SEC V.

Opinion

25-35 (L)

SEC v. Rogas

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2025 5 (Argued: November 19, 2025 Decided: August 6, 2026) 6 Docket Nos. 25-35 (Lead), 25-36 (Con) 7 _________________________________________________________ 8 UNITED STATES SECURITIES AND EXCHANGE COMMISSION, 9 Plaintiff-Appellee,

10 UNITED STATES OF AMERICA, 11 Intervenor,

12 - v. - 13 ADAM P. ROGAS, 14 Defendant-Appellant, 15 PILLSBURY WINTHROP SHAW PITTMAN LLP, 16 Appellant,

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1 PAUL G. KOROL, 2 Defendant, 3 NS8 FP, LLC, MVP 2020, LLC, ROGASSI ENTERPRISES, LLC, 4 Relief-Defendants. 5 _________________________________________________________ 6 Before: KEARSE, RAGGI, and LIVINGSTON, Circuit Judges. 7 In these consolidated appeals, defendant Rogas in No. 25-36 appeals from 8 a December 12, 2024 order of the United States District Court for the Southern District 9 of New York, Richard M. Berman, Judge, granting the motion of plaintiff United States 10 Securities and Exchange Commission in this civil action to bar Rogas, for life, from 11 serving as an officer or director of any public company, following (a) the September 12 18, 2024 entry of an interim consent judgment that, inter alia, held him liable for more 13 than $17,500,000 in net profits he gained through his violations of § 17(a) of the 14 Securities Act of 1933, § 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 15 thereunder, and permanently enjoins him from directly or indirectly violating those 16 provisions, and (b) his November 3, 2022 conviction of securities fraud in violation of 17 the Exchange Act, Rule 10b-5, and 18 U.S.C. § 2, see United States v. Rogas, 20-CR-539 18 (S.D.N.Y. Nov. 3, 2022). In No. 25-35, Rogas and his attorneys Pillsbury et al. appeal 19 from the court's December 2, 2024 order requiring Pillsbury to turn over $3,612,601.76,

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1 the remainder of a $4 million retainer from Rogas that was held by Pillsbury on 2 September 18, 2020--the date it was notified of a temporary restraining order freezing 3 Rogas's assets and funds held for his benefit, which became a September 24, 2020 4 freeze order--along with any gains Pillsbury obtained from holding the frozen funds 5 after the imposition of that freeze. 6 On appeal in No. 25-36, Rogas contends that the district court abused its 7 discretion in barring him for life, rather than for a shorter period, from serving as an 8 officer or director of any publicly traded company. In No. 25-35, Rogas and Pillsbury 9 contend that the district court erred in ruling that the $3,612,601.76 were covered by 10 the freeze order, arguing principally that the $4 million sent by Rogas as an advance 11 payment for legal services had become the property of Pillsbury, not Rogas, before the 12 temporary restraining order was entered. Finding no error or abuse of discretion in 13 either decision, we affirm in No. 25-36 the district court's order permanently barring 14 Rogas from serving as an officer or director of a publicly traded company; we affirm 15 in No. 25-35 the district court's order directing Pillsbury to deposit with the registry of 16 the court $3,612,601.76, together with any gains Pillsbury obtained from holding those 17 frozen funds after being notified of the freeze. 18 No. 25-36, affirmed. No. 25-35, affirmed.

1 PAUL G. ALVAREZ, Senior Appellate Counsel, 2 Washington, D.C. (Jeffrey B. Finnell, Acting General 3 Counsel, Jeffrey A. Berger, Assistant General Counsel, 4 Securities and Exchange Commission, Washington, 5 D.C., on the brief), for Plaintiff-Appellee.

6 ANNE M. VOIGTS, Pillsbury Winthrop Shaw 7 Pittman, Palo Alto, California (David Oliwenstein, 8 Pillsbury Winthrop Shaw Pittman, New York, New 9 York, on the brief), for Defendant-Appellant and 10 Appellant.

11 KEARSE, Circuit Judge: 12 In these consolidated appeals, defendant Adam P. Rogas in No. 25-36 13 appeals from the December 12, 2024 order of the United States District Court for the 14 Southern District of New York, Richard M. Berman, Judge, granting the motion, in this 15 civil action, by plaintiff United States Securities and Exchange Commission ("SEC" or 16 "Commission") to bar Rogas, for life, from serving as an officer or director of an issuer 17 that has a class of securities registered pursuant to Section 12 of the Securities 18 Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. § 78a et seq., or that is required to file 19 reports pursuant to Section 15(d) of the Exchange Act, see United States Securities and 20 Exchange Commission v. Rogas, 20-CV-7628, 2024 WL 5088097, at *9 (S.D.N.Y. Dec. 12, 21 2024) ("SEC v. Rogas II"), following (a) the September 18, 2024 entry of an interim

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1 consent judgment that, inter alia, held Rogas liable for more than $17,500,000 in net 2 profits he gained through his violations of § 17(a) of the Securities Act of 1933 3 ("Securities Act"), 15 U.S.C. § 77a et seq., § 10(b) of the Exchange Act, 15 U.S.C. § 78b, 4 and Rule 10b-5 thereunder, 17 C.F.R. § 240.10b-5, and permanently enjoins him from 5 directly or indirectly violating those provisions, and (b) his November 3, 2022 6 conviction of securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. 7 § 240.10b-5, and 18 U.S.C. § 2, see United States v. Rogas, 20-CR-539 (S.D.N.Y. Nov. 3, 8 2022) ("U.S. v. Rogas"). In No. 25-35, Rogas and his attorneys Pillsbury Winthrop Shaw 9 Pittman LLP ("Pillsbury" or "PWSP") appeal from the court's December 2, 2024 order 10 requiring Pillsbury principally to turn over $3,612,601.76, the remainder of a $4 million 11 retainer from Rogas that was held by Pillsbury on September 18, 2020--the date it was 12 notified of a temporary restraining order freezing Rogas's assets and funds held for his 13 benefit, which was succeeded by an Asset Freeze and Order Granting Other 14 Emergency Relief, dated September 24, 2020 ("Freeze Order"), continuing the freeze for 15 the duration of this action. See United States Securities and Exchange Commission v. Rogas, 16 20-CV-7628, 2024 WL 4930362, at *8 (S.D.N.Y. Dec. 2, 2024) ("SEC v. Rogas I"). 17 On appeal in No. 25-36, Rogas contends that the district court abused its 18 discretion in barring him for life, rather than for a shorter period, from serving as an

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1 officer or director of any publicly traded company (the "Officer and Director Bar"). In 2 No. 25-35, Rogas and Pillsbury contend that the district court erred in ruling that the 3 $3,612,601.76 were covered by the Freeze Order, arguing principally that the $4 million 4 sent by Rogas as an advance payment for legal services had become the property of 5 Pillsbury, not Rogas, before the temporary restraining order was entered. 6 For the reasons that follow, we find no error or abuse of discretion in 7 either decision. We affirm in No. 25-36 the district court's order permanently barring 8 Rogas from serving as an officer or director of a publicly traded company. In No. 9 25-35, we affirm the district court's order directing Pillsbury to deposit with the 10 registry of the court $3,612,601.76, representing what remained of the $4 million from 11 Rogas when Pillsbury was informed of the freeze on Rogas's assets and on funds to be 12 used for his benefit, together with any gains Pillsbury obtained from holding the 13 frozen funds after the imposition of the freeze.

14 I. BACKGROUND

15 This civil action has its origin in misdeeds by Rogas from January 2018 16 through June 2020 in connection with three offerings of securities in NS8, Inc. ("NS8"

1 or the "Company"), a technology company co-founded by Rogas in 2016, which offered 2 e-commerce merchants software to detect and prevent fraud. As summarized below, 3 the SEC's Amended Complaint (see A.91-125)--the allegations of which are no longer 4 disputed by Rogas in connection with the Officer and Director Bar--shows that every 5 month for 2½ years, Rogas caused NS8's business and revenue to be grossly 6 overstated, misrepresentations that were relayed by NS8 to current and potential 7 investors. During that period, NS8 raised approximately $149 million through 8 offerings of NS8 securities. From the $149 million thus raised, NS8 repurchased shares 9 of its stock from, inter alia, Rogas, who thereby personally, and through an entity he 10 owned, received a net profit of more than $17.5 million.

