Securities and Exchange Commission v. O'Rourke et al
| Securities and Exchange Commission |
| Garrett O'Rourke and Michael J. Black |
| United States |
| 1:2019cv04137 |
| July 17, 2019 |
| US District Court for the Eastern District of New York |
| Peggy Kuo |
| Kiyo A Matsumoto |
| Securities/Commodities |
| 15 U.S.C. § 77 Securities Fraud |
| Plaintiff |
Docket Report
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Filing 63
ORDER granting #61 Motion to Amend/Correct/Supplement: This Order is entered without prejudice to any partys right to present any evidence or argument to the Court and to seek any modification of or relief from any part of this Order. Unless otherwise ordered by the Court, this Order shall remain in effect until entry of a Final Judgment or other final disposition of this action. So Ordered by Judge Kiyo A. Matsumoto on 4/8/2020. (Herrera, Isaiah)
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| Filing 62 Letter Requesting Action on Motion to Modify Preliminary Injunction submitted March 23 by Garrett O'Rourke (Attachments: #1 Exhibit, #2 Exhibit) (Riopelle, Roland) |
| Filing 61 MOTION to Amend/Correct/Supplement #50 Order on Motion to Amend/Correct/Supplement Preliminary Injunction by Garrett O'Rourke. (Attachments: #1 Exhibit Proposed Modified Preliminary Injunction) (Riopelle, Roland) |
| Filing 60 Letter Enclosing Response to SEC Motion for Disgorgement and Prejudgment Interest by Garrett O'Rourke (Attachments: #1 Memorandum in Opposition, #2 Affidavit, #3 Exhibit) (Riopelle, Roland) |
| Filing 59 Letter Enclosing Motion for Monetary Remedies and Supporting Documents by Securities and Exchange Commission (Attachments: #1 Notice of Motion, #2 Affidavit in Support, #3 Memorandum in Support, #4 Affidavit in Support) (Forni, Eric) Modified on 3/25/2020 (Williams-Jackson, Sandra). |
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Filing 58
Order re: Notice of Consent to Change Attorney: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel and pursuant to Local Rule 1.4 that Christopher Bruno is hereby substituted in the place of Jacob S. Frenkel as counsel of record for Defendant Michael Black in the above-captioned case. SO Ordered by Judge Kiyo A. Matsumoto on 2/12/2020. (Tavarez, Jennifer)
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ORDER granting #56 Motion to Substitute Attorney. Attorney Jacob S Frenkel terminated. Ordered by Magistrate Judge Peggy Kuo on 2/13/2020. (Riquelme, Claudia)
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| Filing 57 Letter by Securities and Exchange Commission (Forni, Eric) |
| Filing 56 MOTION to Substitute Attorney and Stipulation and Order of Substitution of Counsel and Declaration of Jacob Frenkel In Support of Stipulation and Order of Substitution of Counsel by Michael J. Black. (Attachments: #1 Exhibit A, #2 Exhibit B) (Frenkel, Jacob) |
| Filing 55 MOTION for Damages in the form of disgorgement and prejudgment interest against defendant O'Rourke by Securities and Exchange Commission. (Attachments: #1 Declaration of Trevor Donelan) (Shields, Kathleen) |
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ORDER terminating #55 Motion for Damages filed by the Securities and Exchange Commission. Judge Matsumoto's Chambers Practices follow the bundling rule, under which "[n]o motion papers shall be filed via ECF until the motion has been fully briefed." Chambers Practices IV(C)(1)(a). Once the motion is fully briefed, the parties shall then file their motion papers via ECF in chronological order and serve two hard courtesy copies on Chambers.The parties are further directed to file a letter by Wednesday, February 12, 2020, explaining the basis for their request that the parties be permitted to "submit affidavits, declarations or other documentary evidence, without regard to the standards for summary judgment contained in Rule 56(c) of the Federal Rules of Civil Procedure." Ordered by Judge Kiyo A. Matsumoto on 2/7/2020. (Ammari, Kamil)
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| Filing 53 NOTICE of Appearance by Christopher Bruno on behalf of Michael J. Black (aty to be noticed) (Bruno, Christopher) |
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Filing 54
ORDER granting #52 Motion for Judgment Based on Settlement; CONSENT JUDGMENT in favor of Garrett O'Rourke, Michael J. Black against Securities and Exchange Commission. So Ordered by Judge Kiyo A. Matsumoto on 1/17/2020. (Attachments: #1 Consent to Judgment) (Herrera, Isaiah)
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| Filing 52 Joint MOTION for Judgment Based on Settlement with Defendant O'Rourke by Securities and Exchange Commission. (Attachments: #1 Proposed Judgment as to Defendant O'Rourke, #2 Consent to Judgment) (Shields, Kathleen) |
