Securities and Exchange Commission v. Peter L Jensen et al, No. 2:2011cv05316 - Document 252 (C.D. Cal. 2017)
Court Description: FINAL JUDGMENT AS TO DEFENDANT THOMAS C. TEKULVE, JR. by Judge Manuel L. Real: Upon Defendant's Consent 250 , IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant Thomas C. Tekulve, Jr. is permanently restrained and enjoined from violatin g Section 17(a) of the Securities Act of 1933 [15 U.S.C. Section 77q(a)], Section 10(b) of the Securities Exchange Act of 1934 [15 U.S.C. Section 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. Section 240.10b-5], in the offer or sale of any security by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly, etc. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall pay a civil penalty in t he amount of $130,000.00 to the Securities and Exchange Commission. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall reimburse BWI Liquidating Trust $1,200.00 See document for further details. (MD JS-6, Case Terminated). (gk)
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Securities and Exchange Commission v. Peter L Jensen et al Doc. 252 JS-6 1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 17 18 19 20 Case No. CV 11-05316-R SECURITIES AND EXCHANGE COMMISSION, FINAL JUDGMENT AS TO DEFENDANT THOMAS C. TEKULVE, JR. Plaintiff, vs. 21 PETER L. JENSEN AND THOMAS C. TEKULVE, JR., 22 Defendants. 23 24 25 26 27 28 The Securities and Exchange Commission (“SEC”) having filed a Complaint and Defendant Thomas C. Tekulve, Jr. (“Defendant”) having entered a general appearance; consented to the Court’s jurisdiction over Defendant and the subject matter of this action; consented to entry of this Final Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction and except as 1 Dockets.Justia.com 1 otherwise provided herein in paragraph XV); waived findings of fact and conclusions 2 of law; and waived any right to appeal from this Judgment: 3 4 I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is 5 permanently restrained and enjoined from violating Section 17(a) of the Securities 6 Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale of any 7 security by the use of any means or instruments of transportation or communication 8 in interstate commerce or by use of the mails, directly or indirectly: 9 (a) to employ any device, scheme, or artifice to defraud; 10 (b) to obtain money or property by means of any untrue statement of a 11 material fact or any omission of a material fact necessary in order to 12 make the statements made, in light of the circumstances under which 13 they were made, not misleading; or 14 15 (c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. 16 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 17 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 18 binds the following who receive actual notice of this Final Judgment by personal 19 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 20 attorneys; and (b) other persons in active concert or participation with Defendant or 21 with anyone described in (a). 22 II. 23 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 24 is permanently restrained and enjoined from violating, directly or indirectly, Section 25 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 26 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using 27 any means or instrumentality of interstate commerce, or of the mails, or of any 28 facility of any national securities exchange, in connection with the purchase or sale of 2 1 any security: 2 (a) to employ any device, scheme, or artifice to defraud; 3 (b) to make any untrue statement of a material fact or to omit to state a 4 material fact necessary in order to make the statements made, in the light 5 of the circumstances under which they were made, not misleading; or 6 7 (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. 8 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 9 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 10 binds the following who receive actual notice of this Final Judgment by personal 11 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 12 attorneys; and (b) other persons in active concert or participation with Defendant or 13 with anyone described in (a). 14 III. 15 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 16 is permanently restrained and enjoined from violating, directly or indirectly, Section 17 13(a) of the Exchange Act [15 U.S.C. § 78t(a)], and Rules 12b-20, 13a-1 and 13a-13 18 thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and 240.13a-13] [15 U.S.C. § 19 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by filing 20 with the Commission required periodic reports that fail to include material 21 information necessary to make the required statements, in light of the circumstances 22 under which they were made, not misleading. 23 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 24 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 25 binds the following who receive actual notice of this Final Judgment by personal 26 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 27 attorneys; and (b) other persons in active concert or participation with Defendant or 28 with anyone described in (a). 3 1 IV. 2 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 3 is permanently restrained and enjoined from violating, directly or indirectly, Section 4 13(b)(5) of the Exchange Act [15 U.S.C. §78m(b)(5)] and Rule 13b2-1 thereunder 5 [17 C.F.R. §240.13b2-1], by knowingly falsifying books, records and accounts 6 issuers are required to make and keep, in reasonable detail, that accurately and fairly 7 reflect the issuer’s transactions and dispositions of its assets, and by directly or 8 indirectly falsifying or causing to be falsified issuers’ books, records and accounts. 