Opinion
Case No.: 4:11-CV-2945
09-16-2015
SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. EVOLUTION CAPITAL ADVISORS, LLC, EVOLUTION INVESTMENT GROUP I, LLC, and DAMIAN OMAR VALDEZ, Defendants.
FINAL JUDGMENT AS TO DEFENDANTS EVOLUTION CAPITAL ADVISORS , LLC, EVOLUTION INVESTMENT GROUP I, LLC, and DAM IAN OMAR VALDEZ
Plaintiff Securities and Exchange Commission ("SEC" or "Commission"), having filed its Motion for Disgorgement, Prejudgment Interest, and Third-Tier Civil Penalty [Dkt. 70] against Defendants Evolution Capital Advisors, LLC, Evolution Investment Group I, LLC and Damian Omar Valdez ("Defendants"), and the Receiver, having filed his Corrected Notice of Final Distribution to Investors [Dkt. 101] and distributed all available assets of the Receivership, the Court hereby enters Final Judgment as follows:
I.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendants Evolution Capital Advisors, LLC, Evolution Investment Group I, LLC and Damian Omar Valdez and their agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Judgment by personal service or 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.
II.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants Evolution Capital Advisors, LLC, Evolution Investment Group I, LLC and Damian Omar Valdez and their agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this 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 use or employ any manipulative or deceptive device or contrivance;
(b) to employ any device, scheme, or artifice to defraud;
(c) 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
(d) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
III.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants Damian Valdez, Evolution Capital Advisors, LLC, and Evolution Investment Group I, LLC, are jointly and severally liable for disgorgement of $3,803,341.31, representing profits gained as a result of the conduct alleged in the Complaint, but that Defendants are entitled to a credit of the total distributions to investors made by the Receiver. The Court finds that the Receiver distributed a total of $4,630,031.57 to investors. Thus, Defendants' disgorgement obligation has been satisfied by those distributions.
IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Damian Valdez shall pay a civil penalty in the amount of $3,803,341.31 to the Securities and Exchange Commission pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant Valdez shall satisfy this obligation by paying $ 3,803,341.31 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 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 Centerand shall be accompanied by a letter identifying the case title, civil action number, and name of this Court; the name of Damian Valdez, as a defendant in this action; and specifying that payment is made pursuant to this Final Judgment.
Accounts Receivable Branch
6500 South MacArthur Boulevard
Oklahoma City, OK 73169
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 relinquish 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 Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
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. The orders contained in the "Agreed Orders Freezing Assets and Granting Other Equitable Relief," dated August 26, 2011 [Docket No. 12], and the orders contained in the "Order Granting Motion for Preliminary Injunction and Permanent Injunction, Asset Freeze and Appointment of a Receiver," dated December 22, 2011 [Docket No. 42], are hereby terminated and shall have no further force and effect.
All relief not expressly granted herein is hereby denied.
SO ORDERED this 16th day of September, 2015.
/s/_________
GRAY H. MILLER
UNITED STATES DISTRICT JUDGE