UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
_______________________________ : In the Matter of : CFTC Docket No. SD 93-2 : MICHAEL J. CLARK : ORDER _______________________________:
Respondent Michael J. Clark seeks reconsideration of our Opinion and Order of April 22, 1997. In that decision, the Commission revoked Clark's floor broker registration. Respondent also seeks a stay of this sanction pending the Commission's consideration of his motion for reconsideration or review by a court. The Division of Enforcement ("Division") opposes both motions.
Commission Rule 10.106, which authorizes petitions for reconsideration, provides in pertinent part that:
Any petition filed under this subsection must be confined to new questions raised by the opinion or order and concerning which the petitioner had no opportunity to argue before the Commission.
17 C.F.R. 10.106 (1997).
In his motion, Clark raises numerous grounds for reconsideration. First, he contends that several of the Administrative Law Judge's ("ALJ's") procedural rulings, as affirmed by the Commission, are erroneous. Specifically, he argues that the ALJ improperly excluded the testimony of one witness (Jay Israel, a former NYMEX attorney) and denied Clark's request to reopen the record to admit the testimony of another witness (Robert Anderson, a former NYMEX investigator). Additionally, Clark contends that the Commission should have reversed the ALJ's credibility finding concerning the testimony of a third witness (James Morrissey, a NYMEX investigator who testified on behalf of the Division). These aspects of respondent's request for reconsideration of our liability analysis merely ask us to reweigh the evidence and arguments that we previously considered. Therefore, reconsideration of our Opinion and Order concerning these matters is denied.
Clark also contends that the Commission should review evidence outside the record which Clark had attached to his motion. This evidence includes the transcript of testimony taken at Clark's hearing before the NYMEX Adjudication Committee in In re Clark, NYMEX Docket No. 90.02 (Jan. 18, 1991), and affidavits of two former clerks for the futures commission merchant ("FCM") that cleared Clark's trades. According to Clark, this extra-record evidence shows that NYMEX officials tampered with evidence and testimony during the exchange hearing in order to establish Clark's alleged recordkeeping violations. We find that these issues are irrelevant because the Commission's findings concerning the wrongdoing alleged in NYMEX Docket No. 90.02 were based on the testimony and exhibits introduced during the hearing before the ALJ, rather than on the NYMEX decision to which the ALJ had refused to give collateral estoppel effect.
Finally, Clark requests reconsideration contending that the Commission improperly included all nine exchange disciplinary actions as a basis for finding "other good cause" under Section 8a(3)(M) of the Commodity Exchange Act, 7 U.S.C. 12a(3)(M) (1994), to revoke his floor broker registration and that the Commission improperly applied the doctrine of collateral estoppel to the decision of the NYMEX Adjudication Committee in NYMEX Docket No. 90.02. Both of these grounds for reconsideration are based on respondent's misreading of the Commission's Opinion and Order. The Commission's conclusion that there was "other good cause" to revoke respondent's floor broker registration was based on its finding that Clark "had been involved in a pattern of exchange disciplinary actions over several years alleging serious rule violations and resulting in the imposition of significant sanctions." In re Clark, CFTC Docket No. SD 93-2 (CFTC Apr. 22, 1997), slip. op. at 32. This finding was premised on the two NYMEX proceedings alleged in paragraphs 6 and 7 of the Notice and on the COMEX disciplinary proceeding alleged in paragraph 5 of the Notice.
In addition, Clark has misinterpreted the Commission's ruling on the application of collateral estoppel to the decision in NYMEX Docket No. 90.02. While the Commission stated that application of the doctrine of collateral estoppel to exchange disciplinary proceedings was appropriate, it held that because the ALJ prevented the Division from relying on collateral estoppel in this case, the record "is insufficient to rule on the factors relevant to the proper application of collateral estoppel." Id. at 37. Since the Division had already prevailed under two independent theories of liability, the Commission declined to remand the case on the collateral estoppel issue. Thus, the Commission did not give collateral estoppel effect to NYMEX Docket No. 90.02. For lack of merit, the petition for reconsideration is denied.
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Clark has also petitioned us to stay revocation of his floor broker license during reconsideration or appeal. For the reasons that follow, the relief of a stay is denied.
A litigant seeking a stay must show that he is likely to succeed on the merits, that he will suffer irreparable harm if a stay is denied, and that neither the public interest nor the interests of any other party will be adversely affected if a stay is granted. In re LaCrosse, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) 26,954 at 44,628 (CFTC Feb. 13, 1997). A strong showing of likelihood of success on the merits is a prerequisite to the granting of a stay. Id.
To demonstrate that he is likely to succeed on the merits, Clark essentially reiterates the grounds raised in his motion for reconsideration. As noted above, we have found that his motion for reconsideration lacks merit. The issues raised in Clark's application for a stay were either raised by him on appeal and fully considered in our Opinion and Order or based on a misreading of it. Clark has not identified any material flaw in our reasoning nor identified any authority that would cause us to revisit the decision we reached and lead us to conclude that he is likely to succeed on appeal.
Clark also contends that he will suffer irreparable harm because trading on the exchange floor is the sole source of his livelihood and he is not trained or qualified in any other line of work. It is true that Clark will be unable to function as a floor broker during the pendency of his appeal as a result of the revocation of his floor broker registration. Nevertheless, in light of Clark's history of disregard for regulatory authority, further delay in the imposition of this sanction would not serve the public interest. In re Gimbel, [1987-1990 Transfer Binder] Comm. Fut. L. Rep. (CCH) 24,240 at 35,099 (May 17, 1988).
Having failed to make the requisite showing under the applicable standard for a stay, Clark's petition for a stay is denied.
IT IS SO ORDERED.
For the Commission (Chairperson BORN and Commissioners DIAL, TULL, HOLUM, and SPEARS).
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: June 10, 1997