Securities and Exchange Commission v. Airborne Wireless Network et al, No. 1:2021cv01772 - Document 22 (S.D.N.Y. 2021)
Court Description: FINAL JUDGMENT AS TO DEFENDANT MOSHE RABIN: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently restrained and enjoined from vio1ating, directly or indirectly, Section 10(b) of theExchange Act [15 U.S.C. § 78j(b)] and Rul e 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 sec urity: (a) to employ any device, scheme, or artifice to defraud; as further set forth in this Order. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall pay a civil penalty of$125,000 pursuant to Section 20(d) of the Securit ies Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall satisfy this obligation by paying $125,000 to the Securities and Exchange Commission pursuant to the terms of the payment schedule set forth in paragraph VI below after entry of this Final Judgment. Motions terminated: 12 CONSENT MOTION for Judgment Against Defendant Moshe Rabin. filed by Securities and Exchange Commission., Moshe Rabin terminated. (Signed by Judge Colleen McMahon on 4/7/2021) (cf)
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Securities and Exchange Commission v. Airborne Wireless Network et al Doc. 22 Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES AND EXCHANGE COMMISSION, 21 Civ. 1772 (CM) (GWG) Plaintiff, ~ -againstAIRBORNE WIRELESS NETWORK, et al., rr========::i USDCSDNY DOCUMENT ELECTRONICALLY Fll,ED Defendants. DOC#: DATE FILED: . Yh t ~");I • FINAL JUDGMENT AS TO DEFENDANT MOSHE RABIN The Securities and Exchange Commission having filed a Complaint and Defendant Moshe Rabin ("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 and except as otherwise provided herein in paragraph VIII); 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 l0(b) of the Exchange Act [15 U .S.C. § 78j(b)] and Rule lOb-5 promulgated thereunder [17 C.F.R. § 240. lOb-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; Dockets.Justia.com Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 2 of 7 (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. 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 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) (b) to employ any device, scheme, or artifice to defraud; 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. 2 Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 3 of 7 IT IS FURTHER ORDERED, ADruDGED, AND DECREED that, as provided in Federal Rule of 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 the above defendant or with anyone described in (a). III. IT IS HEREBY FURTHER ORDERED, ADruDGED, AND DECREED that pursuant to Section 2l(d)(5) of the Exchange Act [15 U.S.C. § 78u(d)(5)], Defendant is permanently enjoined and restrained from, directly or indirectly, accessing any brokerage account in the name of, or trading, transferring, or receiving any securities on behalf of, any other person or entity, including doing so with the consent of such person or entity. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal Rule of 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 the above defendant or with anyone described in (a). 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 3 Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 4 of 7 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 shall pay a civil penalty of $125,000 pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall satisfy this obligation by paying $125,000 to the Securities and Exchange Commission pursuant to the terms of the payment schedule set forth in paragraph VI below after entry of this Final Judgment. Defendant may transmit payment electronically to the Commission, which will provide detailed ACH transfer/Fedwire instructions upon request. Payment may also be made directly from a bank account via Pay.gov through the SEC website at http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified check, bank cashier's check, or United States postal money order payable to the Securities and Exchange Commission, which shall be delivered or mailed to 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 Court; Moshe Rabin as a defendant in this action; and specifying that payment is made pursuant to this Final Judgment. Defendant shall simultaneously transmit photocopies of evidence of payment and case identifying information to the Commission's counsel in this action. By making this payment, Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part 4 Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 5 of 7 of the funds shall be returned to Defendant. The Commission may enforce the Court's judgment for penalties by the use of all collection procedures authorized by law, including the Federal Debt Collection Procedures Act, 28 U.S.C. § 3001 et seq. , and moving for civil contempt for the violation of any Court orders issued in this action. Defendant shall pay post judgment interest on any amounts due after 30 days of the entry of this Final Judgment pursuant to 28 U.S.C. § 1961. The Commission shall hold the funds, together with any interest and income earned thereon (collectively, the ''Fund"), pending further order of the Court. The Commission may propose a plan to distribute the Fund subject to the Court's approval. Such a plan may provide that the Fund shall be distributed pursuant to the Fair Fund provisions of Section 308( a) of the Sarbanes-Oxley Act of 2002. The Court shall retain jurisdiction over the administration of any distribution of the Fund and the Fund may only be disbursed pursuant to an Order of the Court. Regardless of whether any such Fair Fund distribution is made, amounts ordered to be paid as civil penalties pursuant to this Judgment shall be treated as penalties paid to the government for all purposes, including all tax purposes. To preserve the deterrent effect of the civil penalty, Defendant shall not, after offset or reduction of any award of compensatory damages in any Related Investor Action based on Defendant's payment of disgorgement in this action, argue that he is entitled to, nor shall he further benefit by, offset or reduction of such compensatory damages award by the amount of any part of Defendant's payment of a civil penalty in this action (''Penalty Offset"). If the court in any Related Investor Action grants such a Penalty Offset, Defendant shall, within 30 days after entry of a fmal order granting the Penalty Offset, notify the Commission's counsel in this action and pay the amount of the Penalty Offset 5 Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 6 of 7 to the United States Treasury or to a Fair Fund, as the Comrrussion directs. Such a payment shall not be deemed an additional civil penalty and shall not be deemed to change the amount of the civil penalty imposed in this Judgment. For purposes of this paragraph, a ''Related Investor Action" means a private damages action brought against Defendant by or on behalf of one or more investors based on substantially the same facts as alleged in the Complaint in this action. VI. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Moshe Rabin shall pay the penalty due of $125,000 in four installments to the Comrrussion according to the following schedule: (1) $31,500 immediately upon entry ofthis Final Judgment; (2) $31,500 within 120 days of entry of this Final Judgment; (3) $31,500 within 240 days of entry of this Final Judgment; and (4) $30,500 within 360 days of entry of this Final Judgment. Payments shall be deemed made on the date they are received by the Comrrussion and shall be applied first to post judgment interest, which accrues pursuant to 28 U.S.C. § 1961 on any unpaid amounts due after 30 days of the entry of Final Judgment. Prior to making the fmal payment set forth herein, Moshe Rabin shall contact the staff of the Comrrussion for the amount due for the fmal payment. If Moshe Rabin fails to make any payment by the date agreed and/or in the amount agreed according to the schedule set forth above, all outstanding payments under this Final Judgment, including post-judgment interest, minus any payments made, shall become due and payable immediately at the discretion of the staff of the Comrrussion without further application to the Court. 6 .• Case 1:21-cv-01772-CM Document 12-2 Filed 03/05/21 Page 7 of 7 VII. IT IS FURTHER ORDERED, ADruDGED, 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 of the undertakings and agreements set forth therein. VIII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for purposes of exceptions to discharge set forth in Section 523 of the 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 of the federal securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code [11 U.S.C. §523(a)(l9)]. IX. IT IS FURTHER ORDERED, ADruDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Judgment. X. 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 Judgment forthwith and without further notice. 0 Dated[ ~ l .:;}d)j UNITED STATES DISTRICT ruDGE 7
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