1 W. Derek Shakabpa, pro hac vžce Email: wshakbpa(Ðcftc.gov

2 David Acevedo 

7 pro hac vice

.. Email: dacevedo(ßcftc.,gov

~

Michael Berlowitz, pro hac vice

4 Email: ,rober) owitz(ßcftc.gov

5 Attorneys for Plaintiff

Commodity Futures Trading Commission

6 Lenel Hickson, Jr., Acting Regional Counsel

7 Division of Enforcement

140 Broadway, 19th Floor

8 New York, NY 10005

9 Telephone: (646) 746-9748

Facsimile: (646) 746-9940

10

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17

1 i Local Counsel:

KENT K. W AK, Esq., CA Bar No. 149803

12 Email: Kent.kawaki~usdoj .gov

13 US Attorney's Office

Civil Division, Central District of California

14 300 N. Los Angeles Street, Rm 7516

Los Angeles, CA 90012

Telephone: (213) 94-4858

Facsiine:~~3) 8 4-2380

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2 ::~ ¡ UNITED STATES DISTRICT COURT ~ r. 1.a .a '~~:~~ J CENTRAL DISTRICT OF CALIFORNIA

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21 U.S. Gfrt~ity, utures Trading

Commissitln7 co

22

Plaintiff,

EX PARTE STATUTORY

RESTRAING ORDER Freezing

Assets, Prohibiting Destrction or

Alteration of Documents7 for

Expedited Discovery, and an Order to

Show Cause Why a Preliminar

Injunction Should Not be Entered

23

vs.

24 Gordon A. Driver, Axcess Automation

25 LLC, and Axcess Fund Management

LLC,

26

Defendants.

27

28

ORIGINAL

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1 Plaintiff U.S. Commodity Futues Trading Commission ("Commission" or

2 "CFTC") has filed a complaint for a preliminar and permanent injunction and

3 other relief, and moved ex parte pursuant to Sections 6c, 4n(3)(A) and 4Q(1) of the

4 Commodity Exchange Act (the "Act")) 7 U.S.C. § 13a.l, 6n(3)(A) and 6Q(1)

5 (2006), Section 4b(a)(2)(i)-(iii) of the Act, 7 U.S.C. § 6b(a)(2)(i)-(iii) for conduct

6 ,before June 18,2008, and Section 4b(a)(1)(A)-(C) of the Act, for acts on or after

7 June 18,2008, as amended by the Food, Conservation, and Energy Act of2008,

8 Pub. L. No. 110-246, Title XIII (the CFTC Reauthorization Act ("CRA")), §

9 13102,122 Stat. 1651 (effective June 18,2008), to be codified at 7 U.S.C. §

10 6b(a)(1)(A)-(C), and CFTC Regulations L.31(a), 4.20(c) and 4.23, 17 C.F.R. §§

11 1.31(a), 4.20(c) and 4.23, for a statutory restraining order freezing assets,

12 prohibiting destruction or alteration of books, records or other documents, leave for

13 the CFTC to engage in expedited asset discovery for the pwpose of discovering the

i 4 natue) location, status) and extent of assets, and ordering Defendants Gordon A.

15 Driver ("Driver"), Axcess Automation LLC ("Axcess Automation") and Axcess '

16 Fund Management LLC ("Axcess Fund Management") (collectively ~e

i 7 ,"Defendants") to show cause why a preliminar injunction should not be issued.

18 The Court has considered the pleadings, the declarations, and the

J.9 memorandum oflaw filed in support of the CFTC's application and now) being

20 fully advised in the premises, finds that:

21 1) This Cour has jursdiction over the subject matter of ths case) and Section

22 6c of the Act, 7 U.S.C. § 13a-l) as amended by the CRA, authorizes the

23 requested relief;

