Securities and Exchange Commission v. Desarrolladora Homex, S.A.B. de C.V.

Filing 9

Final Judgment as to Defendant Desarrolladora Homex S.A.B. de C.V. Signed by Judge M. James Lorenz on 3/28/2017. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SECURITIES AND EXCHANGE
COMMISSION,

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Plaintiff,
vs.
DESARROLLADORA
HOMEX S.A.B. DE C.V.,

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Defendant

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Case No. 3:17-cv-00432-L-WVG

FINAL JUDGMENT AS TO
DEFENDANT DESARROLLADORA
HOMEX S.A.B. DE C.V.

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The Securities and Exchange Commission having filed a Complaint and
Defendant Desarrolladora Homex S.A.B. de C.V. (“Defendant” or “Homex”)

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having entered a general appearance; consented to and admitted the Court’s

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jurisdiction over Defendant and the subject matter of this action; consented to entry

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of this Final Judgment without admitting or denying the allegations of the

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Complaint (except as to jurisdiction); waived findings of fact and conclusions of

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law; and waived any right to appeal from this Final Judgment:

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I.

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

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

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

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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

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indirectly:

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(a)

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

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(b)

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

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the statements made, in light of the circumstances under which they were

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made, not misleading; or

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(c)

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operates or would operate as a fraud or deceit upon the purchaser.

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

to engage in any transaction, practice, or course of business which

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided
in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the
following who receive actual notice of this Final Judgment by personal service or
otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys;
and (b) other persons in active concert or participation with Defendant or with
anyone described in (a).
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, directly or

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indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange

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Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R.

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§ 240.10b-5], by using any means or instrumentality of interstate commerce, or of

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

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the 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

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

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

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(c)

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would operate as a fraud or deceit upon any person.

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to engage in any act, practice, or course of business which operates or

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

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

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

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

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

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anyone described in (a).

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III.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED
that Defendant is permanently restrained and enjoined from violating Exchange
Act Section 13(a) [15 U.S.C. § 78m(a)] and Rules 12b-20, 13a-1 and 13a-16
promulgated thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and 240.13a-16] by
knowingly providing substantial assistance to any issuer of a security registered
pursuant to Exchange Act Section 12 [15 U.S.C. §78l] that files or causes to be
filed with the Commission any report which contains any untrue statement of

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material fact, which omits to state any material fact necessary in order to make the

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statements made, in light of the circumstances under which they were made, not

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misleading, or which omits to disclose any information required to be disclosed.

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

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

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

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

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

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anyone described in (a).

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IV.

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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 Exchange Act

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Sections 13(b)(2)(A) and 13(b)(2)(B) [15 U.S.C. §§78m(b)(2)(A) and
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78m(b)(2)(B)] by knowingly providing substantial assistance to any issuer of a

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security registered pursuant to Exchange Act Section 12 [15 U.S.C. §78l] or to any

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issuer which is required to file reports pursuant to Exchange Act Section 15(d) [15

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U.S.C. §78o(d)] that:

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(a)

fails to make and keep books, records, and accounts which, in

reasonable detail, accurately and fairly reflect the transactions and
dispositions of the assets of the issuer; or
(b)

fails to devise and maintain a system of internal accounting

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controls sufficient to provide reasonable assurances that: (1) transactions are

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executed in accordance with management’s general or specific authorization;

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(2) transactions are recorded as necessary (i) to permit preparation of

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financial statements in conformity with generally accepted accounting

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principles or any other criteria applicable to such statements and (ii) to

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maintain accountability for assets; (3) access to assets is permitted only in

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accordance with management’s general or specific authorization; and (4) the

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recorded accountability for assets is compared with the existing assets at

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reasonable intervals and appropriate action is taken with respect to any
differences.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided
in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the
following who receive actual notice of this Final Judgment by personal service or
otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys;
and (b) other persons in active concert or participation with Defendant or with
anyone described in (a).

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V.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is

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

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that Defendant shall comply with all of the undertakings and agreements set forth

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therein.

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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.

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VII.
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.

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DATED: March 28, 2017

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M. James Lorenz
United States District Court Judge

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