Professional Documents
Culture Documents
SEC Opko Health Final Judgement
SEC Opko Health Final Judgement
The Securities and Exchange Commission having filed a Complaint and Defendant
OPKO Health, Inc. having entered a general appearance; consented to the Court’s jurisdiction
over Defendant and the subject matter of this action; consented to entry of this Final Judgment
without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived
findings of fact and conclusions of law; and waived any right to appeal from this Final Judgment:
I.
permanently restrained and enjoined from violating, directly or indirectly, Section 13(d) of the
Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78m(d)] and Rule 13d-1(a)
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 2 of 12
promulgated thereunder [17 C.F.R. § 240.13d-1(a)] by failing to file with the Commission a
statement containing the information required by Schedule 13D (as provided in 17 C.F.R. §
240.13d-101), within 10 days after acquiring directly or indirectly the beneficial ownership of
more than five percent of any equity security of a class which is specified in Exchange Act Rule
Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who
receive actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s
officers, agents, servants, employees, and attorneys; and (b) other persons in active concert or
II.
civil penalty in the amount of $100,000 to the Securities and Exchange Commission pursuant to
Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall make this
Defendant may transmit payment electronically to the Commission, which will provide
detailed ACH transfer/Fedwire instructions upon request. Payment may also be made directly
cashier’s check, or United States postal money order payable to the Securities and Exchange
2
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 3 of 12
and shall be accompanied by a letter identifying the case title, civil action number, and name of
this Court; OPKO Health, Inc. as a defendant in this action; and specifying that payment is made
identifying information to the Commission’s counsel in this action. By making this payment,
Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part
of the funds shall be returned to Defendant. The Commission shall send the funds paid pursuant
to this Final Judgment to the United States Treasury. Defendant shall pay post-judgment interest
III.
incorporated herein with the same force and effect as if fully set forth herein, and that Defendant
shall comply with all of the undertakings and agreements set forth therein, including, but not
3
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 4 of 12
(iv) Report, within fifteen (15) days of completion of the ICC’s work,
findings on the issues set forth in Paragraphs III(b)(i)–(iii) above
(including recommendations as to filings, amendments, improvements
to policies and procedures and improvements to composition of the
Management Investment Committee and Independent Investment
Committee of the Board of Directors) to the Commission staff.
c. Implement, within thirty (30) days of receipt of the ICC’s report, the
ICC’s recommendations.
d. Certify, in writing, compliance with the undertakings set forth above. The
certification shall identify the undertakings, provide written evidence of
compliance in the form of a narrative, and be supported by exhibits sufficient to
demonstrate compliance. The Commission staff may make reasonable requests
for further evidence of compliance, and Defendant agrees to provide such
evidence. Defendant shall submit the certification and supporting material to
Michael Paley, Esq., with a copy to the Office of Chief Counsel of the
Enforcement Division, no later than sixty (60) days from the date of the
completion of the undertakings.
IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain
jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment.
4
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 5 of 12
V.
There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice.
____________________________________
UNITED STATES DISTRICT JUDGE
5
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 6 of 12
with the complaint in this action, enters a general appearance, and admits the Court’s jurisdiction
personal and subject matter jurisdiction, which Defendant admits), Defendant hereby consents to
the entry of the final Judgment in the form attached hereto (the “Final Judgment”) and
(b) requires Defendant to comply with the undertakings set forth in this
(c) orders Defendant to pay a civil penalty in the amount of $100,000 under
reimbursement or indemnification from any source, including but not limited to payment made
pursuant to any insurance policy, with regard to any civil penalty amounts that Defendant pays
pursuant to the Final Judgment, regardless of whether such penalty amounts or any part thereof
are added to a distribution fund or otherwise used for the benefit of investors. Defendant further
agrees that it shall not claim, assert, or apply for a tax deduction or tax credit with regard to any
federal, state, or local tax for any penalty amounts that Defendant pays pursuant to the Final
Judgment, regardless of whether such penalty amounts or any part thereof are added to a
(b) Within thirty (30) days of the date of the Final Judgment, retain an
2
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 8 of 12
(c) Implement, within thirty (30) days of receipt of the ICC’s report, the
ICC’s recommendations.
