Securities And Exchange Commission v. Leslie et al, No. 5:2007cv03444 - Document 338 (N.D. Cal. 2011)
Court Description: FINAL JUDGMENT AS TO MARK LESLIE. Signed by Judge Jeremy Fogel on 10/21/2011. (jflc2, COURT STAFF) (Filed on 10/21/2011)
Download PDF
<![CDATA[
Securities And Exchange Commission v. Leslie et al 1 2 3 Doc. 338 RICHARD HONG (Admitted in New York) hongr@sec.gov DAVID WILLIAMS (California Bar No. 183854) williamsdav@sec.gov RICHARD SKAFF (California Bar No. 121730) skaffr@sec.gov 4 5 6 7 Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION 100 F Street, N.E. Washington, DC 20549-4010-A Telephone: (202) 551-4431 (Hong) Facsimile: (202) 772-9246 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 9 10 11 12 SECURITIES AND EXCHANGE COMMISSION, 13 14 15 16 17 Plaintiff, Case No. 5:07-cv-03444-JF FINAL JUDGMENT AS TO DEFENDANT MARK LESLIE vs. MARK LESLIE, KENNETH E. LONCHAR, PAUL A. SALLABERRY, MICHAEL M. CULLY, and DOUGLAS S. NEWTON Hon. Jeremy Fogel Defendants. 18 19 20 The Securities and Exchange Commission having filed an amended complaint and 21 Defendant MARK LESLIE, having entered a general appearance; consented to the Court’s 22 jurisdiction over Defendant and the subject matter of this action; consented to entry of this Final 23 Judgment without admitting or denying the allegations of the amended complaint (except as to 24 25 26 jurisdiction to which Defendant consents); waived findings of fact and conclusions of law; and waived any right to appeal from this Final Judgment: 27 28 FINAL JUDGMENT AS TO DEFENDANT MARK LESLIE SEC v. Leslie, et al., Case No. C 07-3444 JF Dockets.Justia.com 1 I. 2 3 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and 4 Defendant’s agents, servants, employees, attorneys, and all persons in active concert or 5 participation with them who receive actual notice of this Final Judgment by personal service or 6 otherwise are permanently restrained and enjoined from violating Rule 13b2-2(a)(2) of the 7 Securities Exchange Act of 1934 (the “Exchange Act”) [17 C.F.R. § 240.13b2-2(a)(2)] by, 8 directly or indirectly, in the capacity of a director or officer of an issuer, omitting to state, or 9 10 causing another person to omit to state, any material fact necessary in order to make statements 11 made, in light of the circumstances under which the statements were made, not misleading to an 12 accountant in connection with (1) any audit, review or examination of the financial statements of 13 the issuer required to be made; or (2) the preparation or filing of any document or report to be 14 filed with the Commission pursuant to the rules promulgated under Section 13 of the Exchange 15 Act or otherwise. 16 17 II. 18 19 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 20 is liable for a total payment consisting of disgorgement and prejudgment interest of $1,550,000, 21 22 the total amount representing profits gained as a result of the conduct alleged in the amended 23 complaint plus prejudgment interest thereon, and a civil penalty in the amount of $25,000 24 pursuant to Section 21(d) of the Exchange Act. Defendant shall satisfy this obligation by paying 25 $1,575,000 within 14 days after entry of this Final Judgment to the Clerk of this Court, together 26 with a cover letter identifying Defendant's name as a defendant in this action; setting forth the 27 title and civil action number of this action and the name of this Court; and specifying that 28 FINAL JUDGMENT AS TO DEFENDANT MARK LESLIE SEC v. Leslie, et al., Case No. C 07-3444 JF -2- 1 payment is made pursuant to this Final Judgment. Defendant shall simultaneously transmit 2 photocopies of such payment and letter to the Commission’s counsel in this action. By making 3 the above-referenced payment, Defendant relinquishes all legal and equitable right, title, and 4 interest in such funds, and no part of the funds shall be returned to Defendant. Defendant shall 5 6 7 pay post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961. The Clerk shall deposit the funds into an interest bearing account with the Court Registry 8 Investment System ("CRIS") or any other type of interest bearing account that is utilized by the 9 Court. These funds, together with any interest and income earned thereon (collectively, the 10 11 “Fund”), shall be held in the interest bearing account until further order of the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative 12 13 14 Office of the United States Courts, the Clerk is directed, without further order of this Court, to deduct from the income earned on the money in the Fund a fee equal to ten percent of the income 15 earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the 16 United States. 17 18 The Commission may by motion propose a plan to distribute the Fund subject to the Court’s approval. Such a plan may provide that the Fund shall be distributed pursuant to the Fair 19 Fund provisions of Section 308(a) of the Sarbanes-Oxley Act of 2002. Regardless of whether any 20 21 such Fair Fund distribution is made, amounts ordered to be paid as civil penalties pursuant to this 22 Judgment shall be treated as penalties paid to the government for all purposes, including all tax 23 purposes. To preserve the deterrent effect of the civil penalty, Defendant shall not, after offset or 24 reduction of any award of compensatory damages in any Related Investor Action based on 25 Defendant’s payment of disgorgement in this action, argue that he is entitled to, nor shall he 26 further benefit by, offset or reduction of such compensatory damages award by the amount of any 27 part of Defendant’s payment of a civil penalty in this action ("Penalty Offset"). If the court in any 28 FINAL JUDGMENT AS TO DEFENDANT MARK LESLIE SEC v. Leslie, et al., Case No. C 07-3444 JF -3- 1 Related Investor Action grants such a Penalty Offset, Defendant shall, within 30 days after entry 2 of a final order granting the Penalty Offset, notify the Commission's counsel in this action and 3 pay the amount of the Penalty Offset to the United States Treasury or to a Fair Fund, as the 4 Commission directs. Such a payment shall not be deemed an additional civil penalty and shall 5 6 not be deemed to change the amount of the civil penalty imposed in this Judgment. For purposes 7 of this paragraph, a "Related Investor Action" means a private damages action brought against 8 Defendant by or on behalf of one or more investors based on substantially the same facts as 9 alleged in the amended complaint in this action. 10 11 III. 12 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is 13 incorporated herein with the same force and effect as if fully set forth herein, and that Defendant 14 15 shall comply with all of the undertakings and agreements set forth therein. 16 IV. 17 18 19 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT AS TO DEFENDANT MARK LESLIE SEC v. Leslie, et al., Case No. C 07-3444 JF -4- 1 V. 2 3 4 5 There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice. Dated: ______________, 2011 6 ___________________________________ HON. JEREMY FOGEL UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT AS TO DEFENDANT MARK LESLIE SEC v. Leslie, et al., Case No. C 07-3444 JF -5-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
