SEC v. Bryan Scott McMillan, No. 4:24-cv-00919, Northern District of Texas (Sept. 26, 2024) — Complaint

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

UNITED STATES SECURITIES AND
EXCHANGE COMMISSION,

Plaintiff,

vs.

BRYAN SCOTT MCMILLAN,

            Defendant.

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Civil Action No.: 4:24-cv-919

COMPLAINT
Plaintiff United States Securities and Exchange Commission (the “SEC”), for its
Complaint against Defendant Bryan Scott McMillan (“McMillan” or “Defendant”), alleges as
follows:
SUMMARY OF THE ACTION
1. On November 28, 2022, McMillan committed insider trading when he purchased
shares of Apollo Endosurgery, Inc. (“Apollo”) common stock, which was then a publicly traded
company where McMillan’s domestic partner (“Jane Doe”) worked.  McMillan purchased the
stock on the basis of material nonpublic information obtained from Jane Doe.  Specifically,
McMillan learned that Apollo would be acquired by another company.  Within minutes of
learning of the planned acquisition, McMillan sold the securities of three other companies and
purchased 20,000 shares of Apollo stock right before the stock market closed.  The next
morning, before stock markets opened, Apollo announced that it was being acquired for $10 per

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share in a cash transaction, which caused Apollo’s share price to increase more than 67 percent
from the price at which McMillan had purchased it.  As a result of his illegal insider trading,
McMillan reaped profits of approximately $81,400.
2. By engaging in this conduct, McMillan violated Section 10(b) of the Securities
Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)], and Rule 10b-5 thereunder [17
C.F.R. § 240.10b-5], and unless restrained and enjoined, will continue to violate the federal
securities laws.
3. The SEC seeks a final judgment: (a) permanently enjoining Defendant from
violating the federal securities laws by engaging in the transactions, acts, practices, and courses
of business alleged in this Complaint; (b) ordering Defendant to disgorge any ill-gotten gains he
received with prejudgment interest thereon pursuant to Exchange Act Sections 21(d)(3), (5), and
(7) [15 U.S.C. §§ 78u(d)(3), (5) and (7)]; (c) ordering Defendant to pay civil money penalties
pursuant to Exchange Act Section 21A [15 U.S.C. § 78u-1]; (d) ordering an officer and director
bar against Defendant pursuant to Exchange Act Section 21(d)(2) [15 U.S.C. §§ 78u(d)(2)]; and
(e) ordering any other and further relief the Court may deem just and proper.
JURISDICTION AND VENUE
4. The SEC brings this action pursuant to authority conferred upon it by Exchange
Act Sections 21(d) and 21A [15 U.S.C. §§ 78u(d) and 78u-1].
5. This Court has jurisdiction over this action pursuant to Exchange Act Sections
21(d), 21(e), 21A, and 27(a) [15 U.S.C. §§ 78u(d), 78u(e), 78u-1, and 78aa].
6. Venue is proper in this Northern District of Texas pursuant to Section 27 of the
Exchange Act [15 U.S.C. § 78aa].  McMillan is an inhabitant of the District, and certain of the

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acts, practices, courses of business, and transactions constituting the violations alleged herein
occurred within the District, including McMillan’s submission of the relevant securities trades.
DEFENDANT
7. Bryan Scott McMillan is 54 years old and resides in Tarrant County, Texas.  At
all relevant times, McMillan and Jane Doe resided in Southlake, Texas.  From approximately
2017 until 2023, McMillan was employed as a division president at a publicly traded medical
technology company.
OTHER RELEVANT ENTITIES AND INDIVIDUAL
8. Apollo was acquired by Boston Scientific Corp. in 2023.  Prior to the acquisition,
it was an SEC-reporting company with its securities registered under Section 12(b) of the
Exchange Act and quoted on NASDAQ.  Apollo was headquartered in Austin, Texas and
developed, among other things, endoscopy products.
9. Boston Scientific Corp. (“Boston Scientific”) has been an SEC-reporting
company since 1995, and its securities are registered under Section 12(b) of the Exchange Act
and are quoted on the New York Stock Exchange.  Boston Scientific is a developer of medical
devices incorporated in Delaware with a principal place of business in Marlborough,
Massachusetts.
10. Jane Doe is 53 years old.  At all relevant times, Jane Doe resided with McMillan
in Southlake, Texas.  Jane Doe started her employment at Apollo in 2012 and resigned in July
2023.  At all relevant times, Jane Doe held a senior position at Apollo in which she received
confidential and nonpublic information about Apollo as part of her employment.

