UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
|In the Matter of:||)||CIVIL Docket No. 99-7|
|DUNHILL FINANCIAL GROUP, INC.,||)||ORDER MAKING FINDINGS|
|MARK HUTCHERSON,||)||AND IMPOSING REMEDIAL|
|KEVIN JACKAM,||)||SANCTIONS AS TO RESPONDENT|
|NEW MILLENNIUM PROMOTIONS,||)||KEVIN JACKAM|
|MICHAEL THOMAS, and||)|
|FORREST DAYTON, JR.,||)|
On March 4, 1999, the Commodity Futures Trading Commission ("Commission") filed a Complaint and Notice of Hearing ("Complaint") against Kevin Jackam, among others. The four-count Complaint charges, inter alia, that Jackam violated Section 4c(b) of the Commodity Exchange Act, as amended ("Act"), 7 U.S.C. § 6c (1994), and Sections 33.10 and 166.3 of the Commission's Regulations ("Regulations"), 17 C.F.R. §§ 33.10, 166.3 (1998). The Complaint further charges that Jackam is liable pursuant to Section 13(a) and (b) as an aider and abettor and a controlling person for violations of Section 4c(b) of the Act and Section 33.10 of the Regulations.
In order to dispose of the allegations and issues raised in the Complaint, Jackam has submitted an Offer of Settlement ("Offer") which the Commission has determined to accept. Without admitting or denying any of the allegations of the Complaint or the findings herein, and prior to any adjudication on the merits, Jackam acknowledges service of this Order Making Findings and Imposing Remedial Sanctions as to Respondent Kevin Jackam ("Order"). Jackam consents to the use of the findings contained in this Order in this proceeding and in any other proceeding brought by the Commission or to which the Commission is a party.1
The Commission finds the following:
From October 1995 through February 1999, Jackam was a principal, 20 per cent owner and Director of Compliance of a registered introducing broker (the "IB") which solicited customers and prospective customers ("customers") to open accounts to trade exchange-traded options or option spreads on commodity futures contracts. Jackam coordinated the development of, and reviewed and approved the content of, all of the IB's promotional materials, including radio and Internet advertisements and written promotional materials called "Special Reports." All of the IB's promotional materials (i) misrepresented the likelihood that customers would profit from seasonal and other existing and known supply and demand forces in the underlying commodity markets; and (ii) created the impression that the risk involved in trading options was low. The IB also purchased names of prospective customers to solicit from companies which used fraudulent advertising to generate those prospective customers. Jackam reviewed and approved such advertisements prior to their use.
Jackam also called each customer prior to the customer's first trade to explain, among other things, the commissions being charged in connection with the trade, and misled customers concerning the amount of commissions, in particular the amount of commissions in doing option spread trades. Jackam thereby violated Section 4c(b) of the Act and Section 33.10 of the Regulations. Jackam is also liable for violations as an aider and abettor and as a controlling person of the IB pursuant to Section 13(a) and 13(b) of the Act.
Finally, Jackam failed to supervise the IB's agents who prepared and disseminated the Internet advertising on behalf of the IB or to review the advertising before it was disseminated, despite his responsibility to do so. Jackam thereby violated Section 166.3 of the Regulations.
Kevin Jackam resides at 1780 Ridgemill Terrace, Dacula, Georgia 30019. From October 1995 through February 1999, Jackam was the Director of Compliance, 20 per cent owner and a principal of the IB. Jackam was registered as an AP of the IB from September 1995 through February 1999.
