Free Declaration in Support - District Court of California - California

Case 3:07-cv-04975-WHA

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Filed 11/15/2007

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KEKER & VAN NEST, LLP MICHAEL D. CELIO - #197998 CLEMENT S. ROBERTS - #209203 JO F. WEINGARTEN - #246224 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Email: [email protected] [email protected] [email protected] Attorneys for Defendants ALEXANDER JAMES TRABULSE, FAHEY FUND, L.P., FAHEY FINANCIAL GROUP, INC., INTERNATIONAL TRADE & DATA, and ITD TRADING

UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 SECURITIES AND EXCHANGE COMMISSION 16 Plaintiff, 17 v. 18 ALEXANDER JAMES TRABULSE 19 Defendant, 20 and 21 22 23 Relief Defendants. 24 25 26 27 28
ROBERTS DECL. IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION CASE NO. C-07-4975 WHA

Case No. C-07-4975 WHA DECLARATION OF CLEMENT S. ROBERTS IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Date: December 6, 2007 Time: 8:00 a.m. Courtroom: 9 Judge: Hon. William H. Alsup Date Action Filed: September 26, 2007

FAHEY FUND, L.P., FAHEY FINANCIAL GROUP, INC., INTERNATIONAL TRADE & DATA, and ITD TRADING,

406398.01

Case 3:07-cv-04975-WHA

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I, CLEMENT S. ROBERTS, declare and state that: 1. I am an attorney licensed to practice law in the State of California and am an

associate at the law firm of Keker & Van Nest LLP, located at 710 Sansome Street, San Francisco, California 94111, counsel for Defendant Alexander James Trabulse in the abovecaptioned action. I am duly admitted to practice law before this Court. Except where expressly stated, I have personal knowledge of the facts set forth herein, and if called to testify as a witness thereto, could and would do so competently and under oath. 2. Attached hereto as Exhibit A is a true and correct copy of the Fahey Fund

(Limited) Partnership Agreement, dated January 2002. 3. Mr. Trabulse and the SEC entered into a stipulation that limits the actions Mr.

Trabulse can take during this litigation with respect to the Fahey Fund. The Court entered this stipulation as an order on October 29, 2007. 4. During the defense counsel's meet and confer process with the SEC regarding the

Trabulse stipulation, the SEC's counsel made clear that they intended to seek additional preliminary injunctions in order to preclude the Fund from paying for the attorney fees and costs needed to defend itself, and its General Partner, during this litigation. 5. The SEC's counsel also made clear that they were seeking additional preliminary

injunctions to preclude Mr. Trabulse from obtaining any compensation for the Fund-related work that he, and the SEC, have agreed he will do in the future. 6. As part of the meet and confer process with the SEC regarding this litigation, the

SEC informed me that they do not intend to try and remove Mr. Trabulse from continuing to manage the Fund during this litigation. Indeed, the stipulation entered into with the SEC assumes that Mr. Trabulse will manage the Fund during this litigation. 7. The SEC also made it clear that, despite the stipulation, it intended to seek

preliminary relief in order to prevent the Fund from spending any money to defend itself or Mr. Trabulse in this litigation. 8. The SEC spent more than nine months taking discovery, including obtaining 1

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ROBERTS DECL. IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION CASE NO. C-07-4975 WHA

Case 3:07-cv-04975-WHA

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documents from the defendants and from numerous third parties, and taking testimony from more than thirty witnesses. 9. During the SEC's investigation regarding this matter, the Fund produced 16,366

pages of documents to the SEC in response to an SEC subpoena. 10. Attached hereto as Exhibit B is a true and correct copy of a letter dated July 17,

2007 from Michael Celio to Erin Schneider .

Dated: November 15, 2007

KEKER & VAN NEST, LLP

By: /s/ Clement S. Roberts CLEMENT S. ROBERTS Attorneys for Defendants ALEXANDER JAMES TRABULSE, FAHEY FUND, L.P., FAHEY FINANCIAL GROUP, INC., INTERNATIONAL TRADE & DATA, and ITD TRADING

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ROBERTS DECL. IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION CASE NO. C-07-4975 WHA