Securities and Exchange Commission v. Robert S. Davis Jr. et al, No. 2:2018cv10481 - Document 194 (C.D. Cal. 2021)
Court Description: FINAL JUDGMENT AS TO DEFENDANT DONALD ANTHONY MACKENZIE 187 by Judge Fernando M. Olguin. IT IS ORDERED, ADJUDGED, AND DECREED that Mackenzie is liable for disgorgement of $105,985.04 representing net profits gained as a result of the conduct alleged in the Amended Complaint, together with prejudgment interest thereon in the amount of $26,573.79, and a civil penalty in the amount of $100,000 pursuant to Section 20(d) of the Securities Act of 1933 and Section 21(d)(3) of the Securities Exchange Act of 1934, for a total of $232,558.83, all jointly and severally with Defendant Old Security Financial Group, Inc. Defendant shall satisfy this obligation by paying $232,558.83 to the Securities and Exchange Commission pursuant to the terms of the payment schedule set forth in paragraph II below after entry of this Final Judgment. (iv)
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Securities and Exchange Commission v. Robert S. Davis Jr. et al 1 2 3 4 5 6 7 8 Doc. 194 CHRISTINE NESTOR, Fla. Bar No. 597211 Email: nestorc@sec.gov STEPHANIE N. MOOT, Fla. Bar No. 30377 Email: moots@sec.gov ANDREW O. SCHIFF, Pa. Bar No. 43641 Email: schiffa@sec.gov Attorneys for Plaintiff Securities and Exchange Commission 801 Brickell Avenue, Suite 1950 Miami, FL 33131 Telephone: (305) 982-6300 Facsimile: (305) 516-4154 9 10 11 12 13 14 LOCAL COUNSEL DONALD W. SEARLES, Cal. Bar No. 135705 Email: searlesd@sec.gov Securities and Exchange Commission 444 S. Flower Street, Suite 900 Los Angeles, CA 90071 Telephone: (323) 965-3398 Facsimile: (213) 443-1904 15 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 16 17 18 19 CV 18-10481 FMO (JCx) SECURITIES AND EXCHANGE COMMISSION, Plaintiff, 20 21 22 23 FINAL JUDGMENT AS TO DEFENDANT DONALD ANTHONY MACKENZIE vs. ROBERT DAVIS, JR., et al. 24 25 Defendants. 26 This cause comes before the Court upon the Unopposed Motion by Plaintiff 27 Securities and Exchange Commission for Entry of Final Judgments against Certain 28 Page 1 of 6 Dockets.Justia.com 1 Defendants (“Motion”). By the Consent attached hereto, and without admitting or denying 2 the allegations of the Amended Complaint (except as to subject matter and personal 3 jurisdiction, which are admitted, and except as provided in paragraph IV herein), Donald 4 Anthony Mackenzie (“Mackenzie” or “Defendant”) has: entered a general appearance; 5 consented to entry of this Final Judgment; waived findings of fact and conclusions of law; 6 and waived any right to appeal from this Final Judgment. The Court finds that good cause 7 exists for entry of the Final Judgment. 8 GRANTED. The Court further orders as follows: Accordingly, the Commission’s Motion is 9 I. 10 DISGORGEMENT, PREJUDGMENT INTEREST, AND CIVIL PENALTY 11 IT IS ORDERED, ADJUDGED, AND DECREED that Mackenzie is liable for 12 disgorgement of $105,985.04 representing net profits gained as a result of the conduct 13 alleged in the Amended Complaint, together with prejudgment interest thereon in the 14 amount of $26,573.79, and a civil penalty in the amount of $100,000 pursuant to Section 15 20(d) of the Securities Act of 1933 (“Securities Act”) and Section 21(d)(3) of the Securities 16 Exchange Act of 1934 (“Exchange Act”), for a total of $232,558.83, all jointly and 17 severally with Defendant Old Security Financial Group, Inc. Defendant shall satisfy this 18 obligation by paying $232,558.83 to the Securities and Exchange Commission pursuant to 19 the terms of the payment schedule set forth in paragraph II below after entry of this Final 20 Judgment. 21 Defendant may transmit payment electronically to the Commission, which will 22 provide detailed ACH transfer/Fedwire instructions upon request. Payment may also be 23 made directly from a bank account via Pay.gov through the SEC website at 24 http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified check, 25 bank cashier’s check, or United States postal money order payable to the Securities and 26 Exchange Commission, which shall be delivered or mailed to 27 Enterprise Services Center 28 Accounts Receivable Branch Page 2 of 6 1 6500 South MacArthur Boulevard 2 Oklahoma City, OK 73169 3 and shall be accompanied by a letter identifying the case title, civil action number, and 4 name of this Court; Mackenzie as a defendant in this action; and specifying that payment 5 is made pursuant to this Final Judgment. 6 Defendant shall simultaneously transmit photocopies of evidence of payment and 7 case identifying information to the Commission’s counsel in this action. By making this 8 payment, Defendant relinquishes all legal and equitable right, title, and interest in such 9 funds and no part of the funds shall be returned to Defendant. 10 The Commission may enforce the Court’s judgment for disgorgement and 11 prejudgment interest by using all collection procedures authorized by law, including, but 12 not limited to, moving for civil contempt at any time after 30 days following entry of this 13 Final Judgment. 