Securities And Exchange Commission v. Murray

Filing 160

STIPULATION AND ORDER re 159 STIPULATION WITH PROPOSED ORDER Re Further Proceedings re Relief Defendant Event Trading GP, LLC filed by Securities And Exchange Commission. Further Case Management Conference set for 2/16/2017 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 2/13/17. Copy mailed to Defendant Murray (bpfS, COURT STAFF) (Filed on 2/13/2017) Modified on 2/13/2017 (bpfS, COURT STAFF).

1 JASON M. HABERMEYER (Cal. Bar No. 226607)
[e-mail]
2 JUDITH L. ANDERSON (Cal. Bar No. 124281)
[e-mail]
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4 Attorneys for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
5 44 Montgomery Street, Suite 2800
San Francisco, California 94104
6 Telephone: [phone]
Facsimile: [phone]
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SECURITIES AND EXCHANGE COMMISSION, Case No. 12-cv-01288-EMC

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Plaintiff,

JAMES MICHAEL MURRAY,

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STIPULATION RE FURTHER
PROCEEDINGS RE RELIEF DEFENDANT
EVENT TRADING GP, LLC

v.

Defendant.
and
EVENT TRADING GP, LLC
Relief Defendant.

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Stipulation
SEC v. Murray
Case 12-cv-1288-EMC
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Securities and Exchange Commission
44 Montgomery Street, Suite 2800
San Francisco, CA 94104
[phone]

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WHEREAS on February 3, 2017, this Court issued an Order Denying Intervenor Joseph

2 Gianluca de Francisci’s Motion to Intervene (Dkt. 156) and directed plaintiff Securities and
3 Exchange Commission (“Commission”) and Relief Defendant Event Trading GP, LLC (“Event
4 Trading”) to meet and confer about the means to resolve the dispute over the ownership of the frozen
5 assets in the Event Trading accounts at Interactive Brokers, and thereafter to submit the result of the
6 meet and confer to the Court by February 9, 2017;
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WHEREAS counsel for the parties have met and conferred and have reached agreement on

8 the matters set forth below except as otherwise specified;
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1. The parties agree to submit the dispute for resolution by the Court by means of a

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proceeding without a jury in which the parties would file written submissions of facts

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and proposed conclusions of law under Rule 52 of the Federal Rules of Civil

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Procedure, with argument on the motion, if any, to be set at the Court’s convenience

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after the close of briefing;

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2. The parties agree that prior to the date set for the Commission’s opening submission to

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the Court, the Commission shall be entitled to conduct the depositions under oath of

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the two witnesses proposed by Event Trading: Joseph Gianluca de Francisci

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(“Gianluca de Francisci”) and Giovanni de Francisci, as set forth below;

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3. The parties agree that Relief Defendant Event Trading shall produce to the

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Commission all documents on which it intends to rely in this proceeding no later than

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14 days before the date of the deposition of Giovanni de Francisci;

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4. The parties agree that the deposition under oath of Giovanni de Francisci shall take

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place before the deposition of Gianluca de Francisci on a mutually agreed date and

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time during the week of March 13, 2017 at the Commission’s office in San Francisco,

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California;

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5. The parties could not agree on the procedure for conducting the deposition of Gianluca

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de Francisci. Counsel for the Commission has proposed that Gianluca de Francisci, as

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a witness with a claimed interest in the Event Trading proceeds, appear for deposition

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in the Commission’s office in San Francisco, where this case is being litigated.
Stipulation
SEC v. Murray
Case 12-cv-1288-EMC
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Securities and Exchange Commission
44 Montgomery Street, Suite 2800
San Francisco, CA 94104
[phone]

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Counsel for Gianluca de Francisci (who also represents Event Trading) represented

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that his client is an Italian citizen who resides in Monaco and that he does not want to

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travel to San Francisco for a deposition, citing his age (in his 70s), although counsel

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was not aware of any specific medical limitations. Counsel proposed that the

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deposition instead be conducted in the American Consulate in Marseilles, France and

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would agree that the deposition could be conducted remotely via videoconference and

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could be videotaped. Counsel further represented that an interpreter will be required.

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6. As an agency of the federal government, the Commission is required to adhere to
governing treaties and agreements concerning its conduct of depositions in France.

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Counsel for the Commission has been advised by the Commission’s Office of

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International Affairs that the deposition of Gianluca de Francisci in France must be

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conducted under the Hague Evidence Convention with the permission of the French

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Central Authority. The procedural requirements are complex. Initially, a commission

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must be issued by a court in the United States. The U.S. Embassy or Consulate must

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have documentation for the proposed deposition at least 45 days prior to the deposition

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and French translations in order to request permission of the French Central Authority.

