UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of :
WAYNE I. ELLIOTT, CFTC Docket No. 95-1
JONATHAN A. SION,
Wayne I. Elliott, Francis Maritote, Brian Schaer and Jonathan A. Sion ("Respondents") petition us to stay the sanctions imposed in our opinion and order of February 3, 1998, reversing an Administrative Law Judge's initial decision in this administrative enforcement action.(1) The Commission's Division of Enforcement opposes a grant of the stay. For the reasons that follow, the motion for stay is denied.
Respondents principally contend that, because of the trading ban imposed by the Commission's Order, a denial of the stay "renders it impossible for the Court of Appeals effectively to afford respondents a just and equitable remedy should they prevail." Petition for Stay at 2. They further urge that none of them previously has been the subject of an enforcement proceeding and that a grant of the stay poses no threat to the integrity of the market.
A litigant seeking a stay of governmental action taken in the public interest pursuant to a statutory or regulatory scheme must establish, along with irreparable injury, a probability of success on the merits. Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958); In the Matter of Forty-Eight Insulators, Inc., 115 F.3d 1294, 1301 (7th Cir. 1997); Ciechon v. City of Chicago, 634 F.2d 1055, 1058 (7th Cir. 1980). He or she must also show that neither the public interest nor the interests of any other party would be adversely affected if a stay were granted. Virginia Petroleum Jobbers, 259 F.2d at 925; WMATA v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Cuomo v. United States Nuclear Regulatory Commission, 772 F.2d 972, 974 (D.C. Cir. 1985).
Respondents' arguments are inadequate to show that the public interest would not be adversely affected by the grant of the stay or to establish irreparable injury. See Associated Securities Corp. v. SEC, 283 F.2d 773, 775 (10th Cir. 1960); Ciechon v. City of Chicago, 634 F.2d at 1058. Moreover, respondents have not addressed the probability of their success on the merits. A stay must rest on an adequate showing
under all the elements of the standard, and the respondents have failed to make such a showing. The motion for stay is denied.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners HOLUM and SPEARS).
Commissioner TULL, concurring.
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: March 4, 1998
In the Matter of Wayne I. Elliott, et al. CFTC Docket No. 95-1 Commissioner John E. Tull, concurring in the result
This case is before us on a motion to stay the sanctions imposed by the majority, including in relevant part a six-month trading ban. I dissented from the majority opinion in that ruling.
As now presented, the threshold issue to be determined is whether the Respondents have made a proper and complete motion to stay their sanctions. To succeed in their motion, the Respondents must establish three separate and distinct factors: 1) irreparable injury to themselves if the stay is not granted; 2) granting the stay will pose no danger to the public interest in integrity of the markets; and 3) their probability of succeeding on the merits of their underlying appeal. See In re Commodities Int'l Corp., [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,994 at 44,805 (CFTC March 18, 1997); In re: Forty-Eight Insulations, Inc., 115 F.3d 1294, 1301 (7th Cir. 1997); Ciechon v. City of Chicago, et. al, 634 F.2d 1055, 1058 (7th Cir. 1980); Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).
Without addressing either of the first two questions, I concur with the
majority that the Respondents have failed in their pending motion to meet
their burden of proving the probability of their success on the merits.
In fact, they make no argument on this crucial question at all. On this
basis alone I would deny their motion. Failing to meet their burden, we
need not address any substantive issues beyond this threshold procedural
BY: ________________________________ , March 3, 1998
Commissioner John E. Tull, Jr.
1 Respondents seek stays pending review of the Commission's decision in the United States Court of Appeals for the Seventh Circuit. See Petition for Stay of the Commission's Order of February 3, 1998, filed with the Commission on February 12, 1998.
On February 23, 1998 respondents filed with the Commission an untimely Motion for Leave to File Memorandum in Support of Petition for Stay. That motion is hereby denied.