U.S. Commodity Futures Trading Commission v. Reisinger et al
MEMORANDUM Opinion and Order: Reisinger's motion for judgment as a matter of law or for new trial (ECF No. 200 ) is denied. The CFTC's motion for injunction (ECF No. 211 ) is granted in part and denied in part. The court orders: Reisin ger is permanently enjoined from committing further violations of the Act and its implementing regulations, acting in any capacity that requires registration with the Commission or an exemption from registration, and trading any commodity interests f or herself or on behalf of others; Reisinger to disgorge $153,355.04; ROF to disgorge $344,108.30; Reisinger to pay $497,893.88 in restitution; Reisinger to pay a civil penalty of $64,124.00; and ROF to pay a civil penalty of 036;1,041,793.02. The CFTCs requests for an award of prejudgment interest and to hold Reisinger liable for ROF's violations of the Act, disgorgement and civil monetary penalty are also granted. The CFTC is directed to submit a proposed order and final judgment on or before October 3, 2017. Signed by the Honorable Joan B. Gottschall on 9/19/2017.Mailed notice(mjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
U.S. COMMODITY FUTURES
GRACE ELIZABETH REISINGER and
ROF CONSULTING, LLC,
Case No. 11-CV-08567
Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The U.S. Commodity Futures Trading Commission (“CFTC”) filed a six-count
Complaint against Defendants Grace Elizabeth Reisinger (“Reisinger”) and ROF Consulting,
LLC (“ROF”) seeking injunctive and other equitable relief for violations of the Commodity
Exchange Act (“Act”) and CFTC Regulations (“Regulations”) promulgated thereunder. The
complaint charged the defendants with violating the anti-fraud and commodity pool operator
registration and exemption provisions of the Act and of the Regulations. The court entered a
default against ROF on November 7, 2012, (ECF No. 47) and subsequently entered a permanent
injunction barring ROF from future violations of the Act and of the Regulations, from acting in
any capacity that requires registration with the CFTC, and from trading any commodity interests
on its own or others’ behalf (ECF No. 102). The court held a week-long jury trial of the CFTC’s
claims against Reisinger. On September 13, 2016, the jury found for the CFTC after deliberating
for about 90 minutes.
Before the court are two motions. In the first, referred to here as the motion for new trial,
Reisinger renews her motion for judgment as a matter of law made at the close of the evidence
and alternatively asks for a new trial. See Fed. R. Civ. P. 50(b), 59. For its part, the CFTC asks
the court to order Reisinger to disgorge her ill-gotten gains, pay restitution, and pay a civil
monetary penalty; it also seeks permanent injunctive relief, including a trading prohibition.
(ECF No. 211 at 3.) Lastly, the CFTC moves the court to additional remedies against ROF now
that the jury has returned its verdict. (See id. at 3–4). For brevity’s sake, the court refers to the
CFTC’s motion with the admittedly incomplete title “motion for injunctive relief.”
I. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR
ALTERNATIVELY FOR NEW TRIAL
Reisinger’s motion for a new trial is denied. While the court agrees with defendant that
the jury deliberations were unusually brief and that such brief deliberations in a complex case are
troubling, the jury that was selected to hear this case had a substantial amount of business
sophistication and was extremely attentive during the trial. More importantly, having reviewed
the evidence introduced by both sides at trial, the court is persuaded that there was sufficient
evidence to support the verdict the jury reached. That being the case, Reisinger’s motion must
be denied. As the CFTC has pointed out, the law in this circuit is clear: “[A] trial court should
overturn a verdict only where the evidence supports but one conclusion—the conclusion not
drawn by the jury.” Ryl-Kuchar v. Care Ctrs., Inc., 565 F.3d 1027, 1030 (7th Cir. 2009).
The CFTC introduced sufficient evidence to support the jury’s conclusion that Reisinger
was the commodity pool operator (“CPO”) for the NCCN, LLC (“NCCN”) commodity pool.
Granted, Reisinger introduced conflicting evidence and vigorously cross-examined the CFTC’s
witnesses, all in an attempt to establish that others, particularly CFTC witness Larry Matthews,
was the CPO of the NCCN commodity pool. But this created an issue for the jury, a factual and
credibility conflict, not a miscarriage of justice. Reisinger’s argument that her responsibilities
were limited to selecting traders or administering pooled funds (Reply 2–3, ECF No. 214),
simply ignores much of the evidence the CFTC introduced. See 7 U.S.C. § 1a(11) (West 2017)
(defining “commodity pool operator”); CFTC v. Equity Fin. Grp. LLC, 572 F.3d 150, 157–59 (3d
Cir. 2009); see also CFTC v. Amerman, 645 F. App’x 938, 942 (11th Cir. 2016) (unpublished)
(assuming that whether defendant solicited funds and so met the definition of a commodity pool
operator was question of fact); CFTC v. Reisinger, No. 11 C 8567, 2013 WL 3791691, at *12
(N.D. Ill. July 18, 2013) (citations omitted) (ruling that the closely related question of “whether
the CPO managed the investors’ funds” is one of fact). It is not appropriate for the court to
second guess the jury’s resolution of credibility issues and factual disputes, as long as there was
sufficient evidence to support the verdict. See, e.g., Harvey v. Office of Banks & Real Estate,
377 F.3d 698, 707 (7th Cir. 2004) (“Our job at this stage[, considering a motion for judgment as a
matter of law,] is not to determine whether the jury believed the right people, but only to assure
that it was presented with a legally sufficient basis to support the verdict.” (citing Massey v. Blue
Cross–Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir. 2000))). In this case, there was sufficient
evidence to support the verdict for the CFTC.
Once the CFTC produced enough evidence to support the jury’s verdict on Reisinger’s
status as the CPO of the pool, the Act and the Regulations provided that Reisinger was required
to have a valid exemption from registration, see 7 U.S.C. § 6m(1), and that a valid exemption
required a reasonable basis for the belief that each natural person and non-natural person
participant was a QEP (qualified eligible participant) or an accredited investor, see 17 C.F.R. §
4.13(a)(3)(iii)(D) (2008); see also § 4.7(a)(2) (defining “qualified eligible person”). The CFTC
introduced adequate evidence that Reisinger did not have that information and that in fact, not all
the participants were qualified to participate.
