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Securities and Exchange Commission v. Thompson

United States District Court, S.D. New York

March 2, 2017


          OPINION & ORDER

          KATHERINE B. FORREST, District Judge.

         This is an enforcement action brought by the New York office of the Securities and Exchange Commission (“SEC”) against defendants Anthony J. Thompson Jr., Jay Fung and Eric Van Nguyen-three alleged penny stock promoters-and three relief defendants. (ECF No. 1 (“Compl.”) ¶¶ 9-13.) The SEC alleges that, from November 2009 to September 2010, defendants conducted five penny stock “pump-and-dump”/“scalping” schemes in which they touted certain securities to the investing public without disclosing the extent of their financial stakes in those securities. The SEC alleges that, in perpetrating these schemes, the defendants violated several provisions of the securities laws: Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 promulgated thereunder, as well as Sections 17(a) and 17(b) of the Securities Act of 1933 (“Securities Act”).

         The SEC instituted this action after its Florida office prosecuted Thompson and other defendants for securities violations in connection with a penny stock scheme involving a separate issuer, and after the New York office unsuccessfully engaged in settlement negotiations with Thompson. This case is in the early stages. Discovery has been stayed until the earlier of August 11, 2017 or the resolution of a parallel criminal proceeding that Thompson is currently defending in New York state court. (ECF No. 39.)

         Now before the Court is Thompson's motion for summary judgment. (ECF No. 42.) Thompson originally filed the motion as a motion to dismiss; the Court converted it to one for summary judgment because Thompson cited materials outside the pleadings. (ECF No. 47.) Thompson advances three arguments in support of his motion. First, he asserts that this action is barred in its entirety by the Florida Action under principles of res judicata. Second, he argues that the SEC should be obligated to settle the charges against him under principles of New York contract law or promissory estoppel. Third, Thompson submits that the SEC has failed to allege securities laws violations against him as a matter of law.

         For the reasons set forth below, Thompson's motion for summary judgment (ECF No. 42) is DENIED.

         I. BACKGROUND[1]

         A. The Florida Action

         From 2009 to 2010, Thompson was the managing director of OTC Solutions LLC (“OTC Solutions”), a now-defunct Maryland company that published and disseminated newsletters touting penny stock companies. (See Plaintiff's Responses to Defendant Anthony J. Thompson's Local Rule 56.1 Statement of Undisputed Facts (“Pl.'s 56.1”, ECF No. 55) ¶¶ 1-2; see also Compl. ¶ 9.)

         On May 2, 2012, the SEC filed an enforcement action in the United States District Court for the Southern District of Florida against Recycle Tech., Inc. (“Recycle Tech.”), Kevin Sepe, Ronny J. Halperin, Ryan Gonzalez, Thompson, OTC Solutions, Pudong LLC (“Pudong”), Jay Fung and David Rees (the “Florida Action”). (Pl.'s 56.1 ¶ 9; see also S.E.C. v. Recycle Tech, Inc. et al., No. 12-cv-21656-JAL (S.D. Fl.), ECF No. 1.) The SEC filed an amended complaint on August 17, 2012 in which Sepe, Halperin and Rees were no longer named defendants. (Declaration of Peter Pizzani, dated October 20, 2016 (“Pizzani Decl.”, ECF No. 54), Ex. B (“Florida Compl.”).) The SEC alleged that, from January through March 2010, defendants- along with Sepe, Halperin and Rees-perpetrated a penny stock pump-and-dump scheme involving the stock of a single issuer, defendant Recycle Tech. (Pl.'s 56.1 ¶ 9; see also Florida Compl. ¶ 1.) The complaint portrays Sepe, Gonzalez and Halperin as the architects of the scheme. (See, e.g., Florida Compl. ¶¶ 1-2.) The SEC alleged that these three individuals set up a series of transactions through which their private sham company-developed for purposes of the scheme- acquired control of and merged into Recycle Tech, a publicly traded penny stock company. (Id. ¶¶ 22-52.). Sepe and Gonzalez then allegedly “pumped” Recycle Tech's stock by issuing false and misleading press releases on behalf of the company. (Id. ¶¶ 53-64.) The SEC alleged that Sepe enlisted Thompson to participate in the scheme by touting Recycle Tech stock in OTC Solution's newsletters. (Id. ¶¶ 65-68.) In exchange, Sepe allegedly arranged for Recycle Tech to issue Thompson 2.325 million shares of Recycle Tech stock. (Id.) The SEC further alleged that Thompson failed to adequately disclose his (and his companies') financial holdings in, and intent to sell, Recycle Tech stock. (Id.) The SEC made similar allegations against Fung, who also allegedly received 2.325 million shares of Recycle Tech stock for touting the company in Pudong's newsletters. (Id.)

