UNITED STATES DISTRICT COURT
SECURITIES AND EXCHANGE
DANIEL D. DYER and
Case No.COMPLAINT FOR VIOLATIONS
OF THE FEDERAL SECURITIES LAWS
Plaintiff Securities and Exchange Commission ("Commission") alleges as follows:
1. This Court has jurisdiction over this action pursuant to Sections 20(b), 20(d)(1) and 22(a) of the Securities Act of 1933 ("Securities Act"), 15 U.S.C. §§ 77t(b), 77t(d)(1) & 77v(a), Sections 20(d)(1), 21(d)(3)(A), 21(e) and 27 of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §§ 78(u)(d)(1), 78u(d)(3)(A), 78u(e) & 78aa, and Sections 209(e)(1) and 214 of the Investment Advisers Act of 1940 ("Advisers Act"). Defendants have, directly orindirectly, made use of the means or instrumentalities of interstate commerce, of the mails, or of the facilities of a national securities exchange in connection with the transactions, acts, practices and courses of business alleged in this Complaint.
2. Venue is proper in this district pursuant to Section 22(a) of the Securities Act, 15 U.S.C. § 77v(a), Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and Section 214 of the Advisers Act, 15 U.S.C. § 80b-14, because certain of the transactions, acts, practices and courses of conduct constituting violations of the federal securities laws occurred within this district.
3. This action involves an investor fraud perpetrated by Daniel D. Dyer ("Dyer") and his wholly-owned company, Oxbow Capital Partners, LLC ("Oxbow Partners") through their relationship with a Portland-based investment adviser, Capital Consultants, LLC ("CCL"). In September 2000, the Commission sued CCL and requested that the Court place it in receivership.
4. CCL invested large portions of its investment adviser client funds in loans to third parties. In December 1998, one such third-party stopped making payments on a $160 million loan (the "Wilshire loan"). CCL engaged in a massive Ponzi-like scheme to conceal the failed Wilshire loan from CCL's clients. One part of CCL's Ponzi-like scheme involved defendants Dyer and Oxbow Partners. Knowing that CCL was concealing the failed Wilshire loan from its clients, Dyer and Oxbow Partners began making payments on the loan by conducting fraudulent securities offerings of their own.
5. In January 1999, Dyer and Oxbow Partners raised approximately $4.6 million from approximately 132 investors by selling securities in Oxbow Capital 1999 Fund I, LLC ("Oxbow Fund I"). Defendants told investors that their funds would be used to make equity and debt investments as determined by Oxbow Partners. Defendants failed to disclose to investors that Oxbow Fund I's firstinvestment would be to make payments to CCL on the Wilshire loan. The defendants, however, failed to raise enough capital from their Oxbow Fund I securities offering to make the required monthly payments on the Wilshire loan.
6. To continue the scheme and keep the Wilshire loan failure concealed from its clients, CCL funneled new client funds through a third-party borrower (the "Third-Party Borrower"), who used those funds to purchase two-thirds of the Wilshire loan. From July 1999 to August 2000, Dyer and Oxbow Partners continued to make payments on one-third of the Wilshire loan by creating an investment fund whose sole investor was the Third-Party Borrower. At that point, the Ponzi-like scheme formed a complete circle: unbeknownst to CCL clients, CCL transferred client money to the Third-Party Borrower, who transferred the money into Dyer and Oxbow Partners' new fund, who then made payments on the Wilshire loan to CCL, who returned the money to CCL's clients as purported "interest payments" on the failed Wilshire loan. Dyer and Oxbow Fund knew that CCL misrepresented to its clients the defendants' financial capacity and payments on the Wilshire loan.
7. During the Ponzi-like scheme with the Third-Party Borrower, Dyer and Oxbow Partners conducted another fraudulent securities offering to assist in making payments on the Wilshire loan and for other improper purposes undisclosed to investors. From August 1999 to November 2000, the defendants conducted an unregistered offering of securities in Washington Motorcycle Partners, LLC ("Washington Partners") and raised over $4 million from approximately 204 investors through general solicitations.
