Securities and Exchange Commission v. Granite Construction, Inc., No. 4:2022cv04857 - Document 10 (N.D. Cal. 2022)
Court Description: FINAL JUDGMENT AS TO DEFENDANT GRANITE CONSTRUCTION INC. Re Docket No. 5 . ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 9/9/2022. (ndr, COURT STAFF) (Filed on 9/9/2022)
Download PDF
<![CDATA[
Securities and Exchange Commission v. Granite Construction, Inc. Doc. 10 1 MONIQUE C. WINKLER (Cal. Bar No. 213031) SUSAN F. LAMARCA (Cal. Bar No. 215231) 2 lamarcas@sec.gov JENNIFER J. LEE (Cal. Bar No. 261399) 3 leejen@sec.gov DAVID ZHOU (NY Bar No. 4926523) 4 zhoud@sec.gov ANTHONY J. MORENO (Cal. Bar No. 219220) 5 morenoa@sec.gov 6 Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION 7 44 Montgomery Street, Suite 2800 San Francisco, CA 94104 8 Telephone: (415) 705-2500 Facsimile: (415) 705-2501 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 14 SECURITIES AND EXCHANGE COMMISSION, Case No. 4:22-cv-4857-HSG Plaintiff, FINAL JUDGMENT AS TO DEFENDANT GRANITE CONSTRUCTION INC. 15 v. 16 GRANITE CONSTRUCTION INC., 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT AS TO DEFENDANT GRANITE CONSTRUCTION, INC. The Securities and Exchange Commission having filed a Complaint and Defendant Granite Construction, Inc. (“Defendant”) having entered a general appearance; consented to the Court’s jurisdiction over Defendant and the subject matter of this action; consented to entry of this Final Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right to appeal from this Final Judgment: I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Dockets.Justia.com 1 Exchange Act of 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 interstate commerce, or 3 of the mails, or of any facility of any national securities exchange, in connection with the purchase or 4 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 material fact 7 necessary in order to make the statements made, in the light of the circumstances 8 under which they were made, not misleading; or 9 (c) operate as a fraud or deceit upon any person. 10 11 to engage in any act, practice, or course of business which operates or would IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal 12 Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive 13 actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s officers, 14 agents, servants, employees, and attorneys; and (b) other persons in active concert or participation 15 with Defendant or with anyone described in (a). II. 16 17 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is 18 permanently restrained and enjoined from violating Section 17(a) of the Securities Act of 1933 (the 19 “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale of any security by the use of any means or 20 instruments of transportation or communication in interstate commerce or by use of the mails, 21 directly or indirectly: 22 (a) to employ any device, scheme, or artifice to defraud; 23 (b) to obtain money or property by means of any untrue statement of a material fact or any 24 omission of a material fact necessary in order to make the statements made, in light of 25 the circumstances under which they were made, not misleading; or 26 27 (c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. 28 FINAL JUDGMENT OF GRANITE CONSTRUCTION, INC. 2 1 2 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal 3 Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive 4 actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s officers, 5 agents, servants, employees, and attorneys; and (b) other persons in active concert or participation 6 with Defendant or with anyone described in (a). III. 7 8 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently 9 restrained and enjoined from violating, directly or indirectly, Section 13(a) of the Exchange Act [15 10 U.S.C. §78m(a)] and Rules 12b-20, 13a-1, 13a-11, and 13a-13 promulgated thereunder [17 C.F.R. 11 §§240.12b-20, 240.13a-1, 240.13a-11, and 240.13a-13] by failing to file, or by filing or causing to be 12 filed, with the Commission any report required to be filed with the Commission pursuant to Section 13 13(a) of the Exchange Act and the rules and regulations promulgated thereunder, which filed report 14 omits to disclose any information required to be disclosed or such further information, if any, as may 15 be necessary to make the statements, in light of the circumstances under which they were made not 16 misleading. 17 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal 18 Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive 19 actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s officers, 20 agents, servants, employees, and attorneys; and (b) other persons in active concert or participation 21 with Defendant or with anyone described in (a). IV. 22 23 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently 24 restrained and enjoined from violating, directly or indirectly, Section 13(a)(b)(2)(A) of the Exchange 25 Act [15 U.S.C. §78m(b)(2)(A)] by failing to make and keep books, records, and accounts, which, in 26 reasonable detail, accurately and fairly reflect the expenses and transactions of Defendant. 27 28 FINAL JUDGMENT OF GRANITE CONSTRUCTION, INC. 3 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal 1 2 Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive 3 actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s officers, 4 agents, servants, employees, and attorneys; and (b) other persons in active concert or participation 5 with Defendant or with anyone described in (a). V. 6 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently 7 8 restrained and enjoined from violating, directly or indirectly, Section 13(a)(b)(2)(B) of the Exchange 9 Act [15 U.S.C. §78m(b)(2)(B)] by failing to devise and maintain a system of internal accounting 10 controls sufficient to provide reasonable assurances that transactions are recorded as necessary to 11 permit preparation of the financial statements in conformity with generally accepted accounting 12 principles or any other criteria applicable to such statements, and to maintain accountability for such 13 assets. 