Securities and Exchange Commission v. Anthony Todd Johnson et al, No. 5:2020cv01493 - Document 140 (C.D. Cal. 2022)
Court Description: FINAL JUDGMENT AS TO DEFENDANT MARK W. HECKELE by Judge Mark C. Scarsi: For the reasons set forth in the Courts January 26, 2022 order granting in part and denying in part summary judgment (ECF No. 83) and the Courts findings of fact and conclusion s of law 139 : Defendant Mark W. Heckele violated and is permanently restrained and enjoined re violations of SEC ACT as specified and enumerated herein. Heckele shall pay disgorgement in the amount of $268,237.50 together with prejudgm ent interest in the amount of $42,595.22, for a total of $310,832.72, all of which represents net profits gained as a result of the conduct alleged in the Complaint, which the Court finds is for the benefit of investors. The Court further imposes a civil penalty against Heckele in the amount of $207,183.00. Heckele shall satisfy these obligations by paying for aforementioned sums to the Securities and Exchange Commission with 30 days after entry of this Final Judgment. (SEE DOCUMENT FOR COMPLIANCE REQUIREMENTS AND DEADLINES). (MD JS-6, Case Terminated). (lc)
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Securities and Exchange Commission v. Anthony Todd Johnson et al Doc. 140 1 2 JS-6 3 4 5 NOTE CHANGES MADE BY THE COURT 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 Eastern Division 13 14 15 16 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, 17 18 Case No. 5:20-cv-01493-MCS-SHK AMENDED [PROPOSED] FINAL JUDGMENT AS TO DEFENDANT MARK W. HECKELE vs. 19 ANTHONY TODD JOHSON, et al., 20 Defendants. 21 22 For the reasons set forth in the Court’s January 26, 2022 order granting in part 23 and denying in part summary judgment (ECF No. 83) and the Court’s findings of fact 24 and conclusions of law: 25 I. 26 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant 27 Mark W. Heckele (“Heckele”) violated and is permanently restrained and enjoined 28 from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1 Dockets.Justia.com 1 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated 2 thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of 3 interstate commerce, or of the mails, or of any facility of any national securities 4 exchange, in connection with the purchase or sale of any security: 5 (a) to employ any device, scheme, or artifice to defraud; 6 (b) to make any untrue statement of a material fact or to omit to state a 7 material fact necessary in order to make the statements made, in the light 8 of the circumstances under which they were made, not misleading; or 9 (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. 10 11 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 12 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 13 binds the following who receive actual notice of this Judgment by personal service or 14 otherwise: (a) Heckele’s officers, agents, servants, employees, and attorneys; and 15 (b) other persons in active concert or participation with Heckele or with anyone 16 described in (a). II. 17 18 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 19 Heckele is permanently restrained and enjoined from violating Section 17(a) of the 20 Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale 21 of any security by the use of any means or instruments of transportation or 22 communication in interstate commerce or by use of the mails, directly or indirectly: 23 (a) to employ any device, scheme, or artifice to defraud; 24 (b) to obtain money or property by means of any untrue statement of a 25 material fact or any omission of a material fact necessary in order to 26 make the statements made, in light of the circumstances under which 27 they were made, not misleading; or 28 (c) to engage in any transaction, practice, or course of business which 2 1 operates or would operate as a fraud or deceit upon the purchaser. 2 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 3 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 4 binds the following who receive actual notice of this Judgment by personal service or 5 otherwise: (a) Heckele’s officers, agents, servants, employees, and attorneys; and 6 (b) other persons in active concert or participation with Heckele or with anyone 7 described in (a). III. 8 9 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 10 Heckele violated and is permanently restrained and enjoined from violating Section 5 11 of the Securities Act [15 U.S.C. § 77e] by, directly or indirectly, in the absence of any 12 applicable exemption: 13 (a) Unless a registration statement is in effect as to a security, making use of 14 any means or instruments of transportation or communication in 15 interstate commerce or of the mails to sell such security through the use 16 or medium of any prospectus or otherwise; 17 (b) Unless a registration statement is in effect as to a security, carrying or 18 causing to be carried through the mails or in interstate commerce, by any 19 means or instruments of transportation, any such security for the purpose 20 of sale or for delivery after sale; or 21 (c) Making use of any means or instruments of transportation or 22 communication in interstate commerce or of the mails to offer to sell or 23 offer to buy through the use or medium of any prospectus or otherwise 24 any security, unless a registration statement has been filed with the 25 Commission as to such security, or while the registration statement is the 26 subject of a refusal order or stop order or (prior to the effective date of 27 the registration statement) any public proceeding or examination under 28 Section 8 of the Securities Act [15 U.S.C. § 77h]. 3 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 Judgment by personal service or 4 otherwise: (a) Heckele’s officers, agents, servants, employees, and attorneys; and 5 (b) other persons in active concert or participation with Heckele or with anyone 6 described in (a). IV. 7 8 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 9 Heckele violated and is permanently restrained and enjoined from violating, directly 10 or indirectly, Section 15(a) of the Exchange Act, 15 U.S.C. § 78o(a), which makes it 11 unlawful for any broker or dealer which is either a person other than a natural person 12 or a natural person, to make use of the mails or any means or instrumentality of 13 interstate commerce to effect any transactions in, or to induce or attempt to induce the 14 purchase or sale of, any security (other than an exempted security or commercial 15 paper, bankers’ acceptances, or commercial bills) unless such broker or dealer is 16 registered in accordance with Section 15(b) of the Exchange Act, 15 U.S.C. § 78o(b). 