Securities and Exchange Commission v. Jammin Java Corp. et al

Filing 200

FINAL JUDGMENT AS TO DEFENDANT KEVIN P. MILLER by Judge Stephen V. Wilson. IS HEREBY ordered, adjudged, and decreed that Defendant is permanently restrained and enjoined from violating Section 5 of the Securities Act of 1933 (Securities Act), 15 U.S .C. § 77e. IT IS FURTHER ordered, adjudged, and decreed that Defendant is liable for disgorgement in the amount of $783,368.69, representing profits gained as a result of the conduct alleged in the Amended Complaint, together with prejudgment interest thereon in the amount of $116,631.30. See document for details. (lom)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11
12

SECURITIES AND EXCHANGE
COMMISSION,

13

Plaintiff,

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

vs.
JAMMIN’ JAVA CORP., dba MARLEY
COFFEE, SHANE G. WHITTLE, WAYNE
S. P. WEAVER, MICHAEL K. SUN, RENE
BERLINGER, STEPHEN B. WHEATLEY,
KEVIN P. MILLER, MOHAMMED A. ALBARWANI, ALEXANDER J. HUNTER,
and THOMAS E. HUNTER,
Defendants.

Case No. 2:15-cv-08921 SVW (MRWx)

FINAL JUDGMENT AS TO
DEFENDANT KEVIN P. MILLER

1

The Securities and Exchange Commission (“Commission”) having filed an Amended

2

Complaint and Defendant Kevin P. Miller (“Defendant”) having entered a general appearance;

3

consented to the Court’s jurisdiction over Defendant and the subject matter of this action;

4

consented to entry of this Final Judgment without admitting or denying the allegations of the

5

Amended Complaint (except as to jurisdiction and except as otherwise provided herein in

6

paragraph V); waived findings of fact and conclusions of law; and waived any right to appeal

7

from this Final Judgment:

8

I.

9

IT IS HEREBY ordered, adjudged, and decreed that Defendant is permanently

10

restrained and enjoined from violating Section 5 of the Securities Act of 1933 (“Securities

11

Act”), 15 U.S.C. § 77e, by, directly or indirectly, in the absence of any applicable exemption:

12

(a)

unless a registration statement is in effect as to a security, making use of any

13

means or instruments of transportation or communication in interstate commerce or of the

14

mails to sell such security through the use or medium of any prospectus or otherwise;

15

(b)

unless a registration statement is in effect as to a security, carrying or causing to

16

be carried through the mails or in interstate commerce, by any means or instruments of

17

transportation, any such security for the purpose of sale or for delivery after sale; or

18

(c)

making use of any means or instruments of transportation or communication in

19

interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of

20

any prospectus or otherwise any security, unless a registration statement has been filed with the

21

Commission as to such security, or while the registration statement is the subject of a refusal

22

order or stop order or (prior to the effective date of the registration statement) any public

23

proceeding or examination under Section 8 of the Securities Act, 15 U.S.C. § 77h.

24

IT IS FURTHER ordered, adjudged, and decreed that, as provided in Federal Rule of

25

Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual

26

notice of this Final Judgment by personal service or otherwise: (a) Defendant’s officers, agents,

27

servants, employees, and attorneys; and (b) other persons in active concert or participation

28

with Defendant or with anyone described in (a).

1

1
II.

2
3

IT IS HEREBY FURTHER ordered, adjudged, and decreed that Defendant is

4

permanently barred from participating in an offering of penny stock, including engaging in

5

activities with a broker, dealer, or issuer for purposes of issuing, trading, or inducing or

6

attempting to induce the purchase or sale of any penny stock. A penny stock is any equity

7

security that has a price of less than five dollars, except as provided in Rule 3a51-1 under the

8

Exchange Act, 17 C.F.R. § 240.3a51-1.
III.

9
10

IT IS FURTHER ordered, adjudged, and decreed that Defendant is liable for

11

disgorgement in the amount of $783,368.69, representing profits gained as a result of the conduct

12

alleged in the Amended Complaint, together with prejudgment interest thereon in the amount of

13

$116,631.30. Defendant shall make this payment within 14 days after entry of this Final

14

Judgment.

15

Defendant may transmit payment electronically to the Commission, which will provide

16

detailed ACH transfer/Fedwire instructions upon request. Payment may also be made directly

17

from a bank account via Pay.gov through the SEC website at http://www.sec.gov/about/

18

offices/ofm.htm. Defendant may also pay by certified check, bank cashier’s check, or United

19

States postal money order payable to the Securities and Exchange Commission, which shall be

20

delivered or mailed to:

21
22
23

Enterprise Services Center
Accounts Receivable Branch
6500 South MacArthur Boulevard
Oklahoma City, OK 73169

24

and shall be accompanied by a letter identifying the case title, civil action number, and name of

25

this Court; Kevin P. Miller as a defendant in this action; and specifying that payment is made

26

pursuant to this Final Judgment.

27
28

Defendant shall simultaneously transmit photocopies of evidence of payment and case
identifying information to the Commission’s counsel in this action. By making this payment,

2

1

Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part

2

of the funds shall be returned to Defendant. The Commission shall send the funds paid

3

pursuant to this Final Judgment to the United States Treasury.

4

The Commission may enforce the Court’s judgment for disgorgement and prejudgment

5

interest by moving for civil contempt (and/or through other collection procedures authorized

6

by law) at any time after 14 days following entry of this Final Judgment. Defendant shall pay

7

post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.

8
9

IV.
IT IS FURTHER ordered, adjudged, and decreed that the Consent is incorporated

10

herein with the same force and effect as if fully set forth herein, and that Defendant shall

11

comply with all of the undertakings and agreements set forth therein.

12
13

V.
IT IS FURTHER ordered, adjudged, and decreed that, solely for purposes of exceptions

14

to discharge set forth in Section 523 of the Bankruptcy Code, 11 U.S.C. § 523, the allegations

15

in the Amended Complaint are true and admitted by Defendant, and further, any debt for

16

disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under

17

this Final Judgment or any other judgment, order, consent order, decree or settlement

18

agreement entered in connection with this proceeding, is a debt for the violation by Defendant

19

of the federal securities laws or any regulation or order issued under such laws, as set forth in

20

Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. § 523(a)(19).

21
22
23

VI.
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.

24
25
26
27
28
3