Securities & Exchange Commission v. Cho

Filing 43

MOTION by Plaintiff Securities & Exchange Commission for judgment Against Randy M. Cho (Attachments: # 1 Exhibit Consent of Randy M. Cho previously filed docket #21-2, # 2 Text of Proposed Order Judgment Against Randy M. Cho)(Cotter, Amy)

Securities & Exchange Commission v. Cho

Doc. 43 Att. 2

EXHIBIT 2

Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ____________________________________ SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. RANDY M. CHO, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 09 cv 6261 Honorable James F. Holderman Magistrate Judge Michael T. Mason

JUDGMENT AGAINST DEFENDANT RANDY M. CHO The Securities and Exchange Commission (SEC) having filed a Motion to Enter Judgment Against Randy M. Cho (Cho), supporting memorandum of law, affidavits and declarations; the court having considered the entire record in this case, having been fully advised in the premises and having considered the evidence and the parties arguments; HEREBY FINDS good cause for granting the SEC's motion, and ORDERS the following: I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Order of Permanent Injunction Against Randy M. Cho (Docket #25) entered on October 27, 2009, remains in full force and effect. The preliminary injunction set forth in Section II of the Order of Permanent Injunction (Docket #25) against Defendant Cho or his agents, servants, employees, attorneys, or those persons in active concert or participation with him, from soliciting, raising or accepting any additional funds from any investors in connection with any offer, purchase or sale

of any securities, remains in full force and effect until Defendant Cho fully satisfies the claims for monetary relief ordered in this Judgment. II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Cho is liable for disgorgement of $7,783,767.02, representing ill-gotten gains as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $289,320.08, and a civil penalty in the amount of $150,000.00 pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] , Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section 209(e) of the Advisers Act [15 U.S.C. § 80b-9(e)], for a total of $8,073,087.10. Defendant Cho shall partially satisfy this obligation by transferring all balances of currently frozen financial institution accounts previously identified to the Court in the filing "Listing of Cho Assets Known To SEC on July 1, 2010" (Docket #35) within 10 days after entry of this Judgment to the Clerk of this Court. Payments under this paragraph shall be made to the Clerk of this Court, together with a cover letter identifying Randy M. Cho as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Judgment. Defendant shall simultaneously transmit photocopies of each such payment and letter to the Commission's counsel in this action. Defendant relinquishes all legal and equitable right, title, and interest in such payments, and no part of the funds shall be returned to Defendant. The Clerk shall deposit the funds into the Court's registry. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961.

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The Commission may enforce the Court's judgment for disgorgement and prejudgment interest by moving for civil contempt (and/or through other collection procedures authorized by law) at any time after 10 days following entry of this Judgment. In response to any such civil contempt motion by the Commission, the defendant may assert any legally permissible defense. The Commission may propose a plan to distribute the Fund subject to the 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 such Fair Fund distribution is made, amounts ordered to be paid as civil penalties pursuant to this Judgment shall be treated as penalties paid to the government for all purposes, including all tax purposes. To preserve the deterrent effect of the civil penalty, Defendant shall not, after offset or reduction of any award of compensatory damages in any Related Investor Action based on Defendant's payment of disgorgement in this action, argue that he is entitled to, nor shall he further benefit by, offset or reduction of such compensatory damages award by the amount of any part of Defendant's payment of a civil penalty in this action (Penalty Offset). If the court in any Related Investor Action grants such a Penalty Offset, Defendant shall, within 30 days after entry of a final order granting the Penalty Offset, notify the Commission's counsel in this action and pay the amount of the Penalty Offset to the United States Treasury or to a Fair Fund, as the Commission directs. Such a payment shall not be deemed an additional civil penalty and shall not be deemed to change the amount of the civil penalty imposed in this Judgment. For purposes of this paragraph, a "Related Investor Action" means a private damages action brought against Defendant by or on behalf of one or more investors based on substantially the same facts as alleged in the Complaint in this action.

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III. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Asset Freeze Order entered by the Court in this action on October 7, 2009, and modified on shall remain in full force unless such Asset Freeze Order is modified or terminated by further Order of the Court. IV. 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 Judgment. V. 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 Judgment forthwith and without further notice.

____________________________________ James F. Holderman UNITED STATES DISTRICT JUDGE Dated: ______________, 2010

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