Securities and Exchange Commission v. David N. Osegueda et al, No. 2:2019cv04348 - Document 32 (C.D. Cal. 2019)
Court Description: FINAL JUDGMENT AS TO DAVID N. OSEGUEDA by Judge Philip S. Gutierrez, Related to: Stipulation for Judgment 31 (bm)
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Securities and Exchange Commission v. David N. Osegueda et al 1 2 3 4 5 6 7 Doc. 32 LYNN M. DEAN (Cal. Bar No. 205562) Email: deanl@sec.gov ROBERTO A. TERCERO (Cal. Bar No. 143760) Email: terceror@sec.gov E-FILED 11/4/19 Attorneys for Plaintiff Securities and Exchange Commission Michele Wein Layne, Regional Director Alka Patel, Associate Regional Director Amy J. Longo, Regional Trial Counsel 444 S. Flower Street, Suite 900 Los Angeles, California 90071 Telephone: (323) 965-3998 Facsimile: (213) 443-1904 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 SECURITIES AND EXCHANGE COMMISSION, 14 15 16 17 18 19 20 Plaintiff, Case No. 2:19-cv-04348-PSG-AGR FINAL JUDGMENT AS TO DAVID N. OSEGUEDA vs. DAVID N. OSEGUEDA, ISHMAIL CALVIN ROSS, aka CALVIN ROSS, ZACHARY R. LOGAN, and JESSICA SNYDER, fka JESSICA GUTIERREZ, 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 David N. Osegueda having entered a general appearance; consented to the 3 Court’s jurisdiction over Defendant and the subject matter of this action; consented to 4 entry of this Judgment without admitting or denying the allegations of the Complaint 5 (except as to jurisdiction and except as otherwise provided herein in paragraph VIII); 6 waived findings of fact and conclusions of law; and waived any right to appeal from 7 this Judgment: I. 8 9 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is 10 permanently restrained and enjoined from violating, directly or indirectly, Section 11 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. 12 § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using 13 any means or instrumentality of interstate commerce, or of the mails, or of any 14 facility of any national securities exchange, in connection with the purchase or sale of 15 any security: 16 (a) to employ any device, scheme, or artifice to defraud; 17 (b) to make any untrue statement of a material fact or to omit to state a 18 material fact necessary in order to make the statements made, in the light of the 19 circumstances under which they were made, not misleading; or 20 (c) 21 would operate as a fraud or deceit upon any person. 22 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 23 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 24 binds the following who receive actual notice of this Judgment by personal service or 25 otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys; and 26 (b) other persons in active concert or participation with Defendant or with anyone 27 described in (a). to engage in any act, practice, or course of business which operates or 28 1 II. 1 2 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 3 Defendant is permanently restrained and enjoined from violating Section 17(a) of the 4 Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale 5 of any security by the use of any means or instruments of transportation or 6 communication in interstate commerce or by use of the mails, directly or indirectly: 7 (a) to employ any device, scheme, or artifice to defraud; 8 (b) to obtain money or property by means of any untrue statement of a 9 material fact or any omission of a material fact necessary in order to make the 10 statements made, in light of the circumstances under which they were made, 11 not misleading; or 12 (c) 13 operates or would operate as a fraud or deceit upon the purchaser. 14 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 15 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 16 binds the following who receive actual notice of this Judgment by personal service or 17 otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys; and 18 (b) other persons in active concert or participation with Defendant or with anyone 19 described in (a). to engage in any transaction, practice, or course of business which III. 20 21 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 22 Defendant is permanently restrained and enjoined from violating Section 5 of the 23 Securities Act [15 U.S.C. § 77e] by, directly or indirectly, in the absence of any 24 applicable exemption: 25 (a) Unless a registration statement is in effect as to a security, making use of 26 any means or instruments of transportation or communication in interstate 27 commerce or of the mails to sell such security through