         As a result of these allegations, the SEC claimed that Thompson violated Sections 5(a), 5(c), 17(a) and 17(b) of the Securities Act, as well as Section 10(b) of the Exchange Act and Rule 10b-5. (Id. ¶ 7.) By way of relief, the SEC sought a declaratory judgment that Thompson had violated these laws, a permanent injunction barring him from violating them in the future, disgorgement of ill-gotten gains, civil monetary penalties and a “penny stock bar” prohibiting him from participating in any offering of penny stock. (Id. at 26-28.)

         In July 2013, while the Florida Action was pending, the SEC's New York office began investigating Thompson, OTC Solutions, Fung and Pudong for conduct involving issuers other than Recycle Tech. (See Declaration of Brent Baker, dated August 15, 2016 (“Baker Decl.”, ECF No. 44), Ex. 12; see also Pl.'s 56.1 ¶ 13.) Some discovery in the Florida Action concerned these other issuers. (See Pl.'s 56.1 ¶¶ 10-12.) On October 7, 2013, for instance, the SEC served interrogatories requesting that Thompson and OTC Solutions identify all issuers that they promoted through email newsletters from January 1, 2009 through December 31, 2010. (Pl.'s 56.1 ¶ 10; Baker Decl., Exs. 7, 8.) Also on October 7, 2013, the SEC requested that Thompson and OTC Solutions produce all of their email newsletters from January 1, 2009 through December 31, 2010, and all email newsletters, regardless of time period, concerning the issuers Mass. Hysteria Entertainment Company, Inc. (“Mass Hysteria”), Blue Gem Enterprise, Inc. (“Blue Gem”) and Lyric Jeans, Inc. (“Lyric Jeans”). (Pl.'s 56.1 ¶ 11; Baker Decl., Exs. 9, 10.) In addition, during Thompson's deposition in the Florida Action, the SEC asked questions relating to Blast Applications Inc. (“Blast”), Smart Holdings, Inc. (“Smart Holdings”), Blue Gem and Lyric Jeans. (Pl.'s 56.1 ¶ 12; Baker Decl., Exs. 6, 11.)

         On October 31, 2013, the parties appeared at a discovery hearing before the Honorable John J. O'Sullivan to address whether the SEC's discovery requests about issuers other than Recycle Tech. were relevant to-and hence discoverable in-the Florida Action. (See Pl.'s 56.1 ¶ 14; Baker Decl., Exs. 14, 15.) Thompson and OTC Solutions argued that such discovery was inappropriate because it exceeded the scope of the Florida Action and overlapped with matters then under investigation by the SEC's New York office. (See Baker Decl, Ex. 14 at 53:8-16 (stating that “the SEC seems to want to expand the Recycle Tech case to include the same things that the New York office is currently investigating” and “the SEC trying to get information on two separate fronts is inappropriate.”); see also Pl.'s 56.1 ¶ 14.) The SEC argued that information about other issuers was necessary to establish that the defendants' securities violations were ongoing and continuing, a factor required for the injunctive relief sought in the Florida Action. (See Baker Decl., Ex. 14 at 54:21-55:5; see also id. at 56:11-57:12.) Judge O'Sullivan ruled in favor of the SEC. He found that the requested documents were “relevant to this lawsuit, even though they don't involve the exact claim in this lawsuit” and ordered their production. (Baker Decl., Ex. 14 at 57:13-22; see also id., Ex. 15 (written order following hearing stating “the documents discussed during the hearing regarding the New York SEC investigation are relevant and discoverable.”); Pl.'s 56.1 ¶ 16 (same).) He also ordered that Thompson and OTC Solutions respond to the SEC's interrogatories about issuers other than Recycle Tech. (Baker Decl., Ex. 15.)

