Securities And Exchange Commission v. Sells et al, No. 4:2011cv04941 - Document 126 (N.D. Cal. 2013)
Court Description: FINAL JUDGMENT AS TO DEEFENDANT TIMOTHY MURAWSKI. Signed by Judge Claudia Wilken on 11/6/2013. (ndr, COURT STAFF) (Filed on 11/6/2013)
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Securities And Exchange Commission v. Sells et al Doc. 126 1 JINA L. CHOI (Admitted to the New York Bar) SHEILA E. O’CALLAGHAN (Cal. Bar No. 131032) 2 ocallaghans@sec.gov SUSAN F. LaMARCA (Cal. Bar No. 215231) 3 lamarcas@sec.gov LLOYD A. FARNHAM (Cal. Bar No. 202231) 4 farnhaml@sec.gov 5 Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION 6 44 Montgomery Street, Suite 2800 San Francisco, California 94104 7 Telephone: (415) 705-2500 Facsimile: (415) 705-2501 8 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 14 SECURITIES AND EXCHANGE COMMISSION, Case No. C 11-04941 CW (NC) Plaintiff, 15 16 v. [PROPOSED] FINAL JUDGMENT AS TO DEFENDANT TIMOTHY MURAWSKI 17 CHRISTOPHER SELLS and TIMOTHY MURAWSKI, 18 Defendants. 19 20 21 22 23 24 The Securities and Exchange Commission, having filed a Complaint, and Defendant Timothy 25 Murawski, having entered a general appearance; consented to the Court’s jurisdiction over Defendant 26 and the subject matter of this action; consented to entry of this Final Judgment without admitting or 27 denying the allegations of the complaint (except as to jurisdiction); waived findings of fact and 28 conclusions of law; and waived any right to appeal from this Final Judgment: [PROPOSED] FINAL JUDGMENT AS TO TIMOTHY MURAWSKI 1 SEC V. SELLS, ET AL. CASE NO. C-11-04941 CW (NC) Dockets.Justia.com 1 2 I. IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant and Defendant’s 3 agents, servants, employees, attorneys-in-fact, and all persons in active concert or participation with 4 them who receive actual notice of this Final Judgment by personal service or otherwise are 5 permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the 6 Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Exchange Act Rule 7 10b-5(a) and (c) [17 C.F.R. § 240.10b-5(a) and (c)], by using any means or instrumentality of 8 interstate commerce, or of the mails, or of any facility of any national securities exchange, in 9 connection with the purchase or sale of any security: 10 (1) to employ any device, scheme, or artifice to defraud; or 11 (2) to engage in any act, practice, or course of business which operates or would operate 12 as a fraud or deceit upon any person. 13 II. 14 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant and 15 Defendant’s agents, servants, employees, attorneys-in-fact, and all persons in active concert or 16 participation with them who receive actual notice of this Final Judgment by personal service or 17 otherwise are permanently restrained and enjoined from violating Sections 17(a)(1) and (3) of the 18 Securities Act of 1933 (“Securities Act”) [15 U.S.C. §§ 77q(a)(1) and (3)] by the use of any means or 19 instruments of transportation or communication in interstate commerce or by use of the mails, in the 20 offer or sale of any security, directly or indirectly: 21 (a) employing any device, scheme, or artifice to defraud; or 22 (b) engaging in any transaction, practice, or course of business which operates or would 23 operate as a fraud or deceit upon the purchaser. 24 25 III. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant and 26 Defendant’s agents, servants, employees, attorneys-in-fact, and all persons in active concert or 27 participation with them who receive actual notice of this Final Judgment by personal service or 28 otherwise are permanently restrained and enjoined from aiding and abetting any violation of Section [PROPOSED] FINAL JUDGMENT AS TO TIMOTHY MURAWSKI 2 SEC V. SELLS, ET AL. CASE NO. C-11-04941 CW (NC) 1 13(a) of the Exchange Act [15 US.C. § 78m(a)] and Exchange Act Rules 12b-20, 13a-1, and 13a-13 2 [17 C.F.R. §§ 240.12b-20, 240.13a-1, 240.13a-13] by knowingly providing substantial assistance to 3 an issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act [15 4 U.S.C. § 78l] or which is required to file reports pursuant to Section 15(d) of the Exchange Act [15 5 U.S.C. § 78o(d)] in failing to file with the Commission such accurate and complete information, 6 reports, and documents as are required to be filed with the Commission pursuant to Section 13(a) of 7 the Exchange Act [15 U.S.C. § 78m(a)] and the Commission’s Rules, including annual reports on 8 Form 10-K and quarterly reports on Form 10-Q. 9 10 IV. