Opinion
Case No.: 8:99-cv-1558-T-MSS.
September 12, 2007
ORDER
THIS MATTER is before the Court on remand from the Eleventh Circuit Court of Appeals for enforcement proceedings against Defendants arising from Defendants' violations of the Commodities Exchange Act. On May 5, 2007, Plaintiff filed a Motion requesting this Court to set an evidentiary hearing on the issue of damages. (Dkt. 366). An evidentiary hearing (the "Hearing") was conducted on August 15, 2007.
I. PROCEDURAL BACKGROUND
Plaintiff, Commodity Futures Trading Commission ("CFTC"), is a federal regulatory agency charged with administering and enforcing the provisions of the Commodity Exchange Act ("CEA"). Defendant, R.J. Fitzgerald Co., Inc. ("RJFCO"), was a "full service introducing broker" registered with the CFTC from November 1992 through December 1999. RJFCO's obligations to those with whom it dealt were guaranteed by Iowa Grain Company, a registered futures commission merchant. Defendant Raymond Fitzgerald was RJFCO's President and principal controlling officer.
In 1999, Plaintiff commenced a CEA enforcement action against Defendants, alleging that Defendants were involved in fraudulent solicitations to attract potential customers to invest in commodity options, in violation of the CEA and accompanying federal regulations. (Dkt. 1). In February and March of 2001, the dispute was tried in a bench trial, and on May 21, 2001, the District Court entered a judgment in favor of Defendants as to all counts of the complaint. (Dkt. 244).
Plaintiff appealed the District Court's ruling to the Eleventh Circuit Court of Appeals. The Eleventh Circuit concluded that the District Court erred in not finding liability under the CEA as a matter of law for two specific solicitation devices used by RJFCO: (1) a television commercial that aired on the "CNBC" cable network in March 1998 ("Commercial") and (2) a promotional seminar for potential RJFCO customers that also took place in 1998 ("Seminar"). CFTC v. R.J. Fitzgerald Co., 310 F.3d 1321, 1323 (2002), rehearing and rehearing en banc denied, 103 Fed. Appx. 668 (11th Cir. 2004), cert. denied, 543 U.S. 1034 (2004). Additionally, the Eleventh Circuit determined that Defendants also violated the CEA because they failed to disclose material information, to wit, that more than 95% of the firm's clientele lost money. Id. at 1333. In sum, the Eleventh Circuit Court of Appeals determined that the two solicitation devices and the failure to disclose RJFCO's success record violated 7 U.S.C. § 6c(b) and 17 C.F.R. § 33.10 and were fraudulent as a matter of law. Id. at 1334-35.
The Eleventh Circuit remanded the matter for enforcement proceedings on the three violations referenced above. Id. at 1335. This Court regained jurisdiction over this cause pursuant to the remand on December 14, 2004, when the Supreme Court denied certiorari.
For the sake of clarity, when the Court refers to the "three violations," it is referring to the Commercial, the Seminar, and the omission of the 95% customer loss record.
II. PARTIES' RESPECTIVE POSITIONS
Plaintiff seeks an Order from this Court granting the following relief: (1) a separate civil monetary penalty in the amount of two million four hundred thousand dollars ($2,400,000) against each Defendant; (2) a permanent injunction enjoining both Defendants from all commodity interests and from committing further violations of the CEA; and (3) a permanent trading prohibition upon each Defendant.
Plaintiff derives the financial penalty by asking the Court to impose the maximum one hundred ten thousand dollar fine for what it contends are twenty-two separate violations of the CEA. Specifically, Plaintiff asks the Court to find eight violations for the eight times the Commercial aired on CNBC and three violations for the three times the Seminar was conducted, for a total of eleven violations. Additionally, Plaintiff suggests that the Court should find eleven additional violations for the Defendants' failure to disclose the company's unprofitable trading record each time that the Commercial was aired and the Seminar was conducted. (Dkt. 372, ¶ 66, 80, 87).
Plaintiff further maintains that 7 U.S.C. § 13a-1(b) allows this Court to issue a permanent injunction. Commodity Exchange Act, 7 U.S.C. § 13a-1(b) (2000). Plaintiff has requested a permanent injunction because it believes Defendants will continue to engage in the acts and practices alleged in the Amended Complaint and for which they have already been found liable. (Dkt. 372, ¶ 109). Plaintiff contends that Defendants' past and continuing failure to acknowledge any wrongdoing in the fraudulent solicitations, indicates that those fraudulent practices are likely to continue unless enjoined. (Dkt. 374).
