IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

_______________________________________________________
)
COMMODITY FUTURES TRADING COMMISSION, ) Civil Action No. 99 C 2357
Plaintiff, )
)

vs.

)
)
JOSEPH P. McGIVNEY, Sr., ) Magistrate Judge Denlow

EDWIN A. KOZIOL, Jr.,

)
CAPITAL STRATEGIES, INC., )
JPM2, INC., )
JPM COMMODITIES, INC., )
J.P.M INVESTMENTS, INC., ) CONSENT ORDER OF EQUITABLE
JPM TRADERS, INC. and ) RELIEF AGAINST MARITA McGIVNEY
JPM, INC., )

Defendants;

)
)
- and - )
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J.P.M.R., INC., )
J. TRADERS, INC., )
LESLIE WNUKOWSKI and )
MARITA McGIVNEY, )
)

Relief Defendants.

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_______________________________________________________ )

I.

Plaintiff, Commodity Futures Trading Commission ("CFTC" or "Commission"), filed a complaint against defendants Joseph P. McGivney, Sr. ("McGivney"), Edwin A. Koziol, Jr. ("Koziol"), Capital Strategies, Inc. ("Capital"), JPM2, Inc. ("JPM2"), JPM Commodities, Inc. ("JPMC"), JPM Investments, Inc. ("Investments"), JPM Traders, Inc. ("Traders") and JPM, Inc. ("JPM") and relief defendants J.P.M.R., Inc. ("JPMR"), J. Traders, Inc. ("J. Traders"), Leslie Wnukowski ("Wnukowski") and Marita McGivney ("M. McGivney") on April 12, 1999, seeking injunctive and other equitable relief for violations of the Commodity Exchange Act, as amended ("Act"), 7 U.S.C. §§ 1 et seq. (1994), and the Commission Regulations promulgated thereunder, 17 C.F.R. §§ 1 et seq. (1998). On April 12, 1999, this Court entered a Statutory Restraining Order against the defendants and relief defendants.

II.

CONSENTS AND AGREEMENTS

To effect settlement of the matters alleged in the complaint against M. McGivney without a trial on the merits or any further judicial proceedings, relief defendant M. McGivney:

1. Consents to the entry of this Consent Order of Equitable Relief Against Marita McGivney ("Order").

2. Affirms that she has agreed to this Order voluntarily, and that no promise or threat has been made by the Commission or any member, officer, agent or representative thereof, or by any other person, to induce consent to this Order, other than as set forth specifically herein.

3. Acknowledges service of the Summons and Complaint.

4. Admits jurisdiction of this Court over her and the subject matter of this action pursuant to Section 6c(a) of the Act, 7 U.S.C. § 13a-1(a) (1994).

5. Admits that venue properly lies with this Court pursuant to Section 6c of the Act, 7 U.S.C. § 13a-1 (1994).

6. Waives:

a. all claims which she may possess under the Equal Access to Justice Act, 5 U.S.C. § 504 (1994) and 28 U.S.C. § 2412 (1994), as amended by Pub. L. No. 104-121, §§ 231-32, 110 Stat. 862-63, and Part 148 of the Regulations, 17 C.F.R. § 148.1, et seq. (1998), relating to, or arising from, this action;

b. any claim of Double Jeopardy based upon the institution of this proceeding or the entry in this proceeding of any order imposing a civil monetary penalty or any other relief;

c. the entry of findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, except as provided in part III below; and

d. all rights of appeal from this Order.

7. Acknowledges that, pursuant to Section 6c of the Act, 7 U.S.C. § 13a-1, the Court is not ordering the immediate payment of disgorgement except as provided in Section IV, paragraphs 1 and 2 of this Order, based upon the accuracy and completeness of M. McGivney's sworn representations to the Commission concerning her financial condition. M. McGivney further consents that if at any time following the entry of this Order, the Commission obtains information indicating that M. McGivney's representations concerning her financial condition were fraudulent, misleading, inaccurate or incomplete in any material respect at the time they were made, the Commission may, at its sole discretion and without prior notice to M. McGivney, petition the Court for an order requiring M. McGivney to pay immediate disgorgement. In connection with any such petition, the only issues shall be whether the financial information provided by M. McGivney was fraudulent, misleading, inaccurate or incomplete in any material respect at the time such representations were made. In any such petition, the Commission may move the Court to consider all available remedies, including, but not limited to, ordering M. McGivney to pay funds or assets, directing the forfeiture of any assets, or sanctions for contempt of this Order, and the Commission may also request additional discovery. M. McGivney may not, by way of defense to such petition, challenge the validity of her consent to this Consent Order, contest the allegations in the Complaint filed by the Commission or the Findings of Fact and Conclusions of Law contained in this Consent Order, contest the amount of disgorgement and/or interest, or assert that payment of disgorgement should not be ordered.