11 A. Rogas's Misrepresentations as to NS8's Revenue Bank Account 12 During the relevant period, Rogas served as NS8's President and Chief 13 Executive Officer. (See Amended Complaint ¶ 12; Declaration of Adam P. Rogas dated 14 Sept. 5, 2023 ("Rogas Decl."), ¶ 3.) Although NS8 had a finance department, only Rogas 15 had access to the bank account in which NS8 collected revenue from its customers (the 16 "Revenue Account"). (See Amended Complaint ¶¶ 27, 29.) Beginning no later than 17 January 2018, and continuing through at least June 2020, Rogas falsified the bank

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1 statements for NS8's Revenue Account by downloading electronic copies and altering 2 their text (a) to change payers' names, which exaggerated the number of customers 3 NS8 had, and/or (b) to change the amounts received and inflate the amount of revenue 4 NS8 was receiving from its actual customers. (See id. ¶¶ 28, 31.) 5 In each of the 30 months in that period, Rogas inflated the balances that 6 had appeared in the genuine bank statements for NS8's Revenue Account. (See id. 7 ¶ 31.) In all but one of those months, the falsely inflated amount was higher than the 8 falsely inflated amount for the prior month; and the falsifications became massive. (See 9 id.) For example, in November 2018, Rogas doctored NS8's Revenue Account 10 statement to show a balance of more than $5.1 million, when in fact its balance was less 11 than $2,000. (See id.) Indeed, in none of those 30 months was NS8's actual balance in 12 the Revenue Account ever as high as even $4.1 million, but Rogas's fraudulently 13 inflated amounts rose steeply. (See id.) In September 2019, Rogas doctored NS8's 14 Revenue Account statement to show a balance of more than $23.7 million, when in 15 reality its balance was less than $6,000. (See id.) In June 2020, Rogas doctored NS8's 16 Revenue Account statement to show a balance of $62,088,506.43. (See id.) That 17 exceeded its actual balance--$28,051.47--by more than $62 million. (See id.) 18 NS8's financial statements were prepared by the Company's finance

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1 department personnel, who did not have access to its actual Revenue Account 2 statements. (See id. ¶¶ 27, 29.) Rogas sent the doctored, revenue-inflated Revenue 3 Account statements to the finance team, which incorporated them in financial 4 representations made to current and prospective NS8 investors. (See id. ¶¶ 29, 30.) 5 Rogas's misrepresentations were also used by the finance department in preparing the 6 Company's financial statements, which were also provided to current and prospective 7 investors. (See id.) 8 As NS8's CEO, Rogas personally reviewed and distributed these 9 misleading financial statements with knowledge that they were based on bank 10 statements that he had falsified. (See id. ¶ 30.) Rogas also used falsified statements to 11 deceive prospective investors while they were conducting "due diligence." (Id. ¶ 34.) 12 For example, during NS8's Spring 2020 offering, Rogas provided investors and their 13 agents with falsified Revenue Account statements that artificially inflated NS8's 14 revenue by tens of millions of dollars, and in one instance, the due-diligence 15 "consultant" for a group of investors "discovered that the line items in the August 2019 16 Revenue Account statement did not add up to the total balance reflected on that 17 statement." (Id. ¶¶ 34-38.) When Rogas was asked about the discrepancy, he 18 "re-doctored the August 2019 Revenue Account bank statement to include an

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1 additional false deposit of $1 million, causing the line items to add up to the false total 2 balance." (Id. ¶ 39.) Investors in NS8 relied on Rogas's falsified documents to their 3 detriment. (See id. ¶¶ 36, 42, 46.) 4 Rogas's misrepresentations were highly profitable for him personally. 5 With the money NS8 received from investors in its offerings, it conducted a tender 6 offer to preexisting shareholders. Rogas tendered shares he owned, and he received 7 more than $17.5 million directly and through an entity he wholly controlled. (See 8 Rogas brief on appeal at 7; Amended Complaint ¶¶ 14, 112, 124.) Rogas later 9 transferred approximately $10 million of these funds to an account associated with 10 PhutureCorp Inc. ("PhutureCorp"), another entity he controlled. 11 Despite Rogas's exclusive access to the real Revenue Account statements, 12 his fraud had not gone unnoticed by some NS8 employees. In 2018 and early 2019, an 13 NS8 employee ("Employee") raised concerns internally that NS8's "customer data 14 (including purported customer numbers and monthly revenue) used to formulate 15 external communications--including to potential and existing investors--was false." 16 (Amended Complaint ¶ 57.) In July 2019, "through [whistleblower] counsel, the 17 Employee submitted an anonymous tip to the SEC explaining that NS8 and Rogas may 18 have overstated its number of customers and its revenue, and that the incorrect

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1 numbers may have been used in a securities offering." (Id. ¶ 58.) 2 On August 9, 2019, after the Employee "reiterated"--to his supervisor and 3 to NS8's Chief of Staff ("COS")--"his concerns that NS8 may have falsely inflated 4 customer counts" (id. ¶¶ 59-60), Rogas was alerted by the COS and promptly took steps 5 to remove the whistleblower's access to NS8's internal systems and to determine how 6 much the Employee knew. (See id. ¶¶ 61-64.) That evening, the Employee's access to 7 NS8's building was revoked. (See id. ¶ 65.) The next day, the COS gave Rogas the 8 Employee's NS8-issued laptop and password, and Rogas searched the computer. (See 9 id. ¶¶ 66-67.) He gained access to the Employee's saved personal passwords, and 10 thereby to his Hotmail account, which contained his "correspondence with his 11 whistleblower counsel who assisted his reporting to the SEC," and to his Dropbox 12 account, which contained "the exhibits that the Employee's counsel submitted to the 13 SEC." (Id. ¶ 67.) At the direction of Rogas, the Employee was fired on or about August 14 15, 2019. (See id. ¶ 70.) 15 The SEC, based on the tip it had received, began investigating NS8. In 16 November 2019, it issued subpoenas to Rogas and NS8 "in connection with an 17 investigation into potential fraudulent conduct in a prior NS8 securities offering"; it 18 issued additional subpoenas to Rogas and NS8 in March 2020. (Id. ¶¶ 8, 72.) Rogas

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1 continued through June 2020 to falsify NS8's Revenue Account statements and to 2 distribute misleading financial statements in securities offerings, despite receiving 3 these subpoenas. (See id. ¶¶ 8, 31, 73.) 4 In late August 2020, another "employee[] in NS8's finance department 5 discovered the true balance of funds in the Revenue Account and the falsified 6 transactions were uncovered." (Id. ¶ 74.) Also in late August, Rogas contacted 7 Pillsbury seeking personal representation in connection with any issues concerning his 8 role as President and CEO of NS8. (See, e.g., Part III below.) Rogas resigned from NS8 9 in a September 1, 2020 email. (See id. ¶ 75; Rogas Decl. ¶ 5.)

10 B. The Fallout 11 1. Commencement of the Present Case and the Asset Freeze 12 On September 17, 2020, the SEC commenced the present civil action 13 against Rogas, alleging that he had intentionally provided prospective investors with 14 falsified information as to NS8's customer base and Revenue Account balances (1) in 15 the offer or sale of NS8 securities, in violation of § 17(a) of the Securities Act, and (2) in 16 connection with the purchase or sale of NS8 securities, in violation of § 10(b) of the 17 Exchange Act and Rule 10b-5 thereunder. As relief, the original complaint--like the

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1 Amended Complaint, which in November 2022 superseded it--requested principally 2 that Rogas be permanently enjoined from engaging in similar conduct in violation of 3 those provisions, and that he be required "to disgorge ill-gotten gains received during 4 the period of violative conduct and pay prejudgment interest on such ill-gotten gains." 5 (A.51 (original complaint); A.124 (Amended Complaint).) 6 Prior to filing the original complaint, the SEC had filed an ex parte 7 emergency motion for a temporary restraining order ("TRO") to "'freez[e] assets'" of 8 Rogas and the relief defendants "'in order to prevent further misappropriation of 9 investor funds and provide a corpus for returning investor funds to investors.'" 10 SEC v. Rogas I, 2024 WL 4930362, at *4 (quoting SEC Emergency Motion for TRO dated 11 September 14, 2020, at 1). Judge Paul A. Crotty, to whom the case then was assigned, 12 granted the TRO and scheduled a hearing as to why such a freeze should not extend 13 until the resolution of the action. (See A.53, 61-62.) As discussed in Part III below, 14 Pillsbury was given notice of the TRO on the morning of September 18, 2020. The 15 Freeze Order was entered on September 24, ordering that Rogas's assets and property 16 (and property of the relief defendants) "wherever located or by whomever held, and 17 whether acquired before or after institution of this action, are frozen" "pending 18 resolution of the merits of this matter through trial or otherwise." (A.66.)

1 On September 17, 2020, Rogas was arrested and charged by the United 2 States Department of Justice ("DOJ"), on a sealed criminal complaint that was unsealed 3 by the court on that date, in the United States District Court for the Southern District 4 of New York. See U.S. v. Rogas, 20-CR-539. In February 2021, the DOJ was allowed to 5 intervene in the SEC's present action, and the DOJ's motion to stay the present action 6 (except for the SEC's issuing subpoenas to financial institutions) pending conclusion 7 of the criminal case was granted on consent of the parties. 8 In or about April 2021, Rogas violated the Freeze Order by transferring, 9 without court permission, more than $1.6 million held on deposit for one of his 10 companies covered by the freeze, to a newly opened account at another bank. Rogas 11 used some $500,000 of these funds to purchase luxury goods, including a swimming 12 pool, hockey tickets, and a garden fountain; and he converted more than $1.1 million 13 into cryptocurrency. When this was discovered, Rogas conceded that the "funds spent 14 or transferred . . . were clearly within the Court's asset freeze order," and he assured 15 that "he w[ould] commit no further violations." (A.81.) He "agreed," with the 16 permission of the court, "to transfer whatever remain[ed] of the more than" $1.6 million 17 he had spent or transferred "into the registry of the Court." (Id.)