24 2) There is good cause to believe that the Defendants have engaged, are

25 engagig, or are about to engage in fraud constitutng violations of Sections

26 4b(a)(2)(i)-(iii) (for acts before June 18,2008) and 4Q(1) of the Act, 7

27 U.S.C. §§ 6b(a)(2)(i)-(ii) and 6Q(1), and Section 4b(a)(1)(A)~(C) of the

28 Act, as amended by the eRA, for acts on or after June i 8, 2008, to be

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1 codified at 7 U.S.C. § 6b(a)(1)(A)-(C), and in acts constituting violations of

2 Section 4n(3)(A) of the Act, 7 U.S.C. § 6n(3)(A), and CFTC Regulations

3 L.31(a), 4.20(c), and 4.23, 17C.F.R. §§ i.31(a)~4.20(c),and4.23;

4 3) Absent the entr of this' statutory restraining order, the Defendants are likely

5 to cause the dissipation or transfer of assets and the destrction of business

6 records. As such, good cause exists for the freezing of Defendants' assets

7 and for the entr of an Order prohibiting the Defendats from withdrwing,

8 transferring, removing, dissipating, or disposing of any assets and denying

9 agents of the CFTC access to inspect and copy records;

10 4) Good cause exists for the freezing of Defendants' assets and for entr of an

i 1 order prohibiting the destrction or alteration of records and denying agents

12 of the CFTC access to inspect and copy records;

13 5) Good cause exists to permit asset discovery before the meeting of counsel

14 pursuant to Fed. R. Civ. P. 26(d);

15 6) Pursuant to Fed. R. Civ. ;po 30(a)(2), immediate depositions are consistent

16 with the principles of,Fe'd,'R. Civ. P. 26(b)(2);

17 7) Weighing the equities and considering the CFTC's likelihood of success in

18 its claims for relief~ the issuace of a statutory restraiing order is in the

19 public interest; and

20 8) This is a proper case for granting a. statutory restraining order to preserve

21 the status quo, protest customers from loss and damge~ and enable the

22 CFTC to fulfill its statutory duties, therefore the Cour orders as follows:

23 DEFINITIONS

24 For the purpose of this Order, the following defintions apply:

25 1. "Assets') means any legal or equitable interest in, or claim to, any real or

26 personal propert, including but not limited to chattels, goods, instrments,

27 equipment, fixtures, general intagibles, effects, chars, photogrphs, audio

28 and video recordings, computer records, and other data compilations from

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which information can be obtained and translated, if necessar, though

detection devices into a reasonably usable form. A draft or non-identical copy

is a separate document within the meaning of the term.

2. The tenn "document" is synonymous in meaning and equal to in scope

to the usage of the term in Federal Rule of Civil Procedure 34(a) and includes,

but is not limited to, wrtings, drawings, graphs, chars, photographs, audio

and video recordings, computer records, and other data compilations from

which information can be obtaied and translated if ;. l necessar, through

detection devices into a reasonably usable form. A draft or non-identical copy

is a separate document within the meaning of the term.

3. The term "Defendants" refers to Gordon A. Driver, Axcess Automation

LLC, and Axcess Fund Management LLC and any person insofa as he or she

is acting in the capacity of an offcer, agent, servant, employee, or attorney of

any of the Defendants, and any person who receives actua notice of this Order

by personal service or otherwse insofar as he or she is actig in concert or in

participation with any of the Defendants.

RELIEF GRAED

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i. Asset Freeze

IT is HEREBY ORDERED that the Defendants, except as otherwise

ordered by this Cour) are re~tràined and enjoined from directly or 'indirectly:

A. Transferring, selling, alienating, liquidating, encumbering, pledging,

leasing, loang, assignng, concealing, dissipating, convertng,

withdrawing or othenvise disposing of any assets, wherever.located,

including assets held outside the United States, except as provided in

this Order, or as otherwise ordered by this Cour;

B. Opening or causing to be opened any safe deposit boxes titled in the

name of or subject to access by any of the Defendants.

