SEC v. KRIS A. SWAFFER, No. 1:22-cv-1554, Northern District of Ohio (Sept. 23, 2024) — Judgment
raw: FINAL JUDGMENT AS TO DEFENDANT KRIS A. SW AFFER
FINAL JUDGMENT AS TO DEFENDANT KRIS A. SW AFFER, No. 1:22-cv-1554 (Sept. 23, 2024)
Kris A. Swaffer entered a final judgment with the SEC, consenting to permanent injunctions and an officer-and-director bar for violations of the Securities Act and Exchange Act.
The SEC obtained a final judgment against Kris A. Swaffer for fraudulent schemes involving untrue statements and the unregistered sale of securities. Swaffer is ordered to pay a total of $5,082,963, which includes a $2,250,000 civil penalty, $2,318,981 in disgorgement, and $513,982 in prejudgment interest. The court also imposed a permanent injunction against future securities law violations and a bar from serving as an officer or director of any reporting issuer.
The Securities and Exchange Commission obtained a final judgment against Kris A. Swaffer for violating Sections 10(b) and 17(a) of the Exchange Act and Section 5 of the Securities Act. Swaffer engaged in fraudulent schemes involving material omissions and the unregistered sale of securities. As part of the settlement, Swaffer consented to a permanent injunction against future violations of the Securities Act and Exchange Act. He is also prohibited from serving as an officer or director of any issuer that is required to file reports with the SEC. The financial terms of the judgment require Swaffer to pay a total of $5,082,963, consisting of a $2,250,000 civil penalty, $2,318,981 in disgorgement, and $513,982 in prejudgment interest. Swaffer entered this judgment without admitting or denying the allegations, though he waived his right to appeal.
Extracted insights
- $5.08M $5,082,963 $1M–$10M
- $2.32M $2,318,981 $1M–$10M
- $2.25M $2,250,000 $1M–$10M
- $676K $676,362 $100K–$1M
- $514K $513,982 $100K–$1M
- $150K $149,910 $100K–$1M
- person Kris a. Swaffer
- agency Securities and Exchange Commission
- Securities And Exchange Commission filed a Complaint Kris a. Swaffer
- Kris a. Swaffer consented to the Court's jurisdiction over Defendant and the subject matter of this action
- Kris a. Swaffer waived findings of fact and conclusions of law any right to appeal from this Final Judgment
- Court restrained and enjoined Kris a. Swaffer from violating Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5
- Court restrained and enjoined Kris a. Swaffer from violating Section 17(a) of the Securities Act of 1933
- Court restrained and enjoined Kris a. Swaffer from violating Section 5 of the Securities Act
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
V.
KRIS A. SWAFFER, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
_________________ )
Case No. 1:22-cv-1554
Hon. Bridget Meehan Brem1an
FINAL JUDGMENT AS TO DEFENDANT KRIS A. SW AFFER
The Securities and Exchange Commission having filed a Complaint and Defendant Kris
A. Swaffer ("Defendant"
)
having entered a general appearance; consented to the Court's
jurisdiction over Defendant and the subject matter of this action; consented to ently of this Final
Judgment without admitting or denying the allegations of the Complaint (except as to
jurisdiction and except as otherwise provided herein in paragraph VII
)
; 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, Section 1 0(b
)
of the
Securities Exchange Act of 1934 (the "Exchange Act"
)
[15 U.S.C. § 78j(b
)
] and Rule l0b-5
promulgated thereunder [17 C.F.R. § 240.l0b-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;
Case: 1:22-cv-01554-BMB Doc #: 49 Filed: 09/05/24 1 of 7. PageID #: 359
(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, 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 HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is
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 transpo1iation or communication in interstate commerce or by use of the
mails, directly or indirectly:
(a)
to employ any device, scheme, or miifice 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.
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2
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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).
III.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is permanently restrained and enjoined from violating Section 5 of the Securities Act [15 U.S.C.
§ 77 e] by, directly or indirectly, in the absence of any applicable exemption:
(a
)
Unless a registration statement is in effect as to a security, making use of any means
or instruments of transportation or communication in interstate commerce or of the
mails to sell such security tlu·ough the use or medium of any prospectus or otherwise;
(b) Unless a registration statement is in effect as to a security, carrying or causing to be
carried through the mails or in interstate commerce, by any means or instruments of
transportation, any such security for the purpose of sale or for delivery after sale; or
( c) Making use of any means or instruments of transportation or communication in
interstate conunerce or of the mails to offer to sell or offer to buy tlu·ough the use or
medium of any prospectus or otherwise any security, unless a registration statement
has been filed with the Commission as to such security, or while the registration
statement is the subject of a refusal order or stop order or (prior to the effective date
of the registration statement) any public proceeding or examination under Section 8
of the Securities Act [15 U.S.C. § 77h].
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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).
IV.
IT IS FURTHER
ORDERED,
ADJUDGED,
AND DECREED
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.
§ 77t( e)], Defendant
is prohibited
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.
