Securities and Exchange Commission v. Eagle Development Enterprises Inc et al, No. 8:2009cv01470 - Document 25 (C.D. Cal. 2009)
Court Description: ORDER GRANTING PRELIMINARY INJUNCTION by Judge James V. Selna, as to Defendant Eagle Storage & Development, LLC and Orders: 1) Freezing Assets; 2) Requiring Accountings; and 3) Prohibiting the Destruction of Documents: II. IT IS FURTHER ORDERED that defendant Eagle Storage, and its agents, servants, employees, attorneys, subsidiaries and affiliates, and those persons in active concert or participation with any of them, who receive actual notice of this Order, by personal service or otherwise, an d each of them, be and hereby are preliminarily restrained and enjoined from, directly or indirectly, making use of any means or instruments of transportation or communication in interstate commerce or of the mails, to sell, to offer to sell, or to o ffer to buy any security, or carrying or causing securities to be carried through the mails or in interstate commerce, by any means or instruments of transportation, for the purpose of sale or delivery after sale, in violation of Sections 5(a) and 5( c) of the Securities Act, 15 U.S.C. §§ 77(e)(a) and 77(e)(c). (See document for further details.) VIII. IT IS FURTHER ORDERED that Eagle Storage shall, within five days, of the date of issuance of this Order, prepare and deliver to the Comm ission a detailed and complete schedule of its assets, including all real and personal property exceeding $5,000 in value, and all bank, securities, futures and other accounts identified by institution, branch address and account number. The acc ountings shall include a description of the source(s) of all such assets. Such accountings shall be filed with the Court and copies shall be delivered to the Commission's Los Angeles Regional Office. After completion of the accounting, Eagle Sto rage shall produce to the Commission's Los Angeles Regional Office, at a time agreeable to the Commission, all books, records and other documents supporting or underlying the accountings. To the extent Section VIII of this Order imposes any obligation on the Trustee, that obligation is satisfied by providing the Commission with any accountings filed by the Trustee with the Bankruptcy Court. (rla)
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Securities and Exchange Commission v. Eagle Development Enterprises Inc et al 1 2 3 4 5 6 7 8 9 JOHN M. McCOY III, Cal. Bar No. 166244 E-mail: mccoyj@sec.gov ALKA N. PATEL, Cal. Bar No. 175505 E-mail: patelal@sec.gov SPENCER BENDELL, Cal Bar No. 181220 E-mail: bendells@sec.gov MEGAN M. BERGSTROM, Cal. Bar No. 228289 E-mail: bergstromm@sec.gov Securities and Exchange Commission Rosalind R. Tyson, Regional Director Michele Wein Layne, Associate Regional Director 5670 Wilshire Boulevard, 11th Floor Los Angeles, California 90036 Telephone: (323) 965-3998 Facsimile: (323) 965-3908 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 SOUTHERN DIVISION 13 SECURITIES AND EXCHANGE COMMISSION, 14 Plaintiff, 15 16 17 18 19 20 21 22 23 24 25 26 27 Doc. 25 vs. EAGLE DEVELOPMENT ENTERPRISES, INC., a Nevada corporation; EAGLE STORAGE & DEVELOPMENT, LLC, an Arizona limited liability company; EAGLE AVIATION SALES & LEASING, LLC, a California limited liability company; MICHAEL J. BOWEN, Case No. SACV09-1470 JVS (MLGX) ORDER GRANTING PRELIMINARY INJUNCTION AS TO DEFENDANT EAGLE STORAGE & DEVELOPMENT, LLC AND ORDERS: (1) FREEZING ASSETS; (2) REQUIRING ACCOUNTINGS; AND (3) PROHIBITING THE DESTRUCTION OF DOCUMENTS Defendants, EAGLE ASSETS & MANAGEMENT, LLC, a California limited liability company; EAGLE HOUSING & DEVELOPMENT AZ, LLC, an Arizona limited liability company; EAGLE HOUSING & DEVELOPMENT, INC., a California corporation; EAGLE HELICOPTERS & AVIATION, INC., a California Corporation, Relief Defendants. 28 Dockets.Justia.com 1 The Court, having considered the Commission’s Complaint; the Ex Parte 2 Application For A Temporary Restraining Order and Orders: (1) Freezing Assets, 3 (2) Requiring Accountings, (3) Prohibiting The Destruction Of Documents, (4) 4 Granting Expedited Discovery; And Order To Show Cause Re Preliminary 5 Injunction (the “Application”); the supporting Memorandum of Points and 6 Authorities; Declarations and Exhibits; and all other evidence and argument 7 presented regarding the Application; and finding that this Court has jurisdiction 8 over the parties to, and the subject matter of, this action, that the Commission has 9 demonstrated a probability of success on the merits and a possibility of dissipation 10 of assets in this case, and that defendant Eagle Storage & Development, LLC 11 (“Eagle Storage”) consented to this order, without admitting or denying the 12 allegations in the Commission’s Complaint, IT IS HEREBY ORDERED, for good 13 cause shown, as follows: 14 15 I. IT IS ORDERED that the Commission’s request for a preliminary injunction 16 and orders: (1) freezing assets; (2) requiring accountings; and (3) prohibiting the 17 destruction of documents is hereby GRANTED. 