Securities & Exchange Commission v. Caldwell et al
Filing
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CONSENT JUDGMENT as to Gregory Alan Smith. Signed by Chief Judge S Maurice Hicks, Jr on 6/22/2020. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
Case No. 5:18-CV-00434
v.
KIRBYJON HINES CALDWELL and GREGORY
ALAN SMITH,
Defendant.
JUDGMENT AS TO DEFENDANT
GREGORY ALAN SMITH
The Securities and Exchange Commission having filed a Complaint and Defendant
Gregory Alan Smith (“Smith” or “Defendant”) 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 Judgment; waived findings of fact and conclusions of law; and waived any right to appeal
from this Judgment:
I.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is
permanently restrained and enjoined from violating Section 5 of the Securities Act of 1933
(“Securities Act”) [15 U.S.C. § 77e] by, directly or indirectly, in the absence of any applicable
exemption:
(a)
Unless a registration statement is in effect as to a security, making use of any means
or instruments of transportation or communication in interstate commerce or of the
mails to sell such security through the use or medium of any prospectus or
otherwise;
(b)
Unless a registration statement is in effect as to a security, carrying or causing to
be carried through the mails or in interstate commerce, by any means or instruments
of transportation, any such security for the purpose of sale or for delivery after sale;
or
(c)
Making use of any means or instruments of transportation or communication in
interstate commerce or of the mails to offer to sell or offer to buy through the use
or medium of any prospectus or otherwise any security, unless a registration
statement has been filed with the Commission as to such security, or while the
registration statement is the subject of a refusal order or stop order or (prior to the
effective date of the registration statement) any public proceeding or examination
under Section 8 of the Securities Act [15 U.S.C. § 77h].
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 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.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is
permanently restrained and enjoined from violating Section 17(a) of the Securities Act [15 U.S.C.
§ 77q(a)] in the offer or sale of any security by the use of any means or instruments of
transportation or communication in interstate commerce or by use of the mails, directly or
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indirectly:
(a)
to employ any device, scheme, or artifice to defraud;
(b)
to obtain money or property by means of any untrue statement of a material fact
or any omission of a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not misleading;
or
(c)
to engage in any transaction, practice, or course of business which operates or
would operate as a fraud or deceit upon the purchaser.
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 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).
III.
IT IS FURTHER 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 purchase or sale of any security:
(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
necessary in order to make the statements made, in the light of the circumstances
under which they were made, not misleading; or
(c)
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 Federal
Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive
actual notice of this 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).
IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is
permanently restrained and enjoined from violating, directly or indirectly, Sections 206(1) and
206(2), of the Investment Advisers Act of 1940 (“Advisers Act”) [15 U.S.C. §§80b-6(1), 80b-6(2)]
by use of the mails or any means or instrumentality of interstate commerce, directly or indirectly
to:
(a) employ any device, scheme, or artifice to defraud any client or prospective client; or
(b) engage in any transaction, practice, or course of business which operates as a fraud or
deceit upon any client or prospective client.
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 Judgment by personal service or otherwise: (a) Defendant’s officers, agents,
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servants, employees, and attorneys; and (b) other persons in active concert or participation with
Defendant or with anyone described in (a).
V.
IT IS FURTHER ORDERED AND ADJUDGED that Smith shall pay disgorgement of illgotten gains, prejudgment interest thereon, and a civil penalty 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)]. The Court shall determine the
amounts of the disgorgement and civil penalty upon motion of the Commission. Prejudgment
interest shall be calculated from January 1, 2013, based on the rate of interest used by the Internal
Revenue Service for the underpayment of federal income tax as set forth in 26 U.S.C. § 6621(a)(2).
In connection with the Commission’s motion for disgorgement and/or civil penalties, and at any
hearing held on such a motion: (a) Smith will be precluded from arguing that he did not violate the
federal securities laws as alleged in the Complaint; (b) Smith may not challenge the validity of the
Consent or this Judgment; (c) solely for the purposes of such motion, the allegations of the
Complaint shall be accepted as and deemed true by the Court; and (d) the Court may determine
the issues raised in the motion on the basis of affidavits, declarations, excerpts of sworn deposition
or investigative testimony, and documentary evidence, without regard to the standards for
summary judgment contained in Rule 56(c) of the Federal Rules of Civil Procedure. In connection
with the Commission’s motion for disgorgement and/or civil penalties, the parties may take
discovery, including discovery from appropriate non-parties.
VI.
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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is
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.
VII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for purposes of
exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 11 U.S.C. §523, the
allegations in the complaint are true and admitted by Defendant, and further, any debt for
disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under this
Judgment or any other judgment, order, consent order, decree or settlement agreement entered in
connection with this proceeding, is a debt for the violation by Defendant of the federal securities
laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19) of the
Bankruptcy Code, 11 U.S.C. §523(a)(19).
VIII.
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.
IX.
There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rues of Civil
Procedure, the Clerk is ordered to enter this Judgment forthwith and without further notice.
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THUS DONE AND SIGNED, in Shreveport, Louisiana, this 22nd day of June, 2020.
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