UNITED STATES DISTRICiT\fQCORESKA

SOUTHERN DISTRICT OD~i&

;

U.S. COMMODITY FUTURES TRADING

COMMISSION, eN 6~60

Case No. ,.

Plaintiff

v.

COMPLAINT FOR INJUNCTIVE

AND OTHER EQUITABLE

RELIEF AND CIVIL MONETARY

PENALTIES UNDER THE

COMMODITY EXCHANGE ACT

OPTIVER US, LLC, OPTIVER HOLDING BV,

OPTIVER VOF, CHRISTOPHER DOWSON,

BASTIAAN V AN KEMPEN, AND RANDAL MEIJER

Defendants.

J

alleges as follows: .

. i.

SUMMARY OF DEFENDANTS' MANIPULATION OF THE ENERGY MARKETS

AND VIOLATIONS OF THE COMMODITY EXCHANGE ACT

1. In early 2007, Defendants Optiver US, LLC ("Optiver"), Optiver Holding BV

C'"Optiver Holding"), and Optiver VOF C'Optiver VOF") - the U.S. and Netherlards branches of

a global proprietar trading fund headquartered in the Netherlands - developed and, in March

2007, implemented a scheme to manipulate the price of futures contracts in Light Sweet Crude

Oil, New York Harbor Heating Oil, and New York Harbor Gasoline on the New York

Mercantile Exchange C'"NYMEX").

2. On at least 19 separate instances during the month of March 2007, Optiver,

Optiver Holding, and Optiver VOF, led by head traders, Defendant Chrstopher Dowson

C'Dowson") and Defendant Randal Meijer ('"Meijer"), repeatedly attempted to manipulate

market prices - or in Dowson's own words, "'bully the market" - for the above-referenced energy
futures contracts towards the end of the trading day. The manipulative strategy employed by

Defendants Optiver, Optiver Holding, Optiver VOF, Dowson, Meijer and Bastiaan Van Kempen

(together, either acting directly or in their capacity as controlling persons or principals liable for

the acts of their agents as described more specifically below, "Defendants") is commonly known

as "banging the close" or "marking the close."

3. On at least five of the nineteen instances, Defendants succeeded in their

manipulative scheme by causing artificial prices in certain of these energy futures contracts,

resulting in serious harm to other market participants and, ultimately, to the public at large.

4. The Defendants' scheme involved trading a large volume of Crude Oil, Heating

Oil, and New Yark Harbor Gasoline futues contracts to manipulate the futures prices for these

contracts, including the settlement price which is based on the volume weighted average price

(the "VW AP") of trades during the two minutes prior to the 2:30 PM closing bell (the "Close").

5. Defendants developed a scheme by which Optiver, having accumulated a large

net TAS (defined below) position, traded a significant volume of futures contracts in the opposite

direction, before and during the Close, with the goal to improperly influence and affect the price

of futures contracts in Crude Oil, Heating Oil, and New York Harbor Gasoline.

6. Defendants' strategy was to execute approximately 20-30% of Optiver's futures

trades just before the Close and the remainder during the Close.

.7. Having accumulated a large net TAS position during the trading day, Defendants

intended to - and on several occasions did - implement this strategy to trade a large number of

futures contracts in the opposite direction just prior to and during the Close, thereby exercising

their market power to improperly influence and affect the price of futures contracts in a desired

direction.

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8. The Defendants' intent is well documented by their own emails and phone

recordings which discuss their efforts to "hammer," "influence," "push," "move," "whack," and

"bully" the prices of futures contracts in Crude Oil, Heating Oil and New York Harbor Gasoline.

9. As a result of the manipulative trading scheme, Optiver reaped profits of over

$1 million.

10. As is more fully alleged below, Optiver by and through its employees and agents,

including, but not limited to, Defendants Dowson and Bastiaan van Kempen ("van Kempen"),

Chief Executive Offcer ofOptiver, along with Optiver VOF, Optiver Holding, and Meijer,

engaged in a scheme of price manipulation that violated the Commodity Exchange Act, as

amended (the "Act"), 7 US.C. §§ 1, et seq. (2006).

11. As more fully described below, Defendants Optiver, Dowson, and Meijer violated

Sections 6(c), 6(d) and 9(a)(2) of the Act, 7 US.C. §§ 9, 13b, and 13(a)(2).

12. At all relevant times, Dowson, Meijer, and van Kempen, each had control over

Optiver and the actions of its agents and employees who executed the manipulative scheme.

Accordingly, Dowson, Meijer, and van Kempen, are each liable for Optiver's violations of the

Act alleged herein, pursuant to Seçtion 13(b) of the Act, 7 US.C. § 13c(b).

13. Optiver, Optiver Holding, and Optiver VOF are also liable for violating Sections

6(c), 6(d), and 9(a)(2) ofthe Act pursuant to Section 2(a)(l)(B) of the Act, 7 US.C. § 2(a)(1)(B),

by virtue of the acts of their officials, agents, or other persons acting within the scope of their

employment or office, including Defendants Dowson and Meijer.

14. Furthermore, on or about March 26,2007, Optiver and van Kempen, in a

communication with NYEX, willfully falsified, concealed, or covered up by trick, scheme or

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artifice a material fact or made false, fictitious, or fraudulent statements or representations in

violation of Section 9(a)(4) of the Act, 7 US.c. § 13(a)(4).

l5. Accordingly, pursuant to Section 6c of the Act, 7 US.C. § 13a-l, Plaintiff brings

this action to enjoin such acts and practices, and compel compliance with the Act. In addition,

Plaintiff seeks civil monetary penalties and such other equitable and ancilary relief as the Court

deems necessary or appròpriate under the circumstances.

16. Unless restrained and enjoined by this Court, there is a reasonable likelihood that

Defendants will continue to engage in the acts and practices alleged in this Complaint or similar

acts and practices, as is more fully described below.

II.

JURISDICTION AND VENUE

17. This Court has jurisdiction pursuant to Section 6c of the Act, 7 US.c. § 13 a- 1,

which authorizes the CFTC to seek injunctive relief against any person, or to enforce compliance

with the Act, whenever it shall appear to the CFTC that such person has engaged, is engaging, or

is about to engage in any act or practice constituting a violation of any provision of the Act or

any rule, regulation or order thereunder.

18. Venue lies properly with this Court pursuant to Section 6c(e) of the Act, 7 US.C.

§ 13a-l(e), in that Defendants transacted business within this District, and the acts and practices

in violation of the Act occurred within this District.

III.

THE PARTIES

A. PLAINTIFF COMMODITY FUTURES TRADING COMMISSION

19. The Commodity Futures Trading Commission ("CFTC") is an independent

federal regulatory agency that is charged with the responsibility for administering and enforcing

the provisions of the Act, 7 US.C. §§ 1 et seq., and the regulations promulgated thereunder, 17

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C.F.R. §§ 1 et seq. One of its core responsibilities is to protect the public interest by deterrng

and preventing price manipulations of the commodity markets or futures markets, or other

disruptions to market integrity. Section 3(b) of the Act, 7 U.S.C. § 5(b).

B. DEFENDANT OPTIVER

20. Optiver is an Ilinois company, founded in 2003, with its principal place of

business at 130 E. Randolph Street, Suite 1300, Chicago IL 60601.

21. Optiver is a wholly owned subsidiary ofOptra Curacao, which is wholly owned

by Optiver Holding.

22. Optiver trades commodity futures, options on commodity futures, stocks, and

stock options, listed on organized exchanges in the United States, including, among others,

NYEX and the New York Stock Exchange.

C. DEFENDANT OPTIVER HOLDING

23. Optiver Holding is a Netherlands corporation, with its principal place of business

at De Ru yterkade 1 12, 101 1 AB Amsterdam, The Netherlands, which engages in trading activity

through its subsidiary companies including Optiver and Optiver VOF, among others.

24. Optiver Holding manages the activities of its subsidiary companies including

Optiver and Optiver VOF through its Global Management Board (the "Global Management

Board").

25. In practice, two-thirds of the profits ofOptiver and Optiver VOF are distributed to

Optiver Holding, and the remaining one-third is distributed among the other partners ofOptiver

VOF.

D. DEFENDANT OPTIVER VOF

26. Optiver VOF is a Netherlands general parnership with its principal place of

business at De Ruyterkade 112, 1011 AB Amsterdam, The Netherlands.

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27. Optiver VOF is comprised of various partners, including Defendant Optiver

Holding, (through its wholly owned subsidiary Optiver BV), and Defendants Dowson, Meijer,

and van Kempen (through their respective wholly owned companies, Cobblestones LLC, Randal

Derivatives BV, and Platinum Options BV).

E. DEFENDANT CHRISTOPHER DOWSON

28. Dowson is a citizen of the United Kingdom, currently residing in Chicago,

Ilinois.

29. Dowson began working for Optiver VOF in September 2000 as an equities trader.

30. In or about October 2006, Defendant Dowson began to spend time at Optiver, in

Chicago.

31. In or about January 2007, Defendant Dowson moved to Chicago and became the

Head of Trading for Optiver.

32. Beginning in or about January 2007, Defendant Dowson became, and was at all

relevant times thereafter, responsible for Optiver's trading of, among other things, commodity

futures, including Crude Oil, Heating Oil, and New York Harbor Gasoline.

33. While Defendant Dowson was employed by Optiver and maintained a partnership

interest in Optiver VOF, he participated in the development and execution of a manipulative

trading strategy for the purpose of moving prices of certain NYEX energy futures. Defendant

Dowson participated in and directed other Optiver traders, including but not limited to Ferhad

Mekic ("Mekic"), in carrng out the manipulative trading scheme, as more fully described

below.

34. For 2007, Defendant Dowson received approximately $100,000 US. in salary and

approximately €1,700,000 based on his partnership share in Optiver VOF.

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F. DEFENDANT BASTIAAN V AN KEMPEN

35. Defendant van Kempen is a Dutch citizen, currently residing in Chicago, Ilinois.

36. Defendant van Kempen began working at Optiver Holding in Amsterdam in or

about October 1998, first as a trader and later as a director.

37. In or about 2001, Defendant van Kempen moved to Chicago as the head of

trading for Optiver's newly opened Chicago office.

38. In or about 2003, Defendant van Kempen became the Chief Executive Offcer of

Optiver, and has maintained that position to the present date.

39. At all relevant times, and as set forth below, Defendants van Kempen and

Dowson jointly managed Optiver.

40. Defendant van Kempen participated in the development of the manipulative

strategy referenced herewith.

41. Defendant van Kempen participated in strategic discussions and monitored the

trading activity at Optiver as the manipulative scheme was being implemented.

42. Defendant van Kempen also instructed Optiver's traders in executing the strategy.

43. Defendant van Kempen is, and was at all relevant times, generally responsible for

Optiver's business operations and relationships with exchanges and other third-parties.

44. Defendant van Kempen's base salary was approximately $55,000 US. and in

2007 he received approximately USD $1,600,000 from his partnership share in Optiver VOF.

G. DEFENDANT RADAL MEIJER

45. Defendant Meijer is, and was at all relevant times, the Head of Trading,

supervising the trading activity of each ofOptiver Holdings' subsidiaries, including Optiver and

Optiver VOF.

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46. Defendant Meijer is one of five members ofOptiver Holdings' Global

Management Board, which oversees Optiver, Optiver VOF and other affiliated entities.

47. Defendant Meijer worked closely with Dowson to develop, refine and carr out

the manipulative trading strategy.

48. Defendant Meijer approved the manipulative strategy, with the understanding that

Optiver would have the necessary influence and would be able to "control the VW AP."

