This is the second part of a two-part article discussing a defendant’s Seventh Amendment right to jury in an enforcement action by the Commodity Futures Trading Commission under the Commodity Exchange Act for civil monetary penalties. Part I analyzed existing Supreme Court cases regarding the scope of the right to jury in regulatory enforcement cases. It concluded that the existing cases should expand the right to include a jury determination of the amount of civil penalty. It proposed that defendants in CEA enforcement actions make a jury demand notwithstanding existing case law. In Part II, so that juries can be properly instructed, the article examines lower court cases where courts have determined the amounts of civil penalties for violations of the Commodity Exchange Act. It concludes that the law is in disarray and the decisions are inconsistent. It proposes that juries use a new method for determining civil penalties under the CEA that is organically related to the conduct regulated by the statute.
I. EXISTING CASE LAW DETERMINING THE NUMBER OF VIOLATIONS OF THE CEA
Part I of this Article concluded that the Seventh Amendment right to jury should be expanded in enforcement cases in federal court for alleged violations of the Commodity Exchange Act, 7 U.S.C. §§ 1-26 [hereinafter “CEA”], to include not just whether the defendant violated the statute but also the amount of the civil penalty. If juries are going to determine the amount of the civil monetary penalty, they must be properly instructed. Unfortunately, the case law is in disarray.
Subsection (A) of § 13a-1(d)(1) of the CEA states “on a proper showing” a civil penalty should be assessed of not more than the greater of $182,031 (adjusted for inflation) or triple the monetary gain to the defendant “for each violation.” The CEA provides no guidance, however, on what constitutes a “proper showing” or what constitutes “each” violation. As one court notes the CEA does not “provide any instruction to the district courts as to the appropriate considerations in assessing a civil penalty under 7 U.S.C. § 13a-1.”[1] In § 13a-1(d) cases, courts consider certain factors that are or were included in CEA § 9a even though § 9a does not apply to actions in federal court.[2] These factors include the gravity of the offense, the defendant’s net worth, and collectability of the fine.[3] Courts also consider certain factors developed judicially; such as, the impact of the violations on the victims, the relationship of the violation to the regulatory purpose of the CEA, and whether the amount is rationally related to the offense.[4]
As to how to determine the number of violations, the CFTC has argued inconsistent positions depending on what is most advantageous under the circumstances of each case instead of adopting a principled approach. Courts have been asked to determine the number of violations based on (i) the counts in the CFTC’s complaint;[5] (ii) the victims;[6] (iii) the days the violative conduct continued;[7] (iv) the gain to the defendant;[8] and (v) the types of illegal behavior by the defendant.[9] In one non-manipulation case, the CFTC argued that an arbitrary $1 million surcharge should be imposed.[10]
The result is that a defendant’s exposure is totally unpredictable and there is no consistency among the civil monetary penalties actually imposed. For example, at one end of the spectrum, in CFTC v. Fluery, [11] the district court assessed a civil penalty in the amount of the statutory minimum for one violation ($120,000 at the time) because it found there was a single fraudulent scheme even though the evidence showed defendants operated a public website for a “significant period of time” through which they defrauded “numerous” investors resulting in a $3.2 million gain to the defendants. In another case, CFTC v. King,[12] the court set the civil penalty at 10% of the gain to the defendant (10% of $4.5 million) based on his inability to pay even though at least 60 customers were defrauded of $9 million. At the other end of the spectrum, in CFTC v. Gramalegui,[13] the court assessed a civil penalty based on triple the gain to the defendant ($480,690 X 3 = $1,442,070) because he “committed literally hundreds of individual violations of the CEA” where he fraudulently solicited numerous customers by misrepresenting the risks and performance of his trading system. In Fleury the court had discretion to find that solicitation of each customer via the website constituted a separate violation and could have assessed the penalty at the minimum statutory amount times the number of customers, or it could have trebled the $3.2 million gain to the defendants. Or, in Gramalegui the court had discretion to find that there was a single scheme and could have assessed a penalty of only the statutory minimum (about $175,000) instead of $1.4 million. This disparity in method and uncertainty of outcomes would not be tolerated in criminal sentencing. Further, the lack of uniformity is unfortunate because defendants should be able at the outset of a case to estimate their maximum exposure and rationally decide whether to settle the charges or plan their defense accordingly.[14]
Two Circuit Courts of Appeals have identified the problem of determining the number of violations of the CEA but neither really devised a specific methodology based on the statute. In Slusser v. CFTC,[15] the Seventh Circuit vacated a CFTC administrative decision that assessed a $10 million civil penalty.[16] The complaint contained six counts and charged one violation per count.[17] The appellate court vacated the civil penalty, but instead of demonstrating how to calculate the correct amount the appellate court remanded the case to the agency for “proceedings consistent with this opinion.” While helpful in understanding the complexity of the issue, the appellate court’s opinion does not offer a specific solution.
