UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
|COMMODITY FUTURES TRADING COMMISSION,||)||No. 99-CV-1184 DWF/AJB|
|PELTON STREET PUBLISHING, INC. and||)|
|ROGER MARTIN HOY a/k/a ROGER MARTIN,||)|
ORDER OF PERMANENT INJUNCTION AND OTHER EQUITABLE
RELIEF, BY CONSENT, AGAINST PELTON STREET PUBLISHING, INC.
AND ROGER MARTIN HOY A/K/A ROGER MARTIN
The Commodity Futures Trading Commission ("Commission") filed a Complaint (the "Complaint") on August 2, 1999, against Pelton Street Publishing, Inc. and Roger Martin Hoy, a/k/a Roger Martin ("Defendants") seeking injunctive and other equitable relief for violations of the Commodity Exchange Act, as amended, 7 U.S.C. §§ 1 et seq. (1994) ("Act"), and the Regulations promulgated thereunder, 17 C.F.R. §§ 1 et seq. (1998).
To effect a settlement of the matters alleged in the Complaint in this action prior to a trial on the merits or any further judicial proceedings, Defendants consent to the entry of this Consent Order of Permanent Injunction and Other Relief ("Consent Order"). Defendants also acknowledge service of the Summons and Complaint; waive the entry of findings of fact and conclusions of law as provided by Rule 52 of the Federal Rules of Civil Procedure, except as stated below; and waive all rights of appeal from this Order. In addition, Defendants waive all claims which they 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 Commission's Regulations, 17 C.F.R. §§ 148 et seq. (1999), to seek costs, fees and other expenses relating to, or arising from, this action. Further, Defendants waive any claim of Double Jeopardy based upon institution of this proceeding or the entry in this proceeding or the entry in this proceeding of any order imposing relief.
Defendants also consent to the continued jurisdiction of this Court for the purpose of enforcing the terms and conditions of this Consent Order.
Defendants further affirm that they have agreed to this Consent 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 Consent Order, Defendants neither admit nor deny any of the allegations of the Complaint except as to jurisdiction and venue, which they admit.
The Court finds that there is good cause for the entry of a permanent injunction and ancillary equitable relief; and there being no just reason for delay, the Court directs the entry of a permanent injunction and ancillary equitable relief, pursuant to Sections 6c and 6d of the Act, 7 U.S.C. §§ 13a-1 and 13a-2 (1994), and accordingly:
THE PARTIES AGREE AND THE COURT HEREBY FINDS THAT:
1. This Court has jurisdiction over the subject matter of this action and all parties hereto pursuant to Section 6c of the Act, 7 U.S.C. § 13a-1 (1994), which authorizes the Commission to seek injunctive relief against any person whenever it shall appear that such person has engaged, is engaging, or is about to engage in any act or practice constituting a violation of any provision of the Act or any rule, regulation, or other promulgated thereunder.
2. Venue properly lies with this Court pursuant to Section 6c(e) of the Act, 7 U.S.C. § 13a-1(e) (1994), because Defendants are found in, inhabit, and transact business in the District of Minnesota. The alleged acts and practices violating the Act occurred within this district, among other places.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendants, in or in connection with orders to make, or the making of, contracts of sale for future delivery (or options contracts thereon), made, or to be made, for or on behalf of any other person, where such contracts for future delivery were or could be used for the purposes set forth in Sections 4b(a) of the Act, 7 U.S.C. §§ 6b(a), are restrained and enjoined from violating Sections 4b(a)(i)-(iii) of the Act, 7 U.S.C. §§ 6b(a)(i)-(iii) by:
A. cheating or defrauding or attempting to cheat or defraud such other person;
B. willfully making or causing to be made to such other person any false report or statement thereof, or willfully entering or causing to be entered for such other person any false records thereof; or
