SEC v. WAYNE H. MCLEAN; and JOAN E. POWELL, No. 2:23-cv-02333, Southern District of New York (Aug. 21, 2024) — Judgment

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

SECURITIES AND EXCHANGE
COMMISSION,

Plaintiff,
                                                                                                23-cv-2333                                                                                                (MKB)
v.

WAYNE H. MCLEAN, ET AL.,

Defendants.

FINAL JUDGMENT AS TO DEFENDANT JOAN E. POWELL

The Securities and Exchange Commission having filed a Complaint and Defendant Joan
E. Powell (“Powell” or “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 without admitting or denying the allegations of the Complaint (except as to
jurisdiction and except as otherwise provided herein in paragraph VI); 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 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:

2

(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.
 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 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

3

  would operate as a fraud or deceit upon the purchaser.
 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 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. § 78l]
or that is required to file reports pursuant to Section 15(d) of the Exchange Act [15 U.S.C.
§ 78o(d)].
IV.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is liable for disgorgement of $39,815, representing net profits gained as a result of the conduct
alleged in the Complaint, together with prejudgment interest thereon in the amount of $6,284.02,
and a civil penalty in the amount of $25,000 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
shall satisfy this obligation by paying $71,099.02 to the Securities and Exchange Commission
within 30 days after entry of this Final Judgment.  The amounts due by the Defendant under this
Final Judgment are not discharged in the Chapter 13 bankruptcy case of Joan E. Powell and Carl
A. Powell, filed on February 14, 2021, Chapter 13 case no. 21-22093 (CGM) (Bankr. S.D.N.Y.)

4

(“Bankruptcy Case”), pursuant to Sections 523(a)(3)(B), and 1328(a)(2).  11 U.S.C. §§
523(a)(3)(B), 1328(a)(2).
Defendant’s obligation to pay disgorgement, prejudgment interest and civil penalty shall
be due within 30 days from entry of this Final Judgment.  The Securities and Exchange
Commission will not enforce payment of the amounts due by the Defendant for disgorgement,
prejudgment interest and civil penalty until the earlier of (i) an order lifting the automatic stay in
the Bankruptcy Case, or (ii) termination of the automatic stay pursuant to Section 362(c)(2) of
the Bankruptcy Code, 11 U.S.C. 362(c)(2), whichever is earlier.
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 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; Joan E. Powell 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.

5

The Commission 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
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 she is entitled to, nor shall she further benefit by, offset or reduction of such
compensatory 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

6

a Penalty Offset, Defendant shall, within 30 days after entry of a final order granting the Penalty
Offset, notify the Commission’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 Commission 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.
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 of the undertakings and agreements set forth therein.
VI.

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 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
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), and as provided above, is further
excepted from discharge in the Bankruptcy Case pursuant to Sections 523(a)(3)(B) and
1328(a)(2) of the Bankruptcy Code.

7

VII.
 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.
VIII.

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.

SO ORDERED:
s/ MKB 8/21/2024
______________________
MARGO K. BRODIE
United States District Judge

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 

 
 
  
SECURITIES AND EXCHANGE 
COMMISSION, 

 

  
Plaintiff,  

 23-cv-2333 (MKB) 
v.  

  
WAYNE H. MCLEAN, ET AL.,  
  

Defendants.  
  

 
 

FINAL JUDGMENT AS TO DEFENDANT JOAN E. POWELL 

 
The Securities and Exchange Commission having filed a Complaint and Defendant Joan 

E. Powell (“Powell” or “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 without admitting or denying the allegations of the Complaint (except as to 

jurisdiction and except as otherwise provided herein in paragraph VI); 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 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: 

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 1 of 7 PageID #: 121



2 
 

(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. 

 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 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  

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 2 of 7 PageID #: 122



3 
 

  would operate as a fraud or deceit upon the purchaser. 

 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 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. § 78l] 

or that is required to file reports pursuant to Section 15(d) of the Exchange Act [15 U.S.C. 

§ 78o(d)]. 

IV. 

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant 

is liable for disgorgement of $39,815, representing net profits gained as a result of the conduct 

alleged in the Complaint, together with prejudgment interest thereon in the amount of $6,284.02, 

and a civil penalty in the amount of $25,000 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 

shall satisfy this obligation by paying $71,099.02 to the Securities and Exchange Commission 

within 30 days after entry of this Final Judgment.  The amounts due by the Defendant under this 

Final Judgment are not discharged in the Chapter 13 bankruptcy case of Joan E. Powell and Carl 

A. Powell, filed on February 14, 2021, Chapter 13 case no. 21-22093 (CGM) (Bankr. S.D.N.Y.) 

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 3 of 7 PageID #: 123



4 
 

(“Bankruptcy Case”), pursuant to Sections 523(a)(3)(B), and 1328(a)(2).  11 U.S.C. §§ 

523(a)(3)(B), 1328(a)(2).   

Defendant’s obligation to pay disgorgement, prejudgment interest and civil penalty shall 

be due within 30 days from entry of this Final Judgment.  The Securities and Exchange 

Commission will not enforce payment of the amounts due by the Defendant for disgorgement, 

prejudgment interest and civil penalty until the earlier of (i) an order lifting the automatic stay in 

the Bankruptcy Case, or (ii) termination of the automatic stay pursuant to Section 362(c)(2) of 

the Bankruptcy Code, 11 U.S.C. 362(c)(2), whichever is earlier.     

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 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; Joan E. Powell 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.   

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 4 of 7 PageID #: 124



5 
 

The Commission 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 

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 she is entitled to, nor shall she further benefit by, offset or reduction of such 

compensatory 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 

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 5 of 7 PageID #: 125



6 
 

a Penalty Offset, Defendant shall, within 30 days after entry of a final order granting the Penalty 

Offset, notify the Commission’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 Commission 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. 

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 of the undertakings and agreements set forth therein.  

VI. 
 

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 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 

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), and as provided above, is further 

excepted from discharge in the Bankruptcy Case pursuant to Sections 523(a)(3)(B) and 

1328(a)(2) of the Bankruptcy Code. 

  

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 6 of 7 PageID #: 126



7 
 

VII. 

 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. 

VIII. 
 

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. 

 
 

SO ORDERED: 
s/ MKB 8/21/2024 
______________________ 
MARGO K. BRODIE 
United States District Judge 

Case 2:23-cv-02333-MKB-ST   Document 14   Filed 08/21/24   Page 7 of 7 PageID #: 127