Defendants oppose Plaintiff's proposed penalties and ask this Court to deny Plaintiff's requests for relief. Defendants' contend that a civil monetary of two million four hundred thousand dollars is not warranted in this case. Instead, Defendants' contend that no civil monetary penalty is appropriate. Primarily, Defendants allege that their current financial situation makes it virtually impossible for them to afford anything other than a de minimus monetary penalty. Additionally, Defendants contend that their conduct, if fraudulent at all, was not so egregious as to warrant such a significant penalty. Defendants point out that they discontinued the Commercial prior to being notified of any legal issues and, once they were notified, they never attempted to use either the Commercial or the Seminar again. Defendants further contend that their action in seeking prior approval of the content of the Commercial and Seminar demonstrates the sincerity of their efforts to comply with the law.
Both parties agree that the decision to impose a monetary penalty, and the amount of such penalty if one is imposed, are matters within this Court's discretion. On that basis, the Defendants urge this Court not to consider any monetary penalty for the violation of the failure to disclose the 95% customer loss rate. Defendants' contend that there is no evidence to establish the point at which the customer's success rate fell to five percent or that it was at that level when each of the Commercial airings occurred or the Seminars were conducted. Defendants contend, therefore, there is no evidence that Defendant Fitzgerald had knowledge of the customer's track record during all the relevant times when the Commercial and Seminar were publicly presented. To the extent that Defendants' argument in this regard asks this Court to overturn the Eleventh Circuit's findings, this Court declines to do so. The Eleventh Circuit concluded that fraud was committed in the failure to disclose the loss record, implicitly concluding that there was knowledge by the Defendants at some relevant point during the public presentations.
The Eleventh Circuit did not state with specificity at what point this knowledge was imputed to the Defendants. It relied in this factual finding on the statement Mr. Fitzgerald made after the company failed. That statement contains no temporal parameters. The Court's ruling is clear though that the knowledge was imputed at some relevant point because it was implicit in the findings of fact.
Defendants contend that Plaintiff's request for injunctive relief and a permanent trading prohibition should also be denied. Defendants contend, for reasons expanded on below, that there is no reasonable likelihood of recidivism in this case. Moreover, Defendants urge the Court to consider the totality of the circumstances when making its ruling.
III. FINDINGS OF FACT
At the Hearing the CFTC called a single witness, Mr. Fitzgerald. The Defendants also called Mr. Fitzgerald and offered by stipulation the deposition testimony of Ms. Anne Ferris, Iowa Grain's Director of Compliance. The Court, having considered the evidence submitted by the parties, having heard the testimony presented at the Hearing, having considered the demeanor of the live witnesses and having reflected on the evidence presented at trial, makes the following findings of fact which are largely uncontested on this remand:
The Defendants developed two solicitation devices, a Commercial and a Seminar, to attempt to attract customers to invest their money in RJFCO. The Eleventh Circuit has found, as a matter of law, that the Defendants violated the CEA in disseminating the content of the Commercial and Seminar, and in the failure to inform potential customers of the RJFCO customers' loss record.CFTC v. R.J. Fitzgerald Co., 310 F.3d at 1334-35.
The Defendants' offending acts, as found by the Eleventh Circuit in its factual findings on appeal, were brief, isolated instances. The Commercial aired on the CNBC network approximately eight times in March of 1998, and the Seminar was presented approximately three times. There is no evidence that either the Commercial or the Seminar generated significant customer interest. The CFTC conceded that there is no evidence suggesting that RJFCO customers lost any money as a result of the Commercial or Seminar. Further, there is no evidence that Defendants profited from the solicitation devices.
Defendant Fitzgerald discontinued the Commercial and Seminar voluntarily on March 17, 1998, prior to being contacted by any CFTC official or NFA compliance officer. An NFA compliance officer contacted RJFCO on March 24 or 25, 1998, and orally notified Mr. Fitzgerald of the claimed legal implications raised by the content of the Commercial and Seminar. The NFA Compliance Department also notified Mr. Fitzgerald of the apparent violations of the NFA Compliance Rules via correspondence dated May 29, 1998. (Def. Ex. 127). Mr. Fitzgerald responded to the NFA confirming that, as discussed the week before, the Commercial was voluntarily discontinued on March 17, 1998. (Def. Ex. 126).
