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# Other

# SEC v. Macquarie Capital (USA) Inc., et al. Case No. 1:15-cv-02304-DLC (S.D.N.Y.)

                            Oct. 14, 2022                       

On March 27, 2015, the SEC filed a complaint against Macquarie Capital (USA), Inc. (“Macquarie”), Aaron Black (“Black”), and William Fang (“Fang”). The complaint charged Macquarie, a brokerage firm, with underwriting a public offering by Puda Coal, Inc. (“Puda”) despite having obtained a due diligence report that indicated that the offering materials contained false information. The complaint also charged former Macquarie’s managing director, Black, and former investment banker, Fang, for failure to exercise appropriate care in their due diligence review. The complaint alleged Macquarie made a net profit of $4,170,000.00 as lead underwriter on the Puda offering, which closed in December 2010. See Complaint.

On March 31, 2015, pursuant to his consent and without admitting or denying the allegations against him, the Court entered a final judgment as to Black. The final judgment permanently enjoined Black from violating Sections 17(a)(2) and 17(a)(3) of the Securities Act of 1933 (“Securities Act”), and required him to pay a total of $210,711.99 comprised of $97,500.00 in disgorgement, $13,211.00 in prejudgment interest, and a $100,000.00 civil penalty. The final judgment ordered for all monies paid by Black to be transferred to the U.S. Treasury. See Black’s Final Judgment.

Also, on March 31, 2015, pursuant to his consent and without admitting or denying allegations against him, the Court entered a final judgment as to Fang. The final judgment permanently enjoined Fang from violating Sections 17(a)(2) and 17(a)(3) of the Securities Act, and required him to pay a civil penalty in the amount of $35,000.00, which was ordered to be transferred to the U.S. Treasury. See Fang’s Final Judgment.

Also, on March 31, 2015, pursuant to its consent and without admitting or denying the allegations against it, the Court entered a final judgment as to Macquarie. The final judgment permanently enjoined Macquarie from violating Sections 17(a)(2) and 17 (a)(3) of the Securities Act, and required it to pay a total of $15,000,000.00 comprised of $10,728,525.00 in disgorgement, $1,271,475.00 in prejudgment interest, and a $3,000,000.00 civil penalty. The final judgment also ordered Macquarie to pay all costs associated with the administration of any plan approved by the Court for the distribution of monies received to be returned to injured investors, including but not limited to any tax liability, and all fees and expenses of any Court-appointed fund administrator, Court-appointment tax administrator, and/or experts retained. Macquarie paid a total of $15,000,000.00, as ordered, to the SEC. See Macquarie’s Final Judgment.

On August 12, 2015, the Court established a Fair Fund for the funds deposited with the SEC (“Fair Fund”), and appointed Damasco & Associates LLP as the Tax Administrator to fulfill the tax obligations of the Fair Fund. See Order to Establish a Fair Fund For Harmed Investors and Appoint a Tax Administrator.

On October 20, 2015, the Court appointed Epiq Class Action & Claims Solutions, Inc. as the Distribution Agent to oversee the distribution of the Fair Fund to injured investors. See Order to Appoint a Distribution Agent.

On January 29, 2016, the SEC filed a motion to approve a joint notice and distribution plan, together with the distribution plan (“Distribution Plan”). The joint notice sought to have a joint notice and claims administration with a related class action, In re Puda Coal Securities, Inc., et al., Case No. 11-cv-2598-DLC (“Class Action”). See Motion to Approve a Joint Notice. See also Distribution Plan.

On February 19, 2016, the Court approved the Distribution Plan. See Order Approving Distribution Plan. The Court also entered an order approving a revised joint claim notice with the claim forms attached. See the Court’s Order and Revised Claim Forms.

The distribution of the Fair Fund shall be made to Eligible Claimants as provided under the terms of the Distribution Plan. An Eligible Claimant’s Total Eligible Loss Amount, as determined in accordance with the Plan of Allocation contained in Exhibit A to the Distribution Plan, will determine the amount of the distribution payment.

On May 3, 2017, the Commission filed a motion for an order to transfer funds for distribution.  See the Commission’s Motion. On May 4, 2017, the Court entered an order directing the Commission to disburse $4,371,360.77 from the Fair Fund to the Distribution Agent for distribution to Eligible Claimants in accordance with the Distribution Plan. See the Court’s Order

For more information, please contact the Distribution Agent:

Epiq Class Action & Claims Solutions, Inc.Stevie Thurin, Project Management ProfessionalTelephone Number: (877) 276-7324Email: info@pudacoalfund.comWebsite: Distribution Agent’s - www.epiqsystems.com; Fair Fund’s – www.pudacoalfund.com

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