8. Stipulates that the record basis on which this Order may be entered shall consist solely of the Complaint and the findings contained in this Order.

9. M. McGivney admits the findings of fact in this Order.

10. Consents to the continued jurisdiction of this Court for the purpose of enforcing the terms and conditions of this Order and for any other purposes relevant to this case.

III.

FINDINGS AND CONCLUSIONS

It further appearing to this Court that there is no just reason for delay, and the Court being fully advised in the premises, M. McGivney admits the following:

1. This Court has jurisdiction over M. McGivney and the subject matter of this action pursuant to Section 6c(a) the Act, 7 U.S.C. § 13a-1(a)(1994).

2. Venue properly lies with this Court pursuant to Section 6c of the Act, 7 U.S.C. § 13a-1 (1994).

3. The Commission is an independent federal regulatory agency which is charged with the responsibility for administering and enforcing the provisions of the Act, 7 U.S.C. §§ 1 et seq. (1994), and the Regulations promulgated thereunder, 17 C.F.R. §§ 1 et seq. (1998).

4. M. McGivney, who is 59 years old, resides at 14470 Jefferson Avenue, Apt. 1N, Orland Park, Illinois 60462-2525. M. McGivney has never been registered with the Commission in any capacity.

5. Commencing in at least January 1993 to the present, M. McGivney has received from McGivney the net sum of $100,000 from commodity pool investor funds.

6. M. McGivney does not have any legitimate entitlement, as an investor or otherwise, to receive the commodity pools' investors' funds.

IV.

ORDER FOR EQUITABLE RELIEF

IT IS ORDERED THAT:

1. DISGORGEMENT: M. McGivney is ordered to pay one hundred thousand dollars ($100,000) in disgorgement ("M. McGivney Disgorgement Amount"), representing the amount M. McGivney was unjustifiably enriched from the pools' investors' funds. M. McGivney shall pay post-judgment interest from the date of this Order until the M. McGivney Disgorgement Amount is paid in full, at the Treasury Bill rate prevailing on the date of this Order, pursuant to 28 U.S.C. § 1961(a).

The persons to whom the M. McGivney Disgorgement Amount shall be paid are set forth in Appendices A and B and shall be distributed to them on a pro rata basis relative to the amount of money that they are owed as restitution by McGivney.

2. DEFERRAL OF DISGORGEMENT OBLIGATION: For a period of three (3) years after the date of this Order against M. McGivney for payment of disgorgement, M. McGivney shall not be required to pay the disgorgement, based upon the accuracy and completion of her sworn representations to the Commission concerning her financial condition. After the expiration of three (3) years, the Commission is authorized to execute on any portion of the M. McGivney Disgorgement Amount that remains unpaid. If at any time following the entry of this Order, the Commission obtains information indicating that M. McGivney's representations concerning her financial condition were fraudulent, misleading, inaccurate or incomplete in any material respect at the time they were made, the Commission may, at its sole discretion and without prior notice to M. McGivney, petition the Court for an order requiring M. McGivney to immediately pay disgorgement. In connection with any such petition, the only issues shall be whether the financial information provided by M. McGivney was fraudulent, misleading, inaccurate or incomplete in any material respect at the time such representations were made. In any such petition, the Commission may move the Court to consider all available remedies, including, but not limited to, ordering M. McGivney to pay funds or assets, directing the forfeiture of any assets, or sanctions for contempt of this Order, and the Commission may also request additional discovery. M. McGivney may not, by way of defense to such petition, challenge the validity of her consent to this Consent Order, contest the allegations in the Complaint filed by the Commission or the Findings of Fact or Conclusions of Law contained in this Consent Order, or assert that immediate disgorgement should not be ordered.

3. CREDIT FOR RESTITUTION PAYMENTS BY McGIVNEY: Before the expiration of three (3) years from the date of this Order, any restitution payments made by McGivney, shall satisfy dollar-for-dollar the disgorgement obligation owed by M. McGivney.

