Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

Transcription

1 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA TREVOR COOK, Plaintiff, v. Civil No.: 0:09mc80 (MJD/JJK UNITED STATES SECURITIES AND Chief Judge Michael J. Davis EXCHANGE COMMISSION, Magistrate Judge Jeffrey J. Keyes Defendant. MEMORANDUM IN OPPOSITION TO COOK S MOTION TO STAY INVESTIGATION The Securities and Exchange Commission ( SEC or Commission files this memorandum in opposition to Trevor Cook s ( Cook or Plaintiff motion to stay a Commission investigation. The Court should deny Cook s motion to stay and dismiss this matter because: (1 Cook has failed to comply with the Federal Rules of Civil Procedure which require that original civil proceedings be commenced by a complaint; (2 Cook s claims are barred by the doctrine of sovereign immunity; and (3 even if sovereign immunity did not bar Cook s claims, Cook has not demonstrated any reason to stay the investigation. BACKGROUND On May 27, 2009, the Commission issued an Order Directing Private Investigation and Designating Officers to Take Testimony in a matter entitled In the Matter of Universal Brokerage FX, Inc., File No. C (the Formal Order. The Formal

2 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 2 of 17 Order, a copy of which is attached hereto as Exhibit A, authorizes members of the Commission staff to undertake a non-public investigation into whether Universal Brokerage FX, Inc. ( UBFX, Oxford Global Partners, LLC ( Oxford Global, their officers, directors, employees and other persons may have violated the federal securities laws by fraudulently offering and selling unregistered investments in purported foreign currency trading programs in violation of Sections 5(a, 5(c, and 17(a of the Securities Act of 1933 (the Securities Act, Section 10(b of the Securities Exchange Act of 1934 (the Exchange Act and Rule 10b-5 thereunder. Trevor Cook is a part owner of Oxford Global. Cook s Memorandum in Support of Motion to Stay ( Cook s Memo., p. 1. Cook believes that he is a subject of the Commission s investigation, id., as well as the focus of a federal criminal grand jury investigation, id., p. 3. Cook states that as part of its investigation, the Commission issued a subpoena for the sworn testimony of Cook and others. Cook s Mem., p. 4. In response to that subpoena, Cook now moves this Court to stay the Commission s investigation until resolution of any and all criminal investigations or proceedings involving Cook. Id., p. 1. Cook has not been indicted, id. p. 8, and no civil action has been filed against him by the Commission. Cook states that the criminal matter is presently before the grand jury and based only on that fact says he expects any indictment will occur in the near future. Id., p. 15. Cook provides no evidence of when the United States Attorney s Office expects an indictment will occur. 2

3 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 3 of 17 Cook argues that this Court should stay the Commission s investigation because with both a civil and a criminal investigation ongoing he is faced with a dilemma as to whether he should testify or rely on the Fifth Amendment right not to testify in the civil investigation. Cook states generally that [c]ontinuation of the SEC investigation in light of the criminal investigation would violate [his] Fifth Amendment privilege and interfere with the preparation of his criminal defense, but he does not allege that the Commission is taking any action to force him to waive his Fifth Amendment privilege. Id., p. 11. ARGUMENT I. THIS ACTION SHOULD BE DISMISSED BECAUSE COOK HAS NOT FILED A COMPLAINT. Rules 2, 3, 8 and 10 of the Federal Rules of Civil Procedure restrict original civil proceedings in a district court to a single form of action, commenced by a complaint naming the parties, stating the basis for the court s jurisdiction and demanding specified 1 relief against someone. Cook s motion to stay the Commission s investigation is deficient in most of these respects. The motion does not purport to be a complaint, and it states no basis for this Court s jurisdiction and asks for no judgment against anyone. The motion merely asks that the Court stay the Commission s investigation. Rather, Cook has instituted a summary proceeding for which the rules make no provision. In Application rd of Howard to Quash Summons, 325 F.2d 917 (3 Cir. 1963, the Third Circuit remanded 1 Rule 81 of the Federal Rules of Civil Procedure recognizes a few exceptions to the single form of action, but none of those apply here. 3