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FACTUAL ALLEGATIONS
A. McMillan and Jane Doe Had a Long-Standing and Close Personal Relationship and
Shared a Residence.

11. At all relevant times, McMillan and Jane Doe were in a committed relationship or
domestic partnership with one another and had been in such a relationship since 2014.  McMillan
and Jane Doe were best friends, shared a residence, vacationed together, spent holidays together
with their extended families, and shared responsibilities for living expenses.  McMillan and Jane
Doe agreed or understood, expressly or implicitly, that as part of their close personal relationship
and cohabitation, each would come into possession of information about the other’s personal life,
family, and work, and that each would expect the other person to keep such information
confidential.  Among other things, McMillan and Jane Doe’s close relationship permitted them
to enter each other’s personal spaces within their shared home and to overhear private or work-
related conversations in the home with the understanding that information obtained would still
remain private and confidential between them.  The nature and length of McMillan and Jane
Doe’s relationship and living circumstances demonstrated a duty of trust and confidence between
McMillan and Jane Doe.  As such, McMillan knew or reasonably expected that Jane Doe
understood that McMillan would maintain the confidentiality of information she shared, and Jane
Doe reasonably would have expected such confidentiality.
12. McMillan owed a duty of trust and confidence to Jane Doe to maintain the
confidential work information they shared or which he obtained from Jane Doe and to not trade
on the basis of such information.
13. At all relevant times, Jane Doe worked for Apollo from the home that she and
McMillan shared in Southlake, Texas.  McMillian also periodically worked from that home.

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B. Jane Doe and McMillan Were Obligated to Maintain Confidentiality and to Refrain
from Trading Apollo Securities Based on Material Nonpublic Information.

14. At all relevant times, Apollo maintained written policies and procedures to protect
its confidential information.  These included limiting how Apollo employees could use Apollo’s
confidential information and limiting when employees and their family members could trade
Apollo’s securities.
15. Apollo’s written policies, included in its “Code of Business Conduct and Ethics”
and “Insider Trading and Trading Window Policy,” provided examples of “inside information,”
which included “acquisitions or dispositions of assets, divisions, companies, etc.”  Apollo’s
insider trading policies, which were incorporated by reference in its code of conduct, specifically
prohibited employees who had inside information from trading in the company’s stock, advising
anyone else to do so, or communicating the information to anyone else before its public
dissemination.  The policy applied to family members and other household members of Apollo
employees.
16. Jane Doe was aware that Apollo protected its confidential and nonpublic
information and limited when its employees and their family members were permitted to trade
Apollo’s securities.  Jane Doe acknowledged Apollo’s policies on insider trading and her
obligation to comply with those policies through her signature, which Apollo required every two
years.  Jane Doe was under a duty to keep Apollo’s confidential and nonpublic information in
confidence.
17. McMillan was aware that his employer, a different publicly traded company, had
a code of conduct which stated that employees “who have access to confidential information are
not permitted to use or share that information for stock trading purposes . . . or to ‘tip’ others
(including without limitation friends and Family Members) who might make an investment

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decision on the basis of this information[.]”.  McMillan also received training on compliance
with insider trading laws through his employer.  McMillan was aware that his company’s policy
would not permit members of his family or friends to trade on its nonpublic information.
Accordingly, McMillan, who in addition to working at a public company had previously worked
as a broker, was aware of the sensitive nature of material nonpublic information relating to
securities issuers and the duties and obligations attendant to the sharing of such information.
C. Boston Scientific’s Acquisition of Apollo
18. In or about September 2022, one or more senior executives of Apollo engaged in
discussions with one or more senior executives of Boston Scientific about a strategic acquisition
of Apollo.  Soon thereafter, negotiations for Boston Scientific’s acquisition of Apollo began in
earnest.  Within Apollo, only a small circle of senior employees were aware of these discussions.
19. On November 28, 2022, Apollo and Boston Scientific agreed on final terms for
the transaction.
20. That evening, Apollo’s Board of Directors voted to approve the transaction.  The
acquisition was publicly announced before U.S. stock markets opened on the morning of
November 29, 2022.
D. Jane Doe Learned of the Acquisition.
21. During the afternoon of November 28, 2022, a senior executive of Apollo
informed multiple members of his management team – including Jane Doe – about the
impending acquisition.
22. Specifically, that day, at approximately 2:40 p.m. Central Time, the Apollo senior
executive placed a telephone call to Jane Doe, who was at the Southlake, Texas home that she
shared with McMillan.  During the call, the senior executive shared material nonpublic

