Securities and Exchange Commission v. Wrangell, No. 7:2012cv00274 - Document 2 (E.D.N.C. 2012)

Court Description: FINAL JUDGMENT in favor of Securities and Exchange Commission against Kenneth F. Wrangell. Signed by Senior Judge James C. Fox on 9/26/2012. (Edwards, S.)
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Securities and Exchange Commission v. Wrangell Doc. 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA SECURnnES AND EXCHANGE COMMISSION, Plaintiff, Civil Action File No. I: J). - [., V- )1 ,-f v. KENNETH F. WRANGELL, Defendant. FINAL JUDGMENT AS TO DEFENDANT KENNETH F. WRANGELL The Securities and Exchange Commission having filed a Complaint and Defendant Kenneth F. Wrangell ("Defendant" or "Wrangell") having entered a general appearance; consented to the Court's jurisdiction over Defendant and the subject matter of this action; consented to entry ofthis Final Judgment without admitting or denying the allegations ofthe Complaint (except as to jurisdiction); waived findings of fact and conclusions oflaw; 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) ofthe 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 ofthe 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. ll. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $42,521.55, representing profits gained as a result ofthe conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $1,724.90, and a civil penalty in the amount of -2- $11,380.39 pursuant to Exchange Act Section 21A. Defendant shall pay the total of disgorgement, prejudgment interest, and penalty due of $55,626.84 in four installments to the Commission according to the following schedule: (1) $13,906.71, within 10 days of entry ofthis Final Judgment; (2) $13,906.71, within 120 days of entry ofthis Final Judgment; (3) $13,906.71 within 240 days ofentry ofthis Final Judgment; and (4) $13,906.71, plus accrued post-judgment interest, within 360 days ofthe entry ofthis Final Judgment. Payments shall be deemed made on the date they are received by the Commission and shall be applied first to post-judgment interest, which accrues pursuant to 28 U.S.C. § 1961 on any unpaid amounts due after 14 days of the entry ofFinal Judgment. Prior to making the final payment set forth herein, Defendant shall contact the staffofthe Commission for the due for the final payment inclusive ofpost-judgment interest. If Defendant 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 Commission without further application to the Court. Defendant may transmit payment electronically to the Commission, which will provide detailed ACH transferIFedwire instructions upon request. Payment -3- ...- - may also be made directly from a bank account via through the SEC website at htq?:// 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; Wrangell 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 co1.UlSel in this action. By making this payment, Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part ofthe funds shall be returned to Defendant. The Commission shall send the funds paid pursuant to this Final Judgment to the United States Treasury. m. IT IS HEREBY FUR1HER ORDERED, ADJUDGED, AND DECREED that based on Defendant's agreement to cooperate in a Commission investigation -4- and related. enforcement action, the Court is not ordering Defendant to pay a civil penalty in excess of$II,380.39. If at any time following the entry ofthe 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 an additional civil penalty. In connection with any such petition and at any hearing held on such a motion: (a) Defendant will be preclude4 from arguing that he did not violate the federal securities laws as alleged in the Complaint; (b) Defendant may not challenge the validity ofthe Judgment, this Consent, or any related Undertakings; (c) the allegations ofthe 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 ofsworn deposition or investigative testimony, and documentary evidence without regard to the standards for summary judgment contained in Rule 56(c) ofthe Federal Rules of Civil Procedure. Under these circumstances, the parties may take discovery, including discovery from appropriate non-parties. -5- IV. 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 of the undertakings and agreements set forth therein. v. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction ofthis matter for the purposes of enforcing the terms ofthis Final Judgmem. VI. 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. Dated: ¥. , ,2012 .. -6- D STATES DISTRICT JUDGE