The opinion of the court was delivered by: Hon. George H. King United States District Judge Central District OF California
(PROPOSED) CONSENT ORDER OF PRELIMINARY INJUNCTION AND FOR OTHER EQUITABLE RELIEF AGAINST DEFENDANT RICHARD CARTER
Plaintiffs U.S. Commodity Futures Trading Commission ("CFTC") and the Commissioner of Corporations of the State of California have filed a Complaint for Injunctive and Other Equitable Relief, Civil Monetary Penalties and Other Equitable Relief ("Complaint") (Docket No. 1) pursuant to the Commodity Exchange Act and California law. The CFTC has separately moved the Court for the entry of a preliminary injunction pursuant to its Ex Parte Emergency Application for a Statutory Restraining Order, Preliminary Injunction, and Other Related Equitable Relief Against Defendants ("Application") (Docket No. 2), the Memorandum in Support of the Ex Parte Emergency Application for a Statutory Restraining Order, Preliminary Injunction, and Other Related Equitable Relief Against Defendants ("Memorandum") (Docket No. 8) and Appendix of Exhibits Filed in Support of Application for Statutory Restraining Order, Preliminary Injunction ("Appendix") (Docket Nos. 10-19). The Court has considered the Complaint, Application, Memorandum and Appendix, as well as the entire record in this matter.
The Court finds that Defendant Richard Carter ("Carter") has been properly served with a copy of the Summons and Complaint. The Court further finds that Carter, without admitting or denying the allegations of the Complaint, consents to the entry of this Order, consents to this Court's jurisdiction over them, admits that the subject matter of this action is properly before this Court, and admits that venue lies properly with this Court. The Court also finds that Carter's consent to this Order is entered into voluntarily and that no promise or threat has been made by the CFTC, or any member, officer, agent, or representative of the CFTC, to induce Carter to consent to this Order.
Based upon the record in this case, it appears to the Court that there is good cause to believe that Carter has engaged, is engaging in, or is about to engage in violations of the Commodity Exchange Act, as amended by the Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, Title XIII (the CFTC Reauthorization Act of 2008), §§ 13101-13204, 122 Stat. 1651 (enacted June 18, 2008), to be codified at 7 U.S.C. §§ 1 et seq. (as amended, the "Act") and that this is a proper case for granting a preliminary injunction to preserve the status quo, protect affected clients from further loss and damage, and enable the CFTC to fulfill its statutory duties. Accordingly, the Court hereby finds and orders as follows.
I. JURISDICTION AND VENUE
THE PARTIES AGREE AND IT IS HEREBY ORDERED that:
1. This Court has jurisdiction over this action pursuant to Section 6c of the Act, to be codified at 7 U.S.C. § 13a-1, which provides that whenever it shall appear to the CFTC that any person has engaged, is engaging, or is about to engage in any act or practice constituting a violation of any provision of the Act, the CFTC may bring an action in the proper district court of the United States against such person to enjoin such practice, or to enforce compliance with the Act.
2. Venue properly lies with this Court pursuant to Section 6c(e) of the Act, to be codified at 7 U.S.C. § 13a-1(e), because the acts and practices in violation of the Act have occurred and are occurring within this District.
II. PROHIBITION FROM VIOLATIONS OF THE ACT AND REGULATIONS
THE PARTIES AGREE AND IT IS HEREBY ORDERED that: Carter, as well as all persons insofar as they are acting in the capacity of agents, servants, employees, successors, assigns, or attorneys of Carter, and all persons insofar as they are acting in active concert or participation with Carter who receive actual notice of this Order by personal service or otherwise, are hereby prohibited and restrained from directly or indirectly:
1. engaging in conduct in violation of Section 4o(1)(A) and (B) of the Act, to be codified at 7 U.S.C. § 6o(1)(A) and (B); and
2. engaging in any activity related to trading in any commodity, as that term is defined in Section 1a(4) of the Act, to be codified at 7 U.S.C. § 1a(4) ("commodity interest"), including but not limited to, the following:
A. trading on or subject to the rules of any registered entity (as that term is defined in Section 1a(29) of the Act, 7 U.S.C. § 1a(29));
B. entering into any transactions involving commodity futures, options on commodity futures, commodity options (as that term is defined in CFTC Regulation 32.1(b)(1), 17 C.F.R. § 32.1(b)(1) (2009)) ("commodity options"), and/or foreign currency (as described in Section 2(c)(2)(C)(i) of the Act, 7 U.S.C. § 2(c)(2)(C)(i)) ("forex contracts") for ...