Since the CFTC initiated enforcement proceedings and throughout the pendency of this litigation, including the time period prior to the appeal when RJFCO was operating under the trial court's finding that the solicitation devices were not fraudulent, Defendants have never attempted to use the solicitation devices again. Further, Defendant Fitzgerald has not committed any additional CEA violations despite being involved in other futures commission companies specializing in the commodities market. Specifically, since the CFTC initiated this lawsuit, but prior to losing his NFA membership, Defendant Fitzgerald formed and operated The Trading Co-op LLC. The Trading Co-op is a guaranteed introducing firm in the commodities market. Defendant Fitzgerald was also employed by the futures commission firm Peregrine Financial Group, Inc. as a sales broker with responsibilities of selling the Peregrine trading platform to commodity investors. In those capacities Defendant Fitzgerald was never suspected or accused of committing any violation of the CEA or any other laws.
At the Hearing, Defendants offered evidence demonstrating the lack of Defendants' ability to pay the monetary judgment that the CFTC requests. Defendant RJFCO is a defunct corporation with no assets, which was administratively dissolved by the Florida Secretary of State in 2000. Based on this Court's evaluation of the evidence presented at the Hearing, Defendant Fitzgerald's net worth is approximately negative three hundred forty eight thousand eighteen dollars (-$348,018). (Def. Ex. S8). In this regard, the Court declines to consider Mr. Fitzgerald's indebtedness to Ms. Susan Nix in determining Mr. Fitzgerald's ability to pay; Defendant has not presented sufficient evidence that Ms. Nix expects to receive full reimbursement or that Ms. Nix has even attempted to collect on the loan which was due on August 5, 1995. (Def. Ex. S10). Defendant Fitzgerald is a single father of two young children. His primary source of income is in a fledgling air conditioning marketing business he runs out of his home which produces minimal income.
RJFCO has not transacted business since 1998, and it withdrew its NFA membership on December 1, 1999. (Dkt. 376, ¶ 26).
Defendant Fitzgerald has completely withdrawn from the commodities and options business. Both parties concede that the outstanding fraud judgment against Defendant Fitzgerald as well as the outstanding monetary judgment by the guaranteeing firm pursuant to which Defendant Fitzgerald's NFA license was surrendered, will make it extremely difficult for Defendant Fitzgerald ever to regain his NFA membership. As mentioned above, RJFCO has not transacted business since 1998.
Iowa Grain, RJFCO's guaranteeing firm, filed an arbitration proceeding against Mr. Fitzgerald claiming that Iowa Grain sustained monetary losses as a result of Mr. Fitzgerald's operation of RJFCO. The proceeding was conducted before an NFA arbitrator and judgment was entered in favor of Iowa Grain for $68,485.96. Mr. Fitzgerald was unable to satisfy this judgment and, therefore, his NFA membership was suspended in 1999. As of the date of the subject Hearing, Mr. Fitzgerald's NFA membership was still suspended.
While Defendant Fitzgerald has not expressly admitted that he committed fraud, he has expressed by his words, actions, and demeanor sincere regret for the circumstances that resulted in this protracted and costly enforcement proceeding. Although the Eleventh Circuit found objective evidence of scienter for the content or the publications, the Court finds that Mr. Fitzgerald has evinced by his expression and demeanor that it was never his subjective, purposeful intent to harm any individual by his marketing strategies at RJFCO.
IV. DISCUSSION
1. Legal Standard
A. Civil Monetary Penalty
Title 7, section 13a-1 of the United States Code empowers the CFTC to seek and the Court to impose civil monetary penalties "in the amount of not more than the higher of $100,000 or triple the monetary gain" to each defendant for each violation of the CEA. 7 U.S.C. § 13a-1(b). Tile 17, section 143.8 of the Code of Federal Regulations, entitled "[i]nflation adjusted civil monetary penalties," adjusts upwards the maximum civil monetary penalty for violations committed between November 27, 1996 and October 22, 2000, to $110,00 or triple the monetary gain to such person for such violation. 17 C.F.R. § 143.8 (2007).
