Securities and Exchange Commission v. Peter D Nunan

Filing 7

Final Judgment. Signed by Judge Lucy H. Koh on 5/3/2016. (lhklc3, COURT STAFF) (Filed on 5/3/2016) **THE CLERK SHALL CLOSE THE CASE FILE** Modified on 5/3/2016 (sms, COURT STAFF).

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DARREN E. LONG (D.C. Bar No. 474261)
[e-mail]
Attorney for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
100 F Street, NE
Washington, DC 20549-5010
Telephone: [phone]
Facsimile: [phone]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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Case No. 16-CV-02373-LHK

SECURITIES AND EXCHANGE
COMMISSION,

(PROPOSED) FINAL JUDGMENT AS TO
DEFENDANT PETER D. NUNAN

Plaintiff,
vs.
PETER D. NUNAN,
Defendant.

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The Securities and Exchange Commission having filed a Complaint and Defendant Peter D.
Nunan 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 Final Judgment without admitting or
denying the allegations of the Complaint (except as to jurisdiction and except as otherwise provided
herein in paragraph IV); waived findings of fact and conclusions of law; and waived any right to
appeal from this Final 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 any means or instrumentality of interstate commerce,
or of the mails, or of any facility of any national securities exchange, in connection with the

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Final Judgment As To
Defendant Peter D. Nunan

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purchase or sale of 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 material fact

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necessary in order to make the statements made, in the light of the circumstances

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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.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in the
Federal Rules of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who

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receive actual notice of the Final Judgment by personal service or otherwise: (a) Defendant’s

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

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with Defendant or with anyone described in (a).

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II.

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IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is

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permanently restrained and enjoined from violating Section 14(e) of the Exchange Act of 1934 [15

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U.S.C. § 78(n)(e)], and Rule 14e-3 [17 C.F.R. § 240.14e-3] promulgated thereunder, in connection

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with any tender offer or request or invitation for tenders, from engaging in any fraudulent,

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deceptive, or manipulative act or practice, by:

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(a)

purchasing or selling or causing to be purchased or sold the securities sought or to be

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sought in such tender offer, securities convertible into or exchangeable for any such

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securities or any option or right to obtain or dispose of any of the foregoing securities

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while in possession of material information relating to such tender offer that

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Defendant knows or has reason to know is nonpublic and knows or has reason to

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know has been acquired directly or indirectly from the offering person; the issuer of

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the securities sought or to be sought by such tender offer; or any officer, director,

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partner, employee, or other person acting on behalf of the offering person or such

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issuer, unless within a reasonable time prior to any such purchase or sale such

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information and its source are publicly disclosed by press release or otherwise; or

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Final Judgment As To
Defendant Peter D. Nunan

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(b)

communicating material, nonpublic information relating to a tender offer, which

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Defendant knows or has reason to know is nonpublic and knows or has reason to

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know has been acquired directly or indirectly from the offering person; the issuer of

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the securities sought or to be sought by such tender offer; or any officer, director,

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partner, employee, advisor, or other person acting on behalf of the offering person of

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such issuer, to any person under circumstances in which it is reasonably foreseeable

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that such communication is likely to result in the purchase or sale of securities in the

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manner described in subparagraph (a) above, except that this paragraph shall not

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apply to a communication made in good faith:

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(i)

to the officers, directors, partners, or employees of the offering person, to its

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advisors or to other persons, involved in the planning, financing, preparation,

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or execution of such tender offer;

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(ii)

to the issuer whose securities are sought or to be sought by such tender offer,

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to its officers, directors, partners, employees, or advisors or to other persons

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involved in the planning, financing, preparation, or execution of the activities

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of the issuer with respect to such tender offer; or

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(iii)

to any person pursuant to a requirement of any statute or rule or regulation
promulgated thereunder.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in the

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Federal Rules of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who

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receive actual notice of the Final Judgment by personal service or otherwise: (a) Defendant’s

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

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with Defendant or with anyone described in (a).

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III.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for

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disgorgement of $254,858, representing profits gained as a result of the conduct alleged in the

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Complaint, together with prejudgment interest thereon in the amount of $24,587, and a civil penalty

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in the amount of $254,858, pursuant to Section 21A of the Exchange Act [15 U.S.C. § 78u-1].

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Final Judgment As To
Defendant Peter D. Nunan

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Defendant shall satisfy this obligation by paying $534,303 to the Securities and Exchange

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Commission within 14 days after entry of this Final Judgment.

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

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

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

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Defendant may also pay by certified check, bank cashier’s check, or United States postal money

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order payable to the Securities and Exchange Commission, which shall be delivered or mailed to

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

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

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Court; Peter D. Nunan as a defendant in this action; and specifying that payment is made pursuant

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to this Final Judgment.

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Defendant shall simultaneously transmit photocopies of evidence of payment and case

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identifying information to the Commission’s counsel in this action. By making this payment,

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

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

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this Final Judgment to the United States Treasury.

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

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

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

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

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IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for purposes of

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

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allegations in the complaint are true and admitted by Defendant, and further, any debt for

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

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

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Final Judgment As To
Defendant Peter D. Nunan

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

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securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19)

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

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V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain

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jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment.

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The Clerk shall close the case file.

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May 3, 2016
Dated: __________________, ____________

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____________________________________
UNITED STATES DISTRICT JUDGE

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Final Judgment As To
Defendant Peter D. Nunan