1. The IB's Business
From October 1995 through February 1999, Jackam was responsible for developing, and supervising the preparation and dissemination of, the promotional materials used to solicit customers to open accounts to trade options and options spreads on commodity futures contracts. In trading option spreads, the customer simultaneously purchased and sold a call (or put) option in the same month, with the purchased call (put) option at a lower (higher) strike price than the call (put) sold by the customer. Between October 1995 and September 1998, the period analyzed by the Commission, the IB's customers entered into commodity option trades which never returned profits of the magnitude the IB represented in its advertisements and its APs' customer solicitations. Even when the price of a commodity trended upward, the IB's customers generally lost money on their trades in options on that commodity. In those instances where options purchased by the IB's customers moved into a profitable position, these positions usually were liquidated after generating far smaller profits than the advertisements and APs had represented. Most of the IB's customers who closed a position at a small profit lost money on their account as a whole. From October 1995 to September 1998, 1,365 customer accounts were opened through the IB, of which 1248 (91.43%) lost money. Total net customer losses from trading options were $10,258,688. Jackam was aware of the IB's trading practices and customer trading results.
2. Fraudulent Solicitation of Customers
Customers were solicited through, among other things, radio advertisements, primarily ones broadcast by advertising companies from which the IB purchased names of prospective customers to solicit, Internet advertisements, and written promotional m aterials. In these solicitations, the IB misrepresented the likelihood that the customer would profit from trading options through the IB, the risks of options trading and the amount and impact of the commissions the IB charged the customers, in particular the commissions charged for option spread trading. In addition, Internet advertisements in 1997 and early 1998 misrepresented that the content of the advertisements was "federally regulated" and created the impression that the advertisements had been approved by the Commission and/or the National Futures Association ("NFA"). Finally, Jackam routinely misled customers concerning commissions for option trades and concealed the commissions for option spread trades.
a. Radio Advertisements
From October 1995 through approximately July 1997, the IB purchased from advertising firms names of prospective customers who responded to advertisements, broadcast by the advertising firms. The advertisements, which were reviewed and approved by Jackam prior to the broadcast of the advertisement, concerned commodity futures, in particular heating oil and unleaded gasoline, misrepresented the likelihood that customers would make large profits from trading options on those commodity futures, and emphasized seasonal moves in the prices of the underlying commodities in previous years which, in fact, bore little or no relevance to the options being offered by the IB.
In January 1997, Jackam coordinated the development, and was responsible for the content, of a radio advertisement which recommended that listeners purchase unleaded gasoline options. The advertisement claimed that a $5,000 investment could return as much as $25,000, and attempted to support that predicted amount of profit as a realistic expectation by misleading references to historical seasonal price moves in unleaded gasoline which, in fact, bore little or no relevance to options on unleaded gasoline futures.
b. Internet Advertisements
From June 1997 until February 1999, Jackam coordinated the development, and reviewed and approved the contents, of advertisements sent over the Internet ("Internet advertisements") as unsolicited bulk e-mail or "spams." Each Internet advertisement spotlighted a single commodity, generally natural gas, unleaded gasoline or heating oil. Each Internet advertisement misrepresented the likelihood of a price increase in the price of the underlying commodity and further misrepresented that the holder of an option on a futures contract in that commodity would profit from the price increase. Each advertisement emphasized a specific profit prediction and attempted to support that predicted amount of profit as a realistic expectation by misleading references to historical seasonal price moves in the underlying commodity which, in fact, bore little or no relevance to options on unleaded gasoline futures.
A typical Internet advertisement for heating oil in the summer of 1997 contained the following profit prediction: "Learn how to be an informed investor and how a $.10 gain in your Heating oil option values could return as much as $21,000 by this fall." The advertisement represented that there would be an increase in the demand for heating oil with the impending onset of colder weather, and that heating oil prices would increase as a result of the increased demand. The advertisement further represented that "For 18 out of the last 18 years Heating Oil futures prices have risen an average of over $.21 between June 1 and March 31. The seasonal approach to trading is designed to anticipate, enter and capture these recurrent trends as they emerge." Finally, the Internet advertisements contained the statement that "Past performance is not indicative of future results". This statement reinforced the impression that customers of the IB had actually achieved the predicted profits when, in fact, none had.