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information with Jane Doe, specifically that Apollo was in advanced discussions to be acquired
by Boston Scientific, that the deal was imminent and could be announced as early as the next
day, and that Jane Doe would need to complete various work-related tasks for the acquisition.
23. The senior executive further conveyed to Jane Doe that the information was
highly confidential, and

Jane Doe understood that the information communicated to her by the
senior executive was confidential and material nonpublic information.
24. The phone call between Jane Doe and the senior executive concluded at or about
2:48 p.m. Central Time.
E. McMillan Purchased Apollo Stock on November 28, 2022 After Jane Doe Learned
of the Acquisition.

25. On November 28, 2022, McMillan started his workday at his office in Lewisville,
Texas and then traveled home in time to participate in a work call scheduled for 3:00 p.m.
Central Time.
26. Between approximately 2:40 p.m. and 2:50 p.m. Central Time, McMillan learned
the material nonpublic information that the senior executive had shared with Jane Doe.  Either
McMillan misappropriated this information from Jane Doe in breach of his duty to her after she
communicated this information to him in confidence or he overheard her confidential telephone
conversation in their shared home; or Jane Doe tipped the material nonpublic information about
the acquisition to McMillan in breach of a duty to Apollo and for personal benefit (e.g., as a gift
to a close friend or to receive additional household income).  In whichever circumstance,
McMillan breached a duty of trust and confidence by then trading on the basis of that
information.

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27. At 2:50 p.m. Central Time, approximately two minutes after the telephone call
between Jane Doe and the senior executive concluded, McMillan logged in to his brokerage
account from the home in Southlake, Texas.
28. Beginning at 2:53 p.m. Central Time, McMillan started placing orders to sell the
securities of three different companies held in one of his accounts.  Each of these stocks were
sold at a loss but the combined sales generated more than $100,000 of cash in the account.
29. At 2:56 p.m. Central Time, McMillan used the proceeds from the sales of the
three securities, as well as additional cash held in the account, to place a market order to
purchase 20,000 shares of Apollo stock.  Trades placed using a market order execute
immediately at the best price available in the relevant market.
30. Prior to executing McMillan’s market order to purchase Apollo stock, a
representative of McMillan’s brokerage firm called McMillan at 2:58 p.m. Central Time and
stated to McMillan, in sum and substance and in part, that there was not substantial trading
volume in Apollo stock, and that the market order placed by McMillan may cause the price of
the Apollo stock to change, which could result in McMillan paying more than the current market
price.  The representative asked if McMillan wanted to change his market order to a limit order,
which is an instruction to buy or sell a security at a specified price or better, rather than at the
market price.  McMillan responded, in sum and substance and in part, that he was aware the
markets were closing in two minutes and wanted to send the order as a market order.
31. McMillan’s brokerage firm executed his order to purchase 20,000 shares of
Apollo stock at 2:58 p.m. Central Time, approximately two minutes before the close of the
NASDAQ market.  McMillan’s purchase represented more than 25 percent of the total trading
volume in Apollo stock that day.

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32. McMillan purchased Apollo stock on the basis of information about Apollo’s
impending acquisition.  He knew, consciously avoided knowing, or was reckless in not knowing
that the information was material and nonpublic and used that information in the purchase of
Apollo stock, which was a substantial factor in his decision to purchase those securities.  As set
forth above, McMillan breached a duty of trust and confidence by trading on the basis of the
information and, in so doing, McMillan acted with an intent to deceive or defraud.
33. Following the November 29, 2022 announcement of Apollo’s acquisition, the
share price of Apollo’s stock increased by approximately 67.8%, resulting in ill-gotten gains of
$81,400 for McMillan.
F. Activity in Jane Doe’s Brokerage Account
34. On November 28, 2022, beginning shortly after the market closed and after
McMillan’s trades were executed, there were multiple unsuccessful attempts to purchase shares
of Apollo stock in a brokerage account held by Jane Doe.
35. At approximately 3:25 p.m. Central Time, Jane Doe’s brokerage account placed a
market order to purchase 149 shares of Apollo stock.
36. Jane Doe’s brokerage firm did not execute the order, and a minute later, Jane
Doe’s account replaced the order with a market order to purchase 125 shares of Apollo stock.
37. Several hours later, in the early morning hours of November 29, 2022, prior to the
announcement of the acquisition, the pending order to purchase 125 shares of Apollo stock was
changed from a market order to a limit order with a limit price of $6.50 per share.  This limit
order was not executed because, following the announcement of the acquisition, Apollo’s stock
opened at a price of $9.80 on November 29th and traded at prices significantly above the $6.50

