United States Sec v. Sierra Brokerage, et al, No. 2:2003cv00326 - Document 281 (S.D. Ohio 2010)
Court Description: FINAL JUDGMENT AS TO DEFENDANTS YONGZHI YANG AND K&J CONSULTING, LTD. This Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. Signed by Judge Algenon L. Marbley on 10/7/2010. (cw)
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United States Sec v. Sierra Brokerage, et al Doc. 281 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, Case No. C2-03-326 v. SIERRA BROKERAGE SERVICES, INC., ET AL., Judge Marbley Magistrate Judge Deavers Defendants. FINAL JUDGMENT AS TO DEFENDANTS YONGZHI YANG AND K&J CONSULTING, LTD. The Securities and Exchange Commission (“Commission”) having filed a Complaint and Defendants Yongzhi Yang (“Yang”) and K&J Consulting, Ltd. (“K&J”) (collectively “Defendants”) having answered; the Court having jurisdiction over Defendants and the subject matter of this action; the Court having previously entered an Opinion and Order (Doc #221) in which it found that the Commission was entitled to summary judgment and disgorgement against Defendants and having previously entered a Judgment on Counts I, VIII and IX and Defendants having previously consented to the entry of an amended judgment on Counts II, III and IV (Doc #264); and the Commission having filed a Motion (Doc # 270) seeking the entry of a Final Judgment setting civil penalties against Defendant Yang and incorporating in the Final Judgment the permanent injunctive relief, disgorgement and prejudgment interest previously ordered; and the Court having considered the Commission’s motion, the submissions of all parties concerning this motion, and being apprised of the premises; the Court grants the Commission’s motion and orders as follows: 1 Dockets.Justia.com I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendants and Defendants’ 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 Sections 5(a) and 5(c) of the Securities Act [15 U.S.C. §§ 77e(a) and 77e(c)] 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 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 to 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]. 2 II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants and Defendants’ officers, agents, servants, employees, attorneys and all persons in active concert or participation with them who receive notice of this Final Judgment by personal service or otherwise, are permanently enjoined and restrained from violating Section 13(d) of the Exchange Act [15 U.S.C. § 78m(d)] and Rule 13d-1 promulgated thereunder [17 C.F.R. 240.13d-1] by failing or aiding and abetting a failure, within ten (10) days after acquiring, directly or indirectly, whether singly or as part of a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, voting or disposing of securities, the beneficial ownership of more than five (5) percent of (A) any equity security of a class which is registered pursuant to Section 12 of the Exchange Act [15 U.S.C. §78l , or (B) any equity security of an insurance company which would have been required to be so registered except for the exemption contained in Section 12(g)(2)(G) of the Exchange Act [15 U.S.C. §78l(g)(2)(G)], or (C) any equity security issued by a closed-end investment company registered under the Investment Company Act of 1940 [15 U.S.C. § 80a-1, et seq.], to file or cause to be filed with the Commission, and to send or cause to be sent to the issuer of such equity security and to any national securities exchange where such equity security is traded, the statements containing information required by Section 13(d) of the Exchange Act [15 U.S.C. § 78m(d)] and Rule 13d-1 promulgated thereunder [17 C.F.R. § 240.13d-l]; and are further permanently restrained and enjoined from violating Section 13(d) of the Exchange Act [15 U.S.C. § 78m(d)] and Rule 13d-2 promulgated thereunder [17 C.F.R. §240.13d-2] by failing or aiding and abetting a failure, if any material change occurs in the facts set forth in such statements, promptly to file or cause to be filed with the Commission and to send or cause to be sent to the issuer of such equity security 3 and to any national securities exchange where such equity security is traded, the amendments to such statements required by Section 13(d) of the Exchange Act [15 U.S.C. § 78m(d)] and Rule 13d-2 promulgated thereunder [17 C.F.R. § 240.13d-2] and Schedule 13D (17 C.F.R. § 240.13d101]. III. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants and Defendants’ officers, agents, servants, employees, attorneys and all persons in active concert or participation with them who receive notice of this Final Judgment by personal service or otherwise, are permanently enjoined and restrained from violating Section 16(a) of the Exchange Act [15 U.S.C. § 78p(a)] and Rule 16a-3 [17 C.F.R.§ 240.16a-3] promulgated thereunder by, directly or indirectly, failing to file, by improperly filing, or by filing inaccurate information in statements with the Commission regarding ownership of an issuer’s securities, registered pursuant to Section 12 of the Exchange Act [15 U.S.C. § 78l], as well as any changes in ownership of such securities. IV. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants and Defendants’ 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 17(a) of 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; 4 (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. V. 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, directly or indirectly, Section 10(b) of 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. VI. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants 5 are liable, jointly and severally, for disgorgement of $1,195,228, representing profits gained as a result of the violations found by the Court, together with prejudgment interest thereon in the amount of $455,488, for a total of $1,650,716. Defendants shall satisfy this obligation by paying $1,650,716.00 within fourteen (14) days after entry of this Final Judgment by certified check, bank cashier’s check, or United States postal money order payable to the Securities and Exchange Commission. The payment shall be delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Mail Stop 0-3, Alexandria, Virginia 22312, and shall be accompanied by a letter identifying Yang and K&J as defendants in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Final Judgment. Defendants shall simultaneously transmit photocopies of such payment and letter to the Commission’s counsel in this action. Defendants shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961. The Commission shall remit the funds paid pursuant to this paragraph to the United States Treasury. VII. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Yang shall pay a civil penalty in the amount of $250,000 pursuant to 15 U.S.C. § 77t(d). Defendant Yang shall make this payment within fourteen (14) days after entry of this Final Judgment by certified check, bank cashier's check, or United States postal money order payable to the Securities and Exchange Commission. The payment shall be delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Mail Stop 0-3, Alexandria, Virginia 22312, and shall be accompanied by a letter identifying Yongzhi Yang as a defendant in this action; setting forth the title and civil 6 action number of this action and the name of this Court; and specifying that payment is made pursuant to this Final Judgment. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961. The Commission shall remit the funds paid pursuant to this paragraph to the United States Treasury. VIII. IT IS FURTHER ORDERED ADJUDGED, AND DECREED that this Court dismisses with prejudice any claims by the Commission for civil penalties against Defendant K&J. IX. 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. Dated: October 7, 2010 s/Algenon L. Marbley UNITED STATES DISTRICT JUDGE 7
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