         Thompson and OTC Solutions agreed with the SEC to settle the Florida Action in early 2014. (See Pl.'s 56.1 ¶ 20; see also Baker Decl., Exs. 21-24.) On February 14, 2014, the Court entered final judgment against Thompson, which effected the settlement terms (Baker Decl., Ex. 23) to which Thompson had consented (id., Ex. 21). (See also Pl.'s 56.1 ¶ 23.) Pursuant to that consent judgment, Thompson agreed to disgorge $349, 504.61 of ill-gotten gains resulting from the Recycle Tech scheme and $23, 735.15 in prejudgment interest, and to pay $120, 000 in civil monetary damages. (Baker Decl., Ex. 23 at 70-71; Pl.'s 56.1 ¶¶ 22-23.) The Court also entered a penny stock bar against Thompson (Baker Decl., Ex. 23 at 73) and enjoined him from violating Sections 5(a), 5(c) and 17(a) of the Securities Act, as well as Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder (id. at 68-70)-all of the laws he was charged with violating except Section 17(b) of the Securities Act. (See also Pl's. 56.1 ¶¶ 22-23.) In paragraph 8 of the consent to final judgment, Thompson represented that he entered into the consent voluntarily and that:

no threats, offers, promises, or inducements of any kind have been made by the Commission or any member, officer, employee, agent, or representative of the Commission to induce Thompson or anyone acting on his behalf to enter into this Consent.

(Baker Decl., Ex. 21 ¶ 8.) In paragraph 12 of the consent, Thompson further agreed that the consent judgment “resolves only the claims asserted against Thompson in this civil proceeding.” (Id. ¶ 12 (emphasis added).)[2]

         B. The New York Investigation

         As described above, in July 2013, while the Florida Action was pending, the SEC's New York office began investigating Thompson, OTC Solutions, Fung and Pudong for securities violations relating to penny stock issuers other than Recycle Tech, the subject issuer in the Florida Action. (See Baker Decl., Ex. 12; see also Pl.'s 56.1 ¶ 13.) Thompson's submissions in connection with the instant motion extensively set forth the details of the New York investigation and ensuing settlement negotiations that preceded the filing of this lawsuit. (See, e.g., Pl.'s 56.1 ¶¶ 24-44; ECF No. 43 at 21-26.) Virtually all of these facts are proffered in support of Thompson's breach of contract and promissory estoppel arguments. Given that this action is in the beginning stages, and that the Court finds summary judgment inappropriate on these bases at this time (and, as presented, the defenses raise triable issues in all events), the Court does not believe it necessary to wade into the particulars of these facts. For purposes of resolving this motion, the Court notes that, from December 2013 to August 2014, Thompson's counsel engaged in settlement discussions with various Division of Enforcement (“DOE”) attorneys that culminated in Thompson executing an Offer of Settlement and escrowing settlement funds pursuant to that document. (See, e.g., Pl.'s 56.1 ¶¶ 24-44; Baker Decl., Exs. 25-32.) The parties dispute whether the DOE attorneys had authority to bind the DOE to recommend the proposed settlement to the full Commission. Thompson submits that DOE attorneys represented that the proposed settlement would be recommended to the full Commission for approval, but that this never came to fruition. (See, e.g., Pl.'s 56.1 ¶¶ 34-44; ECF No. 43 at 23-26.) Both parties agree that, at some point during the negotiations, then-Director of the DOE, Andrew Ceresney, informed Thompson's counsel that any agreement by DOE staff would be final and binding only if approved by him personally, and that the DOE had no obligation to recommend the Offer of Settlement to the Commission because he had not approved it. (Pl.'s 56.1 ¶ 44.)