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limit price for the entire trading day. After the close of trading on November 29th, Jane Doe’s
brokerage firm cancelled the unexecuted limit order.
38. On November 30, 2022, Jane Doe sold 145 shares of Apollo stock.  This trade
occurred after the announcement of the acquisition was made public, but the trade violated
Apollo’s internal policies including by (a) occurring less than two-full trading days following
public dissemination of material nonpublic information; and (b) without Jane Doe having
fulfilled Apollo’s pre-clearance requirement for trading.
CLAIM FOR RELIEF
Violations of Section 10(b) of the Exchange Act and Rule 10b-5 Thereunder
39. The SEC realleges and incorporates by reference paragraphs 1 through 38, as
though fully set forth herein.
40. By virtue of the foregoing, McMillan, in connection with the purchase or sale of
securities, by the use of the means or instrumentalities of interstate commerce, or of the mails, or
a facility of a national securities exchange, directly or indirectly: (a) employed devices, schemes
or artifices to defraud; (b) made untrue statements of material fact or omitted to state material
facts necessary in order to make the statements made, in the light of the circumstances under
which they were made, not misleading; and/or (c) engaged in acts, practices, or courses of
business which operated or would have operated as a fraud or deceit upon persons.
41. By virtue of the foregoing, McMillan directly or indirectly violated and, unless
enjoined, will again violate Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule
10b-5 thereunder [17 C.F.R. § 240.10b-5].

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PRAYER FOR RELIEF
WHEREFORE, the SEC respectfully requests that this Court:
I.
Find that Defendant McMillan violated the provisions of the federal securities laws as
alleged herein;
II.
Permanently restrain and enjoin Defendant McMillan from, directly or indirectly,
engaging in conduct in violation of Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and
Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5];
III.
Order Defendant McMillan to disgorge all ill-gotten gains received during the period of
the violative conduct, plus prejudgment interest thereon, pursuant to the Court’s equitable
powers and Sections 21(d)(3), 21(d)(5), and 21(d)(7) of the Exchange Act [15 U.S.C.
§§ 78u(d)(3), 78u(d)(5), and 78u(d)(7)];
IV.
Order Defendant McMillan to pay civil monetary penalties pursuant to Section 21A of
the Exchange Act [15 U.S.C. § 78u-1];
V.
Order that Defendant McMillan be prohibited from acting as an officer or director of any
issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act [15
U.S.C. § 78l] or that is required to file reports pursuant to Section 15(d) of the Exchange Act [15
U.S.C. § 78o(d)];
VI.

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Retain jurisdiction of this action in accordance with the principles of equity and the
Federal Rules of Civil Procedure in order to implement and carry out the terms of all orders
and decrees that may be entered, or to entertain any suitable application or motion for
additional relief within the jurisdiction of this Court; and
VII.
Grant such other and further relief as this Court may deem just, equitable, and proper.
DEMAND FOR JURY TRIAL
 Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the SEC demands trial by
jury in this action of all issues so triable.
Dated:  September 26, 2024                Respectfully            submitted,

/s/ James P. McDonald
      Patrick Disbennett
Texas Bar No. 24094629
United States Securities and Exchange Commission
Fort Worth Regional Office
Burnett Plaza, Suite 1900
801 Cherry Street, Unit 18
Fort Worth, TX 76102
Telephone: (817) 266-9633
Facsimile: (817) 978-4927
[email protected]

      James P. McDonald
                                                                        New            York            Bar            No.            4823910
      Pro Hac Vice Application Pending
United States Securities and Exchange Commission
                                                                        Denver            Regional            Office
                                                                        1961            Stout            St.,            Suite            1700
                                                                        Denver,            CO            80294
Telephone: 303-844-1059
Facsimile: 303-297-3529
      [email protected]

                                                                        COUNSEL            FOR            PLAINTIFF
                                                                        U.S.            SECURITIES            AND            EXCHANGE            COMMISSION

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 
 
 

 
UNITED STATES SECURITIES AND 
EXCHANGE COMMISSION,   
  

Plaintiff, 
 
 
vs. 
 
 
BRYAN SCOTT MCMILLAN, 
 
            Defendant. 
 