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant and 11 Defendant’s agents, servants, employees, attorneys-in-fact, and all persons in active concert or 12 participation with any of them, who receive actual notice of this Final Judgment, by personal service 13 or otherwise, and each of them, are permanently enjoined and restrained from, directly or indirectly, 14 violating Section 13(b)(5) of the Exchange Act [15 U.S.C. § 78m(b)(5)], by knowingly 15 circumventing or failing to implement a system of internal accounting controls or knowingly 16 falsifying any book, record, or account described in Section 13(b)(2) of the Exchange Act [15 U.S.C. 17 § 78m(b)(2)]. 18 19 V. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant and his agents, 20 servants, employees and attorneys-in-fact, and all persons in active concert or participation with any 21 of them, who receive actual notice of this Final Judgment, by personal service or otherwise, and each 22 of them, are permanently enjoined and restrained from violating Exchange Act Rule 13b2-1 [17 23 C.F.R. § 240.13b2-1] by, directly or indirectly, falsifying or causing to be falsified any book, record 24 or account subjection to Section 13(b)(2) of the Exchange Act [15 U.S.C. § 78m(b)(2)]. 25 26 VI. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant and his agents, 27 servants, employees and attorneys-in-fact, and all persons in active concert or participation with any 28 of them, who receive actual notice of this Final Judgment, by personal service or otherwise, and each [PROPOSED] FINAL JUDGMENT AS TO TIMOTHY MURAWSKI 3 SEC V. SELLS, ET AL. CASE NO. C-11-04941 CW (NC) 1 of them, are permanently enjoined and restrained from aiding and abetting any violation of Sections 2 13(b)(2)(A) and (B) of the Exchange Act [15 U.S.C. § 78m(b)(2)(A) and (B)] by providing 3 substantial assistance to any issuer which has a class of securities registered pursuant to Section 12 of 4 the Exchange Act [15 U.S.C. § 78l] or which is required to file reports pursuant to Section 15(d) of 5 the Exchange Act [15 U.S.C. § 78o(d)] in failing to make or keep books, records or accounts, which, 6 in reasonable detail, accurately and fairly reflect the transactions and dispositions of the issuer’s 7 assets, or in failing to devise and maintain a system of internal accounting controls sufficient to 8 provide reasonable assurance that transactions are recorded as necessary to permit preparation of 9 financial statements in conformity with generally accepted accounting principles or other applicable 10 criteria. 11 12 VII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall pay a 13 civil penalty in the amount of $35,000 to the Securities and Exchange Commission pursuant to 14 Section 21(d) of the Exchange Act [15 U.S.C. § 78u(d)] and Section 20(d) of the Securities Act [15 15 U.S.C. § 77t(d)]. Defendant shall make this payment within 14 days after entry of this Final 16 Judgment. 17 Defendant may transmit payment electronically to the Commission, which will provide 18 detailed ACH transfer/Fedwire instructions upon request. Payment may also be made directly from a 19 bank account via Pay.gov through the SEC website at http://www.sec.gov/about/offices/ofm.htm. 20 Defendant may also pay by certified check, bank cashier’s check, or United States postal money 21 order payable to the Securities and Exchange Commission, which shall be delivered or mailed to 22 23 24 Enterprise Services Center Accounts Receivable Branch 6500 South MacArthur Boulevard Oklahoma City, OK 73169 25 and shall be accompanied by a letter identifying the case title, civil action number, and name of this 26 Court; Timothy Murawski as a defendant in this action; and specifying that payment is made pursuant 27 to this Final Judgment. 28 Defendant shall simultaneously transmit photocopies of evidence of payment and case [PROPOSED] FINAL JUDGMENT AS TO TIMOTHY MURAWSKI 4 SEC V. SELLS, ET AL. CASE NO. C-11-04941 CW (NC) 1 identifying information to the Commission’s counsel in this action. By making this payment, 2 Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part of the 3 funds shall be returned to Defendant. The Commission shall send the funds paid pursuant to this 4 Final Judgment to the United States Treasury. Defendant shall pay post-judgment interest on any 5 delinquent amounts pursuant to 28 USC § 1961. 6 7 VIII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is 8 incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall 9 comply with all of the undertakings and agreements set forth therein. 10 11 IX. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain 12 jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. 13 14 X. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil 15 Procedure, the Clerk is ordered to enter this Judgment forthwith and without further notice. 16 17 18 19 Dated: __________________, 2013 November 6 20 ___________________________ Claudia Wilken UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 [PROPOSED] FINAL JUDGMENT AS TO TIMOTHY MURAWSKI 5 SEC V. SELLS, ET AL. CASE NO. C-11-04941 CW (NC)
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