8. The defendants, by engaging in the conduct alleged in this Complaint, violated the antifraud provisions of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a), Sections 206(1) and 206(2) of the Advisers Act, 15 U.S.C. §§ 80b-6(1) & 80b-6(2), and Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule10b-5 thereunder, 17 C.F.R. § 240.10b-5. The defendants also aided and abetted CCL's violations of the antifraud provisions of Sections 206(1) and 206(2) of the Advisers Act. Finally, defendants violated the securities registration provisions of Sections 5(a) and 5(c) of the Securities Act, 15 U.S.C. §§ 77e(a) & 77e(c).
9. Daniel D. Dyer, age 49, is a resident of University Place, Washington. He controlled, and is the 100% owner of, Oxbow Capital Partners, LLC.
10. Oxbow Capital Partners, LLC, is a Washington limited liability company with offices in Tacoma, Washington. It was the promoter and managing member of Oxbow Fund I, Oxbow Capital Fund B, LLC, and Washington Partners.
11. Capital Consultants, LLC ("CCL") was a registered investment adviser located in Portland, Oregon until August 2001, when the Commission revoked its registration. On September 21, 2000, the Commission sued CCL alleging violations of the antifraud provisions of the Securities Act, Exchange Act, and Advisers Act, and the Honorable Garr King of the United States District Court for the District of Oregon preliminarily enjoined CCL from violating the antifraud provisions of the federal securities laws and placed it under a permanent receivership. On April 30, 2001, Judge King permanently enjoined CCL from future violations of the antifraud provisions.
12. Jeffrey L. Grayson ("Grayson"), age 60, is a resident of Portland, Oregon. Grayson was CCL's founder, principal owner, chairman of the board and chief executive officer. Judge King preliminarily and permanently enjoined Grayson from violating the antifraud provisions of the federal securities laws on September 21, 2000 and April 30, 2001, respectively.
13. Wilshire Financial Services Group, Inc. ("Wilshire Financial") is apublic company incorporated in Delaware with principal offices in Beaverton, Oregon. Between 1994 and October 1998, a subsidiary of Wilshire Financial borrowed a total of approximately $160 million from CCL.
14. Sterling Capital, LLC ("Sterling") is a New Jersey limited liability company formed by Dyer in November 1998. Dyer controlled Sterling. Sterling agreed to purchase the Wilshire loan from CCL in December 1998.
15. Oxbow Capital 1999 Fund I, LLC, is a New Jersey limited liability company formed by Oxbow Partners in January 1999. From April through October 1999, Oxbow Fund I conducted a $25 million securities offering and raised $4.6 million from approximately 132 investors. Oxbow Partners promoted and managed the Oxbow Fund I offering.
16. Oxbow Capital 1999 Fund B, LLC ("Oxbow Fund B") was formed by Oxbow Partners in July 1999. From July 1999 through August 2000, Oxbow Fund B conducted a $25 million securities offering and raised at least $9.5 million from two investors who also received loans from CCL. Oxbow Fund B transferred $7.8 million to Oxbow Partners or Oxbow Fund I, which then used $6 million to pay Sterling's portion of the Wilshire loan.
17. Washington Motorcycle Partners, LLC ("Washington Partners") is a Washington limited liability company formed by Dyer in September 1999. From August 1999 to November 2000, Washington Partners raised over $4 million from approximately 204 investors.
CCL, Its Note Program, And The Wilshire Loan
18. As of May 31, 2000, CCL had approximately 340 clients, primarily union pension funds and individuals, and managed approximately $1 billion of client assets, of which $319 million was invested in a Cash Collateralized NoteProgram (the "Note Program"). In its Note Program, CCL invested client funds in participation interests in loans made by CCL. CCL's advisory clients derived profits on their investment in the Note Program from the interest that the borrower paid on the loan. CCL received from its clients a 3% annual fee of the stated value of client funds in the Note Program.
19. Between 1994 and October 16, 1998, CCL used client funds to lend a subsidiary of Wilshire Financial a total of $160 million. Wilshire Financial was current on the loan payments through November 1998, when it announced that it was having financial problems, that it had reached an agreement in principle to restructure its debts (including the loan from CCL), and that the restructuring could entail bankruptcy. Due to Wilshire Financial's financial problems, CCL made the December 1998 and January 1999 interest payments on the Wilshire loan (approximately $1.53 million per month) out of the loan's reserve account, which interest payments CCL passed on to its clients who had invested in the loan.