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Civil Action No.: 4:24-cv-919 
 
 
 

 

COMPLAINT 

Plaintiff United States Securities and Exchange Commission (the “SEC”), for its 

Complaint against Defendant Bryan Scott McMillan (“McMillan” or “Defendant”), alleges as 

follows: 

SUMMARY OF THE ACTION 

1. On November 28, 2022, McMillan committed insider trading when he purchased 

shares of Apollo Endosurgery, Inc. (“Apollo”) common stock, which was then a publicly traded 

company where McMillan’s domestic partner (“Jane Doe”) worked.  McMillan purchased the 

stock on the basis of material nonpublic information obtained from Jane Doe.  Specifically, 

McMillan learned that Apollo would be acquired by another company.  Within minutes of 

learning of the planned acquisition, McMillan sold the securities of three other companies and 

purchased 20,000 shares of Apollo stock right before the stock market closed.  The next 

morning, before stock markets opened, Apollo announced that it was being acquired for $10 per 

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share in a cash transaction, which caused Apollo’s share price to increase more than 67 percent 

from the price at which McMillan had purchased it.  As a result of his illegal insider trading, 

McMillan reaped profits of approximately $81,400. 

2. By engaging in this conduct, McMillan violated Section 10(b) of the Securities 

Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)], and Rule 10b-5 thereunder [17 

C.F.R. § 240.10b-5], and unless restrained and enjoined, will continue to violate the federal 

securities laws.   

3. The SEC seeks a final judgment: (a) permanently enjoining Defendant from 

violating the federal securities laws by engaging in the transactions, acts, practices, and courses 

of business alleged in this Complaint; (b) ordering Defendant to disgorge any ill-gotten gains he 

received with prejudgment interest thereon pursuant to Exchange Act Sections 21(d)(3), (5), and 

(7) [15 U.S.C. §§ 78u(d)(3), (5) and (7)]; (c) ordering Defendant to pay civil money penalties 

pursuant to Exchange Act Section 21A [15 U.S.C. § 78u-1]; (d) ordering an officer and director 

bar against Defendant pursuant to Exchange Act Section 21(d)(2) [15 U.S.C. §§ 78u(d)(2)]; and 

(e) ordering any other and further relief the Court may deem just and proper. 

JURISDICTION AND VENUE 

4. The SEC brings this action pursuant to authority conferred upon it by Exchange 

Act Sections 21(d) and 21A [15 U.S.C. §§ 78u(d) and 78u-1].  

5. This Court has jurisdiction over this action pursuant to Exchange Act Sections 

21(d), 21(e), 21A, and 27(a) [15 U.S.C. §§ 78u(d), 78u(e), 78u-1, and 78aa]. 

6. Venue is proper in this Northern District of Texas pursuant to Section 27 of the 

Exchange Act [15 U.S.C. § 78aa].  McMillan is an inhabitant of the District, and certain of the 

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acts, practices, courses of business, and transactions constituting the violations alleged herein 

occurred within the District, including McMillan’s submission of the relevant securities trades.  

DEFENDANT 

7. Bryan Scott McMillan is 54 years old and resides in Tarrant County, Texas.  At 

all relevant times, McMillan and Jane Doe resided in Southlake, Texas.  From approximately 

2017 until 2023, McMillan was employed as a division president at a publicly traded medical 

technology company.  

OTHER RELEVANT ENTITIES AND INDIVIDUAL 

8. Apollo was acquired by Boston Scientific Corp. in 2023.  Prior to the acquisition, 

it was an SEC-reporting company with its securities registered under Section 12(b) of the 

Exchange Act and quoted on NASDAQ.  Apollo was headquartered in Austin, Texas and 

developed, among other things, endoscopy products.   

9. Boston Scientific Corp. (“Boston Scientific”) has been an SEC-reporting 

company since 1995, and its securities are registered under Section 12(b) of the Exchange Act 

and are quoted on the New York Stock Exchange.  Boston Scientific is a developer of medical 

devices incorporated in Delaware with a principal place of business in Marlborough, 

Massachusetts. 

10. Jane Doe is 53 years old.  At all relevant times, Jane Doe resided with McMillan 

in Southlake, Texas.  Jane Doe started her employment at Apollo in 2012 and resigned in July 

2023.  At all relevant times, Jane Doe held a senior position at Apollo in which she received 

confidential and nonpublic information about Apollo as part of her employment. 

