UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
__________________________________ : In the Matter of : CFTC Docket No. 93-9 : MICHAEL D. SMITH : ORDER __________________________________:
Respondent Michael D. Smith has asked us to stay the effectiveness of our decision of March 11, 1997 pending his appeal to the U.S. Court of Appeals for the Seventh Circuit. In that decision, we revoked Smith's registration and imposed a five-year trading ban. Our decision terminated Smith's trading privileges on April 10, 1997. The Division of Enforcement ("Division") opposes respondent's request for a stay.
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.
Smith makes no persuasive argument that he is likely to succeed on the merits of his appeal. Rather, his argument is limited to the contention that our decision did not give sufficient weight to certain evidence in the record. In this regard, respondent takes issue with matters fully considered in our opinion and does not show how our analysis is incorrect as a matter of law. A strong showing under this factor of the stay standard is a prerequisite to the relief he requests. Because Smith has failed to make a persuasive argument in favor of his appellate success, his request for a stay must be denied.
Smith also asks us to consider evidence outside the record on review. Specifically, he asserts that we should take into account a letter confirming that he completed a Professional Responsibilities Review Course at the Chicago Mercantile Exchange ("CME") in December 1990 and supplemental programs in 1994 and 1997. Motion to Stay at Exhibit D. However, Commission Rule 10.104, 17 C.F.R. 10.104 (1996), requires us to base our determination on the record of this proceeding. The letter respondent urges us to consider is not part of the record in this proceeding. In any event, to the extent Smith suggests that his completion of professional responsibility courses should justify a stay, we are not persuaded.
We also note that Smith's motion to stay was untimely. Our order was served on respondent on March 11, 1997 and specified that a motion to stay was due within 15 days. See Order at 23, n.25 and Commission Rule 10.12(a)(2), 17 C.F.R. 10.12(a)(2) (1996). Respondent's motion to stay was not filed until April 1, 1997, when it was received by the Hearing Clerk. See Commission Rule 10.12(d), 17 C.F.R. 10.12(d) (1996).
For the reasons stated, we deny Smith's motion to stay.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners DIAL, TULL, HOLUM, and SPEARS).
Catherine D. Dixon
Assistant Secretary of the Commission
Commodity Futures Trading Commission
Dated: April 18, 1997