.rr>
;·
Richard H. Walker
u
Edwin
Kathryn
Keith W.
~-i/n4A~`L~3
a
rB
··· ·i~aa~~
h
H. Nordlinger
A. E. Ashbaugh RICt
Miller
Lynne
Johnston
Attorneys for Plaintiff COMMISSION SECURITIES AND EXCHANGE
New
$'
b·
FIIED
SEP 7 1993
5p~
7 World Trade Center,
York, New York
10048
12th Floor
(212)748-8155
UNITED STATES DISTRICT COURT
~b.
OF
7j~
SOUTHERN OFNEW DISTRICT YOBK
SECURITIES AND EXCHANGE COMMISSION, : Plaintiff, 92 Civ. 8314
···-~~
(JES)
-against:
: :
FINAL JUDGMENT OF
PERMANENT INJUNCTION
AND
OTHER
EQUITABLE
6c
RELIEF AGAINST
BY CONSENT AV~LLP~NO
AVELLINO sc BIENES, FRANK J. AVELLINO,
MICHAEL S. BIENES,
and
:
Defendants.
BIENES, FRANK'J. AVELLINO, AND MICHAEL
S. BIENES
'te3.7_oc\q
Plaintiff Securities and Exchange Commission (the
"Commission"),
having
filed
a Complaint
against
defendants
Avellino 6.sienes ("A&B"). Frank J. Avellino ("Avellino"), and
Z ~(
3
Michael8. Bienes ("Bienes") for preliminaryand permanent
injunction and other equitable relief ("Complaint") on November
18, 1992, and the Court having entered an Order of Preliminary Injunction And Other Equitable Relief on Consent, on November 27,
~ f5
e
1992 ("Order"), and defendants ALE,Avellino, and Bienes, in the
~d~~
n\
w
u,
MADOFF
EXHIBITS-03574
'-
~'
attached Consent incorporated herein, having entered a general
appearance, Court having admitted the in Dersonam jurisdiction of this Court of this over them and the jurisdiction over the
subject matter of this action,
findings of fact and conclusions
having waived the entry of
of law pursuant to Rule 52 of
the Federal Rules of Civil Procedure, and, without admitting or denying the allegations
without trial,
of the Complaint, having consented,
of any issue of fact or
argument or adjudication
law, to the entry of this Final Judgment of Permanent Injunction and Other Equitable Relief by Consent Against Avellino ~ Bienes,
Frank J. Avellino,
is hereby:
and Michael S. Bienes
("Final
Judgment"),
it
ORDERED,ADJLTDGED DECREEDthat AND
the attached
Consents
of
defendants
A&B, Avellino,
and Bienes be and hereby are
incorporated
herein.
herein with the same force as if fully set forth
II.
IT IS FURTHERORDERED,ADJUDGED AND DECREEDthat
defendants
A~B, Avellino,
employees,
concert
and Bienes, their partners,
with
agents,
servants,
in active
notice of
and attorneys-in-fact,
and those persons
them who receive actual
or participation
this Final Judgment by personal service, facsimile, or otherwise, and each of them, be and hereby are permanently enjoined from,
MADOFF
EXHIBITS-03575
·!·'
·:
r
directly or indirectly, singly or in concert, violating Section
5(a) of the Securities Act of 1933 ("Securities Act") [15 U.S.C.
Pfi 77e(a)l, by making use of any means or instruments of
transportation
or communication in interstate
commerce of the or
mails to sell securities through the use or medium any of
prospectus or otherwise; or, by carrying or causing to be carried
throughthe mails and in interstate commerce, securities, by any
any means or instruments of transportation,
effect as to those securities.
for the purpose of
delivery after sale, without a registration statement being in
III.
IT IS FURTHER ORDERED, ADJUDGED DECREED AND that
defendantsA&B, Avellino, and Bienes, their partners, agents,
servants, employees, and attorneys-in-fact, and those persons in active concert or participation with them who receive actual
notice of this Final Judgment personal service, facsimile, or by otherwise, and each of them, be and herebyare permanently enjoined from, directly or indirectly, singly or in concert,
violating Section 5(c) of the Securities Act [15 U.S.C. ~~
77e(c)], by making use of any means or instruments of
transportation or communication interstate commerce of the in or
mails to offer to sell or offer to buysecurities throughthe use
or medium any prospectus or otherwise, without a registration of
statement being filed as to such securities.