20. As a result of Wilshire Financial's financial problems, in a November 1998 agreement and January 1999 amended agreement, CCL restructured the Wilshire loan by releasing its claim for repayment of the $160 million Wilshire loan in exchange for 100% of the non-voting shares of a Wilshire Financial subsidiary. Under the agreements, CCL could convert its shares into 49.99% of the voting shares of the Wilshire Financial subsidiary or after two years into Wilshire Financial common stock. In December 1998, Grayson had valued the Wilshire loan's conversion rights at 8% to 9% of Wilshire Financial, which had a total market capitalization of $600 million prior to 1998. In March 1999, Wilshire Financial filed its plan of reorganization under Chapter 11 of the United States Bankruptcy Code. The plan valued the $160 million Wilshire loan at only $6.45 million on a liquidation basis.
21. With Wilshire Financial in bankruptcy and unable to make paymentson its $160 million loan from CCL, Grayson devised a scheme to repay investors in the failed Wilshire loan by using capital fraudulently raised by Dyer and by issuing new loans of CCL investor funds to the Third-Party Borrower.
Dyer's Relationship With CCL, Formation Of
Oxbow Partners, And Acquisition Of CJM Planning
22. Dyer first met Grayson in 1988 when Dyer attempted to purchase a building from CCL clients. After 1988, Dyer kept in touch with Grayson sporadically to maintain their business relationship. From 1996 to 1998, Dyer negotiated with Grayson about acquiring CCL and conducted due diligence on CCL. As a result, Dyer knew that CCL was a registered investment adviser that managed funds for clients. Dyer broke off negotiations with Grayson in March 1998.
23. In June 1998, Dyer formed Oxbow Partners to be an investment banking firm. In July 1998, Dyer, through Oxbow Partners, purchased CJM Planning to raise capital for Oxbow Partners' investment banking business. At the time, CJM Planning was a registered broker-dealer that primarily sold mutual funds. To finance the purchase, Oxbow Partners borrowed $10 million from CCL, which loan Dyer personally guaranteed.
24. In mid-November 1998, Grayson invited Dyer to a meeting in Portland to attend a business presentation on Wilshire Financial. After the presentation, Grayson told Dyer that CCL had lent money to Wilshire Financial, that Wilshire Financial was suffering cash flow problems, and that Wilshire Financial might not be able to repay the loan if it filed bankruptcy. Grayson also told Dyer that Wilshire Financial was once a strong company and that its current problems presented a business opportunity. Furthermore, Grayson presented aplan in which Dyer could acquire the Wilshire loan by creating a "bankruptcy-remote" entity and using funds raised by CJM Planning. Dyer immediately began forming Sterling for the potential acquisition of the Wilshire loan. Dyer controlled Sterling although he named as its officers several nominees.
25. On December 18, 1998, CCL, "on behalf of its clients," and Dyer, through Sterling, entered into an agreement to sell the Wilshire loan to Sterling. In the agreement, Sterling agreed to purchase the Wilshire loan by paying CCL the full $160 million principal balance owing and all accrued interest. Sterling agreed to pay CCL no less than $2.5 million monthly beginning on January 25, 1999 and continuing until January 25, 2004, when the full balance and accrued interest would be due and payable.
26. Beginning at least by the time Dyer signed the agreement, he frequently discussed with Grayson that Sterling had no funds, or intention, to pay under the agreement until Oxbow Partners' first fund, Oxbow Fund I, began raising money, that Oxbow Fund I had not been approved for sale, and that he was uncertain when Oxbow Fund I would be approved. Accordingly, the agreement provided that, for the first three months, Sterling could pay no less than the greater of $1.555 million per month or "amounts available," and that, if Sterling failed to pay, the "agreement would be automatically terminated without further liability to Sterling."
27. On or about March 31, 1999, Sterling and CCL entered into a new loan purchase agreement, which was substantially similar to the prior agreement, except that Sterling agreed to begin monthly payments on March 25, 1999 instead of January 25, 1999, and to make a $3.11 million initial deposit to CCL on or before March 31, 1999. Dyer, however, knew that Sterling did not have the financial ability to, and did not, pay CCL any of the $5.61 million owed during March 1999 ($2.5 million monthly payment + $3.11 million initial deposit). Because of Sterling's financial situation, Grayson told Dyer that CCL made the monthly interest payments on the Wilshire loan from December 1998 through March 1999 using funds in the Wilshire loan's cash collateral account. Over that period it became increasing clear, contrary to Grayson's representations to CCL clients, that Dyer and Sterling would not be able to purchase the Wilshire loan or make payments on that loan.
