Securities and Exchange Commission v. David Sims et al, No. 8:2019cv00995 - Document 48 (C.D. Cal. 2020)
Court Description: FINAL JUDGMENT AS TO MARIO PROCOPIO, EL CETHER ELYOWN, ALC HOLDINGS, INC., 44 by Judge R. Gary Klausner. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that Defendants are permanently restrained and enjoined. FURTHER ORDERED, ADJUDGED, AND DECREED th at Defendants are liable, jointly and severally, for disgorgement of $597,000.00, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $90,249.00, for a total of $687,249.00. Defendants shall satisfy this obligation by paying $687,249.00 to the Securities and Exchange Commission within 30 days after entry of this Final Judgment. (MD JS-6, Case Terminated). (SEE FINAL JUDGMENT FOR FURTHER SPECIFICS). (jp)
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Securities and Exchange Commission v. David Sims et al 1 2 3 4 5 6 7 8 Doc. 48 DONALD W. SEARLES (Cal. Bar No. 135705) Email: searlesd@sec.gov DOUGLAS M. MILLER (Cal. Bar No. 240398) Email: millerdou@sec.gov MATTHEW T. MONTGOMERY (Cal. Bar No. 260149) Email: montgomerym@sec.gov Attorneys for Plaintiff Securities and Exchange Commission Michele Wein Layne, 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 JS-6 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 Western Division 12 13 14 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, 15 16 vs. 19 DAVID SIMS, MARIO PROCOPIO, RALPH C. GREAVES, ALC HOLDINGS, LLC, EL CETHERELYOWN, and SIMS EQUITIES, INC., 20 Defendants. 17 18 Case No. 8:19-cv-00995-RGK-SS [PROPOSED] FINAL JUDGMENT AS TO MARIO PROCOPIO, EL CETHER ELYOWN, ALC HOLDINGS, INC. 21 22 23 24 25 26 27 28 Case No. 8:19-cv-00995-RGK-SS Dockets.Justia.com 1 The Securities and Exchange Commission having filed a Complaint and 2 Defendant Mario Procopio (“Procopio”), El Cether Elyown (“ECE”) and ALC 3 Holdings, LLC (“ALC”), collectively “Defendants”, having entered a general 4 appearance; consented to the Court’s jurisdiction over them and the subject matter of 5 this action; consented to entry of this Final Judgment, without admitting or denying 6 the allegations of the Complaint (except as to jurisdiction); waived findings of fact 7 and conclusions of law; and waived any right to appeal from this Final Judgment: 8 9 I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that Defendants 10 are permanently restrained and enjoined from, directly or indirectly, in the offer or 11 sale of any securities, by the use of any means or instruments of transportation or 12 communication in interstate commerce or by the use of the mails: 13 A. employing any device, scheme or artifice to defraud; 14 B. obtaining money or property by means of any untrue statement of a 15 material fact or any omission to state a material fact necessary in order to 16 make the statements made, in light of the circumstances under which 17 they were made, not misleading; and 18 19 20 C. engaging in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser; in violation of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a). 21 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 22 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 23 binds the following who receive actual notice of this Final Judgment by personal 24 service or otherwise: (a) Defendants’ officers, agents, servants, employees, and 25 attorneys; and (b) other persons in active concert or participation with Defendants or 26 with anyone described in (a). 27 28 II. IT IS FURTHER ORDERED that Defendants are permanently restrained and 1 enjoined from, directly or indirectly, in connection with the purchase or sale of any 2 security, by the use of any means or instrumentality of interstate commerce, or of the 3 mails, or of any facility of any national securities exchange: 4 A. employing any device, scheme or artifice to defraud; 5 B. making any untrue statement of a material fact or to omit to state a 6 material fact necessary in order to make the statements made, in the 7 light of the circumstances under which they were made; and 8 9 B. engaging in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person; 10 in violation of Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 11 thereunder, 17 C.F.R. §§ 240.10b-5. 12 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 13 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 14 binds the following who receive actual notice of this Final Judgment by personal 15 service or otherwise: (a) Defendants’ officers, agents, servants, employees, and 16 attorneys; and (b) other persons in active concert or participation with Defendant or 17 with anyone described in (a). 18 III. 19 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that pursuant to 20 Section 21(d)(5) of the Exchange Act [15 U.S.C. § 78u(d)(5)], Defendant Procopio is 21 permanently restrained and enjoined, directly or indirectly, including, but not limited 22 to, through any entity owned or controlled by him, from participating in the issuance, 23 purchase, offer, or sale of any security in an unregistered offering by an issuer, 24 provided, however, that such injunction shall not prevent him from purchasing or 25 selling securities for his own personal account. 