FROM SEC : Judge Murray Initial decision release
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Initial Decision Release No. 1257 Administrative Proceeding File No. 3-18475 UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 In the Matter of Content Checked Holdings, Inc., e.Digital Corp., and Liberty Coal Energy Corp. Initial Decision on Default June 19, 2018 Appearances: Neil J. Welch, Jr., for the Division of Enforcement, Securities and Exchange Commission Before: Brenda P. Murray, Chief Administrative Law Judge On May 8, 2018, the Securities and Exchange Commission issued an order instituting proceedings (OIP) pursuant to Section 12(j) of the Securities Exchange Act of 1934, alleging that Respondents1 have securities registered with the Commission under Section 12(g) of the Exchange Act and are delinquent in their periodic filings. Respondents were served with the OIP, and their answers were due by May 25, 2018. Content Checked Holdings, Inc., Admin Proc. Rulings Release No. 5734, 2018 SEC LEXIS 1162 (ALJ May 17, 2018). Neither Respondent filed an answer by that date. I held a prehearing conference on May 29, 2018. Counsel for the Division appeared, but no one appeared for either Respondent. I ordered both Respondents to show cause by June 11, 2018, why this proceeding should not be determined on default. Content Checked Holdings, Inc., Admin. Proc. R
To date, neither Respondent has filed an answer or responded to the show cause order. Respondents are therefore in default for failing to file answers, participate in the prehearing conference, or otherwise defend the proceeding. OIP at 3; 17 C.F.R. §§ 201.155(a)(1)-(2), .220(f), .221(f). Accordingly, I deem the allegations in the OIP to be true as to Respondents. 17 C.F.R. § 201.155(a). Findings of Fact e.Digital Corp., Central Index Key (CIK) No. 886328, is a Delaware corporation located in San Diego, California, with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g). The company is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 10-Q for the period ended December 31, 2016, which reported a net loss of $339,670 for the prior nine months. As of May 2, 2018, the company’s stock (symbol “EDIG”) was quoted on OTC Link, had six market makers, and was eligible for the “piggyback” exception of Exchange Act Rule 15c2-11(f)(3). While the proceeding was pending, the Commission received complaints about management from six e.Digital shareholders. Content Checked Holdings, Inc., Admin. Proc. Rulings Release No. 5789, 2018 SEC LEXIS 1371, at *2 (ALJ June 12, 2018). Liberty Coal Energy Corp., CIK No. 1424030, is a revoked Nevada corporation located in Carlsbad, California, with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g). The company is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 10-Q for the period ended December 31, 2013, which reported a net loss of $150,019 for the prior three months. As of May 2, 2018, the company’s stock (symbol “LBTG”) was quoted on OTC Link, had five market makers, and was eligible for the “piggyback” exception of Exchange Act Rule 15c2-11(f)(3). In addition to their repeated failures to file timely periodic reports, both Respondents failed to heed the delinquency letters, sent to them by the Commission’s Division of Corporation Finance, requesting compliance with their periodic filing obligations or, through their failures to maintain valid addresses on file with the Commission as required by Commission rules, did not receive such letters.