The representations in the Internet advertising were false and misleading because, among other things: (1) few, if any, customers had ever made the amount of profit referenced and predicted in the advertisements; (2) the advertisement provided historical price movements for the underlying commodity which, in fact, bore little or no relevance to the options being marketed by the IB; and (3) there is no advantage in trading options based on seasonal and other existing and known supply and demand forces because those forces already are reflected in the price paid for the option and in the price of the option's underlying futures contract.
The Internet advertisements in 1997 and early 1998 also falsely conveyed the impression that the Commission and the NFA had approved the content of the advertisements.
c. Special Reports
From at least February 1997 to February 1999, Jackam coordinated the development, and reviewed and approved the content, of written literature, which the IB called "Special Reports", concerning one commodity, generally coffee, soybeans, unleaded gasoline, natural gas or heating oil. The IB routinely sent the Special Reports to customers in the course of soliciting them to purchase options on futures contracts in the particular commodity discussed in the Special Report. Each Special Report contained a number of purported reasons why the commodity spotlighted was likely to increase in price. The main reason set forth in almost every Special Report was the purported historical moves in the price of the commodity being spotlighted.
Special Reports for the "seasonal" commodities, such as heating oil and unleaded gasoline, included a table of the high and low prices of the commodity and the overall difference between the high and low for the past several years (the "Seasonal Table"). Each Seasonal Table gave the impression that the price of the commodity had always moved substantially from low to high in previous years, and that customers would profit when that increase occurred again. The Seasonal Tables were false and misleading because, among other things: (1) they provided historical price movements for the underlying commodity which, in fact, bore little or no relevance to the options being marketed by the IB; (2) there is no advantage in trading options based on seasonal and other existing and known supply and demand forces because those forces already are reflected in the price paid for the option and in the price of the option's underlying futures contract; and (3) in certain of the past years included in the Seasonal Tables, the price of the commodity did not trend upward, but rather trended downward.
d. Jackam Misrepresented and Failed to Disclose Information Regarding Commissions
As Director of Compliance for the IB, Jackam was responsible for ensuring that each customer understood the nature and cost of the trades that the IB was having executed for the customer's account. The APs of the IB typically urged customers to use one of two options trading strategies: (1) the purchase of call (or occasionally put) options, with a commission of $165 per option; or (2) the purchase of option spreads, in which the customer purchased and sold call (or occasionally put) options in the same delivery month, with the purchased call having a lower strike price than the sold call option (or the purchased put having a higher strike price than the sold put). Spread trades generated two commissions of $150 each, one for each leg of the spread, for a total commission of $300.
Jackam called each customer of the IB before each trade to go over the details and related costs of the trade. He routinely misled customers concerning commissions for option trades and concealed the commissions for option spread trades. Jackam disclosed commissions on a per option basis only, regardless of how many options were involved in the trade. With respect to option spread trades, Jackam once again disclosed commissions on a per option basis, regardless of the number of spreads being traded and also purposely failed to disclose that each leg of the spread trade was considered a separate option.
Jackam also failed to disclose to customers the impact of spread trade commissions on the likelihood that customers would obtain a profit on their own spread trading strategy or the difference in commissions between the two trading strategies. For the typical $5,000 investment, the IB's APs often recommended that a customer trade five spreads. Such a trade resulted in a total commission of $1,500. Therefore, after exchange and other fees, the customer's account had a balance of approximately $3,400, and needed to generate approximately a 50 percent profit just to recoup the commissions and fees.
e. Jackam Failed to Supervise Diligently
In July 1997, NFA advised the IB that it had various problems with the content of its Internet advertisements, including a statement that the message was regulated by the Commission and the NFA. Jackam assured the NFA, by letter, that in the future a "test draft" of Internet advertisements would first be electronically mailed to Jackam in the exact form that it would be sent over the Internet to customers. Despite that assurance, Jackam never instituted that new procedure. In February 1998, following additional problems with recent Internet advertisements, Jackam admitted that the review procedure had not been instituted when it was first promised. He stated that he had recently implemented "a whole new system" for double-checking the Internet advertisements prior to transmittal, i.e., each new advertisement was electronically mailed to the IB in its final form, and both Jackam and the other owner of the IB had to personally review the Internet advertisement and approve it before it was sent out over the Internet. Despite these assurances, Jackam never implemented this procedure.