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 Judgment by personal service or 20 otherwise: (a) Heckele’s officers, agents, servants, employees, and attorneys; and 21 (b) other persons in active concert or participation with Heckele or with anyone 22 described in (a). 23 24 V. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 25 Heckele shall pay disgorgement in the amount of $268,237.50 together with 26 prejudgment interest in the amount of $42,595.22, for a total of $310,832.72, all of 27 which represents net profits gained as a result of the conduct alleged in the 28 Complaint, which the Court finds is for the benefit of investors. The Court further 4 1 imposes a civil penalty against Heckele in the amount of $195,047.00 $207,183.00 2 pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d) 3 of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Heckele shall satisfy these obligations 4 by paying for aforementioned sums to the Securities and Exchange Commission with 5 30 days after entry of this Final Judgment. 6 Heckele may transmit payment electronically to the Commission, which will 7 provide detailed ACH transfer/Fedwire instructions upon request. Payment may also 8 be made directly from a bank account via Pay.gov through the SEC website at 9 http://www.sec.gov/about/offices/ofm.htm. Heckele may also pay by certified check, 10 bank cashier’s check, or United States postal money order payable to the Securities 11 and Exchange Commission, which shall be delivered or mailed to 12 Enterprise Services Center 13 Accounts Receivable Branch 14 6500 South MacArthur Boulevard 15 Oklahoma City, OK 73169 16 and shall be accompanied by a letter identifying the case title, civil action number, 17 and name of this Court; Mark W. Heckele as a defendant in this action; and 18 specifying that payment is made pursuant to this Final Judgment. 19 Heckele shall simultaneously transmit photocopies of evidence of payment and 20 case identifying information to the Commission’s counsel in this action. By making 21 this payment, Heckele relinquish all legal and equitable right, title, and interest in 22 such funds, and no part of the funds shall be returned to Heckele. 23 The Commission may enforce the Court’s judgment for disgorgement and 24 prejudgment interest by using all collection procedures authorized by law, including, 25 but not limited to, moving for civil contempt at any time after 30 days following entry 26 of this Final Judgment. The Commission may enforce the Court’s judgment for 27 penalties by the use of all collection procedures authorized by law, including the 28 Federal Debt Collection Procedures Act, 28 U.S.C. § 3001 et seq., and moving for 5 1 2 3 4 civil contempt for the violation of any Court orders issued in this action. Heckele shall pay post judgment interest on any amounts due after 30 days of the entry of this Final Judgment pursuant to 28 U.S.C. § 1961. The Commission shall hold the funds (collectively, the “Fund”) until further 5 order of this Court. The SEC may shall propose a plan to distribute the Fund subject 6 to the Court’s approval, and the Court shall retain jurisdiction over the administration 7 of any distribution of the Fund. 8 9 Such a plan may provide that the Fund shall be distributed pursuant to the Fair Fund provisions of Section 308(a) of the Sarbanes-Oxley Act of 2002. The Court 10 shall retain jurisdiction over the administration of any distribution of the Fund and the 11 Fund may only be disbursed pursuant to an Order of the Court. 12 Regardless of whether any such Fair Fund distribution is made, amounts 13 ordered to be paid as civil penalties pursuant to this Judgment shall be treated as 14 penalties paid to the government for all purposes, including all tax purposes. To 15 preserve the deterrent effect of the civil penalty, Heckele shall not, after offset or 16 reduction of any award of compensatory damages in any Related Investor Action 17 based on Defendant’s payment of disgorgement in this action, argue that he is entitled 18 to, nor shall he further benefit by, offset or reduction of such compensatory damages 19 award by the amount of any part of Defendant’s payment of a civil penalty in this 20 action (“Penalty Offset”). If a court in any Related Investor Action grants such a 21 Penalty Offset, Heckele, within 30 days after entry of a final order granting the 22 Penalty Offset, notify the Commission’s counsel in this action and pay the amount of 23 the Penalty Offset to the United States Treasury or to a Fair Fund, as the Commission 24 directs. Such a payment shall not be deemed an additional civil penalty and shall not 25 be deemed to change the amount of the civil penalty imposed in this Judgment. For 26 purposes of this paragraph, a “Related Investor Action” means a private damages 27 action brought against Heckele by or on behalf of one or more investors based on 28 substantially the same facts as alleged in the Complaint in this action. 6 1 2 VI. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for 3 purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 4 11 U.S.C. § 523, the allegations in the complaint are true and admitted by Heckele, 5 and further, any debt for disgorgement, prejudgment interest, civil penalty or other 6 amounts due by Heckele under this Judgment or any other judgment, order, consent 7 order, decree or settlement agreement entered in connection with this proceeding, is a 8 debt for the violation by Heckele of the federal securities laws or any regulation or 9 order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy 10 Code, 11 U.S.C. §523(a)(19). VII. 11 12 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court 13 shall retain jurisdiction of this matter for the purposes of enforcing the terms of this 14 Judgment. 15 16 Dated: June 29, 2022 17 ________________________________ 18 MARK C. SCARSI UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 7
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