18 19 II. IT IS FURTHER ORDERED that defendant Eagle Storage, and its agents, 20 servants, employees, attorneys, subsidiaries and affiliates, and those persons in 21 active concert or participation with any of them, who receive actual notice of this 22 Order, by personal service or otherwise, and each of them, be and hereby are 23 preliminarily restrained and enjoined from, directly or indirectly, making use of 24 any means or instruments of transportation or communication in interstate 25 commerce or of the mails, to sell, to offer to sell, or to offer to buy any security, or 26 carrying or causing securities to be carried through the mails or in interstate 27 commerce, by any means or instruments of transportation, for the purpose of sale 28 or delivery after sale, in violation of Sections 5(a) and 5(c) of the Securities Act, 15 2 1 U.S.C. §§ 77(e)(a) and 77(e)(c). 2 3 III. IT IS FURTHER ORDERED that defendant Eagle Storage and its agents, 4 servants, employees, attorneys, subsidiaries and affiliates, and those persons in 5 active concert or participation with any of them, who receive actual notice of this 6 Order, by personal service or otherwise, and each of them, be and hereby are 7 preliminarily restrained and enjoined from, directly or indirectly, in the offer or 8 sale of any securities, by the use of any means or instruments of transportation or 9 communication in interstate commerce or by use of the mails: 10 A. employing any device, scheme or artifice to defraud; 11 B. obtaining money or property by means of any untrue statement of a 12 material fact or any omission to state a material fact necessary in order 13 to make the statements made, in light of the circumstances under 14 which they were made, not misleading; or 15 C. operates or would operate as a fraud or deceit upon the purchaser 16 17 engaging in any transaction, practice, or course of business which in violation of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a). 18 19 IV. IT IS FURTHER ORDERED that defendant Eagle Storage and its agents, 20 servants, employees, attorneys, subsidiaries and affiliates, and those persons in 21 active concert or participation with any of them who receive actual notice of this 22 Order, by personal service or otherwise, and each of them, be and hereby are 23 preliminarily restrained and enjoined from, directly or indirectly, in connection 24 with the purchase or sale of any security, by the use of any means or 25 instrumentality of interstate commerce, or of the mails, or of any facility of any 26 national securities exchange: 27 A. employing any device, scheme, or artifice to defraud; 28 B. making any untrue statement of a material fact or omitting to state a 3 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. engaging in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person 5 6 in violation of Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 7 10b-5 thereunder, 17 C.F.R. § 240.10b-5. 8 V. 9 IT IS FURTHER ORDERED that, except as set forth in Section VII below 10 or as otherwise ordered by this Court, defendant Eagle Storage, and its agents, 11 servants, employees, attorneys, subsidiaries and affiliates, and those persons in 12 active concert or participation with any of them, who receive actual notice of this 13 Order, by personal service or otherwise, and each of them, be and hereby are 14 preliminarily restrained and enjoined from, directly or indirectly, transferring, 15 assigning, selling, hypothecating, changing, wasting, dissipating, converting, 16 concealing, encumbering, or otherwise disposing of, in any manner, any funds, 17 assets, securities, claims, or other real or personal property, including any notes or 18 deeds of trust or other interests in real property, wherever located, of Defendants 19 Eagle Storage, Eagle Development Enterprises, Inc., and Eagle Aviation Sales & 20 Leasing, LLC (collectively “Defendants”) and relief defendants Eagle Assets & 21 Management, LLC, Eagle Housing & Development AZ, LLC, Eagle Housing & 22 Development, Inc., Eagle Helicopters & Aviation, Inc. (collectively “Relief 23 Defendants”), and their subsidiaries and affiliates, whether owned by, controlled 24 by, managed by or in the possession or custody of any of them and from 25 transferring, encumbering, dissipating, incurring charges or cash advances on any 26 debit or credit card or the credit arrangement, of Defendants and Relief 27 Defendants. 