Jackam was also responsible for complying with an NFA directive to the IB in June 1998 to cease using the Seasonal Tables which the IB included with the Special Reports because NFA found those tables to be misleading. Although the IB apparently ceased sending out the Seasonal Tables with the Special Reports, the Seasonal Tables remained part of the IB's website, and Jackam neither reviewed the website for objectionable material nor directed anyone else to do so.
D. LEGAL DISCUSSION
1. Jackam Violated Section 4c(b) of the Act and Commission Regulation 33.10
Section 4c(b) of the Act and Commission Regulation 33.10 provide that it shall be unlawful, in or in connection with an offer to enter into, the entry into, the confirmation of the execution of, or the maintenance of, exchange-traded commodity option transactions, to cheat or defraud, or attempt to cheat or defraud, any other person. Liability under these provisions requires proof that a person or entity made misleading statements of, or omitted to disclose, material facts with scienter, i.e., proof that the respondent committed the alleged wrongful acts "intentionally or with reckless disregard for his duties under the Act." Hammond v. Smith Barney, Harris Upham & Co., [1987-1990 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24,617 at 36,659 (CFTC March 1, 1990). See In re Staryk, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 27,206 at 45,810 (CFTC Dec. 18, 1997) (scienter is a necessary element for options fraud); CFTC v. Savage, 611 F.2d. 270, 283 (9th Cir. 1979) (finding of scienter supported by proof of recklessness).
Jackam was well aware of the amount of commissions charged by the IB for both options trading and option spread trading and the impact of the commissions, especially for spread trades, on the customers' ability to make a profit. Yet Jackam knowingly made to customers misleading representations concerning, and affirmatively concealed, the total amount of commissions charged for options trading and the impact of such commissions on the likelihood of making a profit from options trading. Jackam thereby violated Section 4c(b) of the Act and Commission Regulation 33.10.
2. Jackam Violated Section 166.3 of the Commission's Regulations
To determine whether a registrant has failed to diligently supervise, it must first be determined whether there existed a program of supervision designed to detect violations and, if so, whether the relevant policies and procedures were followed in practice. See In re GNP Commodities, Inc., [1990-1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25,360 at 39, 219 (CFTC August 11, 1992) aff'd sub nom. Monieson v. CFTC, 996 F 2d. 852 (7th Cir. 1993). Jackam's failure to diligently supervise is shown by both the fraudulent content of the IB's radio and Internet advertising and Special Reports for which he was responsible for ensuring compliance with applicable provisions of the Act and Commission Regulations, and by specific instances of Jackam's failure to supervise.
Jackam failed for more than a year to implement a procedure concerning Internet advertisements which he was responsible for implementing. In addition, although he removed the Seasonal Tables from the Special Reports, he failed to ensure that the Seasonal Tables were removed from the website. As a result of these failures to supervise diligently, Jackam violated Commission Regulation 166.3.
3. Jackam Aided and Abetted Fraud Violations of the Act
To be liable for aiding and abetting pursuant to Section 13(a) of the Act, a person "must knowingly associate himself with an unlawful venture, participate in it as something that he wishes to bring about and seek by his actions to make it succeed." In re Richardson Securities, Inc., [1980-1982 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 21,145 at 24,646 (CFTC Jan 21, 1981). Jackam was well aware of the customers' dismal trading results. Despite that knowledge, he reviewed and approved advertisements by independent advertising companies which misrepresented the likelihood of making a profit from trading options on commodity futures. Jackam was also intimately involved in the development and dissemination of a radio advertisement, Internet advertisements and Special Reports, all of which misrepresented the likelihood of profiting from trading options on commodity futures contracts. By these efforts, Jackam enhanced others' fraudulent efforts to solicit customers.