 

 

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FACTUAL ALLEGATIONS 

A. McMillan and Jane Doe Had a Long-Standing and Close Personal Relationship and 
Shared a Residence. 
 
11. At all relevant times, McMillan and Jane Doe were in a committed relationship or 

domestic partnership with one another and had been in such a relationship since 2014.  McMillan 

and Jane Doe were best friends, shared a residence, vacationed together, spent holidays together 

with their extended families, and shared responsibilities for living expenses.  McMillan and Jane 

Doe agreed or understood, expressly or implicitly, that as part of their close personal relationship 

and cohabitation, each would come into possession of information about the other’s personal life, 

family, and work, and that each would expect the other person to keep such information 

confidential.  Among other things, McMillan and Jane Doe’s close relationship permitted them 

to enter each other’s personal spaces within their shared home and to overhear private or work-

related conversations in the home with the understanding that information obtained would still 

remain private and confidential between them.  The nature and length of McMillan and Jane 

Doe’s relationship and living circumstances demonstrated a duty of trust and confidence between 

McMillan and Jane Doe.  As such, McMillan knew or reasonably expected that Jane Doe 

understood that McMillan would maintain the confidentiality of information she shared, and Jane 

Doe reasonably would have expected such confidentiality. 

12. McMillan owed a duty of trust and confidence to Jane Doe to maintain the 

confidential work information they shared or which he obtained from Jane Doe and to not trade 

on the basis of such information.   

13. At all relevant times, Jane Doe worked for Apollo from the home that she and 

McMillan shared in Southlake, Texas.  McMillian also periodically worked from that home.    

 

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B. Jane Doe and McMillan Were Obligated to Maintain Confidentiality and to Refrain 
from Trading Apollo Securities Based on Material Nonpublic Information. 
 
14. At all relevant times, Apollo maintained written policies and procedures to protect 

its confidential information.  These included limiting how Apollo employees could use Apollo’s 

confidential information and limiting when employees and their family members could trade 

Apollo’s securities.  

15. Apollo’s written policies, included in its “Code of Business Conduct and Ethics” 

and “Insider Trading and Trading Window Policy,” provided examples of “inside information,” 

which included “acquisitions or dispositions of assets, divisions, companies, etc.”  Apollo’s 

insider trading policies, which were incorporated by reference in its code of conduct, specifically 

prohibited employees who had inside information from trading in the company’s stock, advising 

anyone else to do so, or communicating the information to anyone else before its public 

dissemination.  The policy applied to family members and other household members of Apollo 

employees. 

16. Jane Doe was aware that Apollo protected its confidential and nonpublic 

information and limited when its employees and their family members were permitted to trade 

Apollo’s securities.  Jane Doe acknowledged Apollo’s policies on insider trading and her 

obligation to comply with those policies through her signature, which Apollo required every two 

years.  Jane Doe was under a duty to keep Apollo’s confidential and nonpublic information in 

confidence.   

17. McMillan was aware that his employer, a different publicly traded company, had 

a code of conduct which stated that employees “who have access to confidential information are 

not permitted to use or share that information for stock trading purposes . . . or to ‘tip’ others 

(including without limitation friends and Family Members) who might make an investment 

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decision on the basis of this information[.]”.  McMillan also received training on compliance 

with insider trading laws through his employer.  McMillan was aware that his company’s policy 

would not permit members of his family or friends to trade on its nonpublic information.  

Accordingly, McMillan, who in addition to working at a public company had previously worked 

as a broker, was aware of the sensitive nature of material nonpublic information relating to 

securities issuers and the duties and obligations attendant to the sharing of such information.    

C. Boston Scientific’s Acquisition of Apollo 

18. In or about September 2022, one or more senior executives of Apollo engaged in 

discussions with one or more senior executives of Boston Scientific about a strategic acquisition 

of Apollo.  Soon thereafter, negotiations for Boston Scientific’s acquisition of Apollo began in 

earnest.  Within Apollo, only a small circle of senior employees were aware of these discussions.  

19. On November 28, 2022, Apollo and Boston Scientific agreed on final terms for 

the transaction.   

20. That evening, Apollo’s Board of Directors voted to approve the transaction.  The 

acquisition was publicly announced before U.S. stock markets opened on the morning of 

November 29, 2022.  

D. Jane Doe Learned of the Acquisition. 

21. During the afternoon of November 28, 2022, a senior executive of Apollo 

informed multiple members of his management team – including Jane Doe – about the 

impending acquisition. 

