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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO.: Case No. 17-CV-20933-DPG SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v. JERRY MILLER,
Defendant,
/
FINAL JUDGMENT
THIS MATTER is before the Court on the Securities and Exchange Commission’s
Motion for Imposition of a Penny Stock Bar and Civil Penalties against Defendant Jerry Miller [ECF No. 33]. The Court has fully considered the motion, the record, and is fully advised in the premises. This Final Judgment incorporates the parties’ unopposed Judgment of Permanent Injunction. [ECF No. 30].
I. SECTION 10(b) AND RULE 10b-5 OF THE EXCHANGE ACT
IT IS ORDERED AND ADJUDGED that Miller is permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b) and 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 AND ADJUDGED that, as provided in Federal Rule of Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual notice of this Final Judgment by personal service or otherwise: (a) Miller’s officers, agents, servants, employees, and attorneys; and (b) other persons in active concert or participation with Miller or with anyone described in section (a) of this paragraph.
II. SECTION 20(b) OF THE EXCHANGE ACT
IT IS FURTHER ORDERED AND ADJUDGED that Miller is permanently restrained and enjoined from violating Section 20(b) of the Exchange Act, 15 U.S.C. § 78t(b), by, directly or indirectly, doing any act or thing which it would be unlawful for him to do under Sections 10(b)and Rule 10(b)-5, through or by means of any other person.
IT IS FURTHER ORDERED AND ADJUDGED 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) Miller’s officers, agents, servants, employees, and attorneys; and (b) other persons in active concert or participation with Miller or with anyone described in (a).
III. OFFICER AND DIRECTOR BAR
IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to Section 21(d)(2) of the Exchange Act, 15 U.S.C. § 78u(d)(2), and Section 20(e) of the Securities Act, 15 U.S.C.
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§ 77t(e), Miller will be permanently barred from acting as an officer or director of any issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act, 15 U.S.C. § 78l, or that is required to file reports pursuant to Section 15(d) of the Exchange Act, 15 U.S.C. § 78o(d).
IV. PENNY STOCK BAR
IT IS FURTHER ORDERED AND ADJUDGED that the Defendant Jerry Miller is barred for a period of five years 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. DISGORGEMENT, PRE-JUDGMENT INTEREST AND CIVIL PENALTY
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $ 28,341.00 representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $ 1,150.76 and a civil penalty in the amount of $ 50,000.00 pursuant to Section 21(d)(3) of the Exchange Act , 15 U.S.C. § 78u(d)(3). Defendant shall satisfy this obligation by paying $ 79,491.76 to the Securities and Exchange Commission within 14 days after entry of this Final Judgment.
Defendant may transmit payment electronically to the Commission, which will provide detailed ACH transfer/Fedwire instructions upon request. Payment may also be made directly from a bank account via Pay.gov through the SEC website at http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified check, bank
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cashier’s check, or United States postal money order payable to the Securities and Exchange Commission, which shall be delivered or mailed to
Enterprise Services Center Accounts Receivable Branch 6500 South MacArthur Boulevard Oklahoma City, OK 73169
and shall be accompanied by a letter identifying the case title, civil action number, and name of this Court; Jerry Miller as a defendant in this action; and specifying that payment is made pursuant to this Final Judgment.
Defendant shall simultaneously transmit photocopies of evidence of payment and case identifying information to the Commission’s counsel in this action. By making this payment, Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part of the funds shall be returned to Defendant. The Commission shall send the funds paid pursuant to this Final Judgment to the United States Treasury.
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 14 days following entry of this Final Judgment. Defendant shall pay post judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
VI. BANKRUPTCY NONDISCHARGEABILITY
IT IS FURTHER ORDERD AND ADJUDGED 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 Miller, and further, any debt for disgorgement, prejudgment interest, civil penalties or other amounts due by Miller 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 of Miller of the federal securities laws or any regulation
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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).
VII. RETENTION OF JURISDICTION
IT IS FURTHER ORDERED AND ADJUDGED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment Setting Civil Penalties and Other Relief and the Judgment of Permanent Injunction and Other Relief as to Defendant Jerry Miller.
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of March, 2019.
________________________________ DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
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