C. willfully deceiving or attempting to deceive such other person.
IT IS FURTHER ORDERED that Defendants, in or in connection with any offer to enter into, the entry into, the confirmation of the execution of, or the maintenance of, any commodity option transaction are restrained and enjoined from violating Section 4c(b) of the Act, 7 U.S.C. 6c(b), and Commission Regulation 33.10, 17 C.F.R. § 33.10, by:
A. cheating or defrauding or attempting to cheat or defraud any other person;
B. making or causing to be made to any other person any false report or statement thereof or cause to be entered for any person any false record thereof; or
C. deceiving or attempting to deceive any other person by any means whatsoever.
IT IS FURTHER ORDERED that Defendants, insofar as they are acting as commodity trading advisors, commodity pool operators, or associated persons of a commodity trading advisor or commodity pool operator, are restrained and enjoined from violating Section 4o of the Act, 7 U.S.C. § 6o, by:
A. employing any device, scheme, or artifice to defraud any client or participant or prospective client or participant; or
B. engaging in any transaction, practice, or course of business which operates as a fraud or deceit upon any commodity client or participant or prospective client or participant.
IT IS FURTHER ORDERED that Defendants, insofar as they are acting as commodity trading advisors, commodity pool operators, or associated persons of a commodity trading advisor or commodity pool operator, are restrained and enjoined from violating Commission Regulation 4.41(a), 17 C.F.R. § 4.41(a), by advertising in a manner which:
A. employs any device, scheme or artifice to defraud any participant or client or prospective participant or client; or
B. involves any transaction, practice or course of business which operates as a fraud or deceit upon any participant or client or any prospective participant or client.
IT IS FURTHER ORDERED that Defendants, insofar as they are acting as commodity trading advisors, commodity pool operators, or associated persons of a commodity trading advisor or commodity pool operator, are restrained and enjoined from violating Commission Regulation 4.33(a)(7), 17 C.F.R. 4.33(a)(7), by failing to make and keep books and records in an accurate, current and orderly manner at its main business office and in accordance with § 1.13 and failing to provide such books and records as requested, specifically, the original or a copy of each report, letter, circular, memorandum, publication, writing, advertisement, or other literature or advice (including the texts or standardized oral presentations and of radio, television, seminar or similar mass media presentations) distributed or caused to be distributed by Defendants to any existing or prospective client or subscriber, showing the first date of distribution if not otherwise shown on the document.
IT IS FURTHER ORDERED that the Defendants are restrained and enjoined from:
A. acting in any capacity, including in an exempt capacity, as a futures commission merchant, commodity pool operator, commodity trading advisor, introducing broker, floor broker, floor trader, or associated person or other agent of any registrant as defined under the Act;
B. seeking registration or claiming exemption from registration with the Commission in any capacity at any time;
C. soliciting or accepting any funds from any person in connection with the purchase or sale of any commodity futures and options on futures ("commodity interest") contract;
D. placing orders, giving advice or price quotations or other information in connection with the purchase or sale of commodity interest contracts for others, introducing customers to any other person engaged in the business of commodity interest trading, and issuing statements or reports to others concerning commodity interest trading; and
E. controlling or directing the trading for any commodity interest account for or on behalf of any other person or entity, whether by power of attorney or otherwise; provided, however that Hoy is not prohibited from controlling or directing the trading for his spouse in any account in which his spouse has a controlling interest.
IT IS FURTHER ORDERED that Defendants shall pay, jointly and severally, restitution in the amount of One Hundred and Twenty Thousand Dollars ($120,000). For the purpose of providing a pro rata distribution of the restitution amount to defendants' customers, Daniel A. Driscoll of the National Futures Association ("NFA") is hereby appointed as the disbursement agent ("Agent") and is authorized, empowered, and directed to: (1) deposit funds transferred from the Defendants pursuant to this Consent Order into interest-bearing accounts which are insured by the Federal Deposit Insurance Corporation (the "Account") and under the Agent's exclusive control; (2) ensure that the Account is segregated from all other funds of the Agent; and (3) distribute funds in the Account to Defendants' customers on a pro rata basis and pursuant to Paragraph X of this Consent Order.