49. Defendant Meijer also directed the execution of the strategy by Optiver's traders,

including, but not limited to one trader, in particular, whom Meijer instructed to make sure he is

"trading big enough."

50. In or about 2007, Defendant Meijer received approximately €1,700,000 from his

partnership share in Optiver VOF and shareholding dividends from Optiver Holding.

iv.

OTHER RELEVANT ENTITIES

H. NYMEX: THE EXCHANGE AND THE PRODUCTS ON WHICH

DEFENDANTS PERPETRATED THE MANIPULATIVE TRADING

SCHEME

51. According to the NYEX website, NYEX "is the worlds' largest physical

commodity futures exchange and the preeminent trading forum for energy and precious metals."

52. NYMEX is located at One North End Avenue, New York, NY.

53. NYEX is a designated contract market under Section 5(b) of the Act, 7 US.c. §

7(b), and Commission Regulations 38.3(a)(I)(ii) and (iii).

54. Commodity futures contracts are traded on exchanges, such as NYMEX, which

provide a physical or electronic facility in which multiple market participants have the ability to

execute or trade such futures contracts by accepting bids and offers made by other market

participants, with prices displayed for all to see.

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55. Prices for transactions on NYMEX are continuously reported during the trading

day.

56. The prices displayed on the floor of the Exchange and on its electronic platforms

are disseminated to information vendors and news services worldwide.

57. Settlement prices for NYMEX contracts are reported daily.

58. NYEX also reports trading volume and open interest on a daily basis.

59. NYEX prices are used as global benchmarks for a variety of energy markets;

accordingly it isparamount that the markets have confidence in the integrty of these

transactions.

(i) THE NYMEX ENERGY FUTURES TARGETED BY DEFENDANTS'

MANIPULATIVE TRAING STRATEGY

60. As part of its energy complex, NYEX offers commodity futures contracts in

Light Sweet Crude Oil ("Crude Oil" or "CL"), New York Harbor Heating Oil ("HO"), and New

York Harbor Reformulated Gasoline Blendstock ('"New York Harbor Gasoline" or "RBOB").

61. For purposes of this complaint, a commodity futures contract is an agreement to

purchase or sell a commodity for delivery in the future at a price that is determined at initiation

ofthe contract, that obligates each party to the contract to fulfill the contract at the specified

price, that is used to assume or shift price risk, and that may be satisfied by delivery or offset.

62. As more fully alleged below, Defendants' trading involved three energy contracts

onNYEX.

63. The NYMEX Crude Oil futures contract trades in units of 1,000 US. barrels

(42,000 gallons) of West Texas Intermediate light sweet crude oil ("WTI"), and the delivery

point is Cushing, Oklahoma.

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64. The price for the NYMEX Crude Oil contract is quoted in US. dollars and cents

per barrel and the minimum price fluctuation (also known as one "tick") is $0.01 (lt) per barrel

($10.00 per contract).

65. The NYMEX Heating Oil futures contract trades in units of 42,000 gallons

(1,000 US. barrels) and is based on delivery in New York harbor, which is the principal cash

market trading center.

66. The price for the NYMEX Heating Oil contract is quoted in US. dollars and cents

per gallon and the minimum price fluctuation (or one "tick") is $0.0001 (O.Olt) per gallon ($4.20

per contract).

67. The NYEX New York Harbor Gasoline futures contract trades in units of

42,000 gallons (1,000 U.S. barrels) and is based on delivery at petroleum products terminals in

the New York harbor.

68. New York Harbor Gasoline is a wholesale non-oxygenated blendstock traded in

the New York Harbor barge market.

69. The price for the NYMEX New York Harbor Gasoline contract is quoted in US.

dollars and cents per gallon and the minimum price fluctuation (or one "tick") is $0.0001 (O.Olt) .

per gallon ($4.20 per contract).

70. Unless otherwise noted, all futures contracts referenced herein are contracts for

delivery in April 2007.

71. The NYMEX Crude Oil, Heating Oil, and New York Harbor Gasoline futures and

TAS contracts may be traded on the NYEX trading floor by open outcry trading, from 9:00

AM until 2:30 PM, and may be traded electronically on Globex (described below) from 6:00 PM

the previous calendar day until 2:30 PM.

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72. In accordance with NYMEX rules, the Crude Oil, Heating Oil, and New York

Harbor Gasoline futures contracts, in certain circumstances, also may be traded in a two-minute

trading session, which takes place after the close of trading (the "Post-Close").

73. NYMEX also permits traders to purchase and sell Crude Oil, Heating Oil, and

New York Harbor Gasoline via its "Trading at Settlement" or "TAS" procedure.

7 4. T AS contracts are futures contracts, except that the parties determine at the

initiation of the contract that the price will be the day's settlement price plus or minus an agreed

differentiaL.

75. A TAS contract which has been bought or sold can be offset by trading a futures

contract in the opposite direction.

76. A TAS contract is available for trading for the front two months (i.e. the

upcoming delivery month and the following delivery month), except on the last trading day for

the underlying futures.

77. A TAS contract is priced either at par or based on a differential (plus or minus) in

points off settlement in the underlying cleared product.

78. A TAS trade done at the price of 100 will clear exactly at the final settement

price of the day.

79. The maximum differential for a TAS contract is 10 "points" or "ticks" from the

settlement; i.e., T AS contracts are bought and sold in a range from 1 10 to 90. One point or tick

in a TAS contract corresponds to the minimum price fluctuation in the underlying future.

80. Bec;ause T AS contracts are priced according to the settlement price for the

underlying futures, if a trader with a T AS position can successfully trade futures in the opposite

direction, such that the average price of its futures trades is equal to the final settlement price, the

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price of the futures trades would equal the price of the TAS trades - adjusting for any

differentiaL.

81. A trader can profit by buying and selling T AS contracts, making money on the

difference in price; this activity is known as "scalping."

82. In addition, a trader can make a profit by either selling TAS contracts for a

premium (101 or above) or buying for a discount (99 or below) and subsequently trading futures

in the opposite direction for an average price equal to or better than the settlement price.

83.

April 2007.

(ii)

84.

85.

Unless otherwise noted, all TAS contracts referenced herein are contracts for

THE SETTLEMENT PROCESS

The settlement of futures contracts is subject to rules promulgated by NYMEX.

The settlement price is the price established by the NYEX settlement committee

at the close of each trading session as the offcial price to be used by the clearinghouse in

determining net gains or losses, margin requirements, and the next day's price limits.

86. In accordance with NYEX rules and procedures, at all relevant times, the

settlement price for the April 2007 futures contracts in Crude Oil, New York Gasoline, and

Heating Oil was derived by calculating the volume weighted average of the prices, referred to as

the VW AP, at which trades were conducted during the Close, i.e., from 2:28 to 2:30 PM.

87. All times referenced herein are Eastern Time unless noted otherwise.

88. The VW AP includes both electronic trading activity and floor trading activity.

89. The final determination as to a settlement price is made by the Settlement Price

Committee. The Settlement Price Committee includes a NYEX employee, who has final

authority in determining the settlement price of the Crude Oil, Heating Oil and New York Harbor

Gasoline Futures Contracts.

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(iii) NYMEX PROHIBITS THE USE OFTAS POSITIONS AS A WAY TO

MANIPULATE THE SETTLEMENT PRICE

90. On or about October 19, 2006, NYMEX issued a compliance advisory:

Compliance Advisory: Disruptive Use ofTAS and MO Trading

Practices

Members are reminded that misuse of TAS or MO trades to

acquire a position in order to unfairly affect a settlement price

subject (sic J the member and/or the customer to disciplinary

action for any of a number of rule violations including but not

limited to attempted price manipulation, disruptive trading, wash

trading, or conduct substantially detrimental to the exchange,

investigation of suspected manipulative pricing involving T AS

wil focus on the percentage of TAS positions acquired by a

trader, group or traders or customer(s) and whether the offset of

that position during the close was disruptive, collusive, and or

caused or attempted to cause aberrant price movement in the

close.

NYMEX Notice No. 548 (10/1912006), available at

http://ww.nymex.com/notice_to _ member.aspx?id=ntm548&archive=2006 (emphasis added).

91. The October 19, 2006 NYEX Compliance Advisory was available to the public

on NYEX's website at all relevant times.

i. GLOBEX: THE TRAING PLATFORM USED IN DEFENDANTS'

MANIPULATIVE TRAING SCHEME

92. NYMEX is a party to a technology services agreement between NYEX and

CME Group, pursuant to which electronic trades of certain NYEX products take place on the

CME/Globex trading platform ('"Globex").

93. Globex is an electronic trading platform on which customers can directly place

trades.

94. NYEX products, including the Crude Oil, Heating Oil, and New York Harbor

Gasoline futures and TAS contracts are available to be traded via Globex.

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95. TAS contracts for a particular trade date may be traded via Globex from 6:00 PM

the previous calendar day until 2:30 PM.

96. A Globex user can view quotes placed by other traders. The Globex screen shows

the quantity and price of the best five bids and asks in the system in real time. The Globex

screen also shows the quantity and price of executed trades as they occur.

97. In addition to trading NYMEX Crude Oil TAS contracts via Globex, the

Defendants also traded IntercontinentalExchange ("ICE Futures Europe") WTI T AS contracts

that, like the NYEX TAS, were priced based on the daily settlement price of the NYEX

Crude Oil futures contract.

v.

THE FACTS: HOW DEFENDANTS DEVELOPED AND IMPLEMENTED

THEIR SCHEME TO MANIPULATE THE NYMEX MARTS IN

CRUDE OIL, HEATING OIL AND NEW YORK HAROR GASOLINE

98. In or about January 2007, Optiver, under Defendant Dowson's direction, began

trading TAS contracts in Crude Oil, Heating Oil, and New York Harbor Gasoline.

99. In or about March 2007, Defendants developed and implemented a manipulative

scheme by which, having accumulated a large net long or short T AS position, they intended to

significantly increase Optiver's profits by trading large volumes of futures contracts in the

opposite direction just before and during the Close with the goal to improperly influence and

affect the prices of futures contracts in Crude Oil, Heating Oil, and New York Harbor Gasoline.

100. To effectuate their manipulative scheme to Hhammer," "whack," or '"bully" the

prices of the Crude Oil, Heating Oil and New York Harbor Gasoline futures contracts around and

during the Close, Defendants, through Optiver, after having accumulated a large net T AS

position in one or more of these products, traded a significant volume of futures contracts in the

opposite direction, just before and during the Close.

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101. Optiver's strategy was to execute approximately 20-30% of its futures contract

trades just before the Close and the remainder during the Close. Having accumulated a large net

TAS position during the trading day, Defendants intended to - and on several occasions did -

implement this strategy to trade a large number of futures contracts in the opposite direction just

prior to and during the Close, thereby exercising their market power to improperly influence and

affect the price of futures contracts in a desired direction.

102. The recordings referenced herein and contained on Exhibit A hereto are true and

correct copies of recordings of telephone conversations of employees or agents of Optiver or

Optiver VOF, as identified herein. These recordings were created and maintained by Optiver in

the course of its regularly conducted business.

103. The emails attached as Exhibits B-K are true and correct copies of emails sent by

the employees or agents ofOptiver, Optiver Holding, or Optiver VOF, as indicated on the email,

in the course of regularly conducted business.

A. PRELUDE TO THE MANIPULATIVE SCHEME: ACCUMULATING A

LARGE TAS POSITION

104. Throughout March 2007, prior to implementing their manipulative trading scheme

to influence or affect Crude Oil, Heating Oil, and New York Harbor Gasoline futures prices by

buying or selling large number of futures contracts just prior to and during the Close, the

Defendants in each instance accumulated a large net long or short T AS position.