§ 781]
or that is required
to file reports
pursuant
to Section
15( d) of the Exchange
Act [15 U .S.C. §
78o(d)].
V.
IT IS HEREBY
FURTHER
ORDERED,
ADJUDGED,
AND DECREED
that Defendant
is liable for disgorgement
of $2,318,981
( of which
Defendant
is liable for $676,362,
on a joint
and several
basis, with Relief Defendant
Rosalyn
K. Swaffer),
representing
net profits
gained
as
a result of the conduct
alleged
in the Complaint,
together
with prejudgment
interest
thereon
in
the amount
of$513,982
(of which
Defendant
is liable for $149,910,
on ajoint
and several
basis,
with Relief
Defendant
Rosalyn
K. Swaffer),
and a civil penalty
in the amount
of $2,250,000
pursuant
to Section
20(d) of the Securities
Act [15 U.S.C.
§ 77t(d)]
and Section
2l(d)(3)
of the
Exchange
Act [15 U.S.C.
§ 78u(d)(3)].
Defendant
shall satisfy
this obligation
by paying
$5,082,963
to the Securities
and Exchange
Commission
within
30 days after entry of this Final
Judgment.
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Defendant
may transmit
payment
electronically
to the Commission,
which
will provide
detailed
ACH transfer/Fed
wire 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
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;
Kris A. Swaffer
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 Conunission
may enforce
the Court's
judgment
for disgorgement
and prejudgment
interest
by using all collection
procedures
authorized
by law, including,
but not limited
to,
moving
for civil contempt
at any time after 30 days following
entry of this Final Judgment.
The Commission
may enforce
the Court's
judgment
for penalties
by the use of all
collection
procedures
authorized
by law, including
the Federal
Debt Collection
Procedures
Act,
28 U.S.C.
§ 3001
et seq.,
and moving
for civil contempt
for the violation
of any Court orders
issued
in this action.
Defendant
shall pay post judgment
interest
on any amounts
due after 30
days of the entry of this Final Judgment
pursuant
to 28 U.S.C.
§ 1961. The Commission
shall
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hold the funds,
together
with any interest
and income
earned
thereon
(
collectively,
the "Fund"),
pending
further
order of the Court.
The Commission
may propose
a plan to distribute
the Fund subject
to the Court's
approval.
Such a plan may provide
that the Fund shall be distributed
pursuant
to the Fair Fund
provisions
of Section
308(a)
of the Sarbanes-Oxley
Act of 2002. The Court shall retain
jurisdiction
over the administration
of any distribution
of the Fund and the Fund may only be
disbursed
pursuant
to an Order of the Court.
Regardless
of whether
any such Fair Fund distribution
is made,
amounts
ordered
to be
paid as civil penalties
pursuant
to this Judgment
shall be treated
as penalties
paid to the
government
for all purposes,
including
all tax purposes.
To preserve
the deterrent
effect of the
civil penalty,
Defendant
shall not, after offset or reduction
of any award
of compensatory
damages
in any Related
Investor
Action
based on Defendant's
payment
of disgorgement
in this
action,
argue that he is entitled
to, nor shall he fu1ther
benefit
by, offset or reduction
of such
compensato1y
damages
award by the amount
of any part of Defendant's
payment
of a civil
penalty
in this action
("Penalty
Offset").
If the court in any Related
Investor
Action
grants
such a
Penalty
Offset,
Defendant
shall, within
30 days after entry of a final order granting
the Penalty
Offset,
notify the Conunission's
counsel
in this action and pay the amount
of the Penalty
Offset
to the United
States Treasury
or to a Fair Fund, as the Conunission
directs.
Such a payment
shall
not be deemed
an additional
civil penalty
and shall not be deemed
to change
the amount
of the
civil penalty
imposed
in this Judgment.
For purposes
of this paragraph,
a "Related
Investor
Action"
means
a private
damages
action
brought
against
Defendant
by or on behalf
of one or
more investors
based on substantially
the same facts as alleged
in the Complaint
in this action.
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VI.
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.
VII.
IT IS FURTHER
ORDERED,
ADJUDGED,
AND DECREED
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 Defendant,
and fmther,
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
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)(l
9) of the Bankruptcy
Code, 11 U.S.C.
§523(a)(l
9).
VIII.
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.
IX.
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.
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7 -
Case: 1:22-cv-01554-BMB Doc #: 49 Filed: 09/05/24 7 of 7. PageID #: 365UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
V.