Reisinger contends that these violations were mere regulatory violations and not material
to any of the pool investors. Rather, she contends, all the investors cared about was the
performance of the traders for the pool. However, the CFTC argues that its claim was not that
Reisinger was merely late in filing the required notice of exemption form, see § 4.13(b)(1),
whether or not the jury believed Reisinger’s evidence that she submitted the form on time but it
was logged in late. Rather, the CFTC’s contention was that defendant never properly determined
that the pool investors were qualified eligible persons under § 4.7, meaning the exemption was
never valid. If all that was at stake here was the arguably late submission or receipt of an
exemption form, Reisinger’s argument might have some persuasive force. But the CFTC’s
argument that the exemption Reisinger claimed was never valid because a number of the pool
participants were not financially qualified to participate goes to the heart of the statutory and
regulatory scheme put in place for the protection of investors. See Equity Fin. Grp., 572 F.3d at
157 (“when Congress defined commodity pool operator, it sought to regulate the solicitation of
funds from customers and potential customers. And it intended to protect them from harmful
conduct, especially fraudulent solicitation.”); see also H.R.Rep. No. 93–975, at 79 (1974)
(statement of Dr. Clayton Yeutter, Assistant Secretary of Agriculture), quoted in id. (“One of the
ways in which unsophisticated traders have lost substantial amounts of money is through
commodity advisors and commodity pool operators. This bill will provide for the registration of
all such persons . . . .”).
Reisinger has argued in reply merely that the evidence was insufficient to establish that
all the investors were unqualified, a contention the court rejects, and that it would not be material
for some investors that other investors were not qualified. That the court should find that a
violation of the regulations relating to the qualifications of investors is insufficiently material to
support the jury’s verdict is, to say the least, an undeveloped argument. In this circuit,
“[p]erfunctory, undeveloped arguments without discussion or citation to pertinent legal authority
are waived.” E.g., United States v. Beavers, 756 F.3d 1044, 1059 (7th Cir. 2014) (quoting
Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009)).
Finally, just as in the case of the CPO issue, the CFTC offered more than sufficient
evidence to support the jury verdict that Reisinger was the controlling person of ROF.
Unquestionably, as with respect to the pool operator issue, the defense offered conflicting
evidence. But weighing the evidence is not the court’s function. As long as there was sufficient
evidence to support the verdict the jury reached, the verdict must stand. Harvey, 377 F.3d at 707.
In this case, that requirement was more than satisfied.
Reisinger’s argument that the court erred in entering a default as to ROF, and finding its
liability thus established, is unpersuasive. Reisinger does not explain, and the court does not
understand, how she was prejudiced by a finding of liability against a party which she claimed
not to control. Requiring the CFTC to prove ROF’s liability, when it had defaulted, seems far
more problematic, not to mention a waste of time. Had Reisinger persuaded the court that the
default prejudiced her in some way, her argument might have some force, but endless legal
arguments about Frow v. De La Vega, 82 U.S. 552 (1872), when Reisinger defended on the
ground that she had no control over ROF, are not convincing. As the court stated in its ruling on
Reisinger’s motion in limine on this point, an order of default against ROF and a judgment in
favor of Reisinger are entirely consistent, given that Reisinger’s defense was that she did not
control ROF. (Ruling on Motions in Limine 6, ECF No. 138.)
Nor is the court persuaded that its ruling regarding the remaining pool funds was
erroneous. In ruling on the parties’ motions in limine, the court permitted the introduction of
evidence concerning these funds on two of the three bases advanced by the CFTC: not as a
material omission, but as evidence of Reisinger’s control over NCCN and ROF and as relevant to
the amount of disgorgement, if any was ordered. It was the court’s understanding that Reisinger
did not object to the introduction of the evidence but only to the addition of a separate claim for
misappropriation. The court said as much when it ruled on the motions in limine:
The CFTC does not seek to add a claim for misappropriation but
rather will introduce Reisinger’s use of the funds as evidence of
the claims already alleged against Reisinger. Reisinger does not
attack the admissibility of the evidence, but rather objects to the
addition of a separate claim at this point. As noted, the court does
not opine on the propriety of an amendment at this point.
(Rulings on Motions in Limine 9.)
After reviewing all of the evidence, the court concludes that it was sufficient to support
the jury’s verdict. The court finds no reason to reconsider its prior rulings.
II. DISGORGEMENT AND RESTITUTION
The CFTC asks the court to order Reisinger to disgorge $153,355.04 in what it terms
“direct payments from ROF” and restitution for $497,893.88 she “converted to her own use”
after closing the commodity pool’s account. (Mot. for Inj. 11, ECF No. 211 (citing Pl.’s Ex.
120).) Reisinger disputes these characterizations of the funds. She also argues in supplemental
briefing that the Supreme Court’s recent decision in Kokesh v. SEC, 137 S. Ct. 1635 (June 5,
2017) calls the court’s authority to order disgorgement and restitution into question, as well as
the applicable statute of limitations. Because it goes to the court’s power to award the requested
remedies, the court begins with Kokesh.
A. Authority to Award Disgorgement and Restitution
Kokesh resolved a split among the circuits over whether the five-year statute of
limitations in 28 U.S.C. § 2462, which applies to “any ‘action, suit or proceeding for the
enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise,’ . . . applies to claims
for disgorgement imposed as a sanction for violating a federal securities law.” Kokesh, 137 S.
Ct. at 1639. Kokesh “holds that . . . [d]isgorgement in the securities-enforcement context is a
‘penalty’ within the meaning of § 2462, and so disgorgement actions must be commenced within
five years of the date the claim accrues.” Id.
Reisinger points to a footnote in Kokesh she believes calls into doubt the court’s authority
to order disgorgement and restitution in an SEC enforcement action. (Def.’s Supplemental Mem.
2, ECF No. 220.) The footnote begins: “Nothing in this opinion should be interpreted as an
opinion on whether courts possess authority to order disgorgement in SEC enforcement
proceedings or on whether courts have properly applied disgorgement principles in this context.”
Kokesh, 137 S. Ct. at 1642 n.3.
Reisinger’s reasoning has at least two problems. First, footnote three of Kokesh
explicitly disclaims implying anything about a statutory question, so it does not help Reisinger’s
argument about what the Commodity Exchange Act authorizes. See FTC v. DirecTV, Inc., No.