105. Beginning at or about 6:00 PM, when a new session ofTAS trading began on

NYEX, Optiver began entering orders for T AS contracts for the following day, placing a series

of orders to buy TAS contracts at a range of prices and a series of orders to sell an approximately

equal number ofTAS contracts also at a range of prices.

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106. The Globex system operated on a "first in, first out" system, meaning that bids

and offers quoted at the same price would be executed based on the order in which they were

entered into the system.

107. However, in the Globex system, an offer to sell at a lower price, or to buy at a

higher price, would be placed in the queue for execution ahead of pre-existing orders at less

competitive prices.

108. To ensure that their orders were first in the queue, Defendants used an Excel

spreadsheet, which had been developed for Optiver to work with the Eccoware system Optiver

used to place its orders on Globex. The program was designed to rapidly enter a series of orders

into Globex and was referred to by Optiver as the "Hammer."

109. Optiver's traders had frequent discussions about improving the "Hammer" to

make sure Optiver's orders were getting into the system first.

110. During a conversation on March 5, a trader for Optiver VOF told Mekic:

"I'll look into improving the Hamer tool tomorrow, so that we

can do this with a finer frequency so that should give us a better

chance of being up front again."

Exhibit A at WAVFILE 128190 at 02:05.

111. Typically, few trades were executed overnight and Optiver's TAS trades would

take place the following day. Throughout the trading day, Dowson or other traders under his

direction would adjust Optiver's orders - cancelling or modifying existing orders and placing

new ones - often thereby increasing Optiver's net long or short TAS position in a manner that

resulted in Optiver accumulating a net long or short TAS position.

112. By approximately 2:25 PM, Optiver typically had accumulated a large net long or

short position in TAS contracts for Crude Oil, Heating Oil, and/or New York Harbor Gasoline.

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113. At or about 2:25, Optiver's traders would tum their attention to trading futures

contracts.

B. THE EXECUTION OF THE MANIPULATIVE SCHEME: TRADING

FUTURES TO MANIPULATE THE PRICE OF CRUDE OIL, HEATING OIL,

AND NEW YORK HARBOR GASOLINE

114. Beginning at approximately 2:25 up until 2:27:59 (the "Pre-Close"), Optiver

typically executed 20-30% of the futures trades called for under Defendants' manipulative

scheme.

115. Defendants intended for Optiver's Pre-Close trades to begin driving the price of

Crude Oil, Heating Oil and/or New York Harbor Gasoline futures contracts in a certain direction.

116. Defendants' ultimate goalwas to ensure that there would be a significant and

favorable price differential between the futures contracts Optiver traded during the Pre-Close and

the settlement price, which would, in tum, determine the value ofOptiver's TAS position.

117. Because the futures contracts traded directly offset the TAS contracts, ifOptiver

could trade 20-30% of its futures contracts during the Pre-Close for a price better than the

settlement price and trade the remaining 70-80% of its futures contracts, during the Close, for a

weighted average price close to the settlement price, Optiver would achieve a significant profit

overall.

118. According to Meijer, the Defendants' manipulative scheme was all "built on the

idea that we can control the VW AP."

119. Because the settlement price is equal to the VW AP during the Close, Defendants

wanted to ensure that Optiver's trades during the Close were executed at an average price close

to or better than the VW AP.

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120. During the Close, Defendants intended for Optiver to execute approximately 60%

of its planned trades of futures contracts within the first minute and the remaining 40% in the

second minute.

121. All ofOptiver's futures contracts trades during the Pre-Close and the Close were

entered into Globex by traders under the supervision of Dowson and Meijer.

122. Defendants maintained a software program developed in-house, which processed

information about prices and quantities of trades being executed and showed a running

calculation of the VW AP during the Close.

123. Defendants Dowson and Meijer agreed that ifOptiver did not seem to have the

necessary ability to influence and affect the price on a given day, they would limit the amount of

futures contracts traded during the Pre-Close that day and simply try to replicate the VW AP with

their own trading during the Close.

C. OPTIVER EXECUTES ITS MANIPULATIVE SCHEME IN MARCH 2007

124. Defendants effectuated the manipulative scheme through a variety of acts and

practices that were intended to manipulate the prices ofNYEX futures contracts in Crude Oil,

Heating Oil, and New York Harbor Gasoline.

125. As alleged in more detail below, throughout March 2007, Defendants and other

Optiver and Optiver VOF employees engaged in discussions and communications which reveal

the details of how their plan was executed and reflect their manipulative intent on the 19

instances to, after having accumulated a significant net long or short TAS position, trade a

significant volume of futures contracts in the opposite direction during the Pre-Close and Close.

126. Defendants intended to create artificial prices in Crude Oil, Heating Oil, and New

York Harbor Gasoline futures contracts by placing large orders just before and during the Close.

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127. Repeatedly, throughout March 2007, Defendants attempted to manipulate the

price of the Crude Oil, Heating Oil, and New York Harbor Gasoline futures contracts by trading

a large number of futures contracts during the Pre-Close and the Close.

128. Defendants knew that Optiver's trading would exert sufficient pressure to

influence the price of futures contracts during the Pre-Close and the Close.

129. Throughout March 2007, Defendants and other Optiver, Optiver Holding, and

Optiver VOF employees and agents engaged in numerous conversations in which they developed

and refined their manipulative scheme.

130. Many of these conversations evidence the Defendants' manipulative intent.

13 1. Throughout March 2007, Defendants and other Optiver, Optiver Holding, and

Optiver VOF employees and agents also engaged in hundreds of additional overt acts in

furtherance of their manipulative strategy.

132. In an email from Dowson to Meijer and copying Van Kempen at or about 3:31

PM CT on March 2, Defendant Dowson outlined Optiver's strategy and the need to properly

apportion the trading of futures contracts - and even trade for a loss during the Close - to control

the movement of the price. Exhibit B.

133. In that email to Meijer, Dowson wrote:

. . . we are going to hammer the futures.

To hedge against "market risk" we have traded oil futures in the

opposite direction. This hedge cost $60k today. We also carefully

consider the percentage of futures to trade before (the two-minute

close) (these are the ones that make the profit) and the ones we

need to do during (the close) in order to force the market down

(the ones that cost money) . . ..

Exhibit B (emphasis added).

134. Defendant Dowson also discussed the trading activity during a phone call on or

about March 5 at 10:55 AM CT with Edwin van der Kr, a managing trader with Optiver VOF.

- 19 -
135. In that conversation, Defendant Dowson relayed to van der Kruk a conversation

that he and Mekic had on March 2 and explained how they planned to disguise Optiver's TAS

activity by bidding close to even to enable them better to control the prices of futures contracts

around and during the Close.

136. Dowson and van der Krk's conversation continued:

Dowson: we basically just want to have a position, we pretty much

want a position everyday. So we're just we're just 99 and

101 now for 500 and then, um, yeah we can also, what we

thought then, we can probably disguise it a bit better as

welL.

van der Krk: How do you mean?

Dowson: Yeah well, it's not as obvious ifpeople are 107 or 108 bid everyone

knows that there's going to be something coming whereas if it trades

normally close to one, yeah, you can hack sometimes you can be

aggressive pushing it other times, you can even do it a bit the other way

around, uh, sometimes.

Exhibit A at WAVFILE 1281XL at 8:50 (emphasis added).

137. On or about March 5, Optiver was also experiencing diffculty getting its TAS

orders into the Globex system before other traders and was looking for a way to remedy that

problem.

138. On or about March 5 at 10:12 am (CT), Mekic had a conversation with Gerben

Goojiers, a trader for Optiver VOF. Goojiers told Mekic he had received an e-mail saying that

Optiver "wasn't first anymore."

139. At the conclusion of the conversation, Goojiers stated:

I'll look into improving the Hammer tool tomorrow, so that we can

do this with a finer frequency so that should give us a better chance

of being up front again.

Exhibit A at W A VFILE 128190 at 2:05.

- 20-
140. Defendant Meijer decided that TAS would be traded by Optiver and not Optiver

VOF, which allowed Optiver to raise the size of the positions with which it could move the price.

141. Defendant Meijer also cautioned Defendant Dowson to be mindful of the limits he

had set until they were sure of their ability to manipulate the markets.

142. On March 7, at approximately 3:21 AM (CT), Defendant Meijer wrote to

Defendant Dowson, copying Defendant van Kempen:

I talked to Jan-Jaap and Nick about the TAS's.

They agreed to doing them from 1 spot being the US.

You can then raise your limits to 1000 per commodity (this equals

app. 75 min (million) per underlying right ?)

Please respect those limits.

When we gain experience and become more certain that we can

influence VW AP I'm sure we can raise further.

They wondered though about some TAS's (e.g Natural Gas) ,

because you are not trading them.

They would like to experiment further on them.

Exhibit C (emphasis added).

143. Although Defendants' manipulative scheme focused on Optiver's trading of

NYEX products, Defendant Meijer sought to expand the manipulative scheme.

144. On March 8, at or about 11:37 am CT, Defendant Meijer spoke with Defendant

Dowson, seeking advice on how Optiver VOF could trade another contract, similar to TAS,

which traded on ICE Futures Europe in a manner consistent with the scheme. Exhibit A at

W A VFILE 1 28XCP.

145. Defendants Meijer and Dowson had the following exchange:

Meijer: I wanted to know how you exactly get the TAS

contracts because we get one in the, there is also

this, what's it called, the Brent, have you seen that

one?

Dowson: Yeah, yeah, we quote in that as well.

- 21 -
no, but .. . the minute market. . .

. . . essentially that trades,--it only can trade at

even, basically.

yah, we trade it at zero because I wanted to see how

powerful you. . . you actually have it, how

powerful your position is when you want to beat

the VW AP - or, well actually not even beat it, or

just. . .yah, if you can move the market. . . I was

just wondering how you guys traded it.

Exhibit A at WAVFILE 128XCP at 0:05 (emphasis added).

Meijer:

Dowson:

Meijer:

146. Defendant Dowson discussed the significance of market power in the

manipulative scheme.

Dowson:

Meijer:

Dowson:

Dowson:

it depends on the product actually and for us for the

oil, for the WTI, we've really not been trying

to bully it . . . normally you don't have some like

big counter party there is enough liquidity there that

basically the worse thing that can possibly

happen to you is that you try to bully it and you

run out of power

(laughter) and then the market just moves apart

from what you were doing. . .

. . . if you compare that to the WTI, . . . what we do

with that, we never try andreally pummel it any

where (inaudible) -- we never really try and push it,

and so that's not the one where - where we're sort

of using our scheme.

* * *

. . . when we really made our good money it's

come from in the products where - then you're

talking about normal trading during those 2 minutes

is 300 futures or 400 futures, something like that.

Exhibit A at WAVFILE 128XCP at 01 :21 and 05:30 (emphasis added).

147. Defendant Dowson then explained to Defendant Meijer that the size of the TAS

position Optiver had going into the close was critical and a position such as 200 in gasoline was

undesirable because it was not large enough to enable Optiver to move prices.

- 22-
148. Defendants Dowson and Meijer had the following exchange:

Dowson: It's actually nicer to have a position of 800 than a

position of 200. A position of 200 in the gasoline for

example is probably the worst you can have. . .

Meijer: You really don't know what to do . . . you cannot

move anything.

Dowson: You have to trade a big amount during the time, but

you don't dare to bully anybody, so that's probably

the worst position that you can have.