| Filing 51 MOTION to Withdraw as Attorney Seth Waxman and Scott MacGriff by Michael J. Black. (Waxman, Seth) |
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ORDER granting #51 Motion to Withdraw as Attorney. Attorneys Scott MacGriff and Seth Brian Waxman terminated. Ordered by Magistrate Judge Peggy Kuo on 1/8/2020. (Riquelme, Claudia)
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Filing 50
ORDER granting #49 Consent Motion to Enter a Modified Preliminary Injunction as to Defendant Garrett O'Rourke. Ordered by Judge Kiyo A. Matsumoto on 11/14/2019. (Ammari, Kamil)
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| Filing 49 MOTION to Amend/Correct/Supplement #47 Order on Motion to Amend/Correct/Supplement Preliminary Injunction by Garrett O'Rourke. (Attachments: #1 Exhibit Proposed Modified Preliminary Injunction) (Riopelle, Roland) |
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ORDER granting #48 Motion for Leave to Appear pro hac vice. Attorney Jacob Frenkel is permitted to appear pro hac vice on behalf of defendant Michael Black. The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Counsel is directed to file a pro hac vice motion on the noted case of 19cr407 USA v. Black (KAM) 1, if he has not already done so. Ordered by Magistrate Judge Peggy Kuo on 10/15/2019. (Riquelme, Claudia)
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| Filing 48 Notice of MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11939015. by Michael J. Black. (Attachments: #1 Affidavit) (Frenkel, Jacob) |
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Filing 47
ORDER granting #46 Consent Motion to Enter a Modified Preliminary Injunction as to Defendant Garrett ORourke. Ordered by Judge Kiyo A. Matsumoto on 10/3/2019. (Ammari, Kamil)
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| Filing 46 MOTION to Amend/Correct/Supplement #43 Order on Motion to Amend/Correct/Supplement by Garrett O'Rourke. (Attachments: #1 Exhibit Proposed Modified Preliminary Injunction) (Riopelle, Roland) |
| Filing 44 NOTICE by Michael J. Black of Accounting (Attachments: #1 Exhibit Accounting of Assets) (Waxman, Seth) |
| Filing 45 Related case designation letter as to 19cv4137(KAM) and 19cr407(SJ) filed by AUSA Hiral D. Mehta. (Lee, Tiffeny) |
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Filing 43
ORDER granting #42 Consent Motion to Enter a Modified Preliminary Injunction as to Defendant Garrett O'Rourke. Ordered by Judge Kiyo A. Matsumoto on 8/23/2019. (Ammari, Kamil)
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| Filing 42 MOTION to Amend/Correct/Supplement #40 Order on Motion to Amend/Correct/Supplement Preliminary Injunction by Garrett O'Rourke. (Attachments: #1 Exhibit Proposed Modified Preliminary Injunction) (Riopelle, Roland) |
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Defendant O'Rourke filed #41 a Consent Motion to Enter a Modified Preliminary Injunction. In his letter describing the proposed modification, Defendant O'Rourke indicated that "the SEC consents to the modification of the Preliminary Injunction described [therein]... [as] demonstrated by [the SEC's] signature on [the proposed modified preliminary injunction order attached as] Exhibit A." The copy of Exhibit A filed with the court, however, bears no signatures. Counsel for Defendant O'Rourke is directed to re-file this motion, along with a proposed modified preliminary injunction order bearing the signatures of both parties. Ordered by Judge Kiyo A. Matsumoto on 8/22/2019. (Ammari, Kamil)
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| Filing 41 MOTION to Amend/Correct/Supplement #40 Order on Motion to Amend/Correct/Supplement Preliminary Injunction by Garrett O'Rourke. (Attachments: #1 Exhibit Proposed Modified Preliminary Injunction) (Riopelle, Roland) |
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Filing 40
ORDER granting #38 Consent Motion to Enter a Modified Preliminary Injunction as to Defendant Garrett O'Rourke. Ordered by Judge Kiyo A. Matsumoto on 8/14/2019. (Ammari, Kamil)
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Filing 39
PRELIMINARY INJUNCTION ORDER as to Deft Michael J. Black. (So Ordered by Judge Kiyo A. Matsumoto on 8/14/2019) Must See Order for further details. (Galeano, Sonia)
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| Filing 38 MOTION to Amend/Correct/Supplement #27 Order on Motion for Preliminary Injunction, by Garrett O'Rourke. (Attachments: #1 Exhibit Proposed Revised Preliminary Injunction) (Riopelle, Roland) |
| Filing 37 REPLY in Support re Order on Motion to Stay,,,,,,,,,,,,,,,,,,,,,, Order on Motion for TRO,,,,,,,,,,,,,,,,,,,,,, Show Cause Hearing,,,,,,,,,,,,,,,,,,,,, Proposed Preliminary Injunction Order as to Defendant Black filed by Securities and Exchange Commission. (Shields, Kathleen) |