IT IS FURTHER ORDERED that within seven (7) days of the date of entry of this Consent Order, defendants shall transmit One Hundred and Twenty Thousand Dollars ($120,000) by electronic funds transfer or certified check to the National Futures Association ("NFA"), c/o Daniel A. Driscoll, Vice President, Compliance, National Futures Association, 200 West Madison Street, Suite 1600, Chicago, Illinois 60606 for distribution in accordance with Section VII, above. If payment is made by check, the case number must appear on the face of the check. A copy of the cover letter and form of payment shall simultaneously be transmitted to Phyllis J. Cela, Acting Director, Division of Enforcement, Commodity Futures Trading Commission, 1155 21st Street, NW, Washington, D.C 20581.
IT IS FURTHER ORDERED that that Defendants shall pay, jointly and severally, civil monetary payment in the amount of Sixty-five Thousand Dollars ($65,000). Within seven (7) days of the date of entry of this Consent Order, Defendants shall transmit Sixty-five Thousand Dollars ($65,000) by U.S. postal money order, certified check, bank cashier's check, or bank money order made payable to the Commodity Futures Trading Commission, and addressed to Dennese Posey, Division of Trading and Markets, Commodity Futures Trading Commission, 1155 21st Street, NW, Washington, D.C 20581. Payment may also be made by electronic funds transfer to the U.S. Department of Treasury. If payment is made by electronic funds transfer, a copy of the electronic transfer shall be mailed to Dennese Posey, Division of Trading and Markets, Commodity Futures Trading Commission, 1155 21st Street, NW, Washington, D.C. 20581. A copy of the cover letter and form of payment shall simultaneously be transmitted to Phyllis J. Cela, Acting Director, Division of Enforcement, Commodity Futures Trading Commission, 1155 21st Street, NW, Washington, D.C 20581.
IT IS FURTHER ORDERED that any funds ordered to be disbursed to Defendants' customers as restitution which cannot, despite reasonable efforts, be so disbursed within sixty (60) days of the entry of this Consent Order shall become a civil monetary penalty in addition to the civil monetary penalty ordered to be paid in Paragraph IX, above, and shall be promptly transmitted directly to the United States Treasury by electronic transfer, as set forth in Paragraph IX.
IT IS FURTHER ORDERED that Defendants shall cooperate fully with and assist the Agent. Such cooperation and assistance shall include, but not be limited to, providing any information to the Agent that the Agent deems necessary in exercising the authority and discharging the responsibilities of the Agent under the Consent Order.
IT IS FURTHER ORDERED that neither the Defendants nor any of their agents or employees acting under their authority or control shall take any action or make any public statement denying, directly or indirectly, any allegation in the Complaint or creating, or tending to create, the impression that this Complaint is without a factual basis; provided, however, that nothing in this provision shall affect Defendants' (i) testimonial obligations; or (ii) right to take legal positions in other proceedings to which the Commission is not a party. Defendants will undertake all steps necessary to assure that those persons who were in active concert or participation with them with respect to the conduct described in the Complaint understand and comply with this agreement.
IT IS FURTHER ORDERED that if any provision of the Consent Order or the application of any provision or circumstance is held invalid, the remainder of the Consent Order, and the application of the provision to any other person or circumstance, shall not be affected by the holding.
|Consent of Parties|
|Roger Martin Hoy, an Officer and Director Of||Dated: February 8, 2000|
Pelton Street Publishing, Inc
|Individually and on Behalf of Pelton Street Publishing, Inc.|
|Jacqueline K. Hamra,||Dated: February 8, 2000|
|Vincent A. McGonagle,|
Lawrence H. Norton,
|Attorneys for Commodity Futures Trading Commission|
|IT IS SO ORDERED.||________________________________|
|Dated: February 8, 2000||UNITED STATES DISTRICT JUDGE|