United States Securities and Exchange Commission v. Ruettiger et al

Filing 99

FINAL JUDGMENT in favor of United States Securities and Exchange Commission against Chad P. Smanjak. Defendant is liable for disgorgement of $2,010,286, representing profits gained as a result of the conduct alleged in the Complaint, together w ith prejudgment interest thereon in the amount of $454,963, for a total of $2,465,249. This liability is deemed satisfied by Defendant's executed consent to forfeiture, dated March 29, 2013. Signed by Judge Jennifer A. Dorsey on 11/23/15. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 1 of 6

Paul W. Kisslinger
Kyle M. DeYoung
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
100 F Street, N.E.
Washington, D.C. 20549-5977
[phone] (tel) (Kisslinger)
[phone] (fax) (Kisslinger)
[e-mail]
Daniel G. Bogden
UNITED STATES ATTORNEY
DISTRICT OF NEVADA
Blaine T. Welsh
Assistant United States Attorney
Nevada Bar No. 4790
333 Las Vegas Boulevard South, Suite 5000
Las Vegas, Nevada 89101
Phone: [phone]
Facsimile: [phone]
[e-mail]
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
DANIEL E. RUETTIGER,
ROCCO BRANDONISIO,
STEPHEN DECESARE,
PAWEL P. DYNKOWSKI,
KEVIN S. KAPLAN,
GREGG R. MULHOLLAND,
MEHMET MUSTAFOGLU,
JOSEPH A. PADILLA,
ANGELO R. PANETTA,
KEVIN J. QUINN,
ANDREA M. RITCHIE,
CHAD P. SMANJAK, and
GARY J. YOCOM,

JAD-VCF
Case No. 2:11-cv-02011-GMN-VCF

FINAL JUDGMENT AS TO
DEFENDANT CHAD P. SMANJAK

Defendants.
The Securities and Exchange Commission having filed a Complaint and Defendant Chad

Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 2 of 6

P. Smanjak 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;
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 and
Defendant’s agents, servants, employees, attorneys, and all persons in active concert or
participation with them who receive actual notice of this Final Judgment by personal service or
otherwise are 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;

(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.
II.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or
participation with them who receive actual notice of this Final Judgment by personal service or
2

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otherwise are permanently restrained and enjoined from violating Section 17(a) of the Securities
Act of 1933 (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 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.
III.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or
participation with them who receive actual notice of this Final Judgment by personal service or
otherwise are permanently restrained and enjoined from violating Section 5 of the 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
3

Case 2:11-cv-02011-JAD-VCF Document 47-2 Filed 08/18/14 Page 4 of 6

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].
IV.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is permanently barred from participating in an offering of penny stock, including engaging in
activities with a broker, dealer, or issuer for purposes of issuing, trading, or inducing or
attempting to induce the purchase or sale of any penny stock. A penny stock is any equity
security that has a price of less than five dollars, except as provided in Rule 3a51-1 under the
Exchange Act [17 C.F.R. 240.3a51-1].
V.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is liable for disgorgement of $2,010,286, representing profits gained as a result of the conduct
alleged in the Complaint, together with prejudgment interest thereon in the amount of $454,963,
for a total of $2,465,249. This liability is deemed satisfied by Defendant’s executed consent to
forfeiture, dated March 29, 2013, in U.S. v. $13,711.26 Seized From Account # 5010-0113-1794,
et al., Civil Action No. 12-cv-03113-MSK-BNB (D. Colo.).
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VI.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that based on
Defendant’s cooperation in a Commission investigation and related enforcement action, the
Court is not ordering Defendant to pay a civil penalty. If at any time following the entry of the
Final Judgment the Commission obtains information indicating that Defendant knowingly
provided materially false or misleading information or materials to the Commission or in a
related proceeding, the Commission may, at its sole discretion and without prior notice to the
Defendant, petition the Court for an order requiring Defendant to pay a civil penalty. In
connection with any such petition and at any hearing held on such a motion: (a) Defendant will
be precluded from arguing that he did not violate the federal securities laws as alleged in the
Complaint; (b) Defendant may not challenge the validity of the Judgment, this Consent, or any
related Undertakings; (c) the allegations of the Complaint, solely for the purposes of such
motion, 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. Under these
circumstances, the parties may take discovery, including discovery from appropriate non-parties.
VII.
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.
VIII.
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.
11/23/15

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Jennifer Dorsey
er
United States District Judge