The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Monday, 21 March, 2011 05:26:27 PM
Clerk, U.S. District Court, ILCD
TEMPORARY RESTRAINING ORDER AND ORDER FOR ANCILLARY RELIEF
THIS CAUSE COMING TO BE HEARD on the Securities and Exchange Commission's ("Commission") Motion for a Temporary Restraining Order and Ancillary Relief against Defendant Timothy J. Roth ("Roth" or "Defendant") and Relief Defendants KeyOp Exercise, Inc., Mezolink, Inc., VCN Celect.org, LLC, and Vcomm Networks of Canada (together the "Relief Defendants"), the Court having considered the Commission's Complaint; the Motion for a Temporary Restraining Order and Ancillary Relief; the Memorandum of Law in support of the Motion; the declarations of John Kustusch, James O'Keefe, Vernon Mercier, Jeana Craft, Dean Weisbeck; the exhibits to those declarations; and all other documents and arguments in support of the Commission's application for relief, and having been fully advised in the premises, the Court finds as follows:
1. This Court has jurisdiction over the subject matter of this case. There is good cause to believe the Court will have jurisdiction over all parties hereto.
2. There is good cause to believe that Defendant has engaged and is about to engage in transactions, practices and courses of business that violate Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 ("Exchange Act") [15 U.S.C. §78j(b); 17 C.F.R. § 240.10b-5].
3. There is good cause to believe that Defendant has, is, or is about to engage in transactions, practices and courses of business that violate Sections 206(1)-(2) of the Investment Advisers Act of 1940 ("Advisers Act")
[15 U.S.C. § 80b-6(1)-(2)].
4. There is good cause to believe that, unless immediately restrained and enjoined by Order of this Court, Defendant will continue to engage in such transactions, acts, practices and courses of business and in such violations, and that investor funds may be dissipated and documents may be destroyed.
5. For these reasons, the relief set forth below is deemed appropriate.
I. TEMPORARY RESTRAINING ORDER
A. IT IS HEREBY ORDERED that Defendant and his agents, servants, employees, attorneys, and those persons in active concert or participation with him, and each of them, be and hereby is temporarily restrained and enjoined from violating, directly or indirectly, Section 10(b) and Rule 10b-5 of the Exchange Act [15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5] by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security:
1. to employ any device, scheme or artifice to defraud;
2. to make any untrue statement of a material fact or to omit 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
3. to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
B. IT IS FURTHER HEREBY ORDERED that Defendant and his agents, servants, employees, attorneys, and those persons in active concert or participation with him and each of them, be and hereby is temporarily restrained and enjoined from, while acting as an investment adviser, by use of the mails, and the means and instrumentalities of interstate commerce directly or indirectly, knowingly, willfully or recklessly, violating Sections 206(1) and (2) and Section 206(4) and Rule 206(4)-2 of the Advisers Act [15 U.S.C. § 80b-6(1)-(2), (4) and 17 C.F.R. § 240.10b-5] by (i) employing devices, schemes or artifices to defraud its clients or prospective clients;
(ii) engaging in transactions, practices and courses of business which have operated as a fraud or deceit upon its ...