United States Securities and Exchange Commission v. Ruettiger et al, No. 2:2011cv02011 - Document 99 (D. Nev. 2015)

Court Description: FINAL JUDGMENT in favor of United States Securities and Exchange Commission against Chad P. Smanjak. Defendant is liable for disgorgement of $2,010,286, representing profits gained as a result of the conduct alleged in the Complaint, together w ith prejudgment interest thereon in the amount of $454,963, for a total of $2,465,249. This liability is deemed satisfied by Defendant's executed consent to forfeiture, dated March 29, 2013. Signed by Judge Jennifer A. Dorsey on 11/23/15. (Copies have been distributed pursuant to the NEF - MMM)
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United States Securities and Exchange Commission v. Ruettiger et al Doc. 99 Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 1 of 6 Paul W. Kisslinger Kyle M. DeYoung UNITED STATES SECURITIES AND EXCHANGE COMMISSION 100 F Street, N.E. Washington, D.C. 20549-5977 (202) 551-4427 (tel) (Kisslinger) (202) 772-9292 (fax) (Kisslinger) kisslingerp@sec.gov Daniel G. Bogden UNITED STATES ATTORNEY DISTRICT OF NEVADA Blaine T. Welsh Assistant United States Attorney Nevada Bar No. 4790 333 Las Vegas Boulevard South, Suite 5000 Las Vegas, Nevada 89101 Phone: (702) 388-6336 Facsimile: (702) 388-6787 Blaine.Welsh@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEVADA SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. DANIEL E. RUETTIGER, ROCCO BRANDONISIO, STEPHEN DECESARE, PAWEL P. DYNKOWSKI, KEVIN S. KAPLAN, GREGG R. MULHOLLAND, MEHMET MUSTAFOGLU, JOSEPH A. PADILLA, ANGELO R. PANETTA, KEVIN J. QUINN, ANDREA M. RITCHIE, CHAD P. SMANJAK, and GARY J. YOCOM, JAD-VCF Case No. 2:11-cv-02011-GMN-VCF FINAL JUDGMENT AS TO DEFENDANT CHAD P. SMANJAK Defendants. The Securities and Exchange Commission having filed a Complaint and Defendant Chad Dockets.Justia.com Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 2 of 6 P. Smanjak 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; 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 and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or 2 Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 3 of 6 otherwise are permanently restrained and enjoined from violating Section 17(a) of the Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale of any security by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly: (a) to employ any device, scheme, or artifice to defraud; (b) to obtain money or property by means of any untrue statement of a material fact or any omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. III. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrained and enjoined from violating Section 5 of the Securities Act [15 U.S.C. § 77e] by, directly or indirectly, in the absence of any applicable exemption: (a) Unless a registration statement is in effect as to a security, making use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell such security through the use or medium of any prospectus or otherwise; (b) Unless a registration statement is in effect as to a security, carrying or causing to be carried through the mails or in interstate commerce, by any means or 3 Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 4 of 6 instruments of transportation, any such security for the purpose of sale or for delivery after sale; or (c) Making use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of any prospectus or otherwise any security, unless a registration statement has been filed with the Commission as to such security, or while the registration statement is the subject of a refusal order or stop order or (prior to the effective date of the registration statement) any public proceeding or examination under Section 8 of the Securities Act [15 U.S.C. § 77h]. IV. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is permanently barred from participating in an offering of penny stock, including engaging in activities with a broker, dealer, or issuer for purposes of issuing, trading, or inducing or attempting to induce the purchase or sale of any penny stock. A penny stock is any equity security that has a price of less than five dollars, except as provided in Rule 3a51-1 under the Exchange Act [17 C.F.R. 240.3a51-1]. V. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $2,010,286, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $454,963, for a total of $2,465,249. This liability is deemed satisfied by Defendant’s executed consent to forfeiture, dated March 29, 2013, in U.S. v. $13,711.26 Seized From Account # 5010-0113-1794, et al., Civil Action No. 12-cv-03113-MSK-BNB (D. Colo.). 4 Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 5 of 6 VI. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that based on Defendant’s cooperation in a Commission investigation and related enforcement action, the Court is not ordering Defendant to pay a civil penalty. If at any time following the entry of the Final Judgment the Commission obtains information indicating that Defendant knowingly provided materially false or misleading information or materials to the Commission or in a related proceeding, the Commission may, at its sole discretion and without prior notice to the Defendant, petition the Court for an order requiring Defendant to pay a civil penalty. In connection with any such petition and at any hearing held on such a motion: (a) Defendant will be precluded from arguing that he did not violate the federal securities laws as alleged in the Complaint; (b) Defendant may not challenge the validity of the Judgment, this Consent, or any related Undertakings; (c) the allegations of the Complaint, solely for the purposes of such motion, shall be accepted as and deemed true by the Court; and (d) the Court may determine the issues raised in the motion on the basis of affidavits, declarations, excerpts of sworn deposition or investigative testimony, and documentary evidence without regard to the standards for summary judgment contained in Rule 56(c) of the Federal Rules of Civil Procedure. Under these circumstances, the parties may take discovery, including discovery from appropriate non-parties. VII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. VIII. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice. 11/23/15 5 __________________________________ _______________ __ _ __ _ _ Jennifer Dorsey er United States District Judge