Meijer: Yeah, I want to see how it works a little bit because it's

really interesting if there is bullying, let's say its

possible at a certain stage - it's definitely not risk free

. . . but I'll maybe try again tomorrow. . .

Exhibit A at WAVFILE 128XCP at 06:54 (emphasis added).

149. Defendants Dowson and Meijer then discussed the cover story they planned to use

in the event that Optiver is investigated for possible manipulation. Dowson and Meijer agreed

that if they bid at 99 and offered at 101, they could claim that their intent was really to buy low

and sell high, or if they bid at even, they could claim that they believed they could trade futures

contracts for better than the VW AP and get "edge" - an explanation which Dowson then

acknowledged was a "'fairy story."

150. Defendant Dowson and Meijer had the following exchange:

Dowson: what I like being the -- sort of 99 bid at 101 as well at

least is that you've got a good uh. . . I mean I suppose

even if you sell even you could still say - look we think

we can get edge and trade in the same sector, it doesn't

matter - I was just thinking more about if people come

to you with stories about why you manipulated the

market and things like this

Meijer: Yeah, okay, then you can stil say yeah because we

can stil make some from scalping - but you actually

don't really manipulate because yoú actually have an

order that you just need to close your position

Dowson: We just, we can execute better than VW AP, that's why

we do it

Meijer: Exactly, that's what we think at least (chuckling)

- 23 -
Dowson: That's a fairy story. . . .

Exhibit A at WAVFILE 128XCP at 07:54 (emphasis added).

151. Defendant Dowson then explained to Defendant Meijer exactly how Optiver

traded to maximize the influence of its trades on the market. He advised Meijer to "try and push

it" prior to the time in which the settlement will be determined, and then the trading during the

close should be used to "defend" or control the price enough to ensure that it doesn't move back

in the other direction. Exhibit A at WAVFILE 128XCP at 10:17.

152. Finally, Defendant Dowson cautioned Defendant Meijer against "running out of

power" to control the price through the end of the settlement period.

153. Defendant Dowson told Defendant Meijer:

what you might want to do just as a tip for tomorrow. . . do the

pushing as much as you can in the minute before. .. especially

because it's more liquid you should just do this. . . .basically, let's

say you have a 1000 to do tomorrow, even just 30 seconds before

the minute marker starts, just do 500 then, let's say you have to

buy, and really try and push it up as much as you can ... and

then in the minute don't try and push it too much harder. . .

just try and defend it let's say. . . the thing that's nice about that

. . . the idea of it is to attract the liquidity ..so you have more

chance to sort of bully in the minute before where. . . that's the

300 minute as opposed to an 800 minute. . . so that's one of the

things we've tried as well. . . butthe other thing to remember is

that the worst thing that can happen is running out of power.

, Exhibit A at WAVFILE 128XCP at 9:58 (emphasis added).

154. Defendant Meijer implied that the primar risk of the manipulative scheme was

an unexpected price move in the opposite direction after the Pre-Close trading was completed.

Exhibit A at W A VFILE 1 28XCP.

155. Defendants Meijer and Dowson agreed that if they saw another party trading in

the opposite direction to them - which would likely limit their ability to manipulate the market -

- 24-
they would abandon their manipulative scheme on that occasion and simply try to minimize their

losses or break even by matching the VW AP. Exhibit A at W AVFILE 128XCP at 11:58.

156. Defendants Dowson and Meijer concluded their conversation, acknowledging that

their manipulative scheme was "a fun game" and contemplating whether or not they could

expand it to other markets, including "soft" commodities such as sugar, wheat or com. Exhibit A

at WAVFILE 128XCP at 12:04.

157. Also, on March 9, Defendants Dowson, van Kempen and Meijer participated in a

conference call with Johann Kaemingk, the CEO ofOptiver VOF and a member ofOptiver

Holding's Global Management Board, during which they discussed the TAS strategy, potential

risks and whether or not the trading scheme constituted manipulation. Exhibit A at W A VFILE

1293QN.

158. Defendant Meijer commented that the trading during the Close did not present a

significant risk because during that time, although it "might be a bit messy," in the worst case

scenario Optiver would only do "a couple of ticks worse than VW AP." Exhibit A at WAVFILE

1293QN at 22: 10.

159. Defendant Meijer added: "if you see funny things happening just . . . up til the

expiration, you can still decide not to pre-buy or pre-selL." Exhibit A at W AVFILE 1293QN at

22:53.

160. Next, Defendant Meijer explained that the biggest risk was from the portion of

futures contracts which would be traded during the Pre-Close, but that he was glad he could set

the risk limits for these trades.

- 25 -
161. Defendants Meijer and Dowson along with Kaemingk discussed the amount of

money which Optiver would be allowed to trade using its manipulative scheme and what

percentage should be traded during the Pre-Close.

162. Defendant Dowson explained that there is a lower risk if they take opposite

positions in different products, but Kaemingk cautioned that one party can "manipulate( )" the

market with '"even one percent." Exhibit A at WAVFILE 1293QN at 26:03.

163. As the discussion continued, Defendants Meijer and Dowson explained to

Kaemingk how the trading in futures contracts related to Optiver's TAS position, and Defendant

Meijer declared that, in general, Defendant Dowson would be permitted to trade up to $250

million in connection with the scheme, $50 million of which could be used for trades during the

Pre-Close, asking for a more detailed breakdown if Defendant Dowson planned to trade a

combination òf positions.

164. Defendant Meijer stated that his approval ofOptiver's TAS trading was founded

on the understanding that Optiver "can control the VW AP." Defendant Dowson agreed, adding

that for this reason, he was more cautious in trading Crude Oil than in New¥ork Harbor

Gasoline and Heating Oil, where he was more confident in Optiver's ability to manipulate the

market.

165. Defendants Dowson and Meijer continued:

Meijer: This is all built on the idea that we can control

the VWAP.

Yeah, as soon as we get indication that we can't

we're not going to do it anymore actually or not like

this at least.

Exactly. And that's why we're also more cautious

in the, um, way more cautious in the crude oil, than

we are. . .in the products.

Exhibit A at WAVFILE 1293QN at 29:32 (emphasis added).

Dowson:

- 26-
166. Defendant Dowson then explained that he intended to trade in a volume sufficient

to ensure that Optiver could manipulate prices in its favor, but not so much that the manipulative

scheme would be likely to attract notice.

167. Defendant Dowson said:

Dowson: I think my ideal position is going be around a

thousand because then I do 500 beforehand and I

have 500 to push, I get, I, I can definitely push it,

I'm very unlikely to go the other way. But I'm

also not doing it so dramatically that it's. .. we're

talking about it on CNBC or things like this.

Exhibit A at WAVFILE 1293QN at 31:50 (emphasis added).

168. Kaemingk commented that van Kempen was responsible for investigating the

compliance issues.

169. The parties expressed concern as to whether or not their conduct was

manipulative but decided otherwise, despite evidence to the contrary.

170. Defendant Dowson said:

let's say we're going to buy things and make it go higher, if even,

you might expect because this is sort of artificial and pushing it

up, that it comes back down afterwards. But what we've seen is, if

anything it tends to continue the same way. In other words, there

seems to be genuine flow or buying pressure.

Exhibit A at WAVFILE 1293QN at 33:10 (emphasis added).

171. Defendant Dowson then added that if they traded more futures contracts.than they

had in their TAS position, this would enable Optiver to push prices even further, but decided that

this activity might be viewed as manipulation.

172. Defendant Dowson explained:

Dowson: But what you could do then is of course, buy extra

during the time to get it even higher and then sell

them out at the end. But we've discussed that this is

- 27 -
Kaemingk:

Dowson:

something that we see is, uh potentially could be

seen as market manipulation, so we decided to

to stay, uh, stay away from that.

Okay, agreed?

Yep.

Exhibit A at WAVFILE 1293QN at 33:41.

173. During the call, Defendant Dowson checked on Mekic's trading, to ensure that

Mekic was not "hacking" the New York Harbor Gasoline TAS contracts, which would reduce

Optiver's T AS position, thus reducing the amount of futures contracts Optiver would trade

during the Close. Exhibit A at W A VFILE 1293QN at 34:29

174. In other words, Defendant Dowson was concerned that Mekic would not have

enough futures contracts to bang the Close.

175. Defendant Dowson explained: "Ferhad's got about 600 gasolines in his position,

I'm just gonna make sure he's not hacking them too much." Exhibit A at WAVFILE 1293QN at

34:29.

176. Defendants van Kempen, Meijer and Dowson then discussed developing software

that would enable them to view the volume in the market and allow Optiver to see the amount of

influence it has on the market.

177. The conversation continued:

van Kempen: is there any way else that we can ask Doug to uh

make some kind of tool as to better estimate the

volume during that time period so you can better

see what kind of effect that it will have on the

market. Is that correct?

Dowson: Can we ask Doug to make some time tool to see

what effect this have on the market? Oh, we've,

we've, been uh, now we've, but we've been running

analysis on um, yeah, because we are trying, um to

improve how we make the VW AP as much as

possible, we've been running analysis on the

- 28-
volumes traded over the, yeah, uh the minutes

before, the minutes during and how it goes, and,

um, and yeah, so we can better approach the VW AP

apart from anything. We should. .. uh, I'm quite

sure we should be able to get some of the

information you want I think.

Exhibit A at WAVFILE 1293QN at 34:54.

178. As the discussion of the manipulative scheme concluded, Defendant Meijer asked

that he be kept informed about the details ofOptiver's trading on a daily basis. Defendant

Meijer added that Optiver would trade the Crude Oil and related products (which includes

Heating Oil and New York Harbor Gasoline), but that he would like Optiver VOF to trade the

Minute Marker -a product similar to TAS -so that he can "get a feel" for it. Exhibit A at

WAVFILE 1293QN at 35:49.

179. Defendant Dowson's email to Meijer copying Van Kempen on March 9,2007 at

5:01PM also noted that Optiver "made a total of$256k in the TAS's. $30k of this came from

scalping TAS's." Exhibit D.

180. Defendant Dowson's email on March 9, 2007 at 5:01 PM further noted "We

noticed that it is not as easy to bully the market as it has been previously when it was

"obvious' that the TAS's were bid/offered in a certain direction." Exhibit D (emphasis added).

181. On or about the afternoon of March 13, Defendant Meijer wrote to Defendant

Dowson asking "have you tried the tas's (sic) in the crude already?" Dowson replied:

We quote the crude everyday. But I am very wary about

deliberately building up a big position there. To be able to move

the crude, we would need a position of substantial size. I would

think of the order of 5000 contracts. Are you willing to do it that

big already?

Exhibit E (emphasis added).

- 29-
182. Defendant Meijer responded copying Van Kempen at 9:32AM: "Well the 50/250

limit holds, so a bit over 4000 you can do." Exhibit E (emphasis added).

183. On March 14, Defendant Dowson and Defendant Meijer discussed further

refining their ability to manipulate the market.

184. Defendants Dowson and Meijer discussed whether it would be preferable to take

positions in different energy products opposite to one another to reduce risk or to take positions

in the same direction to generate more power to move the markets.

185. Defendants Dowson and Meijer had the following exchange:

Meijer: But it doesn't make sense actually to have then an opposite position in

things that are correlated.

Dowson: Um, well you're actually, the way I see it is this, it's um potentially

less profitable

Meijer: Yah

Dowson: Certainly um but that you could argue about but it is certainly less

risky; because if you look at it like this ok, um, if you do them both in

the same direction, you just got more power essentially.

