U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 21393 / January 22, 2010
SEC v. Fleming, et al., Civil Action No. 1:08-CV-29 (E.D. Wa.) (Whaley J.)
The Securities and Exchange Commission ("Commission") announced that on December 22, 2009, the Commission filed a Motion for an Order to Show Cause ("Motion") against Daryn P. Fleming due to his failure to make monetary payments as ordered by the Court.
Previously on January 23, 2008, the Commission filed a complaint alleging that Fleming, then CEO of International Broadcasting Corporation, violated the antifraud provisions of the federal securities laws through the issuance of false press releases about the corporation's business operations including nonexistent broadcast affiliations with various radio stations. The complaint also alleged that when Fleming and an agent of the corporation were later questioned by investors about these supposed affiliations, they made public misrepresentations live on an International Broadcasting Corporation internet radio show to conceal the fact that the original press releases were false. On that same day the Commission also filed a settled civil injunctive action against International Broadcasting Corporation, in which the company consented to the entry of a permanent injunction from violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.
On April 14, 2009, the Honorable Robert H. Whaley of the United States District Court for the Eastern District of Washington entered a final judgment against Fleming pursuant to his consent, without either admitting or denying the Commission's allegations against him. The final judgment permanently enjoins him from violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The final judgment against Fleming also prohibits him from acting as an officer or director of any public company, and ordered him to pay disgorgement totaling $20,844 in ill-gotten gains, $3,865 in prejudgment interest, and a $35,000 civil penalty.
The Commission's Motion alleges that Fleming failed to make payments as required by the Court's final judgment against him ("Judgment"). That Judgment, which was entered with the consent of Mr. Fleming, required him to pay $59,709 in four installments. As set forth in the Commission's Motion, Fleming's first payment was made to the Court on time. However, Fleming failed to make the second and third payments despite notices from the Commission that he had failed to make payments as required by the Court.
The Commission's Motion asks that the Court enter an order finding Fleming in contempt of the Court's April 14, 2009 Judgment, order that the remaining $34,709 be paid to the Court immediately, and grant such other and further relief as this Court deems just and proper.