throbber
Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 1 of 10
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF PENNSYLVANIA
`
`SECURITIES AND EXCHANGE
`COMMISSION,
`
`Plaintiff,
`
`v.
`
` No. 1: 20-cv-00154-SPB
`
`HVIZDZAK CAPITAL
`MANAGEMENT, LLC; HIGH
`STREET CAPITAL LLC; HIGH
`STREET CAPITAL PARTNERS,
`LLC; SHANE HVIZDZAK; and
`SEAN HVIZDZAK,
`
`Defendants.
`
`ORDER GRANTING TEMPORARY
`RESTRAINING ORDER AND OTHER EMERGENCY RELIEF
`
`
`
`This cause comes before the Court upon Plaintiff Securities and Exchange Commission’s
`
`(“Commission”) emergency ex parte Motion for the following orders with respect to Defendants
`
`Hvizdzak Capital Management, LLC (“HCM”); High Street Capital LLC (“HSC”); High Street
`
`Capital Partners LLC (“HSCP”), Shane Hvizdzak (“Shane”), and Sean Hvizdzak (“Sean;”
`
`collectively, “Defendants”):
`
`1. a Temporary Restraining Order;
`
`2. an Order Freezing the Assets of Defendants;
`
`3. an Order Requiring Sworn Accountings;
`
`4. an Order Prohibiting Destruction of Documents;
`
`5. an Order Requiring the Repatriation of Assets;
`
`6. an Order Expediting Discovery; and
`
`7. an Order to Show Cause Why a Preliminary Injunction Should Not be Granted.
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 2 of 10
`
`The Court has considered the Commission’s Complaint, its ex parte Motion for a
`
`Temporary Restraining Order and Other Relief and Memorandum of Law in Support thereof, and
`
`the declarations and exhibits filed in support of the Commission’s motion.
`
`Based on the foregoing, the Court finds that:
`
`(i)
`
`this Court has jurisdiction over the subject matter of this action, over Defendants,
`
`and venue lies in this District;
`
`(ii)
`
`the Commission has made a proper showing in support of the relief granted
`
`herein, as required by Section 20(b) of the Securities Act of 1933 (“Securities
`
`Act”), 15 U.S.C. § 77t(b), and Section 21(d) of the Exchange Act of 1934
`
`(“Exchange Act”), 15 U.S.C. § 78u(d), with evidence demonstrating a likelihood
`
`that the Commission will prove at trial that Defendants violated the Federal
`
`securities laws alleged in the Complaint, and, unless enjoined by order of this
`
`Court, Defendants would continue their unlawful conduct; and
`
`(iii)
`
`unless restrained and enjoined by this Court, Defendants may further dissipate,
`
`conceal, or transfer from the jurisdiction of this Court assets that could be subject
`
`to an order of disgorgement or an order to pay civil penalties in this action; and
`
`(iv)
`
`the Commission has demonstrated sufficient reason why a procedure other than
`
`by notice of motion is necessary. Defendants have recently dissipated assets, and
`
`it is appropriate for this Court to issue this Order ex parte so that prompt service
`
`on appropriate financial institutions can be made, thus preventing further
`
`dissipation of assets.
`
`Accordingly, the Motion is GRANTED, and the Court hereby orders as follows:
`
`
`
`- 2 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 3 of 10
`
`I.
`
`
`
`
`
`
`
`
`
` SHOW CAUSE HEARING IT IS HEREBY ORDERED that Defendants show cause, if any, before the undersigned, at 11 o(cid:213)clock a.m., on the 30th day of June, 2020, by Zoom Government hearing, to be facilitated by the Court through procedures given to the parties or their counsel after contacting Chambers at (814) 464-9630, why a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure should not be granted against Defendants, as requested by the Commission.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`II.
`
`TEMPORARY RESTRAINING ORDER
`
`IT IS FURTHER ORDERED that, pending determination of the Commission’s request
`
`for a Preliminary Injunction, Defendants, and their respective directors, officers, agents, servants,
`
`employees, attorneys, representatives and those persons in active concert or participation with
`
`them, who receive actual notice of this Order, by personal service or otherwise, are hereby
`
`temporarily restrained and enjoined from violating:
`
`A.
`
`Section 17(a) of the Securities Act
`
`directly or indirectly, in the offer or sale of any securities, by the use of any means or
`instruments of transportation or communication in interstate commerce or by the use of the mails,
`(a)
`employing any device, scheme or artifice to defraud;
`(b)
`obtaining money or property by means of any untrue statement of a material fact or
`any omission to state a material fact necessary in order to make the statements
`made, in light of the circumstances under which they were made, not misleading;
`or
`
`- 3 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 4 of 10
`
`(c).
