II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Bruce A. Cole is permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual notice of this Final Judgment by personal service or otherwise: (a) Defendant Bruce A. Cole’s officers, agents, servants, Case 2:12-cv-08024-AB-JEM Document 98-3 Filed 09/16/16 Page 2 of 6 Page ID #:550

Sections 17(a)(1) and (3) of the Securities Act [15 U.S.C. § 77q(a)(1), (3)] make it unlawful for any person, in the offer or sale of a security, by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly, to, among other things, employ any device, scheme, or artifice to defraud, or to engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit upon the purchaser. Similarly, Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5(a) and (c) [17 CFR § 240.10b-5(a), (c)] thereunder make it unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate comer or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of a security, to, among other things, employ any device, scheme, or artifice to defraud, or to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person. The “in connection with” requirement of Section 10(b) and Rule 10b-5 is satisfied if the fraud touches upon a securities transaction.

(UMF Nos. 18-20.) This Court should adjudicate Robins liable for violating the fiduciary duties imposed on him by the New Mexico Business Corporation Act and the common law by failing to disclose the true status of Biomoda’s SB-2 registration, by failing to obtain the requisite board authorization necessary before issuing Biomoda stock, and by causing the sale of unregistered Biomoda stock owned by ADOT.3 CONCLUSION The undisputed evidence before this Court demonstrates Robins’ liability as a matter of law for violating 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5, and for breaching his fiduciary duties as an officer and director of Biomoda. The Court should grant Biomoda's and enter summary judgment establishing Robins’ liability.

Section 17(a)(2) of the Securities Act and Rule 10b-5(b) of the Exchange Act prohibit the omission of material facts necessary to make statements, “in the light of the circumstances under which they were made, not misleading.” 15 U.S.C. § 77q; 17 C.F.R § 240.10b-5. To violate these provisions, the uttered statements need not be false themselves, but merely misleading because of omitted information.

person.” 17 C.F.R. § 240.10b-5(a), (c); see 15 U.S.C. § 77q(a)(1), (3). Courts “refer to claims under Rule 10b-5(a) and (c) as ‘scheme liability claims’ because they make deceptive conduct actionable, as opposed to Rule 10b-5(b), which relates to deceptive statements.”

Plaintiffs’ Omnibus Memorandum of Law in Opposition to Defendants’ Motions to Dismiss, dated May 29, 2015 (Dkt. 32) Plaintiffs Ralph Langstadt and Julie Lemond PSLRA Private Securities Litigation Reform Act of 1995 Rule 10b-5 17 C.F.R. § 240.10b-5 SDN Specially Designated National SEC U.S. Securities and Exchange Commission Section 10(b) 15 U.S.C. § 78j(b) Section 20(a) 15 U.S.C. § 78t(a) Serio Decl. Declaration of Robert F. Serio, dated March 16, 2015 Serio Reply Decl.

. 15 U.S.C. §78j(b); 17 C.F.R. §240.10b-5. In stark contrast to what the Exchanges contend, none of the “exact” manipulative conduct complained of in the SCAC – enhanced data feeds, co-location services, and complex order types – is “core regulatory” conduct approved by the SEC, through Regulation NMS (“Reg NMS”) or otherwise.

This is quintessential deceptive conduct under Rule 10b-5(a) and (c). 17 CFR 240.10b-5(a), (c). Further, Lidingo violated the Exchange Act on its own by endorsing articles without disclosing that it was paid to do so.

Under Section 24 of the ICA and 1 See the SEC’s Opposition to Defendant Daifotis’s motion to dismiss for a discussion of the standard of review for motions under Fed.R.Civ.P. 12(b)(6). 2 Rule 10b-5 [17 C.F.R. § 240.10b-5] makes it unlawful: (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 3 Section 17(a) [15 U.S.C. § 77(q)(a)] makes it unlawful to: (1) to employ any device, scheme, or artifice to defraud, (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the pur

See 15 U.S.C. § 78j(b) & 17 C.F.R. § 240.10b-5; 15 U.S.C. § 78t(a); 15 U.S.C. § 77q(a). The Fourth Claim requires the SEC to plead scienter to the extent that it is premised on a violation of Section 206(1) of the Investment Advisers Act, see 15 U.S.C. § 80b-6(1).