U.S. Securities and Exchange Commission v. Patrick S. Carter et al, No. 8:2016cv02070 - Document 92 (C.D. Cal. 2019)
Court Description: FINAL JUDGMENT AS TO DEFENDANT PETER J. KIRKBRIDE 89 by Judge James V. Selna. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $150,000, representing profits gained as a result of the c onduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $15,041, for a total of $165,041. Defendant shall satisfy this obligation by paying $165,041 to the Securities and Exchange Commission within 14 days after entry of this Final Judgment. (SEE JUDGMENT FOR FURTHER DETAILS) (es)
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U.S. Securities and Exchange Commission v. Patrick S. Carter et al Doc. 92 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 Southern Division 9 10 11 SECURITIES AND EXCHANGE COMMISSION, 12 Plaintiff, 13 14 15 16 17 18 19 Case No. 8:16-CV-02070-JVS-DFM FINAL JUDGMENT AS TO DEFENDANT PETER J. KIRKBRIDE vs. PATRICK S. CARTER, 808 RENEWABLE ENERGY CORPORATION, 808 INVESTMENTS, LLC, MARTIN J. KINCHLOE, PETER J. KIRKBRIDE, WEST COAST COMMODITIES, LLC, THOMAS A. FLOWERS, and T.A. FLOWERS LLC, Defendants. 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 The Securities and Exchange Commission having filed a Complaint and 2 defendant Peter J. Kirkbride (“Kirkbride” or “Defendant”) having entered a general 3 appearance; consented to the Court’s jurisdiction over Defendant and the subject 4 matter of this action, consented to entry of this Final Judgment without admitting or 5 denying the allegations of the Complaint (except as to jurisdiction and except as 6 otherwise provided herein in paragraph IX), waived findings of fact and conclusions 7 of law; and waived any right to appeal from this Final 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 19 of the circumstances under which they were made, not misleading; or 20 21 (c) to engage in any act, practice, or course of business which operates or 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 Final Judgment by personal 25 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 26 attorneys; and (b) other persons in active concert or participation with Defendant or 27 with anyone described in (a). 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 10 make the statements made, in light of the circumstances under which 11 they were made, not misleading; or 12 13 (c) to engage in any transaction, practice, or course of business which 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 Final Judgment by personal 17 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 18 attorneys; and (b) other persons in active concert or participation with Defendant or 19 with anyone described in (a). III. 20 21 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 22 is permanently restrained and enjoined from soliciting, accepting, or depositing any 23 monies from actual or prospective investors in connection with any offering of 24 securities, provided, however, that such injunction shall not prevent Defendant from 25 purchasing or selling securities listed on a national securities exchange for 26 Defendant’s own personal accounts. 27 28 IV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, pursuant 2 1 to Section 21(d)(2) of the Exchange Act [15 U.S.C. § 78u(d)(2)] and Section 20(e) of 2 the Securities Act [15 U.S.C. § 77t(e)], Defendant is prohibited, for five years 3 following the date of entry of this Final Judgment, from acting as an officer or 4 director of any issuer that has a class of securities registered pursuant to Section 12 of 5 the Exchange Act [15 U.S.C. § 78l] or that is required to file reports pursuant to 6 Section 15(d) of the Exchange Act [15 U.S.C. § 78o(d)]. V. 7 8 9 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is permanently barred from participating in an offering of penny stock, 10 including engaging in activities with a broker, dealer, or issuer for purposes of 11 issuing, trading, or inducing or attempting to induce the purchase or sale of any penny 12 stock. A penny stock is any equity security that has a price of less than five dollars, 13 except as provided in Rule 3a51-1 under the Exchange Act [17 C.F.R. 240.3a51-1]. VI. 14 15 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 16 Defendant is liable for disgorgement of $150,000, representing profits gained as a 17 result of the conduct alleged in the Complaint, together with prejudgment interest 18 thereon in the amount of $15,041, for a total of $165,041. Defendant shall satisfy this 19 obligation by paying $165,041 to the Securities and Exchange Commission within 14 20 days after entry of this Final Judgment. 