`
`engaging in any transaction, practice, or course of business which operates or would
`operate as a fraud or deceit upon the purchaser;
`in violation of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a); and
`
`
`B.
`
`Section 10(b) of the Exchange Act and Rule 10b-5 Thereunder
`
`directly or indirectly, in connection with the purchase or sale of any security, by the use of
`
`any means or instrumentality of interstate commerce, or of the mails, or of any facility of any
`
`national securities exchange,
`
`(a)
`
`(b)
`
`employing any device, scheme or artifice to defraud;
`
`making any untrue statement of a material fact or omitting 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)
`
`engaging in any act, practice, or course of business which operates or would operate
`
`as a fraud or deceit upon any person;
`
`in violation of Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder,
`
`17 C.F.R. § 240.10b-5.
`
`III.
`
`ASSET FREEZE
`
`IT IS FURTHER ORDERED that, pending determination of the Commission’s request
`
`for a Preliminary Injunction:
`
`A.
`
`Defendants and their agents, servants, employees, attorneys in-fact, and those
`
`persons in active concert or participation with them who receive actual notice of this Order by
`
`personal service or otherwise, and each of them, shall hold and retain within their control, and
`
`otherwise prevent any disposition, transfer, pledge, encumbrance, assignment, dissipation,
`
`- 4 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 5 of 10
`
`concealment, or other disposal (except to the extent this Order requires any transfer to repatriate
`
`assets to the United States) whatsoever of any of their funds or other assets or things of value
`
`presently held by them, under their control, or over which they exercise actual or apparent
`
`investment or other authority, including, but not limited to, accounts over which any Defendant
`
`has signatory authority, in whatever form such assets may presently exist and wherever located;
`
`and
`
`B.
`
`Any financial or brokerage institution or other person or entity holding any such
`
`funds or other assets, in the name, for the benefit or under the control of Defendants, directly or
`
`indirectly, including, but not limited to, accounts over which any Defendant has signatory
`
`authority, held jointly or singly, and wherever located, and which receives actual notice of this
`
`order by personal service, mail, email, facsimile, or otherwise, shall hold and retain within its
`
`control and prohibit the withdrawal, removal, transfer, disposition, pledge, encumbrance,
`
`assignment, set off, sale, liquidation, dissipation, concealment, or other disposal of any such
`
`funds or other assets (except to the extent this Order requires any transfer to repatriate assets to
`
`the United States), including, but not limited to, the following presently known bank and digital
`
`asset trading platform and custodial accounts:
`
`
`
`
`
`- 5 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 6 of 10
`
`Financial Institution
`
`Northwest Bank
`
`Northwest Bank
`
`Account Name
`
`Shane Hvizdzak
`
`Sean Hvizdzak
`
`Northwest Bank
`
`Very Helpful LLC
`
`Northwest Bank
`
`561HS LLC
`
`Northwest Bank
`
`BH Adventures LLC
`
`Signature Bank
`
`High Street Capital Fund USA, LP
`
`Signature Bank
`
`High Street Capital Fund USA, LP
`
`Signature Bank
`
`High Street Capital LLC
`
`Signature Bank
`
`High Street Capital Partners LLC
`
`Gemini Trust Company LLC
`
`Shane Hvizdzak
`
`Gemini Trust Company LLC
`
`Sean Hvizdzak
`
`Gemini Trust Company LLC High Street Capital Fund USA, LP
`
`Account Ending
`
`x0798
`
`x0632
`
`x8650
`
`x8643
`
`x8817
`
`x1705
`
`x1713
`
`x1683
`
`x1691
`
`x6804
`
`x4146
`
`x3034
`
`Bittrex, Inc.
`
`Bittrex, Inc.
`
`Bittrex, Inc.
`
`Shane Hvizdzak
`
`Shane Hvizdzak
`
`@gmail.com
`
`@gmail.com
`
`Sean Hvizdzak
`
`@highstreet.capital
`
`
`
`
`
`
`
`
`
`
`
`- 6 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 7 of 10
`
`IV.