Section 13a-1 places the determination of the appropriate remedy specifically within the discretion of the trial court. In this regard, Counsel for the CFTC conceded at the Hearing that it is within this Court's discretion to determine the penalty amount to be imposed for each violation. This position is consistent with relevant case law. See CFTC v. Heffernan, 274 F. Supp. 2d 1375, 1378-79 (S.D. Ga. 2003) (imposing a monetary penalty of $25,000 for each of the violations rather than the $120,000 statutory figure, upon a showing that defendant's assets totaled approximately $3,398.08). To inform the exercise of this discretion, case law directs the Court to focus on the "relative gravity of . . . misconduct" in light of factors such as: (1) the relationship of the violation at issue to the regulatory purposes of the Act; (2) the defendant's state of mind; (3) the consequences flowing from the violation conduct; and (4) defendant's post-violation conduct. R W Tech. Servs., Ltd. v. CFTC, 205 F.3d 165 (5th Cir. 2000). Finally, this Court "is cognizant of its duty to be realistic and not set a figure which is impossible for a defendant to comply with due to a lack of monetary resources." CFTC v. Avco Financial Corp., 28 F. Supp. 2d 104, 121-22 (S.D.N.Y. 1998).
2. Analysis
Against the facts and applicable legal standards as set forth above, the Court finds that Defendants' conduct in this case does not warrant the imposition of the maximum penalty suggested by the Plaintiff.
The lack of any demonstrated harm to RJFCO customers or any financial gain by RJFCO militates against imposing the maximum monetary penalty. As the Fifth Circui explained, reversing a trial court's confirmation of a two million dollar penalty imposed by the CFTC,
In calculating a civil penalty, "the financial benefit that accrued to the respondent and/or the loss suffered by customers as a result of the wrongdoing are especially pertinent factors." In this case, the Commission had no evidence of customer losses. . . . When a penalty is designed for deterrence and not restitution, however, the proper measure of gain to the defendant is net profits not gross revenues. Thus, the lack of demonstrated harm in this case suggests that the petitioner's violations, while actionable, were not so egregious as to warrant at $2.375 million penalty.R W Technical Services, Ltd. v. CFTC, 295 F.3d 165, 178 (5th Cir. 2000) (citation omitted).
Further, Defendants' apparent complete adherence to the law prior to presenting the Commercial and Seminar, along with Defendants' complete compliance with all NFA directives since the CFTC initiated enforcement proceedings, also suggests that the maximum statutory penalty would not be appropriate.
Additionally, there is no evidence that Defendants have any ability to pay a penalty of the size demanded by the CFTC. Defendant RJFCO is an inactive corporation and has been for over five years. It has not operated since the CFTC enforcement proceedings intervened to cease its operations, and the CFTC has offered no evidence that RJFCO has assets from which any monetary judgment could be paid. Defendant Fitzgerald is a single parent with minimal income, and his net worth is a substantially negative figure. Defendant's liabilities include hospital/medical bills, outstanding promissory notes, unpaid property and federal income taxes, and an outstanding judgment imposed against him. (Def. Ex. S8). Defendant Fitzgerald's only significant asset is his residence, the value of which would not even remotely approach the demanded penalty.
The Court's determination here is consistent with the precedent case law addressing this issue. Courts under substantially more egregious facts than those presented in this case have refused to impose the maximum penalty in light of a defendant's inability to pay. See, e.g., CFTC v. Heffernan, 274 F. Supp. 2d 1375, 1378-79 (S.D. Ga. 2003) (imposing a $25,000 penalty per violation in light of defendant's limited assets, despite the fact that defendant committed multiple violations of the CEA on numerous instances, violated court orders, and violated a CFTC cease and desist order); CFTC v. Rosenberg, 85 F. Supp. 2d 424, 454-55 (D.N.J. 2000) (court declined to impose any civil monetary penalty even though defendant siphoned $200,000 of client funds for personal use); CFTC v. Avco Financial Corp., 28 F. Supp. 2d 104, 121-22 (S.D.N.Y. 1998) (imposing a $5,000 monetary penalty reasoning that "courts should be realistic and not set a figure which is impossible for a defendant to comply due to a lack of monetary resources"), aff'd in part and rev'd in part on other grounds, 228 F.3d 94 (2d Cir. 2000).
