Bass, Berry & Sims attorney Chris Lazarini commented on a case in which a former commodities broker appealed a decision ordering him to pay restitution to his former firm which had made its customers whole after the broker's unauthorized trades caused them to incur losses. On appeal, the broker argued, for the first time, the district court erred in directing him to make legal restitution of the losses incurred, as opposed to equitable restitution of his unlawful gains. The Sixth Circuit affirmed the summary judgment award, finding the broker waived his arguments on the distinction between legal and equitable restitution by not making them below and finding no exceptional circumstances justifying a deviation from the waiver rule.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication.

CFTC vs. Miklovich, No. 15-4426 (6th Cir., 4/19/17) 

*Arguments not raised at the district court level are deemed waived on appeal.

**Courts may deviate from appellate waiver in exceptional circumstances, such as where necessary to prevent a miscarriage of justice or to promote finality of litigation. 

In 2013, commodities broker Miklovich placed multiple unauthorized futures trades in the accounts of two customers, causing them $566,000 in losses. After terminating him, his former firm unwound the transactions and made its customers whole. The CFTC brought an enforcement action against Miklovich and, following discovery, the district court granted summary judgment for the CFTC, ordering Miklovich to make full restitution to his former firm, fining him $100,000, and permanently enjoining him from committing future violations of the commodity laws (SLA 2015-40). 

Miklovich seeks to appeal the restitution award, arguing that the district court erred in directing him to make legal restitution of the losses incurred, as opposed to equitable restitution of his unlawful gains (which, he claimed, were not established below). Noting the absence of even a colorable argument about the distinction between legal and equitable restitution below, the Court deems the arguments waived. Miklovich asks the Court to exercise its discretion and consider his forfeited arguments anyway because, he argues, the remedies set out in 7 U.S.C. §13a-1(d) are "beyond doubt" and allowing the legal restitution award to stand would cause a "miscarriage of justice."

The Court disagrees. First, the plain language of the statute provides for various remedies, including (1) "restitution to persons who have sustained losses proximately caused by the violation (in the amount of the losses)" and (2) disgorgement of gains. It is nonsensical, therefore, to read the statute as limited solely to equitable restitution. Second, allowing Miklovich to make his forfeited argument is contrary to the concept of promoting finality to the litigation because the CFTC did not have the opportunity in the district court to prove a basis for equitable restitution if Miklovich prevailed on the arguments raised for the first time on appeal. Finding no exceptional circumstances militating against the waiver finding, the Court affirms the award of summary judgment.