21 Defendant may transmit payment electronically to the SEC, which will provide 22 detailed ACH transfer/Fedwire instructions upon request. Payment may also be made 23 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 25 check, bank cashier’s check, or United States postal money order payable to the 26 Securities and Exchange Commission, which shall be delivered or mailed to 27 Enterprise Services Center 28 Accounts Receivable Branch 3 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, 4 and name of this Court; Kirkbride as a defendant in this action; and specifying that 5 payment is made pursuant to this Final Judgment. 6 Defendant shall simultaneously transmit photocopies of evidence of payment 7 and case identifying information to the SEC’s counsel in this action. By making 8 these payments, Defendant relinquishes all legal and equitable right, title, and interest 9 in such funds and no part of the funds shall be returned to Defendants. 10 The SEC shall hold the funds (collectively, the “Fund”) and may propose a 11 plan to distribute the Fund subject to the Court’s approval. The Court shall retain 12 jurisdiction over the administration of any distribution of the Fund. If the SEC staff 13 determines that the Fund will not be distributed, the SEC shall send the funds paid 14 pursuant to this Final Judgment to the United States Treasury. 15 The SEC may enforce the Court’s judgment for disgorgement and prejudgment 16 interest by moving for civil contempt (and/or through other collection procedures 17 authorized by law) at any time after 14 days following entry of this Final Judgment. 18 Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 19 U.S.C. § 1961. 20 21 VII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 22 shall pay a civil penalty in the amount of $80,000 to the Securities and Exchange 23 Commission pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and 24 Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall make 25 this payment within 14 days after entry of this Final Judgment. 26 Defendant may transmit payment electronically to the SEC, which will provide 27 detailed ACH transfer/Fedwire instructions upon request. Payment may also be made 28 directly from a bank account via Pay.gov through the SEC website at 4 1 http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified 2 check, bank cashier’s check, or United States postal money order payable to the 3 Securities and Exchange Commission, which shall be delivered or mailed to 4 Enterprise Services Center 5 Accounts Receivable Branch 6 6500 South MacArthur Boulevard 7 Oklahoma City, OK 73169 8 and shall be accompanied by a letter identifying the case title, civil action number, 9 and name of this Court; Kirkbride as a defendant in this action; and specifying that 10 payment is made pursuant to this Final Judgment. Defendant shall simultaneously 11 transmit photocopies of evidence of payment and case identifying information to the 12 SEC’s counsel in this action. By making these payments, Defendant relinquishes all 13 legal and equitable right, title, and interest in such funds and no part of the funds shall 14 be returned to Defendant. The SEC shall send the funds paid pursuant to this Final 15 Judgment to the United States Treasury. Defendant shall pay post-judgment interest 16 on any delinquent amounts pursuant to 28 U.S.C. § 1961. 17 VIII. 18 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the 19 Consent of Defendants Peter J. Kirkbride to Entry of Final Judgment is incorporated 20 herein with the same force and effect as if fully set forth herein, and that Defendant 21 shall comply with all of the undertakings and agreements set forth therein. 22 IX. 23 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for 24 purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 25 11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant, 26 and further, any debt for disgorgement, prejudgment interest, civil penalty or other 27 amounts due by Defendant under this Final Judgment or any other judgment, order, 28 consent order, decree or settlement agreement entered in connection with this 5 1 proceeding, is a debt for the violation by Defendant of the federal securities laws or 2 any regulation or order issued under such laws, as set forth in Section 523(a)(19) of 3 the Bankruptcy Code, 11 U.S.C. §523(a)(19). X. 4 5 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court 6 shall retain jurisdiction of this matter for the purposes of enforcing the terms of this 7 Final Judgment. 8 XI. 9 There being no just reason for delay, pursuant to Rule 54(b) of the Federal 10 Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment forthwith 11 and without further notice. 12 13 14 15 Dated: December 11, 2019 ________________________________ HON. JAMES V. SELNA UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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