the use or medium of 28 any prospectus or otherwise; 2 1 (b) Unless a registration statement is in effect as to a security, carrying or 2 causing to be carried through the mails or in interstate commerce, by any 3 means or instruments of transportation, any such security for the purpose of 4 sale or for delivery after sale; or 5 (c) 6 communication in interstate commerce or of the mails to offer to sell or offer to 7 buy through the use or medium of any prospectus or otherwise any security, 8 unless a registration statement has been filed with the Commission as to such 9 security, or while the registration statement is the subject of a refusal order or Making use of any means or instruments of transportation or 10 stop order or (prior to the effective date of the registration statement) any 11 public proceeding or examination under Section 8 of the Securities Act [15 12 U.S.C. § 77h]. 13 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 14 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 15 binds the following who receive actual notice of this Judgment by personal service or 16 otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys; and 17 (b) other persons in active concert or participation with Defendant or with anyone 18 described in (a). 19 20 IV. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 21 Defendant is permanently barred from participating in an offering of penny stock, 22 including engaging in activities with a broker, dealer, or issuer for purposes of 23 issuing, trading, or inducing or attempting to induce the purchase or sale of any penny 24 stock. A penny stock is any equity security that has a price of less than five dollars, 25 except as provided in Rule 3a51-1 under the Exchange Act [17 C.F.R. § 240.3a51-1]. 26 V. 27 28 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, pursuant to Section 21(d)(2) of the Exchange Act [15 U.S.C. § 78u(d)(2)] and Section 20(e) of 3 1 the Securities Act [15 U.S.C. § 77t(e)], Defendant is prohibited, for 10 years 2 following the date of entry of this Final Judgment, from acting as an officer or 3 director of any issuer that has a class of securities registered pursuant to Section 12 of 4 the Exchange Act [15 U.S.C. § 78l] or that is required to file reports pursuant to 5 Section 15(d) of the Exchange Act [15 U.S.C. § 78o(d)]. VI. 6 7 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 8 is liable for disgorgement of $835,941.58, representing profits gained as a result of 9 the conduct alleged in the Complaint, together with prejudgment interest thereon in 10 the amount of $97,239.43, and a civil penalty in the amount of $835,941.58 pursuant 11 to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the 12 Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall satisfy this obligation by 13 paying $1,769,122.59 to the Securities and Exchange Commission within 30 days 14 after entry of this Final Judgment. 15 Defendant may transmit payment electronically to the Commission, which will 16 provide detailed ACH transfer/Fedwire instructions upon request. Payment may also 17 be made directly from a bank account via Pay.gov through the SEC website at 18 http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified 19 check, bank cashier’s check, or United States postal money order payable to the 20 Securities and Exchange Commission, which shall be delivered or mailed to 21 22 23 Enterprise Services Center Accounts Receivable Branch 6500 South MacArthur Boulevard Oklahoma City, OK 73169 24 and shall be accompanied by a letter identifying the case title, civil action number, 25 and name of this Court; David N. Osegueda as a defendant in this action; and 26 specifying that payment is made pursuant to this Final Judgment. 27 28 Defendant shall simultaneously transmit photocopies of evidence of payment and case identifying information to the Commission’s counsel in this action. By 4 1 making this payment, Defendant relinquishes all legal and equitable right, title, and 2 interest in such funds and no part of the funds shall be returned to Defendant. The 3 Commission shall send the funds paid pursuant to this Final Judgment to the United 4 States Treasury. 