UNITED STATES DISTRICT COURT FOR THE DISTRICT …stmedia.startribune.com/documents/SECMemObj2... ·...

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-07471 (the “Formal Order”). The Formal

Case 0:09-mc-00080-MJD-JJK Document 13 Filed 10/14/09 of 17

2

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.


Rule 81 of the Federal Rules of Civil Procedure recognizes a few1

exceptions to the single form of action, but none of those apply here.

3

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

relief against someone. Cook’s motion to stay the Commission’s investigation is1

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

of Howard to Quash Summons, 325 F.2d 917 (3 Cir. 1963), the Third Circuit remandedrd


4

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.

43 (1906)); see also SEC v. Ross, 504 F.3d 1130, 1146-47 (9 Cir. 2007) (equitableth

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


5

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

1006, 1008 (5 Cir. 1979); Holmes v. Eddy, 341 F.2d 477, 480 (4 Cir. 1965); In re SECth th

ex rel. Glotzer, 374 F.3d 184, 192 (2d Cir. 2004).

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. 1986). 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.

1053 (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


15 U.S.C. 78u(a)(1) states in pertinent part:2

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

not “affect[] other limitations on judicial review.” 5 U.S.C. 702.

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. 1983). 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

reviewable under the APA. Id. at 974 (citing 15 U.S.C. 78u(a) and (b)). The Eighth2

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


7

therefore, committed to agency discretion” and therefore, immune from judicial review.

Greer v. Chao, 492 F.3d 962, 965 (8 Cir. 2007) (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.th

2004) (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.

1978) (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,


8

e.g., Reisman v. Caplin, 375 U.S. 440, 446-47 (1964); Lopes v. RTC, 155 F.R.D. 14, 16

(D.R.I. 1994).

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. 1985) (emphasis added); see also SEC v. Finazzo, 2009 WL

3228566, 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.


Instead of pointing to relevant case law, Cook starts his argument by3

quoting a test that is inapplicable and that he cannot meet. See Cook’s Mem., p. 6

(quoting Koester v. American Republic Investments, Inc., 11 F.3d 818, 823 (8 Cir.th

1993)). 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

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

justify that extraordinary relief. Cook makes no showing that having parallel civil and3

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


10

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

v. First Financial Group of Texas, 659 F.2d 660, 666 (5 Cir. 1981) (“There is no generalth

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.

1997) (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. 1980) (the case for staying civil proceedings is “a far weaker one” when “[n]o


11

indictment has been returned”); Trustees of Plumbers & Pipefitters National Pension

Fund v. Transworld Mechanical, Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) (“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

of crimes.” United States v. Stringer, 535 F.3d 929, 939 (9 Cir. 2008) (citing 15 U.S.C.th

77t(b), 78u(d)); see also United States v. Edwards, 526 F.3d 747, 759 (11 Cir. 2008)th


12

(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,

317-18 (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 self-

incrimination 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. 1992)

(denying stay where defendants faced choice of testifying or asserting the Fifth


13

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. 1987) (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. 1972) (“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

trial. See, e.g., Harris v. Chicago, 266 F.3d 750, 753-54 (7 Cir. 2001).th


In deciding whether to issue a stay, a court may consider the following five4

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,

45 F.3d 322, 324-25 (9 Cir. 1995), cert. denied, 516 U.S. 827 (1995); Arden Way, 660 F.th

Supp. at 1497.

See also Dresser, 628 F.2d at 1377 (“Effective enforcement of the securities5

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. 1987) (SEC injunctive relief “implicates

14

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,

Inc., 659 F.2d at 667. When the Commission sues to enforce the securities laws, it5


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

vindicates public rights and furthers the public interest. SEC v. Rind, 991 F.2d at 1492.

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 1377. 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


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. 1973).

* * *


17

CONCLUSION

For the foregoing reasons, Cook’s motion to stay the Commission’s investigation

should be denied.

Respectfully submitted,

/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. 20549-9612

202-551-5149 (Hardy)

[email protected]

JOHN E. BIRKENHEIER

Regional Trial Counsel

175 W. Jackson Blvd.

Suite 900

Chicago, IL 60604

312-886-3947

[email protected]

Counsel for the Securities and Exchange

Commission

Local Counsel:

Robyn A. Millenacker, AUSA

District of Minnesota

300 South Fourth Street

Minneapolis, MN

612-664-5600

612-664-5788


mailto:[email protected]

Case 0:09-mc-00080-MJD-JJK Document 13-1 Filed 10/14/09 Page 1 of 4

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MINNESOTA

__________________________________________)

TREVOR COOK, ))

Plaintiff, ))

v. ) Civil No.: 0:09mc80 (MJD/JJK))

UNITED STATES SECURITIES AND ) Chief Judge Michael J. DavisEXCHANGE COMMISSION, )

) Magistrate Judge Jeffrey J. KeyesDefendant. )

__________________________________________)

LR 7.1(c) CERTIFICATE TO DEFENDANT’SMEMORANDUM IN OPPOSITION TO

COOK’S MOTION TO STAY INVESTIGATION

I, John E. Birkenheier, certify that Defendant’s Memorandum in Opposition to Cook’s Motion toStay Investigation complies with Local Rule 7.1(c).

I further certify that Word Perfect 11 was used to prepare this memorandum, and that this wordprocessing 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.


/s/ John E. Birkenheier John E. BirkenheierOne of the Attorneys for DefendantU.S. Securities and Exchange Commission175 W. Jackson Boulevard, Suite 900Chicago, IL 60604

Date: October 14, 2009 (312) 353-7390


UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MINNESOTA

__________________________________________)

TREVOR COOK, ))

Plaintiff, ))

v. ) Civil No.: 0:09mc80 (MJD/JJK))

UNITED STATES SECURITIES AND ) Chief Judge Michael J. DavisEXCHANGE COMMISSION, )

) Magistrate Judge Jeffrey J. KeyesDefendant. )

__________________________________________)

CERTIFICATE OF SERVICE

I, John E. Birkenheier, hereby certify that on October 14, 2009, I caused the following documentto be filed electronically with the Clerk of the Court through ECF, and as well as electronicallyupon counsel as follows:

[email protected]


/s/ John E. Birkenheier John E. BirkenheierOne of the Attorneys for DefendantU.S. Securities and Exchange Commission175 W. Jackson Boulevard, Suite 900Chicago, IL 60604

Dated: October 14, 2009 (312) 353-7390


mailto:[email protected]

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