Securities And Exchange Commission v. Leslie et al

Filing 359

FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY. Signed by Judge Jeremy Fogel on 3/19/2012. (jflc2, COURT STAFF) (Filed on 3/20/2012)

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1 2 3 4 5 RICHARD HONG ((New York Reg. No 2503589) DAVID WILLIAMS (California Bar No. 183854) Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION 100 F Street, N.E. Washington, DC 20549-4010-A Telephone: (202) 551-4431 (Hong) Facsimile: (202) 772-9246 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 SECURITIES AND EXCHANGE COMMISSION, 13 Plaintiff, 14 [PROPOSED] FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY vs. 15 Case No. 5:07-cv-03444-JF MARK LESLIE, Hon. Jeremy Fogel 16 Defendants. 17 18 19 The Securities and Exchange Commission having filed an amended complaint and 20 Defendant PAUL A. SALLABERRY, having entered a general appearance; consented to the 21 Court’s jurisdiction over Defendant and the subject matter of this action; consented to entry of 22 this Final Judgment without admitting or denying the allegations of the amended complaint 23 (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right 24 to appeal from this Final Judgment: 25 26 27 28 FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY SEC v. Leslie, et al., Case No. C 07-3444 JF 1 2 3 I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or 4 participation with them who receive actual notice of this Final Judgment by personal service or 5 6 otherwise are permanently restrained and enjoined from violating Rule 13b2-1 of the Securities 7 Exchange Act (the “Exchange Act”) [17 C.F.R. § 240.13b2-1] by, directly or indirectly, falsifying 8 or causing to be falsified, any book, record or account subject to Section 13(b)(2)(A) of the 9 Exchange Act [15 U.S.C. § 78m(b)(2)(A)]. 10 11 II. 12 13 14 15 IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement and prejudgment interest of $75,000.00, representing profits gained as a result of the conduct alleged in the amended complaint and prejudgment interest thereon, and a 16 civil penalty in the amount of $25,000.00 pursuant to Section 21(d) of the Exchange Act. 17 18 Defendant shall satisfy this obligation by paying $100,000.00 within 14 days after entry of this 19 Final Judgment to the Clerk of this Court, together with a cover letter identifying Defendant's 20 name as a defendant in this action; setting forth the title and civil action number of this action and 21 the name of this Court; and specifying that payment is made pursuant to this Final Judgment. 22 Defendant shall simultaneously transmit photocopies of such payment and letter to the 23 Commission’s counsel in this action. By making the foregoing payments, Defendant relinquishes 24 25 26 27 all legal and equitable right, title, and interest in such funds, and no part of the funds shall be returned to Defendant. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961. 28 FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY SEC v. Leslie, et al., Case No. C 07-3444 JF -2- 1 2 3 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 4 “Fund”), shall be held in the interest bearing account until further order of the Court. In 5 6 accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative 7 Office of the United States Courts, the Clerk is directed, without further order of this Court, to 8 deduct from the income earned on the money in the Fund a fee equal to ten percent of the income 9 earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the 10 11 United States. The Commission may by motion propose a plan to distribute the Fund subject to the 12 13 14 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 15 such Fair Fund distribution is made, amounts ordered to be paid as civil penalties pursuant to this 16 Judgment shall be treated as penalties paid to the government for all purposes, including all tax 17 purposes. To preserve the deterrent effect of the civil penalty, Defendant shall not, after offset or 18 reduction of any award of compensatory damages in any Related Investor Action based on 19 Defendant’s payment of disgorgement in this action, argue that he is entitled to, nor shall he 20 21 further benefit by, offset or reduction of such compensatory damages award by the amount of any 22 part of Defendant’s payment of a civil penalty in this action ("Penalty Offset"). If the court in any 23 Related Investor Action grants such a Penalty Offset, Defendant shall, within 30 days after entry 24 of a final order granting the Penalty Offset, notify the Commission's counsel in this action and 25 pay the amount of the Penalty Offset to the United States Treasury or to a Fair Fund, as the 26 Commission directs. Such a payment shall not be deemed an additional civil penalty and shall 27 not be deemed to change the amount of the civil penalty imposed in this Judgment. For purposes 28 FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY SEC v. Leslie, et al., Case No. C 07-3444 JF -3- 1 of this paragraph, a "Related Investor Action" means a private damages action brought against 2 Defendant by or on behalf of one or more investors based on substantially the same facts as 3 alleged in the amended complaint in this action. 4 5 III. 6 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is 7 8 9 incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall comply with all of the undertakings and agreements set forth therein. 10 IV. 11 12 13 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. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY SEC v. Leslie, et al., Case No. C 07-3444 JF -4- 1 V. 2 3 4 5 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. Dated: ______________, 2012 6 ___________________________________ HON. JEREMY FOGEL UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT AS TO DEFENDANT PAUL A. SALLABERRY SEC v. Leslie, et al., Case No. C 07-3444 JF -5-

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