Securities And Exchange Commission v. The Nutmeg Group, LLC et al

Filing 227

MOTION by Plaintiff Securities And Exchange Commission for judgment as to Relief Defendant Sam Wayne (Consented) (Attachments: #1 Exhibit Proposed Judgment, #2 Exhibit Consent)(Shoenthal, Andrew)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. THE NUTMEG GROUP, LLC, RANDALL GOULDING, DAVID GOULDING, Defendants, DAVID GOULDING, INC., DAVID SAMUEL, LLC, FINANCIAL ALCHEMY, LLC, PHILLY FINANCIAL, LLC, SAM WAYNE, and ERIC IRRGANG Relief Defendants. PLAINTIFF'S MOTION FOR ENTRY OF AGREED FINAL JUDGMENT AS TO RELIEF DEFENDANT SAM WAYNE Plaintiff United States Securities and Exchange Commission (the "SEC") respectfully moves this Court for entry of the proposed Final Judgment as to Relief Defendant Sam Wayne ("Final Judgment"), a copy of which is attached hereto as Exhibit 1. In support of its motion, the SEC states as follows: 1. On March 25, 2009, the SEC filed a Complaint alleging that Defendants The Case No.: 09-CV-1775 Judge William J. Hibbler Magistrate Judge Ashman

Nutmeg Group, LLC ("Nutmeg") and Randall Goulding engaged in fraudulent activities in violation of the Investment Advisers Act of 1940 (the "Advisers Act"), and that Defendants Randall Goulding and David Goulding aided and abetted those activities. (See Docket No. 1) Among other things, the Complaint alleges that Defendants misappropriated assets belonging to

Nutmeg's advisory clients ("the Funds") by transferring them to certain related parties (the "Relief Defendants"), without disclosing those transfers to its investors, and used the Funds' assets to make undisclosed payments to the Relief Defendants, including Sam Wayne. (Docket No. 1 at ¶¶ 53-59) The SEC has alleged that the Relief Defendants were unjustly enriched by those transfers and payments, and should be compelled to return any compensation they received for holding or managing the Funds' assets. (Id. at Count IX, ¶¶ 109-111) 2. The SEC took the deposition of Sam Wayne in October, 2009 and has analyzed

all of the relevant bank and brokerage account records. After the deposition, the SEC and counsel for Sam Wayne entered into settlement discussions and the parties have agreed to resolve the SEC's claim against Sam Wayne. 3. The proposed Final Judgment, among other things, orders Sam Wayne to pay

$3,337 in disgorgement and prejudgment interest to the Receiver for Nutmeg. The SEC does not seek a civil penalty against Sam Wayne or an order of injunctive relief. 4. Sam Wayne has executed a consent to the entry of the proposed Final Judgment, a

copy of which is attached hereto as Exhibit 2. 5. Defendants. Dated: August 26, 2010 By: /s/ Andrew Shoenthal Robert M. Moye James Lundy Andrew Shoenthal 175 West Jackson Boulevard, Suite 900 Chicago, IL 60604 Telephone: [phone] Plaintiff, the United States Securities and Exchange Commission The SEC's case will continue against the Defendants and the other Relief

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CERTIFICATE OF SERVICE I hereby certify that, on August 26, 2010, I caused a copy of the foregoing Plaintiff's Motion for Entry of Final Judgment as to Sam Wayne to be served upon the following counsel by the Court's ECF system:
Randall S. Goulding ([e-mail]) 1333 Sprucewood Lane Deerfield, IL 60015 Alan M. Wolper ([e-mail]) Martin W. Jaszczuk ([e-mail]) Locke Lord Bissell & Liddell LLP 111 South Wacker Drive Chicago, IL 60606 Steven B. Nagler ([e-mail]) Steven B. Nagler, Ltd. 601 Skokie Blvd. Suite 504 Northbrook, IL 60062

Paula Jacobi ([e-mail]) Kevin Driscoll ([e-mail]) Deborah Thorne ([e-mail]) Barnes & Thornburg LLP 1 North Wacker Drive, Suite 4400 Chicago, Illinois 60606-2833 Karla Pascarella ([e-mail]) Barton, East & Caldwell, LLP One Riverwalk Place 700 N. St. Mary's Street, Suite 1825 San Antonio, Texas 78205

James Kopecky ([e-mail]) Daryl Schumacher ([e-mail]) Kopecky, Schumacher, & Bleakley P.C. 203 North LaSalle Street, Ste. 1620 Chicago, IL 60601

/s/ Andrew Shoenthal Andrew Shoenthal