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Post by imSINGLEruRICH on Dec 5, 2009 9:44:54 GMT -5
By: cartitas26 04 Dec 2009, 01:39 PM EST Rating: Msg. 889440 of 889584 (Reply to 889429 by gusjarvis)
Jump to msg. # GUSJASVIS´s, please could you clarify this part?
"...who aided in stealing our land... ", is there any proof of your comment?
You seem very sure about that our claims were stolen Thanks
By: gusjarvis 04 Dec 2009, 07:53 PM EST Rating: Msg. 889572 of 889584 (Reply to 889440 by cartitas26)
Jump to msg. # cartitas yes there is evidence it is in the star
shore transcripts, emerson koch helped urban move very valuable land into star by ensuring rick was first line to get our land. That land is partly ours, their actions show fraud. Emerson was urban's partner, urban also appointed kevin and now kevin works with emerson on the land we have left.
Well the land we have left is not good enough but does show value and shows the sec lied in their actions and that cmkx has value. That is important. Given the sec aided this fraud and allowed our money to get stolen apparently they are responsible for any land we lost do to lack of funds along with the insiders of cmkx and in fact bill frizzell.
This was a sting or bill will be a defendant soon along with the sec and the brokers.
I do believe this was a sting but enough is enough, and again the beauty of this coalition is if you feel the management screwed us and it wasn't a sting you can still join and demand answers. If this wasn't a sting bill is guilty, kevin is guilty, the sec is guilty, urban is guilty, emerson is guilty, roger is guilty, bob and don are guilty, and the rest. If it was a sting we are trying to force out answers and if there is money we are trying to pressure its release.
You can tell a person is a fake poster when they bash our efforts as they should be first in line to join and demand answers, they mock us because they are a fraud, ie weary and other fake posters.
I personally hope and feel something might be up right now, but we will fight until we get a check
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Post by imSINGLEruRICH on Dec 5, 2009 12:14:25 GMT -5
ty bikinipro
bikinipro Diamond Finder and Miner *** Hi Gus, Just curious, have you or anyone spoken to Kevin West since he's been reassigned as CEO?
greasetx Junior Miner * gus I hope you are coordinating your actions with attorney Hodges......He may be working on something that your actions may screw up or delay.....I assume there has been a conversation between the two camps to eliminate stepping on each others toes.... Thanks.
gusjarvis King of Diamonds ***** Re: update out soon as to further action « Reply #4 Yesterday at 8:36pm »
bikini no, just to john martin several times when they were really doing things.
greasetx, I have spoken to al and I am not stepping on any toes, if anything just adding pressure. I have talked to him this week in fact and there are no issues, just some cooperation possibly. I fully support his action and he has no issues with mine.
I have also talked to a lawyer in seattle that will look over all my work for free as a favor, but we have to move forward pro se. It is fine to file our request for relief from filing the administrative claim any time and someone with a lot of guts is ready to do that for us in the states. It will be soon.
We are fully prepared on the cmkx front to accept a reasonable offer and drop our suit, but even if the offer comes from someone else we will demand a full accounting of everything and full disclosure of everything as it is impossible to tell whether we got appropriate damages without knowing everything. Just saying here is a check is not good enough, and we deserve a full accounting of our land, every piece we lost or still have.
our land was not given away, and any land given away due to lack of funds will be asked to be frozen soon. Land just given to rick walker is very valuable, and they will be included in the next suit to freeze that land. Any agreement with emerson should be frozen and that land frozen as he was urban partner through all this and also aided urban move the land to rick walker.
Issues surrounding the current management have to be cleared up immediately as they appear to have aided in this fraud or been negligent or have to be quiet due to non disclosures. None of these answers are acceptable at this point in time. There will be an attempt to get answers then action very soon after and that process is already started.