4 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 4 of 17 and instructed the district court to dismiss Howard s application to quash a subpoena from the IRS for failure to comply with the applicable rules of civil procedure, as the application named no defendant, stated no basis of jurisdiction and only asked for a hearing and that the court quash the summons. The court in Howard noted that there are a few special situations in which federal practice permits summary procedure either for the adjudication of a matter ancillary to a pending judicial proceeding or for the determination of some dispute concerning property already within the court s custody or control. Id. at 919 (citing Hale v. Henkel, 201 U.S. th 43 (1906; see also SEC v. Ross, 504 F.3d 1130, (9 Cir (equitable powers of receiver appointed by SEC in connection with civil enforcement action did not permit receiver to use summary proceedings to seek disgorgement of commissions where proceeds not located in the district and no independent basis for personal jurisdiction. Cook s motion to stay the Commission s investigation is not ancillary to any pending judicial action and concerns no property under the control of the district court. Rather, the motion to stay is an original action that fails to comply with the Federal Rules of Civil Procedure and consequently must be denied and the matter dismissed. II. THE DOCTRINE OF SOVEREIGN IMMUNITY BARS THIS ACTION. The United States, as sovereign, is immune from suit save as it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941. Thus, consent to suit is a prerequisite to subject matter jurisdiction over a claim against the United States, its 4

5 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 5 of 17 agencies and officials. See FDIC v. Meyer, 510 U.S. 471, 475 (1994. Sovereign immunity extends to the Commission. SEC v. Independence Drilling Corp., 595 F.2d th th 1006, 1008 (5 Cir. 1979; Holmes v. Eddy, 341 F.2d 477, 480 (4 Cir. 1965; In re SEC ex rel. Glotzer, 374 F.3d 184, 192 (2d Cir To overcome this immunity, any waiver must be unequivocally expressed in statutory text * * * and will not be implied ; it will be strictly construed, in terms of its scope, in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996. Cook carries the burden of identifying such an express statutory waiver. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000; Paradyne v. U.S. Dep t of Justice, 647 F. Supp. 1228, 1231 (D.D.C Cook fails to meet this burden, as he references no statutory waivers of sovereign immunity and does not even mention what he believes to be the basis for the Court s jurisdiction. The Administrative Procedure Act ( APA, 5 U.S.C. 701 et seq., is generally the waiver of sovereign immunity that persons seeking non-monetary relief against the government would rely on, but it does not allow this action. Although the APA allows some claims against the federal government, the APA does not permit judicial review of an agency s action that is specifically committed to its discretion by law. 5 U.S.C. 701(a(2; Dew v. United States, 192 F.3d 366, 371 (2d Cir. 1999, cert. denied, 529 U.S (2000 (the APA does not waive sovereign immunity where a matter is statutorily committed to agency discretion. Also, the APA s waiver of sovereign immunity does 5

6 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 6 of 17 not affect[] other limitations on judicial review. 5 U.S.C Any reliance by Cook on the APA would fail to establish subject matter jurisdiction over his motion to stay the Commission s investigation. The Second Circuit dealt with the question of whether Congress the APA s waiver of sovereign immunity permits a suit seeking equitable relief for alleged wrongdoing in a Commission investigation. Sprecher v. Graber, 716 F.2d 968 (2d Cir Concluding it has not, the court relied on two points. First, the initiation of an investigation and decision to issue a subpoena have each been committed to the Commission s discretion by Congress and are not judicially 2 reviewable under the APA. Id. at 974 (citing 15 U.S.C. 78u(a and (b. The Eighth Circuit has also found that an agency s investigation itself, like the final decision whether or not to take enforcement action, is within the enforcement arena and 2 15 U.S.C. 78u(a(1 states in pertinent part: The Commission may, in its discretion, make such investigations as it deems necessary to determine whether any person has violated, is violating, or is about to violate any provision of this title, the rules or regulations thereunder * * *. 15 U.S.C. 78u(b states in pertinent part: For the purpose of any such investigation * * * any member of the Commission or any officer designated by it is empowered to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, or other records which the Commission deems relevant or material to the inquiry. * * * 6

