UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of :
FIRST COMMERCIAL FINANCIAL
CFTC Docket No. 95-R 10
GROUP, INC., MARK E. REHN, and
JOHN A. HERMANSON,
This Amended Order amends the order previously issued herein, dated December 23, 1997.
On October 27, 1997, the Administrative Law Judge ("ALJ") issued an initial decision in which he sanctioned First Commercial Financial Group, Inc. ("FCFG"), Mark E. Rehn, and John A. Hermanson for violations of the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (1994), and our rules.
The parties are appealing the ALJ's decision. The Division of Enforcement (the "Division") filed its notice of appeal on November 10, 1997, followed by Rehn's and Hermanson's notices filed on November 12 and 14, 1997. FCFG filed its notice on November 20, 1997. Thus, all parties filed notices of appeal, and all notices were timely, except for FCFG's.
The Division has moved to strike FCFG's notice because FCFG has failed to show excusable neglect for its failure to timely file.(1)
In reply, FCFG asks that we accept its notice because it believed that the Division's notice prevented the initial decision from becoming final under Rule 10.84(c), 17 C.F.R. § 10.84(c)(1997), thus relieving FCFG of the need to file its own notice. FCFG further argues that no prejudice would result from our accepting its late notice since the other parties already filed timely notices.
We grant the Division's motion to strike. FCFG has failed to
demonstrate excusable neglect for its tardy notice. In re Paragon
Futures Association, [1990-1992 Transfer Binder] Comm. Fut. L. Rep.
(CCH) ¶ 25,266 at 38,847 (CFTC Apr. 1, 1992). Rule 10.84(c) clearly
and unambiguously states, as relevant here, that an initial decision will
become final as to a party unless that party files a notice of appeal.
Under the circumstances, inadvertence or mistake by counsel cannot
constitute the excusable neglect which would warrant our acceptance of
FCFG's notice, particularly in light of counsel's experience in
Commission practice. See In re First National Monetary
Corp., [1986-1987 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶
23,271 at 33,751 (CFTC May 18, 1987).
For the foregoing reasons, the Division's motion to strike is granted.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners TULL, HOLUM and SPEARS).
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: December 30, 1997
1. Commission Rule 10.102(a), 17 C.F.R. § 10.102(a) (1997), provides that an appeal is initiated by filing a notice of appeal within 15 days after service of the initial decision. This rule, when considered in conjunction with Commission Rule 10.12(a)(2), 17 C.F.R. § 10.12 (1997)(a service rule), required that a notice of appeal be filed in this proceeding by November 14, 1997.