LOUISIANA COMPANIES CITED FOR EXPOSING WORKERS TO HAZARDS

FROM:  U.S. DEPARTMENT OF LABOR

US Labor Department's OSHA fines Dis–Tran Steel and Dis–Tran Wood

Products of Pineville, La., for exposing workers to safety and health hazards

PINEVILLE, La. – The U.S. Department of Labor's Occupational Safety and Health Administration has cited Dis–Tran Steel LLC and Dis–Tran Wood Products Holdings LLC, two subsidiaries of Pineville-based Crest Industries Inc., with a total of 14 safety and health violations for exposing workers to combustible dust, electrical, welding and other hazards. Proposed penalties for both companies total $72,000.

OSHA opened an inspection on Oct. 18, 2011, at the companies' shared facility on Cenla Drive in Pineville as part of the agency's Site-Specific Targeting Program, as well as its national emphasis programs on amputations, primary metals, hexavalent chromium and combustible dust.

Dis–Tran Steel, which employs about 295 workers who manufacture steel utility poles, was cited for six serious violations including a lack of required machine guarding, strain relief on the cords of electric hand controls and screens to protect workers from rays produced by welding operations in adjacent areas. One other-than-serious violation is failing to ensure electrical cords are equipped with ground pins.

Dis–Tran Wood Products, which employs about 10 workers who manufacture wood cross arms for utility poles, was cited for five serious violations, including failing to provide dust-tight electrical enclosures to prevent wood dust explosions, provide access to an emergency eyewash station and ensure that the live parts of an appliance are enclosed. Two other-than-serious violations are failing to provide guardrails on fixed stairs and properly maintain exposed electrical wiring.

A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. An other-than-serious violation is one that has a direct relationship to job safety and health but probably would not cause death or serious physical harm.

"Employees were exposed to welding rays, which can cause serious eye injuries," said Dorinda Folse, OSHA's area director in Baton Rouge. "OSHA's standards must be followed to prevent injuries and illnesses. Fortunately, no one was injured in this case."

Both companies have 15 business days from receipt of the citations to comply, request an informal conference with OSHA's area director in Baton Rouge, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

GMB Capital Management LLC (currently known as “Clearstream Investments LLC”), GMB Capital Partners LLC, Gabriel Bitran and Marco Bitran

GMB Capital Management LLC (currently known as “Clearstream Investments LLC”), GMB Capital Partners LLC, Gabriel Bitran and Marco Bitran

UNLAWFUL PROMOTION OF VIOXX LANDS PHARMA COMPANY WITH $322 MILLION FINE

FROM:  U.S. DEPARTMENT OF JUSTICE
Thursday, April 19, 2012
U.S. Pharmaceutical Company Merck Sharp & Dohme Sentenced in Connection with Unlawful Promotion of  Vioxx.  Judge Imposes Nearly $322 Million Fine For Illegal Marketing
American pharmaceutical company Merck, Sharp & Dohme was sentenced by U.S. District Court Judge Patti B. Saris in Boston to pay a criminal fine in the amount of $321,636,000 in connection with its guilty plea related to its promotion and marketing of the painkiller Vioxx (rofecoxib), the Justice Department announced today.   In December 2011, Merck pleaded guilty to violating the Food, Drug and Cosmetic Act (FDCA) for introducing a misbranded drug, Vioxx, into interstate commerce.

Merck’s guilty plea was part of a global resolution involving its illegal promotional activity.   In November 2011, Merck entered into a civil settlement agreement under which it will pay $628,364,000 to resolve additional allegations regarding off-label marketing of Vioxx and false statements about the drug’s cardiovascular safety.  Of the total civil settlement, $426,389,000 will be recovered by the United States, and the remaining share of $201,975,000 will be distributed to the participating Medicaid states.   The settlement and today’s sentencing conclude a long-running investigation of Merck’s promotion of Vioxx, which was withdrawn from the marketplace in September 2004.