Sterling's Inability To Make Payments
And Dyer's Sale Of Two-Thirds Of The Wilshire Loan
28. By the end of April 1999, Oxbow Fund I had raised enough from investors to pay CCL a total of only $1.5 million on Sterling's behalf. It became apparent that Sterling would not be able to make its payments on the Wilshire loan. In late May 1999, Dyer told Grayson that Sterling could not raise sufficient funds to make the payments on the Wilshire loan and that he wished to terminate the loan purchase agreement. Through his discussions with Grayson, Dyer knew that CCL needed $1.5 million a month from the Wilshire loan to pay monthly returns to its clients and that CCL would lose its clients if it could not get repayment on the Wilshire loan to pay its clients.
29. Rather than terminate the loan purchase agreement, Grayson proposed to Dyer that Sterling could reduce its monthly payments by selling a portion of the Wilshire loan to an entity controlled by Timothy B. Gamwell, a pre-existing CCL borrower (Gamwell and the entities under his control are referred to collectively herein as the "Third-Party Borrower"). Dyer believed that Sterling could make $500,000 in monthly payments and agreed to Grayson's proposal to sell two-thirds of the Wilshire loan to the Third-Party Borrower.
30. On May 25, 1999, CCL and Sterling amended their loan purchase agreement. Under the amendment, Sterling's date for making an initial deposit was postponed from March 31, 1999 to January 1, 2004, and its monthly paymentwas reduced from $2.5 million principal and interest payments to $1.533 million interest-only payments. CCL also waived its right under the loan purchase agreement to receive $2.5 million in payments due on March 25, 1999 and April 25, 1999. These amendments further called into question Sterling's ability to perform its obligations on the Wilshire loan, contrary to Grayson's representations to CCL clients. In June 1999, Sterling agreed to sell up to $108 million of the Wilshire loan to the Third-Party Borrower.
Dyer's Use Of Collateral From The Third-Party Borrower's Loans
For Sterling's Portion Of The Wilshire Loan Payments
31. In early July 1999, Dyer told Grayson that Sterling could not make its $500,000 payment on the Wilshire loan. Grayson and Dyer therefore arranged a scheme in which Sterling could get money from CCL's loan to the Third-Party Borrower to make Sterling's payments on the Wilshire loan.
32. Dyer and Grayson's scheme involved reserve accounts set up for the Third-Party Borrower as additional security for CCL clients who had invested in the Third-Party Borrower's loans. Specifically, the Third-Party Borrower's loans provided that 15% of each advance would be held in a reserve account as security for repayment of the loans and that the reserve account would be invested in United States Treasury securities or money market investments. Reserve accounts were held for the benefit of the borrower but controlled by CCL. Dyer and Grayson schemed to have these reserve funds directed to Dyer. Dyer therefore established an entity that could receive the reserve funds. Specifically, Dyer started Oxbow Fund B as a $25 million private placement offering promoted and sold by Oxbow Partners. Oxbow Fund B's offering documents stated that it would use the offering proceeds to make equity and debt investments as determined by Oxbow Partners. Then, in letter agreements dated July 28 and December 31, 1999, CCL agreed that the Third-Party Borrower could invest the funds in itsreserve account in "mutual funds or other pooled investments."
33. The Third-Party Borrower then invested the funds in the reserve account in Oxbow Fund B. Specifically, from July 1999 through August 2000, the Third-Party Borrower invested a total of over $9 million from its reserve account in Oxbow Fund B. The Third-Party Borrower invested the reserve account in Oxbow Fund B because CCL required such investment as a condition for continued funding from CCL. Dyer acknowledged that he understood that the invested funds came from the Third-Party Borrower's loans' escrow accounts. The Third-Party Borrower was the only investor in Oxbow Fund B.
34. In furtherance of the scheme, Dyer then used the funds the Third-Party Borrower invested in Oxbow Fund B to engage in securities transactions from which his company, Oxbow Partners, received very large profits. Specifically, Dyer had Oxbow Fund B use the funds invested by the Third-Party Borrower to purchase stock owned by Oxbow Partners. Oxbow Partners had acquired stock in two private companies at $1 per share. As the Third-Party Borrower invested in Oxbow Fund B, Dyer caused Oxbow Fund B to use the invested funds to purchase stock from Oxbow Partners at $12 per share.