Jackam participated in the fraudulent solicitation of prospective customers as something he wished to bring about, since he benefited financially from the successful sales efforts. See Richardson, supra; In re Commodities International Corp., [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,943 at 44,564 (CFTC March 18, 1997). By virtue of Jackam's actions, he aided and abetted fraud violations of Section 4c(b) of the Act and Commission Regulation 33.10.
4. Jackam is Liable for the Fraud Violations as a Controlling Person
To be liable as a controlling person pursuant to Section 13(b) of the Act, a person must possess the requisite degree of control and either: (1) knowingly induce, directly or indirectly, the acts constituting the violation; or (2) fail to act in good faith. In re Apache Trading Corp., [1990-1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25,251 at 38,794 (CFTC Mar. 11, 1992). Jackam was responsible for all compliance matters, and in particular was responsible for (1) the development of the radio advertisement, Internet advertisements and Special Reports and for ensuring that each advertisement and Special Report complied with a Compliance Checklist; and (2) the discussion with customers and prospective customers concerning commissions charged for customer trades. Jackam was a principal, a 20 per cent owner and a co-signatory on the IB's checking account. These factors establish his control for purposes of Section 13(b) of the Act.
Jackam both knowingly induced the fraudulent conduct and failed to act in good faith. Knowing inducement requires a showing that "the controlling person had actual or constructive knowledge of the core activities that constitute the violation at issue and allowed them to continue." In re Spiegel, [1987-1990 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24, 103 at 34, 767 (CFTC Jan. 12, 1988). Jackam's involvement in the advertising efforts and direct contact with customers concerning commissions meet the standard set forth in Spiegel.
In addition, a controlling person fails to act in good faith if he does not implement a system of internal supervision. See Apache Trading, supra, at 38, 794. Jackam did not have a meaningful system of controls with respect to the radio and Internet advertising and the Special Reports, which is evidenced by the misrepresentations contained in that advertising. In addition, Jackam failed to implement a procedure to supervise the Internet advertising despite assuring both the Commission and the NFA that he had done so. Jackam is therefore liable for violations of Section 4c(b) of the Act and Commission Regulation 33.10 pursuant to Section 13(b) of the Act.
OFFER OF SETTLEMENT
Respondent Jackam has submitted an Offer of Settlement ("Offer"), in which, without admitting or denying the findings herein, he:
1. Admits the jurisdiction of the Commission with respect to all matters set forth in this Order;
(a) a hearing;
(b) all post-hearing procedures;
(c) judicial review by any court;
(d) any objection to the staff's participation in the Commission's consideration of his Offer;
(e) 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; and
(f) all claims which he 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, §§ 231-232, 110 Stat. 862-863, and Part 148 of the Regulations, 17 C.F.R. §§ 148.1 et seq. (1998), relating to, or arising from, this action, and he shall not assert any right under the Equal Access to Justice Act to seek costs, fees, or other expenses relating to, or arising from, this proceeding;
3. Stipulates that the record basis on which this Order is entered consists solely of the Complaint, this Order and findings to which he has consented in the Offer, which is incorporated in this Order; and
4. Consents to the Commission's issuance of this Order, which makes findings and orders Jackam to:
a. cease and desist from violating the Section 4c(b) of the Act and Sections 33.10 and 166.3 of the Commission's Regulations;
b. be permanently barred from trading on or subject to the rules of any contract market, and directs all contract markets to refuse Jackam trading privileges, beginning on the third Monday after the date of this Order;
c. pay a total of up to $200,000 restitution, plus pre-judgment interest thereon, in accordance with the terms set forth below; and
d. comply with his undertakings as set forth in the Offer.