KRIS A. SWAFFER, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
_________________ )
Case No. 1:22-cv-1554
Hon. Bridget Meehan Brem1an
FINAL JUDGMENT AS TO DEFENDANT KRIS A. SW AFFER
The Securities and Exchange Commission having filed a Complaint and Defendant Kris
A. Swaffer ("Defendant") having entered a general appearance; consented to the Court's
jurisdiction over Defendant and the subject matter of this action; consented to ently of this Final
Judgment without admitting or denying the allegations of the Complaint (except as to
jurisdiction and except as otherwise provided herein in paragraph VII); 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, Section 1 0(b) of the
Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. § 78j(b)] and Rule l0b-5
promulgated thereunder [17 C.F.R. § 240.l0b-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;
Case: 1:22-cv-01554-BMB Doc #: 49 Filed: 09/05/24 1 of 7. PageID #: 359
(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, 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 HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is 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 transpo1iation or communication in interstate commerce or by use of the
mails, directly or indirectly:
(a) to employ any device, scheme, or miifice 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.
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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).
III.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is permanently restrained and enjoined from violating Section 5 of the Securities Act [15 U.S.C.
§ 77 e] by, directly or indirectly, in the absence of any applicable exemption:
(a) Unless a registration statement is in effect as to a security, making use of any means
or instruments of transportation or communication in interstate commerce or of the
mails to sell such security tlu·ough the use or medium of any prospectus or otherwise;
(b) Unless a registration statement is in effect as to a security, carrying or causing to be
carried through the mails or in interstate commerce, by any means or instruments of
transportation, any such security for the purpose of sale or for delivery after sale; or
( c) Making use of any means or instruments of transportation or communication in
interstate conunerce or of the mails to offer to sell or offer to buy tlu·ough the use or
medium of any prospectus or otherwise any security, unless a registration statement
has been filed with the Commission as to such security, or while the registration
statement is the subject of a refusal order or stop order or (prior to the effective date
of the registration statement) any public proceeding or examination under Section 8
of the Securities Act [15 U.S.C. § 77h].
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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).
IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED 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. § 77t( e)], Defendant is prohibited 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. § 781]
or that is required to file reports pursuant to Section 15( d) of the Exchange Act [15 U .S.C. §
78o(d)].
V.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is liable for disgorgement of $2,318,981 ( of which Defendant is liable for $676,362, on a joint
and several basis, with Relief Defendant Rosalyn K. Swaffer), representing net profits gained as
a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in
the amount of$513,982 (of which Defendant is liable for $149,910, on ajoint and several basis,
with Relief Defendant Rosalyn K. Swaffer), and a civil penalty in the amount of $2,250,000
pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and Section 2l(d)(3) of the
Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall satisfy this obligation by paying
$5,082,963 to the Securities and Exchange Commission within 30 days after entry of this Final
Judgment.
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Defendant may transmit payment electronically to the Commission, which will provide
detailed ACH transfer/Fed wire 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 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; Kris A. Swaffer 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 Conunission may enforce the Court's judgment for disgorgement and prejudgment
interest by using all collection procedures authorized by law, including, but not limited to,
moving for civil contempt at any time after 30 days following entry of this Final Judgment.
The Commission may enforce the Court's judgment for penalties by the use of all
collection procedures authorized by law, including the Federal Debt Collection Procedures Act,
28 U.S.C. § 3001 et seq., and moving for civil contempt for the violation of any Court orders
issued in this action. Defendant shall pay post judgment interest on any amounts due after 30
days of the entry of this Final Judgment pursuant to 28 U.S.C. § 1961. The Commission shall
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hold the funds, together with any interest and income earned thereon (collectively, the "Fund"),
pending further order of the Court.
The Commission may propose a plan to distribute the Fund subject to the Court's
approval. Such a plan may provide that the Fund shall be distributed pursuant to the Fair Fund
provisions of Section 308(a) of the Sarbanes-Oxley Act of 2002. The Court shall retain
jurisdiction over the administration of any distribution of the Fund and the Fund may only be
disbursed pursuant to an Order of the Court.
Regardless of whether any such Fair Fund distribution is made, amounts ordered to be
paid as civil penalties pursuant to this Judgment shall be treated as penalties paid to the
government for all purposes, including all tax purposes. To preserve the deterrent effect of the
civil penalty, Defendant shall not, after offset or reduction of any award of compensatory
damages in any Related Investor Action based on Defendant's payment of disgorgement in this
action, argue that he is entitled to, nor shall he fu1ther benefit by, offset or reduction of such
compensato1y damages award by the amount of any part of Defendant's payment of a civil
penalty in this action ("Penalty Offset"). If the court in any Related Investor Action grants such a
Penalty Offset, Defendant shall, within 30 days after entry of a final order granting the Penalty
Offset, notify the Conunission's counsel in this action and pay the amount of the Penalty Offset
to the United States Treasury or to a Fair Fund, as the Conunission directs. Such a payment shall
not be deemed an additional civil penalty and shall not be deemed to change the amount of the
civil penalty imposed in this Judgment. For purposes of this paragraph, a "Related Investor
Action" means a private damages action brought against Defendant by or on behalf of one or
more investors based on substantially the same facts as alleged in the Complaint in this action.
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VI.
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.
VII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED 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 Defendant, and fmther, 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
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)(l 9) of the Bankruptcy Code, 11 U.S.C. §523(a)(l 9).
VIII.
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.
IX.
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.
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