15-cv-01129-HSG, 2017 WL 3453376, at *5 (N.D. Cal. Aug. 12, 2017) (rejecting defendant’s
efforts to make similar argument because the Court “explicitly declined to make any finding
whatsoever [in footnote three], much less one relevant to whether the FTC has authority to seek
restitution”). More importantly, the question of securities law Kokesh may be referring to
appears to turn in large part on the text of the Securities Act, namely the absence of any language
explicitly authorizing disgorgement. See Kokesh, 137 S. Ct. at 1641 (“The Act left the
Commission with a full panoply of enforcement tools: It may promulgate rules, investigate
violations of those rules and the securities laws generally, and seek monetary penalties and
injunctive relief for those violations. In the years since the Act, however, the Commission has
continued its practice of seeking disgorgement in enforcement proceedings.”); 15 U.S.C. § 77t
(West 2017); CFTC v. Hunt, 591 F.2d 1211, 1221–22 (7th Cir. 1979) (making this textual point
about the Securities Act). The Commodity Exchange Act, by contrast, explicitly authorizes
disgorgement and restitution:
In any action brought under this section, the Commission may
seek, and the court may impose, on a proper showing, on any
person found in the action to have committed any violation,
equitable remedies including-(A) restitution to persons who have sustained losses proximately
caused by such violation (in the amount of such losses); and
(B) disgorgement of gains received in connection with such
7 U.S.C. § 13a-1(d)(3) (West 2017). The court declines Reisinger’s invitation to abrogate this
text based on footnote three of Kokesh, which does not decide anything. The court remains
mindful of the Supreme Court’s warning that “[l]anguage in one statute usually sheds little light
upon the meaning of different language in another statute, even when the two are enacted at or
about the same time.” Russello v. United States, 464 U.S. 16, 24 (1983). The court follows
CFTC v. Hunt’s guidance (under a version of the Commodity Exchange Act that lacked the
explicit authority to order disgorgement and restitution) that the Act makes disgorgement and
restitution available as remedies in a CFTC enforcement action. Hunt, 591 F.2d at 1222–23
(holding that “a district court possesses the authority to order restitution pursuant to the
Commodity Exchange Act . . . [, and] a district court may compel a violator of regulations
promulgated under the trading limit provisions of the Commodity Exchange Act to disgorge his
illegally obtained profits”).
B. Funds Not in Violator’s Possession
Reisinger’s supplemental memorandum features a variant of the argument just discussed
built on the distinction between legal and equitable restitution explicated in Great-West Life &
Annuity Insurance Co. v. Knudson, 534 U.S. 204, (2002), an ERISA case. The plaintiffs there
claimed they were entitled to funds under the plan’s reimbursement provision that were “not in
respondents’ possession.” Id. at 214. Under a state court’s order approving a related settlement,
the funds had been paid to their attorney and a special needs trust for distribution to creditors. Id.
at 208, 214.
The plaintiffs sued under § 502(a)(3) of the Employee Retirement Income Security Act of
1974 (ERISA), which authorizes a plan participant to sue for injunctive relief and “to obtain
other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of
... the terms of the plan.” Id. at 209 (quoting 29 U.S.C. § 1132(a)(3) (1994 ed.)) (alterations in
original). The Supreme Court “explained that ‘appropriate equitable relief’ here means ‘those
categories of relief that, traditionally speaking (i.e., prior to the merger of law and equity) were
typically available in equity.’” Chesemore v. Fenkell, 829 F.3d 803, 811 (7th Cir. 2016) (quoting
CIGNA Corp. v. Amara, 563 U.S. 421, 439 (2011)) (alterations in original). The Court recently
summarized its reasoning in Great-West this way:
We explained that restitution in equity typically involved
enforcement of “a constructive trust or an equitable lien, where
money or property identified as belonging in good conscience to
the plaintiff could clearly be traced to particular funds or property
in the defendant’s possession.” Id., at 213. But the restitution
sought in Great–West was legal—not equitable—because the
specific funds to which the fiduciaries “claim[ed] an entitlement ...
[we]re not in [the defendants’] possession.” Id., at 214.
Since both the basis for the claim and the particular remedy sought
were not equitable, the plan could not sue under § 502(a)(3).
Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 657 (2016)
(alterations in original).
Reisinger points out that like the ERISA provision at issue in Great-West, the subsection
of the Commodity Exchange Act authorizing the CFTC to seek restitution and disgorgement
describes those remedies as “equitable relief.” 7 U.S.C. § 13a-1(d)(3) (West 2017). She
represents, and the CFTC agrees, that “[t]here is no evidence that Reisinger has the funds sought
in restitution . . .[, and she] does not have the funds sought in disgorgement;” she “claimed
reimbursement for expenses from [the funds sought in disgorgement] and used them to cover
such expenses.” (Def.’s Supplemental Mem. 3, ECF No. 220.) Hence, she reasons, the CFTC is
seeking legal rather than equitable restitution and disgorgement because the funds have passed
out of her possession, and so she no longer has any particular, identifiable funds on which to
impose a constructive trust. See Great-West, 534 U.S. at 213–14.
Reisinger’s analysis focuses too myopically on the use of the phrase “equitable remedies”
in § 13a-1(d)(3). As the Sixth Circuit explained in an unpublished case, “unlike the ERISA
provision at issue in [Great-West], § 13a-1(d)(3) expressly defines what restitution is included
within the scope of those equitable remedies.” CFTC v. Miklovich, 687 F. App’x 449, 453 (6th
Cir. 2017) (unpublished). Reading § 13a-1(d)(3) as only “authoriz[ing] an award of restitution
when the defendant was unjustly enriched or possessed identifiable funds subject to a
constructive trust or lien is untenable” in light of the “plain meaning” of its text. Id. (reasoning
that the reading Reisinger advances “contradict[s the text’s statement] that restitution may be
awarded to persons who sustained losses proximately caused by a violation of the CEA ‘in the
amount of such losses’” (citing CFTC v. U.S. Bank, N.A., No. 13-cv-2041-LRR, 2014 WL
6474183, at *36 (N.D. Iowa Nov. 19, 2014))). The magistrate judge in the report and
recommendation Reisinger touts as supplemental authority agreed with Miklovich’s reasoning,
quoted it extensively, and adopted it. See CFTC v. S. Trust Metals, Inc., No. 14-22739-CivKING/TORRES, 2017 WL 2875427, at *10–11 (S.D. Fla. May 15, 2017), report and
recommendation adopted 2017 WL 3835692 (S.D. Fla. Sept. 1, 2017). The magistrate judge
added that “several canons of construction” support Miklovich’s reasoning. Id. at *11.