Funny I posted our suit on deepcapture, they took it off. I talked to mark mitchell via email, he might run our story one day but is too busy now. Chris was suppose to run our story/al's story, he did't yet. I have talked to hundreds of people and nobody will run this story despite the fact it is a story in itself that we sued the sec. I have had several say yes, then get back and it is a no. We are off limits it appears.
the next step we take I hope to follow with a real pr, but we will see how many want to fight or help with cost, we are all broke or burnt out or both. Many are just waiting on al which it is hard to blame them, but it has been a long wait already for al.
Whatever happens we will fight until we get a check in some fashion with whatever resources we have.
I will have a full accounting of donations and cost, we brought in around five hundred and I have spent a few hundred over that to get this going.
cheers
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Post by eastcoastswing on Dec 8, 2009 10:27:32 GMT -5
Re: Gutierrez/Kinney/NevWest "Terminiated" 12-4-09 « Reply #2 Today at 4:46am »
-------------------------------------------------------------------------------- $574,459.70 "within 10 business days"
Case 2:08-cv-00437-LRH-RJJ Document 136 Filed 12/04/09 Page 1 of 13
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA * * * SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. CMKM DIAMONDS, INC.; URBAN CASAVANT; JOHN EDWARDS; GINGER GUTIERREZ; JAMES KINNEY; ANTHONY TOMASSO; KATHLEEN TOMASSO; 1ST GLOBAL STOCK TRANSFER, LLC; HELEN BAGLEY; NEVWEST SECURITIES CORPORATION; DARYL ANDERSON; SERGEY RUMYANTSEV; ANTHONY SANTOS; and BRIAN DVORAK, Defendants. ))))) ) ) ) )))))))))))) 2:08-CV-00437-LRH-RJJ ORDER Before the court is Defendant Security and Exchange Commission’s (“Commission”) Application for Entry of Default Judgment Against Defendant NevWest Securities Corporation (#1341). NevWest has not responded to this suit in any manner. I. Facts and Procedural History2 This case arises out of the fraudulent sale of unregistered stock of CMKM Diamonds, Inc. 1 Refers to the court’s docket entry number. 2The court accepts the following facts, taken from the complaint, as true.
(“CMKM’), a diamond and gold mining company. In November of 2002, five private Canadian companies owned by Defendant Urban Casavant entered into a reverse merger with CMKM, a corporation owned by Defendant John Edwards. As a result of the merger, in exchange for $2,000,000 and 2.8 billion shares of common stock, CMKM acquired mineral claims in Canada from the Canadian companies. Casavant became the sole director, as well as the president and CEO, of CMKM. From January of 2003, through May of 2005, CMKM issued hundreds of billions of shares of unrestricted stock to Edwards and Casavant and their nominees. However, this stock was unregistered. Further, CMKM had no legitimate operations, and its only activities were illegally issuing and falsely promoting its own stock. In September of 2002, Edwards opened at least 36 brokerage accounts at NevWest, then a full service retail broker-dealer in Las Vegas, Nevada. These accounts were handled by one of NevWest’s registered representative, Defendant Daryl Anderson. Beginning in February of 2003, Edwards would visit NevWest’s offices weekly to hand-deliver CMKM stock certificates to Anderson. In total, Edwards deposited 597 CMKM stock certificates at NevWest, totaling more than 261 billion shares. Upon receiving the stock certificates, NevWest contacted the transfer agent to verify that the certificates were unrestricted and validly issued. The transfer agent vouched for each of the stock certificates, and NevWest deposited the certificates into its accounts. By May of 2005, through NevWest, Edwards had sold more than 32 percent of CMKM’s total authorized shares. Initially, NevWest primarily sold the CMKM stock to another broker-dealer. However, in mid-October of 2004, the broker-dealer informed NevWest that it would no longer trade the shares because a Canadian regulator had issued a cease-and-desist order regarding CMKM stock. NevWest then found a new buyer and continued selling CMKM stock. In 2004, Anthony Santos, Anderson’s supervisor, and Sergey Rumyantsev, NevWest’s 2