35. Dyer then furthered the scheme by using Oxbow Partners' profits from sales to Oxbow Fund B to make Sterling's payments on the Wilshire loan. Specifically, beginning in August 1999, Oxbow Fund B transferred almost all of the funds invested by the Third-Party Borrower to Oxbow Fund I or Oxbow Partners. From September 1999 through August 2000, Oxbow Fund B transferred $7.781 million to Oxbow Partners to purchase stock at $12 per share and to pay Oxbow Partners a 7% sales fee and a 2.5% annual management fee. Oxbow Partners used $6 million of its resulting profits to help pay Sterling's monthly $500,000 Wilshire loan interest payments from August 1999 through August 2000. From September 1999 to August 2000, Oxbow Partners also paid itself a7% sales fee and other fees of $742,759 and a 2.5% annual management fee of $98,893.
Dyer Knew That CCL Was Making
Misleading Statements To Its Clients
36. In addition to participating in CCL's Ponzi scheme, by at least October 20, 1999, Dyer knew that CCL was misrepresenting or omitting to disclose to its clients material information regarding Sterling's purchase and repayment of the Wilshire loan. From at least January 1999 through July 2000, CCL sent its clients quarterly reports containing various false and misleading statements. In October 1999, Dyer received a portion of CCL's client report for the quarter ended June 30, 1999, which stated:
Sterling "continue[d] to make payments under its [agreement] with CCL";
Sterling is associated with CJM Planning, a registered broker-dealer "that has raised and manages in excess of $1.5 billion for various investments on behalf of over 80,000 clients throughout the United States";
Sterling had requested permission to sell a portion of the Wilshire loan to an unrelated third-party introduced to Sterling by CCL because Sterling believed "the structure of this sale can further increase its overall return on its investment"; and
CCL approved the transaction and believed that it "improve[d] the overall restructure of the Wilshire [Loan] while at the same time providing for the addition of another desirable and viable party that should contribute to the overall strength of CCL's existing borrower, Sterling."
37. Dyer knew these statements were false and misleading. By June 30, 1999, Dyer knew that:
CCL had waived its right to receive the March and April Wilshire loan payments from Sterling;
CCL had postponed Sterling's date for making the $3.11 million initial deposit from March 31, 1999, to January 1, 2004; and
Sterling was a shell rather than a substantial financial entity and solda portion of the Wilshire loan because Sterling was financially incapable of making full payments on the loan.
38. In addition to his role in the CCL Ponzi scheme, Dyer orchestrated two fraudulent unregistered securities offerings, known as Oxbow Fund I and Washington Partners.
39. In March 1999, Oxbow Partners began an unregistered offering of Oxbow Fund I securities to raise $25 million. Between April and October 1999, Oxbow Fund I raised approximately $4.6 million from 132 investors. CJM Planning was the broker-dealer for the offering. CJM Planning sold interests in Oxbow Fund I by soliciting pre-existing clients.
40. Oxbow Fund I exceeded 100 investors in late July 1999. In March 2000, to reduce the number of Oxbow Fund I investors to 100, Dyer offered to rescind the excess 32 investors' $872,500 investment in Oxbow Fund I in exchange for their choice of a cash refund or a conversion of their investment into Washington Partners, which is discussed below. All 32 excess investors chose to convert their investment in Oxbow Fund I to Washington Partners.
41. Oxbow Fund I's private placement memorandum ("PPM") stated that it would use the offering proceeds to make equity and debt investments as determined by Oxbow Partners. Pursuant to the PPM, Oxbow Partners was to receive a 2.5% annual fee based on assets under management and 20% of the fund's net profits.
42. Dyer defrauded investors in Oxbow Fund I in two ways. First, Dyer intended to have Oxbow Fund I's first investment be Sterling even before the PPM was prepared but failed to disclose this intention. The PPM and other offering documents did not disclose any prospective investments. Dyer, however, orallyhyped his relationship with Indian Motorcycle Company ("IMC") to investors and represented that IMC would be a definite portfolio company to investors and CJM Planning registered representatives.