1 2. Rogas's Criminal Case 2 In the meantime, in U.S. v. Rogas, Rogas had been indicted on October 13, 3 2020, charged with two counts of securities fraud and one count of wire fraud for his 4 fabrication and transmission of NS8's bank and financial statements in connection with 5 NS8's 2019 and 2020 securities offerings. In March 2022, pursuant to a plea agreement, 6 Rogas pleaded guilty to one count of securities fraud. He was ultimately sentenced 7 principally to 60 months' imprisonment, to be followed by 3 years' supervised release, 8 and was ordered to forfeit $17,542,459. U.S. v. Rogas, Judgment (S.D.N.Y. Nov. 9, 2022). 9 The Judgment also ordered, inter alia, that as to the forfeited funds, after 10 satisfaction of the mandatory $100 assessment, priority be given to claims of 11 "restitution principal" followed by "restitution interest," ahead of other claimant 12 categories. Id. at 7. In an order dated December 9, 2022, Rogas was ordered to make 13 restitution to the victims of the offense to which he pleaded guilty, in the total amount 14 of $112,276,409.50.

15 3. Resolution of the Merits of the Present Civil Proceeding 16 The stay in the present action was partially lifted in November 2022 to 17 permit the SEC to file the Amended Complaint, and in early 2023 was entirely lifted.

1 Following lengthy negotiations, on March 7, 2024, Rogas and the SEC entered into an 2 agreement to settle the securities fraud claims against him. In that agreement, Rogas 3 acknowledged that he had "pleaded guilty to criminal conduct relating to certain 4 matters alleged in the Amended Complaint in this action" and had "admitted the facts 5 set out in the transcript of his plea allocution." (Notarized Consent of Defendant Adam 6 P. Rogas dated March 7, 2024 ("Rogas Consent"), ¶ 2.) Rogas also, inter alia, referring 7 to himself as "Defendant,"

8 agree[d] that the Court shall, pursuant to Section 21(d)(2) of the 9 Exchange Act . . . and Section 20(e) of the Securities Act . . . , prohibit 10 Defendant from acting as an officer or director of any issuer that has a 11 class of securities registered pursuant to Section 12 of the Exchange 12 Act . . . or that is required to file reports pursuant to Section 15(d) 13 of the Exchange Act . . . . Defendant further agrees that the length of 14 time of the Officer and Director Bar shall be determined by the Court, 15 upon motion of the Commission. Defendant further agrees that, in 16 connection with the Commission's motion for an Officer and Director Bar, 17 and at any hearing held on such a motion: (a) Defendant will be 18 precluded from arguing that he did not violate the federal securities laws 19 as alleged in the Amended Complaint and as admitted in the plea 20 transcript attached as Exhibit A; (b) Defendant may not challenge the 21 validity of this Consent or the Judgment; [and] (c) solely for the 22 purposes of such motion, the allegations of the Amended Complaint shall 23 be accepted as and deemed true by the Court . . . .

24 (Id. ¶ 4 (emphases added).) 25 With respect to the Officer and Director Bar eventually to be ordered by

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1 the court, however, Rogas reserved the right to appeal with respect to the Bar's 2 duration. (See id. ¶ 6 ("For the sake of clarity, this Consent does not waive Defendant's 3 right to appeal from any determination made by the Court as to the period of the 4 Officer and Director bar pursuant to paragraph four, supra.").) 5 A September 18, 2024 interim "Judgment as to Defendant Adam P. Rogas" 6 (or "Interim Civil Judgment") was entered in accordance with the Rogas Consent by 7 Judge Berman, to whom the case had been reassigned on March 15, 2024. The Interim 8 Civil Judgment principally held Rogas liable for disgorgement of $17,542,459.00 and 9 liable to the Commission for $89,150.20 in prejudgment interest thereon, and enjoined 10 him from securities laws violations as indicated above. It also ordered that Rogas's 11 disgorgement liability be deemed satisfied by the order of restitution entered in 12 U.S. v. Rogas. 13 The Interim Civil Judgment noted in connection with the Commission's 14 motion for an Officer and Director Bar that "[n]either this Judgment, nor the Consent, 15 incorporated herein, shall operate to waive Defendant's right to appeal from any 16 determination made by the Court as to the period of the Officer and Director bar." 17 Interim Civil Judgment at 4.

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1 4. The Imposition of a Lifetime Officer and Director Bar 2 The SEC thereafter moved for the imposition of a permanent Officer and 3 Director Bar, arguing that the nature and history of Rogas's fraudulent conduct made 4 it likely that misconduct would recur--making him unfit to be entrusted with the 5 position of officer or director of a publicly traded company--and that a bar of shorter 6 duration would be insufficient to protect the public. (See SEC Opening Brief Seeking 7 a Permanent Officer and Director Bar, Civ. Dkt. No. 218, at 8-15.) Rogas opposed a bar 8 of such duration, arguing that his conduct was "entirely aberrational"; that he had 9 never engaged in nor been accused of any criminal activity, let alone securities 10 misconduct; and that the bar should be no longer than five years. (See Rogas Brief in 11 Opposition to SEC Request for a Lifetime Director and Officer Bar ("Rogas Opposition 12 to Lifetime Bar"), Civ. Dkt. No. 219, at 1, 13, 15.) 13 In its Decision and Order dated December 12, 2024, the district court, after 14 considering each side's arguments, granted the SEC's motion. See SEC v. Rogas II, 15 2024 WL 5088097 (or "Rogas II"), at *1, *8-*9. Having noted that Congress authorized 16 officer and director bars in order "'to protect public investors from persons who have 17 already demonstrated, by engaging in deliberate fraudulent conduct, that they should 18 not be entrusted with power over investor funds,'" id. at *4 (quoting H.R. Rep.

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1 No. 101-616, at 13 (1990)), the district court also noted that our Court had

2 outlined six . . . factors as "useful in making the unfitness 3 assessment," including: "(1) the egregiousness of the underlying 4 securities law violation; (2) the defendant's repeat offender status; 5 (3) the defendant's role or position when he engaged in the fraud; 6 (4) the defendant's degree of scienter; (5) the defendant's economic 7 stake in the violation; and (6) the likelihood that misconduct will 8 recur,"

9 Rogas II at *5 (quoting SEC v. Patel, 61 F.3d 137, 141 (2d Cir. 1995) ("Patel")). The district 10 court proceeded to consider the so-called Patel factors. 11 With regard to the first, third, fourth, and fifth factors, the court found that 12 "[w]ithout doubt, Rogas' violations of the securities laws were egregious." Rogas II 13 at *5. Instead of insisting, in his fiduciary position as NS8's CEO, on financial 14 statements and representations that were true and accurate, Rogas himself engaged in 15 flagrant, deliberate, and personally profitable securities fraud in 2018-2020 by altering 16 the bank statements in NS8's Revenue Account, and by sending the falsified statements 17 to its finance department. See id. at *2, *5. During that period, "Rogas 'defrauded NS8 18 investors in various securities offerings by falsifying NS8's bank statements to give the 19 appearance that NS8 was generating millions of dollars in customer revenue with tens 20 of millions of dollars of assets on hand.'" Id. at *2 (quoting Amended Complaint ¶ 31). 21 In his plea of guilty to securities fraud, "he admitted that he [had] acted knowingly,

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1 willfully, and with an intent to defraud." Id. at *7; see also U.S. v. Rogas, Plea Hearing 2 Transcript at 21-26 (S.D.N.Y. Mar. 16, 2022) ("Plea Hearing Tr."). 3 The district court observed that Rogas had a large economic stake in the 4 success of his frauds, and personally reaped more than $17.5 million from the 5 $149 million that NS8 received in its three 2019-2020 offerings. See Rogas II at *5. And 6 it found significant the fact that Rogas had assiduously pursued his fraudulent conduct 7 in aid of receiving a large personal payout when he was already receiving a substantial 8 salary of $268,000-$422,000. See id. 9 The district court considered Rogas's contention that his fraudulent 10 conduct was "'entirely aberrational.'" Id. at *1 (quoting Rogas Opposition to Lifetime 11 Bar); see also U.S. v. Rogas, Rogas Sentencing Memorandum at 1, 8, 9 (S.D.N.Y. Oct. 7, 12 2022) (characterizing his fraudulent conduct as a "singular aberrant event" and a 13 "moment" in which he made a "wrongful and uncharacteristic mistake in judgment"). 14 The court rejected that characterization. Reiterating its view that Rogas's conduct was 15 "egregious," the court noted that Rogas had "intentionally altered NS8's bank 16 statements"--with a "high degree of scienter," and "not by mistake or accident." Rogas II 17 at *7 (internal quotation marks omitted). It found that "Rogas' violations were not an 18 isolated incident"; that "his fraud over 30 months was recurrent and systematic in

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1 nature"; that "Rogas altered NS8 bank statements every month"; and that he 2 "repeatedly and intentionally provided falsified documents to investors in connection 3 with raising nearly $150 million in three separate securities offerings." Id. (emphasis 4 in original) (internal quotation marks omitted). 5 As to the second Patel factor, the court noted the Commission's concession 6 that "while Rogas' fraudulent conduct occurred repeatedly and over a period of more 7 than two years, Rogas is not (technically) a 'repeat offender' as he has not previously 8 been prosecuted for violating the securities laws." Id. at *6. The court found that "in 9 this case, . . . the strength of the remaining Patel indicators support the conclusion that 10 Rogas is permanently unfit to serve as an officer or director of any public company." 11 Id. at *9 (internal quotation marks omitted) (emphasis ours). 12 As to the sixth Patel factor--which is the overarching concern for whether 13 there is a likelihood that misconduct will recur--the district court noted that Rogas had 14 provided false information to be given to regulators and potential investors, "falsely 15 inflating the company's reported revenue and assets by significant amounts months 16 after months" for some "two and a half years," in connection with "at least three 17 securities offerings that raised approximately $149 million from investors." Id. at *5-*6. 18 The court further found it egregious that Rogas had "attempt[ed] to hide

