Securities And Exchange Commission v. One or More Unknown Purchasers of Call Options for the Common Stock of TXU Corp., No. 1:2007cv01208 - Document 109 (N.D. Ill. 2009)
Court Description: MOTION by Plaintiff Securities And Exchange Commission for judgment to Identify Unknown Purchaser # 2 as Marcos Montero and Enter Agreed Final Judgment Against Defendant Montero (Attachments: # 1 Exhibit A Montero Letter June 19, 2007, # 2 Exhibit B Montero Consent, # 3 Text of Proposed Order as to Montero)(Brandt, Jennifer)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION (CHICAGO) ________________________________________________ : SECURITIES AND EXCHANGE COMMISSION, : : Plaintiff, : : vs. : Civil Action No. 1:07cv1208 : ONE OR MORE UNKNOWN PURCHASERS OF : Judge Lindberg CALL OPTIONS FOR THE COMMON STOCK OF : TXU CORP., et al., : : Defendants. : ________________________________________________: FINAL JUDGMENT AS TO MARCOS MONTERO The Securities and Exchange Commission filed a Complaint, and Defendant Marcos Montero (“Defendant”): entered a general appearance; consented to the Court’s jurisdiction over Defendant and the subject matter of this action; consented to entry of this Final Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right to appeal from this Final Judgment. Therefore: I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant’s agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $238,400.00 (USD) plus prejudgment interest thereon in the amount of $31,904.00, for a total of $270,304.00. Defendant shall satisfy this obligation by paying $55,000.00 within 60 days of the date of this Order by certified check, bank cashier’s check, or United States postal money order payable to the Clerk of this Court, together with a cover letter identifying Marcos Montero as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Agreed Final Judgment. Defendant shall pay the remaining $215,304.00, plus postjudgment interest, within one year from the entry of this Agreed Final Judgment by certified check, bank cashier’s check, or United States postal money order payable to United States District Court for the Northern District of Illinois, Michael W. Dobbins, Clerk of Court, Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604, and shall be accompanied by a letter. Defendant shall simultaneously transmit photocopies of such payment and letter to the Commission’s counsel in this action. By making this payment, FINAL JUDGMENT AS TO MARCOS MONTERO SEC v. One or More Unknown Purchasers of Call Options for the Common Stock of TXU Corp., et al. Page 2 Defendant relinquishes all legal and equitable right, title, and interest in such funds, and no part of the funds shall be returned to Defendant. The Clerk shall deposit the funds into an interest bearing account with the Court Registry Investment System (“CRIS”) or any other type of interest bearing account that is utilized by the Court. These funds, together with any interest and income earned thereon (collectively, the “Fund”), shall be held in the interest bearing account until further order of the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative Office of the United States Courts, the Clerk is directed, without further order of this Court, to deduct from the income earned on the money in the Fund a fee equal to ten percent of the income earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the United States. The Commission may propose a plan to distribute the Fund subject to the Court’s approval. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961. The Court’s Order dated March 28, 2007 (“Asset Freeze Order”), entered a Preliminary Injunction Against Marcos Montero (a.k.a. “Unknown Defendant #2”), which, among other things, continued the asset freeze as to certain TXU Corp. securities purchased on 2/21/07 and/or proceeds from the sale or exercise of those securities. (Asset Freeze Order at ¶ I.) The Asset Freeze Order remains in full force and effect, except that the Asset Freeze Order is modified to permit Marcos Montero, his agents, servants, employees, attorneys, and those persons in active concert or participation with him who receive actual notice of this Final Judgment by personal service or otherwise (including, without limitation, Credit Suisse Securities, USA, Swiss American Securities, Inc., Credit Suisse Private Bank, or its affiliates, successors in interest, and assigns), to transfer any and all funds held pursuant to the Asset Freeze Order to the Clerk of this FINAL JUDGMENT AS TO MARCOS MONTERO SEC v. One or More Unknown Purchasers of Call Options for the Common Stock of TXU Corp., et al. Page 3 Court in the manner listed above to satisfy, in full or in part, Defendant’s disgorgement obligation. III. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall comply with all of the undertakings and agreements set forth therein. IV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. V. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice. Dated this _______ day of ______, 2009. ____________________________________ UNITED STATES DISTRICT JUDGE FINAL JUDGMENT AS TO MARCOS MONTERO SEC v. One or More Unknown Purchasers of Call Options for the Common Stock of TXU Corp., et al. Page 4 Agreed as to form: /s/Marcos Montero Marcos Montero, Defendant /s/Jennifer D. Brandt Jennifer D. Brandt United States Securities and Exchange Commission 801 Cherry Street, Suite 1900 Fort Worth, TX 76102 Ph: 817-978-6442 Fax: 817-978-4927 brandtj@sec.gov ATTORNEY FOR PLAINTIFF FINAL JUDGMENT AS TO MARCOS MONTERO SEC v. One or More Unknown Purchasers of Call Options for the Common Stock of TXU Corp., et al. Page 5
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