[T]here is a serious problem with the $10 million fine. … The maximum penalty [at the time under 7 U.S.C. § 9(3) was] $100,000 per violation. The complaint filed by the Division of Enforcement listed only six violations. Most of the violations narrated by the complaint entail multiple acts or statutes; 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, …. Just as the sentence in a criminal case is limited by the number of counts alleged in an indictment times the maximum punishment for each offense, so the penalty in an administrative prosecution is limited by the number of violations alleged in the complaint times the maximum fine per violation. A reasonable person in Slusser’s position would have assumed that a maximum exposure was $600,000 and financed his defense accordingly.
*** The statutory cap applies person-by-person, as well as violation-by-violation, so the CFTC may be able to justify a total penalty as high as $1.8 million [3 X the maximum per violation] ….[18]
In CFTC v. Levy,[19] the complaint contained only one count but the CFTC alleged multiple specific misrepresentations made to numerous particular customers, and then further alleged that “[e]ach material representation and omission [by the defendant firm and its representatives], including, but not limited to, those specifically alleged herein, is a separate and distinct violation [of the CEA].” Five customers actually testified at a bench trial,[20] and the district court found that the defendant violated the CEA twenty-five times—five misrepresentations to each testifying customer.[21] Defendant argued that the district court was limited to imposing a civil penalty of one-time the maximum amount ($120,000) because there was only one count in the complaint. The CFTC advocated the penalty should be imposed based on all of the victims instead of just the five who testified. [22] The district court imposed a penalty of five times the maximum amount ($600,000), electing to treat all misrepresentations made to one customer as a single violation.[23] The appellate court affirmed the amount of the civil penalty because it was “rationally related and proportionate to [defendant’s] multiple offenses and the undeniable need to deter him from committing similar violations in the future.”[24]
In sum, even though the CEA specifies a dollar range of civil penalty that should be imposed for each violation, neither the CFTC nor the lower federal courts have adopted a consistent method for determining the number of violations proved. Consequently, the defendants’ exposure is unknowable at the commencement of the action and the civil penalties actually imposed by the lower federal courts are inconsistent.
II. DETERMINING THE NUMBER OF CEA VIOLATIONS BASED ON CATEGORIES OF CONDUCT REGULATED BY THE ACT
Both Slusser and Levy agree that the determination of the violations and the amount of civil penalty should be based on—and is limited by—the number of violations of which a defendant is fairly put on notice by the complaint. This is certainly a good start but the problem is that the defendant’s exposure becomes a function of the drafting prowess of the CFTC and is not necessarily anchored to the misconduct proven at trial.
Instead, the number of violations of the CEA should be organically related to the conduct regulated by the statute. In a customer protection case, the jury (or for now the judge) should determine the number of violations of the CEA by asking the following questions related to the types of behaviors regulated by the CEA:
(1) Was the defendant properly registered to engage in the activities?
(a) providing trading advice for a fee without being registered;
(b) improperly claiming an exemption from registration;
(c) being registered in one category (such as, an associated person of a futures commission merchant) but acting without registration in another category (such as, a commodity pool operator).
(2) Did the defendant employ fraudulent means to obtain funds from the investors?
(a) oral or written misrepresentations relating to qualifications, past performance, risks of trading, or the commodities to be traded;
(b) omission(s) of material facts;
(c) unlawful use of websites;
(d) high pressure tactics.
(3) Did the defendant apply the investor’s funds in the way he said he would?
(a) depositing all funds with a futures commission merchant;
(b) not commingling customer funds with each other or the defendant’s funds;
(c) not misappropriating funds for personal use;
(d) not overcharging customers;
(e) only trading the commodities authorized by the customer;
(f) only trading strategies approved by the customer.
(4) Did the defendant properly account for the investor’s funds?
(a) maintain all required books and records;
(b) provide investors with complete, timely and accurate reports of profits and losses;
(c) respond promptly to CFTC inquiries and produce required documents.
Assuming the complaint gives the defendant reasonable notice, if the evidence at trial shows the defendant was not registered, falsely represented the risk of investing, traded pork bellies instead of US treasury bonds, and lied to investors about losses, the jury (or judge) should find that there are four violations—not hundreds of violations. The number of victims, the amount of money obtained, how long the activity lasted, the defendant’s profits, or how many victims testified should be considered as aggravating or mitigating factors but not as separate violations.
For example, assume in one case Defendant A was not registered and fraudulently solicited $5 million from one wealthy investor by misrepresenting the risk of trading S&P futures. Three million dollars was lost trading in the S&P market including $100,000 in commissions paid to Defendant A. In another case, Defendant B was registered and legally solicited $5 million of customer funds from 100 victims by promising to trade Eurodollar options, but instead he misappropriated the money to build a home for himself. Irrespective of how many counts the complaint contains, Defendant A should be found to have committed two violations and assessed a civil penalty in the range of $300,000 – $363,063, representing triple the gain to Defendant A (3 X $100,000) or two times the statutory per violation minimum of $182,031. Defendant B should be found to have committed one violation and assessed a civil penalty in the range of $182,031 – $15 million, representing the statutory per violation minimum for one violation of $181,031 or triple the gain to Defendant B (3 X $5 million). As aggravating or mitigating factors, the jury (or judge) should consider the number of victims, the losses to the customers, and the length of time, to determine the appropriate penalty within the statutory range. Since Defendant B’s conduct injured more victims and he misappropriated customer money for personal use, it might be reasonable to assess his penalty closer to the high end of the statutory range even though there is only one violation, while Defendant A’s penalty might be toward the low end of the range because the extra violation of failure to register did not really cause additional losses to the investor and the amount of the commissions charged may not necessarily be excessive. In any event, with this method the range of statutory civil penalties and the defendant’s exposure can reasonably be estimated at the outset of the case and a rational choice can be made by both the defendant and the CFTC as to the appropriate resources to be dedicated to prosecution or defense of the matter.