`
`SWORN ACCOUNTINGS
`
`IT IS FURTHER ORDERED that within five calendar days of the issuance of this
`
`Order, or within such extension of time as the Commission agrees to in writing, each Defendant
`
`shall serve upon the Commission a verified written accounting, which Defendant must sign
`
`under penalty of perjury, providing the following information:
`
` (a)
`
`Each account with any financial institution, bank, digital asset exchanges, or
`
`brokerage firm maintained in Defendant’s name, held for Defendant’s direct or indirect
`
`beneficial interest, or over which Defendant exercised any direct or indirect control from January
`
`1, 2017, through the date of the accounting, including the name of the financial institution and
`
`name and last four digits of the account number;
`
`(b)
`
`All assets, funds, digital assets, or other properties, whether real or personal that is
`
`valued greater than $5,000, currently held by the Defendant, jointly or individually, for his direct
`
`or indirect beneficial interest, or over which he maintains control, wherever situated, and
`
`identifying the location, value, and disposition of each such asset, fund, and other property; and
`
`
`
`(c)
`
`All assets, funds, digital assets, securities, real, or personal property of Defendants
`
`that is valued greater than $5,000 that was transferred to or for the benefit of any other person or
`
`entity from January 1, 2017, to the date of the accounting, including a description of each
`
`transferred asset, the name of the recipient, the date of the transfer, and the reason for the
`
`transfer.
`
`(d) A list of all investors or limited partners in any partnership or other pooled
`
`investment vehicle that Defendant owns, controls, is a general partner of, or serves as an
`
`investment advisor to, including, but not limited to, High Street Capital Fund USA, LP.
`
`- 7 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 8 of 10
`
`V.
`
`RECORDS PRESERVATION
`
`IT IS FURTHER ORDERED that, pending determination of the Commission’s request
`
`for a Preliminary Injunction, Defendants, their directors, officers, agents, servants, employees,
`
`attorneys, depositories, banks, and those persons in active concert or participation with any one
`
`or more of them, and each of them, be and they hereby are restrained and enjoined from, directly
`
`or indirectly, destroying, mutilating, concealing, altering, disposing of, or otherwise rendering
`
`illegible in any manner, any of the books, records, documents, correspondence, brochures,
`
`manuals, papers, ledgers, accounts, statements, obligations, files and other property of or
`
`pertaining to Defendants, wherever located and in whatever form, electronic or otherwise, until
`
`further Order of this Court.
`
`VI.
`
`ASSET REPATRIATION
`
`IT IS HEREBY FURTHER ORDERED that, within 72 hours of notice of the entry of
`
`this Order, each Defendant shall repatriate all assets obtained from the activities described in the
`
`Commission’s Complaint that are now located outside the territorial limits of the United States,
`
`and that each Defendant direct the return of such assets to the Registry of this Court, pending
`
`conclusion of this matter.
`
`- 8 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 9 of 10
`
`VII.
`
`EXPEDITED DISCOVERY
`
`IT IS FURTHER ORDERED that:
`
` (a)
`
`Immediately upon entry of this Order, and while the Commission’s request for a
`
`Preliminary Injunction is pending, the parties may take depositions upon oral examination of
`
`parties and non-parties subject to three days’ notice. Should any Defendant fail to appear for a
`
`properly noticed deposition, that party may be prohibited from introducing evidence at the
`
`hearing on the Commission’s request for a preliminary injunction;
`
`(b)
`
`Immediately upon entry of this Order, and while the Commission’s request for a
`
`Preliminary Injunction is pending, the parties shall be entitled to serve interrogatories, requests
`
`for the production of documents and requests for admissions. The parties shall respond to such
`
`discovery requests within three days of service;
`
`(c)
`
`Immediately upon entry of this Order, and while the Commission’s request for a
`
`Preliminary Injunction is pending, the parties may issue subpoenas for documents, things and
`
`electronically stored information to non-parties pursuant to Fed. R. Civ. P. 45, with responses
`
`due within five days of the date of service;
`
`(d)
`
`All responses to the Commission’s discovery requests shall be delivered to the
`
`SEC’s counsel of record, Jim Smith and Matthew Scarlato, by the most expeditious means
`
`available; and
`
`(e)
`
`Service of discovery requests shall be sufficient if made upon the parties by email,
`
`facsimile or overnight courier, and depositions may be taken by telephone or other remote
`
`electronic means.
`
`
`
`- 9 -
`
`

`

`Case 1:20-cv-00154-SPB Document 8 Filed 06/16/20 Page 10 of 10
`
`VIII.
`
`RETENTION OF JURISDICTION
`
`
`
`IT IS HEREBY FURTHER ORDERED that this Court shall retain jurisdiction over
`
`this matter and Defendants in order to implement and carry out the terms of all Orders and
`
`Decrees that may be entered and/or to entertain any suitable application or motion for additional
`
`relief within the jurisdiction of this Court, and will order other relief that this Court deems
`
`appropriate under the circumstances.
`
`
`
`
`
`
`
`
`DONE AND ORDERED this 16th day of June, 2020.
`
`
`
`
`
`
`
`______________________________________ Susan Paradise Baxter UNITED STATES DISTRICT JUDGE
`
`
`
`
`
`
`
`- 10 -
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket