In re Mayer - March 23, 1998

UNITED STATES OF AMERICA

Before the

COMMODITY FUTURES TRADING COMMISSION

In the Matter of : �� CFTC Docket No. 92-21

Solomon Mayer, et. al. �� ORDER

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�� Respondents Solomon Mayer, Barry Mayer, and SHB Commodities ("Mayer" respondents) and Steven Gelbstein have filed petitions asking us to stay the effective date of our decision of February 25, 1998 in this matter. In that decision, we imposed cease and desist orders, revoked respondents' registrations, imposed trading bans, and assessed civil monetary penalties. Our decision becomes effective on March 27, 1998.

�� Litigants requesting a stay of the effective date must show that they are likely to succeed on the merits, that they 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.

�� None of the respondents have made a persuasive argument that they are 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 they request. However, the Mayers merely repeat the arguments they made before us on appeal, without showing us how our analysis is incorrect as a matter of law. Gelbstein has only alleged likelihood of success on the merits without accompanying analysis.

�� The Mayers argue that they will be irreparably harmed because they will be unable to earn an income from trading and the stigma to their reputations will be impossible to overcome. 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).

�� Gelbstein, who is no longer trading due to a medical condition, argues that he will suffer irreparable harm to his current economic condition in view of his inability to earn income. However, payment of a civil monetary penalty is not irreparable harm.

�� 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, respondents' offenses were not isolated incidents but rather part of a pattern of unlawful trading. Such a pattern of unlawful conduct establishes a strong likelihood that the wrongdoing will be repeated. In such circumstances, both a trading ban for Gelbstein and the Mayer respondents and revocation of the Mayer respondents' registrations 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 sanctions would only erode public confidence in the markets. Although the Mayers assert that a stay is justified since they no longer trade for customers, we note that the standards for registration of floor traders do not differ from those for floor brokers.

�� We find that respondents have failed to demonstrate that they meet the requirements for grant of a stay. Accordingly, we deny respondents' motions to stay.

IT IS SO ORDERED.

By the Commission (Chairperson BORN and Commissioners TULL, HOLUM, and SPEARS).

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Jean A. Webb

Secretary of the Commission

Commodity Futures Trading Commission

Dated:�� March 23, 1998

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