| MINUTE ENTRY and ORDER for proceedings held before Judge Kiyo A. Matsumoto on August 13, 2019 to address Order to Show Cause and Intervenor United States' Motion to Stay the Civil Action. Appearance for Plaintiff Securities & Exchange Commission: Kathleen Burdette Shields, Esq., and Eric Forni, Esq. Appearance for Defendant Black: Seth Brian Waxman, Esq., and Scott MacGriff, Esq. Defendant Black did not personally appear. Appearance for Intervenor United States: Assistant United States Attorneys Hiral D. Mehta, Esq., and Brian Morris, Esq.The Court first addressed Plaintiff's motion for a preliminary injunction against Defendant Black. Plaintiff informed the Court that it did not intend to call any witnesses to testify at the hearing to support its motion for a preliminary injunction, due to concerns raised by Intervenor that doing so could prejudice ongoing criminal proceedings against Defendant Black. Instead, Plaintiff relied on its very detailed submissions, including the Declaration of SEC Forensic Accountant Trevor T. Donelan and the exhibits thereto. (ECF No. 2, Ex. 1.) In addition, the Court reviewed the affidavit of Special Agent Kurt Dengler, submitted in this action in opposition to Defendant Black's motion for expedited discovery, and submitted in the parallel criminal action against Defendant Black in support of Intervenor's application in that action for Defendant Black's arrest. (ECF No. 30, Ex. A.) Defendant, on the other hand, proffered no evidence prior to or at the show cause hearing that could undermine Plaintiff's factual assertions or its showing that a preliminary injunction is warranted. Instead, Defendant Black asserted that cross-examination of Mr. Donelan would undercut Plaintiff's case. For the reasons stated on the record, and in a subsequent order that will set forth the bases for, and terms of, the preliminary injunction, the Court granted Plaintiff's motion for a preliminary injunction against Defendant Black. Plaintiff also provided the Court and counsel for Defendant Black with a proposed preliminary injunction order. Plaintiff is directed to file this proposed order via ECF no later than 12:00 p.m. on August 14, 2019.Having granted Plaintiff's request for a preliminary injunction, the Court next turned to Intervenor's motion to stay this action in light of the parallel criminal proceedings against Defendant Black. Courts routinely "defer[] civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice... require such action." United States v. Kordel, 397 U.S. 1, 12 n.27 (1970). In the Second Circuit, courts employ a variety of tests to evaluate the propriety of a stay of civil proceedings, but the appropriateness of a stay ultimately rests within the sound judgment of the district court "based on the particular facts before it and the extent to which such a stay would work a hardship, inequity, or injustice to a party, the public or the court." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 99 (2d Cir. 2012). Courts consequently consider: "1) the extent to which the issues in the criminal case overlap with those presented in the civil case; 2) the status of the case, including whether the defendants have been indicted; 3) the private interests of the plaintiffs in proceeding expeditiously weighed against the prejudice to plaintiffs caused by the delay; 4) the private interests of and burden on the defendants; 5) the interests of the courts; and 6) the public interest." Id.The foregoing considerations in this action weigh in favor of entering a stay of this civil action pending conclusion of the parallel criminal proceedings against Defendant Black. It is undisputed that there is substantial overlap between the allegations in this action and the parallel criminal action against Defendant Black, see, e.g., Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 203 (S.D.N.Y. 1989) ("The most important factor at the threshold is the degree to which the civil issues overlap with the criminal issues."), and the United States expects that Defendant Black will soon be indicted based on similar allegations and evidence, Louis Vuitton, 676 F.3d at 101 (recognizing that indictment in parallel criminal proceeding "supported the entry of a stay"). Moreover, the weight of the various stakeholders' interests also favor entry of a stay, in particular, the Court's interest in the efficient resolution of the proceedings and the strong public interest in vindication of the criminal law. See, e.g., S.E.C. v. Shkreli et al., No. 15-cv-7175 (Mar. 22, 2016) (addressing the various stakeholders' interests in similar circumstances and concluding that a stay was appropriate). Therefore, pending resolution of the criminal matter captioned United States v. Michael Black et al., 19-mj-644 (SMG), by verdict, pretrial disposition, or until otherwise allowed by the Court, these civil proceedings are stayed. The parties are, however, granted leave to seek a limited modification of the preliminary injunction to facilitate payment of attorneys' fees or other necessary living expenses. (Court Reporter Victoria Butler.) (Ammari, Kamil) |