43. As Dyer intended, however, he had Oxbow Fund I first invest in Sterling. Oxbow Fund I invested in five other companies. Between April and July 1999, Oxbow Fund I invested in Sterling by paying $1.525 million of Oxbow Fund I investor funds to CCL on Sterling's behalf for the Wilshire loan. By July 1999, members of Oxbow Fund I's advisory board were concerned that Sterling was consuming most of the fund's capital and left little or no money to diversify the fund with other investments. They therefore told Dyer that they would quit their positions on Oxbow Fund I's advisory board if Dyer did not replace Sterling in Oxbow Fund I's portfolio. By August 1999, Dyer agreed to replace Oxbow Fund I's $1.525 million Sterling investment with 762,500 IMC shares purportedly owned by Dyer.
44. Dyer's second fraud on Oxbow Fund I was his failure to deliver all of the promised IMC shares. Although Dyer removed an asset from Oxbow Fund I's portfolio (i.e., its investment in Sterling), he did not own enough unencumbered IMC shares for this exchange and did not transfer title to any IMC shares to Oxbow Fund I. In August 1999, Dyer, through Oxbow Partners, held 3,137,695 IMC shares, 1,984,400 of which were pledged to CCL as collateral on a $2 million loan. In addition, Oxbow Fund I paid for 653,295 IMC shares that were held by Oxbow Partners. Therefore, Dyer had only 500,000 IMC shares available for the exchange with Oxbow Fund I, which amount was 262,500 shares less than the amount that Dyer had agreed to transfer to Oxbow Fund I. Dyer's shortfall of IMC stock defrauded investors of assets that should have been transferred to Oxbow Fund I.
45. From August 1999 to September 2000, Dyer conducted an unregistered offering of interests in Washington Partners. Dyer, primarily through a CJM Planning registered representative, raised about $4 million from 204 investors nationwide. At no time was a registration statement in effect for the sale of Washington Partners securities.
46. Washington Partners was sold primarily by a CJM Planning registered representative who called Dyer's clients and received referrals from clients and other CJM Planning registered representatives.
47. Dyer, the general manager of Washington Partners, had no offering documents or subscription agreements for the offering when it began. Dyer simply accepted investor checks made out to Oxbow Partners. Investor checks were deposited in an account held in the name of Oxbow Partners over which Dyer had signatory authority.
48. In or about March 2000, Dyer duplicated offering documents from Oxbow Fund I to create Washington Partners' subscription booklets, which were completed by prior and succeeding investors. Dyer created Washington Partners' confidential information memorandum, comprised of three pages of boilerplate provisions, using an IMC prospectus. Furthermore, the Washington Partners offering documents created by Dyer did not disclose what investors would receive in exchange for their investment. Instead, investors were informed orally, and in a letter after they invested, that Washington Partners would invest in IMC and that each $3 unit of Washington Partners would convert into one share of IMC stock if and when IMC was sold or went public.
Dyer's Defrauding Of Washington Partners Investors
49. Dyer defrauded the Washington Partners investors. Specifically, contrary to oral representations made to investors, Dyer did not use the proceedsfrom the Washington Partners offering to purchase IMC stock. Instead, Dyer used offering proceeds to pay himself, to make payments on the Wilshire loan, to pay Oxbow Partners' general operating expenses, and to make other investments.
50. Further, Washington Partners required about 1.3 million IMC shares to meet its obligations to investors, but neither Washington Partners nor Dyer had enough IMC shares to satisfy those obligations.
51. The Commission realleges and incorporates by reference ¶¶ 1 through 50 above.
52. Defendants Dyer and Oxbow Partners, and each of them, by engaging in the conduct described above, directly or indirectly, made use of means or instruments of transportation or communication in interstate commerce or of the mails, to offer to sell or to sell securities, or to carry or cause such securities to be carried through the mails or in interstate commerce for the purpose of sale or for delivery after sale.
53. No registration statement has been filed with the Commission or has been in effect with respect to the offerings of securities in Washington Partners alleged herein.
54. By engaging in the conduct described above, each of the defendants violated, and unless restrained and enjoined will continue to violate, Sections 5(a) and 5(c) of the Securities Act, 15 U.S.C. §§ 77e(a) and 77e(c).