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1 his fraud proceeds" by, inter alia, "purchas[ing a] Dominican Residence" (as discussed 2 in a Rogas text exchange with an associate), and that he "took other assets to the 3 Dominican Republic in order to move them offshore." Id. at *6 (internal quotation 4 marks omitted). And it noted that "even after his arrest," Rogas violated the Freeze 5 Order by moving more than $1.6 million to a newly opened account at a different bank, 6 in order to spend large sums of money on luxury items, including a swimming pool. 7 See id. The court concluded that "Rogas' conduct demonstrates a prevailing inclination 8 . . . to place his own self-interest ahead of the interests of his investors and the public." 9 Id. at *8 (internal quotation marks omitted). 10 The district court observed that Rogas was not a "repeat offender" as that 11 term was used in Patel to refer to one who had been prosecuted previously, id. at *6; 12 but the court found it material that Rogas's past fraudulent conduct was continual. 13 Further, the court noted that "'Rogas's brazen, deceptive conduct continued even after 14 the SEC contacted NS8'"; after "[t]he SEC issued subpoenas to Rogas and to NS8 in 15 connection with its investigation into fraud at NS8, . . . 'Rogas continued to alter bank 16 statements.'" Id. at *3 (quoting Amended Complaint ¶¶ 8, 73). 17 The district court rejected Rogas's contention that a lifetime bar is 18 inappropriate when the defendant has had no prior convictions. The court recognized

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1 that there is no such condition in the statutory authorization for Officer and Director 2 Bars, see Rogas II at *5 (citing 15 U.S.C. § 78u(d)(2)); that according to Patel itself, "it is 3 not essential for a lifetime ban that there be past violations," 61 F.3d at 142; and that 4 courts have previously "had 'no trouble concluding' that [a] defendant was 5 'permanently unfit' to serve as an officer or director, even though 'the criminal 6 conviction . . . that form[ed] the basis of [the defendant's] civil liability [was] his first 7 conviction,'" Rogas II at *9 (quoting SEC v. Gupta, No. 11-CV-7566, 2013 WL 3784138, 8 at *4 (S.D.N.Y. July 17, 2013)). 9 Finding that the circumstances in the present case, including Rogas's 10 apparent disdain for federal investigations into securities fraud and his "prevailing 11 inclination . . . to place his own self-interest ahead of the interests of his investors and 12 the public," persuaded it that Rogas was likely to engage in misconduct in the future 13 if he again became an officer or director of a publicly traded company, the court

14 order[ed] and direct[ed] that, effective immediately, Adam P. 15 Rogas is permanently barred from serving as an officer or director 16 of any issuer that has a class of securities registered pursuant to 17 Section 12 of the Exchange Act [15 U.S.C. § 78l] or that is required 18 to file reports pursuant to Section 15(d) of the Exchange Act [15 19 U.S.C. § 78o(d)] because a permanent [] bar is both necessary and 20 in the public interest.

21 Rogas II at *8-*9 (internal quotation marks omitted).

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1 C. Rogas's Representation by Pillsbury 2 In the meantime, on September 9, 2020, after Rogas hired Pillsbury to 3 represent him in connection with any issues concerning his role as President and CEO 4 of NS8, Rogas had his PhutureCorp entity wire Pillsbury $4 million. On September 18, 5 2020, Pillsbury was notified of the TRO freezing Rogas's assets. Based on information 6 provided by Rogas and Pillsbury, the district court found that, for Pillsbury's legal 7 services rendered through that date, the $4 million had been reduced to $3,612,601.76. 8 As discussed in Part III below, the district court in SEC v. Rogas I in 2024 9 granted a motion by the SEC to require Pillsbury to turn that amount over to the 10 government, on the ground that the $3,612,601.76 was an asset of Rogas that was 11 frozen by the TRO and the Freeze Order, and thus could not be used to pay for 12 Pillsbury's legal services to Rogas thereafter. Rogas and Pillsbury, in No. 25-35, 13 challenge that decision, arguing that the $4 million sent to Pillsbury by Rogas's entity 14 PhutureCorp on September 9 was not covered by the TRO and Freeze Order, on the 15 theory that, upon its September 9 receipt by Pillsbury, the $4 million was the property 16 of Pillsbury, not Rogas.

25

1 II. THE CHALLENGE TO THE DURATION OF THE OFFICER AND DIRECTOR 2 BAR

3 On appeal from SEC v. Rogas II, Rogas contends that the district court 4 abused its discretion by imposing a lifetime Officer and Director Bar, rather than a bar 5 of shorter duration, arguing that the court improperly considered him to be a repeat 6 offender, thereby "infect[ing] its analysis of the Patel factors"; that it misevaluated the 7 likelihood of his recidivism by ignoring his acceptance of responsibility; and that it 8 imposed the lifetime bar for the improper purpose of punishing him. (See Rogas's brief 9 on appeal at 26-34, 34-37, 39-41.) 10 We review the imposition of injunctive relief and civil penalties for abuse 11 of discretion, see, e.g., SEC v. Pentagon Capital Management PLC, 725 F.3d 279, 287 (2d 12 Cir. 2013); SEC v. Bankosky, 716 F.3d 45, 47 (2d Cir. 2013) ("Bankosky"); and "the burden 13 of showing that the court abused [its] discretion . . . necessarily is a heavy one," 14 SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1100 (2d Cir. 1972), abrogated on other 15 grounds by Liu v. SEC, 591 U.S. 71 (2020). "Under this standard, we will reverse only 16 if we have a definite and firm conviction that the court below committed a clear error 17 of judgment in the conclusion that it reached upon a weighing of the relevant factors."

26

1 Bankosky, 716 F.3d at 47 (internal quotation marks omitted). 2 Rogas has not met this standard. The statutory provision for an Officer 3 and Director Bar gives courts ample discretion; the Patel factors are neither mandatory 4 nor exclusive; the district court gave appropriate consideration to the Patel factors, did 5 not consider Rogas as a "repeat offender" as that term was used in Patel, and gave 6 adequate explanations for its assessment that Rogas was likely to recidivate if he were 7 again to be an officer or director of a publicly traded company; and the record amply 8 supports the court's conclusions. 9 The SEC commenced this action in September 2020 pursuant to § 21 of the 10 Exchange Act, 15 U.S.C. § 78u, which provides, inter alia, that when it appears to the 11 Commission that a person is engaged in, or is about to engage in, acts or practices 12 constituting a violation of the Exchange Act or a Rule promulgated thereunder, the 13 Commission may bring an action in an appropriate federal court to enjoin such acts or 14 practices. See 15 U.S.C. § 78u(d)(1). Rogas thereafter, in the criminal action, pleaded 15 guilty to violating § 10(b) of the Exchange Act and Rule 10b-5 thereunder, 15 U.S.C. 16 § 78j(b) and 17 C.F.R. §240.10b-5. (See, e.g., Rogas Consent ¶ 2.) In an action brought 17 under § 78u(d)(1), 18 the court may prohibit, conditionally or unconditionally, and

27

1 permanently or for such period of time as it shall determine, any person 2 who violated section 78j(b) of [Title 15] or the rules or regulations 3 thereunder from acting as an officer or director of any issuer that 4 has a class of securities registered pursuant to section 78l of [Title 5 15] or that is required to file reports pursuant to section 78o(d) of 6 [Title 15] if the person's conduct demonstrates unfitness to serve as an 7 officer or director of any such issuer.

8 15 U.S.C. § 78u(d)(2) (emphases added). 9 In 1995 when Patel was decided, § 78u(d)(2) "provide[d for] a bar on 10 service as an officer or director . . . based on substantial unfitness," Patel, 61 F.3d at 142 11 (emphasis added). In Bankosky, we noted that "[i]n 2002, Congress replaced 'substantial 12 unfitness' with simply 'unfitness,'" 716 F.3d at 48 (citing Sarbanes-Oxley Act of 2002, 13 § 305(a), Pub. L. No. 107-204, 116 Stat. 745, 778-79 (2002) (amending 15 U.S.C. 14 § 78u(d)(2))); and we stated that

15 the legislative history demonstrates that Congress's intent was to 16 lower the threshold of misconduct for which courts may impose 17 director and officer bans. See S.Rep. No. 107-205, at 27 (2002), 18 available at 2002 WL 1443523 (explaining that standard was changed 19 to "unfitness" because "'substantial unfitness' standard . . . [was] 20 inordinately high, causing courts to refrain from imposing bars 21 even in cases of egregious misconduct") . . . .

22 Bankosky, 716 F.3d at 48. We noted that the

23 lowering [of] the threshold of misconduct required to impose the 24 officer and director bar[] did not undermine the usefulness of the 25 Patel factors, which indicate where evidence of unfitness might be

28

1 found in a defendant's misconduct. Whatever the contours of the 2 new standard, "unfitness" is clearly a lower hurdle than "substantial 3 unfitness." See S.Rep. No. 107-205, at 27 (2002). It necessarily 4 follows that a person who is "substantially unfit" under the Patel 5 analysis is also "unfit" under the revised statute. Thus, the Patel 6 factors are just as relevant to determining "unfitness" as they were 7 to determining "substantial unfitness."

