Securities and Exchange Commission v. BIC Real Estate Development Corporation et al

Filing 83

JUDGMENT as to Defendant, Daniel R. Nase signed by Chief Judge Lawrence J. O'Neill on 7/26/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SECURITIES AND EXCHANGE
COMMISSION,

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Plaintiff,

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Case No. 1:16-cv-00344-LJO-JLT
JUDGMENT AS TO DEFENDANT
DANIEL R. NASE

vs.
BIC REAL ESTATE DEVELOPMENT
CORPORATION and DANIEL R.
NASE, individually and d/b/a
BAKERSFIELD INVESTMENT
CLUB,
Defendants,
BIC SOLO 401K TRUST and
MARGARITA NASE,
Relief Defendants.

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The Securities and Exchange Commission (“SEC”) having filed a Complaint
and Defendant Daniel R. Nase having entered a general appearance; consented to the
Court’s jurisdiction over Defendant 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 and except as otherwise provided herein in paragraph VI);
waived findings of fact and conclusions of law; and waived any right to appeal from
this Judgment:
I.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is
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
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any means or instrumentality of interstate commerce, or of the mails, or of any

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facility of any national securities exchange, in connection with the purchase or sale of

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any security:

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(a)

to employ any device, scheme, or artifice to defraud;

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(b)

to make any untrue statement of a material fact or to omit to state a

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material fact necessary in order to make the statements made, in the light

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of the circumstances under which they were made, not misleading; or

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(c)

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to engage in any act, practice, or course of business which operates or
would operate as a fraud or deceit upon any person.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Judgment by personal service or

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otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys; and

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(b) other persons in active concert or participation with Defendant or with anyone

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described in (a).

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II.

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IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that

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Defendant is permanently restrained and enjoined from violating Section 17(a) of the

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Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale

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of any security by the use of any means or instruments of transportation or

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communication in interstate commerce or by use of the mails, directly or indirectly:

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(a)

to employ any device, scheme, or artifice to defraud;

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(b)

to obtain money or property by means of any untrue statement of a

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material fact or any omission of a material fact necessary in order to

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make the statements made, in light of the circumstances under which

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they were made, not misleading; or

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(c)

to engage in any transaction, practice, or course of business which
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operates or would operate as a fraud or deceit upon the purchaser.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Judgment by personal service or

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otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys; and

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(b) other persons in active concert or participation with Defendant or with anyone

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described in (a).

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III.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that

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Defendant is permanently restrained and enjoined from violating Section 5 of the

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Securities Act [15 U.S.C. § 77e] by, directly or indirectly, in the absence of any

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applicable exemption:

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(a)

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

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any means or instruments of transportation or communication in

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interstate commerce or of the mails to sell such security through the use

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or medium of any prospectus or otherwise;

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(b)

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

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causing to be carried through the mails or in interstate commerce, by any

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means or instruments of transportation, any such security for the purpose

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of sale or for delivery after sale; or

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(c)

Making use of any means or instruments of transportation or

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communication in interstate commerce or of the mails to offer to sell or

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offer to buy through the use or medium of any prospectus or otherwise

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any security, unless a registration statement has been filed with the SEC

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

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refusal order or stop order or (prior to the effective date of the

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registration statement) any public proceeding or examination under

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Section 8 of the Securities Act [15 U.S.C. § 77h].
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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Judgment by personal service or

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otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys; and

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(b) other persons in active concert or participation with Defendant or with anyone

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described in (a).

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IV.

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IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that
Defendant shall pay disgorgement of ill-gotten gains, prejudgment interest thereon,

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and a civil penalty pursuant to Section 20(d) of the Securities Act [15 U.S.C. §

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77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. The Court

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shall determine the amounts of the disgorgement and civil penalty upon motion of the

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SEC. Prejudgment interest shall be calculated from March 11, 2016, based on the

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rate of interest used by the Internal Revenue Service for the underpayment of federal

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income tax as set forth in 26 U.S.C. § 6621(a)(2). In connection with the SEC’s

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motion for disgorgement and/or civil penalties, and at any hearing held on such a

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motion: (a) Defendant will be precluded from arguing that he did not violate the

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federal securities laws as alleged in the Complaint; (b) Defendant may not challenge

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the validity of the Consent or this Judgment; (c) solely for the purposes of such

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motion, the allegations of the Complaint shall be accepted as and deemed true by the

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Court; and (d) the Court may determine the issues raised in the motion on the basis of

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affidavits, declarations, excerpts of sworn deposition or investigative testimony, and

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documentary evidence, without regard to the standards for summary judgment

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contained in Rule 56(c) of the Federal Rules of Civil Procedure. In connection with

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the SEC’s motion for disgorgement and/or civil penalties, the parties may take

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discovery, including discovery from appropriate non-parties.

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//

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//
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V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the

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Consent is incorporated herein with the same force and effect as if fully set forth

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herein, and that Defendant shall comply with all of the undertakings and agreements

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set forth therein.

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VI.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for

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purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code,

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11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant,

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and further, any debt for disgorgement, prejudgment interest, civil penalty or other

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amounts due by Defendant under this Judgment or any other judgment, order, consent

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order, decree or settlement agreement entered in connection with this proceeding, is a

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debt for the violation by Defendant of the federal securities laws or any regulation or

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order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy

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Code, 11 U.S.C. §523(a)(19).

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VII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court

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shall retain jurisdiction of this matter for the purposes of enforcing the terms of this

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Judgment.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

July 26, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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