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Securities and Exchange Commission v. Malom Group AG

United States District Court, D. Nevada

September 29, 2017

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
MALOM GROUP AG, MARTIN U.SCHLÄPFER, HANS-JÜRG LIPS, JAMES C. WARRAS, JOSEPH N. MICELLI, M.Y. CONSULTANTS, INC., ANTHONY B. BRANDEL, M. DWYER, LLC, AND SEAN P. FINN, Defendants.

          Kenneth Guido, Timothy N. England, U.S. Securities and Exchange Commission, Attorneys for the Plaintiff

          FINAL JUDGMENT AS TO JAMES C. WARRAS AND ANTHONY B. BRANDEL

          Gloria M. Navarro, Chief Judge United States District Court.

         The Plaintiff, Securities and Exchange Commission (“SEC” or “the Commission”), filed a motion for summary judgment as to James C. Warras (“Warras”) and Anthony B. Brandel (“Brandel”) pursuant to Federal Rule of Civil Procedure 56(a).

         The Court has reviewed Plaintiff Securities and Exchange Commission's (“Commission”) Motion For Summary Judgment as to Warras and Brandel, all supporting documents, and all opposition thereto (see ECF Nos. 82-86, 93).

         Based on the evidence and authorities presented in support of the motion, the Court hereby FINDS as follows:

         On December 16, 2013, the SEC filed the Complaint in this action against Warras and Brandel, among others, alleging that Defendants violated Section 10(b) of the Securities and Exchange Act of 1934 (“Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5], Sections 5(a) and (c) of the Securities Act of 1933 (“Securities Act”) [15 U.S.C. §§ 77e(a) and (c)], and Securities Act Section 17(a) [15 U.S.C. § 77q(a)]. The SEC also alleged that Brandel acted as an unregistered broker in violation of Section 15(a) of the Exchange Act [15 U.S.C. § 78o(a)]

         On December 11, 2013, the United States indicted Defendants for, inter alia, their violations of Section 10(b) of the Exchange Act, Rule 10b-5 enacted thereunder, and Section 17(a) of the Securities Act.

         On December 7, 2015, the jury in U.S. v. Brandel, 2:13 cr 439 (D. Nevada), unanimously decided, inter alia, that Defendants Warras and Brandel (collectively Defendants”) violated the Section 10(b) of the Exchange Act, Rule 10b-5, and Section 17(a) of the Securities Act.

         The undisputed evidence is that Warras and Brandel solicited investors to purchase the securities that were not registered with the SEC and that the funds for the investments were transmitted via wire transfers in interstate commerce in violation of Sections 5(a) and (c) of the Securities Act 15 U.S.C. §§ 77e(a) and (c).

         V.

         The undisputed evidence is that Brandel not only solicited investors to purchase the unregistered securities, but negotiated the terms of those agreements, instructed the investors where to deposit their investments and how the investors' funds should be distributed, and earned transactions based income on the transactions, acting as an unregistered broker in violation of Section 15(a) [15 U.S.C. § 78o(a)].

         The Court finds that there are no genuine issues of material fact and that the SEC is entitled to judgment as a matter of law.

         THEREFORE,

         I.

         IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the SEC's motion ...


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