MADOFF
EXHIBITS-03576
IV.
IT IS FURTHER ORDERED, ADJUDGEDAND DECREED that
defendants A6rB, Avellino, and Bienes, their partners,
servants, active employees, and attorneys-in-fact, concert or participation with them who receive
agents,
in actual
and those persons
notice of this Final ~udgmentby personal service, facsimile, or
otherwise, and each of them, be and hereby are permanently
enjoined from, directly or indirectly,
violating, or aiding and abetting
singly or in concert,
of Section 7 of the
violations
Investment CompanyAct of 1940 ("Investment CompanyAct") [15 U.S.C. O 80a-7], by, while acting as an investment company
organized States
company:
or otherwise
created or aiding for sale,
under the laws of the United and abetting selling, any such investment after
or of a state, A. sale, offering
or delivering
by the use of the mails or any means or
instrumentalities
or any interest
of interstate
in a security,
connnerce, any security
whether the issuer of
such security person;
is such investment for sale,
company or another or delivering
or offering that
selling,
after
sale any such security
such security of a public
or interest,
or interest
having reason
will be made
to believe the subject
offering
by the use of the
mails or any means or instrumentalities
commerce; or
of interstate
or otherwise
B.
purchasing,
redeeming,
retiring,
MADOFF
EXHIBITS-03577
acquiring,
or attempting to acquire,
by use of the of interstate
mails or any means or instrumentality
commerce, any security or any interest in a security, whether the issuer of such security is such investment
company or another person; or
C.
engaging in any business
in interstate
commerce.
V.
IT IS FURTHER ORDERED, ADJUDGED DECREED AND that defendants A&B,Avellino, and Bienes, shall each pay to the United States
I
Treasury a civil penalty in the amount of $250,000.00 for A6rB,
$50,000.00 for Avellino, and $50,000.00 for Bienes, pursuant to
Section 20 of the Securities Act and Section 42 of the Investment Company Act [15 U.S.C. ~77t and 80a-42]. These amounts shall be paid within ten (10) business days of the entry of this Final
Judgment.
VI.
IT IS FURTHER ORDERED, ADJUDGED DECREED AND that defendants
A&B, Avellino, and Bienes, shall pay the civil penalties
specified in Section v. above, to the United States Department of
Treasury, by transmitting such payments in the form of a U.S.
postal moneyorder, a certified check, a bank cashier's check, or a bank moneyorder madepayable to the Comptroller, Securities
and Exchange Commission. Such payments shall be mailed to:
MADOFF
EXHIBITS-03578
Comptroller
Securities
450 Fifth Washington,
and Exchange
Street, D.C. N,W. 20549
Commission
under
cover
of letter
that
identifies
the defendant,
the name and A to
the case number of this copy of the cover letter
litigation, shall
and the name of the court. transmitted
be simultaneously
Keith W. Miller,
Commission,
Branch Chief, Securities
and Exchange
7 World Trade Center,
New York, New York 10048.
VII.
IT IS
FURTHER ORDERED, ADJUDGED AND DECREED that
the
Trustee,
Lee S. Richards
("Trustee"),
of the
law firm
Richards
Spears retain
Hibbe & Orbe, authority,
appointed
pursuant
to the Order, over Chemical
reserved
shall Bank Account
the
custody
which
and control
the funds
No. 611120216,
contains
to cover
checks
a stop
distributed
order
to noteholders.
on all checks
The Trustee
issued
shall
direct
that
from
be placed
to noteholders
this
entry
account
of this
that
Final
have not been redeemed
Judgment. The Trustee
as of the date
shall issue
of the
replacement
pay
checks
to these
account
noteholders.
$3,383.95,
The Trustee
whichconstitutes
shall
also
monies
to A&B from this
that
are separate
from the funds
reserved
to cover
the checks
distributed
to noteholders.
This payment shall
be made within use
10
days of the entry of the Final Judgment.
The T~ustee shall
his best efforts
account, noteholders after
to distribute
the payment
all monies remaining in the
to those checks for their original
to A6rB of the $3,383.95,
who failed
to present
MADOFF
EXHIBITS-03579
payment.