Meijer: Yah, exactly because if you look at the example more simple that you

have a hundred percent let's say ah for the same product for two

months

Exhibit A at WAVFILE 12B220 at 05:54 (emphasis added).

186. As the conversation continued, Defendants Dowson and Meijer discussed their

power in the New York Harbor Gasoline market, explaining that under the $ 250 Million limit

that was established, they could accumulate a position of 3,000, concluding that although they

wouldn't even need that large a position to '"bully" the market, a larger position would give them

more power to manipulate the market. Exhibit A at W A VFILE 12B220 at 04:42.

187. Defendants Dowson and Meijer had the following exchange:

- 30-
Meijer:

Don't need urn all of that (3000 New York

Harbor Gasoline contracts) in order to push it if

you had a thousand you can really bully it

around

yea ok but you can bully around more with more

Dowson:

Exhibit A at WAVFILE 12B220 at 7:16 (emphasis added).

188. In continuing to discuss the risks and potential benefits of taking positions in all

products in the same direction versus taking opposition positions, Defendants Dowson and

Meijer agreed that their decision should be based on their confidence that they can move the

markets. Dowson expressed certainty that Optiver could move the market for New York Harbor

Gasoline, had doubts about their power in Crude Oil, but said he was going to try.

189. Defendants Dowson and Meijer had the following exchange:

Dowson: Basically you just take in more ofa gamble if you have

done the same way as each other. Alright so the thing

the thing that's the deciding factor is really how

powerful are we.

Meijer: Yea, but I agree that the definitely will be more of a

gamble but of course it will be relied in the entire idea

relied on the fact or the assumption that we can move

the market.

Dowson: yea it's a bit -- but what I'm sure of is we can move

the gasoline market. Whether we can move the

complex --

Meijer: Yea

Dowson: that I'm not sure of

Meijer: Yea, well with - yea, yea, you said you need to try

Dowson: exactly so we need to try so when we have a good

opportunity for it then uh we should definitely try. .,

Exhibit A at W A VFILE 12B220 at 9:49 (emphasis added).

190. Defendant Dowson next explained to Defendant Meijer that he would be more

comfortable bidding at even to attract volume into the TAS market which would not ordinarily

- 31 -
trade in TAS, and thereby "manufacture" a T AS position for Optiver, in a product which he

would be trading opposite a different product. Exhibit A at WAVFILE 12B220 at 10:29.

191. The conversation continued with a discussion about the Brent - WTI spread during

which Defendant Dowson commented "because this Brent- WTI spread it would be nice to push

that in our favor." Exhibit A at WAVFILE 12B220 at 11:20.

192. On March 15 Nicholas Stepanek, an Optiver trader, emailed Defendant Dowson

and suggested that Dowson might succeed in his efforts to manipulate the market for Crude Oil if

he traded a larger volume, approximately 6,000 contracts.

193. Stepanek wrote:

Have you thought about just doing the crude massively big? I

think with 6000 or so you can even move that one, like we're

doing with the minute marker. Obviously the gasoline is just a

great product for it. Could this be considered market

manipulation? As long as we don't trade against ourselves,

everything seems above board, but I stil think the exchange

might start to look into it.

Exhibit F (emphasis added).

194. Defendant Dowson replied he did not yet have the authority to trade 6,000, but he

would test his ability to manipulate the Crude Oilmarket with 4,000. On March 15 at 8:40AM,

Defendant Dowson wrote:

6000 crudes is over the limit that I agreed with Johann, but next

time someone pays 1 tick over (i.e. genuine interest) for some size,

I am going to do 4000, and see how our power is.

Exhibit F (emphasis added).

195. On March 15 at 5:29 PM, Dowson emailed Meijer, copying van Kempen to

advise them that despite having acquired large position in gasoil (a contract similar to Heating

Oil traded on ICE Futures Europe), they were not able to manipulate the gasoil market that day.

Exhibit G.

- 32 -
196. Defendant Dowson's email also reported the results ofOptiver's trading in Crude

Oil, commenting that because it was close to the expiration of the April Crude Oil contract, there

was less volume in the market and Optiver had a greater ability to manipulate the market.

197. Defendant Dowson wrote:

Elsewhere, we traded the gasoil T AS that is at the same time as the

minute marker. Despite having a position of 2000 futures we

didn't have enough power. We made $lk there. In the main event,

we had a good size crude position. 2800 futures. Since we are

close to expiration, the future is becoming more iliquid, which

makes influencing it easier.

Exhibit G (emphasis added).

198. On March 16, Defendant Dowson called Defendant Meijer to inform him of the

success Optiver had with the manipulative scheme that day. Meijer acknowledged that having

"real size," that is large positions, was "finally. . . paying off." Exhibit A at WAVFILE

12BM2P at 0:20.

199. In that conversation Defendant Dowson confirmed that, with regard to crude oil,

he and another Optiver trader decided to ')ust whack the oiL." Exhibit A at WAVFILE 12BM2P

at 01: 19.

200. Defendant Dowson also explained to Defendant Meijer how he suspected that

another trader, one ofOptiver's competitors, lost a lot of money as a result ofOptiver's trading.

Dowson explained that the competitor had established a large TAS position but must have traded

all or most of its futures contracts before Optiver began trading at approximately 2:26 or 2:27.

During this time, the price of the futures contract declined; however, once Optiver began buying

futures contracts during the Pre-Close and Close, it caused the price to increase up to and above

the price at which the other party had traded.

201. Defendants Dowson and Meijer had the following exchange:

- 33 -
Dowson: I think .. . our competitor, I think today has lost a really really a lot of

money. Because, when, after he sold all his bids at even and just offered

over, there's really big downticks in the oil, the whole complex went

down and actually afterwards we thought it was like there was some news

or something. So he must have bought really a lot of crudes on the day in

the TASs sold them all out beforehand so there's a big spike down and

then at sort of 26, 27 past we started buying and basically bought it all

the way back up and more.

Exhibit A at WA VFILE 12BM2P at 2:04 (emphasis added).

202. Defendant Meijer then asked Dowson how much of the crude trading was done in

the Pre-Close, before Optiver "brought. . . up" the price for the settement. Dowson told him

that he traded about 800 Crude Oil futures in the Pre-Close. Exhibit A at W A VFILE 12BM2P at

03:54.

203. Defendants Dowson and Meijer next discussed that Optiver's profits from the

manipulative scheme totaled approximately $1.2 million for the week of March 11-16, and

approximately $2 million overall up to that point.

204. Defendant Dowson also described for Meijer the details of his strategy for

building up a large T AS position.

205. Defendant Dowson's strategy - rather than simply placing a range of bids and

offers and waiting for the market to react - was to decide early in the day whether to build a long

or short position and then put in quotes, either bids or offer depending upon the position Optiver

had decided to pursue, priced at even, rather than in accordance with market conditions.

206. Defendant Dowson explained to Defendant Meijer that they had tried the

manipulative strategy in Crude Oil that day because they also had a large New York Harbor

Gasoline position and thought it would be best to trade them in the same direction. Meijer

agreed that having the related products trading in the same direction would make both positions

more powerfuL.

- 34-
Basically the reason we did it in the crude today

was because hardly any trades had happened and we

thought, well it's better to have it the same

side because we had such a big RBOB (New York

Harbor Gasoline) position

Yeah, exactly so you just make it a bit more

powerful for either one. . .

Exhibit A at WA VFILE 12BM2P at 5:32 (emphasis added).

Dowson:

Meijer:

207. Defendants Dowson and Meijer agreed that while Dowson was on vacation,

Meijer would push Mekic to build up large TAS positions, joking that if Optiver could not

execute the manipulative scheme, it would be limited to scalping, which would be far less

profitable.

208. On March 19 at 11 :22 AM (CT), Defendant Meijer emailed Mekic:

I assume you are responsible for trading the T AS's this week.

I also assume you wil be trading them big enough even when

Chrs is away.

Can you e-mail me daily with the positions you were having, what

happened and the results?

Exhibit H (emphasis added).

209. On March 19 at or about 1 :08 PM (CT), Mekic replied to Defendant Meijer:

We are bidding even in all the oil products on the NYEX (Oil

3000, HO 2500 and Gasoline 2500). This gives us the best chance

of getting some big positions without trading against other

marketmakers, so now it is up to the market to sell to us.

I will let you know what happened.

Exhibit H.

210. On March 19, Mekic reported to Defendant van Kempen that Optiver had 2200

front month crude oil contracts and that "it's expiration tomorrow so we had a fair amount of

influence." Exhibit A at WAVFILE 12BXQ2 at 6:55 (emphasis added).

- 35 -
211. Later on March 19, Mekic emailed Defendant Meijer: "As you cán see, the

crudes went really welL. We had lots of influence due to the expiration tomorrow." Exhibit I

(emphasis added).

212. On March 19, Mekic also reported to van Kempen "'r did the heating oils and we

had almost 800 - that should be enough influence." Exhibit A at WAVFILE 12BXQ2 at 7:04

(emphasis added).

213. On March 20,2007 at 2:45PM, Mekic reported to Defendant Meijer:

Today we had a textbook execution in the crude, heating oil and

Brent. We sold 20-30% beforehand, the market went down

afterwards so we hedged the T AS contracts with quite some edge.

The gasoline position was of a medium size, so difficult to hedge

and also the VW AP printed against us. By quoting the heating oil

and gasoline TAS contracts for substantial size we ended up

doing 80-90% of the volume in the front month and so kept

others out.

Exhibit J (emphasis added).

D. OPTIVER'S MANIPULATIVE SCHEME is DISCOVERED AND BROUGHT

TO A HALT BY NYMEX

214. In response to an inquiry by NYEX compliance, on or about March 21, 2007 at

1 :36 PM, Fortis Clearing Americas sent an email to Defendant van Kempen enclosing the

NYMEX Advisory referenced above and attached as Exhibit K.

215. On or about March 22, Defendant van Kempen and Optiver's counsel Steven

Schwab participated in a conference call with Fortis and NYEX.

216. On or about March 26, when Defendant Dowson retured from vacation, he was

advised about the NYMEX inquiry into Optiver's TAS activity.

217. Optiver held another call with NYMEX on or about March 26, in which

Defendant van Kempen, in response to an inquiry by NYEX compliance, falsely stated that

"'what we're trying to do is just make markets in the TAS contract and hedge ourselves as well as

- 36 -
possible during that closing period and maybe slightly before. But you gotta do it before 1:30

'cause afterwards liquidity dries up completely." Exhibit A at WAVFILE OPTUS0002406 at

11:28.

218. To further conceal the manipulative intent van Kempen explains Optiver's futures

trading from 2:25 PM to 2:30 PM as "before the VW AP starts, we have a larger market risk and

say the market is moving up and we need to and we're selling prior to, then the chances that we

get close to a settlement price become much smaller. So that's why we can spread a little of the

risk over a wider area because most of the exposure is during that two minute period." Exhibit A

at WAVFILE OPTUS0002406 at 23:25.

219. In that same call, in response to an inquiry by NYMEX of the profit motive of the

trading strategy, van Kempen concealed the real profit motive from trading the futures and

instead falsely stated that the profit motive is "'the spread, capturing the spread" and that

"anywhere where we trade, we make a bid and an ask spread and we believe we get paid on

buying on the bid and selling on the offer." Exhibit A at W A VFILE OPTUS0002406 at 24:40.

220. In or about the first week of April 2007 Optiver stopped its practice of recording

its phone lines.

E. DEFENDANT V AN KEMPEN CONTROLLED OPTIVER

221. Defendant van Kempen's responsibilities included supervising the Compliance

Department, the Risk Management Deparment, Human Resources, and the IT Department.

