Securities and Exchange Commission v. Inteligentry, LTD et al

Filing 290

ORDER APPOINTING RECEIVER. Ms. Sally McMinimee, Esq. is appointed to serve without bond as receiver for the estates of the Receivership Defendants. The Court takes exclusive jurisdiction and possession of the assets of the following Defendants : Inteligentry, Ltd.; PlasmERG, Inc.; and PTP Licensing, Ltd. The Receivership Defendants and all persons receiving notice of this Order are restrained and enjoined from directly or indirectly taking any action or causing any action to be taken without the express written agreement of the Receiver. Signed by Judge Richard F. Boulware, II on 5/18/2015. (Copies have been distributed pursuant to the NEF - SLD)

Kenneth J. Guido
Hemma B. Ramrattan
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
[phone]
[phone]
[e-mail]
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
________________________________________________
:
SECURITIES AND EXCHANGE COMMISSION,
:
:
Plaintiff,
:
:
v.
: Civil No. 2:13-cv.00344
:
RFB-NJK
INTELIGENTRY, LTD., PLASMERG, INC.,
:
PTP LICENSING, LTD., and JOHN P. ROHNER,
:
:
Defendants.
:
_______________________________________________ :
ORDER APPOINTING RECEIVER
WHEREAS the Court finds that, based on the record in these proceedings, the
appointment of a receiver in this action is necessary and appropriate for the purposes of
marshaling and preserving all assets of the Defendants; and,
WHEREAS this Court has subject matter jurisdiction over this action and personal
jurisdiction over the Defendants, and venue properly lies in this district.
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED
THAT:
1.

This Court hereby takes exclusive jurisdiction and possession of the assets, of

whatever kind and wherever situated, of the following Defendants: Inteligentry, Ltd.;
PlasmERG, Inc.; and PTP Licensing, Ltd. (collectively, the “Entity Receivership Defendants”),
and John P. Rohner (“Individual Receivership Defendant”).
2.

Until further Order of this Court, Ms. Sally McMinimee, Esq., Prince, Yeates &

Geldzahler, 15 West South Temple, Suite 1700, Salt Lake City, Utah 84101, is hereby appointed
to serve without bond as receiver (the “Receiver”) for the estates of the Receivership Defendants.
I. General Powers and Duties of Receiver
3.

Subject to the specific provisions of Sections II through XIV below, the Receiver

shall have all powers, authorities, rights and privileges heretofore possessed by the officers,
directors, managers and general and limited partners of the entity Receivership Defendants under
applicable state and federal law, by the governing charters, by-laws, articles and/or agreements in
addition to all powers and authority of a receiver at equity, and all powers conferred upon a
receiver by the provisions of 28 U.S.C. §§ 754, 959 and 1692, and Fed. R. Civ. P. 66.
4.

The trustees, directors, officers, managers, employees, investment advisors,

accountants, and other agents of the entity Receivership Defendants are hereby dismissed and the
powers of any general partners, directors and/or managers are hereby suspended. Such persons
and entities shall have no authority with respect to the entity Receivership Defendants’
operations or assets, except to the extent as may hereafter be expressly granted by the Receiver.
The Receiver shall assume and control the operation of the Receivership Defendants and shall
pursue and preserve all of their claims.
5.

No person holding or claiming any position of any sort with any of the

Receivership Defendants shall possess any authority to act by or on behalf of any of the
Receivership Defendants.
II. Access to Information
6.

The Receivership Defendants and the past and/or present officers, directors,

agents, managers, general and limited partners, trustees, attorneys, accountants, and employees
of the entity Receivership Defendants, as well as those acting in their place, are ordered to assist
the Receiver in fulfilling her duties and obligations. As such, they must respond promptly and
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truthfully to all requests for information and documents from the Receiver and are ordered and
directed to preserve and turn over to the Receiver all paper and electronic information of, and/or
relating to, the Receivership Defendants and or all Receivership Property.
7.

The Receiver is authorized to take possession of all books and records and all

electronic records from the persons described in Paragraph 6 above. All the persons and entities
described in Paragraph 6 above having control, custody or possession of such documents are
ordered to turn such documents over to the Receiver.
8.