For these reasons, this Court concludes that the appropriate penalty for the specific violations found by the Eleventh Circuit Court of Appeals — the Commercial, the Seminar, and the failure to disclose the customers' success record is $30,000. This penalty is imposed jointly and severally against both Defendants to penalize the Defendants for their actions and deter similar conduct by other companies involved in the commodities business. The Court notes that the total penalty of $30,000, considered against the concession that no customer loss money and the Defendants did not profit from the violations found, is sufficient regardless of whether the Court considers that the Defendant committed three violations or twenty-two violations. In this regard, counsel for CFTC conceded that the number of violations this Court could consider in imposing the penalty is discretionary. Similarly, CFTC conceded that the Court is not required to impose the maximum statutory penalty for each violation; the penalty can be modified as the Court deems appropriate. Finally, the Court notes that its determination here is consistent with the penalty it imposed in this case against former Defendant Leiza Fitzgerald, whom the Eleventh Circuit found to be a RJFCO controlling person responsible for the content and implementation of the promotional Seminars. (Dkt. 361, ¶ 12). The CFTC requested on consent of Defendant Leiza Fitzgerald that this Court impose a $25,000 civil monetary penalty for her equal involvement in same conduct that is at issue with respect to Defendants RJFCO and Raymond Fitzgerald. (Dkt. 361, ¶ 55).
B. Permanent Injunction and Trading Prohibition
1. Legal Standard
In addition to a financial penalty, the CEA authorizes the CFTC to seek injunctive relief in the federal district court whenever it appears that violations of any provision of the CEA have occurred. 7 U.S.C. § 13a-1(b). Unlike private actions, which are grounded in equity, a CFTC request for injunctive relief has its basis in 7 U.S.C. § 13a-1. No "showing of irreperable harm or the lack of an adequate remedy at law" is required under the Act.CFTC v. Morgan, Harris Scott, Ltd., 484 F. Supp. 669, 676-77 (S.D.N.Y. 1979). To issue a permanent injunction prohibiting future violations of the CEA and regulations, this Court must find, however, that (1) illegal activity has occurred; and (2) there is a reasonable likelihood that the wrong will be repeated. SEC v. Carribe Air, Inc., 681 F.2d 1318, 1322 (11th Cir. 1982); see also CFTC v. Rosenberg, 85 F. Supp. 2d 424, 454 (D.N.J. 2000).
A reasonable likelihood that a wrong will be repeated is shown "when the inferences that flow from a defendant's prior illegal conduct, viewed in light of present circumstances, betoken a `reasonable likelihood' of future transgressions." SEC v. Zale Corp., 650 F.2d 718, 720 (5th Cir. 1981). To make this determination, courts in the Eleventh Circuit consider factors such as the egregiousness of the defendant's actions, the isolated or recurrent nature of the infraction, the degree of scienter involved, the sincerity of the defendant's assurance against future violations, the defendant's recognition of the wrongful nature of his conduct, and the likelihood that the defendant's occupation will present opportunities for future violations. SEC v. Carriba Air, Inc., 681 F.2d at 1322 (quotingSEC v. Blatt, 583 F.2d 1325, 1334 n. 29 (11th Cir. 1978)).
2. Analysis
Against the facts and applicable legal standards as set forth above, the Court finds that there is no reasonable likelihood that Defendants will commit future violations or that Defendants will "repeat the wrong." Therefore, the Court finds that the imposition of permanent injunctive relief against the Defendants is not warranted.
As set forth in this Court's factual findings, the Defendants' offending acts were brief, isolated instances which Defendants discontinued voluntarily and not in response to an agency demand or a consumer complaint. It is undisputed that the Commercial was presented only eight times before it was voluntarily removed from the air, and the Seminar was presented on only three occasions. It is further undisputed that since receiving notification of the claimed legal implications of the Commercial and Seminar, Defendants have never attempted to use the solicitation schemes again. In this regard, the Court notes that Defendants' actions here are likewise distinguishable from defendants' actions in other cases in which courts have imposed a permanent injunction.See CFTC v. Investors Freedom Club, Inc., 2005 WL 940897, at *2 (considering that defendants' carried on their solicitation scheme for over two years and discontinued the same only because of an internal disagreement).
As far as the sincerity of Defendants' assurance against future violations, this Court has not found any indication whatsoever that Defendants' intend to pursue further conduct which would violate any NFA and CEA rules and regulations. As discussed above, once advised that the Commercial and Seminar violated the NFA regulations, Defendants never attempted to implement those techniques again. The Court finds it significant that, since committing the infractions which are the subject of this enforcement proceeding, Defendant Fitzgerald has never committed or been suspected of committing any illegal solicitation scheme despite his involvement with other futures commission companies specializing in the commodities market. Further, Defendant convincingly testified at the Hearing that the commodities and options business has ruined his personal life and business and he has no desire to become re-involved in this business in the future.