Merck’s criminal plea related to the misbranding of Vioxx by promoting the drug for treating rheumatoid arthritis, before that use was approved by the Food and Drug Administration (FDA).  Under the provisions of the FDCA, a company is required to specify the intended uses of a product in its new drug application to FDA.   Once approved, the drug may not be marketed or promoted for so-called “off-label” uses – any use not specified in an application and approved by FDA – unless the company applies to the FDA for approval of the additional use.   The FDA approved Vioxx for three indications in May 1999, but did not approve its use for rheumatoid arthritis until April 2002.   In the interim, for nearly three years, Merck promoted Vioxx for rheumatoid arthritis, conduct for which it was admonished in an FDA warning letter issued in September 2001.        

At today’s sentencing, Judge Saris said in substance that off label promotion has been a big problem, she has seen a barrage of off-label marketing cases, and that she hoped that the size of today’s settlement and the fact that the government continues to press these cases will send a signal to the industry that this is not acceptable conduct.

The parallel civil settlement covered a broader range of allegedly illegal conduct by Merck.   The settlement resolved allegations that Merck representatives   made inaccurate, unsupported, or misleading statements about Vioxx’s cardiovascular safety in order to increase sales of the drug, resulting in payments by the federal government.   It also resolved allegations that Merck made false statements to state Medicaid agencies about the cardiovascular safety of Vioxx, and that those agencies relied on Merck’s false claims in making payment decisions about the drug.  Finally, like the criminal plea, the civil settlement also recovered damages for allegedly false claims caused by Merck’s unlawful promotion of Vioxx for rheumatoid arthritis.

"The United States will not tolerate unlawful conduct by pharmaceutical companies," said Stuart F. Delery, Acting Assistant Attorney General for the Justice Department's Civil Division.   "As the court's sentence makes clear, those who put profits before patient safety by promoting their products for unapproved uses will be prosecuted and held accountable."

“We are pleased to see this case brought to a conclusion with the recovery of over three hundred million dollars in criminal fines, and a total of almost a billion dollars in combined civil and criminal penalties.  The severity of these criminal and civil sanctions should serve as a reminder of this Office, and this department’s unwavering commitment to holding drug companies fully accountable for failures to comply with their public safety and marketing obligations, and to recovering taxpayer funds that have gone towards the purchase of illegally marketed products,” announced Carmen M. Ortiz, U.S. Attorney for the District of Massachusetts. “Any marketing activity that ignores the importance of FDA approval, or that makes unsupported safety claims about a drug is unacceptable, and will be pursued vigorously in both the criminal and civil arena.”
                     
As part of the settlement, Merck also agreed to enter into an expansive corporate integrity agreement with the Office of Inspector General of the Department of Health and
Human Services (HHS-OIG), which will strengthen the system of reviews and oversight procedures imposed on the company.   Although Vioxx is no longer on the market, this ongoing monitoring of Merck’s conduct is aimed to deter and detect similar conduct in the future.

“If all pharmaceutical manufacturers complied with the law, there would be no need for law enforcement actions,” said Susan Waddell, Special Agent in Charge for the Office of Inspector General of the U.S. Department of Health and Human Services. “But until they stop abusing the health care system and putting profits ahead of patient safety, OIG will continue to vigorously pursue corporations that flout the law.”

“Today’s announcement demonstrates the commitment of FDA's Office of Criminal Investigations to pursue investigations of companies that disregard their regulatory obligations and place profits over the public’s health,” said Mark Dragonetti, Special Agent in Charge for the New York Field Office. “We commend the hard work of the U.S. Attorney's Office and our law enforcement counterparts in bringing about this result.”
“In 2004, the FBI began participating in a seven year investigation that led to Merck's decision to plead guilty to a criminal violation of federal law related to its promotion and marketing of Vioxx and to pay nearly a billion dollars in a criminal fine and civil damages,” said Richard DesLauriers, Special Agent in Charge of the FBI in Boston. “Merck now knows that no corporation is immune from being held accountable for criminal and civil violations of law and also knows why the FBI, its federal law enforcement partners, and the U.S. Attorney's Office have earned a national reputation for leading the government’s effort to detect, deter and prevent health care fraud.”