Conclusions of Law Exchange Act Section 13(a) and Rules 13a-1 and 13a-13 require issuers of securities registered with the Commission pursuant to Exchange Act Section 12 to file with the Commission current and accurate information in annual and quarterly reports, even if the registration is voluntary under Exchange Act Section 12(g). 17 C.F.R. §§ 240.13a-1, .13a-13. Compliance with these reporting requirements is mandatory. America’s Sports Voice, Inc., Exchange Act Release No. 55511, 2007 SEC LEXIS 1241, at *12 (Mar. 22, 2007), recons. denied, Exchange Act Release No. 55867, 2007 SEC LEXIS 1239 (June 6, 2007). Scienter is not required to establish violations of Exchange Act Section 13(a) and rules thereunder. SEC v. McNulty, 137 F.3d 732, 740-41 (2d Cir. 1998). By failing to timely file required annual and quarterly reports, Respondents violated Exchange Act Section 13(a) and Rules 13a-1 and 13a-13. Sanction Under Exchange Act Section 12(j), the Commission is authorized, “as it deems necessary or appropriate for the protection of investors,” to revoke the registration of a security or suspend the registration for a period not exceeding twelve months if it finds, after notice and an opportunity for hearing, that the issuer of the security has failed to comply with any provision of the Exchange Act or rules thereunder. 15 U.S.C. § 78l(j). In determining what sanctions will adequately protect investors, the Commission “consider[s], among other things, the seriousness of the issuer’s violations, the isolated or recurrent nature of the violations, the degree of culpability involved, the extent of the issuer’s efforts to remedy its past violations and ensure future compliance, and the credibility of its assurances, if any, against further violations.” Gateway Int’l Holdings, Inc., Exchange Act Release No. 53907, 2006 SEC LEXIS 1288, at *19-20 (May 31, 2006). Respondents’ failures to file required periodic reports are serious because they violate a central provision of the Exchange Act. The purpose of periodic reporting is “to supply investors with current and accurate financial information about an issuer so that they may make sound [investment] decisions.” Id. at *26. The reporting requirements are the primary tool that Congress “fashioned for the protection of investors from negligent, careless, and deliberate misrepresentations” in the sale of securities. Eagletech Commc’ns, Inc., Exchange Act Release No. 54095, 2006 SEC LEXIS 1534, at *12 (July 5, 2006) (quoting SEC v. Beisinger Indus. Corp., 552 F.2d 15, 18 (1st Cir. 1977)). The violations are recurrent. Respondents most recent periodic reports were for the period ended December 31, 2016, or earlier. See Nature’s Sunshine Prods., Inc., Exchange Act Release No. 59268, 2009 SEC
LEXIS 81, at *20 (Jan. 21, 2009); Impax Labs., Inc., Exchange Act Release No. 57864, 2008 SEC LEXIS 1197, at *25-26 (May 23, 2008). Respondents are culpable because they knew, or should have known, of their obligation to file periodic reports. See China-Biotics, Inc., Exchange Act Release No. 70800, 2013 SEC LEXIS 3451, at *37 & n.60 (Nov. 4, 2013) (holding that scienter is not necessary to establish grounds for revocation); Robert L. Burns, Investment Advisers Act of 1940 Release No. 3260, 2011 SEC LEXIS 2722, at *41 n.60 (Aug. 5, 2011) (stating that the Commission has “repeatedly held that ignorance of the securities laws is not a defense to liability thereunder”). By not participating in this proceeding, Respondents forfeited an opportunity to show they made efforts to remedy their past violations or to offer any assurances against further violations. On these facts, it is necessary and appropriate for the protection of investors to revoke the registrations of each class of Respondents’ registered securities. Order I ORDER that, pursuant to Section 12(j) of the Securities Exchange Act of 1934, the registrations of each class of registered securities of e.Digital Corp. and Liberty Coal Energy Corp. are REVOKED.2 This initial decision shall become effective in accordance with and subject to the provisions of Rule of Practice 360. 17 C.F.R. § 201.360. Pursuant to that Rule, I FURTHER ORDER that, a party may file a petition for review of this initial decision within twenty-one days after service of the initial decision. 17 C.F.R. § 201.360(b). A party may also file a motion to correct a manifest error of fact within ten days of the initial decision, pursuant to Rule of Practice 111. 17 C.F.R. § 201.111. If a motion to correct a manifest error of fact is filed by a party, then a party shall have twenty-one days to file a petition for review from the date of the order resolving such motion to correct a manifest error of fact. This initial decision will not become final until the Commission enters an order of finality. The Commission will enter an order of finality unless a party files a petition for review or motion to correct a manifest error of fact or the Commission determines on its own initiative to review the initial decision as to a party. If any of these events occur, the initial decision shall not become final as to that party. 2 This order applies to all classes of Respondents’ securities registered under Section 12 of the Exchange Act, whether or not such securities are specifically identified by ticker symbol or otherwise in this initial decision.
A respondent has the right to file a motion to set aside a default within a reasonable time, stating the reasons for the failure to appear or defend and specifying the nature of the proposed defense. 17 C.F.R. § 201.155(b). The Commission can set aside a default at any time for good cause. Id. _______________________________ Brenda P. Murray Chief Administrative Law Judge