7 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 7 of 17 therefore, committed to agency discretion and therefore, immune from judicial review. th Greer v. Chao, 492 F.3d 962, 965 (8 Cir (quoting Giacobbi v. Biermann, 780 F. th Supp. 33, 37 (D.D.C. 1992; see also Ngure v. Ashcroft, 367 F.3d 975, 982 (8 Cir (citing Lincoln v. Vigil, 508 U.S. 182, 190 (1993 ( in certain instances, agency action is deemed committed to agency discretion by law, and thus unreviewable by the courts.. Second, a subpoena enforcement action is the exclusive method by which the validity of SEC investigations and subpoenas may be tested in the federal courts. * * * We hold, therefore, that [equitable actions challenging Commission investigations] are barred by the doctrine of sovereign immunity. Sprecher v. Graber, 716 F.2d at 975 (emphasis added; see also SEC v. Arthur Young & Co., 584 F.2d 1018, 1028 (D.C. Cir (any abuse of subpoena power by SEC is to be addressed through court oversight of subpoena enforcement actions brought by the SEC. Because a Commission subpoena seeking testimony and the production of documents is not self-executing, the Commission has no power to impose sanctions for noncompliance. The Commission can enforce a subpoena only by filing an action in federal court, and subpoenaed persons are subject to penalties only if they refuse to obey a court order enforcing the subpoena. 15 U.S.C. 77v(b, 78u(c; SEC v. Jerry T. O Brien, Inc., 467 U.S. 735, 741 (1984. Numerous courts have recognized that a subpoena enforcement proceeding is an adequate remedy at law for persons who believe a subpoena has been issued for any improper reason. See, 7

8 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 8 of 17 e.g., Reisman v. Caplin, 375 U.S. 440, (1964; Lopes v. RTC, 155 F.R.D. 14, 16 (D.R.I The Second Circuit later re-affirmed Sprecher v. Graber, stating that [a] district court has no jurisdiction to award non-monetary relief against an agency on a claim that it is conducting an improper investigation where another statue provides an exclusive avenue of redress, or where the action complained of is committed to agency discretion. * * * The exclusive method for testing the validity of the SEC s investigatory motives or methods is a contested subpoena enforcement proceeding * * *. Sprecher v. Von Stein, 772 F.2d 16, 18 (2d Cir (emphasis added; see also SEC v. Finazzo, 2009 WL , at *2 (2d Cir. Oct. 8, 2009 ( We have concluded that SEC investigations are authorized in its discretion by 15 U.S.C. 78u(a, * * * and that [t]he exclusive method for testing the validity of the SEC s investigatory motives or methods is a contested subpoena enforcement proceeding under 15 U.S.C. 78u(c * * * (citations omitted. Thus, Cook has no basis for contending that the APA waives sovereign immunity to challenge the initiation or conduct of Commission investigations, as Cook is attempting to do here with his motion to stay the Commission s investigation. Because Cook has not asserted any jurisdictional basis for the requisite waiver of sovereign immunity, the motion for stay of the Commission s investigation must be denied and the matter dismissed. 8

9 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 9 of 17 III. EVEN IF SOVEREIGN IMMUNITY DID NOT BAR COOK S CLAIMS, THE MOTION SHOULD BE DENIED, AS COOK HAS NOT MET THE STANDARD FOR A STAY. Even if the doctrine of sovereign immunity did not bar Cook s claims, the motion should be denied, as Cook has not met the standard necessary for a stay. Indeed, Cook has not cited a single case in which a court stayed an investigation, as opposed to a civil proceeding in federal court, and Cook does not present a single argument that would 3 justify that extraordinary relief. Cook makes no showing that having parallel civil and criminal investigations into allegations of serious wrongdoing is unfair or that any action by the Commission would violate his Fifth Amendment privilege. Also, Cook completely ignores the serious prejudice to persons who may have been harmed by Cook s possible illegal conduct if the Commission is not allowed to continue with its investigation. A. Simultaneous Pursuit of the Criminal and Commission Investigations Is Fair and Proper. Cook s arguments that simultaneous civil and criminal investigations are unfair is 3 Instead of pointing to relevant case law, Cook starts his argument by quoting a test that is inapplicable and that he cannot meet. See Cook s Mem., p. 6 th (quoting Koester v. American Republic Investments, Inc., 11 F.3d 818, 823 (8 Cir Cook does not and cannot meet that test because it requires consideration of whether two proceedings are so interrelated that he cannot protect himself at the civil trial by selectively invoking his Fifth Amendment privilege or whether two trials will so overlap that effective defense of both is impossible. Koester, 11 F.3d at 823. When investigations to determine the existence or scope of any wrongdoing are at issue, it is not possible to determine the scope of any interrelatedness or overlap in future proceedings. 9