At the
conclusion
of 90 days
from
the
date
the
replacement account shall
the Treasury,
Comptroller
checks are issued, be transmitted
by transmitting and Exchange
Street, D.C. N,W. 20549
any monies remaining to the United States
such monies to:
in this
Department of
Securities
450 Fifth Washington,
Commission
under
cover
of letter
that
states
the name and the case number of
this
litigation,
the name of the court,
sent pursuant to Section
and specifies
VII. of this
that
Final
this
money is being
Judgment. A copy of the cover letter
transmitted
10048.
shall be simultaneously
Securities and
New York, New York
to Keith W. Miller,
Branch Chief,
Exchange Commission,
7 World Trade Center,
VIII.
IT IS FURTHER ORDERED,ADJUDGED AND DECREEDthat
the Trustee
shall retain
resulting
authority,
custody and control over the proceeds
of four A6cB noteholder
#1, Harry and Elaine
from the liquidation
Simon Account
accounts:
Simon Account
Harry and Elaine
#2, Harry Simon Keogh Account, and the Jordan Sands Account. These funds are currently subject to an Order of Attachment
issued in Dillon v. Simon. et al.,
NewYork Supreme Court, I.A.S. amended December 18, 1992
Part 3, Nassau County, May 8, 1992,as
Westminster Bank USA v .., Simon et 1
(Burke, J.), and a TemporaryRestraining Order issued in National
New York Supreme Court,
I.A.S. Part 55, NewYork County, February 18, 1993 (Tom, J.)
MADOFF
EXHIBITS-03580
The Trustee
shall
retain
the power to distribute
these
monies,
whether to the noteholders
pursuant to an order of this
or to another
Court,
person or entity,
entered in either
or an order
DI~L~1~T~S~L or National Westminster Bank USAv. Simon. Any
monies that are not distributed within 60 days after final
judgments have been entered
Westminster States
to:
in both Dillon v. Simon and National
shall be transmitted by transmitting to the such United monies
Bank v
Simon of the
I
Department
Treasury,
Comptroller
Securities
450 Fifth
and
Street,
Exchange
N.W.
Commission
Washington,
D.C.
20549
under
cover
of letter
that
states
the
name and the
case
number
of
this
litigation,
being
the name of the Court,
sent pursuant to Section
and specifies
VIII. of this
that
Final
this
money is
Judgment.
transmitted Exchange
10048.
A copy of the cover letter
to Keith Commission, W. Miller, 7 World Branch Trade
shall
Chief,
be simultaneously
Securities and New York New York,
Center,
IX.
IT IS FURTHER ORDERED, ADJUDGEDAND DECREED that
the
Trustee
shall
distribute
$4,156.16,
submitted
presently
claims
held by the Trustee,
for interest earned
to the
from
noteholders
who have
November 16, 1992 until
the Trustee
the date the redemption check was sent by
Such distribution shall be made
to the noteholder.
within
10 days of the entry of this
Final Judgment.
MADOFF
EXHIBITS-03581
X.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
this
Final
Judgment does not constitute
A&Bnoteholder against
a determination
of any claim of any
including, but
A&B, Avellino,
or Bienes,
not limited
interest
check was
to, claims for the redemption of anynote
redeemed, the date
noteholder.
issued by
A&Bwhich was not previously
and the payment of the redemption
from November 16, 1992 until
sent by the Trustee to the
XI.
IT IS
FURTHER ORDERED, ADJUDGED AND DECREED that
this
Court
shall
including
Judgment.
retain
the
jurisdiction
implementation
of this
and
matter
enforcement
for all
of
purposes,
the Final
XII.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the
Clerk
of the Court is hereby
directed
to enter
this
Final
Judgment.
MADOFF
EXHIBITS-03582
Richard
H.
Walker
Edwin Rathryn
Keith
H.
W.
Nordlinger A. Ashbaugh
Miller
Lynne
E.
Johnston
Attorneys
SECURITIES
for
AND
Plaintiff
EXCHANGE COMMISSION
7 World Trade New York, New (212) 748-8155
UNITED
SOUTHERN
Center, York
12th 10048
Floor
STATES
DISTRICT
DISTRICT
OF
COURT
NEW YORK
--------------------------------L------x
SECURITIES
AND-EXCHANGE
COMMISSION,
92
Plaintiff,
Civ.
8314
(JES)
-against-
CONSENT OF AVELLINO 6e BIENES
AVELLINO FRANK J.
MICHAEL S.
b BIENES, AVELLINO,
BIENES,
and
Defendants.