(d) Certify, in writing, compliance with the undertakings set forth above. The
and supporting material to Michael Paley, Esq., with a copy to the Office
3
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 9 of 12
5. Defendant waives the entry of findings of fact and conclusions of law pursuant to
6. Defendant waives the right, if any, to a jury trial and to appeal from the entry of
7. Defendant enters into this Consent voluntarily and represents that no threats,
offers, promises, or inducements of any kind have been made by the Commission or any
8. Defendant agrees that this Consent shall be incorporated into the Final Judgment
with the same force and effect as if fully set forth therein.
9. Defendant will not oppose the enforcement of the Final Judgment on the ground,
if any exists, that it fails to comply with Rule 65(d) of the Federal Rules of Civil Procedure, and
10. Defendant waives service of the Final Judgment and agrees that entry of the Final
Judgment by the Court and filing with the Clerk of the Court will constitute notice to Defendant
of its terms and conditions. Defendant further agrees to provide counsel for the Commission,
within thirty (30) days after the Final Judgment is filed with the Clerk of the Court, with an
affidavit or declaration stating that Defendant has received and read a copy of the Final
Judgment.
11. Consistent with 17 C.F.R. § 202.5(f), this Consent resolves only the claims
asserted against Defendant in this civil proceeding. Defendant acknowledges that no promise or
representation has been made by the Commission or any member, officer, employee, agent, or
4
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 10 of 12
representative of the Commission with regard to any criminal liability that may have arisen or
may arise from the facts underlying this action or immunity from any such criminal liability.
Defendant waives any claim of Double Jeopardy based upon the settlement of this proceeding,
including the imposition of any remedy or civil penalty herein. Defendant further acknowledges
that the Court’s entry of a permanent injunction may have collateral consequences under federal
or state law and the rules and regulations of self-regulatory organizations, licensing boards, and
other regulatory organizations. Such collateral consequences include, but are not limited to, a
member of, a self-regulatory organization. This statutory disqualification has consequences that
are separate from any sanction imposed in an administrative proceeding. In addition, in any
disciplinary proceeding before the Commission based on the entry of the injunction in this
action, Defendant understands that it shall not be permitted to contest the factual allegations of
12. Defendant understands and agrees to comply with the terms of 17 C.F.R.
§ 202.5(e), which provides in part that it is the Commission’s policy “not to permit a defendant
or respondent to consent to a judgment or order that imposes a sanction while denying the
allegations in the complaint or order for proceedings,” and “a refusal to admit the allegations is
equivalent to a denial, unless the defendant or respondent states that he neither admits nor denies
the allegations.” As part of Defendant’s agreement to comply with the terms of Section 202.5(e),
Defendant: (i) will not take any action or make or permit to be made any public statement
denying, directly or indirectly, any allegation in the complaint or creating the impression that the
complaint is without factual basis; (ii) will not make or permit to be made any public statement
to the effect that Defendant does not admit the allegations of the complaint, or that this Consent
5
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 11 of 12
contains no admission of the allegations, without also stating that Defendant does not deny the
allegations; and (iii) upon the filing of this Consent, Defendant hereby withdraws any papers
filed in this action to the extent that they deny any allegation in the complaint. If Defendant
breaches this agreement, the Commission may petition the Court to vacate the Final Judgment
and restore this action to its active docket. Nothing in this paragraph affects Defendant’s: (i)
testimonial obligations; or (ii) right to take legal or factual positions in litigation or other legal
13. Defendant hereby waives any rights under the Equal Access to Justice Act, the
Small Business Regulatory Enforcement Fairness Act of 1996, or any other provision of law to
seek from the United States, or any agency, or any official of the United States acting in his or
her official capacity, directly or indirectly, reimbursement of attorney’s fees or other fees,
expenses, or costs expended by Defendant to defend against this action. For these purposes,
Defendant agrees that Defendant is not the prevailing party in this action since the parties have
14. Defendant agrees that the Commission may present the Final Judgment to the
6
Case 1:18-cv-08175-ER Document 72 Filed 12/27/18 Page 12 of 12