10 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 10 of 17 completely unfounded. It is well-established that the federal government may pursue simultaneously parallel civil and criminal proceedings that arise from the same facts. As the Supreme Court stated in U.S. v. Kordel, 397 U.S. 1, 11 (1970, it would stultify enforcement of federal law to require a government agency * * * invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial. See also SEC th v. First Financial Group of Texas, 659 F.2d 660, 666 (5 Cir ( There is no general federal constitutional, statutory or common law rule barring the simultaneous prosecution of separate civil and criminal actions by different federal agencies against the same defendant involving the same transactions.. Cook attempts to overcome this basic proposition by raising two inconsistent and largely irrelevant arguments: (1 stays are not necessarily improper before an indictment is issued; and (2 criminal discovery is limited once a criminal case is brought. First, the fact that in some situations courts have issued a stay before an indictment is issued does not make that appropriate here. Cook does not and cannot dispute that [p]re-indictment requests for a stay of civil proceedings are generally denied. Fidelity National Title Ins. Co. of New York v. National Title Resources Corp., 980 F.Supp. 1022, 1025 (D. Minn (quoting U.S. v. Private Sanitation Industry Ass n, 811 F. Supp. 802, 805 (E.D.N.Y. 1992; see also SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1376 (D.C. Cir (the case for staying civil proceedings is a far weaker one when [n]o 10

11 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 11 of 17 indictment has been returned ; Trustees of Plumbers & Pipefitters National Pension Fund v. Transworld Mechanical, Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y ( stays will generally not be granted before an indictment is issued. Cook makes no attempt to even explain why this case is analogous to any of the ones he cites, and it is not analogous because all of those cases involved situations where a civil case had already been brought. Moreover, in those cases it was the government that requested the stay in order to protect grand jury proceedings or because there were two cases being pursued by the government and the public interest in a prompt investigation was not implicated. Second, the cases Cook cites regarding stays after an indictment is issued are similarly irrelevant because an indictment has not been issued against Cook. Issues about the limitations on criminal discovery are hardly relevant when criminal authorities can still use a grand jury to seek any information that is potentially relevant. See U.S. v. Sells Engineering, Inc., 463 U.S. 418, 423 (1983. In any event, the cases addressing a concern about civil authorities sharing information with criminal authorities find that parallel proceedings are improper only if the sole purpose of the civil proceeding is to obtain evidence for the criminal proceeding. See, e.g., Kordel, 397 U.S. at 11; First Financial Group, 659 F.2d at 666. In general, Congress has expressly authorized the SEC to share information with the Department of Justice to facilitate the investigation and prosecution th of crimes. United States v. Stringer, 535 F.3d 929, 939 (9 Cir (citing 15 U.S.C. th 77t(b, 78u(d; see also United States v. Edwards, 526 F.3d 747, 759 (11 Cir

12 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 12 of 17 (recognizing SEC can share evidence of misconduct with Department of Justice; Dresser, 628 F.2d at 1385 (rejecting limit on SEC s ability to provide information to the Justice Department and noting that the securities laws expressly authorize the SEC to provide information to Justice. Cook does not contend that the Commission has shared any information other than as authorized by statute. B. Cook Has No Basis for Contending that the Commission s Investigation Could Violate His Fifth Amendment Privilege Against Self- Incrimination. Cook asserts that a Commission investigation would violate his Fifth Amendment privilege against self-incrimination, but his argument shows not that there would be a violation but that Cook does not like the potential consequences of relying on the Fifth Amendment. It is well-established that forcing an individual to risk non-criminal disadvantage by remaining silent for fear of self-incrimination in a parallel criminal proceeding is not an unconstitutional infringement. Baxter v. Palmigiano, 425 U.S. 308, (1976. The discomfort of a defendant s position in having to choose between testifying in a civil deposition or asserting his fifth amendment privilege against selfincrimination does not rise to the level of a deprivation of due process: Others have faced comparable circumstances; the choice may be unpleasant, but it is not illegal and must be faced. SEC v. Musella,1983 WL 1297, at *2 (S.D.N.Y. 1983; see also United States v. District Council of New York City, 782 F. Supp. 920, 925 (S.D.N.Y (denying stay where defendants faced choice of testifying or asserting the Fifth 12