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Thereafter, the Embassy or Consulate must give notice of the date and time of the

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deposition to the French Ministry of Justice and provide 15 days’ notice of the

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deposition to the parties. The deposition must be held on Embassy or Consulate

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premises. It is not known whether it would be possible to arrange and schedule a

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videoconference and a videotaped deposition with the Consulate, particularly given

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the nine-hour time difference between California and France.

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7. In view of the above, the Commission proposed to compromise by holding the

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deposition at its New York Regional Office. Counsel for Gianluca de Francisci has

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been unable to reach Mr. de Francisci with this offer, but represented that Giovanni de

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Francisci believes travel to the United States would be unacceptable. Counsel for

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Gianluca de Francisci proposed potential alternative locations in Europe, specifically

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in Switzerland and Italy. The Commission’s Office of International Affairs has
Stipulation
SEC v. Murray
Case 12-cv-1288-EMC
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Securities and Exchange Commission
44 Montgomery Street, Suite 2800
San Francisco, CA 94104
[phone]

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advised that similar procedural issues would apply in Switzerland, with the additional

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impediment that a deposition under oath may not be possible. A deposition in Italy

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would not be permitted under Italian law because Mr. de Francisci does not reside

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there.

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8. Accordingly, while the parties expect to continue discussions, they agree that setting

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the location and time of the deposition of Gianluca de Francisci may require the

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Court’s intervention and further agree to appear for a status conference to resolve this

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issue, as the Court deems necessary.

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9. The parties agree that the Commission shall file its opening brief with proposed facts

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and conclusions of law thirty days after the conclusion of the depositions of Giovanni

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de Francisci and Gianluca de Francisci, whichever is later.

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10. The parties agree that Relief Defendant Event Trading shall have thirty days from the

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date the Commission’s brief is filed to file its proposed facts and conclusions of law.

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11. The parties agree that the Commission shall have 14 days from the date Event

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Trading’s brief is filed to submit its brief in reply.

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NOW, THEREFORE, the parties stipulate and agree and ask the Court to adopt as its Order

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1. The dispute over the ownership of the frozen assets of Relief Defendant Event Trading

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shall be resolved by means of a proceeding without a jury in which the parties shall

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file written submissions of facts and proposed conclusions of law under Rule 52 of the

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Federal Rules of Civil Procedure, with argument on the motion, if any, to be set at the

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Court’s convenience after the close of briefing, as set forth below.

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2. Relief Defendant Event Trading shall produce to the Commission all documents on

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which it intends to rely in this proceeding no later than 14 days before the date of the

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deposition of Giovanni de Francisci.

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3. The Commission shall be entitled to conduct the deposition under oath of Giovanni de

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Francisci on a mutually agreed date and time during the week of March 13, 2017 at the

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Commission’s office in San Francisco, California.
Stipulation
SEC v. Murray
Case 12-cv-1288-EMC
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Securities and Exchange Commission
44 Montgomery Street, Suite 2800
San Francisco, CA 94104
[phone]

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4. The Commission shall be entitled to conduct the deposition under oath of Gianluca de

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Francisci following the deposition of Giovanni de Francisci at a location and time to

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be set by the Court after conferring with the parties.

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5. The Commission shall file its opening brief with proposed facts and conclusions of

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law thirty days after the conclusion of the depositions of Giovanni de Francisci and

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Gianluca de Francisci, whichever is later.

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6. Relief Defendant Event Trading shall have thirty days from the date the Commission’s
brief is filed to file its brief with proposed facts and conclusions of law.
7. The Commission shall have 14 days from the date Event Trading’s brief is filed to file
its brief in reply.
8. The Court shall schedule a hearing on the motion on a date convenient for the Court
following the close of briefing.

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14 DATED: February 9, 2017

DATED: February 9, 2017

15 /s/Judith L. Anderson
16 Judith L. Anderson
Attorney for Plaintiff
17 SECURITIES AND EXCHANGE COMMISSION

/s/ Lowell Lee Carson, Jr.
Lowell Lee Carson, Jr.
Attorney for Relief Defendant
EVENT TRADING GP, LLC

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PURSUANT TO STIPULATION, IT IS SO ORDERED. A Further CMC is set for
Thursday 2/16/17 at 10:30 a.m.
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DATED: ____________________
2/13/17
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United States DistrictER
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Stipulation
SEC v. Murray
Case 12-cv-1288-EMC
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IT IS
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R Securities and Exchange Commission
44 Montgomery Street, Suite 2800
San Francisco, CA 94104
[phone]