president and head trader, began to have concerns about Edwards’ trading activities. Anderson, Santos, and Rumyantsev each considered CMKM to be a questionable issuer about which reliable information was not publicly available. They each knew that Edwards had previously been involved with CMKM, and they had each reviewed CMKM’s past Commission filings, which listed the same address that Edwards used to open most of his NevWest accounts. In response to their inquiries, Edwards declined to identify his “clients,” and told NevWest that he was not an affiliate of CMKM and that no proceeds from his sales were returned to the company or its affiliates. The Commission faults Anderson, Santos, and Rumyantsev for failing to investigate the validity of the CMKM stock and Edwards’ relationship to CMKM. In particular, the Commission faults NevWest for the following: (1) failing to ask Edwards to describe his current involvement with CMKM beyond whether he was an affiliate; (2) not attempting to contact the company itself to ask about Edwards; (3) not asking Edwards for more information about his sources of CMKM stock; (4) failing to inquire why Edwards’ shares were unrestricted; (5) failing to obtain any information about Edwards’ unidentified “clients”; and (6) not contacting anyone other than Edwards in connection with Edwards’ accounts. The Commission further faults NevWest for, months after the Commission requested NevWest’s records relating to Edwards and after the Commission suspended trading in CMKM stock and initiated de-registration proceedings, continuing to permit Edwards to sell CMKM stock. From March of 2003, through May 11, 2005, NevWest sold more than 259 billion shares of CMKM stock in 569 separate transactions. The sales generated more than $53.3 million total and more than $2,575,000 in commissions for the firm. Over the period of the fraud, Edward’s commissions amounted to 35.7 percent of NevWest’s total revenue. Pursuant to his contract with NevWest, Anderson received approximately 90 percent of the commissions he generated, and thus earned approximately $2,300,000 for his handling of Edwards’ trades in CMKM stock. 3
As of July 16, 2007, NevWest de-registered as a broker-dealer and currently has no operations. The Commission initiated this action on April 7, 2008. The same day, the court issued summonses against all fourteen defendants, including NevWest. On May 12, 2008, the Commission emailed a copy of the Complaint, the Summons, and a request for waiver of service of summons to Santos, the president of NevWest. Santos executed the waiver and returned it to the Commission via email on May 12, 2008. The Commission filed the waiver with the court the following day. On August 12, 2008, in light of NevWest’s failure to respond to the Complaint, the Clerk of the Court entered default against NevWest (#85). The Commission now seeks the following relief: (1) a permanent injunction preventing NevWest from future violations of the registration provisions of the federal securities laws; (2) disgorgement in the amount of $275,000 and payment of prejudgment interest; and (3) a third-tier civil penalty. II. Discussion Obtaining a default judgment is a two-step process governed by Federal Rule of Civil Procedure 55. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, Rule 55(a) provides, “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Second, after the clerk enters default, a party must seek entry of default judgment under Rule 55(b). Upon entry of default, the court takes the factual allegations in the non-defaulting party’s complaint as true. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citation omitted). Nonetheless, while entry of default by the clerk is a prerequisite to an entry of default judgment, “a plaintiff who obtains an entry of default is not entitled to default judgment as a matter of right.” Warner Bros. Entm’t Inc. v. Caridi, 346 F. Supp. 2d 1068, 1071 (C.D. Cal. 2004) 4
(citation omitted). Instead, whether a court will grant a default judgment is in the court’s discretion. Id. (citations omitted). The Ninth Circuit has identified the following factors as relevant to the exercise of the court’s discretion in determining whether to grant default judgment: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claims; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to the excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72. The court will consider these factors below. A. Merits of the Commission’s Substantive Claims The Commission alleges NevWest engaged in the unregistered offer and sale of securities in violation of Sections 5(a) and (c) of the Securities Act of 1933, 15 U.S.C. §§ 77e(a) and 77e(c). “Section 12(1) of the Securities Act of 1933 imposes liability on any person who ‘offers or sells a security’ in