UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
In the Matter of
CFTC Docket No. 93-4
Respondent Zoltan Guttman has filed a petition for reconsideration and a motion asking us to stay the effective date of our decision of April 27, 1998, in this matter. In that decision, we imposed a cease and desist order, revoked Guttman's registration, imposed a permanent trading ban, and assessed a civil monetary penalty of $500,000. Our decision becomes effective on May 27, 1998.
With regard to Guttman's request for reconsideration, we look to Commission Rule 10.106, 17 C.F.R. § 10.106 (1998), which authorizes petitions for reconsideration. That rule provides in pertinent part:
Any petition filed under this subsection must be confined to new questions raised by the opinion or order and concerning which the petitioner had no opportunity to argue before the Commission.
Guttman has not presented any new questions. Guttman attacks the credibility determinations of the Administrative Law Judge which we adopted for the reasons stated in our opinion. Guttman also argues that the Commission has reinterpreted the law so as to deprive him of notice that his acts were unlawful. Our decision is well grounded in Commission precedent which provides adequate notice that prearranged trading is unlawful. Guttman also contends thatit was improper for us to consider his securities law violations in imposing sanctions. However, as our opinion states, past violations are indicative of the likelihood that wrongdoing will be repeated and relevant to determining whether registration should be revoked and whether a cease and desist order should be imposed. Moreover, for the first time, Guttman raises the fact that the Administrative Law Judge did not find rehabilitation and Commission's failure to consider his character witnesses as evidence of rehabilitation.1/ In light of Guttman's failure to raise this issue on appeal, we deem his objection waived. In re Gilchrist, [1990-1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24,993 at 37,654 (CFTC Jan. 25, 1991) citing 17 C.F.R. § 10.104(a). For these reasons we decline reconsideration.
As to Guttman's request for a stay of the effective date of our decision, a litigant requesting a stay of the effective date 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. Guttman has not made a persuasiveargument that he is likely to succeed on the merits of his appeal. A strong showing under this factor of the stay standard is a prerequisite to the relief he requests. However, Guttman merely sets forth a list of one-sentence contentions without showing us that our analysis is incorrect as a matter of law in any respect.
Guttman argues that he will be irreparably harmed because he 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).
The public interest would not be served by a stay pending judicial 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). The violations established on the record are egregious and undermine public confidence in the integrity of the futures markets. Moreover, Guttman's offenses were not isolated incidents but rather part of an unlawful trading strategy. Such a pattern of unlawful conduct establishes a strong likelihood that the wrongdoing will be repeated. In such circumstances, both a trading ban and revocation of Guttman's registration are not only appropriate but necessary to protect the integrity of the futures markets. 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 sanctionswould only erode public confidence in the markets. Although Guttman asserts that a stay is justified since he does not transact public business and does not trade on the floor of an exchange, we note that he used other individuals to execute his violative trading strategy. Consequently, we find that Guttman has failed to demonstrate that he meets the requirements for grant of a stay. Accordingly, we deny Guttman's petition for reconsideration and motion 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 / The testimony of the character witnesses did not address rehabilitation. The focus of a rehabilitation analysis is an examination of whether the respondent has changed the direction of his activities. In re Cox, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,939 at 44,530 (CFTC Jan. 17, 1997), aff'd. sub nom. Cox v. CFTC, 138 F.3d 268 (7th Cir. 1998). Guttman's character witnesses testified regarding Guttman's reputation for truthfulness and were offered for the credibility determination. (Tr. at 645, 669-670, 856, Guttman's Post-Hearing Brief at 34-35.) The witnesses were not asked about Guttman's activities since the wrongdoing.