This case was handled by the Justice Department’s Civil Division and the U.S. Attorney’s Office for the District of Massachusetts.   The investigation was conducted by Office of Inspector General of the Deapartment of Health and Human Services, the FBI, the Office of Criminal Investigations for the FDA, the Veterans Administration’s Office of Criminal Investigations, the Office of the Inspector General for the Office of Personnel Management, the National Association of Medicaid Fraud Control Units, and the offices of various state attorneys general.

SEC ACCUSES OPTIONSXPRESS WITH USING SHAM RESET TRANSACTIONS

 FROM:  SECURITIES AND EXCHANGE COMMISSION
Washington, D.C., April 16, 2012 – The Securities and Exchange Commission today charged an online brokerage and clearing agency specializing in options and futures as well as four officials at the firm and a customer involved in an abusive naked short selling scheme.

The SEC’s Division of Enforcement alleges that Chicago-based optionsXpress failed to satisfy its close-out obligations under Regulation SHO by repeatedly engaging in a series of sham “reset” transactions designed to give the illusion that the firm had purchased securities of like kind and quantity. The firm and customer Jonathan I. Feldman engaged in these sham reset transactions in a number of securities, resulting in continuous failures to deliver. Regulation SHO requires the delivery of equity securities to a registered clearing agency when delivery is due, generally three days after the trade date (T+3). If no delivery is made by that time, the firm must purchase or borrow the securities to close out the failure-to-deliver position by no later than the beginning of regular trading hours on the next day (T+4).

The former chief financial officer at optionsXpress – Thomas E. Stern of Chicago – was named in the SEC’s administrative proceeding along with optionsXpress and Feldman. Three other optionsXpress officials – head of trading and customer service Peter J. Bottini and compliance officers Phillip J. Hoeh and Kevin E. Strine – were named in a separate administrative proceeding and settled the charges against them for their roles in the scheme.

“OptionsXpress used sham reset transactions to avoid, sometimes for months, its obligation to comply with Reg. SHO’s stock delivery requirements,” said Robert Khuzami, Director of the Division of Enforcement. “Illegally extending its naked short positions put optionsXpress in plain violation of the law and undermined Reg. SHO’s intent to reduce fails to deliver.”

Daniel M. Hawke, Chief of the Division of Enforcement’s Market Abuse Unit, added, “Reg. SHO compliance continues to be a high enforcement priority. Broker-dealers, their employees, and their customers must ensure that they comply with the close-out requirements of the short sale rules and regulations.”
According to the SEC’s order, the misconduct occurred from at least October 2008 to March 2010. In September 2011, optionsXpress became a wholly-owned subsidiary of The Charles Schwab Corporation.

The SEC’s Enforcement Division alleges that the sham reset transactions impacted the market for the issuers. For example, from Jan. 1, 2010 to Jan. 31, 2010, optionsXpress customers including Feldman accounted for an average of 47.9 percent of the daily trading volume in one of the securities. In 2009 alone, the optionsXpress customer accounts engaging in the activity purchased approximately $5.7 billion worth of securities and sold short approximately $4 billion of options. In 2009, Feldman himself purchased at least $2.9 billion of securities and sold short at least $1.7 billion of options through his account at optionsXpress.

According to the SEC’s order, by engaging in the alleged misconduct, optionsXpress violated Rules 204 and 204T of Regulation SHO; Feldman willfully violated Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rules 10b-5 and 10b-21 thereunder; optionsXpress and Stern caused and willfully aided and abetted Feldman’s violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rules 10b-5 and 10b-21 thereunder; and Stern caused and willfully aided and abetted optionsXpress’s violations of Rules 204 and 204T.

In the separate settled administrative proceeding, Bottini, Hoeh, and Strine consented to a cease-and-desist order finding that they caused optionsXpress’s violations of Rules 204 and 204T of Regulation SHO and ordering them to cease-and-desist from committing or causing violations of Rule 204. They neither admitted nor denied the SEC’s findings.

The SEC’s investigation was conducted by Deborah Tarasevich, Jill Henderson, and Paul Kim. Market Surveillance Specialist Brian Shute, Market Abuse Unit Trading Specialist Ainsley Fuhr, and Financial Economist Michael P. Barnes provided assistance with the investigation. The litigation will be led by Frederick Block.

