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Securities and Exchange Commission v. Hu

United States District Court, Ninth Circuit

April 26, 2013

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
ALBERT K. HU, ASENQUA, INC., ASENQUA CAPITAL MANAGEMENT, LLC, AQC ASSET MANAGEMENT, LTD., and FIRESIDE CAPITAL MANAGEMENT, LTD. Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR FINAL JUDGMENT AGAINST ALL DEFENDANTS [Re: Docket No. 101]

RONALD M. WHYTE, District Judge.

Plaintiff, the Securities and Exchange Commission ("Commission"), moved for final judgement against all defendants. On March 1, 2013, the court entered a default judgment against defendants Asenqua, Inc., Asenqua Capital Management, LLC, AQC Asset Management, Ltd, and Fireside Capital Management, Ltd. Dkt. No. 105. The only remaining defendant, Albert K. Hu, failed to respond to the plaintiff's motion [or appear at the hearing].

I. BACKGROUND

The Commission alleges that Hu violated the antifraud provisions of the Securities Act of 1944 and the Securities Exchange Act of 1934 (counts 1 and 2) and violated the Investment Advisers Act of 1940 (counts 3 and 4). The Commission seeks a final judgment against defendant Hu on the basis that Hu's recent criminal conviction is based on the same relevant facts, United States v. Hu, No. 09-cr-487 RMW (N.D. Cal.), and thus works as an estoppel in favor of the government in this civil action. The Commission also seeks: (1) a permanent injunction against all defendants for future violation of Section 17(a) of the Securities Act and Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder; (2) a permanent injunction against Hu for violations of Sections 206(1), 206(2), and 206(4) of the Investment Advisers Act and Rule 206(4)-8 thereunder; (3) disgorgement and prejudgement interest in the amount of $6, 624, 238; and (4) civil money penalties.

II. ORDER

Because Hu does not oppose the motion, and upon good cause shown, the court GRANTS the Government's motion for final judgment against Hu and grants relief as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Albert K. Hu and defendants Asenqua, Inc., Asenqua Capital Management, LLC, AQC Asset Management, Ltd., and Fireside Capital Management, Ltd., and their respective officers, agents, servants, employees, attorneys, and those persons in active concert or participation with any of them, who receive actual notice of this Order, by personal service or otherwise, and each of them, are permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [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:

(a) to employ any device, scheme, or artifice to defraud;

(b) 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

(c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendant Albert K. Hu and defendants Asenqua, Inc., Asenqua Capital Management, LLC, AQC Asset Management, Ltd., and Fireside Capital Management, Ltd., and their respective officers, agents, servants, employees, attorneys, and those persons in active concert or participation with any of them, who receive actual notice of this Order, by personal service or otherwise, and each of them, are permanently restrained and enjoined from violating Section 17(a) of the Securities Act of 1933 (the "Securities Act") [15 U.S.C. § 77q(a)] in the offer or sale of any security by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly:

(a) to employ any device, scheme, or artifice to defraud;

(b) to obtain money or property by means of any untrue statement of a material fact or any omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or

(c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud ...


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