28 4 1 2 VI. IT IS FURTHER ORDERED that, except as set forth in Section VII below 3 or as otherwise ordered by this Court, an immediate freeze shall be placed on all 4 monies and assets in all accounts at any bank, financial institution or brokerage 5 firm, all certificates of deposit, and other funds or assets, held in the name of, for 6 the benefit of, or over which account authority is held by Defendants, Relief 7 Defendants, or any trust, partnership, joint venture, person or entity affiliated with 8 them (including subsidiaries), including but not limited to the following accounts: 9 10 Bank Name on Account 11 Account no. (last 4 digits) 12 Bank of America Eagle Storage & Development, LLC 9535 13 Bank of America Eagle Development Enterprises, Inc. 3447 14 Bank of America Eagle Helicopters & Aviation, Inc. 8755 15 Bank of America Eagle Housing & Development 8152 16 Bank of America Eaglestaff, Inc. 3344 17 Bank of America Bank of America Eagle Assets & Management, LLC Michael J. Bowen 8891 2823 1565 3493 8890 7775 6475 3176 2228 3497 Bank of America Via Verde Property Management, 0098 18 19 20 21 22 23 24 25 Inc. 26 JP Morgan Chase/ 27 Washington Mutual Eagle Assets & Management, LLC 28 5 649-5 1 JP Morgan Chase/ 2 Washington Mutual 3 JP Morgan Chase/ 4 Washington Mutual 5 JP Morgan Chase/ 6 Washington Mutual LLP JP Morgan Michael J. Bowen Chase/Washington Mutual 6548 751-8 867-9 Bank of America 6056 7 8 Eagle Development Enterprises, Inc. 620-5 Eagle Development Enterprises, Inc. 651-0 Eagle Aviation Sales & Leasing, 603-1 9 10 TLW Co. 11 VII. 12 IT IS FURTHER ORDERED that the asset freezes provided for in this 13 Order over the assets of defendant Eagle Storage & Development, LLC, (the 14 “Debtor”) shall be applicable even though the Debtor is presently subject to 15 chapter 7 bankruptcy proceedings in the United State Bankruptcy Court for the 16 District of Arizona (“Bankruptcy Court”) at Case No. 0:09−bk−07205−RJH. 17 Notwithstanding any other provisions of this Order, (1) the Bankruptcy Court’s 18 jurisdiction over the Debtor and assets of the Debtor’s estates is not limited or 19 affected by this Order, nor (2) are the duties and powers of the Debtor’s 20 bankruptcy Trustee, Maureen Gaughan (“Trustee”), over the Debtor or the assets 21 of these Debtor’s bankruptcy estate constrained, limited or in any way effected by 22 this Order. The Trustee shall provide notice to the Commission on all matters filed 23 in the Bankruptcy Court by the Trustee or her counsel. 24 25 VIII. IT IS FURTHER ORDERED that Eagle Storage shall, within five days, of 26 the date of issuance of this Order, prepare and deliver to the Commission a detailed 27 and complete schedule of its assets, including all real and personal property 28 exceeding $5,000 in value, and all bank, securities, futures and other accounts 6 1 identified by institution, branch address and account number. The accountings 2 shall include a description of the source(s) of all such assets. Such accountings 3 shall be filed with the Court and copies shall be delivered to the Commission’s Los 4 Angeles Regional Office. After completion of the accounting, Eagle Storage shall 5 produce to the Commission’s Los Angeles Regional Office, at a time agreeable to 6 the Commission, all books, records and other documents supporting or underlying 7 the accountings. To the extent Section VIII of this Order imposes any obligation 8 on the Trustee, that obligation is satisfied by providing the Commission with any 9 accountings filed by the Trustee with the Bankruptcy Court. 10 IX. 11 IT IS FURTHER ORDERED that, except as otherwise ordered by this 12 Court, Eagle Storage, and its agents, servants, employees, attorneys, subsidiaries 13 and affiliates, and those persons in active concert or participation with any of them, 14 who receive actual notice of this Order, by personal service or otherwise, and each 15 of them, be and hereby are preliminarily restrained and enjoined from, directly or 16 indirectly, destroying, mutilating, concealing, transferring, altering, or otherwise 17 disposing of, in any manner, any documents, which includes all books, records, 18 computer programs, computer files, computer printouts, contracts, correspondence, 19 memoranda, brochures, or any other documents of any kind in their possession, 20 custody or control, however created, produced, or stored (manually, mechanically, 21 electronically, or otherwise), pertaining in any manner to Defendants and Relief 22 Defendants. 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 7 1 2 X. IT IS FURTHER ORDERED that this Court shall retain jurisdiction over 3 this action for the purpose of implementing and carrying out the terms of all orders 4 and decrees which may be entered herein and to entertain any suitable application 5 or motion for additional relief within the jurisdiction of this Court. 6 7 8 9 IT IS SO ORDERED. DATED: December 22, 2009 ___________________________________ HONORABLE JAMES V. SELNA UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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