U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 21512 / May 4, 2010
Securities and Exchange Commission v. New Day Atlanta, LLC d/b/a NDA Financial, LLC, Andrew L. Avery and Lee E. Marks, Civil Action No. 1:10-cv-1333-TCB (N.D. Ga.)
SEC Charges New Day Atlanta, LLC and its Two Principals with Securities Fraud and Court Orders Entry of Permanent Injunctions Against All Defendants, and Appoints a Corporate Monitor for the Entity Defendant
The Securities and Exchange Commission filed a civil injunctive action yesterday in U.S. District Court for the Northern District of Georgia, charging two individuals and an Atlanta-based limited liability company with violations of federal securities laws for making false and misleading statements in connection with an unregistered offering of Real Estate Investment Notes ("REINs").
The Commission's Complaint alleges that New Day Atlanta, LLC d/b/a NDA Financial, LLC ("NDA") and its two principals, Andrew L. Avery ("Avery) and Lee E. Marks ("Marks"), raised more than $3.2 million between September 2007 and February 2010 through the fraudulent unregistered offering of REINs, which were sold on the internet at www.ndafinancial.com (the "Website"). The Website and other offering materials provided to investors contained numerous material misrepresentations regarding, among other things, the safety of investor proceeds, the gross value of NDA's assets, and NDA's gross revenues. The offering attracted at least 72 investors from across the United States.
In its Complaint, the Commission alleges that NDA, Avery, and Marks violated Sections 5 and 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule10b-5 thereunder and seeks permanent injunctions from further violations of those provisions.
The Commission also announced today that the Honorable Timothy C. Batten, United States District Judge for the Northern District of Georgia entered an order granting permanent injunctions against the three defendants, and among other things, appointing a corporate monitor for NDA. Without admitting or denying the allegations in the complaint, NDA consented to the entry of the Order that: (i) permanently enjoined it from committing future violations of the above provisions; (ii) appointed a corporate monitor to oversee NDA's liquidation of assets and return of principal to investors; and (iii) ordered it to pay disgorgement of ill-gotten gains, prejudgment interest thereon, and civil penalties, in amounts to be determined by the court upon the Commission's motion. Likewise, Avery and Marks consented to the entry of the order that: (i) permanently enjoined them from committing future violations of the above provisions; and (ii) ordered them to pay disgorgement of ill-gotten gains, prejudgment interest thereon, and civil penalties, in amounts to be determined by the court upon the Commission's motion.
See Also: SEC Complaint