The Receiver is authorized, when authorized by the Court, to issue subpoenas to

compel testimony of persons or production of records, consistent with the Federal Rules of Civil
Procedure and applicable Local Rules, except for the provisions of Fed. R. Civ. P. 26(d)(1),
concerning any subject matter within the powers and duties granted by this Order.
III. Bank and Brokerage Accounts
9.

The Receiver is authorized to take immediate possession, custody and control of

all funds in bank, brokerage firm, financial institution accounts held by, in the name of, or for the
benefit of, directly or indirectly, and of the Entity Receivership Defendants and Individual
Receiver Defendant.
10.

All banks, brokerage firms, financial institutions, and other persons or entities

which have possession, custody or control of any accounts held by, in the name of, or for the
benefit of, directly or indirectly, and of the Entity Receivership Defendants and Individual
Receivership that receive actual notice of this Order by personal service, facsimile transmission
or otherwise shall:
A.

Not liquidate, transfer, sell, convey or otherwise transfer any assets,
securities, funds, or accounts in the name of or for the benefit of the
Receivership Defendants except upon instructions from the Receiver;

B.

Not exercise any form of set-off, alleged set-off, lien, or any form of selfhelp whatsoever, or refuse to transfer any funds or assets to the Receiver’s
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control without the permission of this Court; and
C.

Cooperate expeditiously in providing information and transferring funds,
assets and accounts to the Receiver or at the direction of the Receiver.
IV. Real Property and Automobiles

11.

The Receiver is authorized to take immediate possession, custody and control of

all real property and automobiles of the Individual Receivership Defendant, wherever located,
including but not limited to all ownership and leasehold interests and fixtures.
12.

All persons other than law enforcement officials acting within the course and

scope of their official duties, are (without the express written permission of the Receiver) that
receive actual notice of this Order by personal service, facsimile transmission or otherwise are
prohibited from: (a) entering such premises; (b) removing anything from such premises; or, (c)
destroying, concealing or erasing anything on such premises.
13.

In order to execute the express and implied terms of this Order, the Receiver is

authorized to change door locks to the premises described above. The Receiver shall have
exclusive control of the keys. The Individual Receivership Defendant, or any other person acting
or purporting to act on his behalf, are ordered not to change the locks in any manner, nor to have
duplicate keys made, nor shall they have keys in their possession during the term of the
receivership.
14.

Subject to payment for services provided, any entity furnishing water, electric,

telephone, sewage, garbage or trash removal services to the Individual Receivership Defendant
shall maintain such service and transfer any such accounts to the Receiver unless instructed to
the contrary by the Receiver.
V. All Other Property
15.

The Receiver is authorized to take immediate possession, custody and control of

all other property of the Entity Receivership Defendants and Individual Receivership Defendant
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(excluding materials obtained by the Commission in the course of the investigation and
discovery in this litigation), wherever located, including but not limited to all physical, electronic
and intellectual property of the Entity Receivership Defendants and Individual Receiver
Defendant.
16.

The Entity Receivership Defendants and the past and/or present officers,

directors, agents, managers, general and limited partners, trustees, attorneys, accountants, and
employees of the Entity Receivership Defendants, as well as those acting in their place, that
receive actual notice of this Order by personal service, facsimile transmission or otherwise are
ordered to deliver the personal property, including all software, hardware, computer programs
and Intellectual Property, to which the Receivership Defendants have a legal or beneficial
interest to the Receiver.
VI. Assistance to Receiver
17.

Upon the request of the Receiver, the United States Marshal Service, in any

judicial district, is hereby ordered to assist the Receiver in carrying out her duties to take
possession, custody and control of, or identify the location of, any real property assets, records or
other materials belonging to the Receivership Estate.
VII. Notice to Third Parties
18.

In furtherance of her responsibilities in this matter, the Receiver is authorized to

communicate with, and/or serve this Order upon, any person, entity or government office that
she deems appropriate to inform them of the status of this matter and/or the financial condition of
the Receivership Estates. All government offices which maintain public files of security
interests in real and personal property shall, consistent with such office’s applicable procedures,
record this Order upon the request of the Receiver or the SEC.