13 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 13 of 17 Amendment privilege; The fact that defendants face a potentially unpleasant choice is no reason to stay discovery. ; Arden Way Associates v. Boesky, 660 F. Supp. 1494, 1498 (S.D.N.Y (defendant in civil case argued answering complaint could incriminate him; court denied motion for stay finding defendant could assert Fifth Amendment privilege in answer and such an answer would not impose risk of losing case; Gellis v. Casey, 338 F. Supp. 651, 653 (S.D.N.Y ( Any witness in a civil or criminal trial who is himself under investigation or indictment is confronted with the dilemma of choosing to testify or to invoke his privilege against self-incrimination. Nevertheless, he must make the choice despite any extra-legal problems and pressures that might follow.. In any event, Cook s claim that the investigation will force him to choose between waiving his right not to testify under the Fifth Amendment or asserting the privilege and risking an adverse inference is inaccurate. Cook cannot show that asserting his Fifth Amendment rights in investigative testimony will lead to an adverse inference. He cites no authority in which a final adjudication against a defendant was based on the assertion of Fifth Amendment rights during an investigation. If investigative testimony were to provide a basis for an adverse inference, it would be in cases where a defendant continued to rely on Fifth Amendment rights after the Commission brought an enforcement action, which has not yet happened here. In fact, assertion of Fifth Amendment rights during a Commission investigation does not bar later substantive testimony in a deposition or at th trial. See, e.g., Harris v. Chicago, 266 F.3d 750, (7 Cir

14 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 14 of 17 C. A Stay Is Contrary to the Interests of the Commission, the Public, and Defrauded Investors. Not only has Cook failed to show any type of unfairness that could possibly justify a stay, he has also failed to show that a stay of the Commission s investigation could ever serve the public interest. In fact, there would be a significant negative impact if a stay were imposed. 4 A stay of the Commission s investigation would frustrate the public interest in prompt and effective enforcement of the federal securities laws. In the context of SEC enforcement actions, courts have recognized that [p]rotection of the efficient operations of the securities markets and the financial holdings of investors are important public interests that cannot await the outcome of a criminal investigation. First Financial Group, 5 Inc., 659 F.2d at 667. When the Commission sues to enforce the securities laws, it 4 In deciding whether to issue a stay, a court may consider the following five factors, where relevant: (1 the interest of the plaintiff in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiff of a delay; (2 the burden which any particular aspect of the proceedings may impose on defendant; (3 the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4 the interests of persons not parties to the civil litigation; and (5 the interest of the public in the pending civil and criminal litigation. Fidelity National Title Ins., 980 F. Supp. at 1024; Keating v. Office of Thrift Supervision, th 45 F.3d 322, (9 Cir. 1995, cert. denied, 516 U.S. 827 (1995; Arden Way, 660 F. Supp. at See also Dresser, 628 F.2d at 1377 ( Effective enforcement of the securities laws requires that the SEC and Justice be able to investigate possible violations simultaneously. * * * If the SEC suspects that a company has violated the securities laws, it must be able to respond quickly: it must be able to obtain relevant information concerning the alleged violation and to seek prompt judicial redress if necessary. ; SEC v. Grossman, 1987 WL 9192, at *2 (S.D.N.Y (SEC injunctive relief implicates 14

15 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 15 of 17 vindicates public rights and furthers the public interest. SEC v. Rind, 991 F.2d at As stated in Dresser, The SEC cannot always wait for Justice to complete the criminal proceedings if it is to obtain the necessary prompt civil remedy; neither can Justice always await the conclusion of the civil proceeding without endangering its criminal case. 628 F.2d at Delays harm the Commission s and the public s interest in prompt enforcement actions because of the possibility that [w]itnesses will become unavailable, memories of conversations and dates will fade, documents will become lost or destroyed and trails will grow cold. Id. In addition, if the investigation is delayed, assets that could be used to make defrauded investors whole could be dissipated before the Commission has a chance to identify and freeze them, as it is given the power to do under Section 21C(c(1 of the Exchange Act. 15 U.S.C. 78u-3(c(1. All of these considerations are relevant here. If the stay of proceedings sought by Cook were to be granted, the Commission s investigation would sit idle for an indefinite period of time, while the parties wait to see if an indictment is ever brought, and then wait further while any criminal prosecution runs its course. All the while, the public interest in vigorous enforcement of the securities laws would be frustrated. Cook s efforts to minimize the harm caused by a stay ignore the many reasons for proceeding promptly. Cook has not provided any assurances that all the proceeds of the the public interest in the integrity of the stock market ; Arden Way, 660 F. Supp. at 500 ( the public interest in the integrity of securities markets militates in favor of the efficient and expeditious prosecution of these civil litigations. 15