222. Defendant van Kempen is and was at all relevant times responsible for employee

hiring, registration and supervision.

223. Defendant van Kempen gave Mekic performance reviews in 2005,2006, and

2007.

- 37 -
224. Defendant van Kempen, along with Defendants Dowson and Meijer, determined

the amount of bonuses to be given to Optiver's traders.

225. Defendant van Kempen regularly communicated with the Global Management

Board regarding Dowson's performance.

226. Defendant van Kempen is and was at all relevant times responsible for the annual

compliance meeting.

227. Defendant van Kempen is and was at all relevant times responsible for ensuring

that Optiver engages in acts or practices consistent with just and equitable principles of trade as

set forth in Optiver's compliance manual, which expressly contains a prohibition on market

manipulation.

228. By allowing and encouraging Optiver's traders to execute the manipulative

scheme, Defendant van Kempen abdicated his assigned responsibility to ensure that Optiver

observe principles of just and equitable business practices and refrain from engaging in market

manipulation.

229. Defendant van Kempen was involved in the development of the TAS trading

strategy implemented by Optiver, under the immediate direction of Dowson.

230. During a telephone conference on March 9, Defendant van Kempen was tasked

with investigating ''all possible compliance risks." Also in this conversation, van Kempen stated

that he had informed Optiver's risk manager of how Optiver trades TAS contracts.

Exhibit A at W A VFILE 1293QN at 26:50.

231. While Defendant Dowson was out of the offce, Defendant van Kempen directly

supervised Optiver's traders.

- 38 -
232. On or about March 19, Defendant van Kempen had a conversation with Mekic

during which Mekic reported the results of the day's T AS and futures trades and his plans to

accumulate a T AS position of approximately 2,000 to 2,500 the following day. Exhibit A at

WAVFILE 12BXQ2 at 7:04.

233. Defendant van Kempen advised Mekic to trade no more than 25% of Optiver's

future contracts before the Close.

234. Later in the conversation, Defendant van Kempen told Mekic:

You should milk it for right now, as much as you can, because

you never know how long this thing is going to last.

Mekic replied:

I think the Crudes are the most advanced markets and that's where

we made most of our money anyway. How much can the others

develop? I think at some point we'll be hammering in all three of

them. We need a good hammer because we need to know what we

do now without worrng about other people. I think if we do well

on the Crudes I don't see why the products shouldn't remain good

for a while, at least.

Exhibit A at WA VFILE 12BXQ2 at 10:04 (emphasis added).

F. DEFENDANT DOWSON CONTROLLED OPTIVER

235. In 2007, Defendant Dowson gave the annual performance reviews for Optiver's

traders, including Mekic.

236. Defendants Dowson and Meijer decided Mekic's annual bonus for 2007.

237. Defendant Dowson was responsible for hiring and firing traders for Optiver.

238. Defendant Dowson was responsible for Optiver's trading decisions and strategies.

239. Defendant Dowson directed and supervised the actions ofOptiver's traders in

executing the T AS trading strategy.

240. Defendant Dowson gave instructions to Mekic as to how to trade TAS contracts

and the corresponding energy futures.

- 39 -
241. Defendant Dowson decided how many orders for TAS contracts Optiver should

enter into Globex.

242. Defendant Dowson occasionally entered orders himself in addition to supervising

trading by other Optiver traders.

G. DEFENDANT MEIJER CONTROLLED OPTIVER

243. The Global Management Board, of which Defendant Meijer was a member, made

the decision, with Defendant van Kempen, to appoint Defendant Dowson as head of trading for

Optiver in Chicago.

244. Defendants van Kempen and Dowson regularly reported to Defendant Meijer as

well as during a weekly telephone conference at which matters including trading and compliance

were discussed.

245. Defendant Meijer was able to and did influence the trading activity ofOptiver.

246. Defendant Meijer set the risk limits for Defendants' manipulative scheme.

247. Defendant Meijer dii;ectly participated in the development and supervision of the

manipulative scheme executed by Optiver, under Dowson's immediate direction.

248. Defendant Meijer had authority over personnel decisions at Optiver.

249. Defendant Meijer asked trader Ferhad Mekic to transfer from Optiver VOF to

Optiver in Chicago.

250. Defendant Meijer gave Mekic at least three performance reviews including one in

October 2007.

251. Defendant Meijer and Dowson decided Mekic's annual bonus for 2007.

252. Defendant Meijer and the Global Management Board were responsible for

reviewing pefendant Dowson's performance.

- 40-
253. Defendant Dowson's authority to implement the manipulative strategy was

subject to Meijer's approvaL.

254. Defendant Meijer had several conversations with Defendant Dowson in which he

provided specific directions with respect to Optiver's TAS, and corresponding futures, trading.

255. While Defendant Dowson was out of the offce on vacation, Defendant Meijer

directly supervised Mekic in executing the TAS and corresponding futures trading.

(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)

- 41 -
H. OPTIVER'S TRADING IN MARCH 2007

256. During March 2007, Defendants, through Optiver, engaged in trading with the

intent to affect the price ofNYMEX energy futures contracts as follows:

DATE FUTURES CONTRACT

March 2 New York Harbor Gasoline

New York Harbor Gasoline

March 6

Light Sweet Crude Oil

March 8 New York Harbor Gasoline

New York Harbor Gasoline

March 9

Heating Oil

Heating Oil

March 13

New York Harbor Gasoline

Light Sweet Crude Oil

March 14

New York Harbor Gasoline

New York Harbor Gasoline

March 15

Light Sweet Crude Oil

New York Harbor Gasoline

March 16

Light Sweet Crude Oil

New York Harbor Gasoline

March 19 Light Sweet Crude Oil

Heating Oil

March 20 Heating Oil

.

March 21 New York Harbor Gasoline

- 42-
257. Defendants had the ability to cause and did intentionally cause an artificial price

in futures contracts for Crude Oil, Heating Oil, and New York Harbor Gasoline on five of the

days identified above:

DATE FUTURS CONTRACT

March 2, 2007 New York Harbor Gasoline

March 16, 2007 Light Sweet Crude Oil

March 16, 2007 New York Harbor Gasoline

March 19, 2007 Light Sweet Crude Oil

March 20, 2007 Heating Oil

VI.

VIOLATIONS OF THE COMMODITY EXCHANGE ACT

COUNTS 1-5:

MANIPULATION AND/OR ATTEMPTED MANIPULATION OF THE PRICE OF

CRUDE OIL, HEATING OIL AND NEW YORK HAROR GASOLINE FUTURES

BY DEFENDANTS OPTIVER, OPTIVER HOLDING, OPTIVER VOF, DOWSON, AND

MEIJER

258. Paragraphs 1 through 257 are re-alleged and incorporated herein by reference.

259. Defendants Optiver, Dowson, and Meijer intended to affect the price of certain

. energy futures on at least five separate instances in March 2007 as follows:

a. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 2, 2007;

b. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Crude Oil futures on March 16, 2007;

c. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 16, 2007

- 43 -
d. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Crude Oil futures on March 19, 2007;

e. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Heating Oil futures on March 20, 2007;

260. Defendants Optiver, Dowson, and Meijer possessed the ability to cause and did

cause the price of the Crude Oil, Heating Oil, and New York Harbor Gasoline as setforth in

paragraph 259 (a-e) to be artificial on at least the dates identified above. Accordingly,

Defendants Optiver, Dowson, and Meijer violated Sections 6(c), 6(d), and 9(a)(2) of the Act, 7

US.c. §§ 9, 13b, and 13 (a)(2).

261. Each and every overt act in furtherance of the intent to affect the price of certain

energy futures as identified above in paragraph 259 a-e, coupled with that intent, including but

not limited to every purchase, sale, bid, offer, telephone call, and e-mail is alleged herein as a

separate and distinct violation of Sections 6(c) and 6(d) and 9(a)(2) of the Act, 7 US.C. §§ 9,

13b, and 13(a)(2).

262. Optiver, Optiver Holding, and Optiver VOF are also liable for violating Sections

6(c), 6(d), and 9(a)(2) of the Act pursuant to Section 2(a)(I)(B) of the Act, 7 U.S.C. § 2(a)(I)(B),

by virtue of the acts of their offcials, agents, or other persons acting within the scope of their

employment or offce, including Defendants Dowson and Meijer.

COUNTS 6-19:

ATTEMPTED MANIPULATION OF THE PRICE OF CRUDE

OIL, HEATING OIL AND NEW YORK HARBOR GASOLINE

FUTURES BY DEFENDANTS OPTIVER, OPTIVER HOLDING,

OPTIVER VOF, DOWSON, AND MEIJER

263. Paragraphs 1 through 262 are re-alleged and incorporated herein by reference.

- 44-
264. Sections 6(c), 6(d) and 9(a)(2) of the Act, 7 US.C. §§ 9, l3b, and 13(a)(2), make

it unlawful for any person to attempt to manipulate the price of any commodity in interstate

commerce, or for future delivery on or subject to the rules of any registered entity, including any

contract market.

265. Defendants Optiver, Dowson, and Meijer intended to affect the price of certain

energy futures on at least fourteen separate instances in March 2007 as follows:

a. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 6, 2007;

b. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Crude Oil futures on March 6, 2007;

c. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 8,2007;

d. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Heating Oil futures on March 9, 2007;

e. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 9,2007;

f. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Heating Oil futures on March 13, 2007;

g. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 13,2007;

h. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Crude Oil futures on March 14,2007;

- 45 -
1. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 14, 2007;

J. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Crude Oil futures on March 15, 2007;

k. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 15, 2007;

1. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

Heating Oil futures on March 19,2007;

m. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 19, 2007;

n. Defendants Optiver, Dowson, and Meijer intended to affect the price of April

New York Harbor Gasoline futures on March 21,2007;

266. Defendants Optiver, Dowson, and Meijer engaged in overt actions in furtherance

of their intent to affect the price of certain energy futures during March 2007, as listed above in

paragraph 265 a-no

267. By their conduct, Defendants Optiver, Dowson, and Meijer each violated Sections

6(c), 6(d) and 9(a)(2) of the Act, 7 U.S.c. §§ 9, 13b, and 13 (a)(2).

268. Each and every overt action in furtherance of the intent to affect the price of

Crude Oil, Heating Oil, and New York Harbor Gasoline futures contracts, coupled with that

intent, including but not limited to every purchase, sale, bid, offer, telephone call, e-mail and

instant message, is alleged herein as separate and distinct violation of Sections 6( c), 6( d) and

9(a)(2) of the Act, 7 US.c. §§ 9, 13b, and 13(a)(2).

- 46-
269. Optiver, Optiver Holding, and Optiver VOF are also liable for violating Sections

6(c), 6(d), and 9(a)(2) of the Act pursuant to Section 2(a)(1)(B) of the Act, 7 US'c. § 2(a)(1)(B),

by virtue of the acts of their officials, agents, or other persons acting within the scope of their

employment or offce, including Defendants Dowson and Meijer.

COUNTS 20-38:

MANIPULATION AND/OR ATTEMPTED MANIPULATION OF THE PRICE OF

CRUDE OIL, HEATING OIL AND NEW YORK HARBOR GASOLINE FUTURES

BY DEFENDANTS DOWSON, MEIJER, AND VAN KEMPEN

AS CONTROLLING PERSONS

270. Paragraphs 1 through 269 are re-alleged and incorporated herein by reference.

271. Section 13(b) of the Act, 7 US.C. § 13c(b), provides: "'Any person who directly

or indirectly, controls any person who has violated any provision of this Act or any of the rules,

regulations, or orders issued pursuant to this Act may be held liable for such violation in any

action brought by the Commission to the same extent as such controlled person."