FINDINGS OF VIOLATIONS
Solely on the basis of the consent evidenced by the Offer, and prior to any adjudication on the merits, the Commission finds that Jackam violated Section 4c(b) of the Act and Sections 33.10 and 166.3 of the Commission's Regulations. The Commission further finds that, pursuant to Section 13(a) of the Act, Jackam aided and abetted violations of Section 4c(b) of the Act and Section 33.10 of the Regulations, and that, pursuant to Section 13(b) of the Act, Jackam is liable as a controlling person, for the IB's violations of Section 4c(b) of the Act and Section 33.10 of the Commission's Regulations.
Accordingly, it is hereby ordered that:
1. Jackam shall cease and desist from violating Section 4c(b) of the Act, 7 U.S.C. § 6c(b) (1994), and Commission Regulations 33.10 and 166.3, 17 C.F.R. §§ 33.10 and 166.3 (1998);
2. Beginning on the third Monday after the date of this Order, Jackam shall be prohibited from trading on or subject to the rules of any contract market, and all contract markets shall refuse Jackam trading privileges;
3. Jackam shall pay restitution in the amount of up to $200,000, plus pre-judgment interest thereon, to customers of the IB. Jackam shall make an annual payment to an account designated by a monitor designated by the Commission (the Monitor") on or before July 31 of each calendar year (the "Annual Payment"), starting in calendar year 2000 and continuing for five (5) years thereafter (or until his obligation to make the Annual Payment is discharged if that happens first).2 Such funds shall be distributed annually as restitution payments to customers of the IB in the amounts calculated by the Monitor, unless, at its sole discretion, based upon the amount of funds available for distribution, the Monitor decides to defer distribution. If, at the end of the five year payment period, any of the Annual Payments have not been distributed, the Monitor shall either distribute the funds in the account or make a recommendation to the Commission that the funds instead become a civil monetary penalty pursuant to Section 6(c) of the Act. In the event the Commission rejects the Monitor's recommendation, the funds shall be distributed as restitution.
The amount of Jackam's Annual Payment shall consist of a portion of (1) the adjusted gross income (as defined by the Internal Revenue Code) earned or received by Jackam during the course of the preceding calendar year, plus (2) all other net cash receipts, net cash entitlements or net proceeds of non-cash assets received by Jackam during the course of the preceding calendar year. The Annual Payment will be determined as follows:
|Where Adjusted Gross Income Plus Net Cash Receipts Total:||Percent of Total to be Paid by Jackam to Participants is:|
|Up to $50,000||0%|
|$50,000-$100,000||30% of the amount above $50,000|
|Above $100,000||$15,000 (30% of the amount between $50,000 and $100,000) and 50% of the amount above $100,000;|
4. The Commission notes that an order of a civil monetary penalty and immediate payment of restitution against Jackam would be appropriate in this case, but does not impose it based upon Jackam's financial condition, notwithstanding the provision in paragraph 3 above. Jackam acknowledges that the Commission's acceptance of his Offer is conditioned upon the accuracy and completeness of the sworn Financial Statement and other evidence he has provided regarding his financial condition. Jackam consents that if at any time following the entry of the Order, the Division obtains information indicating that Jackam's representations concerning his financial condition were fraudulent, misleading, inaccurate, or incomplete in any material respect at the time they were made, the Division of Enforcement ("Division") may, at any time following the entry of the Order, petition the Commission to: (1) reopen this matter to consider whether Jackam provided accurate and complete financial information at the time such representations were made; (2) determine the amount of civil monetary penalty to be imposed; (3) require immediate payment of restitution; and (4) seek any additional remedies that the Commission would be authorized to impose in this proceeding if Jackam's offer had not been accepted. No other issues shall be considered in connection with this petition other than whether the financial information provided by Jackam was fraudulent, misleading, inaccurate, or incomplete in any material respect, the amount of civil monetary penalty to be imposed, and whether any additional remedies should be imposed. Jackam may not, by way of defense to any such petition, contest the validity of, or the findings in, the Order, contest the allegations of the Complaint or the amount of restitution to be paid or assert that payment of a civil monetary penalty should not be ordered;
5. Jackam shall immediately comply with the following undertakings:
a. Jackam shall provide his sworn financial statement to the Monitor on June 30 and December 31 of each calendar year, starting December 31, 1999, and continuing through and including June 30, 2004. The financial statement shall provide:
i. a true and complete itemization of all of Jackam's rights, title and interest in (or claimed in) any asset, wherever, however and by whomever held;
ii. an itemization, description and explanation of all transfers of assets with a value of $1,000 or more made by or on behalf of Jackam over the preceding six-month interval; and
iii. a detailed description of the source and amount of all of Jackam's income or earnings, however generated.