8 Id. 9 Rogas, relying on the inclusion of whether the defendant was a repeat 10 offender among the factors that Patel listed as usually worthy of consideration, argues 11 that, as a first offender, he could not properly be subjected to a lifetime Officer and 12 Director Bar. He notes relentlessly that he had not been convicted of a securities 13 violation previously (see, e.g., Rogas brief on appeal at 1, 7, 20, 26-27, 37); and he 14 apparently believes that, in the court's assessment of whether the defendant is likely 15 to engage in misconduct, no factor other than a prior conviction is material (see, e.g., 16 id. at 26 ("a single, extended course of conduct does not make a defendant a 'repeat 17 offender'"); id. ("the duration and seriousness of his violation" did not make him "a 18 repeat offender"); id. at 28 ("Rogas' efforts to avoid detection" did not "justify treating 19 him as a repeat offender"); id. at 28 n.10 ("Rogas' violation of the asset freeze while the 20 SEC Matter was stayed also has no bearing on whether he is a repeat offender")). 21 But Patel did not purport to announce a checklist of factors that must be

29

1 present or absent. We said

2 [t]hese factors are useful in making the unfitness assessment, 3 although we do not mean to say that they are the only factors that 4 may be taken into account or even that it is necessary to apply all these 5 factors in every case. A district court should be afforded substantial 6 discretion in deciding whether to impose a bar to employment in 7 a public company.

8 Patel, 61 F.3d at 141 (emphasis added). And indeed, as pertinent to the present case 9 and to Rogas's heavy reliance on the fact that he had not been prosecuted for criminal 10 acts in the past, we noted in Patel that so long as the "district court articulate[s] the 11 factual basis for a finding of the likelihood of recurrence" of misconduct, "it is not 12 essential for a lifetime ban that there be past violations," id. at 142 (emphasis added). 13 Rogas asserts that the lifetime bar was "[o]verkill," and argues that "the 14 simple fact that a defendant used his position as an officer and director to engage in 15 misconduct . . . in no way justif[ies] the prediction that future misconduct will occur." 16 (Rogas brief on appeal at 37-38, 35 (internal quotation marks omitted).) But the "simple 17 fact" label ignores much of what the district court considered--which even Rogas 18 acknowledges included "the egregiousness of Mr. Rogas' conduct, his level of scienter, 19 and the length of time over which he carried out his scheme" (id. at 35). And it ignores 20 aspects of the court's analysis of the record in addition to Rogas's "high degree of

30

1 scienter" and his steadfast persistence for 30 months of falsifications. Rogas II at *7 2 (internal quotation marks omitted). 3 The district court recognized the magnitude of Rogas's fraudulent 4 conduct, which "falsif[ied] NS8's bank statements to give the appearance that NS8 was 5 generating millions of dollars in customer revenue with tens of millions of dollars of 6 assets on hand." Id. at *2 (quoting Amended Complaint ¶ 31). 7 The court also noted that when Rogas learned that an employee had 8 discovered his fraudulent inflations and had informed the SEC, he had the employee 9 fired. See Rogas II at *3. This not only violated § 21F(h) of the Exchange Act, 15 U.S.C. 10 § 78u-6(h), the whistleblower-protection provision; it deprived the Company of a 11 careful, competent, and responsible employee, in the interest of perpetuating Rogas's 12 fraudulent conduct. And indeed, despite knowing that the SEC had been alerted, 13 Rogas continued his monthly fraudulent inflation of NS8's Revenue Account balances. 14 In addition, the district court noted that even after the SEC served Rogas 15 with subpoenas investigating suspected fraud in a prior NS8 offering of securities, 16 Rogas continued to inflate NS8's revenue numbers. See Rogas II at *3. Rogas's 17 fraudulent numbers were used in connection with "at least three" "separate securities 18 offerings." Id. at *5, *7 (emphasis in original) (internal quotation marks omitted). And

31

1 having "altered bank statements to show millions of dollars of fictional customer 2 revenue and assets," Rogas "directly benefited when NS8 conducted a tender offer 3 with" money NS8 raised from "new investors," and bought his shares for more than 4 $17.5 million. Id. at *2 (internal quotation marks omitted). 5 The record detailed the millions of dollars by which Rogas fraudulently 6 inflated the NS8 Revenue Account balances. The Amended Complaint--whose 7 allegations, as noted above, are not disputed--charted month-by-month from January 8 2018 through June 2020 the exact amounts by which Rogas inflated the balances in 9 NS8's Revenue Account, revealing the magnitude of the frauds. As shown in the 10 Amended Complaint ¶ 31, from the outset the falsely inflated amount was never less 11 than $1 million; and it quickly rose, because Rogas did not simply inflate that balance 12 each month--in all but one of those months, he also increased the amount by which the 13 balance was inflated. For example, in the first three months, January, February, and 14 March of 2018, the falsely inflated amounts were, respectively, less than $1.1 million, 15 more than $1.1 million, and more than $1.3 million. By the last three months of 2018, 16 the falsely inflated amounts were, sequentially, more than $4.3 million, more than 17 $5.1 million, and more than $6 million. 18 Moreover, after becoming aware that his fraud had been discovered and

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1 was being investigated, Rogas's increases of the falsely inflated balances became 2 steeper. For August 2019--the month in which Rogas learned that NS8's whistle- 3 blowing Employee had informed the SEC of the fraud and had sent documents to the 4 SEC--Rogas's falsely inflated amount was more than $17.9 million. Unfazed by the 5 Employee's tip to the SEC, Rogas increased the falsely inflated amount for 6 September 2019 to more than $23.7 million. (See Amended Complaint ¶ 31.) 7 Rogas was similarly undaunted by actual federal investigation. SEC 8 served Rogas with its fraud-investigating subpoenas in November 2019 and 9 March 2020. (See id. ¶¶ 8, 72.) In 2019, Rogas increased the falsely inflated amount for 10 November to more than $29.1 million, and for December to more than $34.4 million. 11 (See id. ¶ 31.) In 2020, Rogas increased the falsely inflated amount for March to more 12 than $46.8 million, for April to more than $51.5 million, for May to more than 13 $56.1 million, and for June to more than $62 million. (See id.) 14 In actuality, from January 2018 through June 2020, there were only six 15 months in which the true balance in NS8's Revenue Account was more than $1 million; 16 and in no month was its actual balance as high as $4.1 million. But prospective 17 investors in 2019 and 2020 were led to believe, from Rogas's doctored Revenue 18 Account statements, that NS8 had many millions of dollars in revenue, with a

33

1 compounded growth rate of nearly 450 percent per year between January 2018 and 2 December 2019. In 2019 and 2020, NS8's three securities offerings raised a total of 3 $149 million from investors who relied on numbers inflated by Rogas; and NS8 used 4 nearly 12 percent of the total--i.e., $17,542,459--to repurchase Company shares from 5 Rogas. (See id. ¶ 2; A.226.) 6 The district court remarked on Rogas's apparent avarice. Although as 7 CEO and President of his relatively young and struggling company "Rogas received 8 a significant salary of between $268,000 to $422,000 from 2018 to 2020, he nevertheless 9 sought and obtained $17.5 million of fraud proceeds, i.e., in addition to his substantial 10 compensation." Rogas II at *5. The $17.5 million was more than 41-to-65 times Rogas's 11 "substantial" salary. Id. We also note that even at the lower end of the pay range 12 identified by the court, Rogas's salary for at least 20 of the 30 months was more than 13 twice as high as the actual balance in NS8's Revenue Account--and in many months his 14 salary was more than 10 times as high as NS8's Revenue Account balance. 15 (See Amended Complaint ¶ 31.) 16 We are also unpersuaded by Rogas's argument that the permanent 17 injunction was inappropriate on the ground that the district court failed to give his 18 "complete and unconditional acceptance of responsibility any weight when assessing

34

1 whether he was likely to commit further violations of the securities laws." (Rogas brief 2 on appeal at 1; see also id. at 10 ("unconditional acceptance"); id. at 20 ("unequivocal 3 acceptance"); id. at 34 ("sincere[] and unqualified acceptance").) As evidence of his 4 complete, unequivocal, sincere recognition of the wrongfulness of his conduct, he 5 cites--as he did in the district court (see Rogas Opposition to Lifetime Bar at 3)--the 6 written submissions he gave the court in his criminal case and the statement he made 7 at his plea hearing. Rogas states that in his plea allocution, he

8 affirmed his unconditional acceptance of responsibility for his 9 actions and promised to provide meaningful restitution:

10 I accept full responsibility for these actions, and I am 11 committed to doing everything in my power for as long as it 12 takes to provide restitution to those whom my actions have 13 harmed, to live a responsible and productive life, and to 14 continue as a committed husband to my wife Beth and father 15 to my two young daughters . . . .

16 (Rogas brief on appeal at 10 (quoting Plea Hearing Tr. 22).) Rogas argues that while 17 the district court recognized that a defendant's recognition of the wrongfulness of his 18 conduct can be probative as to the likelihood of future recurrence, it "ignored" that 19 principle. (Rogas brief on appeal at 35.) 20 We doubt that the district court ignored the principle or Rogas's 21 submissions. Rather, we infer that the court paid close attention to Rogas's

35

1 protestations of acceptance of responsibility and found that they did not dispel the 2 indications that his misconduct would likely recur, given that Rogas's oral statements 3 at his plea hearing provided more cause for concern than for comfort. 4 The plea-hearing statement on which Rogas relies appears in the following 5 context.