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i II. Identifcatžon and Preservation of Assets

2 IT is FURTHER ORDERED, pending furter order of tls Cour) tht any

3 financial or brokerage institution or business entity that holds, controls or

4 maintains custody of any account or asset titled in the name of, held for the benefit

5 of, or otherwise under the control of any of the Defendants, or has held, controlled,

6 or maintained custody of any such account or asset of any of the Defendats at any

7 time since at least Februar 2006 shall:

8 A. Prohibit any of the Defendants and all other persons from withdrawing,

9 removing, assigning, transferrng, pledging, encumbering, disbursing,

10 dissipating, converting, selling or otherwise disposing of any such asset,

11 except as directed by furter order of this Cour;

i

12 B. Deny any of the Defendats and a1l other persons access to any safe deposit

13 box that is titled in the name of any of the Defendants or otherwise subject to

14 access by any of the Defendats;

15 C. Provide the CFTC, within five (5) business days of receiving a copy of this

16 Order, a statement settg fort:

17 a. the identification, ninber of each account titled in the name of any of

18 the Defendants or held on behalf of, or for the benefit of any of the

19 Defendants or under the control of any of the Defendants;

20 b. the balance of each such account, or a description of the natue and

21 value of such asset as of the close of business on the day which this

22 Order is served,and, if the account or 9ther asset has been closed or

23 removed) the date the account was closed or removed, the total funds

24 removed in order to close the account, the nae of 

the person or entity

25 to whom such account or other asset was remitted; and

26 c. the identification of any safe deposit box that is either titled in the

27 nae of any of the Defendants, or is otherwse subject to access by

28 any of the Defendants;

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1 D. Upon request by the CFTC, promptly provide the CPTC with copies of all

2 records or other documentation pertning to such account or asset,

3 including, but not limited to, originals' or coples of account applications,

4 account statements, signatue cards, checks, drafts, deposit tickets) transfers

5 to and from the accounts, all other debit and credit instrents or slips,

6 currency transaction reports, 1099 forms, trading records, and safe deposit

7 box logs; and

8 E. Cooperate with all reasonable requests of the CFTC relating to

9 implementation of this Order) including producing records relating to

, 10 Defendants' accounts.

11 III Accounting of Assets

12 IT is FURTHER ORDERED that within five (5) business days following

13 service of this Order, Defendats shall:

15 both withn and outside the United States which are (1) titled in the name of

14 A. Provide the CPTC with a full accounting of all fuds, accounts, and assets ; .

16 . any of the Defendants; or (2) held by any person or entity, for the benefit of

17 any of the Defendants; or (3) under any of the Defendants' direct or indirect

18 control; and

19 B. Provide the CFTC access to all records of accounts or assets of any of the

20 Defendats held by financial institutions located both within and outside the

21 terrtorial United States by signing the Consent to Release of Financial

22 Records attched to this Order.

23 iv Maintenance of and Access to Business Records

24 IT is FURTHER ORDERED that the Defendats, and all persons or

25 entities who receive notice of this Order by personal service or otherwise, are

26 restrained and enjoined from directly or indirectly destroying, mutilating, erasing,

27 altering, concealing or disposing of, in any manner, directly or indirectly, any

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1 documents that relate to the business practices or business finances of any of the

2 Defendats.

3 V. CFTC's Access to and Inspection of Documents

4 IT is FURTHER ORDERED that representatives of the CFTC be

5 immediately allowed to inspect the books, records, and other documents of any of

6 the Defendants and their agents, including, but not limited to, paper documents,

7 electonically stored data, tape recordings, and computer discs, wherever they may

8 be situated and whether they are in the possession of any of the Defendants or

9 others, and to copy said documents, data and records, either on or off the preniises

10 where they may be situated. Upon request of the CFTC, ile Defendants are

1 i ordered to deliver to the CFTC documents of any of the Defendants, including but

12 not limited to all books and records of accounts, all financial and accounting

13 records, balance sheets, income statements, ban records (including monthly

14 statements, cancelled checks, records of wire transfers, and check registers), lists of

15 customers, title documents, other papers, all keys, computer passwords, entr

16 codes, and combinations to locks necessar to gain or to secure access to any of the

1 7 assets or documents of any of the Defendants, including but not limited to, access

18 to the Defendats' business premises, means of communication, accounts,

19 computer systems, or other propert and information identifying the accounts,

20 employees, propertes, or other ass~ts or obligations of the Defendants.