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ORDER granting #34 Motion for Leave to Appear Pro Hac Vice. Attorney Scott MacGriff is permitted to appear pro hac vice on behalf of Defendant Michael J. Black. The attorney must register for ECF; registration is available online at www.pacer.gov. Once registered, the attorney must file a notice of appearance and ensure that he receives electronic notification of activity in this case. Ordered by Magistrate Judge Peggy Kuo on 8/13/2019. (Gonzalez-Munoz, Rossana)
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| Filing 36 ANSWER to #1 Complaint by Michael J. Black. (Waxman, Seth) |
| Filing 35 MOTION to Stay the Civil Case by United States. (Attachments: #1 Memorandum in Support, #2 Proposed Order) (Mehta, Hiral) |
| Filing 34 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11753574. by Michael J. Black. (Attachments: #1 Affidavit, #2 Certificate of Good Standing) (MacGriff, Scott) |
| Filing 33 Letter from parties relating to witnesses for preliminary injunction hearing by Securities and Exchange Commission (Shields, Kathleen) |
| Filing 32 REPLY to Response to Motion re #29 MOTION for Preliminary Injunction Hearing Adjournment and Limited Expedited Discovery (related to document # 30) filed by Michael J. Black. (Waxman, Seth) |
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ORDER. The Court grants the Government's motion to intervene pursuant to Federal Rule of Civil Procedure ("FRCP") 24. The Government is entitled to intervene both as of right and through permissive intervention.To begin, the Government is entitled to intervene as of right pursuant to FRCP 24(a). Intervention as of right is appropriate where "(1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; and (4) the applicant's interest is not adequately represented by the other parties." MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377, 389 (2d Cir. 2006). First, the Government's motion is timely, having been filed before the start of discovery and within one month of the filing of this action. Second, the Government has "a discernible interest in intervening in order to prevent discovery in the civil case from being used to circumvent the more limited scope of discovery in the criminal matter." S.E.C. v. Chestman, 861 F.2d 49, 50 (2d Cir. 1988). Third, further proceedings in this action could impair the Government's interest in limiting the defendants to the discovery available under the Federal Rules of Criminal Procedure. Fourth, the Government's interest in this action is likely to differ at least to some extent from that of the SEC. See, e.g., S.E.C. v. Downe, No. 92-cv-4092, 1993 WL 22126, at *12 (S.D.N.Y. Jan. 26, 1993) ("[T]he United States Attorney may have an interest in this litigation which is qualitatively different from the SEC's interest.").Moreover, the Government is also entitled to intervene through permissive intervention pursuant to FRCP 24(b). Permissive intervention is appropriate where the would-be intervenor files a timely motion and has a claim or defense that shares with the main action a common question of law or fact. FRCP 24(b)(1)(B). To begin, and as the Court discussed above, the Government filed its application to intervene in a timely manner. Moreover, there is significant overlap between this action and the parallel criminal action against Defendant Black, and both actions share common questions of law and fact. See, e.g., S.E.C. v. Platinum Mgmt. (NY) LLC et al., No. 16-cv-6848(DLI), 2017 WL 2915365, at *3 (E.D.N.Y. July 7, 2017).In light of the foregoing, the Court grants the Government's application to intervene in this action. The Government is invited to attend the preliminary injunction hearing scheduled for August 13, 2019 at 1:00 p.m. The parties will address the proposed motion to stay at that time, and all parties are welcome to address the effect of a proposed stay on the temporary restraining order which is currently in place. Ordered by Judge Kiyo A. Matsumoto on 8/12/2019. (Ammari, Kamil)
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ORDER: The Order To Show Cause Hearing scheduled for 2:00p.m. will instead go forward at 1:00p.m. on 8/13/2019 in Courtroom 6C South before Judge Kiyo A. Matsumoto.Ordered by Judge Kiyo A. Matsumoto on 8/12/2019. (Williams-Jackson, Sandra)