violation of Section 5 of the 1933 Act.” Anderson v. Autotek, 774 F.2d 927, 929 (9th Cir. 1985) (citing 15 U.S.C. § 77e). Sections 5(a) and 5(c) prohibit the offer and sale of securities through the mail or interstate commerce unless a registration statement has been filed and is in effect. Id. (citing SEC v. Murphy, 626 F.2d 633, 640 (9th Cir. 1980)). To state a prima facie case for a violation of Section 5, the Commission must demonstrate the following: (1) the defendants, directly or indirectly, sold or offered to sell securities; (2) the offer or sale was made through the mail or interstate commerce; and (3) for those securities, no registration statement was in effect or had been filed with the SEC. Once the SEC establishes a prima facie violation, the burden shifts to the defendant to prove that one of the Act’s exceptions to liability applies. See SEC v. Ralston Purina Co., 346 U.S. 119, 126 (1953); 15 U.S.C. § 77d. Here, the complaint alleges (1) no registration statement was in effect for the CMKM securities and (2) NevWest sold approximately more than 259 billion shares of the unregistered 5
CMKM stock through means of interstate commerce. On its face, the complaint states a claim for a Section 5 violation. As a result, taking the allegations in the complaint as true, the court finds that the Commission has demonstrated that the merits of its substantive claim support awarding default judgment. B. Remaining Default Judgment Factors The remaining default judgment factors also favor the entry of default judgment. Given NevWest’s failure to appear in this action and the likelihood that NevWest will continue to withhold the amounts the Commission seeks, the possibility of prejudice in the absence of a default judgment is great. Likewise, NevWest’s failure to respond indicates its default was not due to excusable neglect, and, based on the information before the court, the likelihood of a dispute concerning material facts appears limited. Thus, despite the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the court finds that an entry of default judgment is appropriate. C. NevWest’s Liability Having concluded that default judgment is warranted, the court must now consider the extent of NevWest’s liability. As noted, the Commission seeks a permanent injunction, disgorgement and prejudgment interest, and a third tier civil penalty. The court will address each form of relief below. 1. Permanent Injunction To obtain a permanent injunction, the Commission must show that there is a reasonable likelihood of future violations of the securities laws. Murphy, 626 F.2d at 655 (citations omitted). In considering the likelihood of future violations, the court evaluates the totality of the circumstances. Id. (citations omitted). The Ninth Circuit has identified the following factors as helpful in the court’s analysis: (1) the degree of scienter involved; (2) the isolated or recurrent nature of the infraction; (3) the defendant’s recognition of the wrongful nature of his conduct; (4) 6
the likelihood that future violations might occur; and (5) the sincerity of the defendant’s assurances against future violations. Id. Although it is a close question, the court finds that these factors support an injunction. NevWest sold billions of shares of purportedly unrestricted stock in violation of the securities laws. It engaged in these illegal sales for more than two years and received millions of dollars in gains as a result. Although the extent of NevWest’s knowledge of the invalidity of the stock certificates is not clear, the Commission has identified significant information indicating that, at the very least, NevWest should have questioned the validity of the CMKM shares. Further, NevWest has not acknowledged its wrongdoing, and although NevWest is not currently operating, it may take up operations in the future. Accordingly, the court will enter an injunction prohibiting NevWest from engaging in future violations of the registration requirements. 2. Disgorgement and Prejudgment Interest The court’s authority to order disgorgement of ill-gotten gains and prejudgment interest is well-established. See SEC v. First Pac. Bancorp, 142 F.3d 1186, 1191 (9th Cir. 1998). The purpose of disgorgement is to deprive wrongdoers of unjust enrichment while deterring future violations of the securities laws. Id. To determine the appropriate disgorgement amount, the Commission need only show “a reasonable approximation of profits causally connected to the violation.” Id. at 1192 n.6 (citation omitted). If this approximation appears unreasonable, defendants bear the burden of proving a more reasonable figure. SEC v. First City Fin. Corp., 890 F.2d 1215, 1232 (D.C. Cir. 1989). Disgorgement orders include all gains flowing from the illegal activity and include prejudgment interest. SEC v. Cross Fin. Servs., Inc., 908 F. Supp. 718, 734 (C.D. Cal. 1995) (citing SEC v. Lund, 570 F. Supp. 1397, 1404 (C.D. Cal. 1983)). The purpose of ordering payment of prejudgment interest is to deny defendants any possible profit resulting from illegal activity. Id. (citing Lund, 570 F. Supp. at 1404). Generally, prejudgment interest is calculated at the post- 7