DEFAULT JUDGMENT ENTERED AGAINST OWNER AND COMPANY IN TRADING FRAUD CASE

FROM:  SEC
April 11, 2012
Securities and Exchange Commission v. Spyglass Equity Systems, Inc., et al,.
The U.S. Securities and Exchange Commission announced that on April 6, 2012, the United States District Court for the Central District of California entered a Final Judgment against David E. Howard II, Flatiron Capital Partners, LLC (FCP), and Flatiron Systems, LLC (FS). Between December 2007 and March 2009, FCP and FS operated as investment companies that purported to trade securities using an automated trading system. Howard, a resident of New York City, was a co-managing member of FCP and the sole managing member of FS. The Commission’s complaint alleged, among other things, that, between December 2007 and January 2009, approximately 192 investors, located in at least 38 states, purchased LLC membership interests in FCP and FS. Investors were persuaded through false and misleading statements made by Howard and others to invest approximately $2.15 million in FCP and FS, and in addition, paid approximately $1.1 million in purported license fees for access to the trading systems. Thereafter, Howard misused and/or misappropriated almost $500,000 of the investor money and he and other principals lost the majority of the remaining funds through unsuccessful trading. Investors lost over $3 million in the scheme.

Howard, FCP and FS did not respond to the SEC’s allegations and the court therefore ordered default judgment against them. Howard, FCP and FS have each been enjoined from committing future violations of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. In addition, Howard has been enjoined from future violations of Sections 206(1), 206(2), 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-8 thereunder, and FCP and FS have each been enjoined from future violations of Section 7(1) of the Investment Company Act of 1940. The Judgment also found Howard and FCP jointly and severally liable to pay disgorgement of $487,028 plus prejudgment interest of $79,838.69 on that disgorgement for a total of $566,866.69 and Howard and FS jointly and severally liable to pay disgorgement of $1,124,218.95 plus prejudgment interest of $127,192.86 on that disgorgement for a total of $1,251,411.81. Finally, Howard was ordered to pay a penalty of $390,000.

MORGAN KEEGAN AGREE TO PAY INTO PENSION PLANS TO SETTLE ALLEGED PENSION RULE VIOLATIONS

FROM:  U.S. DEPARTMENT OF LABOR
Memphis, Tenn.-based Morgan Keegan agrees to pay more than $630,000 to benefit plans after US Department of Labor finds pension rule violations
Brokerage allegedly received incentives to steer clients to investments
MEMPHIS, Tenn. — Morgan Keegan and Co. Inc. has agreed to pay $633,715.46 to 10 pension plans covered by the Employee Retirement Income Security Act. This agreement follows an investigation by the U.S. Department of Labor's Employee Benefits Security Administration that found the full-service brokerage company violated federal law when it recommended certain hedge funds of funds as investments to its ERISA-covered employee benefit plan clients. These recommendations resulted in the hedge funds of funds paying Morgan Keegan revenue-sharing and other fees.

Under the terms of the settlement, Morgan Keegan has agreed to disclose to its ERISA plans clients whether the company will act as a fiduciary to those plans. If the company is acting as a fiduciary, it will specify the services that it is providing as a fiduciary. Morgan Keegan also will provide to its ERISA plans clients a description of all compensation and fees received, in any form, from any source, involving any investment or transaction related to them. The company either will not collect commissions or, if it does collect them, refund to its ERISA plans clients 100 percent of the amount collected from third parties.
"The law is very clear: If you accept a fee to give investment advice to a retirement plan, you are a fiduciary and must therefore act solely in the best interests of the participants in that plan," said Phyllis C. Borzi, assistant secretary of labor for employee benefits security. "Third-party payments should never be the motivating factor behind which investments brokers and advisers steer retirement clients into."
The alleged violations occurred between April 2001 and November 2008. Morgan Keegan is based in Memphis and currently is owned by Regions Financial Corp. of Birmingham, Ala.