14 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal 15 Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive 16 actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s officers, 17 agents, servants, employees, and attorneys; and (b) other persons in active concert or participation 18 with Defendant or with anyone described in (a). VI. 19 20 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall 21 pay a civil penalty in the amount of $12,000,000 to the Securities and Exchange Commission 22 pursuant to Section 20(d) of the Securities Act[15 U.S.C. §77t(d)] and Section 21(d) of the Exchange 23 Act [15 U.S.C. §78u(d)] . Defendant shall satisfy this obligation by paying $12,000,000 to the 24 Securities and Exchange Commission within ten days after the entry of this Final Judgment. 25 Defendant may transmit payment electronically to the Commission, which will provide 26 detailed ACH transfer/Fedwire instructions upon request. Payment may also be made directly from a 27 bank account via Pay.gov through the SEC website at http://www.sec.gov/about/offices/ofm.htm. 28 FINAL JUDGMENT OF GRANITE CONSTRUCTION, INC. 4 1 Defendant may also pay by certified check, bank cashier’s check, or United States postal money 2 order payable to the Securities and Exchange Commission, which shall be delivered or mailed to: 3 4 5 6 Enterprise Services Center Accounts Receivable Branch 6500 South MacArthur Boulevard Oklahoma City, OK 73169 and shall be accompanied by a letter identifying the case title, civil action number, and name of this 7 Court; Granite Construction, Inc. as a defendant in this action; and specifying that payment is made 8 pursuant to this Final Judgment. 9 Defendant shall simultaneously transmit photocopies of evidence of payment and case 10 identifying information to the Commission’s counsel in this action. By making this payment, 11 Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part of the 12 funds shall be returned to Defendant. 13 The Commission may enforce the Court’s judgment for penalties by the use of all collection 14 procedures authorized by law, including the Federal Debt Collection Procedures Act, 28 U.S.C. § 15 3001 et seq., and moving for civil contempt for the violation of any Court orders issued in this action. 16 Defendant shall pay post judgment interest on any amounts due after 30 days of the entry of this Final 17 Judgment pursuant to 28 U.S.C. § 1961. The Commission shall hold the funds, together with any 18 interest and income earned thereon (collectively, the “Fund”), pending further order of the Court. 19 The Commission may propose a plan to distribute the Fund subject to the Court’s approval. 20 Such a plan may provide that the Fund shall be distributed pursuant to the Fair Fund provisions of 21 Section 308(a) of the Sarbanes-Oxley Act of 2002. The Court shall retain jurisdiction over the 22 administration of any distribution of the Fund and the Fund may only be disbursed pursuant to an 23 Order of the Court. 24 Regardless of whether any such Fair Fund distribution is made, amounts ordered to be paid as 25 civil penalties pursuant to this Judgment shall be treated as penalties paid to the government for all 26 purposes, including all tax purposes. To preserve the deterrent effect of the civil penalty, Defendant 27 shall not, after offset or reduction of any award of compensatory damages in any Related Investor 28 FINAL JUDGMENT OF GRANITE CONSTRUCTION, INC. 5 1 Action based on Defendant’s payment of disgorgement in this action, argue that it is entitled to, nor 2 shall it further benefit by, offset or reduction of such compensatory damages award by the amount of 3 any part of Defendant’s payment of a civil penalty in this action (“Penalty Offset”). If the court in 4 any Related Investor Action grants such a Penalty Offset, Defendant shall, within 30 days after entry 5 of a final order granting the Penalty Offset, notify the Commission’s counsel in this action and pay 6 the amount of the Penalty Offset to the United States Treasury or to a Fair Fund, as the Commission 7 directs. Such a payment shall not be deemed an additional civil penalty and shall not be deemed to 8 change the amount of the civil penalty imposed in this Judgment. For purposes of this paragraph, a 9 “Related Investor Action” means a private damages action brought against Defendant by or on behalf 10 of one or more investors based on substantially the same facts as alleged in the Complaint in this 11 action. 12 VII. 13 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that based on 14 Defendant’s agreement to cooperate in a Commission investigation and/or related enforcement 15 action, the Court is not ordering Defendant to pay a civil penalty in excess of $12,000,000. If at any 16 time following the entry of the Final Judgment the Commission obtains information indicating that 17 Defendant knowingly provided materially false or misleading information or materials to the 18 Commission or in a related proceeding, the Commission may, at its sole discretion and without prior 19 notice to the Defendant, petition the Court for an order requiring Defendant to pay an additional civil 20 penalty. In connection with any such petition and at any hearing held on such a motion: (a) 21 Defendant will be precluded from arguing that it did not violate the federal securities laws as alleged 22 in the Complaint; (b) Defendant may not challenge the validity of the Judgment, this Consent, or any 23 related Undertakings; (c) the allegations of the Complaint, solely for the purposes of such motion, 24 shall be accepted as and deemed true by the Court; and (d) the Court may determine the issues raised 25 in the motion on the basis of affidavits, declarations, excerpts of sworn deposition or investigative 26 testimony, and documentary evidence without regard to the standards for summary judgment 27 28 FINAL JUDGMENT OF GRANITE CONSTRUCTION, INC. 6 1 contained in Rule 56(c) of the Federal Rules of Civil Procedure. Under these circumstances, the 2 parties may take discovery, including discovery from appropriate non-parties. VIII. 3 4 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is 5 incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall 6 comply with all of the agreements set forth therein. IX. 7 8 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain 9 jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. X. 10 11 There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil 12 Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice. 13 14 15 16 Dated: 9/9/2022 ____________________________________ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT OF GRANITE CONSTRUCTION, INC. 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