4. THIRD-PARTY BENEFICIARIES: Pursuant to Rule 71 of the Federal Rules of Civil Procedure, each of the individuals identified in Appendices A and B are explicitly made an intended third-party beneficiary of this Order and, after a period of three years from the date of entry of this Order, may enforce obedience of this Order to obtain satisfaction of any portion of the M. McGivney Disgorgement Amount which has not been paid by M. McGivney, to ensure continued compliance with any provision of this Order and to hold M. McGivney in contempt for any past violations of any provision of this Order.

5. Neither M. McGivney, McGivney, Koziol nor Wnukowski, nor any member of their immediate families are entitled to receive funds paid by M. McGivney as disgorgement which are distributed to any commodity pool investor listed on Appendices A and B.

6. COLLATERAL AGREEMENTS: M. McGivney shall immediately notify the Commission if she makes or has previously made any agreement with any Pool Investor obligating her to make payments outside of this Order. M. McGivney shall also provide immediate evidence of any payments made pursuant to such agreement in the manner required by Section V. paragraph A. Upon being notified of any payments made by M. McGivney to pool investors outside of this Order, the Commission will have the right to make any other changes in the restitution distribution schedule that they deem appropriate.

7. TRANSFER OF ASSETS: M. McGivney shall not transfer or cause others to transfer funds or other property to the custody, possession, or control of any members of her family or any other person for the purpose of concealing such funds from the Court, the Commission, or any investor or until the M. McGivney Disgorgement Amount has been paid in full.

V.

MISCELLANEOUS PROVISIONS

A. NOTICES. All notices required by any provision in this Order shall be sent by certified mail, return receipt requested, as follows:

Notice to Commission: Director, Division of Enforcement
Commodity Futures Trading Commission
1155 21st Street, N.W.
Washington, D.C. 20581

And

Scott R. Williamson
Deputy Regional Counsel, Division of Enforcement
Commodity Futures Trading Commission
300 South Riverside Plaza
Suite 1600 North
Chicago, IL 60606

Notice to Relief Defendant: Marita McGivney
14470 Jefferson Avenue, Apt. 1N
Orland Park, Illinois 60462-2525
Notice to Relief Defendant's Attorney: Richard C. Leng
55 W. Monroe St., Suite 2350
Chicago, IL 60603

The defendant must give notice to the Commission within 30 days of any change of her mailing address.

B. ENTIRE AGREEMENT, AMENDMENTS and SEVERABILITY. This Order incorporates all of the terms and conditions of the settlement among the parties. Nothing shall serve to amend or modify this Order in any respect whatsoever, unless: (1) reduced to writing, (2) signed by all parties, and (3) approved by order of the Court. If any provision of this Order or the application of any provision or circumstance is held invalid, the remainder of this Order shall not be affected by the holding.

C. WAIVER. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right of such party at a later time to enforce the same or any other provision of this Consent Order. No waiver in one or more instances of the breach of any provision contained in this Order shall be deemed to be, or construed as, a further or continuing waiver of such breach or waiver of the breach of any other provision of this Order.

D. SUCCESSORS AND ASSIGNS. This Order shall inure to the benefit of and be binding on the parties' successors, assigns, heirs, beneficiaries and administrators.

E. ACKNOWLEDGMENT. Upon being served with copies of this Order after entry by the Court, M. McGivney shall sign an acknowledgment of such service and serve such acknowledgments on the Commission within seven (7) calendar days.

F. Upon being served with copies of this Order after entry by the Court, the Commission shall serve a copy of the Order upon all persons identified as investors in Appendices A and B, within seven (7) calendar days.

G. JURISDICTION. This Court shall retain jurisdiction of this cause to assure compliance with this Order and for all other purposes related to this action.

There being no just reason for delay, the Clerk of the Court is hereby directed to enter this Consent Order of Permanent Injunction and Other Equitable Relief Against M. McGivney.

ORDERED this 17th day of July, 2000.

______________________________

UNITED STATES DISTRICT JUDGE

Consented to and Approved for Entry by:

RELIEF DEFENDANT

______________________________

Marita McGivney
14470 Jefferson Avenue, Apt. 1N
Orland Park, IL 60462-2525

Dated: ________________________

______________________________

Richard C. Leng
Attorney for Relief Defendant Marita McGivney
55 W. Monroe St., Suite 2350
Chicago, IL 60603

   

PLAINTIFF

_______________________________

Susan B. Padove
Senior Trial Attorney

Rosemary Hollinger
Senior Trial Attorney

Scott R. Williamson
Deputy Regional Counsel

Commodity Futures Trading Commission
300 South Riverside Plaza
Suite 1600 North
Chicago, IL 60606