9 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 10 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 11 binds the following who receive actual notice of this Final Judgment by personal 12 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 13 attorneys; and (b) other persons in active concert or participation with Defendant or 14 with anyone described in (a). 15 16 V. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 17 is permanently restrained and enjoined from violating, directly or indirectly, Rule 18 13b2-2 [17 C.F.R. § 240.13b2-2], by 19 20 21 a. making or causing to be made materially false or misleading statements to accountants in connection with; or b. omitting to state, or causing another person to omit to state, material 22 facts necessary in order to make statements made, in light of the circumstances under 23 which such statements were made, not misleading, to accountants in connection with: 24 i. 25 26 27 an audit, review or examination of the financial statements of the issuer required to be made; or ii. the preparation or filing of a document or report required to be filed with the Commission. 28 4 1 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 2 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 3 binds the following who receive actual notice of this Final Judgment by personal 4 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 5 attorneys; and (b) other persons in active concert or participation with Defendant or 6 with anyone described in (a). 7 8 VI. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 9 is permanently restrained and enjoined from violating, directly or indirectly, Rule 10 13a-14 [17 C.F.R. § 240.13a-14], by falsely certifying that an issuer’s annual and 11 quarterly reports fully comply with the requirements of the Exchange Act and fairly 12 present, in all material respects, the financial condition and results of operations of 13 the company, when, in fact, the reports contain untrue statements of material fact and 14 omit material information necessary to make the reports not misleading 15 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 16 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 17 binds the following who receive actual notice of this Final Judgment by personal 18 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 19 attorneys; and (b) other persons in active concert or participation with Defendant or 20 with anyone described in (a). 21 VII. 22 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 23 is permanently restrained and enjoined from violating, directly or indirectly, Section 24 304(a) of the Sarbanes-Oxley Act of 2002 by failing to reimburse an issuer for any 25 bonus or other incentive-based compensation and any profits realized from the sale of 26 the issuer’s securities during the 12-month period following the first public issuance 27 or filing with the Commission of any financial document, for which an issuer is 28 required to prepare an accounting restatement due to the material noncompliance of 5 1 the issuer, as a result of misconduct, with any financial reporting requirement under 2 the securities laws. 3 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 4 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 5 binds the following who receive actual notice of this Final Judgment by personal 6 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 7 attorneys; and (b) other persons in active concert or participation with Defendant or 8 with anyone described in (a). 9 10 VIII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 11 is permanently restrained and enjoined from, directly or indirectly, controlling any 12 person who violates Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)], and 13 Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5], Section 13(a) of the Exchange Act 14 [15 U.S.C. § 78t(a)], and Rules 12b-20, 13a-1 and 13a-13 thereunder [17 C.F.R. §§ 15 240.12b-20, 240.13a-1 and 240.13a-13], unless Defendant acts in good faith and does 16 not directly or indirectly induce the act or acts constituting the violation. 17 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 18 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 19 binds the following who receive actual notice of this Final Judgment by personal 20 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 21 attorneys; and (b) other persons in active concert or participation with Defendant or 22 with anyone described in (a). 23 24 IX. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 25 is permanently restrained and enjoined from aiding and abetting any violation of 26 Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)], and Rule 10b-5 thereunder 27 [17 C.F.R. § 240.10b-5], Section 13(a) of the Exchange Act [15 U.S.C. § 78t(a)], and 28 Rules 12b-20, 13a-1 and 13a-13 thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and 6 1 240.13a-13],Section 13(a) of the Exchange Act [15 U.S.C. § 78m(a)] by knowingly 2 or recklessly providing substantial assistance to an issuer’s violation of the aforesaid 3 provisions. 4 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 5 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 6 binds the following who receive actual notice of this Final Judgment by personal 7 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 8 attorneys; and (b) other persons in active concert or participation with Defendant or 9 with anyone described in (a). 10 11 X. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, pursuant 12 to Section 21(d)(2) of the Exchange Act [15 U.S.C. § 78u(d)(2)] and/or Section 20(e) 13 of the Securities Act [15 U.S.C. § 77t(e)]], Defendant is prohibited for one (1) year 14 following the date of entry of this Final Judgment, from acting as an officer or 15 director of any issuer that has a class of securities registered pursuant to Section 12 of 16 the Exchange Act [15 U.S.C. § 78l] or that is required to file reports pursuant to 17 Section 15(d) of the Exchange Act [15 U.S.C. § 78o(d)]. 18 XI. 19 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 20 shall pay a civil penalty in the amount of $130,000.00 to the Securities and Exchange 21 Commission pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and 22 Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall make 23 this payment pursuant to the terms of the payment schedule set forth in paragraph XII 24 below after entry of this Final Judgment. 25 Defendant may transmit payment electronically to the Commission, which will 26 provide detailed ACH transfer/Fedwire instructions upon request. Payment may also 27 be made directly from a bank account via Pay.gov through the SEC website at 28 http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified 7 1 check, bank cashier’s check, or United States postal money order payable to the 2 Securities and Exchange Commission, which shall be delivered or mailed to 3 Enterprise Services Center 4 Accounts Receivable Branch 5 6500 South MacArthur Boulevard 6 Oklahoma City, OK 73169 7 and shall be accompanied by a letter identifying the case title, civil action number, 8 and name of this Court; Defendant’s name as a defendant in this action; and 9 specifying that payment is made pursuant to this Final Judgment. 10 Defendant shall simultaneously transmit photocopies of evidence of payment 11 and case identifying information to the Commission’s counsel in this action. By 12 making this payment, Defendant relinquishes all legal and equitable right, title, and 13 interest in such funds and no part of the funds shall be returned to Defendant. The 14 Commission shall send the funds paid pursuant to this Final Judgment to the United 15 States Treasury. Defendant shall pay post-judgment interest on any delinquent 16 amounts pursuant to 28 USC § 1961. 17 18 XII. Defendant shall pay the civil penalty of $130,000.00 in four (4) installment 19 payments to the Commission according to the following schedule: (1) $50,000, 20 within fourteen (14) of days of entry of this Final Judgment; (2) $27,000, within 90 21 days of the entry of Final Judgment; (3) $27,000, within 180 days of entry of the 22 Final Judgment, and (4) $26,000 within 270 days of the entry of Final Judgment. 23 Payments shall be deemed made on the date they are received by the Commission and 24 shall be applied first to post judgment interest, which accrues pursuant to 28 U.S.C. § 25 1961 on any unpaid amounts due after 14 days of the entry of Final Judgment. Prior 26 to making the final payment set forth herein, Defendant shall contact the staff of the 27 Commission for the amount due for the final payment. 28 8 1 If Defendant fails to make any payment by the date agreed and/or in the 2 amount agreed according to the schedule set forth above, all outstanding payments 3 under this Final Judgment, including post-judgment interest, minus any payments 4 made, shall become due and payable immediately at the discretion of the staff of the 5 Commission without further application to the Court. 6 7 XIII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 8 shall reimburse BWI Liquidating Trust $1,200.00 pursuant to Section 304 of the 9 Sarbanes-Oxley Act of 2002, 15 U.S.C. 7243(a) within fourteen (14) of days of entry 10 of this Final Judgment. Defendant may transmit payment electronically to BWI 11 Liquidating Trust, c/o Walker Truesdell Roth & Associates, which will provide 12 detailed ACH transfer/Fedwire instructions upon request. The payment shall be 13 accompanied by a letter identifying Thomas C. Tekulve, Jr. as a defendant in this 14 action; setting forth the title and civil action number of this actions and the name of 15 this Court; and specifying that payment is made pursuant to this Final Judgment. 16 Defendant shall simultaneously transmit photocopies of such payment and letter to 17 the Commission’s counsel in this action. By making this payment, Defendant 18 relinquishes all legal and equitable right, title, and interest in such funds, and no part 19 of the funds shall be returned to Defendant. 20 21 XIV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that 22 Defendant’s Consent is incorporated herein with the same force and effect as if fully 23 set forth herein, and that Defendant shall comply with all of the undertakings and 24 agreements set forth therein. 25 26 XV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for 27 purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 28 11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant, 9 1 and further, any debt for disgorgement, prejudgment interest, civil penalty or other 2 amounts due by Defendant under this Final Judgment or any other judgment, order, 3 consent order, decree or settlement agreement entered in connection with this 4 proceeding, is a debt for the violation by Defendant of the federal securities laws or 5 any regulation or order issued under such laws, as set forth in Section 523(a)(19) of 6 the Bankruptcy Code, 11 U.S.C. §523(a)(19). 7 XVI. 8 9 10 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 Judgment. 11 XVII. 12 There being no just reason for delay, pursuant to Rule 54(b) of the Federal 13 Rules of Civil Procedure, the Clerk is ordered to enter this Judgment forthwith and 14 without further notice. 15 16 17 18 Dated: September 12, 2017 ____________________________________ UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 10
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