JUDGMENT OF PERMANENT INJUNCTION AND OTHER RELIEF AS TO DEFENDANT DANIEL R. BAKER
JOHN F. WALTER, District Judge.
The Securities and Exchange Commission having filed a Complaint, and Defendant Daniel R. Baker having entered a general appearance; consented to the Court's jurisdiction over Baker and the subject matter of this action; consented to entry of this Judgment waived findings of fact and conclusions of law; and waived any rightto appeal fromthis Judgment:
I.
SECTION 10(B)AND RULE 10B-5OF THE SECURITIES EXCHANGE ACT OF 1934
IT ORDERED AND ADJUDGED that Baker and Baker's agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this 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 [17C.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 ofany security:
(a) toemploy 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 ofbusiness which operates or wouldoperate as a fraud or deceit upon any person.
II.
SECTION 17(al OF THE SECURITIES ACT OF 1933
IT IS FURTHER ORDERED AND ADJUDGED that Baker and Baker's agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Judgment by personal service or otherwise are permanently restrained and enjoined from violating Section 17(a) of the Securities Act of1933 (the "Securities Act") [15 U.S.C. §77q(a)] in the offer or sale ofany security by the use ofany means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly:
(a) toemploy 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, notmisleading; or
(c) to engage in any transaction, practice, or course of business which operates or would operate as afraud or deceit upon the purchaser.
III.
SECTION 15(al OF THE EXCHANGE ACT
IT IS FURTHER ORDERED AND ADJUDGED that Baker and his agents, servants, employees, attorneys, and those persons in active concert or participation with them, and each of them, are hereby retrained and enjoined from violating, directly or indirectly, Section 15(a) of the Exchange Act [15 U.S.C. §78o], by making use of the mails or any means or instrumentality of interstate commerce to effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security (other than an exempted security or commercial paper, bankers' acceptances, or commercial bills) unless such broker or dealer is registered with the Commission.
IV.
SECTIONS 5(a) AND 5(c) OF THE SECURITIES ACT
IT IS FURTHER ORDERED AND ADJUDGED that Baker and Baker's agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Judgment by personal service or otherwise are permanently restrained and enjoined from violating Section 5of 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 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 ofa 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].
V.
PENNY STOCK BAR
IT IS FURTHER ORDERED AND ADJUDGED that Baker is permanently barred from participating in an offering of penny stock, including engaging in activities with a broker, dealer, or issuer for purposes ofissuing, trading, orinducing or attempting to induce the purchase or sale ofany penny stock. Apenny stock is any equity security that has a price of less than five dollars, except as provided in Rule3a51-l underthe Exchange Act [17 C.F.R. 240.3a51-l].
VI.
PAYMENT OF DISGORGEMENT, PREJUDGMENT INTEREST AND A CIVIL PENALTY
IT IS FURTHER ORDERED AND ADJUDGED that Baker shall pay disgorgement of ill-gotten gains, prejudgment interest thereon, and a civil penalty 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)]. The Court shall determine the amounts of the disgorgement and civil penalty upon motion of the Commission. Prejudgment interest shall be calculated from November 30, 2012, based on the rate of interest used by the Internal Revenue Service for the underpayment of federal income tax as set forth in 26 U.S.C. § 6621(a)(2). In connection with the Commission's motion for disgorgement and/or civil penalties, and at any hearing held on such a motion: (a) Baker will be precluded from arguing that he did not violate the federal securities laws as alleged in the Complaint; (b) Baker may not challenge the validity of the Consent or this Judgment; (c) solely for the purposes of such motion, the allegations of the Complaint 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. In connection with the Commission's motion for disgorgement and/or civil penalties, the parties may take discovery, including discovery from appropriate non-parties.
VII.
RETENTION OF JURISDICTION
IT IS FURTHER ORDERED AND ADJUDGED that this Court shall retain jurisdiction of this matter for the purposes ofenforcing the terms of this Judgment.
VIII.
RULE 54(b) CERTIFICATION
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.
DONE AND ORDERED.