Reisinger acknowledges that even her own case cuts against her, but she nonetheless
maintains that Kokesh undermines Miklovich and Southern Trust Metals’ reasoning. She points
to another portion of Southern Trust Metals’ analysis mentioning an Eleventh Circuit case with
which she claims Kokesh is inconsistent. Id. at *16 (citations omitted). The cited portion of
Southern Trust Metals concerns a different question, however: whether contempt is available to
enforce a restitution order, which turns out to be a complex issue involving the Federal Fair Debt
Collection Practices Act, legal and equitable restitution, and contempt powers. See Southern
Trust Metals, 2017 WL 2875427, at *16–19. The CFTC wants to obtain a restitution judgment
here, not enforce one. Regardless of what remedies are available to enforce a restitution order
(and the court implies nothing on that score), nothing in Kokesh diminishes the significance of
§ 13a-1(d)(3)’s plain language as recognized in Miklovich.
The court adds a canon of statutory construction of its own. As Southern Trust Metals
notes, at *11, Congress added the express grants of authority to order disgorgement and
restitution now codified at § 13a-1(d)(3) to the Commodity Exchange Act in 2010. See Dodd–
Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111–203, July 21, 2010,
124 Stat. 1376 § 744 (effective July 16, 2011). Congress thus legislated against the backdrop of
Great-West, adding significance to its choice to enact language broader than § 502(a)(3) of
ERISA. See Firstar Bank, N.A. v. Faul, 253 F.3d 982, 988 (7th Cir. 2001) (when it amends a
statute, “courts presume that Congress will use clear language if it intends to alter an established
understanding about what a law means” (citations omitted)); see also Porter v. Nussle, 534 U.S.
516, 528 (2002) (“This Court generally ‘presume[s] that Congress expects its statutes to be read
in conformity with th[e] Court’s precedents.’” (quoting United States v. Wells, 519 U.S. 482, 495
(1997)) (brackets in original)).
Based on the foregoing analysis, the court finds the reasoning of Miklovich, 687 F. App’x
at 453; Southern Trust Metals, 2017 WL 2875427, at *11; and U.S. Bank, 2014 WL 6474183, at
*36 persuasive. The plain language of § 13a-1(d)(3), as amended by the Dodd-Frank Act,
distinguishes it from § 502 of ERISA and Great-West. Under § 13a-1(d)(3), this court has the
authority to order restitution not just of particular, identifiable funds in the violator’s possession
but “to persons who have sustained losses proximately caused by [a] violation (in the amount of
such losses).” And disgorgement not just of specific, identifiable funds the violator has yet to
dissipate but “of gains received in connection with such violation.” 7 U.S.C. § 13a-1(d)(3)(A),
(B) (emphases added).
C. Statute Of Limitations
Reisinger also briefly mentions a statute-of-limitations argument under Kokesh. This
court ruled at summary judgment that § 2462’s five-year limitations period “governs the CFTC’s
civil penalty claims,” so “the CFTC’s civil penalty claims against Reisinger for conduct
occurring before June 29, 2006, are time-barred.” (Slip Op. at 12, 13 (July 18, 2013), ECF No.
67.) But, the court explained, “[d]etermining whether proposed remedies are penalties subject to
§ 2462 requires a ‘fact-intensive inquiry.’” Id. at 14 (quoting SEC v. Microtune, Inc., 783 F.
Supp. 2d 867, 884 (N.D. Tex. 2011)). The court concluded its analysis this way:
In this case, the court cannot determine which types of relief
should be considered penalties based on the facts at hand. Thus,
engaging with the parties’ argle-bargle as to what constitutes a civil
penalty is premature. The court has little basis on which to assess
Reisinger’s scienter, the egregiousness of her actions, and the
likelihood that she might commit violations of the Act in the
future. Therefore, although the court holds that the CFTC may not
seek civil penalties for violations that occurred before June 29,
2006, the court denies Reisinger’s motion for summary judgment
insofar as it argues that all of the CFTC’s claims constitute civil
penalties barred by the statute of limitations.
Id. at 15 (internal citation omitted). That is, the court left the door open for Reisinger to revisit
the limitations issue with the benefit of jury findings and the evidence introduced at trial.
Despite the open door, Reisinger made no mention of the statute of limitations in her response to
the CFTC’s motion for injunction (ECF No. 215). She devotes a single, conclusory sentence of
her supplemental memorandum to an assertion that the disgorgement and restitution the CFTC
seeks here are time-barred under Kokesh. 1 (See ECF No. 220 at 2.) By failing to argue at all that
the other remedies the CFTC seeks are time-barred, Reisinger has waived the issue as to them.
See, e.g., Kinslow v. Am. Postal Workers Union, Chicago Local, 222 F.3d 269, 276–77 (7th Cir.
2000) (“[T]he Union waived its statute of limitations argument by failing to develop it before the
district court.”). As for disgorgement and restitution, the court finds Reisinger’s one-sentence
argument to be too underdeveloped to preserve the issue. 2 See id.; see also, e.g., Beavers, 756
F.3d at 1059 (quoting Mahaffey, 588 F.3d at 1146); Damian v. Carey, No. 15 C 4335, 2017 WL
Reisinger makes a related but distinct argument that the court cannot order equitable restitution because it cannot
impose a constructive trust on funds not in her possession. (See Def.’s Supplemental Mem. 2–4.) The court
addresses this argument in its analysis of the CFTC’s request for restitution. See text infra at 9–12.
By way of example, Hunt, supra, relied on Securities Act cases “reasoning that disgorgement does not penalize,
but merely deprives wrongdoers of ill-gotten gains.” Hunt, 591 F.2d at 1222 (citations omitted). Kokesh’s
Securities Act holding that both remedies are penalties for § 2462 purposes may erode the ground on which Hunt’s
interpretation of the Commodity Exchange Act stands, but the court has no briefing before it on Hunt or the
Commodity Exchange Act. Nor does it have any post-trial briefing on the fact- and law-intensive inquiry required.