6 THE COURT: So Mr. Rogas, . . . tell me in your own words 7 what you did to make you believe you're guilty of the charge in 8 Count One of the indictment.

9 THE DEFENDANT: . . . .

10 In my position as president and CEO, I made a series of poor 11 judgments and decisions that led to me making material 12 misrepresentations to potential and actual investors in NS8 13 inaccurately reflecting the company's revenue. These 14 misrepresentations were made in connection with rounds of 15 fundraising the company conducted through the sale of securities 16 in the fall of 2019 and the spring of 2020.

17 This is not who I am, and I have never before violated the 18 law like this. My actions were not for personal financial gain or 19 profit. My misplaced intent was to afford the company, my colleagues 20 and team members--which I truly believed in--the time needed to generate 21 enough revenue to sustain, grow, and support the hundreds of jobs that 22 we had created.

23 I had no doubt that given this time, NS8 would be very successful 24 and innovative, and that it would both produce the promised returns and 25 benefits for its investors and employees and continue to provide 26 significant cybersecurity value and protection to its customers.

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1 Upon my resignation, I attempted, through counsel, to 2 contact the company management to offer assistance, the return of 3 money and stock, in an effort to keep the company viable and 4 protect the shareholder value and protect the hundreds of jobs that 5 we had created.

6 That being said, I fully understand what I did was wrong. I 7 understand that what I did broke the laws of the United States, and 8 it sickens me that the actions that I alone took in an effort to protect 9 ended up harming so many people.

10 I accept full responsibility for these actions, and I am 11 committed to doing everything in my power for as long as it takes 12 to provide restitution to those whom my actions have harmed, to 13 live a responsible and productive life, and to continue as a 14 committed husband to my wife Beth and father to my two young 15 daughters . . . .

16 Thank you, your Honor. 17 (Plea Hearing Tr. 20-22 (emphases added).) 18 Rogas's statement was followed by illuminating questions from the court, 19 suggestions by the Assistant United States Attorney ("AUSA") for further clarification, 20 and a proposed "clarif[ication]" by Rogas's attorney.

21 THE COURT: . . . [W]hen you made those material 22 misrepresentations, did you know those representations to be false?

23 THE DEFENDANT: I did.

24 THE COURT: And did you make those misrepresentations with 25 the intent to defraud potential investors?

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1 THE DEFENDANT: I certainly wasn't thinking of it that way, 2 but I guess it did, your Honor.

3 THE COURT: So that was a yes? 4 THE DEFENDANT: Yes. 5 (Id. at 22-23 (emphases added).) 6 After the AUSA asked the court to clarify that Rogas admitted "knowing 7 [his misrepresentations] were misleading and wrong and that investors were relying 8 on those statements when they invested money with NS8" (id. at 25), the court tried 9 again, and defense counsel William M. Sullivan, Jr., volunteered to interpret:

10 THE COURT: . . . . When you made material 11 misrepresentations to investors, first of all, did you know what you 12 were doing was wrong and illegal?

13 THE DEFENDANT: I knew -- yes. 14 THE COURT: Yes, you did know. 15 THE DEFENDANT: I did know. 16 ....

17 THE COURT: And you knew it was illegal to make 18 misrepresentations to investors.

19 THE DEFENDANT: Yes. 20 MR. SULLIVAN: Your Honor, if I might clarify, I think Mr.

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1 Rogas is trying to say that at the time he made the misrepresentations, the 2 specific intent was not to defraud the investors at that time, even 3 though he knew that he was making material misrepresentations, that 4 the information he was claiming was false, but he believed the 5 company would ultimately survive, but that's not enough to allow him 6 to articulate a defense, just so we're clear. He knew what he was 7 saying was wrong, but he also believed at the end of the day that the 8 investors would recoup their money, and more. That's not enough to 9 overcome the responsibility that he has for this offense, but just for 10 purposes of clarity, we're just trying to give some context to the 11 defendant's state of mind.

12 (Id. at 25-26 (emphases added).) 13 This record plainly does not support Rogas's claim that the district court 14 erred in not taking into account his purported acceptance of responsibility. While 15 Sullivan's "clarif[ication]" did tend to clarify that Rogas "knew that he was making 16 material misrepresentations," the qualification that his "specific intent was not to 17 defraud the investors at that time" plainly did not show unconditional acceptance of 18 responsibility. (Id. at 26 (emphasis added).) 19 Further, the Sullivan interpretation emphasized Rogas's own statement 20 that his goal was merely to assist his relatively new company to survive long enough 21 to prosper, and that Rogas "believed the company would ultimately survive," that he "knew 22 what he was saying was wrong, but he also believed at the end of the day that the investors 23 would recoup their money, and more." (Id. at 26 (emphases added).) But "[j]ustice is not

39

1 served by inflicting injustice. The ends do not justify the means. There is no 'Robin 2 Hood' defense to illegal and wrongful conduct." Chevron Corp. v. Donziger, 833 F.3d 74, 3 85 (2d Cir. 2016) (other internal quotation marks and emphases omitted); see, e.g., 4 United States v. Connelly, 156 F.3d 978, 982-83 (9th Cir. 1998) (upholding denial of 5 sentencing credit for a defendant convicted of fraud whose statements "at sentencing 6 [were] sufficiently inconsistent with acceptance of responsibility" in light of his "'Robin 7 Hood story' regarding the motive behind his frauds"). 8 Nor did Rogas's characterizations, in his own words, of his actions and his 9 impetus for those actions suggest that he would be unlikely to engage in similar end- 10 justifies-the-means conduct if he were in a position to do so in the future. He said that 11 "poor judgments and decisions . . . led" him to "mak[e] material misrepresentations to 12 potential and actual investors" (Plea Hearing Tr. 21 (emphasis added))--as if the real 13 misdeeds were those vague and unexplained "judgments and decisions" rather than 14 his specific misfeasance in changing the electronic versions of the numbers in NS8's 15 Revenue Account statements to inflate the balances shown, and causing his doctored 16 versions to be distributed to potential investors. And he minimized the magnitude and 17 effect of his doctoring the bank statements by indicating that, in his view, 18 the altering of stated bank balances from, for example, $2,000 to $5 million

40

1 (see Amended Complaint ¶ 31 (November 2018)), and changing $28,000 to $62 million 2 (see id. (June 2020)) were merely "inaccurate[] reflect[ions]" of the actual balances. 3 We find no error in the district court's declining to credit Rogas's 4 contention that his haec verba professions of acceptance of responsibility should have 5 persuaded the court that he was not likely to engage in misconduct if he were to be an 6 officer or director of a public company in the future. Nor do we see any merit in 7 Rogas's contention that the district court imposed the permanent Officer and Director 8 Bar in order to punish him. 9 We conclude that the district court properly considered the actual 10 characteristics and nature of Rogas's fraudulent conduct and weighed the relevant 11 factors in assessing the likelihood that Rogas would engage in misconduct if he were 12 again to be an officer or director of a publicly traded company. They included:

13 # the persistence of Rogas's decision to falsify NS8's financial 14 condition every month for two and a half years;

15 # his decision to inflate the statement of its revenue every month, 16 and nearly always by an amount greater than the inflated amount for the 17 prior month;

18 # his articulated view that overstating NS8's Revenue Account 19 balance by many millions of dollars--as much as $62 million--when most 20 of the actual balances are well below $100,000 is merely an "inaccurate[] 21 reflect[ion]" of the balance;

41

1 # his attempt to preserve continuation of his fraudulent practice by 2 firing a valuable Company employee;

3 # his seeking and obtaining, in addition to his substantial salary, 4 $17.5 million of the funds raised from investors who relied on the 5 fraudulent revenue statements;

6 # his attempts to protect his fraud proceeds from repatriation by 7 taking assets "offshore";

8 # his withdrawal--in violation of the Freeze Order that was 9 intended to preserve funds for return to defrauded investors--of more 10 than $1.6 million, which he proceeded to spend on luxuries or convert to 11 cryptocurrency; and

12 # his apparent utter disdain for federal fraud regulation and 13 investigations as, after he received SEC fraud-investigative subpoenas, he 14 not only did not end his fraudulent conduct, he sharply increased the 15 magnitude of his fraudulent numbers.

16 The district court's conclusion that Rogas evinced a "prevailing inclination 17 . . . to place his own self-interest ahead of the interests of his investors and the public" 18 and revealed a likelihood that he would engage in misconduct in the future if he again 19 became an officer or director of a publicly traded company, Rogas II at *8-*9 (internal 20 quotation marks omitted), is well supported by this record. Given those conclusions 21 and Rogas's belief, which he appears still to hold, that the end justifies the means, we 22 see no error, much less a clear error, in the district court's judgment that the public 23 would be best served by imposing on Rogas the lifetime Officer and Director Bar.

