NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES SECURITIES AND

EXCHANGE COMMISSION, 

Plaintiff-Appellee, 

 v. 

TROY LYNDON,

Defendant-Appellant.

No. 14-16733

D.C. No. CV13-00486 SOM-KSC

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Susan O. Mollway, District Judge, Presiding

Submitted March12, 2018**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

Plaintiff, the United States Securities and Exchange Commission (“SEC”), 

sued Defendant Troy Lyndon for violating the securities laws. Lyndon entered into 

a consent agreement with the SEC in which he neither admitted nor denied the 

SEC’s allegations. Per the agreement, the district court entered judgment against 

 

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 14 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Lyndon in November 2013, but it left for a later date the determination of the 

amount of disgorgement and civil penalties that Lyndon should pay in a final 

judgment. In August 2014, the district court ordered Lyndon to disgorge 

$3,251,169 in ill-gotten gains (plus prejudgment interest) and pay a $150,000 civil 

penalty. On appeal, Lyndon challenges the district court’s calculation of the 

disgorgement and penalty. He also argues that the district court erred in denying 

his discovery motions and his Rule 60(b)(1) motion for relief from the first 

judgment. We affirm.

1. The district court did not abuse its discretion in ordering Lyndon to 

disgorge $3,251,169 in ill-gotten gains. See SEC v. Platforms Wireless Intern. 

Corp., 617 F.3d 1072, 1096 (9th Cir. 2010) (“We review orders of disgorgement 

for an abuse of discretion.”). “A district court has broad equity powers to order the 

disgorgement of ill-gotten gains obtained through the violation of the securities 

laws. . . . The amount of disgorgement should include all gains flowing from the 

illegal activities. Disgorgement need be only a reasonable approximation of profits 

causally connected to the violation.” Id. Here, the district court relied on the 

allegations in the consent judgment—allegations that Lyndon agreed would be 

deemed as true for purposes of calculating the amount of disgorgement—to 

conclude that the SEC met its initial burden to demonstrate that the amount sought 

“reasonably approximates the amount of unjust enrichment.” This initial 
3 

determination shifted the burden to Lyndon to show that the amount sought was 

not a “reasonable approximation” of his illicit gains. Lyndon failed to satisfy this 

burden.

2. The district court’s decision to impose a $150,000 civil penalty was well 

within its discretion. Accepting the allegations in the complaint as true, the court 

found that, “[o]ver a lengthy period of time, Lyndon perpetrated a fraud that 

caused people . . . to invest about $4.6 million in a company that was not 

financially solvent. . . . The $150,000 amount represents a small fraction of the 

money involved in the fraudulent scheme.” Given that finding, a $150,000 penalty 

was within the court’s discretion. See 15 U.S.C. § 78u(d)(3)(B)(iii) (allowing for a 

penalty that “shall not exceed the greater of” a $150,000-per-violation cap or “the 

gross amount of pecuniary gain . . . result[ing] [from] the violation”).

3. Any error in the district court’s discovery rulings could not have 

prejudiced Lyndon, because the district court relied on facts admitted to be true in 

the consent judgment to determine the amount of disgorgement. See Hallett v. 

Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (stating that a district court’s “decision 

to deny discovery will not be disturbed except upon the clearest showing that 

denial of discovery results in actual and substantial prejudice to the complaining 

litigant” (quotation, citation, and alteration omitted)).

4. We construe Lyndon’s challenge to the first judgment as an appeal of the 
4 

district court’s denial of his Rule 60(b) motion for relief from that judgment.

1

Reviewing for abuse of discretion, Latshaw v. Trainer Wortham & Co., Inc., 452 

F.3d 1097, 1100 (9th Cir. 2006), we conclude that the district court did not abuse 

its discretion in rejecting Lyndon’s unconvincing argument that he did not 

understand the meaning of the consent agreement when he signed it. Moreover, 

even if Lyndon was mistaken about the legal effect of the consent agreement, his 

“mistake” was not of the type that would entitle him to relief under Rule 60(b)(1). 

See id. at 1101 (“For purposes of subsection (b)(1), parties should be bound by and 

accountable for the deliberate actions of themselves and their chosen counsel.”).

Lyndon’s new argument—essentially, that he should be released from the consent 

agreement because of the SEC’s alleged discovery abuses—is unpersuasive, 

because it relies on the erroneous premise that the discovery Lyndon sought was 

highly relevant to the district court’s calculation of the disgorgement and penalty.2

AFFIRMED.

 

1 To the extent that Lyndon directly challenges the first judgment, that 

challenge is foreclosed by the appeal waiver in the consent agreement.

2 Lyndon also argues that the district court erred when it declined to indicate 

that it would entertain a new Rule 60(b) motion were this case remanded for such a 

purpose. We lack jurisdiction to review that order. Davis v. Yageo Corp., 481 F.3d 

661, 685 (9th Cir. 2007).