In reaching its holding, the Court in Kokesh canvassed judicial decisions, and the SEC’s actions and
pronouncements to decide: (1) the Securities Act was a “public law,” 137 S. Ct. at 1641; (2) that disgorgement “is
imposed for punitive purposes” under the Securities Act, id.; and (3) that “in many cases, SEC disgorgement is not
compensatory” id. at 1642. Reisinger discusses none of these issues as they apply to the Commodity Exchange Act,
and she cites no authority shedding light on them (or any authority other than Kokesh). (See Pl.’s Supplemental
Mem. 2.) The sentence just quoted from Hunt cuts against her on question two.
1178351, at *4 n.5 (N.D. Ill. Mar. 30, 2017) (holding defendants’ “refer[ence] to a brief
discussion” in prior decision didn’t preserve the issue).
D. Violations Established by Verdict and Default
Turning to the merits, violations of the Commodity Exchange Act have been established
here. See 7 U.S.C. § 13a-1(d)(3). The jury found that Reisinger violated the Commodity
Exchange Act and CFTC regulations, and ROF’s default admits liability based on the wellpleaded facts in the complaint, VLM Food Trading Int’l., Inc. v. Ill. Trading Co., 811 F.3d 247,
256 (7th Cir. 2016) (“[U]pon default, the well-pleaded allegations of a complaint relating to
liability are taken as true.” (quoting Dundee Cement Co. v. Howard Pipe & Concrete Prods.,
Inc., 722 F.2d 1319, 1323 (7th Cir. 1983))).
Without objection (see Trial Tr. 386, ECF No. 205) the CFTC introduced a summary
prepared by its investigator, George Malas (who also testified), of documents showing that ROF
paid Reisinger $153,355.04 in commissions and other payments. (Tr. Pl.s’ Ex. 120 at 1.) Malas
traced those funds to the NCCN pool. (See id.) Citing Malas’ summary, Reisinger points out
that he did not match each commission or payment with a trade in one of the NCCN commodity
pool’s fourteen sub-accounts. (See Resp. to Mot. for Inj. 11, ECF No. 215; see also Trial Tr. at
395:3–15, ECF No. 205 (cross examination); Tr. Pl. Ex. 120.) This left a gap in the proof,
according to Reisinger, because she “testified, without contradiction, that these funds were paid
from ROF in connection with the NCCN bond trading program, which is not part of this case.”
(Resp. to Mot. for Injunction 11, ECF No. 215.)
The law does not demand the punctiliousness on which Reisinger insists: “The amount of
disgorgement ‘need only be a reasonable approximation of profits causally connected to the
violation.’” SEC v. Michel, 521 F. Supp. 2d 795, 830–31 (N.D. Ill. 2007) (quoting SEC v. 1st
City Fin. Corp., 890 F.2d 1215, 1231 (D.C. Cir. 1989)); see also Hunt, 591 F.2d at 1223 (court
should “attempt to isolate the profits achieved” by the violator when ordering disgorgement).
Once the CFTC comes forward with evidence reasonably approximating the defendant’s profits
causally connected to the violation, “the burden shifts to the defendants to show that those
figures were inaccurate.” FTC v. QT, Inc., 472 F. Supp. 2d 990, 995 (N.D. Ill. 2007) (quoting
FTC v. Febre, 128 F.3d 530, 535 (7th Cir. 1997)). Malas’ summary (Tr. Pl. Ex. 120 at 1)
reasonably approximates Reisinger’s profits causally connected to the violations the jury found.
The lack of a trade-by-trade analysis connecting each commission or payment Reisinger received
to a corresponding trade gives the court some pause. Nevertheless, Reisinger admitted that she
“did receive round turns [commissions] on the NCCN commodity pool.” (Trial Tr., ECF No. 206
at 737:5.) Hence the only serious concern the lack of a trade-by-trade audit raises is the
possibility that the payments Malas summarized include commissions and payments for
unrelated bond trades.
But Reisinger has not pointed to competent evidence showing that possibility to be more
than speculative. While the jury heard evidence that NCCN was initially established to trade
bonds, Reisinger points to no competent evidence in her response that it traded bonds after the
commodity pool began operating—the period summarized by Malas (see Tr. Pl. Ex. 120 at 1)
Reisinger includes no citation to support her claim that her testimony established that the
disputed funds were related to bond trading. (See Resp. to Mot. for Inj. 11.) Though it is not
required to do so, the court has reviewed the entirety of Reisinger’s trial testimony, and try as it
might, it can find no support for her assertion. That is, Reisinger directs the court to no
competent evidence rebutting the CFTC’s reasonable approximation of her profits causally
connected to her violations.
After the CFTC began investigating her, Reisinger transferred the $153,355.04 to Donald
Caffray, an attorney through whose client trust account funds had been funneled. Caffray later
returned the money, but there is no evidence breaking the chain of causation linking the funds to
ill-gotten gains. Reisinger made a version of this argument to the jury. The jury did not buy it.
She argued, and testified, that Caffray was the only pool participant because the participants’
funds began their journey to the NCCN account by being deposited into his client trust account.
Later he forwarded the funds to be deposited in the pool account. Contrary to that argument, the
jury found that Reisinger was the commodity pool operator and that she had to register because
one or more participants’ involvement made the pool nonexempt.
Reisinger correctly observes that the CFTC has not pleaded a misappropriation claim.
Holding that the chain of causation was broken here because no misappropriation claim was
pleaded would create a perverse incentive for violators to spend customers’ money. See Hunt,
591 F.2d at 1223 (“[T]o allow a violator to retain the profits from his violations would frustrate
the purposes of the regulatory scheme.” (citations omitted)). Reisinger points to no evidence
suggesting that the participants consented to, much less knew of, Reisinger’s boomerang
transaction with their lawyer. On this record, then, the money Reisinger sent to Caffray that he
later returned remained ill-gotten gains from the whole affair.
Following the jury’s lead, the court will order Reisinger to disgorge her ill-gotten gains.
The CFTC’s request for disgorgement is granted. See QT, Inc., 472 F. Supp. 2d at 996 (“Having
made the strategic decision to expect the Court to find the FTC’s calculation inadequate,
Defendants[, who presented no evidence rebutting calculation,] must now live with the
consequences of that decision and will not be permitted to introduce new evidence.”).
The court comes at last to the CFTC’s request that the court order Reisinger to pay
$497,893.88 in restitution. “[T]he amount of restitution must be calculated as the difference
between what Defendants obtained and the amount customers have already received back.”