5 The Commission may enforce the Court’s judgment for disgorgement and 6 prejudgment interest by moving for civil contempt (and/or through other collection 7 procedures authorized by law) at any time after 30 days following entry of this Final 8 Judgment. Defendant shall pay post judgment interest on any delinquent amounts 9 pursuant to 28 U.S.C. § 1961. VII. 10 11 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the 12 Consent is incorporated herein with the same force and effect as if fully set forth 13 herein, and that Defendant shall comply with all of the undertakings and agreements 14 set forth therein. VIII. 15 16 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for 17 purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 18 11 U.S.C. § 523, the allegations in the complaint are true and admitted by Defendant, 19 and further, any debt for disgorgement, prejudgment interest, civil penalty or other 20 amounts due by Defendant under this Judgment or any other judgment, order, consent 21 order, decree or settlement agreement entered in connection with this proceeding, is a 22 debt for the violation by Defendant of the federal securities laws or any regulation or 23 order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy 24 Code, 11 U.S.C. § 523(a)(19). IX. 25 26 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court 27 shall retain jurisdiction of this matter for the purposes of enforcing the terms of this 28 Judgment. 5 1 X. 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 Judgment forthwith and 4 without further notice. 5 6 7 8 Dated: ______________, _____ November 4, 2019 ____________________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I am over the age of 18 years and not a party to this action. My business address is: U.S. SECURITIES AND EXCHANGE COMMISSION, 444 S. Flower Street, Suite 900, Los Angeles, California 90071 Telephone No. (323) 965-3998; Facsimile No. (213) 443-1904. On October 24, 2019, I caused to be served the document entitled FINAL JUDGMENT AS TO DEFENDANT DAVID N. OSEGUEDA on all the parties to this action addressed as stated on the attached service list: OFFICE MAIL: By placing in sealed envelope(s), which I placed for collection and mailing today following ordinary business practices. I am readily familiar with this agency’s practice for collection and processing of correspondence for mailing; such correspondence would be deposited with the U.S. Postal Service on the same day in the ordinary course of business. PERSONAL DEPOSIT IN MAIL: By placing in sealed envelope(s), which I personally deposited with the U.S. Postal Service. Each such envelope was deposited with the U.S. Postal Service at Los Angeles, California, with first class postage thereon fully prepaid. EXPRESS U.S. MAIL: Each such envelope was deposited in a facility regularly maintained at the U.S. Postal Service for receipt of Express Mail at Los Angeles, California, with Express Mail postage paid. HAND DELIVERY: I caused to be hand delivered each such envelope to the office of the addressee as stated on the attached service list. UNITED PARCEL SERVICE: By placing in sealed envelope(s) designated by United Parcel Service (“UPS”) with delivery fees paid or provided for, which I deposited in a facility regularly maintained by UPS or delivered to a UPS courier, at Los Angeles, California. ELECTRONIC MAIL: By transmitting the document by electronic mail to the electronic mail address as stated on the attached service list. E-FILING: By causing the document to be electronically filed via the Court’s CM/ECF system, which effects electronic service on counsel who are registered with the CM/ECF system. FAX: By transmitting the document by facsimile transmission. The transmission was reported as complete and without error. I declare under penalty of perjury that the foregoing is true and correct. Date: October 24, 2019 /s/ Lynn M. Dean LYNN M. DEAN 27 28 1 2 SEC v. Osegueda, et al. United States District Court – Central District of California Case No. 2:19-cv-04348-PSG-AGR 3 SERVICE LIST 4 Edward Gelfand, Esq. Brett Heeger, Esq. Gartenberg Gelfand Hayton LLP 15260 Ventura Blvd., Suite 1920 Sherman Oaks, CA 91403 (213) 542-2100 egelfand@gghslaw.com bheeger@gghslaw.com Attorneys for Defendant David N. Osegueda 1 5 6 7 8 9 10 11 12 13 14 15 16 17 Jonathan A. Loeb, Esq. (by ECF) Martin A. Krezalek, Esq. Blank Rome LLP 2029 Century Park East, 6th Floor Los Angeles, CA 90067 (424) 239-3400 jloeb@blankrome.com mkrezalek@blankrome.com Attorneys for Defendant Ishmail Calvin Ross Mr. Zachary R. Logan 6455 La Jolla Blvd. #235 La Jolla, CA 92037 Defendant Zachary R. Logan (Pro Se) 18 19 20 21 22 Guy David Knoller, Esq. (by email) Law Offices of Guy David Knoller, PLLC 18221 N. 42nd Street Phoenix, AZ 85032 (602) 799-2346 guydknoller@gmail.com Attorney for Defendant Jessica Snyder 23 24 25 26 27 28 2
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