Finally as noted above, the CFTC conceded that there is no evidence suggesting that RJFCO customers lost any money as a result of the Commercial or Seminar. Further, there is no evidence that Defendants profited in any way or in any amount from the solicitation devices or the failure to disclose the 95% loss record. The facts of this case bear no resemblance to the facts of cases in which courts have imposed injunctive relief of the type requested here. See CFTC v. Investors Freedom Club, Inc., No. 8:03cv54T16TGW, 2005 WL 940897, at *2 (M.D. Fla. 2005) (considering that the defendants collected approximately three million dollars from two hundred fifty investors in finding the conduct egregious enough to warrant permanent injunctive relief);CFTC v. Rosenberg, 85 F. Supp. 2d at 454 (considering that defendant misappropriated over $200,000 and used it for personal expenses in reasoning that injunctive relief was warranted).
Based on the testimony presented at the Hearing, this Court finds that Defendant Fitzgerald has recognized the wrongful nature of his conduct and has accepted full responsibility for his actions. Defendant Fitzgerald acknowledged at the Hearing that his actions violated the law. Further, Defendant has refrained from conducting any further illegal solicitation schemes despite involvement in two futures commission companies similar to RJFCO. Had the Defendant not accepted responsibility for his actions, as Plaintiff suggests, the Court would have expected there to be some evidence that Defendant engaged in further CEA violations or that Defendant challenged the directives of the NFA. In this case, however, Defendant has demonstrated full compliance from the moment he was notified of the violations and has never challenged any CFTC or Court directive requiring him to discontinue the Commercial and Seminar. Accordingly, Defendants' consistent behavior since 1999 suggests to the Court that not only has Defendant realized the wrongfulness of his actions, he has committed himself to future law abiding behavior.
The Court further finds that as a practical matter Defendants' current business interests do not place them in a position in which future violations are possible. As set forth above, Defendant Fitzgerald is currently employed in the air conditioning market business and Defendant RJFCO is a defunct corporation which was administratively dissolved by the Florida Secretary of State. As previously noted, both parties concede that the outstanding judgment of fraud against Defendant Fitzgerald and the money judgment pursuant to which Defendant Fitzgerald's NFA license was surrendered will make it extremely difficult for Defendant Fitzgerald ever to regain his NFA membership. The Court notes that even if Defendant Fitzgerald regains his license and becomes re-involved in the commodities market, the likelihood of recidivism is minimal. This is evidenced by the fact that Defendant Fitzgerald has not committed any CEA violations in over eight years despite his involvement in two futures commission companies, Trading Co-op LLC and Peregrine Financial Group, Inc. Accordingly, the Court finds that the Plaintiff has failed to demonstrate that there is any possibility, let alone any likelihood, that Defendants Fitzgerald or RJFCO will in the future engage in a solicitation scheme relating to soliciting customers to engage in the commodities and options business. Even in cases which were substantially more egregious and where evidence of recidivism was established, courts have merely enjoined the offending party from further violations of the Act. Only in the most extreme cases have courts imposed the permanent injunctive relief that Plaintiff seeks to have imposed here. See CFTC v. Investors Freedom Club, Inc., 2005 WL 940897, at *2 (issuing a permanent trading ban based on defendants' egregious two year scheme wherein they siphoned $3 million from investors yet denied any wrongdoing).
On the record, Plaintiff concedes that any injunction entered that merely enjoins Defendants from violating the law would serve no remedial purpose and, thus, this Court will not issue an injunction ordering Defendant Fitzgerald to obey the law. The Eleventh Circuit has found that injunctions this broad serve no purpose and should be avoided. Burton v. City of Belle Glade, 178 F.3d 1175, 1201 (11th Cir. 1999); see also CFTC v. Heffernan, 274 F. Supp. 2d at 1381 (reasoning that enjoining someone from violating the law would serve no purpose).
IV. CONCLUSION
Upon consideration, it is hereby ORDERED and ADJUDGED as follows:
1. Plaintiff's request for the imposition of a civil monetary penalty against Defendants is GRANTED. The Court imposes a $30,000 civil monetary penalty jointly and severally on both Defendants.
2. Plaintiff's request for permanent injunctive relief and a permanent trading prohibition against Defendants is DENIED as there is no evidence that a reasonable likelihood of repetition exists.
A final judgment to this effect will be entered separately.
DONE AND ORDERED in Tampa.