CFTC v. Ross, No. 09 C 5443, 2014 WL 6704572, at *3 (N.D. Ill. Nov. 26, 2014). Reisinger
says that the CFTC did not produce enough evidence that the funds deposited in the NCCN pool
account are traceable to customers’ deposits.
The trial record amply supported the jury’s implicit finding that the money in the NCCN
account was traceable to pool participants’ investments. Reisinger cites no evidence suggesting
that the funds in the NCCN account came from any source other than participants’ deposits. The
record amply supported the contrary conclusion implicit in the jury’s findings (see the next
paragraph). Emails from Reisinger, for example, demonstrate her consciousness that funds in the
pool account came from participants because she directed the return of funds in the account to
participants during the pool’s lifespan and when it was closed. Take the CFTC’s exhibit 105,
which is an email from a church asking about the return of its six-figure investment. Reisinger
notes that the email shows that the church’s money was sent to the NCCN account but not that it
was deposited. But it is reasonable to infer, in the absence of contrary evidence, that something
was received from the fact that it was sent, so the jury could, and implicitly did, infer that this
email shows that participants’ funds were in the NCCN account. See, e.g., Miller v. Pinson,
No. 94 C 2157, 1996 WL 596501, at *8 (N.D. Ill. Oct. 15, 1996) (inferring person received letter
based on testimony that it was sent because “[t]here was no evidence that Sheahan did not
receive [it]”). Because these funds are funds the pool participants sent to the pool but did not get
back, the court orders Reisinger to repay them. See Ross, 2014 WL 6704572, at *3.
The CFTC also renews its request for an order requiring ROF to pay $344,108.30 in
restitution to its investors. The court deferred the same request at summary judgment because
the imminent trial might have resulted in a liability finding inconsistent with requiring ROF to
pay restitution. (See Slip Op. at 4–5 (Sept. 2, 2015), ECF No. 102.) Now that the jury has
returned a verdict for the CFTC, that danger no longer exists, and Reisinger does not mention the
request directed to ROF in her response to the instant motion. The CFTC presented evidence at
summary judgment that the $344,108.30 represented the difference between the amount
deposited by ROF in the NCCN pool account and the amount it returned to investors. (See Slip
Op. at 4 (citing Malas Decl. ¶ 11).) Malas’ trial testimony bolstered that evidence, and the court
therefore grants the motion for restitution as to ROF.
III. CIVIL PENALTY
The CFTC moves the court to impose civil penalties of $3.12 million on Reisinger and
$1,041,793.02 on ROF. As applicable here, the Act authorizes the court to impose “on a proper
showing, . . . a civil penalty in the amount of not more than the greater of $100,000 or triple the
monetary gain to the person for each violation.” 7 U.S.C. § 13a-1(d)(1)(A) (West 2017). Under
its authority to adjust the maximum amount for inflation, the CFTC has determined that for
violations “[c]ommitted between October 23, 2004 and October 22, 2008,” the maximum civil
penalty to be “not more than the greater of $130,000 or triple the monetary gain to such person.”
17 C.F.R. § 143.8(a)(1)(i)(B) (West 2017)
A. The Maximum Penalty
The court first determines how to count violations when calculating the maximum civil
penalties allowed. In Slusser v. CFTC, 210 F.3d 783, 786 (7th Cir. 2000), the Seventh Circuit
held that “the penalty in an administrative prosecution is limited by the number of violations
alleged in the complaint times the maximum fine per violation.” The CFTC acknowledges that
this principle applies in this civil action (Slusser arose from an administrative proceeding before
the CFTC), and so it should because Slusser interpreted the subsection of the Act at issue here.
See id. This court has already determined that the five-year statute of limitations, see 28 U.S.C.
§ 2462, bars imposition of a civil penalty for conduct that occurred before June 30, 2006.
The parties disagree about whether each day after that date can be counted as a separate
violation authorizing a separate $130,000 penalty. The complaint alleges, and the jury found, six
violations, so Reisinger’s maximum penalty equals six times the $130,000, as Reisinger reads
Slusser. The CFTC counts 944 days between June 30, 2006, and January 30, 2008, when the
pool’s trading account was closed. Citing the complaint in this case (ECF No. 1) and CFTC v.
Levy, 541 F.3d 1102, 1111 (11th Cir. 2008), the CFTC submits that each of those days marked
six fresh violations for penalty purposes, so Reisinger’s maximum penalty equals $130,000 times
six violations per day times 944: $736,320 million. The CFTC compares its $3.12 million
penalty request to that figure to show that it makes a relatively modest request equivalent to four
of the 944 days’ penalties to which Reisinger was exposed. (See Mot. for Inj. 16–17, ECF No.
The counting dispute in Levy stemmed from the fact that the CFTC’s complaint pleaded
five violations in a one-count complaint charging the defendant with solicitation fraud. See Levy,
541 F.3d at 1110. The proof at trial showed, and the district court found, that the defendant
victimized five different people. See Levy, 541 F.3d at 1104, 1106–09. The defendant cited
Slusser to argue that the single count capped the allowable civil penalty at the maximum for one
violation, but the Eleventh Circuit disagreed. See id. at 1110–11. It explained that unlike the
complaint in Slusser, “the CFTC did not charge Levy with only one violation, but rather made
explicit on the face of its complaint that ‘[e]ach material representation and omission of UIG and
its APs, including ... those specifically alleged [in the complaint], is a separate and distinct
violation of’ the CEA.” Id. at 1111 (quoting complaint, alterations in original). Because that
language adequately notified the defendant that he faced allegations of five separate violations
under the heading of a single count, it upheld the imposition of a penalty computed by
multiplying the inflation-adjusted cap by five. Id.
Like the Slusser and Levy courts, this court looks to the complaint to determine how
many violations it gives the defendants fair notice of. See Slusser, 210 F.3d at 786 (“A
reasonable person in Slusser’s position would have assumed that his maximum exposure was
$600,000 and financed his defense accordingly.”). The court separates Counts I–III of the
complaint from Counts IV–VI. The first three counts enumerate seven identical
misrepresentations, omissions, or statements of material fats. (See Compl. ¶¶ 67, 72, 77.)