16 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 16 of 17 alleged fraud are protected or that all of the evidence the Commission may need will be available in the future. Cook s unsupported statements he is no longer operating his allegedly fraudulent business and that $1 million is frozen along with an unspecified amount of money in Switzerland do virtually nothing to provide comfort to potentially defrauded investors, who may have lost far more than $1 million. See Cook s Mem., p. 15. Similarly, his vague expectation that criminal authorities will proceed quickly provides no meaningful assurances. See id. Cook also continues to ignore the difference between an investigation and a proceeding in court to adjudicate rights, and much of what he says is irrelevant to the investigative stage. The fact that a criminal case may resolve many issues raised in a civil case is almost entirely irrelevant because until the Commission completes its investigation, it will not know the scope of its case. It also cannot know whether the criminal case will overlap with its case until the indictment is issued. Similarly, issues of judicial economy are not relevant at this stage because nothing other than this motion for a stay is before the Court. Courts rarely play a role in investigations. Indeed, the Commission must be free to conduct its investigation without undue interference or delay. SEC v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1053 (2d. Cir * * *

17 Case 0:09-mc MJD-JJK Document 13 Filed 10/14/09 Page 17 of 17 CONCLUSION For the foregoing reasons, Cook s motion to stay the Commission s investigation should be denied. Respectfully submitted, Local Counsel: Robyn A. Millenacker, AUSA District of Minnesota 300 South Fourth Street Minneapolis, MN /s/ John E. Birkenheier MELINDA HARDY Assistant General Counsel KRISTIN S. MACKERT Special Trial Counsel LAURA E. WALKER Senior Counsel 100 F Street, N.E. Washington, D.C (Hardy hardym@sec.gov JOHN E. BIRKENHEIER Regional Trial Counsel 175 W. Jackson Blvd. Suite 900 Chicago, IL birkenheierj@sec.gov Counsel for the Securities and Exchange Commission 17

18 Case 0:09-mc MJD-JJK Document 13-1 Filed 10/14/09 Page 1 of 4

19 Case 0:09-mc MJD-JJK Document 13-1 Filed 10/14/09 Page 2 of 4

20 Case 0:09-mc MJD-JJK Document 13-1 Filed 10/14/09 Page 3 of 4

21 Case 0:09-mc MJD-JJK Document 13-1 Filed 10/14/09 Page 4 of 4

22 Case 0:09-mc MJD-JJK Document 13-2 Filed 10/14/09 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA TREVOR COOK, Plaintiff, v. Civil No.: 0:09mc80 (MJD/JJK UNITED STATES SECURITIES AND Chief Judge Michael J. Davis EXCHANGE COMMISSION, Magistrate Judge Jeffrey J. Keyes Defendant. LR 7.1(c CERTIFICATE TO DEFENDANT S MEMORANDUM IN OPPOSITION TO COOK S MOTION TO STAY INVESTIGATION I, John E. Birkenheier, certify that Defendant s Memorandum in Opposition to Cook s Motion to Stay Investigation complies with Local Rule 7.1(c. I further certify that Word Perfect 11 was used to prepare this memorandum, and that this word processing program has been applied specifically to include all text, including headings, footnotes, quotation in the following word count. I further certify that the above referenced memorandum contains 4387 words. Respectfully submitted, /s/ John E. Birkenheier John E. Birkenheier One of the Attorneys for Defendant U.S. Securities and Exchange Commission 175 W. Jackson Boulevard, Suite 900 Chicago, IL Date: October 14, 2009 (

23 Case 0:09-mc MJD-JJK Document 13-3 Filed 10/14/09 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA TREVOR COOK, Plaintiff, v. Civil No.: 0:09mc80 (MJD/JJK UNITED STATES SECURITIES AND Chief Judge Michael J. Davis EXCHANGE COMMISSION, Magistrate Judge Jeffrey J. Keyes Defendant. CERTIFICATE OF SERVICE I, John E. Birkenheier, hereby certify that on October 14, 2009, I caused the following document to be filed electronically with the Clerk of the Court through ECF, and as well as electronically upon counsel as follows: jthompson@otslawyers.com Respectfully submitted, /s/ John E. Birkenheier John E. Birkenheier One of the Attorneys for Defendant U.S. Securities and Exchange Commission 175 W. Jackson Boulevard, Suite 900 Chicago, IL Dated: October 14, 2009 (