21 VI. Serice of Order

22 IT is FURTHER ORDERED that copies of this Order may be served by

23 àny means, including facsimile or e-mail trsmission, upon any financial

24 institution or other entity or person that may have possession, custody, or control

25 of any documents or assets of any of the Defendants or that may be subject to any

26 provision of this Order.

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1 VII. Expedited Asset Discover

2 IT is FURTHER ORDERED that the CFTC is granted leave) at any time

3 after service of this Order, to tae the deposition of and demand the production of

4 documents from any person or entity for the purose of discovering the nature,

5 location, status) and extent of assets of any of the Defendats, and the location of

6 documents reflecting the business transactions of any of the Defendants; fort7 eight (48) hours notice shall be deemed sufficient for any such deposition and five

8 ' (5) days notice shal be deemed sufficient for the production of any such

9 documents. 10 VIII. Depositions

11 IT is FURTHER ORDERED that the limitations and conditions set fort

12 in Fed. R. Civ. P. 30(a)(2)(B) regarding subsequent depositions of an individual

13 shall not apply to depositions taen pursuant to this Order. No depositions taken

14 pursuant to Paragraph VII shall count toward the ten-deposition limit set fort in

15 Fed. R. Civ. P. 30(a)(2)(A).

16 IX Service on the CFTC

17 IT is FURTHER ORDERED that that the Defendats shal serve all

18 pleadings, correspondence, notices required by this Order, and other materials on

19 the CFTC by delivering a copy to W. Derek Shakabpa, Senior Trial Attorney,

20 Division of Enforcement, U.S. Commodity Futures Trading Commission, Eastern

21 Regional Office, 140 Broadway, 19th Floor, New York, New York 10005.

22 X Order to Show Cause

23 IT is FURTHER ORDERED that Defendants shal appear before this

24 Cour on the 22lt( day of MAY) 2009, at 2. 29 o'clock, before the

25 Honorable ()r; D. WIZ(6m at the United States Distrct Court for the

26 Central Distrct of California, G-8 United States Courtouse, 312 Nort Spring

27 Street, Los Angeles, CA, 90012 to show cause why this Court should not enter a

28 preliminar injunction:

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1 A. Enjoining the Defendants from fuer violations of the Act; specifically)

2 prohibiting the Defendants from violating Sections 4b(a)(2(i)-(iii)? for

. ~.

3 acts before June 18,2008, 4n(3)(A) and 4Q(I) of the Act, 7 U.S.C. §§

4 6(a)(2)(i)-(iii), 6n(3)(A) and 6Q(1), and Section 4b(a)(l)(A)-(C) of the

5 Act, for acts on or afer June 18, 2008, as amended by the CRA, to be

6 codified at 7 U.S.C. § 6b(a)(1)(A)-(C), and CFTC Regulations L.31(a),

7 4.20(c), and 4.23) 17 C.F.R. §§ 1.31(a), 4.20(c), and 4.23;

8 ' B. Continuing the freeze on the assets of the Defendats;

9 C. Ordering the Defendants, financial and brokerage institutions, business

10 entities) and others to provide all documents specified in ths Order to the

11 CFTC; and

12 D. Ordering any additional relief this Cour deems appropriate.

13 Should the Defendants wish to file a memorandum of law or other papers

i 4 concerning the issuance of a 'preliminar injunction against the Defendants, such

15 materials shall be filed) served and received by all pares at least two (2) business

16 days before the hearng date ordered above.

17 Xl. Force and Effect

18 IT is FURTHER ORDERED that this Order shall remain in full force and

19 effect until fuer order of this Court) and that this Cour retains jursdiction of this

20 matter for all purposes.

21

22 SO ORDERED on this d day of /Il1y ,2009.

23

CT COURT JUGE

OF CALIFORNA

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