UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of
MICHAEL CLARK and
96-E-1 and 96-E-2
On September 23, 1996, Dominick Auciello and Michael Clark filed notices of appeal to the Commission from a decision of Commodity Exchange Inc. ("COMEX"), sanctioning Auciello and Clark for engaging in prearranged and noncompetitive trading. During the course of his appeal, Clark raised issues concerning a settlement agreement between the New York Mercantile Exchange, Inc. ("NYMEX"), COMEX's parent, and his former counsel allegedly prohibiting his former counsel from representing Clark in this proceeding.
After finding that the Commission could not determine whether there was such an agreement based on the existing record, the Commission issued an order on February 2, 1998, appointing an ALJ to conduct a hearing solely to determine whether such an agreement existed and, if so, whether the agreement had any effect on Clark's appeal to the Commission. In that order, the Commission noted that it would defer ruling on the merits of Clark's and Auciello's appeal until it had considered the ALJ's findings.
In accordance with the Commission's order, ALJ Levine issued a decision advising the Commission of his findings on March 11, 1998. On March 26, 1998, Michael Clark filed a Notice of Appeal from ALJ Levine's decision. Shortly thereafter, Clark moved for an extension of time to file his appeal brief. Because an appeal is already pending in this matter, and the Commission had appointed the ALJ to make a narrow inquiry about the existence of the agreement and its effect, if any, on Clark's appeal, we find that ALJ Levine's March 25, 1998 findings and recommendations are not separately appealable. Nonetheless, we have determined to give the parties in this case an opportunity to file briefs limited to the issues raised by the ALJ's findings. Clark and Auciello may file briefs within 15 days of the date of service of this order. COMEX may file an answering brief within 15 days of the date of service of Clark and/or Auciello's briefs.
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 14, 1998