22. Specifically, that day, at approximately 2:40 p.m. Central Time, the Apollo senior 

executive placed a telephone call to Jane Doe, who was at the Southlake, Texas home that she 

shared with McMillan.  During the call, the senior executive shared material nonpublic 

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information with Jane Doe, specifically that Apollo was in advanced discussions to be acquired 

by Boston Scientific, that the deal was imminent and could be announced as early as the next 

day, and that Jane Doe would need to complete various work-related tasks for the acquisition.   

23. The senior executive further conveyed to Jane Doe that the information was 

highly confidential, and Jane Doe understood that the information communicated to her by the 

senior executive was confidential and material nonpublic information. 

24. The phone call between Jane Doe and the senior executive concluded at or about 

2:48 p.m. Central Time.  

E. McMillan Purchased Apollo Stock on November 28, 2022 After Jane Doe Learned 
of the Acquisition. 

 
25. On November 28, 2022, McMillan started his workday at his office in Lewisville, 

Texas and then traveled home in time to participate in a work call scheduled for 3:00 p.m. 

Central Time. 

26. Between approximately 2:40 p.m. and 2:50 p.m. Central Time, McMillan learned 

the material nonpublic information that the senior executive had shared with Jane Doe.  Either 

McMillan misappropriated this information from Jane Doe in breach of his duty to her after she 

communicated this information to him in confidence or he overheard her confidential telephone 

conversation in their shared home; or Jane Doe tipped the material nonpublic information about 

the acquisition to McMillan in breach of a duty to Apollo and for personal benefit (e.g., as a gift 

to a close friend or to receive additional household income).  In whichever circumstance, 

McMillan breached a duty of trust and confidence by then trading on the basis of that 

information. 

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27. At 2:50 p.m. Central Time, approximately two minutes after the telephone call 

between Jane Doe and the senior executive concluded, McMillan logged in to his brokerage 

account from the home in Southlake, Texas. 

28. Beginning at 2:53 p.m. Central Time, McMillan started placing orders to sell the 

securities of three different companies held in one of his accounts.  Each of these stocks were 

sold at a loss but the combined sales generated more than $100,000 of cash in the account. 

29. At 2:56 p.m. Central Time, McMillan used the proceeds from the sales of the 

three securities, as well as additional cash held in the account, to place a market order to 

purchase 20,000 shares of Apollo stock.  Trades placed using a market order execute 

immediately at the best price available in the relevant market.   

30. Prior to executing McMillan’s market order to purchase Apollo stock, a 

representative of McMillan’s brokerage firm called McMillan at 2:58 p.m. Central Time and 

stated to McMillan, in sum and substance and in part, that there was not substantial trading 

volume in Apollo stock, and that the market order placed by McMillan may cause the price of 

the Apollo stock to change, which could result in McMillan paying more than the current market 

price.  The representative asked if McMillan wanted to change his market order to a limit order, 

which is an instruction to buy or sell a security at a specified price or better, rather than at the 

market price.  McMillan responded, in sum and substance and in part, that he was aware the 

markets were closing in two minutes and wanted to send the order as a market order.    

31. McMillan’s brokerage firm executed his order to purchase 20,000 shares of 

Apollo stock at 2:58 p.m. Central Time, approximately two minutes before the close of the 

NASDAQ market.  McMillan’s purchase represented more than 25 percent of the total trading 

volume in Apollo stock that day. 

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32. McMillan purchased Apollo stock on the basis of information about Apollo’s 

impending acquisition.  He knew, consciously avoided knowing, or was reckless in not knowing 

that the information was material and nonpublic and used that information in the purchase of 

Apollo stock, which was a substantial factor in his decision to purchase those securities.  As set 

forth above, McMillan breached a duty of trust and confidence by trading on the basis of the 

information and, in so doing, McMillan acted with an intent to deceive or defraud.     

33. Following the November 29, 2022 announcement of Apollo’s acquisition, the 

share price of Apollo’s stock increased by approximately 67.8%, resulting in ill-gotten gains of 

$81,400 for McMillan.   

F. Activity in Jane Doe’s Brokerage Account 

34. On November 28, 2022, beginning shortly after the market closed and after 

McMillan’s trades were executed, there were multiple unsuccessful attempts to purchase shares 

of Apollo stock in a brokerage account held by Jane Doe. 

35. At approximately 3:25 p.m. Central Time, Jane Doe’s brokerage account placed a 

market order to purchase 149 shares of Apollo stock.  

36. Jane Doe’s brokerage firm did not execute the order, and a minute later, Jane 

Doe’s account replaced the order with a market order to purchase 125 shares of Apollo stock. 