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ORDER denying #29 Defendant Black's Motion to Adjourn the Preliminary Injunction Hearing and to Conduct Limited Expedited Discovery. Federal Rule of Civil Procedure ("FRCP") 26(d) provides for expedited discovery when authorized by court order. The Second Circuit has yet to articulate a standard for determining whether to allow expedited discovery, and courts in the Second Circuit have applied either the four-part test derived from Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982), the elements of which track the standard for granting a preliminary injunction, or the more flexible standard of reasonableness and good cause, Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 327 (S.D.N.Y. 2005). Mr. Black's motion for expedited discovery fails to satisfy either standard.To begin, Mr. Black has not satisfied the Notaro test, which requires that he show, among other things, irreparable injury and some probability of success on the merits. Notaro, 95 F.R.D. at 405. Mr. Black's motion does not articulate any irreparable injury that he will suffer without receipt of expedited discovery. Nor does Mr. Black provide any basis upon which the court can conclude that there is some probability that he will succeed on the merits. The motion simply alleges that Mr. Black is aware of "exculpatory evidence" in Plaintiff's possession, but it does not provide any evidence to substantiate this claim. Mr. Black's motion accordingly fails to satisfy the Notaro test.Nor does Mr. Black's motion satisfy the "more flexible," Stern v. Cosby, 246 F.R.D. 453, 457 (S.D.N.Y. 2007), standard of reasonableness and good cause, see Ayyash, 233 F.R.D. at 326. Mr. Black was required to demonstrate that the discovery he seeks is reasonable under the circumstances, N. Atl. Operating Co. v. Evergreen Distribs., LLC, 293 F.R.D. 363, 367 (E.D.N.Y. 2013), but he has not done so. First, the discovery sought by Mr. Black is overly broad and not narrowly tailored to the purposes of the preliminary injunction hearing. See, e.g., N. Atl. Operating Co., 293 F.R.D. at 371 (finding that discovery request fails reasonableness test where it is "overbroad"). Second, Mr. Black has not articulated any specific nexus between the broad discovery he seeks and the claims and/or defenses he expects to present at the preliminary injunction hearing. Third, as set forth by Plaintiff, the discovery sought by Mr. Black could jeopardize ongoing investigations of individuals and entities not related to the allegations in this action. Fourth, despite the fact that the TRO in this action entered on July 17, 2019, Mr. Black waited almost one month to request this expedited discovery and does not articulate good cause for doing so. In sum, Mr. Black's discovery requests, as framed, do not satisfy the reasonableness and good cause test.In light of the foregoing, the court denies Mr. Black's motion for limited expedited discovery and to adjourn the preliminary injunction hearing. Both parties should be prepared to proceed with the preliminary injunction hearing currently scheduled for August 13, 2019, which will now be held at 1:00 p.m. The parties shall file a letter with the court no later than 5:00 p.m. on August 12, 2019 informing the court of the names of witnesses and a brief description of the substance of the evidence they plan to present at tomorrow's hearing. Ordered by Judge Kiyo A. Matsumoto on 8/12/2019. (Ammari, Kamil)
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| Filing 31 Letter by Securities and Exchange Commission (Forni, Eric) |
| Filing 30 MEMORANDUM in Opposition re #29 MOTION for Preliminary Injunction Hearing Adjournment and Limited Expedited Discovery filed by Securities and Exchange Commission. (Attachments: #1 Exhibit A) (Forni, Eric) |
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ORDER. Plaintiff is directed to file a response to #29 defendant Black's motion to adjourn the preliminary injunction hearing and to allow for limited expedited discovery by 5:00 p.m. on Friday, August 9, 2019. The court's prior order that plaintiff and defendant Black file a joint status letter apprising the court of the status of their negotiations by Friday, August 9, 2019 also remains in effect. This joint status letter must be filed separately from plaintiff's response. Ordered by Judge Kiyo A. Matsumoto on 8/9/2019. (Ammari, Kamil)
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| Filing 29 MOTION for Preliminary Injunction Hearing Adjournment and Limited Expedited Discovery by Michael J. Black. (Waxman, Seth) |
| Filing 28 NOTICE of Appearance by Seth Brian Waxman on behalf of Michael J. Black (notification declined or already on case) (Waxman, Seth) |
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Filing 27
ORDER, granting #26 REVISED Motion for Preliminary Injunction as to Deft Garrett M. O'Rourke. (Must see Order for further details) Ordered by Judge Kiyo A. Matsumoto on 7/31/19. c/m (Galeano, Sonia) Modified on 8/5/2019 as requested by Chambers; see attachment to document #26. (Galeano, Sonia).