272. As set forth above in this Complaint, Defendants Dowson, Meijer, and van

Kempen individually and jointly, directly or indirectly controlled Defendant Optiver, which

committed multiple violations of the Act.

COUNT 39:

FALSE STATEMENT

273. Paragraphs 1 through 272 are re-alleged and incorporated herein by reference.

274. Section 9(a)(4) of the Act, 7 U.S.c. § 13(a)(4), makes it unlawful for any person

willfully to falsify, conceal, or cover up by any trick, scheme, or artifice a material fact, make

any false, fictitious, or fraudulent statements or representations, or make or use any false writing

or document knowing the same to contain any false, fictitious, or fraudulent statement or entry to

- 47-
a registered entity, board of trade, or futures association designated or registered under the Act

acting in furtherance of its official duties under the Act.

275. NYMEX is a board of trade as defined by Section la(2) of the Act, 7 U.S.c. §

la(2).

276. NYMEX was acting in furtherance of its official duties under the Act in

reviewing Optiver's energy trading activity.

277. On or about March 26,2007, Optiver and van Kempen made material

misrepresentations to NYEX in the manner van Kempen described Optiver's trading strategy

and profit motive, deliberately concealing from NYEX Optiver's futures trading strategy and

the profit motive from the Pre-Close futures trades.

278. By their conduct Defendants Optiver and van Kempen violated Section 9(a)(4) of

the Act, 7 US.c. § 13(a)(4).

279. Each and every instance of such conduct by Optiver and van Kempen is alleged

herein as separate and distinct violation of Section 9(a)(4) of the Act, 7 US.C. § 13(a)(4).

280. Optiver is also liable for violating Section 9(a)(4) of the Act, 7 US.c. § 13 (a)(4),

pursuant to Section 2(a)(I)(B) of the Act, by virtue of the acts of its offcial, agent or other

person acting within the scope of his employment or offce, including Defendant van Kempen.

VII.

RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests that this Court, as authorized by Section 6c

of the Act, 7 US.c. § 13a-l, and pursuant to its own equitable powers

A. Find Defendants liable for violating Sections 6(c), 6(d), and 9(a)(2) of the Act, 7

US.C. §§ 9, 13b, and 13(a)(2);

- 48-
B. Find Optiver and van Kempen further liable for violating Section 9(a)(4) of the Act, 7

U.S.C. § 13(a)(4);

C. Enter an order of permanent injunction restraining and enjoining Defendants and any

of their affiliates, agents, servants, employees, successors, assigns, attorneys and persons in

active concert with them who receive actual notice of such order by personal service or

otherwise, from directly or indirectly violating Sections 6(c), 6(d), and 9(a)(2) of the Act, 7

US.C. §§ 9, 13b, and 13(a)(2);

D. Enter an order of permanent injunction further restraining and enjoining van Kempen

and Optiver and any of their affiliates, agents, servants, employees, successors, assigns, attorneys

and persons in active concert with them who receive actual notice of such order by personal

service or otherwise, from directly or indirectly violating Section 9(a)(4) of the Act, 7 US.C. §

13 (a)(4);

E. Enter an order of permanent injunction prohibiting Defendants and any of their

affiliates, agents, servants, employees, successors, assigns, attorneys and persons in active

concert with them who receive actual notice of such order by personal service or otherwise,

from:

I. trading on or subject to the rules of any registered entity, as that term is

defined in Section la(29) of the Act, 7 U.S.c. § la(29);

2. engaging in, controlling or directing the trading for any commodity

interest account for or on behalf of any other person or entity, whether by power of

attorney or otherwise;

3. soliciting or accepting any funds from any person in connection with the

purchase or sale of any commodity interest;

4. applying for registration or claiming exemption from registration with the

Commission in any capacity, and engaging in any activity requiring such registration or

exemption from registration with the Commission, except as provided for in Regulation

4.14(a)(9), 17 C.F.R. § 4. 14(a)(9) (2006), or acting as a principal, agent or any other

offcer or employee of any person registered, exempted from registration or required to

- 49-
be registered with the Commission, except as provided for in Regulation 4.14 (a)(9), 17

C.F.R. § 4. 14(a)(9) (2006);

5. entering into any commodity interest transactions for their own personal

accounts, for any account in which they have a direct or indirect interest and/or having

any commodity interests traded on their behalf; and/or

6. engaging in any business activities related to commodity interest trading;

F. Enter an order directing Defendants to pay civil monetary penalties, to be assessed by

the Court, in an amount not to exceed the greater of$130,000 or triple the monetary gain to them

for each violation of the Act, as described herein;

G. Enter an order providing for such other and further equitable and ancillary relief as

this Court may deem necessary and appropriate, including but not limited to restitution and

disgorgement of ill-gotten gains and damages; and

H. Enter an order requiring Defendants to pay costs and fees as permitted by 28 US.C.

§§ 1920 and 2412(a)(2).

- 50-
VlH.

DEMAD FOR JURY TRI

. Plaintiff hereby demands a jur trial.

Dated: July 24, 2008

j

- 51 -

Respectflly submitted,

ATTORNYS FOR PLAINIFF U.S.

COM1ODITY FUTURS TRING

COM1ISSION

Sephen J. Obie 02)

Acting Director, Division of Enforcement

Vincent A. McGonagle

Seiuör Deputy Director

Division of Enforcement

1155 21st Street, N.W.

Washington, D.C. 20581

(202) 4 1 8-5111

(202) 418-5519 (facsimile)

sobie~cftc.gov

Mana! Sulta.

Chief Trial Attorney

D.avid Acevedò

Chief Trial Attorney

David W. MacGregor

Chief Trial Attorney

140 Broadway, 19tJ Floor

New York, NY 10005

(646) 746-9761

. (646) 746-9940 (facsimile)

rrsultan~cftc.gov

Michael Berlowitz

David Oakland

R. Stephen Painter Jr.

Derek Shakabpa

Lara Turcik .
Exhibit A
Exhibit B
Page i of i

From: Chritopher Down

Sent: Friday, Marc 02.20073:31 PM

To: Randal Meijer

Cc: Bastiaan van Kempen

Subject: TAS trding

i thought I would make you awre of whal happened in the TAS's today.

Nick has made a ll profi on his trding, close to $100k I expct But I consider the way In which he did I~ to be both deceitfl,

and reless. It also makes a mockery of the rlreward profile that we (Ferhad and I) are trying to achieve.

Please ask Nick and Jan-Jaap to explain themselves (and wh thy would hedge all thir deltas before the settement lime),

before we discs 'his on Monday. They wil tell you of coure that they have noticed (after we told lhem), that when someone

sells TAS's, th future often go down during the settement But, 'his Is not alys the case, so to do all your delts before Is

prett risky.

I can 'hlnk of no reason that they would do this, other thn the knowldge that we are going to hammer the future.

To hedge agalns' .market risk. we have trded 011 future In the opposite diren. This hedge cost $60k today. We also

carefully consider the percntage of fuure to trde before (these are the ones that make the profit) and the ones we need to do

during in order to forc the market dow (the ones that cost money).

Since our colleagues In Amsterdam know that we ar going to do the dirt work, they simply trde their futures before hand. and

make a big profit on them.

Is this what you want?

OPTI-US 000001 l
Exhibit C
From:

Sent:

To:

Cc:

Subject:

Randal Meijer -CRMeijer(fOptiver.com:?

Wednesday, March 7, 20073:21 AM

Christopher Dowson -CCDowson(fOptiver.com:?

Bastiaan van Kempen -cBastiaanK(fOptiver.com:?

RE:

I talked to Jan-jaap and Nick about the T AS's.

They agreed to doing them from 1 spot being the US.

You can then raise your limits to 1000 per commodity (this equals app. 75 min per underlying right ?)

Please respect those limits.

When we gain experience and become more certain that we can influence VWAP I'm sure we can raise further.

They wondered though about some TAS's (e.g Natural Gas) , because you are not trading them.

They would like to experiment further on them.

-----Original Message-----

From: Christopher Dowson

Sent: Monday 05 March 2007 23:00

To: Randal Meijer

Cc: Bastiaan van Kempen

Subject:

Indices were really nice today. We've been a bit lucky with the spreads, but that is more the case that we

now have a good opportunity (nasdaq 2+ points under Russell) without it hurting us too much. In total

today we made just over half a million. More than 100% of that comes from day trading in Nasdaq and

Russell.

Unfortunately today's Nasdaq trader is getting a bit old, and seemed prone to changing cut offs when i

meant to be changing curves, and doing april cut off when i meant to do may. It has been quite a while

since I've been sat behind the screen for the majority of the day, and you really can telL. Still, i managed

to pick the high and low of the vols not too badly, so that made us a few dollars.

After all the excitement of Friday, we hardly had any position going into TAS settlement. We made $1 Ok

today, pretty much all from scalping.

Our crack position is also working nicely. Because the rolls were at such a good level historically, we did

a few extra, and are small short crack in the first month. So even though we are overall long crack still,

we made on position today despite the crack going down.
Exhibit D
Page i of 1

From: Christopher Dowson

Sent: Friday, March 09, 2007 5:01 PM

. To: Randal Meijer

Co: BasUaan van Kempen

Ternbie day in the indices. Position just didn't work and we had a couple of really ugly delta rides in the Nasdaq. I think the total

was close to -$100k.

Jordan made some money today, though I'm not going to claim It was anything to do with our conversation yesterday. i hope it's

not that easyl

Ferhad's positions have cost a bit today. Only a $100k, but considering that they are not that big at the moment, this is a decent

amount. He was a bit mad wIth me, for deliberately building a TAS position that would hurt his previous position. We certainly

can be accused of front running ourselves though.

We made a total of $256k In the TAS's. $30k of this came from scalping TAS's. Our position at the end was long 1200 April

HOT's, and 350 May HOT's, and short 900 April RBT's, and 320 May RBT's. This gave us a reasonably flat market delta.

Starting at 1.20 we did 500 HO's against 500 RBT's before the settlement began, keeping the positions balanced against each

other. This worked very nicely, since even thought during this time there was a reasonable down move, we came out flat in the

gasolines that we had to buy. and made all our money in the HO's that we were short

We notice that It Is not as easy to bully the market as It has been previously when it was .obvious" that the TAS's were

bid/offered in a certin direction.

OPTI-US 000002
Exhibit E
Page toft

From: Randal Meijer

8ent: Tuesay, Marc 13,20079:32 AM

To: Chnsropher Dawn

Cc: Basaan van Kempen

Subject: RE:

Well the 501250 limit holds, 60 a bit over 4000 you can do.

--Oriinal MegeFrom: Chripher Dow

sent: Tues 13 Marc 2007 13:48

To: Randal Meijer

SUbjec RE:

We quote the crde everyday. But I am very war about deliberately building up a big positin there. To be able to move

the crde, we would nee a positon of substantil size. i would think of the order 600 contrcts. Ar you willng to do It

that big already

--Ort~nal M~eFrom: Randal Meijer

Set: Tuesay 13 Marc 200701:54

To: Chritopher Don

ce Batlaan van Kempen

SUbjec: RE:

Have you tred the tas's in the crde already?

Yesterday we made 42k on 1400 apr and 1000 mays (25 % prebu) in the minute markr brent

---Onginal Message---

OPTJ-US 000003
Exhibit F
Page i of 1

From: Chnstopher Dawson

Sent: Thursy, March 15, 2007 8:40 AM

To: NIchlas Stepanek

Subject: RE: spreds

Hey Nick,

I did think about those stock spreads last week, but with our limited manpower, and so many other things going on, I decded not

to pursue It We did start to trde some Index Mure spreads again durig that time though.

