretion and without prior notice to Defendant, 21 petition the Court for an order requiring Defendant to pay the unpaid portion of the 22 disgorgement, pre-judgment and post-judgment interest thereon, and the maximum 23 civil penalty allowable under the law. In connection with any such petition, the 24 only issue shall be whether the financial information provided by Defendant was 25 fraudulent, misleading, inaccurate, or incomplete in any material respect as of the 26 time such representations were made. In its petition, the Commission may move 27 this Court to consider all available remedies, including, but not limited to, ordering 28 Defendant to pay funds or assets, directing the forfeiture of any assets, or sanctions 3 1 for contempt of this Final Judgment. The Commission may also request additional 2 discovery. Defendant may not, by way of defense to such petition: (1) challenge 3 the validity of the Consent or this Final Judgment; (2) contest the allegations in the 4 Complaint filed by the Commission; (3) assert that payment of disgorgement, pre- 5 judgment and post-judgment interest or a civil penalty should not be ordered; 6 (4) contest the amount of disgorgement and pre-judgment and post-judgment 7 interest; (5) contest the imposition of the maximum civil penalty allowable under 8 the law; or (6) assert any defense to liability or remedy, including, but not limited 9 to, any statute of limitations defense. 10 11 III. 12 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the 13 Consent is incorporated herein with the same force and effect as if fully set forth 14 herein, and that Defendant shall comply with all of the undertakings and 15 agreements set forth therein. 16 17 IV. 18 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this 19 Court shall retain jurisdiction of this matter for the purposes of enforcing the terms 20 of this Final Judgment. 21 22 23 24 25 26 27 28 4 V. 1 2 There being no just reason for delay, pursuant to Rule 54(b) of the Federal 3 Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment 4 forthwith and without further notice. 5 6 7 8 Dated: September 04, 2009 ____________________________________ Honorable James V. Selna United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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