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| Filing 26 Joint MOTION for Preliminary Injunction as to defendant O'Rourke by Securities and Exchange Commission. (Attachments: #1 Revised Proposed Stipulation and Order for Entry of Preliminary Injunction as to defendant Garrett O'Rourke) (Shields, Kathleen) |
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Filing 25
ORDERED, that Seth Waxman is admitted as counsel in this matter for the limited purpose of seeking an extension of the TRO. IT IS FURTHER ORDERED that the terms of the TRO issued on July 17, 2019 are extended for two weeks through August 14, 2019. Ordered by Judge Kiyo A. Matsumoto on 7/30/2019. (Layne, Monique)
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Filing 24
STIPULATION AND ORDER, granting #23 Motion for Preliminary Injunction AS TO DEFENDANT GARRETT M. O'ROURKE. Ordered by Judge Kiyo A. Matsumoto on 7/30/2019. (Layne, Monique)
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| Filing 23 Joint MOTION for Preliminary Injunction stipulated bewteen Securities and Exchange Commission and Defendant Garrett O'Rourke as to defendant O'Rourke by Securities and Exchange Commission. (Shields, Kathleen) |
| Filing 22 MOTION to Adjourn Conference To Allow Stipulated Outcome by Garrett O'Rourke. (Riopelle, Roland) |
| Filing 21 NOTICE of Appearance by Roland G. Riopelle on behalf of Garrett O'Rourke (aty to be noticed) (Riopelle, Roland) |
| Filing 20 Proposed MOTION for Preliminary Injunction as to defendant O'Rourke by Securities and Exchange Commission. (Shields, Kathleen) |
| Filing 19 MOTION for Temporary Restraining Order Extension (for TRO) and Limited Entry of Appearance of Seth B. Waxman by Michael J. Black. (Attachments: #1 Proposed Order) (Waxman, Seth) |
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In light of #19 defendant Black's motion for an extension of the temporary restraining order issued in this matter on July 17, 2019, defendant Black need not appear at the hearing currently scheduled for July 31, 2019. Ordered by Judge Kiyo A. Matsumoto on 7/30/2019. (Ammari, Kamil)
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ORDER: In light of #23 the Joint Motion for Preliminary Injunction stipulated between plaintiff and defendant O'Rourke, the hearing currently scheduled for July 31, 2019 is hereby adjourned sine die as to defendant O'Rourke. Plaintiff and defendant O'Rourke shall submit an original copy of the Joint Motion for Preliminary Injunction bearing the signatures of counsel for both parties, as well as Mr. O'Rourke personally, no later than August 1, 2019.Moreover, in light of #19 the Motion for Extension of the Temporary Restraining Order for 14 days filed by defendant Black, the hearing currently scheduled for July 31, 2019 is hereby adjourned to August 13, 2019 at 2:00 p.m. as to defendant Black. Plaintiff and defendant Black shall file a letter with the court apprising it of the status of their negotiations by August 9, 2019. Ordered by Judge Kiyo A. Matsumoto on 7/30/2019. (Ammari, Kamil)
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| MINUTE ENTRY and ORDER for telephone conference held before Judge Kiyo A. Matsumoto on July 30, 2019. Appearance for plaintiff: Kathleen Burdette Shields, Esq.; Eric Forni, Esq. Appearance for defendant O'Rourke: Roland G. Riopelle, Esq. The parties discussed #20 the Proposed Motion for a Preliminary Injunction as to Garrett O'Rourke. The court informed the parties that it respectfully declines to execute this proposed order for the reasons stated at this conference. The parties then agreed as follows: (1) Mr. Riopelle will file a notice of appearance in this action; (2) Mr. Riopelle will file a letter with the court advising it as to whether Mr. O'Rourke consents to the entry of a preliminary injunction against him in this action or, alternatively, whether Mr. O'Rourke consents to the extension of the temporary restraining order dated July 17, 2019; and (3) the parties will submit an appropriate stipulation and order executed by counsel for both parties, along with Mr. O'Rourke himself, which provides that the court may enter a preliminary injunction with specific findings and terms. If the parties file an appropriate stipulation and order as provided herein by July 30, 2019 at 11:00 p.m., they need not appear at the hearing currently scheduled for July 31, 2019. (Ammari, Kamil) |
