UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of
CFTC Docket No. 98-E-2
On May 11, 1998, we received a petition from Stephen Briggs asking us to stay disciplinary action pending Commission review of an adverse decision by the New York Mercantile Exchange ("NYMEX"). The decision became effective May 13, 1998, and imposes a one year suspension, $100,000 fine, and a permanent prohibition from executing customer orders.1/
Under Commission Rule 9.24(d), a petitioner must establish that he is likely to succeed on the merits, that he will suffer irreparable harm if a stay is denied, that grant of the stay would not cause substantial harm to the exchange or market participants, and that grant of the stay would not be contrary to the Commodity Exchange Act ("Act") and the rules, regulations and orders of the Commission or otherwise contrary to the public interest.
Briggs's burden is a heavy one and has not been met here. Briggs merely challenges the credibility findings of the NYMEX appeal panel and charges that they did not follow Commission precedent in imposing sanctions. In reviewing exchange disciplinary actions, the Commission reweighs the the factual evidence only to correct plain error. In re Clark, [1992-1994 Transfer Binder] Comm. Fut. L. Rep. ¶ 25,751 (CFTC June 22, 1993). We conclude that Briggs has not demonstrated the likelhood of success on the merits. Id. Thus, even if Briggs were to make a strong showing under the other elements of a stay, we would not issue a stay.
Briggs argues that he will be irreparably harmed because he lost his largest customer and will be unable to earn an income from trading. However, loss of income and damage to one's reputation as a result of a challenged agency action "falls far short" of the type of irreparable injury necessary for injunctive relief. Sampson v. Murray, 415 U.S. 61, 91-92 (1974). See also, Haltmier v. CFTC, 554 F.2d 556, 564 (2d Cir. 1977). Moreover, payment of a fine is not irreparable harm.
The public interest would not be served by a stay pending our review. The Commission has been entrusted to enforce fair practice and honest dealing in the futures markets. Silverman v. CFTC, 562 F.2d 432, 438 (7th Cir. 1977). NYMEX found that Briggs committed violations which we consider egregious andundermine public confidence in the integrity of the futures markets.2/ The "necessity of protection to the public far outweighs any personal detriment resulting from the impact of the applicable laws." Haltmier, 554 F.2d at 564. Further delay in the imposition of sanctions would only continue the threat to the markets.
We find that Briggs failed to demonstrate that he has met the requirements for grant of a stay. Accordingly, we deny his petition to stay.
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: May 22, 1998
1 / Briggs requested ex parte review pursuant to Commission Rule 9.24(e). That rule provides that the Commission may act without waiting for the exchange's response if the petitioner
(1) Expressly requests an ex parte stay;
(2) Files a proof of service; and
(3) Clearly establishes by affidavit that immediate and irreparable injury, loss or damage will result to the petitioner before the exchange can be heard in opposition.
As explained in our order, Briggs did not establish immediate and irreparable injury. Accordingly, we did not grant ex parte review.
2 / The violations include, but are not limited to, prearranged and noncompetitive trading, trading opposite customer orders, and reporting trades out of sequence.