---------------------------------------x
1.
and understood
Defendant
the terms
Avellino
of the
& Bienes
annexed Equitable J.
("A&B"),
Final Relief
having
Of
read
Judgment
Permanent Against
Injunction Avellino
And Other & Bienes, Frank
By Consent and Michael S.
Avellino,
Bienes
and
of
("Final
Judgment"),
of
waives
to
the
Rule
eptry
of Findings
the Federal
of Fact
Rules
Conclusions
Civil Procedure,
Law pursuant
admits the
52 of
of the
service
Summons
and
MADOFF
EXHIBITS-03583
Complaint upon it,
jurisdiction of this
appears and admits the in Dersonam
Court over it and the jurisdiction matter of this action, and fier~y
further
of this consents
Court over the subject
to the entry of the
annexed
Final
Judgment
without
notice,
Commission
and without
admitting
or denying the allegations
contained in the Complaint of plaintiff
("Commission").
Securities
this Consent
and Exchange
shall be
2.
Defendant
A6rB agrees
that
incorporated
Judgment to
by reference
be entered
in and be made part
against it.
of the Final
3,
appeal the Final
Defendant
Judgment.
A&Bwaives
any right
it
may have to
4.
Defendant A&Benters
into this
Consent voluntarily
and acknowledges that no tender, offer, kind has been made by plaintiff
officers,
Consent.
promise or threat
of any
Commission or any of its members,
in consideration of this
agents
or representatives
5.
Defendant
AbcB further
acknowledges
that
a violation
of any of the terms or provisions
it in contempt of this
sanctions.
of the Final Judgment may place
it to civil and criminal
Court and subject
6,
Defendant
A&B further
acknowledges
that
it
has been
informed and understands
and exclusive discretion,
that plaintiff
may refer
Commission, at its
access to this
sole
or grant
matter,
or any information
or evidence~gathered
in connection
therewith or derived therefrom, tP any person or entity
having
MADOFF
EXHIBITS-03584
appropriate
this
civil,
administrative
defendant
regarding
or criminal
jurisdiction.
that no
so as to
connection,
A6cB acknowledges
the
this
representations
induce it to enter
above
Consent.
have
been
made
into
7. representation
Defendant has been
A&B acknowledges made by plainti~ff
that
no promise or
or its s~aff
Commission
with regard
or that
immunity
to:
(1) any criminal
from the facts
liability
underlying
that
this
may have ari~en
action; or (-z )
may arise
from 8. such
criminal
liability, acknowledges has not waived, that and it has does ~een n~t
Defendant plaintiff
AbcB further Commission
informed
that
waive,
consistent
with
the
principles
of res
judicata,
collat~iral
estoppel,
to
and the doctrine
at its sole
of finality
and exclusive contempt
of judgments,
option: (a)
its
any
right-s
civil ive
commence, civil
action,
or criminal against
proceedings, partners,
as a
or administratagents,
result of this
proceedings
servants,
defendant
and
A6cB, its
employees
attorneys-in-fact
matter; defendant
Complaint.
or
(b) any further A6rB arising from
proceedings or related
or action to facts
against not alleged in the
9.
assert that,
Defendant
under the
A6rB waives
Double
any right
Clause,
it
may have
the relief
to
Jeopardy
consented
that
action,
to
in
this
civil
action
bars the
bars
relief
t
any criminal
consented
action,
to in this
o~e
any
criminal
action
MADOFF
EXHIBITS-03585
10.
amount
of the
Defendant
A~B agrees
which amount
to pay a civil
is referred to
penalty
in Section
in the
V.
of
Final
$250,000.00,
Judgment.
11. mail of all
Defendant with in
A&B agrees respect connection relating to
to this
accept matter,
service and or
by any
regular
process or actions
proceeding therefrom,
therewith to any
deriving
including
process
depositions,
hearings,
investigations, Ellenoff,
York, New
trials
or other
by service
court
upon
or administrative
Ira Lee Sorkin, 551 Fifth
proceedings
Squadron, Avenue, New
or
Plesent,
York 10176.
Sheinfeld
6 Sorkin,
12. Consent embodies
Defendant the entire
A6cB further understanding
acknowledges of the
that parties,
this
13.
be presented
entry without
14.
Defendant
by the
A6cB agrees
to the
that
the
Final
for
Judgment
may
and
Commission
notice.