55. The Commission realleges and incorporates by reference ¶¶ 1 through 50 above.
56. Defendants Dyer and Oxbow Partners, and each of them, by engaging in the conduct described above, directly or indirectly, in the offer or sale of securities by the use of means or instruments of transportation or communication in interstate commerce or by use of the mails:
a. with scienter, employed devices, schemes, or artifices to defraud;
b. obtained money or property by means of untrue statements of a material fact or by omitting to state 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. engaged in transactions, practices, or courses of business which operated or would operate as a fraud or deceit upon the purchaser.
57. By engaging in the conduct described above, each of the defendants violated, and unless restrained and enjoined will continue to violate, Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a).
58. The Commission realleges and incorporates by reference ¶¶ 1 through 50 above.
59. Defendants Dyer and Oxbow Partners, and each of them, by engaging in the conduct described above, directly or indirectly, in connection with the purchase or sale of a security, by the use of means or instrumentalities of interstate commerce, of the mails, or of the facilities of a national securities exchange, with scienter:Insert if appropriate: "or of a facility of a national securities exchange (insert in appropriate cases)"
a. employed devices, schemes, or artifices to defraud;
b. made untrue statements of a material fact or omitted 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. engaged in acts, practices, or courses of business which operated or would operate as a fraud or deceit upon other persons.
60. By engaging in the conduct described above, each of the defendants violated, and unless restrained and enjoined will continue to violate, Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5.
61. The Commission realleges and incorporates by reference ¶¶ 1 through 50 above.
62. Defendants Dyer and Oxbow Partners, and each of them, by engaging in the conduct described above, directly or indirectly, by use of the mails or means or instrumentalities of interstate commerce:
a. with scienter, employed devices, schemes, or artifices to defraud clients or prospective clients; or
b. engaged in transactions, practices, or courses of business which operated as a fraud or deceit upon clients or prospective clients.
63. By engaging in the conduct described above, defendants Dyer and Oxbow Partners violated, and unless restrained and enjoined will continue to violate, Sections 206(1) and 206(2) of the Advisers Act, 15 U.S.C. §§ 80b-6(1) & 80b-6(2).
64. By reason of the foregoing, defendants Dyer and Oxbow Partners aided and abetted violations, and unless restrained and enjoined, defendants Dyer and Oxbow Partners will continue to aid and abet violations of Sections 206(1) and 206(2) of the Advisers Act, 15 U.S.C. §§ 80b-6(1) & 80b-6(2).
WHEREFORE, the Commission respectfully requests that the Court:
Issue findings of fact and conclusions of law that the defendants committed the alleged violations.
Issue judgments, in a form consistent with Fed. R. Civ. P. 65(d),Insert, when appropriate, "temporarily restraining and preliminarily and" permanently enjoining each defendant and their officers, agents, servants, employees and attorneys, and those persons in active concert or participation with any of them, who receive actual notice of the order by personal service or otherwise, 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), Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5, and Sections 206(1) and 206(2) of the Advisers Act, 15 U.S.C. §§ 80b-6(1) & 80b-6(2).
Order defendants Dyer and Oxbow Partners to disgorge all ill-gotten gains from their illegal conduct, together with prejudgment interest thereon.
Insert appropriate sections Order defendants Dyer and Oxbow Partners to pay civil penalties under Section 20(d) of the Securities Act, 15 U.S.C. § 77t(d), Section 21(d)(3) of the Exchange Act, 15 U.S.C. § 78u(d)(3), and Section 209(e) of the Advisers Act, 15 U.S.C. § 80b-9(e)(1).
Retain jurisdiction of this action in accordance with the principles of equity and the Federal Rules of Civil Procedure in order to implement and carry out the terms of all orders and decrees that may be entered, or to entertain any suitableapplication or motion for additional relief within the jurisdiction of this Court.
Grant such other and further relief as this Court may determine to be just and necessary.
DATED: July 18, 2003
Nicolas Morgan, Cal. Bar No. 166441
Kelly C. Bowers, Cal. Bar No. 164007
Martin J. Murphy, Cal. Bar No. 130693
Nicholas S. Chung, Cal. Bar No. 192784
Attorneys for Plaintiff
Securities and Exchange Commission
Randall R. Lee, Regional Director
Sandra J. Harris, Associate Regional Director
5670 Wilshire Boulevard, 11th Floor
Los Angeles, California 90036-3648
Telephone: (323) 965-3998
Facsimile: (323) 965-3908
Attorneys for Plaintiff
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