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VIII. Injunction Against Interference with Receiver
19.

The Receivership Defendants and all persons receiving notice of this Order by

personal service, facsimile or otherwise, are hereby restrained and enjoined from directly or
indirectly taking any action or causing any action to be taken, without the express written
agreement of the Receiver, which would:
A.

B.

Hinder, obstruct or otherwise interfere with the Receiver in the
performance of her duties; such prohibited actions include but are not
limited to, concealing, destroying or altering records or information;

C.

Dissipate or otherwise diminish the value of any Receivership Property;
such prohibited actions include but are not limited to, releasing claims or
disposing, transferring, exchanging, assigning or in any way conveying
any Receivership Property, enforcing judgments, assessments or claims
against any Receivership Property or any Receivership Defendant,
attempting to modify, cancel, terminate, call, extinguish, revoke or
accelerate (the due date), of any lease, loan, mortgage, indebtedness,
security agreement or other agreement executed by any Receivership
Defendant or which otherwise affects any Receivership Property; or,

D.

20.

Interfere with the Receiver’s efforts to take control, possession, or
management of any Receivership Property; such prohibited actions
include but are not limited to, using self-help or executing or issuing or
causing the execution or issuance of any court attachment, subpoena,
replevin, execution, or other process for the purpose of impounding or
taking possession of or interfering with or creating or enforcing a lien
upon any Receivership Property;

Interfere with or harass the Receiver, or interfere in any manner with the
exclusive jurisdiction of this Court over the Receivership Estates.

The Receivership Defendants shall cooperate with and assist the Receiver in the

performance of her duties.
21.

The Receiver shall promptly notify the Court and SEC counsel of any failure or

apparent failure of any person or entity to comply in any way with the terms of this Order.
IX. Stay of Litigation
22.

As set forth in detail below, the following proceedings, excluding the instant

proceeding and all police or regulatory actions and actions of the Commission related to the
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above-captioned enforcement action, are stayed until further Order of this Court:
All civil legal proceedings of any nature, including, but not limited to, bankruptcy
proceedings, arbitration proceedings, foreclosure actions, default proceedings, or other
actions of any nature involving: (a) the Receiver, in her capacity as Receiver; (b) any
Receivership Property, wherever located; (c) any of the Receivership Defendants,
including subsidiaries and partnerships; or, (d) any of the Receivership Defendants’ past
or present officers, directors, managers, agents, or general or limited partners sued for, or
in connection with, any action taken by them while acting in such capacity of any nature,
whether as plaintiff, defendant, third-party plaintiff, third-party defendant, or otherwise
(such proceedings are hereinafter referred to as “Ancillary Proceedings”).
23.

The parties to any and all Ancillary Proceedings are enjoined from commencing

or continuing any such legal proceeding, or from taking any action, in connection with any such
proceeding, including, but not limited to, the issuance or employment of process.
24.

All Ancillary Proceedings are stayed in their entirety, and all Courts having any

jurisdiction thereof are enjoined from taking or permitting any action until further Order of this
Court. Further, as to a cause of action accrued or accruing in favor of one or more of the
Receivership Defendants against a third person or party, any applicable statute of limitation is
tolled during the period in which this injunction against commencement of legal proceedings is
in effect as to that cause of action.
X. Managing Assets
25.

The Receiver shall take control of the brokerage and bank accounts frozen by this

Court’s orders and hold the funds for the benefit of the Receivership Estate.
26.

The Receiver shall take control of all real property and automobiles of the

Individual Receivership Defendant frozen by this Court’s orders and hold and manage them for
the benefit of the Receivership Estate.
27.

Subject to Paragraph 28 immediately below, the Receiver is authorized to locate,

list for sale or lease, engage a broker for sale or lease, cause the sale or lease, and take all
necessary and reasonable actions to cause the sale or lease of all real property and automobiles in
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the Receivership Estates, either at public or private sale, on terms and in the manner the Receiver
deems most beneficial to the Receivership Estate, and with due regard to the realization of the
true and proper value of such real property and automobiles.
28.