         C. The Instant Action

         On November 17, 2014, the SEC commenced the instant action against defendants Thompson, Fung and Van Nguyen and relief defendants Babikian and Thompson. (Id. ¶ 45; see also Compl.) The SEC's allegations revolve around five alleged “pump-and-dump”/“scalping” schemes carried out from November 2009 through September 2010 to inflate the price of penny stocks issued by five issuers: Blast, Smart Holdings, Blue Gem, Lyric Jeans and Mass. Hysteria. (See Compl. ¶ 1.) The complaint does not mention Recycle Tech, the issuer in the Florida Action, or Sepe, Gonzalez and Halperin, the organizers of the scheme alleged in that case.

         The SEC alleges, inter alia, that Thompson, acting through OTC Solutions and other entities he controlled, issued misleading newsletters that touted these stocks' value without disclosing that he had, and intended to sell, significant holdings thereof. (Id. ¶¶ 1-4.) Although many of the newsletters contained disclaimers listing that Thompson's entities owned a particular amount of stock in the touted companies, the SEC alleges that these amounts understated the true extent of Thompson's holdings. (E.g., ¶¶ 24, 44, 67, 82, 93.) The SEC makes similar allegations against Fung and Van Nguyen, who allegedly caused entities they controlled to issue similarly misleading newsletters. (Id. ¶¶ 1-4.)[3]

         As a result of this alleged conduct, the SEC claims that Thompson violated Sections 17(a) and 17(b) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. (Id. ¶¶ 100-10.) The SEC seeks a permanent injunction restraining Thompson from violating Section 17(b), and orders requiring him to provide sworn accountings of his profits and assets, to disgorge any ill-gotten gains arising from the five alleged schemes and to pay civil monetary penalties. (Id. at 27-29.)

         This action runs parallel to criminal proceedings instituted by the New York County District Attorney against Thompson and others in New York state court. (ECF No. 6; see also ECF No. 63 (letter dated February 14, 2017 noting that parallel criminal proceedings remain pending).) On January 23, 2015, upon hearing from the parties and the New York County District Attorney, the Court stayed this action for a period of one year, or resolution of the criminal proceeding, whichever occurred earlier. (ECF No. 22.) On January 28, 2016, the Court extended the stay by six months. (ECF No. 35.) On July 11, 2016, the Court extended the stay of discovery for a period of one year or resolution of the criminal proceeding, whichever is earlier, but otherwise lifted the stay. (ECF No. 39.)

         On August 15, 2016, Thompson filed the instant motion. (ECF No. 42.) Although Thompson styled it as a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), his supporting brief cited the evidentiary record. (See ECF No. 43; see also Baker Decl. (attaching 34 exhibits).) Accordingly, on August 30, 2016, the Court converted Thompson's motion to dismiss to a motion for summary judgment, provided Thompson with an opportunity to submit additional materials and extended the timeline for the SEC to oppose the motion. (ECF No. 47.) The motion came fully briefed on January 27, 2017. (ECF No. 58.)


         A. Summary Judgment

         Summary judgment may not be granted unless a movant shows, based on admissible evidence in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact”. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the ultimate burden on a particular claim or issue, it need only make a showing that the non-moving party lacks evidence from which a reasonable jury could find in the non-moving party's favor at trial. Id. at 322-23.

         In making a determination on summary judgment, the court must “construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor”. Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010) (citing LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005)). Once the moving party has discharged its burden, the opposing party must set out specific facts showing a genuine issue of material fact for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment, ” as “mere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist”. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks, citations and alterations omitted). In addition, “only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment”. Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013) (internal quotation marks, citation and alterations omitted).

         B. Motion to Dismiss

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the complaint must allege “‘enough facts to state a claim to relief that is plausible on its face.'” Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         In applying this standard, the Court accepts as true all well-pled factual allegations, but does not credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Id. (citing Twombly, 550 U.S. at 555). The Court will give “no effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555). A plaintiff may plead facts alleged upon information and belief “where the facts are peculiarly within the possession and control of the defendant.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citations omitted). But, if the Court can infer no more than the mere possibility of misconduct from the factual averments-in other words, if the well-pled allegations of the complaint have not “nudged [plaintiff's] claims across the line from conceivable to plausible”-dismissal is appropriate. Twombly, 550 U.S. at 570; see also Starr, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679).

