UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
ROBERT J. PELAEZ
CFTC Docket No. CRAA 98-6
On September 28, 1998, we received a notice of appeal and petition from Robert J. Pelaez asking us to stay the effective date of a final order of the National Futures Association ("NFA") pending Commission review. The NFA decision was dated September 8, 1998, and revokes Pelaez's registration as an associated person ("AP") effective thirty days after service of notice in accordance with Commission Rule 171.22, 17 C.F.R. § 171.22 (1998). The NFA decision finds that Pelaez's permanent bar from any association with members of the National Association of Securities Dealers ("NASD") is a statutory disqualification under Section 8a(3)(J) of the Commodity Exchange Act.1
According to Pelaez's petition for a stay, the NFA proceeding was not conducted in a manner consistent with fundamental fairness because NFA officials misapplied the doctrine of collateral estoppel in refusing to permit Pelaez's character witnesses to offer "meaningful mitigation evidence pertaining to the degree and extent of his participation in the underlying disqualifying conduct." (Pet. at 5). NFA opposes the petition, arguing
that each of Pelaez's character witnesses was allowed to testify about his knowledge of the conduct that led to Pelaez's statutory disqualification, but that the testimony of these witnesses was accorded little weight because "[they] neither understood the extent of the findings that had been made against Pelaez, nor had an appreciation of the seriousness of his conduct. . . ." (Opp. Br. at 8.)
In considering whether to grant a stay, we consider the four factors enunciated in Commission Rule 171.22(c), 17 C.F.R. § 171.22(c) (1998):
1) whether the petitioner is likely to prevail on the merits;
2) whether the petitioner will be irreparably harmed without a stay;
3) whether the issuance of a stay will substantially harm other parties; and
4) whether a stay will adversely affect the public interest.
Pelaez argues that he will be irreparably harmed if his petition is denied. Pelaez, who is 28 and has been working in the securities and futures industry since age 19, asserts that his livelihood will be destroyed since, "without the benefit of employment in an unrelated field, the ability of Pelaez to successfully transition into unrelated employment is highly unlikely." (Pet. at 8.) A party seeking a stay must demonstrate that the injury claimed is "both certain and great." Cuomo v. U.S. Nuclear Regulatory Commission, 772 F.2d 972, 976 (D.C. Cir. 1985); Grandview Holding Corp. v. NFA, [1994-1996 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,708 at 43,954 (CFTC May 30, 1996). Monetary loss alone generally does not rise to the level of irreparable harm, and Pelaez has not demonstrated that he is barred from employment in other fields. See In re Gilchrist, [1990-1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25,024 (CFTC Mar. 27, 1991).
Because we find that petitioner has not made the required showing of irreparable harm, we need not consider whether the other criteria for a stay have been met. The petition for a stay is denied.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners TULL, HOLUM, SPEARS, and NEWSOME).
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: October 28, 1998
1 According to the NASD decision, Pelaez was a principal of World Capital Growth Corp. ("World Capital"), a securities broker-dealer, during 1995. Pelaez's misconduct was based on his failure to notify NASD officials that World Capital's financial reports had been falsified once he became aware of that fact.