| Filing 18 Letter re status report relating to preliminary injunction hearing by Securities and Exchange Commission (Shields, Kathleen) |
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The court has reviewed #18 the letter from the Securities and Exchange Commission ("the Commission") dated July 29, 2019. The court understands that the Commission expects (1) that defendant O'Rourke will not substantively contest the issuance of a preliminary injunction and (2) that defendant Black will not oppose a motion for an extension of the temporary restraining order. The Commission should be prepared to proceed against both defendants at the hearing currently scheduled for July 31, 2019, in the event that the Commission does not receive a firm commitment from either defendant as to the foregoing matters prior to that hearing. Counsel for plaintiff is respectfully directed to serve a copy of this order on defendants and to note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 7/29/2019. (Ammari, Kamil)
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| Filing 17 Letter regarding compliance with Court's scheduling order by Securities and Exchange Commission (Shields, Kathleen) |
| Filing 16 NOTICE of Appearance by Kathleen Burdette Shields on behalf of Securities and Exchange Commission (notification declined or already on case) (Shields, Kathleen) |
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SCHEDULING ORDER: In light of the rescheduling of the hearing to July 31, 2019 at 9:00 a.m., the court respectfully directs plaintiff to submit its reply papers, if any, by 12:00 p.m. on Tuesday, July 30, 2019. The parties are also directed to file a joint letter no later than July 29, 2019 informing the court as to the status of this action, including what, if any, evidence they intend to present to the court at the hearing scheduled for July 31, 2019. Counsel for plaintiff is respectfully directed to serve a copy of this order on defendants and to note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 7/26/2019. (Ammari, Kamil)
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ORDER granting #14 Motion for Leave to Appear pro hac vice. Attorney Kathleen Burdette Shields is permitted to appear pro hac vice on behalf of plaintiff Securities and Exchange Commission. The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ordered by Magistrate Judge Peggy Kuo on 7/25/2019. (Riquelme, Claudia)
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| Filing 15 Letter re compliance with Court's scheduling order by Securities and Exchange Commission (Shields, Kathleen) |
| Filing 14 MOTION to Appear Pro Hac Vice by Securities and Exchange Commission. (Attachments: #1 Affidavit, #2 Proposed Order, #3 Certificate of Good Standing) (Lee, Tiffeny) |
| Filing 13 NOTARIZED AFFIDAVIT of Eric A. Forni, Esq. re #12 MOTION to Appear Pro Hac Vice by Securities and Exchange Commission. (Lee, Tiffeny) |
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ORDER granting #12 Motion for Leave to Appear pro hac vice. Attorney Eric A. Forni is permitted to appear pro hac vice on behalf of plaintiff Securities and Exchange Commission. The attorney shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Ordered by Magistrate Judge Peggy Kuo on 7/24/2019. (Riquelme, Claudia)
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SCHEDULING ORDER: The Court hereby re-schedules the hearing currently set for August 1, 2019 at 10:00 a.m. for July 31, 2019 at 9:00 a.m. Counsel for plaintiff is respectfully directed to advise defendants of this order and to submit a letter to the court indicating that they have provided such notice by July 24, 2019. Ordered by Judge Kiyo A. Matsumoto on 7/24/2019. (Ammari, Kamil)
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ORDER deferring ruling on #12 Motion for Leave to Appear pro hac vice. The Supporting affidavit is not notarized. Counsel is directed to the Pro Hac Vice Attorney Admission Instructions https://www.nyed.uscourts.gov/pro-hac-vice-attorney-admission-instructions. Ordered by Magistrate Judge Peggy Kuo on 7/22/2019. (Riquelme, Claudia)
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| Filing 12 MOTION to Appear Pro Hac Vice as to Eric A. Forni, Esq. by Securities and Exchange Commission. (Attachments: #1 Eric Forni Affidavit, #2 RI Certificate of Good Standing, #3 MA Certificate of Good Standing, #4 Proposed Order) (Lee, Tiffeny) |