         In deciding a motion to dismiss under Rule 12(b)(6), the Court may consider documents referenced in the complaint or relied upon in framing the complaint. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint, the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.”) (internal quotation marks, alteration and citation omitted).

         C. Res Judicata

         “‘Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014) (quoting St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000)). The doctrines applies to final judgments entered by courts and, in some instances, finalized settlements. Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968 F.2d 164, 168 (2d Cir. 1992).

         Res judicata is an affirmative defense. TechnoMarine SA, 758 F.3d at 499. To assert the defense, “a party must show that (1) the previous action involved [a final] adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Id. (quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000)) (alterations omitted). “The burden is on the party seeking to invoke res judicata to prove that the doctrine bars the second action.” Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir. 1997) (citation omitted).

         The third prong requires courts to assess the similarity of the claims asserted in the prior and instant actions. Courts must first assess whether “‘. . . the second suit involves the same ‘claim'-or ‘nucleus of operative fact'-as the first suit.'” Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (quoting Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997)). “Whether a claim that was not raised in the previous action could have been raised therein ‘depends in part on whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first.'” TechnoMarine SA, 758 F.3d at 499 (quoting Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992)); see also Interoceanica Corp., 107 F.3d at 90 (quoting Nat'l Labor Relations Bd. v. United Techs. Corp., 706 F.2d 1254, 1260 (2d Cir. 1983)). “To determine whether two actions arise from the same transaction or claim, we consider ‘whether the underlying facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'” TechnoMarine SA, 758 F.3d at 499 (quoting Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001)); see also Waldman, 207 F.3d at 108 (quoting Interoceanica Corp., 107 F.3d at 90). “[T]he fact that both suits involved essentially the same course of wrongful conduct is not decisive; nor is it dispositive that the two proceedings involved the same parties, similar or overlapping facts, and similar legal issues.” Interoceanica Corp., 107 F.3d at 91; S.E.C. v. First Jersey Sec., Inc., 101 F.3d 1450, 1463 (2d Cir. 1996) (internal citations omitted); see also Proctor v. LeClaire, 715 F.3d 402, 412 (2d Cir. 2013) (“The fact that several operative facts may be common to successive actions between the same parties does not mean that a judgment in the first will always preclude litigation of the second.”) (citing Interoceanica Corp., 107 F.3d at 91).

         D. Settlement Negotiations with the SEC

         Although courts ordinarily uphold settlements where the attorney had “apparent authority to settle . . ., and the opposing counsel has no reason to doubt that authority”, Fennell v. TLB Kent Co., 865 F.2d 498, 502 (2d Cir. 1989) (citing Int'l Telemeter Corp. v. Teleprompter Corp., 592 F.2d 49, 55 (2d Cir. 1979)), [4] the doctrine of apparent authority does not apply to government attorneys, see Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir. 1980) (“[I]t is axiomatic that the United States is not bound by the unauthorized acts of its agents.”); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947) (“[A]nyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.”); see also United States v. Zenith-Godley Co., 180 F.Supp. 611, 615-16 (S.D.N.Y. 1960), aff'd, 295 F.2d 634 (2d Cir. 1961) (citing Merrill, 332 U.S. at 384); Berns & Koppstein, Inc. v. Commodity Credit Corp., 271 F.Supp. 433, 436 (S.D.N.Y. 1967) (citing Zenith-Godley Co., 180 F.Supp. 611); Littlejohn v. Washington Metro. Area Transit Auth., No. 90-1724 (RCL), 1992 WL 122755, at *2 (D.D.C. May 28, 1992) (citing United States v. Dist. of Columbia, 669 F.2d 738, 748 n.13 (D.C. Cir. 1981)).

         Thus, agreements with the SEC, and indeed any governmental agency, are binding only if the staff attorneys that negotiated the agreement followed proper procedures, i.e., had actual authority to bind the government. The policies and procedures governing the SEC's Division of Enforcement are set forth in SEC regulations, 17 C.F.R. § 200 et seq., and an internal but publicly available manual entitled the SEC “Enforcement Manual”, see S.E.C. ...

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