13 minute read
Smith, age 55, is a resident of Shreveport, Louisiana. Between December 1999
statements of material facts and omitted to state material facts necessary in order to make the
statements made, in the light of the circumstances under which they were made, not misleading.
and Rule 10b-5(b), 17 C.F.R. § 240.10b-5(b)].
COUNT VII
Violations of Section lO(b) of the Exchange Act and Exchange Act Rule 10b-5(c) (As to Caldwell and Smith)
41. From April 2013 through August 2014, Caldwell and Smith, directly and
indirectly, by use of any means or instrumentality of interstate commerce, and of the mails in
connection with the purchase or sale of the securities, knowingly or recklessly engaged in acts,
practices and courses of business which operated as a fraud upon the purchasers of such
securities and will operate as a fraud upon the purchasers of such securities.
and Rule 1 0b-5(c), 17 C.F.R. § 240.1 0b-5(c)].
COUNT VIII
Violations of Section 206(1) Advisers Act (As to Smith)
44. At all relevant times, Smith, for compensation, engaged in the business of
advising others as to the value of securities or as to the advisability of investing in, purchasing,
or selling securities and was therefore an "investment adviser" within the meaning of Section
202(a)(l l) of the Advisers Act [15 U.S.C. § 80b-2(a)(l l )].
45. Smith, by the use of means and instruments of transportation and communication
in interstate commerce and by use of the mails, directly and indirectly, knowingly or recklessly
employed devices, schemes and artifices to defraud one or more clients or prospective clients.
46. By engaging in this conduct, Smith, directly and iµdirectly, violated, and unless
COUNTIX
4 7.
Violations of Section 206(2) of the Advisers Act (As to Smith)
Complaint.
48. Smith, by the use of the mails or any means or instrumentality of interstate
commerce, directly and indirectly, negligently engaged in transactions, practices, or courses of
business which operated as a fraud or deceit upon one or more clients or prospective clients.
49. By reason of the foregoing, Smith violated and, unless enjoined, is reasonably
RELIEF REQUESTED
WHEREFORE,
Defendants committed the violations alleged and:
I.
Permanent Injunctive Relief
Issue permanent injunctions restraining and enjoining Caldwell and Smith, and their
officers, agents, servants, employees, attorneys, representatives, and all persons in active concert
or participation with them, and each of them, from violating Sections 5(a), 5(c), and 17(a) of the
Securities Act [15 U.S.C. §§ 77e(a), 77e(c), and 77q(a)] and Section l0(b) and Rule l0b-5 of the
Exchange Act [15 U.S.C. § 78j(b) and 17 C.F.R. § 240.I0b-5], and also, with respect to Smith,
from violating Sections 206(1)-(2) of the Advisers Act [15 U.S.C. § 80b-6(1) and 80b-6(2)].
II.
Civil Penalties
Issue an Order directing Caldwell and Smith to pay civil money penalties pursuant to
Section 20(d) of the Securities Act[l5 U.S.C. § 77t(d)], and Section 2l(d)(3) of the Exchange
Act[l5 U.S.C. § 78u(d)(3)], and also, with respect to Smith, pursuant to Section 209(e) of the
Advisers Act [15 U.S.C. § 80b-9(e)].
III.
Disgorgement
Issue an Order directing Caldwell and Smith to disgorge all ill-gotten gains, including
prejudgment interest, resulting from the acts or courses of conduct alleged in this Complaint.
IV.
Officer and Director Bar
Issue an Order, pursuant to Section 2l(d)(2) of the Exchange Act [15 U.S.C. §78u(d)(2)]
barring Defendant Caldwell from serving 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. § 781], or that is
required to file reports pursuant to Section 15(d) of the Exchange Act [15 U.S.C. §78o(d)].
V.
Further Relief
Grant such other further relief as may be necessary and appropriate.
VI.
Retention of Jurisdiction
Further, the Commission respectfully requests that the Court retain jurisdiction over this
action in order to implement and carry out the terms of all orders and decrees that may be
entered, or to entertain any suitable application or motion by the Commission for additional
relief within the jurisdiction of this Cou11.
DEMAND FOR JURY TRIAL
The Commission hereby demands trial by jury.
Respectfully submwu;u1o itted, WILFREDO FERNANDEZ, FL {JAR # 142859 TRIAL ATTORNEY ANDRE ZAMORANO, FL BAR #967361 JACQUELINE M. O' REILLY, FL BAR #29326
SECURITIES AND EXCHANGE COMMISSION
801 Brickell Avenue, Suite 1800 Miami, Florida 33131 Telephone: (305) 982-6300 Facsimile (305) 536-4154 fernandezw@sec.gov zamoranoa@sec.gov oreillyj@sec.gov
ALEXANDER C. VAN HOOK UNITED STATES ATTORNEY WESTERN DISTRICT OF LOUISIANA
Isl Katherine W Vincent KATHERINEW. VINCENT#18717 Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, Louisiana 70501-6832 Telephone: (33 7) 262-6618 Facsimile: (337) 262-6693 Katherine. Vincent@usdoj.gov
I.(a) PLAINTIFFS DEFENDANTS
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
1 U.S. Government Plaintiff 3 Federal Question (U.S. Government Not a Party) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant)
PTF DEF PTF DEF
Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4 of Business In This State
2 U.S. Government Defendant 4 Diversity Citizen of Another State (Indicate Citizenship of Parties in Item III) 2 2 Incorporated and Principal Place of Business In Another State 5
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ Foreign Country IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a)) 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust & Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and (Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts ’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters Medical Malpractice Leave Act ’ 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes Employment Other: ’ 462 Naturalization Application ’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration Other ’ 550 Civil Rights Actions ’ 448 Education ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement
V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4Reinstated or ’ 5 Transferred from ’ 6 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation (specify) Transfer Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): ’ 8 Multidistrict Litigation - Direct File
VI. CAUSE OF ACTION
Brief description of cause:
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
IF ANY (See instructions): JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