A&B
Court
signature
further
Defendant
consents
that
this
Court
shall
retain
jurisdiction and
for 15. all
of enforcing
purposes. Defendant
this
action the terms
for
the and
purpose conditions
of of the Final
implementing
Judgment
A6cB acknowledges
that
Frank
J.
Avellino
and
of
Michael
this
S.
Bienes
have
the
authority
to
to
be
bind
bound
A~B to
to this
the
terms
Consent.
Defendant
A6cB agrees
Consent Bienes.
upon Frank
the J.
signatures Avellino
of and
Frank
J.
Avellino Bienes,
and in
Michael both their
S.
Michaelt~S.
MADOFF
EXHIBITS-03586
individual hereby bound
capacities by the
and terms
as of
partners this
Avellino
of Consent.
A~cB agree
to
be
and
are
& Bienes
By:
Frank
Partner
J.
Attellino
By:
ichael
Partner
S.
Bienes
State
of
Florida ) ss.:
County
of
Broward
)
day personally or produced appearedbefore Florida Dri~er's
and ~id take an
Suorn and fa slbscribed me j/~. before ~hia
1993. Frank J, Avellino personally known tome
#A145-260-36-225 as identification,
of m~ is License
~MLEBln.A~ wv "UL~Y I CC nrrso
#PYIES: ~cp*mbr 10sI A
Notary :
Notary Public, My commission
- I:
en+dmu Rdb np~r Ulbmrkn B
Name:/Cf~-~LJ~C~=~,,·-~/ ~·
State expires:
jV/ h~of_Flori ~e~-. ~/qq
State
of
Florida ) ss.:
County
of
Broward
)
Sworn and subscribedbefore methis ~ to
1993.
personally
day of ~dc~e/
meL~7~5~.s
Licens
Michael
S. Bienes
to me or
personally
produced
appeared
Florida
before
Driver's
known
#/3g~ZQe557-36·-626ClaB identification,
IUlfnLEDI H. RIQ ~ycomsllSS#WICCPI~O ~P~E8:8~pYnbr(,108
bo~ mn nPav·wP Ir#nnlm
did~ake
an oath
i
Notary: Print
Name: n hl~ C_e 4 Notary Public, State o
;'K~T
ori
My commis~ion
expires:
MADOFF
EXHIBITS-03587
RESOLUTION
OF
AVELLINO
& BIENES
RESOLVED,
that
Frank and
hereof.
J.
Avellino
and
Michael
S.
Bienes
on
are
hereby
of Avellino the Securities ~
authorized Bienes the
and directed to execute Consent dated~L~L~,
behalf 1993 to
Exchange
Commission
a~a~attached
FRANK J.
hereto
AVELLINO
and
made
part
~cs.
General
MICHAEL S.
-~bccl
PEdlftner, Avellino ~ Bienes
BIENES
General
DIANNE
Partner,
K. BIENES
Avel~ino
~ Bienes
2~X?h·L~d ~27~cd
ral Partner, Avellino & Bienes State of Florida
) ss.:
County
of
Broward
)
The
foregoing
instrument
was
acknowledged
before
me
day of~aPr,
to
as identification.
1993,
by Frank
Florida
J.
Avellino
License
who
a~persqnally
known
me ~Jr'produced
Driver's
KATtKEEN H.RIQ
BOAdd ~hlllIb(~y WICLkd~lk
II
Nota
Print
LMCOUUW8KHICC~mT~O
owrrs~ aownb*~ooe i.
Name : ICbQV~IC~PAI
Notary Public, ~3y Commission State expires:
~
· `Y/X~
of,Floriid~
MADOFF
EXHIBITS-03588
State
of
Florida
)
ss.:
County
of
Broward
)
~e
foregoing
produced
instrument
Florida
was
Driver's
acknowledged methis l/~a before
Lic e
day of~b~
to me br
as
1993, by Michael 8. Bienes who is personally
known
identification.
MV CCsmsnsl
I~AM~E~~rm~0 H. PIKE i CC
Notaryi
Print
DIPsU): g~pmbr i. ~99~ ~cnd~m~npr )I~o Undww~m
Name
:
Notary
Public,~
State
of_ Florida
YI commission
State of Florida ) s·s.:
expires:
County
of
Broward
)
The
day
me or
foregoing
1993,
oduced Florida
instrument
by Dianne
Driver's
was
K.
acknowledged
who is
before
personally
me
o
Bienes
License
this 5F~a
known
as
to
identification.
Bsa n--/l ~-~~a-7e ~
IlyCOUUISSiCICCrD
bmbl llm nPcryNlle Udru~m
KATHLEB( H. RKE
Notary:
Print
Name : Notary Public, State of
ocPr#e: ap~mb* loo~ U r
y·
commission
expires:
T~it~ 149b
MADOFF
EXHIBITS-03589
Richard
H.
Walker
Edwin
Kathryn
Keith
H. Nordlinger
A.
W.
Ashbaugh
Miller
Lynne Attorneys
E.
Johnston for
AND
Plaintiff
EXCHANGE COMMISSION
SECURITIES
7 world Trade New York, New (212) 748-8155
UNITED SOUTHERN STATES DISTRICT
Center, York
12th 10048
Floor
DISTRICT OF
COURT NEW YORK
SECURITIES
AND
EXCHANGE
COMMISSION, 92 Civ. 8314 (JES)
Plaintiff,
-against-
CONSENT
FRANK J.
OF
AVELLINO
AVELLINO 6t BIENES, FRANK J. AVELLINO, MICHAEL S. BIENES,'
and :
Defendants.
1. read and
Defendant the
Frank terms
J. of
Avellino the annexed
("Avellino"), Final
having Judgment Of
understood
Permanent
Against
Injunction
Avellino
And Other
Frank
Equitable
Relief
By Consent
and Michael S.
6 Bienes,
13~. Avellino,
Bienes
and
of
("Final
Judgment"),
of
waives
to
the
Rule
entry
of Findings
the Federal
of Fact
Rules
Conclusions
Civil Procedure,
Law pursuant
admits the
52 of
of the
service
Summons
and
Complaint upon him, appears
jurisdiction of this Court
and admits
over him and
the in Dersonam
the jurisdiction of this
MADOFF
EXHIBITS-03590
Court
tothe
over
entry
the
of
subject
the
matter
annexed
of
Final
this
action,
and
without
hereby
further
consents
notice
Judgment
and
without
of
admitting
plaintiff
or
denying
the
and
allegations
Exchange
containedin
Commission
the
Complaint
("Commission").
Securities
2.
Defendant
Avellino
agrees
that
this
Consent
shall
be
incorporated
to be
by
reference
against
in,
and
him.
be made
part
of,
the
Final
Judgment
entered
3.
appeal the
4.
Defendant
Judgment.
Avellino
waives
any
right
he may have
to
Final
Defendant
Avellino
enters
into
this
Consent
voluntarily threat
of its
and of any
acknowledges has been
that made
agents
no
tender,
offer,
promise or
or any
kind
by plaintiff
or representatives
Commission
in
members,
of
officers,
this
consideration
Consent.
5.
Defendant
Avellino
further
acknowledges
that
a
violation may place
and criminal
of him
any in
of
the
terms of
or this
provisions Court and
of
the
Final him
Judgment to civil
contempt
subject
sanctions.
6. been informed
Defendant and
Avellino that
further plaintiff
acknowledges Commission,
that at
he its
has
understands
sole matter,
and
exclusive or any or
discretion, information or
may refer evidence to any
or
grant in or
access
to
this
gathered person
connection having
In
therewith
derived
therefrom,
entity
appropriate
this
civil,
administrative
defendant Avellino
or
t' criminal
acknowledges
jurisdiction.
connection,
that
no
·,.
MADOFF
EXHIBITS-03591
representations
induce him to
regarding
enter into
the
this
above
Consent.
have
been
made
so
as
to
7.
Defendant
Avellino
acknowledges
that
no
promise
or
representation
with regard to:
has
been
(1) any
made
by plaintiff
liability
Commission
thatmay
or
have
its
staff
arisen
criminal
or
that
may arise from
8.
from
the
facts
underlying
this
action;
or
(2)
immunity
such
criminal
liability.
further Commission acknowledges has not waived, that and he has
Defendant that plaintiff
Avellino
been
informed
does
not
waive,
consistent
estoppel, to action, commence, civil proceedings
with
and at or the
the
principles
doctrine of and
of
res
judicata,
of judgments, (a) or his a result against not alleged of
collateral its any rights civil
finality exclusive
its
sole
option:
criminal against and
contempt defendant attorneys-in-fact proceedings or related
proceedings, Avellino, as or to action facts
administrative agents, this servants, matter; or Avellino Complaint. 9. assert consented that, to
employees (b) any arising further
defendant in the
from
Defendant under in this the
Avellino Double civil
waives Jeopardy bars
any Clause, any
right the
he
may
have
to
relief action, or
action
criminal
that
action.
any
criminal
action
bars
the
relief
consented
to
in
this
10.
in the amount V. of
Defendant
of the $50,000.00, Final
Avellino
which Judgment..
agrees
amoJ~t
to
is
pay
a civil
to
penalty
in
referred
Section
MADOFF
EXHIBITS-03592
11.
Defendant
Avellino
agrees
to
accept
service
by
regular
proceeding therefrom, hearings,
mail
or
of all
actions
process
in
with
connection
respect
to
this
or
matter,
deriving
and any
therewith to any
including trials or
process other
relating court upon or Ira
depositions, proceedings Squadron,
Avenue, New
administrative Lee Sorkin,
551 Fifth
or
investigations,
Ellenoff,
York, New
by-service
Plesent,
York 10176.
Sheinfeld
6c Sorkin,
12.
Defendant
Avellino
further
acknowledges
thatthis
Consent
embodies 13.
the
entire
understanding Avellino agrees
of that
the the
parties. Final Judgment
Defendant
may be presented
entry without
by the
further
Commission
to the
Court
for
signature
and
notice.
MADOFF
EXHIBITS-03593
14.
Defendant
Avellino
consents
that
this
Court
shall
retain
jurisdiction
of
this
action
for
the
purpose
of
implementing'and
Judgment for all
enforcing
purposes.
the
terms
and conditions
of the
Final
Frank
J.
C~vellino
State
of
Florida ) ss.:
County
of
Broward
)
Swornand ~o subscribed me ~ay of before this
1993. Frank J. Avellino personally appeared before me~is
personally
known
to
as
me or
produced
Florida
Drj~er's
an
License
oa
#A145-260-36-225
identification,
and/did~z~Lke
l~nCO#HSSIOWICClpTBO
MPI~EB: ~pmb* ). ~99~
KATHLEDI H.PIKE
Notary:
Print
eonadThru #Ilry P~ble W~a
Name
: ~uyn
\~·y Ynl
~
·
/ /
Notary Public, My commission
State expires:
of~Flqri~ss
MADOFF
EXHIBITS-03594
Richard
H.
Walker
Edwin
H.
W.
Nordlinger
Kathryn
Keith
A. Ashbaugh
Miller
Lynne
E.
Johnston for Plaintiff
Attorneys
SE~RITIES AND EXCHANGE COMMISSION 7 World Trade Center, 12th Floor New York, New York 10048
(212) 748-8155 COURT NEW YORK
UNITED STATES DISTRICT SOUTHERN DISTRICT OF
___------------------------------------x
SECURITIES
AND EXCHANGE COMMISSION,
92 Plaintiff, Civ, 8314 (JES)
-against-
CONSENT OF
MICHAEL S. BIENES
AVELLINO
& BIENES,
FRANK J.
MICHAEL
AVELLINO,
S. BIENES,
and
Defendants.
---------------------------------------x
1.
Defendant
Michael
S.
Bienes
("Bienes"),
having
read
and
understood
the
terms
of
the
annexed
Final
Judgment
Of
Permanent
Injunction
And Other
Equitable
Relief
By Consent
Against
Bienes
and
Avellino
('Final
& Bienes,
Judgment"),
of
Frank J. Avellino,
waives
to
and Michael
of Findings
the Federal
S.
of Fact
Rules
the
Rule
entry
Conclusions
Law pursuant
52 of
of Civil
Procedure,
admits
the
service'of
the
Summons and
Conqplaint
upon him, appears
and admits
the in ~ersonam
jurisdiction
of this
Court over him and the jurisdiction
of this
MADOFF
EXHIBITS-03595
Court
to the
over
entry
the
of
subject
the
matter
annexed
of
Final
this
action,
and
without
hereby
further
consents
notice
Judgment
and
without
of
admitting
plaintiff
or
denying
the
and
allegations
Exchange
contained
Commission
in
the
Complaint
("Commission").
Securities
2.
Defendant
Bienes
agrees
that
this
Consent
shall
be
incorporated Judgment to 3. appeal the
4.
by reference be entered Defendant Judgment.
in, against Bienes
and him.
be made
part
of,
the~Final
waives
~nv
right
he may have
to
Final
Defendant
Bienes
enters
into
this
Consent
voluntarily
and
acknowledges
that
no
tender,
offer,
promise
or
threat
of its
of
any
kind
has
been
made
agents
by plaintiff
or representatives
Commission
in
or
any
members,
of
officers,
this Consent.
consideration
5.
Defendant
Bienes
further
acknowledges
that
a
violation may place
and criminal
of him
any in
of
the
terms of
or this
provisions Court and
of
the
Final him
Judgment to civil
contempt
subject
sanctions.
6. been informed
Defendant and
Bienes
further that
acknowledges plaintiff
that
he at
has its
understands
Commission,
sole matter,
and
exclusive or any or
discretion, information or
may
refer
or
grant in or
access
to
this
evidence to any or
gathered person
connection having In
therewith appropriate this
derived civil,
therefrom, administrative
entity
cr~iminal
jurisdiction. that no
connection,
defendant
Bienes
acknowledges
MADOFF
EXHIBITS-03596
representations
induce him to
regarding
enter into
the
this
above
Consent.
have
been
made
so
as
to
7.
Defendant
Bienes
acknowledges
that
no
promise
or
representation with
or
has to:
arise
been (1)
from
made
by plaintiff liability
underlying
Commission that
this
or
its
staff arisen
regard
that may
any
the
criminal
facts
may have
action;
or
(2)
immunity
from
8.
such
criminal
liability.
acknowledges has of of not res that waived, judicata, of judgments, he and has does
Defendant that plaintiff
Bienesfurther Commission the the principles doctrine
been not
informed waive,
consistent estoppel,
with and
collateral
finality
its any
rights civil
to
commence, civil
proceedings
at or
its
sole
and
exclusive
option: or
his of
(a)
action,
criminal
against
contempt
defendant as or
proceedings,
Bienes, a result against not
administrative servants, matter; defendant the or
agents, this
employees (b) Bienes any
and further arising
attorneys-in-fact proceedings from or related
action to facts
alleged
in
Complaint.
9.
assert consented that, to
Defendant
under in this the
Bienes
Double civil
waives
Jeopardy bars
any
right
he may have
the relief action,
to
Clause, any
action
criminal
or
that
action.
any
criminal
action
bars
the
relief
consented
to
in
this
10.
the amount V. of of
Defendant
$50,000.00, the Final
Bienes
agrees
to
pay
a civil
to
penalty
in
in
which.amount'is Judgment..
referred
Section
MADOFF
EXHIBITS-03597
11.
Defendant
Bienes
agreesto
accept
service
by
regular mail. of all process with respect to this matter, and any
proceeding or actions in connection therewith or deriving
therefrom, including process relating to any depositions,
hearings,
Ellenoff,
York, New
trials
Plesent,
York
or other court or administrative
by service
Sheinfeld
10176.
proceedings or
Squadron,
Avenue, New
investigations,
upon Ira Lee Sorkin,
~ Sorkin, 551 Fifth
12.
Defendant
Bienes
further
acknowledges
that
this
Consent embodies 13.
the
entire
understanding agrees that
of the parties. the Final Judgment
Defendant
Bienes
may be presented
entry without
by the Commission to the Court for signature
notice.
and
further
MADOFF
EXHIBITS-03598
~··:: ·1"
·
'2"~';
14.
Defendant
Bienes
consents
that
this
Court
shall
retain
jurisdiction
and
for all
of this
enforcing
purposes.
action
the terms
for
the
purpose
of
the Final
implementing
Judgment
and
conditions·of
Michael
S.
Bie~n~es
State
of
Florida
)
99.:
County
of
Broward
)
Sworn
to
and
subscribed
before
me
thisY
Driver's
Of
JUne,7
1993.
personally
Michael
known
S.
Bienes
to me or
personally
produced
appeared'b~fore
Florida
me, take
is an~
License
#~3 s~7n- ~/7-
~d-a~d
as
identificat~on,
~Z~d did
KA~HL~EN H. PII~
WV9999999 I CCPZTdO
Notary ~L~h~~
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6, 1998
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L·~MADOFF EXHIBITS-03599