Opinion
18-cv-09477 (LGS)
03-31-2022
SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. ALEXANDER C. BURNS and ANDREW B. SCHERR, Defendants.
FINAL JUDGMENT AS TO DEFENDANT ANDREW B. SCHERR
LORNA G. SCHOFIELD UNITED STATES DISTRICT JUDGE
The Securities and Exchange Commission having filed a Complaint and Defendant Andrew B. Scherr (“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 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 is permanently restrained and enjoined from violating, directly or indirectly, Sections 206(1) and (2) of the Investment Advisers Act of 1940 (“Advisers Act”) [15 U.S.C. §§ 80b-6(1) and (2)] by, while acting as an investment adviser, using the mails or any means or instrumentality of interstate commerce:
(a) to employ any device, scheme, or artifice to defraud any client or prospective client; or
(b) to engage in any transaction, practice, or course of business which operates as a fraud1
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 Final 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 liable for disgorgement of $1, 400, 000.00 representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $491, 718.85 for a total of $1, 891, 718.85. Defendant's $1, 891, 718.85 payment obligation shall be deemed satisfied by the restitution ordered in the Judgment in a Criminal Case entered against Defendant in United States v. Andrew B. Scherr, Crim. No. 3:19-cr-00225-S(01) (N. D. Tex.), DE 94.
III.
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.
IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, 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 Final Judgment or any other judgment, order, consent order, decree or settlement agreement 2 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).
V. 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.
VI. 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. 3
MATTER OMITTED