Upon further Order of this Court, pursuant to such procedures as may be required

by this Court and additional authority such as 28 U.S.C. §§ 2001 and 2004, the Receiver will be
authorized to sell, and transfer clear title to, all real property and automobiles in the Receivership
Estate.
XI. Investigate and Prosecute Claims
29.

Subject to the requirement that leave of this Court is required to resume or

commence certain litigation, the Receiver is authorized, empowered and directed to investigate,
prosecute, defend, intervene in or otherwise participate in, compromise, and/or adjust actions in
any state, federal or foreign court or proceeding of any kind as may in her discretion be advisable
or proper to recover and/or conserve Receivership Property.
30.

The Receiver hereby holds, and is therefore empowered to waive, all privileges,

including the attorney-client privilege, held by all entity Receivership Defendants.
31.

The Receiver has a continuing duty to ensure that there are no conflicts of interest

between the Receiver, her Retained Personnel (as that term is defined below), and the
Receivership Estate.
XII. Liability of Receiver
32.

Until further Order of this Court, the Receiver shall not be required to post bond

or give an undertaking of any type in connection with her fiduciary obligations in this matter.
33.

The Receiver and her agents, acting within scope of such agency (“Retained

Personnel”) are entitled to rely on all outstanding rules of law and Orders of this Court and shall
not be liable to anyone for their own good faith compliance with any order, rule, law, judgment,
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or decree. In no event shall the Receiver or Retained Personnel be liable to anyone for their
good faith compliance with their duties and responsibilities as Receiver or Retained Personnel.
34.

This Court shall retain jurisdiction over any action filed against the Receiver or

Retained Personnel based upon acts or omissions committed in their representative capacities.
35.

In the event the Receiver decides to resign, the Receiver shall file a written notice

with the Court of her intent to resign, and the resignation shall not be effective until the Court
appoints a successor. The Receiver shall then follow such instructions as the Court may provide.
XIII. Reports to Court and Commission
36.

On the request of the Court and/or Commission, the Receiver shall provide the

Court and/or Commission with any report or documentation that the Court and/or Commission
request. However, the Receiver shall not provide to the Commission any material or
documentation that she believes would not be in the best interest of the Receivership Estate to
provide. The Commission may seek an order from the Court for the release of such information.
XIV. Fees, Expenses and Accountings
37.

Subject to Paragraphs 39 – 45 immediately below, the Receiver need not obtain

Court approval prior to the disbursement of Receivership Funds for expenses in the ordinary
course of the administration and operation of the receivership. Further, prior Court approval is
not required for payments of applicable federal, state or local taxes.
38.

Subject to Paragraph 40 immediately below, the Receiver is authorized to solicit

persons and entities (“Retained Personnel”) to assist him in carrying out the duties and
responsibilities described in this Order. The Receiver shall not engage any Retained Personnel
without first obtaining an Order of the Court authorizing such engagement; provided, however,
Mark S. Dzarnoski, Esq. of the law firm Gordon Silver shall continue serving as litigation
counsel for the Receivership Entities to advise the Receiver on potential settlement in this matter
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without further Order from this Court to serve until and unless the Receiver seeks permission
from the Court to replace him in that capacity.
39.

The Receiver and Retained Personnel are entitled to reasonable compensation and

expense reimbursement from the Receivership Estates. Such compensation shall require the
prior approval of the Court.
40.

Within thirty (30) days after the end of each calendar quarter, the Receiver and

Retained Personnel shall apply to the Court for compensation and expense reimbursement from
the Receivership Estates (the “Quarterly Fee Applications”). This application shall be filed by
the Receiver.
41.

Each Quarterly Fee Application shall contain representations that: (i) the fees and

expenses included therein were incurred in the best interests of the Receivership Estate; and, (ii)
the Receiver has not entered into any agreement, written or oral, express or implied, with any
person or entity concerning the amount of compensation paid or to be paid from the Receivership
Estate, or any sharing thereof.
IT IS SO ORDERED.
DATED this 18th day of May, 2015, at Las Vegas, Nevada.

___________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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