Securities and Exchange Commission v. Pinto-Thomaz et al, No. 1:2018cv05757 - Document 32 (S.D.N.Y. 2019)
Court Description: FINAL JUDGMENT AS TO DEFENDANT SEBASTIAN PINTO-THOMAZ: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently restrained and enjoined from violating, directly or indirectly, Section l0(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 exch ange, in connection with the purchase or sale of any security: as further set forth herein. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $7,500.00, representing profits gained as a result of the con duct alleged in the Complaint, provided, however, that Defendant's obligation to pay disgorgement is deemed satisfied by the order of forfeiture/money judgment of $7,500.00 entered against Defendant in the parallel criminal case titled Unit ed States v. Pinto-Thomaz et al., Crim. No. 18-579(S.D.N.Y.). IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that 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. The Court finds that this consent judgment is fair and reasonable under SEC v. Citigroup Global Markets, Inc., 752 F.3d 285 (2d Cir. 2014). The consent judgment is both legal and clear, and it re solves the claims in the complaint. There is no evidence that the consent judgment is tainted by improper collusion or corruption. Thus, this Court is "required to enter" the consent judgment. Id. at 294. SO ORDERED. Sebastian Pinto-Thomaz terminated. (Signed by Judge J. Paul Oetken on 12/4/2019) (kv)
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Securities and Exchange Commission v. Pinto-Thomaz et al Doc. 32 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, Plaintiff, No. 18 Civ. 5757(JPO) -againstSEBASTIAN PINTO-THOMAZ, ABELL OUJADDOU,and JEREMY MILLUL, Defendants. FINAL NDGMENT AS TO DEFENDANT SEBASTIAN PINTO-THOMAZ The Securities and Exchange Commission having filed a complaint("Complaint")and defendant Sebastian Pinto-Thomaz("Pinto-Thomaz" or "Defendant") having entered a general appearance; consented to the Court's jurisdiction over Defendant and the subject matter ofthis action; consented to entry ofthis Final Judgment; waived findings offact 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) ofthe Securities Exchange Act of 1934(the "Exchange Act")[15 U.S.C. § 78j(b)] and Rule l Ob-5 promulgated thereunder[17 C.F.R. § 240.1Ob-5], by using any means or instrumentality of interstate commerce, or ofthe mails, or ofany 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; Dockets.Justia.com (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 ofthe 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. IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that, as provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual notice of this Final Judgment by personal service or otherwise: (a)Defendant's officers, agents, servants, employees, and attorneys; and (b)other persons in active concert or participation with Defendant or with anyone described in (a). II. IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that Defendant is liable for disgorgement of $7,500.00, representing profits gained as a result ofthe conduct alleged in the Complaint, provided, however, that Defendant's obligation to pay disgorgement is deemed satisfied by the order offorfeiture/money judgment of$7,500.00 entered against Defendant in the parallel criminal case titled United States v. Pinto-Thomaz et al., Crim. No. 18-579 (S.D.N.Y.). III. IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that the Consent is incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall comply with all ofthe undertakings and agreements set forth therein. IV. IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that, for purposes of exceptions to discharge set forth in Section 523 ofthe Bankruptcy Code, 11 U.S.C. § 523,the allegations in the Complaint are true and admitted by Defendant, and further, any debt for disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under this Final Judgment or any other judgment, order, consent order, decree or settlement agreement entered in connection with this proceeding, is a debt for the violation by Defendant ofthe federal securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(]9)of the Bankruptcy Code, 1 l U.S.C. § 523(a)(19). IT IS FURTHER ORDERED,ADJiJDGED, AND DECREED that this Court shall retain jurisdiction ofthis matter for the purposes ofenforcing the terms of this Final Judgment. C%~ IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that there being no just reason for delay, pursuant to Rule 54(b)ofthe Federal Rules of Civil Procedure,the Clerk is ordered to enter this Final Judgment forthwith and without further notice. The Court finds that this consent judgment is fair and reasonable under SEC v. Citigroup Global Markets, Inc., 752 F.3d 285 (2d Cir. 2014). The consent judgment is both legal and clear, and it resolves the claims in the complaint. Dated: There is no evidence that the consent judgment is tainted by improper collusion or corruption. Thus, this Court is "required to enter" the consent judgment. Id. at 294. So ordered. Dated: December 4, 2019 UNITED STATES DISTRICT JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, Plaintiff, No. 18 Civ. 5757(JPO) -againstSEBASTIAN PINTO-THOMAZ, ABELL OUJADDOU,and JEREMY MILLUL, Defendants. CONSENT OF DEFENDANT SEBASTIAN PINTO-THOMAZ 1. Defendant Sebastian Pinto-Thomaz("Pinto-Thomaz" or "Defendant") acknowledges waiving service ofthe complaint in this action ("Complaint"), enters a general appearance and admits the Court's jurisdiction over Defendant and over the subject matter of this action. 2. Defendant has been convicted after trial of criminal conduct relating to certain matters alleged in the Complaint. Specifically, in United States v. Pinto-Thomaz et al., Crim. No. 18-579(S.D.N.Y.), Defendant was convicted oftwo counts of conspiracy to commit to securities fraud, violating 18 U.S.C. § 371, and two counts of securities fraud, violating 15 U.S.C. §§ 78j(b). This Consent shall remain in full force and effect regardless ofthe existence or outcome ofany further proceedings in United States v. Pinto-Thomaz et al. 3. Defendant hereby consents to the entry ofthe Final Judgment in the form attached hereto (the "Final Judgment") and incorporated by reference herein, which, among other things, permanently restrains and enjoins Defendant from violation of Section 10(b)ofthe Securities Exchange Act of 1934(the "Exchange Act")[15 U.S.C. § 78j(b)] and Rule lOb-5 promulgated thereunder [17 C.F.R. § 240.1Ob-5]; and orders Defendant liable for for disgorgement of $7,500, representing profits gained as a result ofthe conduct alleged in the Complaint, provided, however, that Defendant's obligation to pay disgorgement is deemed satisfied by the order of forfeiture/money judgment of $7,500 entered against Defendant in United States v. PintoThomaz et al. 4. Defendant waives the entry offindings offact and conclusions of law pursuant to Rule 52 ofthe Federal Rules of Civil Procedure. Defendant waives the right, if any,to a jury trial and to appeal from the entry of the Final Judgment. 6. Defendant enters into this Consent voluntarily and represents that no threats, offers, promises, or inducements of any kind have been made by the Commission or any member, officer, employee, agent, or representative ofthe Commission to induce Defendant to enter into this Consent. 7. Defendant agrees that this Consent shall be incorporated into the Final Judgment with the same force and effect as if fully set forth therein. 8. Defendant will not oppose the enforcement ofthe Final Judgment on the ground, if any exists, that it fails to comply with Rule 65(d) ofthe Federal Rules of Civil Procedure, and hereby waives any objection based thereon. 9. Defendant waives service ofthe Final Judgment and agrees that entry ofthe Final Judgment by the Court and filing with the Clerk ofthe Court will constitute notice to Defendant of its terms and conditions. Defendant further agrees to provide counsel for the Commission, within thirty days after the Final Judgment is filed with the Clerk ofthe Court, with an affidavit or declaration stating that Defendant has received and read a copy ofthe Final Judgment. 10. Consistent with 17 C.F.R. § 202.50,this Consent resolves only the claims asserted against Defendant in this civil proceeding. Defendant acknowledges that no promise or representation has been made by the Commission or any member, officer, employee, agent, or representative ofthe Commission with regard to any criminal liability that may have arisen or may arise from the facts underlying this action or immunity from any such criminal liability. Defendant waives any claim of Double Jeopardy based upon the settlement of this proceeding, including the imposition ofany remedy or civil penalty herein. Defendant further acknowledges that the Court's entry of a permanent injunction