COMPANY SETTLES FALSE CLAIMS TO MEDICARE CASE

FROM:  JUSTICE DEPARTMENT
Friday, April 13, 2012
Ammed Direct Llc to Pay $18 Million to United States and Tennessee to Resolve False Claims Allegations
AmMed Direct LLC has agreed to pay the United States and the state of Tennessee $18 million plus interest to settle allegations that it submitted false claims to Medicare and Tennessee Medicaid (TennCare), the Justice Department announced today.   Under the agreement, AmMed will pay $17,560,997 to the United States and $439,003 to Tennessee.

The United States and Tennessee allege that, from September 2008 through January 2010, the Antioch, Tenn.-based company submitted false claims to Medicare and TennCare for diabetes testing supplies, vacuum erection devices and heating pads.   The United States and Tennessee asserted that AmMed widely advertised free cookbooks in order to induce Medicare beneficiaries to contact AmMed or its hired telemarketing firm.   Once AmMed confirmed that a beneficiary was covered by Medicare, AmMed representatives improperly attempted to sell the beneficiary supplies that would be paid for by Medicare.   Medicare rules prohibit medical businesses from making unsolicited telephone contact with beneficiaries to sell them their products, unless specific exceptions apply.

The United States and Tennessee further alleged that, as a result of AmMed’s improper marketing, many Medicare beneficiaries who called AmMed to receive the advertised free cookbooks returned their diabetic supplies to AmMed.   AmMed, however, failed to timely refund the money to Medicare or TennCare.   Rather, AmMed allowed the unpaid refunds to accrue from September 2006 until January 2010.   Prior to learning of the United States’ and Tennessee’s investigation, AmMed disclosed to the Medicare Administrative Contractors its failure to refund monies for returned supplies and began paying the refunds to Medicare and TennCare.

“Government health care programs have in place important rules that prohibit suppliers from improperly contacting beneficiaries regarding their products,” said Stuart F. Delery, Acting Assistant Attorney General for the Justice Department’s Civil Division.   “The Department of Justice is committed to ensuring that companies that bill government health care programs abide by those rules.”

 “Enforcement of the False Claims Act remains a top priority of this office,” said Jerry E. Martin, U.S. Attorney for the Middle District of Tennessee.   “All Medicare providers must comply with Medicare rules for reimbursement.   The U.S. Attorney’s Office for the Middle District of Tennessee will continue to devote the resources necessary to vigorously protect taxpayers’ interests and aggressively pursue fraud and abuse.”

 “We are grateful for the hard work and cooperation of our state and federal agencies in this case,” said Tennessee Attorney General Bob Cooper. “Working to stop healthcare fraud is a major priority for all of us because ultimately everyone pays for this kind of theft.”

The allegations arose from a lawsuit brought under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private citizens with knowledge of false claims against the government to bring an action on behalf of the United States and to share in any recovery.   The qui tam action was filed in 2009 in federal district court in Nashville, Tenn., by former AmMed Direct employee Bryan McNeese.   The relator will receive approximately $2.88 million as his share of the settlement proceeds.

This resolution is part of the government’s emphasis on combating health care fraud and another step for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Kathleen Sebelius, Secretary of the Department of Health and Human Services in May 2009.   The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.   One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover more than $6.7 billion since January 2009 in cases involving fraud against federal health care programs.   The Justice Department’s total recoveries in False Claims Act cases since January 2009 are over $9 billion.

The case was investigated by the Department of Health and Human Services- Office of Inspector General (HHS-OIG), the U.S. Attorney’s Office for the Middle District of Tennessee and the Tennessee Attorney General’s Office.   The Justice Department’s Civil Division monitored the investigation.

TWO COMPANIES SETTLE OVER ARMY NATIONAL GUARD EMPLOYMENT RIGHTS

FROM:  U.S. JUSTICE DEPARTMENT
Friday, April 13, 2012
Justice Department Settles with Air Methods Corporation and Lifemed Alaska Llc to Enforce the Employment Rights to Army National Guard Member in Alaska
The Justice Department today announced that it has resolved a lawsuit alleging that Air Methods Corp. and LifeMed Alaska, LLC willfully violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by discriminating against and failing to reemploy Chief Warrant Officer Third Class Jonathon L. Goodwin of Wasilla, Alaska.   The suit was filed in federal district court in Alaska.