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1 III. THE ROGAS/PILLSBURY CHALLENGES TO THE TURN-OVER ORDER

2 In No. 25-35, Rogas and Pillsbury challenge the decision of the district 3 court in SEC v. Rogas I, 2024 WL 4930362 (or "Rogas I"), requiring Pillsbury to turn over 4 to the government $3,162,601.76, representing the remainder of Rogas's $4 million 5 retainer that Pillsbury held on September 18, 2020, when it was informed of the TRO 6 freezing Rogas's assets. The SEC sought such an order in a motion filed in May 2024 7 ("Turn-Over Motion"); Rogas opposed, filing a cross-motion seeking a declaration that 8 the Freeze Order did not apply to the $4 million retainer (see Rogas Cross-Motion 9 Opposing Turn-Over Motion, Civ. Dkt. No. 191 ("Rogas/Pillsbury Opposition")). The 10 district court, after receiving briefing and written submissions from the parties, 11 including a May 27, 2024 letter from the DOJ addressed to both sides ("DOJ Letter") 12 and submitted by the SEC, heard oral argument on July 10, 2024. 13 The record on these motions, with respect to the nature of the retainer, the 14 respective contentions of Pillsbury and the SEC, and the communications among 15 Pillsbury, the SEC, and the DOJ during Rogas's criminal prosecution, is described by 16 the district court in Rogas I, familiarity with which is assumed, and is briefly 17 summarized here.

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1 A. News on $4 Million: Who Knew What, From Where, When, and Why 2 As adverted to in Part I.C. above, in late August 2020, after an additional 3 NS8 employee had discovered Rogas's fraud, Rogas contacted Pillsbury partner 4 Sullivan, and engaged the services of Pillsbury in connection with any issues 5 concerning his positions at NS8. The record contains an engagement letter which bears 6 the date August 31, 2020, but which Rogas signed on September 1 and delivered to 7 Pillsbury on September 2 (hereinafter referred to as the "September 2, 2020 engagement 8 letter" or the "September 2 Letter"). (See, e.g., Rogas Decl. ¶¶ 3-5.) In that letter, it was 9 agreed that Rogas would remit a $15,000 retainer to Pillsbury and would continually 10 replenish that amount as needed to have Pillsbury's "work on his behalf" continue. 11 (Declaration of William M. Sullivan, Jr., dated May 17, 2024 ("Sullivan Decl."), ¶ 5; 12 see also September 2 Letter Addendum (A.200); Rogas Decl. ¶ 5).) 13 "Several days later," Rogas spoke with Sullivan and two other Pillsbury 14 attorneys in a "multi-hour call" in which Rogas "provided a comprehensive recitation 15 of [his] time with NS8 and actions [he] had taken in [his] capacity as President and 16 CEO." (Rogas Decl. ¶ 6.) Thereafter, Sullivan advised that Rogas would face multiple 17 investigations and lawsuits that would be lengthy and costly. (See id. ¶¶ 7-8; Sullivan 18 Decl. ¶ 7.) According to Rogas, on the basis of all of those conversations,

44

1 on September 9, 2020, [he] made the independent and voluntary 2 decision to initiate two separate wire transfers to Pillsbury totaling 3 $4,000,000, an amount well in excess of the small initial retainer 4 required by the engagement letter.

5 (Rogas Decl. ¶ 9.) Sullivan similarly stated:

6 Therefore, on September 9, 2020, Mr. Rogas sent Pillsbury two wire 7 transfers totaling $4 million (the "Retainer") from a Silicon Valley 8 Bank account associated with PhutureCorp, an entity affiliated with 9 Mr. Rogas. As Mr. Rogas's declaration . . . independently and 10 expressly confirms, the Retainer was to secure Pillsbury's 11 representation and pay in advance for the legal services Mr. Rogas 12 expected Pillsbury would provide to him.

13 (Sullivan Decl. ¶ 8.) 14 There is in the record no engagement letter reflecting Rogas's 15 September 9, 2020 payment of $4 million. While there was a letter dated September 16 14, 2020, modifying the September 2 Letter (in a respect not relevant here), the 17 September 14 letter made no mention of Rogas's sending Pillsbury $4 million on 18 September 9. Indeed, the addendum to the September 14 letter outlining financial 19 aspects of "the legal services to be rendered for this representation" repeated the details 20 of the September 2 Letter--i.e., that Pillsbury was requesting a $15,000 retainer, and 21 replenishments in the amount of $15,000. (See A.208.) 22 Pillsbury did not inform the SEC that it had received a $4 million retainer

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1 from Rogas. Pillsbury maintained that it considered the TRO and the ensuing Freeze 2 Order to be inapplicable to Rogas's $4 million retainer--which it had received prior to 3 the issuance of the TRO--because it had been wired from PhutureCorp, a Rogas entity 4 that was not named in the SEC complaint as a "relief defendant." (See Sullivan 5 Decl. ¶¶ 8-12.) 6 The DOJ Letter stated that, in a series of phone calls in or about November 7 2020, the DOJ had informed Pillsbury, inter alia, that the $4 million retainer Rogas gave 8 to Pillsbury had been fraud proceeds, and that those funds thus should not be used to 9 pay Rogas's legal expenses. (See A.273.) It stated that the DOJ had asked Pillsbury to 10 "segregate those crime proceed funds, and not spend down those funds to pay for 11 attorney's fees," and that Pillsbury, although not conceding the accuracy of DOJ's 12 information, "agreed not to further dissipate" the remaining amount of the $4 million 13 retainer, which was "approximately $3.7 million." (Id.) 14 However, by February 2024, the DOJ understood that $2 million of the 15 retainer funds had been billed by Pillsbury. At the July 10, 2024 hearing on these 16 motions, in response to an inquiry by the court as to the status of the funds, Sullivan 17 stated that Pillsbury had "been billing against the 4 million," and that "at this point, it's 18 exhausted." (A.316.)

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1 The SEC maintained that it had known nothing of Rogas's sending 2 Pillsbury the $4 million retainer until September 2022, nearly two years after the asset 3 freeze was imposed. The SEC stated that it became aware that Rogas had sent 4 Pillsbury such a sum only because of the contents of a Pillsbury response to a 2022 SEC 5 request for financial information from Rogas. That response, an untitled accounting 6 document, was attached to the SEC's Turn-Over Motion, and showed that Rogas had 7 an "Asset[]" of "$3,612,601.76" at "Pillsbury (Escrow)." (A.220; see also id. at 217 8 ("Unencumbered Assets," "Other Assets," "$3,612,601.76").)

9 B. The Terms of the Freeze Order 10 The Freeze Order, the terms of which were identical to those in the TRO, 11 provided in relevant part as follows:

12 A. $35,084,900 of assets, funds, or other property of 13 Defendant Adam Rogas and Relief Defendants NS8 FP, LLC, MVP 14 2020, LLC, and Rogassi Enterprises, LLC, wherever located or by 15 whomever held, and whether acquired before or after institution of 16 this action, are frozen;

17 B. Defendant, Relief Defendants, and their officers, directors, 18 successor corporations, subsidiaries, affiliates, trustees, family 19 members, agents, servants, employees, attorneys-in-fact, and those 20 persons in active concert or participation with them who receive 21 actual notice of this order . . . shall hold and retain within their

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1 control, and otherwise prevent any disposition, transfer, pledge, 2 encumbrance, assignment, dissipation, concealment, or other 3 disposal whatsoever of any of their funds or other assets or things 4 of value presently held by them, under their control or over which 5 they exercise actual or apparent investment or other authority, in 6 whatever form such assets may presently exist and wherever 7 located, up to []$35,084,900; and

8 C. Any bank, financial or brokerage institution or other person 9 or entity holding any funds, securities or other assets in the name of, 10 for the benefit of, or under the control of Defendant Adam Rogas . . . 11 shall hold and retain within their control and prohibit the 12 withdrawal, removal, transfer or other disposal of any such funds 13 or other assets.

14 Freeze Order Parts I.A.-I.C (emphases added). It also provided that "any party or 15 non-party may seek [relief] from th[e Freeze Order] upon a proper showing." 16 Id. Part I.D.

17 C. The Parties' Contentions as to the Nature of Rogas's Retainer 18 In opposition to the SEC's Turn-Over Motion and in support of its own 19 motion, Pillsbury argued principally that Rogas's $4 million retainer payment 20 constituted an advance payment retainer under New York State law, that such 21 retainers immediately become the property of the attorney upon receipt, and that, thus, 22 the Freeze Order did not apply to it. (See Rogas/Pillsbury Opposition at 7-15.)

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1 According to Pillsbury, after Rogas's comprehensive description of the actions he had 2 taken in running NS8,

3 [i]t was immediately apparent that Mr. Rogas would likely be 4 facing criminal, SEC and civil investigations and litigation and that 5 any legal defense representation would be lengthy and expensive.

6 8. Therefore, on September 9, 2020, Mr. Rogas sent Pillsbury 7 two wire transfers totaling $4 million (the "Retainer") from a Silicon 8 Valley Bank account associated with PhutureCorp, an entity 9 affiliated with Mr. Rogas. As Mr. Rogas's declaration (attached 10 hereto as Exhibit A) independently and expressly confirms, the 11 Retainer was to secure Pillsbury's representation and pay in advance for 12 the legal services Mr. Rogas expected Pillsbury would provide to him.

13 9. Consistent with Pillsbury's understanding that the 14 Retainer was an advance payment retainer for legal services 15 expected to be provided, Mr. Rogas sent the Retainer directly to 16 Pillsbury's operating account.

17 10. Once the Retainer was deposited into Pillsbury's 18 operating account, the funds remained there; the Retainer was 19 never transferred into a trust or escrow account, and the funds were 20 never treated by Pillsbury as property owned by Mr. Rogas, under his 21 control, or for his benefit.