26 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as 27 provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also 28 binds the following who receive actual notice of this Final Judgment by personal 1 service or otherwise: (a) Defendant’s officers, agents, servants, employees, and 2 attorneys; and (b) other persons in active concert or participation with Defendant or 3 with anyone described in (a). 4 5 IV. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that 6 Defendants are liable, jointly and severally, for disgorgement of $597,000.00, 7 representing profits gained as a result of the conduct alleged in the Complaint, 8 together with prejudgment interest thereon in the amount of $90,249.00, for a total of 9 $687,249.00. Defendants shall satisfy this obligation by paying $687,249.00 to the 10 Securities and Exchange Commission within 30 days after entry of this Final 11 Judgment. 12 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED, that 13 Defendant Procopio shall pay a civil penalty in the amount of $597,000.00 to the 14 Securities and Exchange Commission pursuant to Section 20(d) of the Securities Act 15 [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 16 78u(d)(3)]. Defendant Procopio shall make that payment within 30 days after entry of 17 this Final Judgment. 18 Defendants may transmit payment electronically to the Commission, which 19 will provide detailed ACH transfer/Fedwire instructions upon request. Payment may 20 also be made directly from a bank account via Pay.gov through the SEC website at 21 http://www.sec.gov/about/offices/ofm.htm. Defendants may also pay by certified 22 check, bank cashier’s check, or United States postal money order payable to the 23 Securities and Exchange Commission, which shall be delivered or mailed to 24 Enterprise Services Center 25 Accounts Receivable Branch 26 6500 South MacArthur Boulevard 27 Oklahoma City, OK 73169 28 1 and shall be accompanied by a letter identifying the case title, civil action number, 2 and name of this Court; [Defendant’s name] as a defendant in this action; and 3 specifying that payment is made pursuant to this Final Judgment. 4 Defendants shall simultaneously transmit photocopies of evidence of payment 5 and case identifying information to the Commission’s counsel in this action. By 6 making this payment, Defendants relinquish all legal and equitable right, title, and 7 interest in such funds and no part of the funds shall be returned to Defendants. 8 The Commission shall hold the funds (collectively, the “Fund”) and may 9 propose a plan to distribute the Fund subject to the Court’s approval. The Court shall 10 retain jurisdiction over the administration of any distribution of the Fund. If the 11 Commission staff determines that the Fund will not be distributed, the Commission 12 shall send the funds paid pursuant to this Final Judgment to the United States 13 Treasury. 14 The Commission may enforce the Court’s judgment for disgorgement and 15 prejudgment interest by moving for civil contempt (and/or through other collection 16 procedures authorized by law) at any time after 30 days following entry of this Final 17 Judgment. Defendant shall pay post judgment interest on any delinquent amounts 18 pursuant to 28 U.S.C. § 1961. 19 20 V. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for 21 purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 22 11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendants, 23 and further, any debt for disgorgement, prejudgment interest, civil penalty or other 24 amouts due by Defendants under this Final Judgment or any other judgment, order, 25 consent order, decree or settlement agreement entered in connection with this 26 proceeding, is a debt for the violation by Defendants of the federal securities laws or 27 any regulation or order issued under such laws, as set forth in Section 523(a)(19) of 28 the Bankruptcy Code, 11 U.S.C. §523(a)(19). 1 2 VI. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the 3 Consent is incorporated herein with the same force and effect as if fully set forth 4 herein, and that Defendant shall comply with all of the agreements set forth therein. 5 6 VII. IT IS FURTHER ORDERED that this Court shall retain jurisdiction over this 7 action for the purpose of enforcing the terms of this Judgment and implementing and 8 carrying out the terms of all orders and decrees which may be entered herein and to 9 entertain any suitable application or motion for additional relief within the 10 jurisdiction of this Court. 11 VIII. 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 IT IS SO ORDERED. 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 2, 2020 ________________________________ UNITED STATES DISTRICT JUDGE 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 27 28 1
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