Before the

CFTC Docket No. 99-R75

Our review of the record and the appellate submissions establishes that the findings and conclusions of the presiding officer are supported by the weight of the evidence; we therefore adopt them. We further conclude that apart from the calculation error discussed below, the presiding officer committed no error material to the outcome of this proceeding and that the parties have not raised important questions of law or policy meriting extended discussion.1

Our review shows that the Judgment Officer committed two minor errors in calculating the appropriate award. We take sua sponte review in order to correct the errors and amend the Initial Decision by increasing the damage award to $8,743 and the award of costs to $125.The Initial Decision, as amended, is affirmed.


By the Commission (Chairman RAINER and Commissioners HOLUM, SPEARS, NEWSOME and ERICKSON).

Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission

Dated: September 29, 2000

1 Respondents' challenges to the ALJ's credibility determination do not establish the type of clear error that warrants an exception to our policy of deferring to a presiding officer's demeanor-based assessments. Ferriola v. Kearse-McNeil, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) 28,172 (CFTC June 30, 2000). Nor does the Judgment Officer's reference to respondents' failure to support their claims that they provided Pitman a complete account-opening application amount to an improper shift in the burden of proof.

2 Under Sections 6(c) and 14(e) of the Commodity Exchange Act, 7 U.S.C. 9 and 18(e)(1994), a party may appeal a reparation order of the Commission to the United States Court of Appeals for only the circuit in which a hearing was held; if no hearing was held, the appeal may be filed in any circuit in which the appellee is located. The statute also states that such an appeal must be filed within 15 days after notice of the order and that any appeal is not effective unless, within 30 days of the date of the Commission order, the appealing party files with the court a bond equal to double the amount of any reparation award.

A party who receives a reparation award may sue to enforce the award if payment is not made within 15 days of the date the order is served by the Proceedings Clerk. Pursuant to Section 14(d) of the Act, 7 U.S.C. 18(d) (1994), such an action must be filed in a United States District Court. See also 17 C.F.R. 12.407 (2000).

Pursuant to Section 14(f) of the Act, 7 U.S.C. 18(f) (1994), a party against whom a reparation award has been made must provide to the Commission, within 15 days of the expiration of the period for compliance with the award, satisfactory evidence that (1) an appeal has been taken to the United States Court of Appeals pursuant to Sections 6(c) and 14(e) of the Act, or (2) payment has been made of the full amount of the award (or any agreed settlement thereof). If the Commission does not receive satisfactory evidence within the appropriate period, such party shall be automatically prohibited from trading on all contract markets and its registration under the Act shall be automatically suspended. Such prohibition and suspension shall remain in effect until such party provides the Commission with satisfactory evidence that payment has been made of the full amount of the award plus interest thereon to the date of payment.