Jackam shall also provide the Monitor with complete copies of his signed federal income tax return, including all schedules and attachments thereto (e.g., IRS Forms W-2) and Forms 1099, as well as any filings he is required to submit to any state tax or revenue authority, on or before June 30 of each calendar year, or as soon thereafter as the same are filed. If Jackam moves his residence at any time, he shall provide written notice of his new address to the Monitor and the Commission within ten (10) days thereof;
b. Jackam shall cooperate fully and expeditiously with the Monitor and the Commission in carrying out all aspects of his restitution Annual Payment. He shall cooperate fully with the Monitor and the Commission in explaining his financial income and earnings, status of assets, financial statements, asset transfers, tax returns, and shall provide any information concerning himself as may be required by the Commission. Furthermore, Jackam shall provide such additional information and documents with respect thereto as may be requested by the Monitor or the Commission;
c. Jackam shall not transfer or cause others to transfer funds or other property to the custody, possession, or control of any member of Jackam's family or any other person for the purpose of concealing such funds or property from the Monitor or the Commission;
d. Jackam shall never apply for registration or claim exemption from registration with the Commission in any capacity, and shall never engage in any activity requiring such registration or exemption from registration, or act as a principal, agent or officer of any person registered, exempted from registration or required to be registered with the Commission;
e. Jackam shall cooperate fully with the Division in this proceeding by, among other things: 1) responding promptly, completely, and truthfully to any inquiries or requests for information; 2) providing authentication of documents; 3) testifying completely and truthfully; and 4) not asserting privileges under the Fifth Amendment of the United States Constitution; and
f. Neither Jackam, nor any of his agents or employees under his authority or control, shall take any action or make any public statements denying, directly or indirectly, any allegation in the Order, or creating, or tending to create, the impression that the Order is without a factual basis; provided, however, that nothing in this provision shall affect Jackam's (i) testimonial obligations; or (ii) right to take legal positions in other proceedings to which the Commission is not a party.
By the Commission:
|Secretary of the Commission|
|Commodity Futures Trading Commission|
|Date: July 29, 1999||___________________________________|
1 Jackam does not consent to the use of the Offer or this Order, or the findings consented to in this Order, as the sole basis for any other proceeding brought by the Commission other than in a proceeding to enforce the terms of this Order. Jackam does not consent to the use of the Offer or this Order, or the findings consented to in this Order, by any other person or entity in this or any other proceeding. The findings made in this Order are not binding on any other person or entity named as a defendant or respondent in this or any other proceeding.
2 The National Futures Association is hereby designated as the Monitor for a period of six years from the date of entry of this Order. Notice to the Monitor shall be made to Daniel A. Driscoll, Esq., Vice President, Compliance, or his successor, at the following address: National Futures Association, 200 West Madison Street, Chicago, IL 60606. For five years, based on the information contained in Jackam's sworn financial statements, tax returns and the other financial statements and records provided to the Monitor, the Monitor shall calculate the total amount of restitution to be paid by Jackam for that year and the specific amounts payable to customers of the IB. On or before July 31 of each year and starting in calendar year 2000, the Monitor shall send written notice to Jackam with instructions to pay immediately the amount of restitution to an account designated by the Monitor. In the event Jackam makes payments, which have not been directed by the Monitor, to any of the IB's customers, the Commission and Monitor shall reduce Jackam's total restitution obligation upon receipt from the customer of a signed written acknowledgment stating the amount Jackam paid.