III. CONCLUSION
Federal district courts should grant a jury request not only as to liability for violating the CEA but also as to a determination of the amount of civil monetary penalty. Juries should be instructed to determine the number of violations of the CEA with reference to the categories of conduct regulated by the CEA. Other factors may be considered as mitigation or aggravation within the statutory range of civil penalty for each violation but should not constitute a basis for counting the number of violations. Allowing properly instructed juries to determine whether the CEA was violated, how many times the CEA was violated, and the amount of civil penalty per violation, will make results more uniform, serve the deterrent purpose of the Act, and preserve the right to jury in the Seventh Amendment.
[1] CFTC v. King, No. 3:06-CV-1583-M, 2007 WL 1321762, at *5 (N.D. Tx. May 7, 2007).
[2] 7 U.S.C. § 9a, Assessment of Money Penalties, provides certain factors for the CFTC to consider in setting a civil penalty in an administrative proceeding. Section 9a does not apply to actions in federal district court. Brenner v. CFTC, 338 F.3d 713, 722 (7th Cir. 2003); CFTC v. Reisinger, No. 11-CV-08567, 2017 WL 4164197, at *19 (N.D. Ill. Sept. 19, 2017); CFTC v. King, No. 3:06-CV-1583-M, 2007 WL 1321762, at *5 (N.D. Tx. May 7, 2007).
[3] See cases cited supra at n.47.
[4] Id., see also CFTC v. McDonnell, 332 F. Supp. 3d 641,727-728 (E.D.N.Y. 2018).
[5] CFTC v. Levy, 541 F.3d 1102 (11th Cir. 2008); CFTC v. Reisinger, No. 11-CV-08567, 2017 WL 4164197 (N.D. Ill. Sept. 19, 2017).
[6] CFTC v. Fluery, 479 Fed. Appx. 940 (11th Cir. 2012); CFTC v. Yorkshire Group, Inc., No. 13-CV-5323 (AMD)(ST), 2016 WL 8256380 (Aug. 19, 2016); CFTC v. Gutterman, No. 12-21047-CIV, 2012 WL 2413082 (Jun. 26, 2012).
[7] CFTC v. Fluery, 479 Fed. Appx. 940 (11th Cir. 2012); CFTC v. Reisinger, No. 11-CV-08567, 2017 WL 4164197 (N.D. Ill. Sept. 19, 2017).
[8] CFTC v. Gramalegui, No. 15-CV-02313-REB-GPG, 2018 WL 4610953 (D. Colo. Sept. 26, 2018); CFTC v. McDonnell, 332 F. Supp. 3d 641 (E.D.N.Y. 2018); CFTC v. King, No. 3:06-CV-1583-M, 2007 WL 1321762 (N.D. Tx. May 7, 2007).
[9] Slusser v. CFTC, 210 F.3d 783, 786-787 (7th Cir. 2000); CFTC v. Reisinger, No. 11-CV-08567, 2017 WL 4164197 (N.D. Ill. Sept. 19, 2017).
[10] CFTC v. Gramalegui, at *28.
[11] CFTC v. Fluery, No. 03–61199–CIV, 2010 WL 3835134 at *2 (Sept. 29, 2010), affirmed 479 Fed. Appx. 940, 944 (11th Cir. 2012).
[12] CFTC v. King, No. 3:06-CV-1583-M, 2007 WL 1321762 (N.D. Tx. May 7, 2007).
[13] CFTC v. Gramalegui, No. 15-CV-02313-REB-GPG, 2018 WL 4610953, at *28 (D. Colo. Sept. 26, 2018).
[14] See Slusser v. CFTC, 210 F.3d 783, 786-787 (7th Cir. 2000) (“A reasonable person in Slusser’s position would have assumed that his maximum exposure was $600,000 and financed his defense accordingly.”)
[15] Id.
[16] Slusser was reviewing a civil penalty under 7 U.S.C. § 9(3) assessed in an administrative proceeding and not on direct review from the district court assessed under CEA § 13a-1(d), which is the subject of this article. Nevertheless, the appellate court’s discussion is useful in this context and is cited in later cases determining the civil penalty under § 13a-1(d).
[17] Id. at 786.
[18] Id.
[19] CFTC v. Levy, 541 F.3d 1102 (11th Cir. 2008).
[20] These five customers lost $146,350. Id. at 1109.
[21] Id. at 1112 n.9.
[22] Id. at 1112 n.7.
[23] Id.
[24] Id. at 1113.
