Opinion
Civil Action No. 1:00CV00742.
April 19, 2005
FINAL JUDGMENT AS TO P. THOMAS MANN
Plaintiff U.S. Securities and Exchange Commission (the "Commission"), having filed its Second Amended Complaint in this matter, and defendant P. Thomas Mann ("Defendant") having entered a general appearance; consented to the jurisdiction of this Court over Defendant and over the subject matter of this action; withdrawn his answer; consented to the entry of this Final Judgment without admitting or denying any of the allegations of the Second Amended Complaint (except as to jurisdiction); waived the entry of findings of fact and conclusions of law pursuant to Fed.R.Civ.P. Rule 52; and waived any right to appeal from this Final Judgment:
I.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant's agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this Final Judgment, by personal service or otherwise, and each of them, is permanently restrained and enjoined from violating Section 17(a) [ 15 U.S.C. § 77q(a)] of the Securities Act of 1933 ("Securities Act"), by directly or indirectly, using any means or instrumentality of interstate commerce, or of the mails to:
(1) employ any device, scheme, or artifice to defraud;
(2) obtain money or property by means of any untrue statement of a material fact or any omission 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
(3) engage in any transaction, practice, or course of business, which operates or would operate as a fraud or deceit upon the purchaser, in the offer or sale of any securities.
II.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant's agents, servants, employees, attorneys, and those 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) [ 15 U.S.C. § 78j(b)] of the Exchange Act of 1934 and Rule 10b-5 [17 C.F.R. § 240. 10b-5] promulgated thereunder, 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.
III.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant is jointly and severally liable with defendants RDC Funding Corp., RDC Development Company and PTM Investment Corp. for disgorgement of $501,094.86, representing profits gained as a result of the conduct alleged in the Second Amended complaint, together with prejudgment interest thereon in the amount of $148,936.37, for a total of $650,031.23. Based on Defendant's sworn representations in his Statement of Financial Condition dated May 6, 2004, and other documents and information submitted to the Commission, however, the Court is not ordering Defendant to pay a civil penalty and payment of all but $144,000 of the disgorgement and pre-judgment interest thereon is waived. Defendant shall satisfy this obligation by paying $144,000 within ten (10) days after the entry of this judgment to Christine L. Myatt, Esq. (the "Receiver"). Defendant agrees to send the check, together with a cover letter identifying P. Thomas Mann as a defendant in this action; setting forth the title and the civil action number of this action and the name of this Court, and specifying that this payment is made pursuant to this final Judgment, to Christine Myatt, Esq., with the law office offices of Nexsen Pruet Adams Kleemeier, PLLC, at the following address: 701 Green Valley Road, Suite 100, Greensboro, NC 27408 Defendant also agrees to send a photocopy of the check within five business days of its due date to Cheryl J. Scarboro, Esq., Assistant Director, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, DC 20549-0706.By making this payment, Defendant relinquishes all legal and equitable right, title, and interest in the payment and no part of the funds shall be returned to the defendant. The Commission may propose a plan to distribute the funds subject to the Court's approval. Defendant shall also pay post-judgment on any delinquent amounts pursuant to 28 USC § 1961.
The determination not to impose a civil penalty and to waive payment of all but $144,000 of the disgorgement and prejudgment is contingent upon the accuracy and completeness of Defendant's Statement of Financial Condition dated May 6, 2004 and other documents and information submitted to the Commission. If at any time following the entry of this Final Judgment the Commission obtains information indicating that the Defendant's representations to the Commission concerning his assets, income, liabilities or net worth were fraudulent, misleading, inaccurate or incomplete in any material respect as of the time such representations were made, the Commission may at its sole discretion and without prior notice to the Defendant, petition the Court for an order requiring Defendant to pay the unpaid portion of disgorgement, prejudgment and post-judgment interest thereon, and the maximum civil penalty allowable under law. In connection with any such petition, the only issue shall be whether the financial information provided by Defendant was fraudulent, misleading, inaccurate or incomplete in any material respect as of the time such representations were made. In its petition, the Commission may move this Court to consider all available remedies including, but not limited to, ordering Defendant to may funds or assets, directing the forfeiture of any assets, or sanctions for contempt of this Final Judgment. The Commission may also request additional discovery. Defendant may not, by way of defense to such petition: (1) challenge the validity of the Consent or this Final Judgment; (2) contest the allegations in the complaint filed by the Commission; (3) assert that payment of the disgorgement, prejudgment and post-judgment interest or a civil penalty should not be ordered; (4) contest the amount of disgorgement, and prejudgment and post-judgment; (5) contest the imposition of the maximum civil penalty allowable under the law; or (6) assert any defense to liability or remedy including, but not limited, any statute of limitations defense.
IV.
In connection with RDC Funding Corp. v. Wachovia Bank, NA, Civil Action No. 3:03-cv-01360-JBA (D. Conn. 2003) ("Wachovia Bank") and any related judicial or administrative proceeding, Defendant agrees to cooperate fully and as necessary, including but not limited to the following: (i) Defendant agrees to appear and be interviewed by RDC Funding Corporation's Counsel at such times and places as counsel requests upon reasonable notice; (ii) Defendant will accept service by mail or facsimile transmission of notices or subpoenas issued by RDC Funding Corporation's Counsel for documents or testimony at depositions, hearings, or trials, or in connection with any related proceeding (iii) Defendant appoints Defendant's undersigned attorney as agent to receive service of such notices and subpoenas; (iv) with respect to such notices and subpoenas, Defendant waives the territorial limits on service contained in Rule 45 of the Federal Rules of Civil Procedure and any applicable local rules, provided that the party requesting the testimony reimburses Defendant's travel, lodging, and subsistence expenses at a reasonable rate; and (v) Defendant consents to personal jurisdiction over Defendant in any United States District Court for purposes of enforcing any such subpoena.
V.
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 the undertakings and agreements set forth therein.
VI.
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.
VII.
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.