Counts I–III each include an allegation similar to the complaint in Levy that “[e]ach
misrepresentation and/or omission of material fact and each false account statement, including
but not limited to those specifically alleged herein, is alleged as a separate and distinct
violation . . . .” (Compl. ¶¶ 70, 75, 80.) Counts IV–VI charge the defendants with violations of
the Act and Regulations related to acting as commodity pool operators without registering.
These counts use different language to characterize what the CFTC claims are separate
violations: “[e]ach use of the mails or a means or instrumentality of interstate commerce”
(Compl. ¶ 84 (Count IV)); “[e]ach invalid claim to exemption from the requirement to register”
and “[e]ach failure to give notice of the invalidity of her claimed exemption from the
requirement to register as a CPO” (Compl. ¶¶ 91, 92 (Count V)); and “[e]ach failure to furnish
annual reports and/or monthly account statements” (Compl. ¶ 97 (Count VI)).
As this recital makes clear, the complaint alleges multiple violations per count, but it does
not tie them to each passing day in so many words or by implication. As in Slusser, “it would
have been easy to separate the events into tens if not hundreds of violations, or to allege that each
day of managing the funds without registration as a commodity pool operator was a separate
violation. But the CFTC’s staff did not do any of these things . . . .” Slusser, 210 F.3d at 786.
The language of the CFTC’s complaint here could be canvassed to determine how many
violations each count alleges. The seven misrepresentations in Counts I–III might be multiplied
by three, or the number of months in the five-year limitations period might be appropriately
computed to determine how many violations Count VI alleges. But the CFTC does not attempt a
count-by-count analysis, so the court will not either. See, e.g., Johnson v. City of Chicago, 142
F. Supp. 3d 675, 694 (N.D. Ill. 2015) (“it is not this court’s job to make arguments or marshal
evidence for represented parties” (quoting Nat’l Inspection & Repairs, Inc. v. George S. May
Int’l Co., No. 03 C 5529, 2008 WL 4389834, at *1 (N.D. Ill. Sept. 24, 2008))). The court instead
treats the complaint like the complaint in Slusser. It gave Reisinger fair notice that she faced
$780,000 (six times $130,000) in penalties.
Dicta in Slusser buttresses the court’s conclusion. The Slusser court suggested that the
CFTC may not have alleged that each day running the pool without registering as a CPO marked
a fresh violation “perhaps because 7 U.S.C. § 13b implies that fines for each day of a series of
violations are appropriate only after the CFTC has issued a cease-and-desist order.” Slusser, 210
F.3d at 786. The briefing does not discuss § 13b. Still, Slusser’s dictum on it provides the court
with further reason not to accept the CFTC’s position that the complaint charged Reisinger with
six violations occurring on each of the 944 days in the limitations period.
B. The Appropriate Penalty
The amount of a civil penalty “must . . . be ‘rationally related to the offense.’” CFTC v.
Li, No. 15 C 5839, 2016 WL 8256392, at *8 (N.D. Ill. Dec. 9, 2016) (quoting Monieson v.
CFTC, 996 F.2d 852, 864 (7th Cir. 1993)). At least three factors guide the inquiry: “(1) the
nature of the violations, (2) the injury caused by the violations, and (3) penalties used in similar
cases.” Id. (citing Monieson, 996 F.2d at 864).
1. Ability to Pay
Reisinger also asks the court to consider her ability, actually her inability, to pay. She
submits a declaration stating that she is unemployed and has a negative net worth of $37,000
(See Reisinger Decl. 1, ECF No. 215-4.)
In Brenner v. CFTC, 338 F.3d 713, 723 (7th Cir. 2003), a case arising from a CFTC
administrative enforcement action, the Seventh Circuit held that “the financial worth of the
defendant or the collectability of any fine are no longer relevant considerations” when
calculating a penalty. The Brenner court based its holding on Congress’ 1992 amendment to the
Commodity Exchange Act’s list of factors the Commission must consider when imposing a
penalty. Id. By its terms, this portion of the Act prescribes what “the Commission shall
consider.” 7 U.S.C. §9a(1) (West 2017). No comparable list exists in the portion of the Act
authorizing the court to impose civil penalties; the subsection empowering the court authorizes a
penalty “on a proper showing.” 7 U.S.C. § 13a-1(d). Reisinger cites out-of-circuit district court
cases relying on this textual difference and the legislative history of the Futures Trading
Practices Act of 1992, Pub. L. No. 102-546, § 209, 106 Stat. 3590, 3606-07 (1992), to conclude
that courts, unlike the Commission, retain discretion to consider a defendant’s ability to pay a
penalty. See, e.g., CFTC v. King, No. 3:06-CV-1583-M, 2007 WL 1321762, at *5 & n.4 (N.D.
Tex. May 7, 2007) (collecting much of the authority on which Reisinger relies).
The court finds King’s reasoning persuasive. Two cases in this district cite Brenner to
hold that a defendant’s ability to pay should not be considered when a court imposes a penalty
under § 13a-1(d)(1). But neither grapples with the textual differences between §§ 9a and 13a1(d)(3) or the legislative history of the 1992 amendment to the Commodity Exchange Act. See
Li, 2016 WL 8256392, at *8 n.7; CFTC v. Sarvey, No. 08 C 192, 2012 WL 426746, at *6 n.8
(N.D. Ill. Feb. 10, 2012); see also Aurifex Commodities Research Co., No. 1:06-CV-166, 2008
WL 299002, at *12 (W.D. Mich. Feb. 1, 2008) (same; out-of-circuit). That history reveals that
by eliminating the statutory requirement that the CFTC consider a person’s ability to pay,
Congress hoped to eliminate litigation it deemed “a burden on the Commission’s enforcement
program.” King, 2007 WL 1321762, at *5 n.4 (quoting H.R. Rep. No. 102-6, at 55–56 (1991)).
It chose language–“the Commission shall”—suited to that purpose, § 9a(1), and the court
declines to stretch that language further than its plain meaning.