22 (Sullivan Decl. ¶¶ 7-10 (emphases added).) 23 Rogas's declaration also took the position that he had divested himself of 24 ownership of the $4 million--at least temporarily:

25 10. I executed these wire transfers to provide Mr. Sullivan 26 and Pillsbury with advance payment to secure legal representation

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1 and pay for all necessary and sufficient services to be provided, and 2 to ensure that there would always be sufficient retainer funds for 3 Mr. Sullivan and Pillsbury to work against, in representing me . . . . 4 When I transferred these amounts to Pillsbury, consistent with what I 5 understand to be New York law, I lost my ownership interest in those 6 funds; and, that was my intention in order to secure necessary and 7 sufficient legal representation.

8 11. I understood that Mr. Sullivan would work against the 9 funds transferred to represent me and provide necessary and 10 sufficient legal services for a period that I understood was expected 11 to proceed for several years and very likely include multiple 12 lawsuits. I further understood that Mr. Sullivan would treat the 13 funds as advanced payment for legal representation to be billed at the 14 hourly rate structure identified in the engagement letter. I 15 communicated this understanding to Mr. Sullivan subsequent to 16 my wiring the funds.

17 ....

18 13. . . . . I understood that I still had the right to . . . terminate 19 the representation at any time if I so choose, and to the return of any 20 remainder of the retainer fund paid to Pillsbury at the conclusion of 21 services.

22 (Rogas Decl. ¶¶ 10-11, 13 (emphases added).) 23 The SEC, which had not learned of Rogas's $4 million payment to 24 Pillsbury before September 2022, disputed Pillsbury's "advance payment" 25 characterization of the $4 million. The SEC argued that it was instead a "security 26 retainer," in which, under New York State law, the attorney holds the money solely in

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1 order to guarantee the client's ability to pay for the services the client expects the 2 lawyer to provide. (A.186.) The SEC argued that the $15,000 retainer Pillsbury and 3 Rogas agreed to in their September 2, 2020 engagement letter was plainly a security 4 retainer; it required an initial payment and periodic replenishments when the balance, 5 because of services rendered, fell below the agreed level; and nothing in the record 6 showed that the $4 million retainer was any different. A security retainer is the 7 property of the client, not the attorney. See, e.g., Entegra Power Group LLC v. Dewey & 8 Leboeuf LLP, 493 B.R. 421, 428-29 (Bankr. S.D.N.Y. 2013). 9 The SEC also argued that regardless of the type of retainer, which could 10 affect ownership, the Freeze Order forbade any persons or entities from withdrawing, 11 removing, transferring or otherwise disposing of any funds or assets they held "for the 12 benefit of . . . Rogas," Freeze Order Part I.C. It argued that Pillsbury had held--and 13 improperly had disposed of--the $4 million for the benefit of Rogas.

14 D. The District Court's Decision 15 The district court in Rogas I agreed with the SEC's view that the $4 million 16 retainer was a security retainer that did not belong to Pillsbury: 17 The Court finds that Rogas did, in fact, retain an interest in that

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1 portion of the retainer that was not yet earned. See Committee on 2 Professional Ethics, Ethics Opinion 816, New York State Bar 3 Association, ¶ 8 (Oct. 26, 2007); see also Gala Enters., Inc. v. Hewlett 4 Packard Co., 970 F. Supp. 212, 219 (S.D.N.Y. 1997). "The mere fact 5 that the client advances money through retainer payment does not 6 entitle the attorney to claim 'ownership' of the funds at the moment 7 of receipt. It is in effect money of the client to be held in 8 constructive trust with the attorney being entitled to payment as he 9 performs work. If the attorney does not perform the work he must 10 return the money." In re Level 8 Apparel LLC, [No. 16-13164, 2023 11 WL 2940489,] at *20 [(Bankr. S.D.N.Y. Apr. 13, 2023)].

12 Rogas I at *6 n.9. 13 Further, the district court ruled that "[e]ven if Rogas' funds were an 14 advance payment retainer, $3.6 million was subject to the TRO and the Freeze Order," 15 because "the unearned portion of the funds were [sic] . . . held by Pillsbury in the name 16 of, for the benefit of, or under the control of Rogas and frozen by the [] Freeze Order." 17 Id. (emphasis added) (internal quotation marks omitted). The court noted that 18 PhutureCorp, from whose account Rogas had the $4 million wired to Pillsbury, had 19 received $10 million of the $17.5 million that Rogas received as a result of his 20 fraudulent conduct. See id. at *4 n.7. The court pointed out that

21 "[i]t is well-settled that a defendant has no right to use 22 tainted assets for his legal defense." SEC v. Ahmed, 72 F.4th 379, 395 23 (2d Cir. 2023). A defendant has no "right to spend another person's 24 money for services rendered by an attorney, even if those funds are 25 the only way that the defendant will be able to retain the attorney

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1 of his choice." Caplin & Drysdale v. United States, 491 U.S. 617, 626, 2 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989).

3 Rogas I at *5. 4 We see no error in the district court's application of this principle to the 5 facts in this case, either on the basis that the $4 million Rogas sent to Pillsbury was not 6 an advance payment retainer and was in fact a security retainer, or on the basis that 7 that money was intended to be used for the benefit of Rogas, defending him against 8 the criminal, civil regulatory, or private civil litigation that he and Pillsbury 9 anticipated. As to the nature of the retainer, the record contains no contemporaneous 10 record to support the Rogas/Pillsbury characterization of it as an advance payment 11 retainer. And while Sullivan stated in his affidavit that "the funds were never treated 12 by Pillsbury as property owned by Mr. Rogas, under his control, or for his benefit," 13 (Sullivan Decl. ¶ 10 (emphases added)), the manner in which Pillsbury "treated" the 14 funds would not be dispositive. And in any event, that statement is belied by 15 Sullivan's other statements--and similar statements by Rogas--that the money was to 16 be used for Pillsbury's representation of Rogas in the expected prosecution, SEC 17 litigation, and other civil lawsuits. 18 Further, there is documentary evidence from Pillsbury as to the status,

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1 treatment, and ownership of the "$3,612,601.76" remainder of the $4 million that Rogas 2 sent to Pillsbury. In September 2022, Sullivan responded to an SEC request for an 3 accounting of Rogas's income and assets by sending the SEC an accounting document-- 4 "Exhibit A"--that "contain[ed] all of the financial information provided" in U.S. v. Rogas 5 to the "Probation Department in connection with Mr. Rogas' sentencing." (Letter from 6 Sullivan to Nicholas P. Heinke, SEC Senior Trial Counsel, dated September 14, 2022 7 ("Sullivan Letter"), at 1.) Among "Unencumbered Assets," the document listed Rogas's 8 "Other Assets" as "$3,612,601.76." (Sullivan Letter, Exhibit A at 3.) In the section 9 identifying "Other Assets," it listed "$3,612,601.76," describing that sum as a "Deposit 10 At PWSP LLP" and as an "Asset Located" at "Pillsbury (Escrow)." (Id., Exhibit A at 6.) 11 Thus, although Sullivan asserted that "the Retainer was never transferred 12 into a[n] . . . escrow account" (Sullivan Decl. ¶ 10), the Rogas asset information that 13 Pillsbury submitted on his behalf--both to the Probation Department in his criminal 14 case and to the SEC in the present case--showed that nearly two years after the asset 15 freeze, Rogas had an "Unencumbered Asset" of "$3,612,601.76," which "Pillsbury" held 16 in "Escrow." 17 The record also clearly supports the district court's ruling that, regardless 18 of how the ownership of the $4 million retainer was characterized, Rogas and Pillsbury

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1 intended that those funds were to be used for Rogas's benefit. Although Sullivan 2 stated that Rogas's $4 million was "never . . . for his benefit" (Sullivan Decl. ¶ 10 3 (emphasis added)), he also said that the "$4 million" that "on September 9, 2020, 4 Mr. Rogas sent Pillsbury" was "to secure Pillsbury's representation and pay in advance 5 for the legal services Mr. Rogas expected Pillsbury would provide to him" (id. ¶ 8 (emphases 6 added)). And Rogas similarly characterized the purpose of his $4 million as "retention 7 of . . . Sullivan [and] Pillsbury . . . to represent me in this lawsuit, as well as in the [DOJ's] 8 criminal prosecution, . . . and in related third-party civil litigation," and said his 9 "advanced payment of funds" was "for services to be provided in the course of that 10 representation." (Rogas Decl. ¶ 2 (emphases added); see also id. ¶ 10 (the "retainer funds" 11 were "for Mr. Sullivan and Pillsbury to work against, in representing me" (emphasis 12 added)); id. ¶ 13 ("I understood that I still had the right to . . . terminate the 13 representation at any time if I so choose, and to the return of any remainder of the retainer 14 funds paid to Pillsbury at the conclusion of services." (emphasis added)).) 15 We see no error in the district court's ruling that the $4 million Rogas sent 16 to Pillsbury--from an account into which he had deposited $10 million he received as 17 part of his profits from the 30 months of fraudulent inflation of NS8's revenues--was 18 covered by the Freeze Order, and that Pillsbury violated that order by using profits

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1 Rogas received from his fraud to defend him in the government's actions against him 2 for that fraud.

3 CONCLUSION

4 We have considered all of the arguments by Rogas and Pillsbury on these 5 appeals and have found them to be without merit. The orders of the district court are 6 affirmed.