ANDREW J. GUILFORD, District Judge.
The Securities and Exchange Commission ("Commission") having filed a Complaint and Defendants Westmoore Management, LLC, Westmoore Investment, L.P., Westmoore Capital Management, Inc., and Westmoore Capital, LLC ("collectively, the "Entity Defendants") having entered a general appearance; consented to the Court's jurisdiction over the Entity Defendants and the subject matter of this action; consented to entry of this Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right to appeal from this Judgment:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Entity Defendants Westmoore Management, LLC, Westmoore Investment, L.P., Westmoore Capital Management, Inc., and their 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 5 of the Securities Act of 1933 (the "Securities Act"), 15 U.S.C. § 77e, by, directly or indirectly, in the absence of any applicable exemption:
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants and their 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, 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:
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants and their 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, 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:
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants shall pay disgorgement of ill-gotten gains and prejudgment interest thereon; that the amounts of the disgorgement and civil penalty shall be determined by the Court upon motion of the Commission; and that prejudgment interest shall be calculated from January 1, 2008, 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). Upon motion of the Commission, the Court shall determine whether 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), is appropriate and, if so, the amount of the penalty. In connection with the Commission's motion for disgorgement and/or civil penalties, and at any hearing held on such a motion: (a) the Entity Defendants will be precluded from arguing that they did not violate the federal securities laws as alleged in the Complaint; (b) the Entity Defendants may not challenge the validity of this Consent or the 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 Commission and the Entity Defendants may take discovery, including discovery from appropriate non-parties.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that David A. Gill, is appointed as permanent receiver of the Entity Defendants and their subsidiaries and entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, with full powers of an equity receiver, including, but not limited to, full power over all funds, assets, collateral, premises (whether owned, leased, occupied, or otherwise controlled), choses in action, books, records, papers and other property belonging to, being managed by or in the possession of or control of the Entity Defendants and their subsidiaries and entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, and that such receiver is immediately authorized, empowered and directed:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, except as otherwise ordered by this Court, the Entity Defendants and their officers, agents, servants, employees, attorneys, Subsidiaries and entitles otherwisw majority-owned managed or controlled, directly or indirectly, by an of them, those persons in active concert or participation with any of them, who receive actual notice of this Order, by personal service or otherwise, and each of them, be and hereby are temporarily restrained and enjoined from, directly or indirectly transferring, assigning, selling, hypothecating, changing, wasting, dissipating, converting, concealing, encumbering, or otherwise disposing of, in any manner, any funds, assets, securities, claims, or other real or personal property, including any notes or deeds of trust or other interests in real property, wherever located, of the Entity Defendants, or their subsidiaries or entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, whether such assets are owned by, controlled by, managed by or in the possession or custody of any of them and from transferring, encumbering, dissipating, incurring charges, or cash advances on any credit card or the credit arrangements of the Entity Defendants.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, except as otherwise ordered by this Court, and with the exception that a financial institution may transfer funds or make payments as directed by the permanent receiver, a freeze shall continue in place on all monies and assets in all accounts at any bank, financial institution or brokerage firm (including any futures commission merchant), or internet or "e-currency" payment processor, all certificates of deposit, and other funds or assets, held in the name of, for the benefit of, or over which account authority is held by any of the Entity Defendants, or their subsidiaries or entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, including, but not limited to, the accounts set forth below:
Pursuant to prior orders of the Court, entered upon stipulation of the parties, the following accounts are not subject to the asset freeze ordered herein:
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants and their 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, and any other persons who are in custody, possession or control of any assets, collateral, books, records, papers or other property of or managed by any of the entities in receivership in this action, hall forthwith give access to and control of such property to the permanent receiver.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that neither any Entity Defendant nor any agent, servant, employee, or attorney of any Entity Defendant shall take any action or purport to take any action, in the name of or on behalf of the Entity Defendants without the written consent of the permanent receiver or order of this Court.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, except by leave of this Court, during the pendency of this receivership, all clients, investors, trust beneficiaries, note holders, creditors, claimants, lessors, and all other persons or entities seeking relief of any kind, in law or in equity, from the Entity Defendants or their subsidiaries or entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, and all persons acting on behalf of any such investor, trust beneficiary, note holder, creditor, claimant, lessor, consultant group, or other person, including sheriffs, marshals, servants, agents, employees, and attorneys, are hereby restrained and enjoined from, directly or indirectly, with respect to these persons and entities:
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants and their 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, shall cooperate with and assist the permanent receiver and shall take no action, directly or indirectly, to hinder, obstruct, or otherwise interfere with the permanent receiver or his or her attorneys, accountants, employees, or agents, in the conduct of the permanent receiver's duties or to interfere in any manner, directly or indirectly, with the custody, possession, management, or control by the permanent receiver of the funds, assets, collateral, premises, and choses in action described above.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants and their subsidiaries and entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, shall pay the costs, fees and expenses of the permanent receiver incurred in connection with the performance of his or her duties described in this Order, including the costs and expenses of those persons who may be engaged or employed by the permanent receiver to assist him or her in carrying out his or her duties and obligations. All applications for costs, fees, and expenses for services rendered in connection with the receivership other than routine and necessary business expenses in conducting the receivership, such as salaries, rent, and any and all other reasonable operating expenses, shall be made by application setting forth in reasonable detail the nature of the services and shall be heard by the Court.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that no bond shall be required in connection with the appointment of the permanent receiver. Except for an act of gross negligence, the permanent receiver shall not be liable for any loss or damage incurred by any of the Entity Defendants, their officers, agents, servants, employees and attorneys or any other person, by reason of any act performed or omitted to be performed by the permanent receiver in connection with the discharge of his or her duties and responsibilities.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that representatives of the Commission and any other government agency, are authorized to have continuing access to inspect or copy any or all of the corporate books and records and other documents of the Entity Defendants and the other entities in receivership, and continuing access to inspect their funds, property, assets and collateral, wherever located.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, except as otherwise ordered by this Court, the Entity Defendants, and their officers, agents, servants, employees, attorneys, subsidiaries and entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them, including the other entities in receivership, and those persons in active concert or participation with any of them, who receive actual notice of this Judgment, by personal service or otherwise, and each of them, be and hereby are restrained and enjoined from, directly or indirectly: destroying, mutilating, concealing, transferring, altering, or otherwise disposing of, in any manner, any documents, which includes all books, records, computer programs, computer files, computer printouts, contracts, correspondence, memoranda, brochures, or any other documents of any kind in their possession, custody or control, however created, produced, or stored (manually, mechanically, electronically, or otherwise), pertaining in any manner to the Entity Defendants, and their subsidiaries and entities otherwise majority-owned, managed or controlled, directly or indirectly, by any of them. Nothing in this paragraph shall prevent the permanent receiver from disposing of documents in compliance with applicable law upon the termination of the receivership by the Court at the conclusion of this case.
IT IS FURTHER ORDERED that the Entity Defendants, to the extent not already completed, shall, within 24 hours of the issuance of this Order, cause to be prepared and delivered to the permanent receiver, a detailed and complete schedule of all desktop computers, laptop computers, phones, smartphones, and/or PDA's owned, controlled or used by him for any purpose. The schedule required by this section shall include at a minimum the make, model and description of each device, along with its location, the name of the person primarily assigned to use the device, all passwords necessary to access the device, and all passwords necessary to access and use the software contained on the device. The permanent receiver shall be authorized to make an electronic, digital or hard copy of all of the data contained on the device.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Entity Defendants, to the extent not already completed, shall, within 24 hours of the entry of this Judgment, cause to be prepared and delivered to the permanent receiver a detailed and complete schedule of all passwords, usernames, identification numbers and similar information for all web sites, email accounts, and all accounts at any bank, financial institution or brokerage firm operated by or to which the Entity Defendants have access.
IT is FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent of Defendants Westmoore Management, LLC, Westmoore Investment, L.P., Westmoore Capital Management, Inc., and Westmoore Capital, LLC is incorporated herein with the same force and effect as if fully set forth herein, and that the Entity Defendants shall comply with all of the undertakings and agreements set forth therein.
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 Judgment.
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.
I am over the age of 18 years and not a party to this action. My business address is:
[X] U.S. SECURITIES AND EXCHANGE COMMISSION, 5670 Wilshire Boulevard, 11th Floor, Los Angeles, California 90036-3648 Telephone No. (323) 965-3998; Facsimile No. (323) 965-3908.
On July 21, 2011, I caused to be served the document entitled
on all the parties to this action addressed as stated on the attached service list:
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