THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
|COMMODITY FUTURES TRADING COMMISSION,||)||Civil Action No. 96-CV-2640|
|and ARIZONA CORPORATION COMMISSION,||)|
|Plaintiffs,||)||Judge Herbert J. Hutton|
|AYM FINANCIAL CORPORATION,||)|
|THOMAS M. PALEY,||)|
|ADAM S. JUECHTER, and||)|
FINAL ORDER OF DISTRIBUTION, BY CONSENT,
SUPPLEMENTING ORDER OF PERMANENT INJUNCTION
AGAINST AYM FINANCIAL CORPORATION,
THOMAS M. PALEY AND ADAM S. JUECHTER
On April 2, 1996, the Court entered a Consent Order of Permanent Injunction and Other Equitable Relief Against Thomas M. Paley ("Paley"), Adam S. Juechter ("Juechter") and AYM Financial Corporation ("Original Consent Order"). The Original Consent Order reserved issues of disgorgement, restitution, and a civil monetary penalty. This Final Order of Distribution, by Consent, Supplementing Order of Permanent Injunction ("Final Consent Order") addresses those issues.
To effect a settlement of all of the remaining issues and matters alleged in the Complaint without a trial on the merits, defendants Paley, Juechter, and AYM Financial Corporation ("AYM") consent to the entry of this Final Consent Order.
The Court finds that there is good cause for the entry of this Final Consent Order.
IT IS HEREBY ORDERED THAT:
A. The Original Consent Order remains in full force and effect except for the following items of interim relief within the Original Consent Order: paragraphs 6, 7 and 8, which are hereby vacated.
B. Defendants Paley, Juechter, and AYM, jointly and severally with each other and any other defendant who may be so ordered in this matter, shall disgorge and make restitution of the sum of $3 million to investors in AYM foreign currency trading accounts, provided that payment of all but $77,618 of such disgorgement, restitution and prejudgment interest is waived, based upon Paley's and Juechter's sworn representations in their Financial Disclosure Statements, dated November 13, 1998 and November 30, 1998, respectively. Payment by defendants Paley, Juechter, and AYM in accordance with the restitution order entered in the case filed by the Securities and Exchange Commission, Securities and Exchange Commission v. AYM, 96-CV-1723 (E.D. Pa.), arising out of the same activity as this action, shall satisfy their duties to pay disgorgement, restitution or a civil penalty pursuant to Section 6c(d)(1) of the Act, 7 U.S.C. § 13a-2(1) (1994). This determination shall have no collateral effect on any other claims or orders regarding defendants' duties to pay disgorgement or restitution in any other proceeding. The determination to waive all but $77,618 of such disgorgement, restitution and prejudgment interest is conditioned upon the accuracy and completeness of Paley's and Juechter's Financial Disclosure Statement. If at any time following the entry of this Final Consent Order, the Commodity Futures Trading Commission ("CFTC") or the Arizona Corporation Commission ("ACC") obtains information indicating that Paley's and Juechter's representations concerning their financial condition were fraudulent, misleading, inaccurate or incomplete in any material respect as of the time such representations were made, the CFTC or ACC may, in its sole discretion and without prior notice to Paley and Juechter, petition this Court for an order requiring them to pay the full Restitution Amount, plus interest thereon and a civil penalty. In connection with any such petition, the only issues shall be whether the financial information provided by Paley or Juechter were fraudulent, misleading, inaccurate or incomplete in any material respect as of the time such representations were made, and the amount of civil penalty to be imposed. In its petition, the CFTC or ACC may move this Court to consider all available remedies, including, but not limited to, entering an order requiring Paley and Juechter to pay funds or assets, directing the forfeiture of any assets, or sanctions for contempt of this Order, and the CFTC or ACC may also request additional discovery. Paley and Juechter may not, by way of defense to such petition, challenge the validity of this Final Consent Order or the Original Consent Order of April 1, 1996 (collectively referred to as "Consent Orders") or contest the allegations in the original Complaint filed by the Plaintiffs.
C. Paley and Juechter shall comply with their undertakings that neither they 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 this Order or creating, or tending to create, the impression that this Order is without a factual basis. Paley and Juechter 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 this Order understand and comply with this agreement.
D. If any provision of the Consent Orders or the application of any provision or circumstance is held invalid, the remainder of the Consent Orders, and the application of the provision to any other person or circumstance, shall not be affected by the holding.
E. The annexed Consents of Paley, Juechter and AYM to the entry of this Order are incorporated herein.
F. This Court shall retain jurisdiction of this action in order to implement and carry out the terms of all orders and decrees which have been or may be entered herein, to entertain any suitable application or motion for additional relief within the jurisdiction of this Court, and to assure compliance with the Consent orders.
Done and ordered this 4th day of October, 1999, at Philadelphia, Pennsylvania.
UNITED STATES DISTRICT JUDGE