Under USERRA, an employer is prohibited from discriminating against service members because of their membership in the military, past military service or future service obligations. In addition, and subject to certain limitations, USERRA requires that service members who leave their civilian jobs to serve in the military be reemployed promptly by their civilian employers in the positions they would have held if their employment had not been interrupted by military service or in positions of comparable seniority, pay and status.

Goodwin has been a member of the Army National Guard for 20 years, with honorable service as both a fixed-wing and helicopter pilot.   The Justice Department’s complaint alleged that Goodwin was employed by Air Methods as a helicopter pilot when he was called upon for a nine month period of active duty, including a period of deployment to Iraq.   According to the complaint, at the end of his deployment, Goodwin sought to be reemployed by Air Methods and assigned to a contract helicopter pilot position with LifeMed Alaska.   The complaint alleged that LifeMed refused to accept Goodwin for the contract position due to LifeMed’s bias against recently returned service members as well as an unwillingness to accommodate Goodwin’s possible future military obligations.   The complaint also alleged that Air Methods furthered LifeMed’s discriminatory action by refusing to assign Goodwin to the LifeMed contract and, consequently, failed to offer Goodwin proper reemployment.

Under the terms of the settlement agreement, Air Methods will immediately reinstate Mr. Goodwin, will assign him to the first available position on the LifeMed contract at Wolf Lake Base in Alaska, and will pay him an undisclosed sum of money in back pay and other damages.
         
“Military reservists provide an important and valuable service to our country, often at great personal sacrifice.   No service member should be disadvantaged because he or she answered the call of duty,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department is committed to vigorously enforcing federal laws that protect the employment rights of our service members.”

“Here, in Alaska, we are committed to preserving and protecting the rights of our military and military reserve members.  We honor and support their dedication and service to our community and our nation,” said Karen Loeffler, U.S. Attorney for the District of Alaska.

The case stemmed from a referral by the Department of Labor following an investigation by the Department of Labor’s Veterans’ Employment and Training Service and was jointly litigated by the Department of Justice Civil Rights Division and the U.S. Attorney’s Office for the District of Alaska.

DEFAULT JUDGEMENT ENTERED IN ALLEGED INVESTMENT FRAUD SCHEME

FROM:  SEC 

April 11, 2012

DEFAULT JUDGMENT ENTERED AGAINST DAVID E. HOWARD II, FLATIRON CAPITAL PARTNERS, LLC, AND FLATIRON SYSTEMS, LLC

The U.S. Securities and Exchange Commission announced that on April 6, 2012, the United States District Court for the Central District of California entered a Final Judgment against David E. Howard II, Flatiron Capital Partners, LLC (FCP), and Flatiron Systems, LLC (FS). Between December 2007 and March 2009, FCP and FS operated as investment companies that purported to trade securities using an automated trading system. Howard, a resident of New York City, was a co-managing member of FCP and the sole managing member of FS. The Commission’s complaint alleged, among other things, that, between December 2007 and January 2009, approximately 192 investors, located in at least 38 states, purchased LLC membership interests in FCP and FS. Investors were persuaded through false and misleading statements made by Howard and others to invest approximately $2.15 million in FCP and FS, and in addition, paid approximately $1.1 million in purported license fees for access to the trading systems. Thereafter, Howard misused and/or misappropriated almost $500,000 of the investor money and he and other principals lost the majority of the remaining funds through unsuccessful trading. Investors lost over $3 million in the scheme.

Howard, FCP and FS did not respond to the SEC’s allegations and the court therefore ordered default judgment against them. Howard, FCP and FS have each been enjoined from committing future violations of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. In addition, Howard has been enjoined from future violations of Sections 206(1), 206(2), 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-8 thereunder, and FCP and FS have each been enjoined from future violations of Section 7(1) of the Investment Company Act of 1940. The Judgment also found Howard and FCP jointly and severally liable to pay disgorgement of $487,028 plus prejudgment interest of $79,838.69 on that disgorgement for a total of $566,866.69 and Howard and FS jointly and severally liable to pay disgorgement of $1,124,218.95 plus prejudgment interest of $127,192.86 on that disgorgement for a total of $1,251,411.81. Finally, Howard was ordered to pay a penalty of $390,000.