37. Several hours later, in the early morning hours of November 29, 2022, prior to the 

announcement of the acquisition, the pending order to purchase 125 shares of Apollo stock was 

changed from a market order to a limit order with a limit price of $6.50 per share.  This limit 

order was not executed because, following the announcement of the acquisition, Apollo’s stock 

opened at a price of $9.80 on November 29th and traded at prices significantly above the $6.50 

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limit price for the entire trading day. After the close of trading on November 29th, Jane Doe’s 

brokerage firm cancelled the unexecuted limit order.     

38. On November 30, 2022, Jane Doe sold 145 shares of Apollo stock.  This trade 

occurred after the announcement of the acquisition was made public, but the trade violated 

Apollo’s internal policies including by (a) occurring less than two-full trading days following 

public dissemination of material nonpublic information; and (b) without Jane Doe having 

fulfilled Apollo’s pre-clearance requirement for trading.   

CLAIM FOR RELIEF 

Violations of Section 10(b) of the Exchange Act and Rule 10b-5 Thereunder 

39. The SEC realleges and incorporates by reference paragraphs 1 through 38, as 

though fully set forth herein. 

40. By virtue of the foregoing, McMillan, in connection with the purchase or sale of 

securities, by the use of the means or instrumentalities of interstate commerce, or of the mails, or 

a facility of a national securities exchange, directly or indirectly: (a) employed devices, schemes 

or artifices to defraud; (b) made untrue statements of material fact or omitted to state material 

facts necessary in order to make the statements made, in the light of the circumstances under 

which they were made, not misleading; and/or (c) engaged in acts, practices, or courses of 

business which operated or would have operated as a fraud or deceit upon persons.   

41. By virtue of the foregoing, McMillan directly or indirectly violated and, unless 

enjoined, will again violate Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 

10b-5 thereunder [17 C.F.R. § 240.10b-5]. 

 

 

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PRAYER FOR RELIEF 

WHEREFORE, the SEC respectfully requests that this Court: 

I. 

Find that Defendant McMillan violated the provisions of the federal securities laws as 

alleged herein; 

II. 

Permanently restrain and enjoin Defendant McMillan from, directly or indirectly, 

engaging in conduct in violation of Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and 

Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5]; 

III. 

Order Defendant McMillan to disgorge all ill-gotten gains received during the period of 

the violative conduct, plus prejudgment interest thereon, pursuant to the Court’s equitable 

powers and Sections 21(d)(3), 21(d)(5), and 21(d)(7) of the Exchange Act [15 U.S.C. 

§§ 78u(d)(3), 78u(d)(5), and 78u(d)(7)]; 

IV. 

Order Defendant McMillan to pay civil monetary penalties pursuant to Section 21A of 

the Exchange Act [15 U.S.C. § 78u-1]; 

V. 

Order that Defendant McMillan be prohibited from acting as an officer or director of any 

issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act [15 

U.S.C. § 78l] or that is required to file reports pursuant to Section 15(d) of the Exchange Act [15 

U.S.C. § 78o(d)];  

VI. 

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Retain jurisdiction of this action in accordance with the principles of equity and the 

Federal Rules of Civil Procedure in order to implement and carry out the terms of all orders 

and decrees that may be entered, or to entertain any suitable application or motion for 

additional relief within the jurisdiction of this Court; and 

VII. 

Grant such other and further relief as this Court may deem just, equitable, and proper.   

DEMAND FOR JURY TRIAL 

 Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the SEC demands trial by 

jury in this action of all issues so triable. 

Dated:  September 26, 2024   Respectfully submitted,  
       
       

/s/ James P. McDonald     
      Patrick Disbennett 

Texas Bar No. 24094629 
United States Securities and Exchange Commission 
Fort Worth Regional Office 
Burnett Plaza, Suite 1900 
801 Cherry Street, Unit 18 
Fort Worth, TX 76102 
Telephone: (817) 266-9633 
Facsimile: (817) 978-4927 
[email protected] 
 

      James P. McDonald 
      New York Bar No. 4823910 
      Pro Hac Vice Application Pending 

United States Securities and Exchange Commission 
      Denver Regional Office 
      1961 Stout St., Suite 1700 
      Denver, CO 80294 

Telephone: 303-844-1059  
Facsimile: 303-297-3529 

      [email protected] 
  
      COUNSEL FOR PLAINTIFF  
      U.S. SECURITIES AND EXCHANGE COMMISSION 

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