USCA11 Case: 22-13811 Document: 45-1 Date Filed: 06/27/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13811
Non-Argument Calendar
____________________
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellee,
versus
COMPLETE BUSINESS SOLUTIONS GROUP, INC.
d.b.a. Par Funding, et al.,
Defendants,
JOSEPH COLE BARLETA,
a.k.a. Joe Cole,
Defendant-Appellant.
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2 Opinion of the Court 22-13811
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-81205-RAR
____________________
Before NEWSOM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
This appeal arises out of a civil action that the SEC brought
against Complete Business Solutions Group and its officers for sell-
ing unregistered securities. After discovery, the defendant offic-
ers—including Joe Cole—consented to a judgment of liability and
the issuance of a permanent injunction, with corresponding dam-
ages to be determined at a later hearing. By agreement in the Con-
sent Judgment, the district court was to take all allegations in the
Amended Complaint as true in that later hearing.
After an evidentiary hearing, the district court entered final
judgment against Cole, ordering disgorgement of profits and other
civil penalties. Cole appealed that judgment against him, raising
three issues. We’ll address each in turn. For the reasons explained
below, we affirm the district court’s judgment on all counts.
I
Cole first contends that we should go back to the beginning
and dismiss the Amended Complaint on constitutional grounds—
namely, that the SEC conducted an illegal search by basing its
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22-13811 Opinion of the Court 3
investigation of CBSG on information provided by a private third
party that Cole contends should be considered a state actor.
We need not reach the merits of this claim because Cole
consented to judgment as to liability and waived any appeal from
the entry of that judgment. “As a general rule, a party has no stand-
ing to appeal an order or judgment to which he consented.” Hof-
mann v. De Marchena Kaluche & Asociados,
657 F.3d 1184, 1187 (11th
Cir. 2011). Accordingly, Cole cannot now challenge the district
court’s denial of his motion to dismiss.
II
Cole next presents two arguments arising out of the dam-
ages phase of this case. Cole claims (1) that so-called “[t]hird-tier”
penalties were not appropriate because he lacked the necessary sci-
enter and (2) that his salary and related taxes should have been de-
ducted from any disgorgement amount pursuant to Liu v. SEC,
140
S. Ct. 1936 (2020). We review a district court’s imposition of rem-
edies for abuse of discretion. SEC v. Calvo,
378 F.3d 1211, 1216–17
(11th Cir. 2004) (per curiam). We disagree with Cole on both
counts.
First, the district court acted within its discretion in impos-
ing third-tier penalties against Cole. Third-tier penalties—the most
severe category of civil penalties available—are allowed when “[1]
the violation . . . involved fraud, deceit, manipulation, or deliberate
or reckless disregard of a regulatory requirement; and . . . [2] such
violation directly or indirectly resulted in substantial losses or cre-
ated a significant risk of substantial losses to other persons.” 15
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4 Opinion of the Court 22-13811
U.S.C. § 78u(d)(3)(B)(iii)(aa)–(bb) (enumeration added). Cole as-
serts that neither condition is satisfied.
Cole first contends that he lacked the requisite scienter for
“fraud, deceit, [or] manipulation” or acting with “deliberate or
reckless disregard” of the securities requirements.1 The district
court concluded that the SEC “set forth sufficient facts, accepted as
true, to support a finding of scienter as to Cole.” The Amended
Complaint is “replete with examples of Cole’s scienter.” 2 In one
example on which the district court specifically relied—the details
of which the parties will understand—“Cole actively assisted in
concealing LaForte’s criminal background by ‘providing LaForte
with a Par Funding email address bearing the name of his alias,
joemack@parfunding.com, and a Par Funding business card for his
alias, Joe Macki.’” Because there was adequate evidence of scienter
available from the Amended Complaint and the evidentiary hear-
ing,3 the district court did not abuse its discretion in determining
that Cole satisfied the scienter requirement of § 78u(d)(3)(B).
1Cole “admitted to selling unregistered securities and making a litany of seri-
ous misrepresentations to investors in violation of the antifraud provisions of
the Securities Act and the Exchange Act.” So his position on appeal is narrow,
contesting only his scienter underlying those actions.
2 The allegations in the Amended Complaint “shall be accepted as and deemed
true by the [district c]ourt” for purposes of a motion for disgorgement or civil
penalty—the stage of the case in question.
3 The district court also relied on allegations in the Amended Complaint that
“Cole signed an Amended Form D on behalf of Par Funding” that “falsely
stated that none of the gross proceeds of the offering would be used for
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22-13811 Opinion of the Court 5
Cole further argues that his actions did not result in “sub-
stantial losses.” But that’s not the whole statutory requirement.
Section 78u(d)(3)(B)(iii)(bb) also contemplates “creat[ing] a signifi-
cant risk of substantial losses.” Par Funding’s profitability is not
sufficient to disprove a risk of substantial losses. The district court
did not abuse its discretion in concluding, based on the evidence,
that Cole’s actions had created a significant risk of loss. Accord-
ingly, third-tier penalties were an appropriate remedy.
That brings us to Cole’s second damages-related argu-
ment—that the district court should have deducted his salary and
related taxes from the disgorgement amount. The district court
acted within its discretion in declining Cole’s proposed disgorge-
ment deductions. Courts must restrict disgorgement awards to
“net profits from wrongdoing after deducting legitimate expenses.”
Liu, 140 S. Ct. at 1946. That includes deducting “legitimate ex-
penses,” which are “marginal costs incurred in producing the reve-
nues that are subject to disgorgement.” Id. at 1950. But when the
“entire profit of a business or undertaking results from the wrong-
ful activity,” id. at 1945 (quotation omitted), a court can deny de-
ductions that would enrich the beneficiary of the ill-gotten gains.
The district court provided a thorough accounting of Cole’s
ownership interests in and disbursements from each company in
question. It concluded that Cole’s salary—and related taxes that he
paid—came from the company engaged in securities fraud as
payments to executive officers or others listed as related persons, including
himself.”
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payment for services which furthered that fraud. As the district
court put it, there “personal services” charges are “merely wrong-
ful gains under another name.” The district court’s decision to
deny Cole’s proposed disgorgement deductions was based on the
Amended Complaint, the SEC’s expert report, and the court-ap-
pointed receiver’s “analysis of the books and records.” Cole’s as-
sertions that the district court issued a blanket rejection of deduc-
tions without considering the evidence is unfounded. And the dis-
trict court permitted some salary and tax deductions for the other
defendants, further undermining Cole’s contention.
Because the district court’s conclusion was grounded in fact,
we hold that it did not abuse its discretion in denying Cole’s request
to deduct his salary and taxes from the disgorgement amount.
* * *
For those reasons, we hold that Cole cannot challenge the
district court’s denial of his motion to dismiss. We further hold
that the district court did not abuse its discretion in awarding third-
tier penalties or in declining to deduct Cole’s salary and taxes from
the disgorgement amount.
AFFIRMED.