14 The Commission may enforce the Court’s judgment for penalties by the use of all 15 collection procedures authorized by law, including the Federal Debt Collection Procedures 16 Act, 28 U.S.C. § 3001 et seq., and moving for civil contempt for the violation of any Court 17 orders issued in this action. Defendant shall pay post judgment interest on any amounts 18 due after 30 days of the entry of this Final Judgment pursuant to 28 U S C § 1961. The 19 Commission shall hold the funds, together with any interest and income earned thereon 20 (collectively, the “Fund”), pending further order of the Court. 21 The Commission may propose a plan to distribute the Fund subject to the Court’s 22 approval. Such a plan may provide that the Fund shall be distributed pursuant to the Fair 23 Fund provisions of Section 308(a) of the Sarbanes-Oxley Act of 2002. The Court shall 24 retain jurisdiction over the administration of any distribution of the Fund and the Fund may 25 only be disbursed pursuant to an Order of the Court. 26 Regardless of whether any such Fair Fund distribution is made, amounts ordered to 27 be paid as civil penalties pursuant to this Judgment shall be treated as penalties paid to the 28 government for all purposes, including all tax purposes. To preserve the deterrent effect Page 3 of 6 1 of the civil penalty, Defendant shall not, after offset or reduction of any award of 2 compensatory damages in any Related Investor Action based on Defendant’s payment of 3 disgorgement in this action, argue that he is entitled to, nor shall he further benefit by, 4 offset or reduction of such compensatory damages award by the amount of any part of 5 Defendant’s payment of a civil penalty in this action (“Penalty Offset”). If the court in any 6 Related Investor Action grants such a Penalty Offset, Defendant shall, within 30 days after 7 entry of a final order granting the Penalty Offset, notify the Commission’s counsel in this 8 action and pay the amount of the Penalty Offset to the United States Treasury or to a Fair 9 Fund, as the Commission directs. Such a payment shall not be deemed an additional civil 10 penalty and shall not be deemed to change the amount of the civil penalty imposed in this 11 Judgment. For purposes of this paragraph, a “Related Investor Action” means a private 12 damages action brought against Defendant by or on behalf of one or more investors based 13 on substantially the same facts as alleged in the Complaint in this action. 14 II. 15 PAYMENT PLAN 16 Mackenzie shall pay the total of disgorgement, prejudgment interest, and penalty 17 due of $232,558.83 in 2 installments to the Commission according to the following 18 schedule: (1) $160,000 within 3 days of entry of this Final Judgment; and $72,558.83 by 19 December 31, 2021. Payments shall be deemed made on the date they are received by the 20 Commission and shall be applied first to post judgment interest, which accrues pursuant to 21 28 U.S.C. § 1961 on any unpaid amounts due after 30 days of the entry of Final Judgment. 22 Prior to making the final payment set forth herein, Mackenzie shall contact the staff of the 23 Commission for the amount due for the final payment. 24 If Mackenzie fails to make any payment by the date agreed and/or in the amount 25 agreed according to the schedule set forth above, all outstanding payments under this Final 26 Judgment, including post-judgment interest, minus any payments made, shall become due 27 and payable immediately at the discretion of the staff of the Commission without further 28 application to the Court. Page 4 of 6 1 III. 2 INCORPORATION OF CONSENT 3 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent 4 is incorporated herein with the same force and effect as if fully set forth herein, and that 5 Mackenzie shall comply with all of the undertakings and agreements set forth therein. 6 IV. 7 BANKRUPTCY NONDISCHARGEABILITY 8 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for 9 purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 11 10 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant, and 11 further, any debt for disgorgement, prejudgment interest, civil penalty or other amounts 12 due by Defendant under this Final Judgment or any other judgment, order, consent order, 13 decree or settlement agreement entered in connection with this proceeding, is a debt for the 14 violation by Defendant of the federal securities laws or any regulation or order issued under 15 such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. 16 §523(a)(19). 17 V. 18 RETENTION OF JURISDICTION 19 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court 20 shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final 21 Judgment. 22 VI. 23 RULE 54(b) CERTIFICATION 24 There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of 25 26 27 28 Page 5 of 6
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