| Filing 11 SUMMONS Returned Executed by Securities and Exchange Commission. Garrett O'Rourke served on 7/19/2019, answer due 8/9/2019. (Satwalekar, Sandeep) |
| Filing 10 SUMMONS Returned Executed by Securities and Exchange Commission. Michael J. Black served on 7/19/2019, answer due 8/9/2019. (Satwalekar, Sandeep) |
| Filing 9 Summons Issued as to Michael J. Black. (Galeano, Sonia) |
| Filing 8 Summons Issued as to Garrett O'Rourke. (Galeano, Sonia) |
| Filing 6 Proposed Summons. Re #1 Complaint by Securities and Exchange Commission (Satwalekar, Sandeep) |
| Filing 5 Proposed Summons. Re #1 Complaint by Securities and Exchange Commission (Satwalekar, Sandeep) |
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Filing 7
ORDER TO SHOW CAUSE, granting #2 Motion for TRO. That Defts show cause, if there be any, to this Court at a Hearing set for 8/1/2019 at 10:00 AM in Courtroom 6C South before Judge Kiyo A. Matsumoto, why this Court should not enter an Order pursuant to Rule 65 of the Federal Rules of Civil Procedure, Section 20 of the Securities Act [15 U.S.C. 77t], and Section 21 of the Exchange Act [15 U.S.C. 78u]: (a) Preliminarily enjoining the Defendants from violating Sections 5(a) and (c) and 17(a)(1) and (3) of the Securities Act [15 U.S.C. 77e(a), (c)); 77q(a)] and Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Exchange Act Rules 10b-5(a) and (c) thereunder [17 C.F.R. 240.10b-5(a) and (c)] and also enjoining defendant O'Rourke from violating Section 17(a)(2) of the Securities Act [15 U.S.C. 77q(b)] and Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Exchange Act Rule 10b-5(b) thereunder [17 C.F.R. 240.10b-5(b)]; (b) Freezing the Defendants' assets; (c) Requiring the Defendants to repatriate assets held overseas; (d) Requiring the Defendants to provide verified accountings of their assets; and (e) Requiring the Defendants to preserve documents relevant to this case. IT IS FURTHER ORDERED that in addition to the methods of service described in Rule 4(f) of the Federal Rules of Civil Procedure, service of this Order, and the Summons andComplaint, may be made by facsimile, mail, e-mail, delivery by commercial courier, or personally by any employee of the Commission who is not counsel of record in this matter, or special process server, or any other person, or in any other manner authorized by Rule 5 of the Federal Rules of Civil Procedure and may be made on any registered agent, officer, or director of Defendants, or by publication. IT IS FURTHER ORDERED that the Defendants shall deliver any opposing papers in response to this Order to Show Cause by no later than July 24th, 2019 at 5 p.m. Service shall be made by delivering the papers, using the most expeditious means available, by that date and time, to the Boston Regional Office of the Commission at 33 Arch St., 24th Floor, Boston, MA 02110 Attn: Eric A. Forni, or such other place as counsel for the Commission may direct inwriting or by email to ForniE@sec.gov. The Commission may have until July 30, 2019, at 5:00 p.m., to serve, by the most expeditious means available, any reply papers upon the Defendants or their counsel, if counsel shall have made an appearance in this action. (Ordered by Judge William F. Kuntz, II on 7/17/2019) Must See OTSC for further details. (Galeano, Sonia) Modified on 7/18/2019 (Galeano, Sonia).
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| Filing 4 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Filing 3 Unsigned Order to Show Cause by Securities and Exchange Commission (Bowens, Priscilla) (Main Document 3 replaced on 7/25/2019) (Bowens, Priscilla). |
| Filing 2 MOTION for Temporary Restraining Order by Securities and Exchange Commission. (Attachments: #1 Declaration Donelan, #2 Declaration Forni, #3 Memorandum in Support) (Bowens, Priscilla) (Main Document 2 replaced on 7/25/2019) (Bowens, Priscilla). (Main Document 2 replaced on 7/25/2019) (Bowens, Priscilla). (Attachment 1 replaced on 7/25/2019) (Bowens, Priscilla). |
| Filing 1 COMPLAINT against Michael J. Black, Garrett O'Rourke Was the Disclosure Statement on Civil Cover Sheet completed -yes,, filed by Securities and Exchange Commission. (Attachments: #1 Civil Cover Sheet) (Bowens, Priscilla) |
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