U.S. Commodity Futures Trading Commission v. Metters

          Jennifer E. Smiley, Illinois Bar #6275940 Ava M. Gould, Illinois Bar # 6194202 Rosemary Hollinger, Illinois Bar #3123647 Attorneys for Plaintiff U.S. Commodity Futures Trading Commission

          Kent Kawakami, California Bar #149803 Assistant United States Attorney United States Attorney’s Office

          CONSENT ORDER FOR PERMANENT INJUNCTION, CIVIL MONETARY PENALTY AND OTHER EQUITABLE RELIEF

          Hon. Manuel L. Real

         I. INTRODUCTION

         On August 20, 2014, Plaintiff Commodity Futures Trading Commission (“CFTC” or “Commission”) filed a Complaint for Injunctive and Other Equitable Relief and Penalties Under the Commodity Exchange Act (“Complaint”) against Defendant Ralph Metters, aka Malachai “Moe” Levy seeking injunctive and other equitable relief, as well as the imposition of civil penalties, for violations of the Commodity Exchange Act (“Act”), 7 U.S.C. §§1 et seq. (2012). The Court entered a Consent Order for preliminary Injunction against the Defendant on January 2, 2014. On May 16, 2016, in a related criminal action, entitled United States of America v. Malachai Levy, aka Ralph Maurice Metters, No. 14-cr-00635-JFW, (C.D. Cal.), a federal district court ordered that the Defendant pay restitution in connection with the same conduct at issue in this action.

         II. CONSENTS AND AGREEMENTS

         To effect settlement of all charges alleged in the Complaint against the Defendant without a trial on the merits of any further judicial proceedings, Defendant Ralph Metters, aka Malachai “Moe” Levy:

         1. Consents to the entry of this Consent Order for Permanent Injunction, Civil Monetary Penalty and other Equitable Relief (“Consent Order”);

         2. Affirms that he has read and agreed to this Consent Order voluntarily, and that no promise, other than as specifically contained herein, 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;

         3. Acknowledges service of the summons and Complaint;

         4. Admits the jurisdiction of this Court over him and the subject matter of this action pursuant to Section 6c(a) of the Act, 7 U.S.C. § 13a-1(a) (2012);

         5. Admits the jurisdiction of the Commission over the conduct and transactions at issue in this action pursuant to the Act, 7 U.S.C. §§ 1 et seq. (2012);

         6. Admits that venue properly lies with this Court pursuant to Section 6c(e) of the

         Act, 7 U.S.C. § 13a-1(e) (2012); 7. Waives:

a. Any and all claims that he may possess under the Equal Access to Justice Act, 5 U.S.C. § 504 (2012) and 28 U.S.C. § 2412 (2012), and/or the rules promulgated by the Commission in conformity therewith, Part 148 of the Regulations, 17 C.F.R. §§ 148.1 et seq. (2014), relating to, or arising from, this action;

b. Any and all claims that he may possess under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, §§ 201-253, 110 Stat. 847, 857-868 (1996), as amended by Pub. L. No. 110-28, § 8302, 121 Stat. 112, 204-205 (2007), relating to, or arising from, this action;

c. Any claim of Double jeopardy based upon the institution of this action or the entry of any order imposing a civil monetary penalty or any other relief, including this Consent Order; and

d. Any and all rights of appeal from this action;

         8. Consents to the continued jurisdiction of this Court over him for the purpose of implementing and enforcing the terms and conditions of this Consent order and for any other purpose relevant to this action, even if Defendant not or in the future resides outside the jurisdiction of this Court;

         9. Agrees that he will not oppose enforcement of this Consent Order on the ground, if any exists, that it fails to comply with Rule 65(d) of the Federal Rules of Civil Procedure and hereby waives any objection based thereon;

         10. Agrees that neither he nor any of his agents or employees under his authority or control shall take any action or make any public statement denying, directly or indirectly, any allegation in the Complaint or the Findings of Fact or Conclusions of Law in this Consent Order, or creating or tending to create the impression that the Complaint and/or this Consent Order is without a factual basis; provided, however, that nothing in this provision shall effect his: (a) testimonial obligations, or (b) right to take legal positions in other proceedings to which the Commission is not a party. Defendant shall undertake all steps necessary to ensure that all of his agents and/or employees under his authority or control understand and comply with this agreement;

         11. In United States of America v. Malachai Levy, aka Ralph Maurice Metters, No. 14-cr-00635-JFW, (C.D. Cal., Jan 30, 2015) (the “Criminal Action”), Defendant pleaded guilty to Conspiracy to Commit Wire Fraud, in violation of 18 U.S.C. § 1349. In connection with that plea, Defendant admitted the facts set out in the transcript of his plea allocution, a copy of which is attached as Exhibit A to this order, and those same facts are admitted as if set forth in this Consent Order.

         12. Agrees to provide immediate notice to this Court and the Commission by certified mail, in the manner required by paragraph 51 in Part VI of this Consent Order, of any bankruptcy proceeding filed by, on behalf of, or against him whether inside or outside the United States; and

         13. Agrees that no provision of this Consent Order shall in any way limit or impair the ability of any other person or entity to seek legal or equitable remedy against Defendant in any other proceeding.

         III. FINDINGS ...