judgment rate specified in 28 U.S.C. § 1961. W. Pac. Fisheries, Inc. v. S.S. President Grant, 730 F.2d 1280, 1289 (9th Cir. 1984). This removes any economic incentive to delay and ensures that “judicially-awarded interest rates are not less than the contemporary cost of money.” Id. Here, the Commissions asks the court to order NevWest to disgorge $275,000, representing $2,575,000 in sales commissions less $2,300,000 NevWest paid to Anderson. The court finds that this is a reasonable approximation of NevWest’s profits from its violations. The court will further order NevWest to pay $24,242.95 in prejudgment interest. Because this figure only represents interest accrued from March of 2003, through November, 13, 2009, the court will order that NevWest pay $72.25 per week from November 14, 2009, until the date of this order. Therefore, NevWest shall pay an additional $216.75 in prejudgment interest, for a total of $299,459.70. 3. Civil Penalties Under the Securities Act, civil penalties are “determined by the court in light of the facts and circumstances.” 15 U.S.C. § 77t(d)(2)(A). Unlike disgorgement, civil penalties are not only designed to deter future violations of securities laws but are imposed to punish the individual violator. SEC v. Moran, 944 F. Supp. 286, 296 (S.D.N.Y. 1996) (quoting H.R.Rep. No. 101-616, 101st Cong., at 1384-1386 (1990)). The Securities Act assesses civil penalties according to a three-tier system. 15 U.S.C. § 77t(d). First-tier penalties are imposed for any violation of the Securities Act. 15 U.S.C. § 77t(d)(2)(A). Second-tier penalties are imposed for violations involving “fraud, deceit, manipulation or deliberate or reckless disregard of a regulatory requirement.” 15 U.S.C. § 77t(d)(2)(B). Third-tier penalties are imposed for violations that (1) involve “fraud, deceit, manipulation, or reckless disregard for a regulatory requirement” and (2) “directly or indirectly resulted in substantial losses or created a significant risk of substantial losses to other persons.” 15 U.S.C. § 77t(d)(2)(C). 8
Here, the Commission seeks third-tier civil penalties. As discussed above, NevWest appears to have sold the shares of CMKM stock with at least a reckless disregard for the requirement that the stocks be registered in accordance with the Securities Act. In doing so, NevWest defrauded investors out of over $53 million. Because NevWest engaged in reckless conduct resulting in substantial losses, the court finds that third-tier civil penalties are warranted. Courts have calculated third-tier penalties in two ways. First, a court may multiply a defendant’s violations by a dollar amount. See SEC v. Coates, 137 F. Supp. 2d 413, 430 (S.D.N.Y. 2001); see also 15 U.S.C. § 77t(d)(2). Second, a court may impose a flat penalty equal to a defendant’s gross pecuniary gain. See SEC v. Solow, 554 F. Supp. 2d 1356, 1368 (S.D. Fla. 2008); SEC v. Haligiannis, 470 F. Supp. 2d 373, 386 (S.D.N.Y. 2007). Courts routinely consider five factors, established in SEC v. Murphy, 626 F.2d 633 (9th Cir. 1980), when calculating civil penalties: (1) the degree of scienter involved; (2) the isolated or recurrent nature of the infraction; (3) the defendant’s recognition of the wrongful nature of his conduct; (4) the likelihood, because of the defendant’s professional occupation, that future violations might occur; and (5) the sincerity of the defendant’s assurances against future violations. See, e.g., SEC v. Alpha Telecom, Inc., 187 F. Supp. 2d 1250, 1263 (D. Or. 2002) (applying the factors to assess a civil penalty). The court will employ the second method for calculating third-tier civil penalties and impose a single fine on NevWest. When faced with a similar array of violations, courts often order penalties based on a defendant’s gross pecuniary gain. See Haligiannis, 470 F. Supp. 2d at 386 (ordering a $15,000,000 penalty equal to the disgorgement amount “due to difficulty calculating total number of violations”); SEC v. Interlink Data Network, Inc., et. al., No. 93-3073 R, 1993 WL 603274, *13 (C.D. Cal. Nov. 15, 1993) (ordering a $12,285,035 penalty equal to the disgorgement amount for 565, 439, and 527 violations because “there are many ways to compute the amount of a civil penalty under the federal securities law”); SEC v. Invest Better 2001, No. 11427, 2005 WL 2385452, *5 (S.D.N.Y. May 4, 2005) (ordering civil penalty equal to disgorgement amount because 9