Have you done any stock spread trdes recnUy?

The gasoline was prtnted a lot against us yesterday, but we stll made 270, or 80.

6000 crdes Is over the limit that I agreed with Johann, but next tlme some ana pays 1 tick over (I.a. genuine Interest) for soma size. I am, goIng to do 4000, and see how our poer 18.

I don't expect any problems regarding markt manipulation. I think we ere stil just providing liquidity, but you never know. Ferhad

and I were looking at the day graphs yesterday, and If you compare the amourit we moved the mob, compared to normal dally

moement, then It Is not significant

As for the brent-wt, I completely agree wit all your comments. i think It Is a much more risky trde than i would normally like, but

given the lavells prett extme I decided to do a trde. I wIll just reduce the position to zero today.

--riginal MeeFrom: Niclas Stpanek

sent: Thursay 15 Marc 2007 06:09

To: Chripher Dawsn

SUbJect: spres

HIChrt,

How's It going? i was wondering you had looked Into trding any stock spreads with the Increased volatilty. I find tht I

can make money when the V1X Is over 17 or so. i gave you that list a few months ago. Something to think about Also,

lAS going great Glad It's going so well for us. The mInute marker Is a bit tough but we're averaing 20 or so. I see you

trded yesterday fo no credit In the gasollna and made 400 (maybe more) or so7. It seems we ca even create a posItion

for a loss and make money. Have you thught about Just doing the crde massively big? I think with 6000 or so. you can

even move that one. like we're doing with the minute marker. Obviously the gasoline Is Just a great prouct for It Could

this be considered market manipulatio? As long as we don't trde against ourselves, everying ses abova bord, but

I stili think the exchange might strt to look Into It lat thing. th brent-wt poitn you put on &ømed a litle strnge to

me. This Is what happened to us a fe months ago with the heati 011 curve stepening. You just get forcd out and

there's nothing you can do. We roll everying really early to avoid this, and thus we have limited our losses In this spread.

I admit this Is quite extreme, but anyting Is possible In the slrt-tetr. The McKee rellnery outge means the mar1et Is

being ftooded with spot crde along wi excess Canadian crde flng sout, accmpanied wi fran tensions and the

Nlgena situation Is pushing the spread to this exreme. Not sure your plans. but tha brent WILL get extmely illiquid

throughout today and I don't really have a finn handle on how the cash settment pri Is set (base upon 21-day brent

forard deals throughout today).

Regards,

Nick

OPTlUS 00000
Exhibit G
Page 1 of t

From: Chnstopher Dowson

Sent: Thursday, March 15,20075:29 PM

To: Randal Meijer

Cc: Bastiaan van Kempen

,

i.

Some interesting things today. Once again, not necessrily something to be proud of, but definiTIy interesting.

We (or essentially I) have had a WTllbrent spread for a couple of weeks. We had said normally (hat we wouldn't want to trade it

up to expiry, but since it was so "extrme", we did. Anyway the thing became quite ugly, meaning at the worst point of yesterday,

we were down almost $900k over the two weeks. At the close yeserday we were down about HOOk.

My idea was that since the level was interesting, we would put on the spread, and if it didn't come our way we would lake the loss,

and hack it out on Wednesdayffursday. We have done the sarna with the Rbob/HO spread, which fortunately has come. back,

and made $250k. The levels In both by the way are historically very high.

Today becuse the liquidit, was not so good, by the time the US wa open, wewere not in a vei nlee position. Since they are

both cash setted, Famad checked the expiration proceure to see if lettng it expire was a posi ilit. Originally this was never

the intention, but we should have looked into it earlier. .

We now think that the brent, expires gradually over the day today. This would mean that your s ead essentially becomes sec

deltas in the WT, during the day. By the time we realized that, we had already taken off 200, of ur 700 fuures. As It turned out

at prett nice levels. For the remainder, we sold WTI futures, and we wlliet the brents expire. e will see the settlement price

tomorrow morning.

So far it is a terrible story, of trading perhaps too big, and not researching properly. Now for lhe interesting part If our

understanding of the expiration procedure is correc~ then since the expiration price is determined gradually over the day, the

brent should tend towards a certain leveL. And it did seem to do this. There were however two strange things. Firstly when it was

97% expired, the future appeared to stll move together with the crde to a certain extent. (something like delta 25). And

secondly right at the end, in the last couple of minutes, when it should have a delta close to zero,the future was all of a sudden

bid up by 40 cents.

Now because we didn't have access to all the information necssary to determine the expiration price, I cannot say which of the

things we should have traded on. But what is certain, is that there are good trading opportunltes If we can access thIs

information, and reasonable one even if we can't. Presently both Nick and Ferhad are further investigating.

Elsewhere, we traded the gasoil TAS that Is at the same time as the minute marker. Despite having a position of 2000 futures we

didn't have enough power. We made $1k there. In the maIn event, we had a good size crude position. 2800 fuures. Since we

are close to explratlon, the fuure is becoming more illiquid, which makes Influencing it easier. Mark beat vwap by Just over 5

ticks, making $140k, plus printing one tick In our favour another $28k. We also had a gasoline positon of 700 (500+200), whIch

we beat by 20 ticks in the mays, and broke even in the aprils. Total score just over $220k.

Lee trded 90091e again today. p/l $12k. and he is only doing cboe at the moment, because the hidden quote script on the ¡se rTáchine was so weird. .

Indlçe Is also not a prett picture. AlWin Is down over $200k. This comes frm losing on long premium. So a combination of

theta and the vols coming down.

The rest have been aggressively building off positions, which has gone well, but they haven't made anyting today. I suppose this

s to be expected, since we let the strike positons get bigger than usual recently because of the amount of trading. I am actually

:irett happy at how much they have tiied it up today.

I\t least Bas is making money wi hIs trding!

..

OPTI-US 000005
Exhibit H
:R 0-270-0ptiver-OOOOO 5

Page I of i

From:

Sent:

To:

Subject:

Ferhad Mekie -:FerhadMekie~Optiver.com;:

Monday, March i 9, 2007 I :08 PM

Randal Meijer -:RMeijer~Optiver.com;:

RE:

We are bidding even In all the oil products on the NYMEX (Oil 3000, HO 2500 and Gasoline 2500). This gives us

the best chance of getting some big positions without trding against other marketmakers, so now it is up to the

market to sell to us.

I wil let you know what happened.

Regards,

Ferhad

PS. I am responsible, with Chris of course for trading the T AS contracts in other weeks as well.

-----Original Message-----

From: Randal Meijer

Sent: Monday, March 19,2007 11:22 AM

To: Ferhad Mekic

Cc: Bastaan van Kempen; Chrstopher Dowson

Subject:

Ferhad,

I assume you are responsible for trading the TAS's this week.

I also assume you will be trading them big enough even when Chris is away.

Can you a-mail me daily with the positions you were having, what happened and the results?

Regards.

Randal

tie:IIC:\Documents and Settings\jcampbellLocal Settings\Temporary Internet Files\OLK76... 417/2008
Exhibit I

.\.. "
ERO-270-0ptiver-000006

Page I of i

From:

Sent:

To:

Ferhad Mekie -eFerhadMekie(gOptiver.com~

Wednesday, March 21, 2007 8:55 AM

Christopher Dowson -eCDowson(IOptiver.com~; Bastiaan van Kempen

-eBastiaanK(IOptiver.com~

Subject: FW: Monday TAS trading

-----Origlnal Mesge-----

From: Ferhad Meklc

Sent: Monday, March 19, 20072:43 PM

To: Randal Meijer

Subject: Monday TAS trding

Product Position Deltavalue Profit

Crude April (exp 2234 127 000 000 $ 221 000

tomorrow)

Heating oil April (exp two 798 57 000 000 $16 000

weeks) + small Mav

Gasoline April (exp two 929 76 000000 $ 3000

weeks)

I TOTAL 1$ 240000

Randal,

As you can see the crudes went really well. We had lots of intluence due to the expiration tomorrow.

The gasoline did not go well because we did not stay on schedule.

The heating oil did not have major ¡ntluence and there were some buyers at the close so the VWAP was not low

compared to the lots we sold eai1ier. We encountered this on Friday so I would say that people are either frontrunning us in the future with or without T AS contracts, or are trading T AS contracts in the opposite direction to us.

My aim now is to trade almost all the TAS contracts in the front month. We will be even bid at one overfor 2500.

Regards,

Ferhad

fie:IIC:\Documents and Settings\jcampbell\Local Settings\Temporary Internet Files\OLK76... 417/2008
Exhibit J
=RO-270-0ptiver-000007

Page I of 1

From:

Sent:

To:

Ferhad Mekic C:FerhadMekict!Optiver.com::

Wednesday, March 21, 2007 8:55 AM

Christopher Dowson c:CDowsont!Optiver.com::; Bastiaan van Kempen

C:BastiaanKt!Optiver .com::

Subject: Tuesday TAS trading

-----Original Message---

From: Ferhad Mekic

Sent: Tuesday, March 20, 2007 2:45 PM

To: Randal Meijer

Subject: RE: Monday TAS trding

Product Position Deltavalue Profit

Crude May (exp in 2439 145 000 000 $ 177 000

a month)

Heating oil April 1346 94000 000 $ 173000

(exp two weeks) +

small Mav

Gasoline April (exp 299 24000000 $ 5000

two weeks)

Brent (exp in a 1764 106 000 000 $ 121 000

month)

TOTAL $ 476000

Randal.

Today we had a textbook execution in the crude, heating oil and Brent. We sold 20-30% beforehand. the

market went down afterwards so we hedged the TAS contracts with quite some edge.

The gasoline position was of a medium size, so diffcult to hedge and also the VWAP printed against us.

By quoting the heating oil and gasoline TAS contrcts for substantial size we ended up doing 80-90% of the

volume in the front month and so kept others oul. Tomorrow we are going to be more aggressive in the Brent

contract.

Regards,

Ferhad

fie:IIC:\Documents and Settings\jcampbell\Local Settings\Temporary Internet Files\OLK76... 41712008
Exhibit K
Page 1 of i

From: Donnelly, Kristine (Kristine.Donnelly(iFortisClearlngAmeiicas.com)

sent: Wednesday, March 21,20071:36 PM

To: Bastlaan van Kempen

Subject: frm Russell Levens...

Notice to Members

Notice No. 548

10/1912006

Compliance Advisory: Disruptlve Use of TAS and MO Trading Practices

Members are reminded. that mIsuse of TAS or MO trades to acquire a position in order to unfairly effect or attempt to unfairl effect a

settement price subjec the membe and/or the customer to disciplinary action for any of a number of rule violations including but not limited

to attempted pnce manipulation. disrptie trading, wash 1radlng, or conduct substantially detrmental to the ex.change. Investgation of

suspeced manipulative pricing Involving T AS wil focus on the percentage of TAS positions acquired by a trader, group or traders or

customer(s) and whether the offset of that position during the close was disruptive. collusive, and/or caused or attmpted to cause aberTant

plica movement In the close,

Should you have any questions or require any furter information, please contact eXclangelofQtgnymex,com

',-

Kristine Donnelly

Chief Compliance Officer

Fortis Clearing Americas, LLC

Telephone: +1 312 604-8020

Fax: +1 312 604-8242

Eri 1: kristine, donnellyØ fortisclearingamericaa. com

OPTI-US 000006