The CFTC suggests that imposing too small a penalty will not deter Reisinger or future
offenders. (Reply 7 n.2, ECF No. 216.) Allowing a person’s ability to pay to enter the mix does
not make it dispositive, however. Considering a violator’s ability to pay merely allows the
penalty to fit the wrong and the wrongdoer. See King, 2007 WL 1321762, at *6 (imposing
$449,000 (10% of $4.5 million gain) penalty because violator was insolvent and was ordered in
criminal case to pay $4.5 million in restitution); CFTC v. AVCO Fin. Corp., 28 F. Supp. 2d 104,
121 (S.D.N.Y. 1998) (imposing $5,000 penalty because “[i]n fixing any civil monetary penalty,
courts should be realistic and not set a figure which is impossible for a defendant to comply with
due to lack of monetary resources”), aff’d in part, rev’d in part on other grounds, 228 F.3d 94
(2d Cir. 2000). Allowing the penalty to fit the violator’s unique circumstances can and does
promote respect for the law rather than detract from it, furthering the statute’s remedial and
deterrence goals. Cf. Gall v. United States, 552 U.S. 38, 54 (2007) (finding supportable district
judge’s conclusion at criminal sentencing that “a sentence of imprisonment may work to promote
not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh
punishment without taking into account the real conduct and circumstances involved in
sentencing”); See Li, 2016 WL 8256392, at *10 (considering whether “unique circumstances”
alleged to exist by violator warranted decreasing penalty).
2. The Nature of Reisinger’s Violations and the Harm to Customers
The violations the jury found encompass fraud and failing to register as a CPO.
Reisinger attempts to minimize them as regulatory, framing them as though she just filed a tardy
and inaccurate form, but they are serious.
For instance, the jury found for the CFTC on allegations Reisinger misrepresented to pool
participants that a $5 million minimum was required to participate, and she never disclosed fee
payments to a foreign introducing broker. See Slusser, 210 F.3d at 785 (evidence supporting
finding of fraud included fact that CPO, who never registered, “lied to [a participant] when he
promised to manage the funds according to the prospectus”). By evading the registration
requirement, Reisinger evaded the need to send disclosures and monthly statements that may
well have alerted pool participants to what she was doing and to the fact that they were
participating in a pool with much different characteristics than the $5 million minimum implied.
Hence even if the court accepts Reisinger’s contention that no customer harm was proven (nor
was any necessary, see Slusser, 210 F.3d at 745–46 (reliance unnecessary to establish fraud
under the Act)), the seriousness of these violations cannot be gainsaid by analogy to
recordkeeping violations that hurt no customers. Cf. CFTC v. New World Holdings, LLC, No.
10-cv-4557, available in this record at ECF No. 215-2, Ex. B (recordkeeping violations against
Reisinger settled by consent order for $50,000 in penalties).
3. Analogous Cases and Determination
The CFTC cites several fraud and failure-to-register cases in which courts recently
imposed sizable penalties ranging from one to three times the violator’s financial gains. See
Reply 7. From these cases, the court takes the point that penalties are often tied to the violator’s
financial gain where, as here, the gain exceeds the per-violation cap. See CFTC v. Sarvy, No. 08
C 192, 2012 WL 426746, at *6 (N.D. Ill. Feb. 10, 2012) ($5 million penalty equaling twice
financial gain in case involving broker misconduct).
After considering the applicable factors and Reisinger’s negative net worth, the court
imposes a civil penalty of $64,124, or 10% of the financial gain Reisinger realized. See King,
2007 WL 1321762, at *6 (imposing penalty of 10% of financial gain). In so doing, the court
observes that while Reisinger is unemployed, the record provides no reason to suppose that she is
The CFTC also asks the court to impose a $1,041,793.02 penalty against ROF. This
amount represents triple the amount of ROF’s disgorgement. (Mot. Inj. 16, ECF No. 211).
Unlike Reisinger, ROF’s failure to respond leaves the court with no reason not to impose the
requested penalty. See Li, 2016 WL 8256392, at *10. The court grants the CFTC’s request for a
penalty as to ROF.
V. INJUNCTION AND TRADING BAN
The court grants the CFTC’s request for a permanent injunction. Because the injunction
the CFTC seeks here is a statutory creation, the CFTC need only establish a violation and “that
there is some reasonable likelihood of future violations.” Hunt, 591 F.2d at 1220 (citations
omitted) (noting that ordinary requirements for an injunction do not have to be satisfied). The
jury’s findings establish violations, so the court asks whether the CFTC has shown a reasonable
likelihood that Reisinger will violate the Act in the future. See id.
Reisinger asks the court to tailor the injunction to the particular violations proven at trial.
She states that “[a]n injunction against engaging in any activity requiring registration in the
future would be far broader than the violations that were found and would unfairly deprive
Reisinger of the ability to continue to act as a broker, where she has had no violations.” (Resp.
to Mot. Inj. 8, ECF No. 215.) While Reisinger has had no adjudicated violations as a broker, she
asks the court to treat the agreed civil penalty entered against her in New World Holdings, supra,
as an analogous penalty. New World Holdings was an enforcement action against Reisinger and
others for recordkeeping violations; she worked as a broker at the time.
As the court sees it, the entry of the consent order (ECF No. 215-2, Ex. B) in New World
Holdings demonstrates Reisinger’s propensity to violate the Act again, so a trading ban,
registration ban, and injunction covering future violations of the Act are warranted. In opposing
injunctive relief Reisinger reprises several arguments the court has already addressed. Her
insistence that the violations the jury found were “isolated regulatory violations” (Resp. to Mot.
for Inj. 8, ECF No. 215) further convinces the court that she does not appreciate the seriousness
of her conduct, making repetition more likely. The CFTC’s request for injunctive relief is
granted in its entirety.
For the reasons stated, Reisinger’s motion for judgment as a matter of law or for new trial
(ECF No. 200) is denied. The CFTC’s motion for injunction (ECF No. 211) is granted in part
and denied in part. The court orders: Reisinger is permanently enjoined from committing
further violations of the Act and its implementing regulations, acting in any capacity that
requires registration with the Commission or an exemption from registration, and trading any
commodity interests for herself or on behalf of others; Reisinger to disgorge $153,355.04; ROF
to disgorge $344,108.30; Reisinger to pay $497,893.88 in restitution; Reisinger to pay a civil
penalty of $64,124.00; and ROF to pay a civil penalty of $1,041,793.02. The CFTC’s requests
for an award of prejudgment interest and to hold Reisinger liable for ROF’s violations of the Act,
disgorgement and civil monetary penalty are also granted.
The CFTC is directed to submit a proposed order and final judgment on or before
October 3, 2017.
Date: September 19, 2017
Joan B. Gottschall
United States District Judge
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