“the exact number of violations . . . is impossible to determine”); SEC v. Yuen, 272 Fed. App’x 615, 618 (9th Cir. 2008) (affirming a district court’s penalty equal to the disgorgement amount as “well within [the district court’s] discretion”). As noted repeatedly, NevWest recklessly defrauded thousands of investors out of over $53 million. Although it is not clear whether NevWest is likely to engage in future violations, by failing to appear in this dispute, it has refused to acknowledge its wrongdoing. As a result, in addition to ordering disgorgement of ill-gotten gains and prejudgment interest, the court will impose third-tier penalties equal to NevWest’s disgorgement amount. IT IS THEREFORE ORDERED that the Commission’s Application for Default Judgment (#134) is GRANTED. I. IT IS FURTHER ORDERED that NevWest and its 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 5 of 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 10
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. II. IT IS FURTHER ORDERED that NevWest is liable for disgorgement of $275,000, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $24,459.70, and a civil penalty in the amount of $275,000 pursuant to Section 20(d) of the Securities Act of 1933, 15 U.S.C. § 77t(d). NevWest shall satisfy this obligation by paying $574,459.70 within ten business days to the Clerk of this Court, together with a cover letter identifying NevWest as a defendant 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. NevWest shall simultaneously transmit photocopies of such payment and letter to the Commission’s counsel in this action. By making this payment, NevWest relinquishes all legal and equitable right, title, and interest in such funds, and no part of the funds shall be returned to NevWest. NevWest shall pay post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961. The Clerk shall deposit the funds into an interest bearing account with the Court Registry Investment System (“CRIS”) or any other type of interest bearing account that is utilized by the Court. These funds, together with any interest and income earned thereon (collectively, the “Fund”), shall be held in the interest bearing account until further order of the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative Office of the United States Courts, the Clerk is directed, without further order of this Court, to deduct from the income earned on the money in the Fund a fee equal to ten percent of the income earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the United States. 11
The Commission may by motion 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. 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, NevWest shall not, after offset or reduction of any award of compensatory damages in any Related Investor Action based on NevWest’s payment of disgorgement in this action, argue that it is entitled to, nor shall it further benefit by, offset or reduction of such compensatory damages award by the amount of any part of NevWest’s payment of a civil penalty in this action (“Penalty Offset”). If the court in any Related Investor Action grants such a Penalty Offset, NevWest shall, within 30 days after entry of a final order granting the Penalty Offset, notify the Commission’s counsel in this action and pay the amount of the Penalty Offset to the United States Treasury or to a Fair Fund, as the Commission 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 NevWest by or on /// 12
behalf of one or more investors based on substantially the same facts as alleged in the Complaint in this action. III. IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. IV. 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 Final Judgment forthwith and without further notice. IT IS SO ORDERED. DATED this 4th day of December, 2009. __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 13
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$12,408,125.71 "within 10 business days" from 12-4-09
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