may have collateral consequences under federal or state law and the rules and regulations of self-regulatory organizations, licensing boards, and other regulatory organizations. Such collateral consequences include, but are not limited to, a statutory disqualification with respect to membership or participation in, or association with a member of, aself-regulatory organization. This statutory disqualification has consequences that are separate from any sanction imposed in an administrative proceeding. In addition, in any disciplinary proceeding before the Commission based on the entry ofthe injunction in this action, Defendant understands that he shall not be permitted to contest the factual allegations of the Complaint. 1 1. Defendant understands and agrees to comply with the terms of 17 C.F.R. § 202.5(e), which provides in part that it is the Commission's policy "not to permit a defendant or respondent to consent to a judgment or order that imposes a sanction while denying the allegations in the complaint or order for proceedings." As part of Defendant's agreement to comply with the terms of Section 202.5(e), Defendant acknowledges his conviction for related criminal conduct described in paragraph 2 above, and:(i) will not take any action or make or permit to be made any public statement denying, directly or indirectly, any allegation in the Complaint or creating the impression that the Complaint is without factual basis;(ii) will not make or permit to be made any public statement to the effect that Defendant does not admit the allegations ofthe Complaint, or that this Consent contains no admission ofthe allegations;(iii) upon the filing of this Consent, Defendant hereby withdraws any papers filed in this action to the extent that they deny any allegation in the Complaint; and (iv) stipulates for purposes of exceptions to discharge set forth in Section 523 ofthe Bankruptcy Code, 11 U.S.C. § 523, that the allegations in the Complaint are true, and further, that any debt for disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under the Final Judgment or any other judgment, order, consent order, decree or settlement agreement entered in connection with this proceeding, is a debt for the violation by Defendant ofthe federal securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19) ofthe Bankruptcy Code, 11 U.S.C. § 523(a)(19). If Defendant breaches this agreement, the Commission may petition the Court to vacate the Final Judgment and restore this action to its active docket. Nothing in this paragraph affects Defendant's:(i)testimonial obligations; or (ii) right to take legal or factual positions in litigation or other legal proceedings in which the Commission is not a party. 12. Defendant hereby waives any rights under the Equal Access to Justice Act,the Small Business Regulatory Enforcement Fairness Act of 1996, or any other provision of law to seek from the United States, or any agency, or any official ofthe United States acting in his or her official capacity, directly or indirectly, reimbursement of attorney's fees or other fees, expenses, or costs expended by Defendant to defend against this action. For these purposes, Defendant agrees that Defendant is not the prevailing party in this action since the parties have reached a good faith settlement. 4 13. Defendant agrees to waive all objections, including but not limited to, constitutional, timeliness, and procedural objections, to the administrative proceeding that will be instituted when the Final Judgment is entered. 14. Defendant agrees that the Commission may present the Final Judgment to the Court for signature and entry without further notice. 15. Defendant agrees that this Court shall retain jurisdiction over this matter for the purpose of enforcing the terms ofthe Final Judgment. Dated: ~ ~Ps Z`'f~ r '~l~'1 Sebastian Pinto-Thomaz On J f`k ~l~~r ~7 , 2019, Sees ~a~ ~%^~ '~'°^``~' , a person known to me, personally appeared before me and acknowledged executing the foregoing Consent. Notary Public Commission expires: Approve as to form: Henry E. Mazurek, Esq. Ilana Haramatli, Esq. Meister Seelig &Fein LLP 125 Park Avenue, 7th Floor New York, New York 10017 Attorney for Defendant ""ptj---'y~~~~~~pe~!,~w~~ ' ~~ MeN10 e e SZO 'ory Nt/OlS ~ ;S~~~gnd tie~op MICHAEL B. 8 ~~dH~IW Notary Public-StateSLOAN of New York No. 02S L6370154 Qualified in New County Commission Expires_York/11 201
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