Bass, Berry & Sims attorney Chris Lazarini discussed the case in which the CFTC sought restitution from defendants for defrauding customers out of $700,000. The defendant was served by publication, but failed to respond or appear in response. As Chris points out, one factor favoring the entry of a default judgment is the prejudice that the defendant's refusal to participate causes to the plaintiff.
Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.
CFTC vs. My Global Leverage, LLC, No. 2:15-cv-00745 (D. Nev., 8/26/16)
* One factor favoring the entry of a default judgment is the prejudice that the defendant's refusal to participate causes to the plaintiff.
**The strong policy in favor of decisions on the merits is inapplicable when the defendants are properly served but make no effort to defend themselves.
The Commission brought this enforcement action seeking restitution, civil monetary penalties and a permanent injunction against Defendants who defrauded precious metal customers out of almost $700,000. Defendants, who were served by publication in Nevada and California, did not appear or otherwise respond to the Commission's allegations and the Commission moved for default judgment.
The Court grants the Commission's motion, explaining the factors justifying default judgment in detail. First, the Commission is prejudiced by Defendants' refusal to participate. Second, the Court accepts as true the factual allegations in the complaint and finds that the Commission presented ample evidence supporting its allegations that Defendants knowingly violated the Commodity Exchange Act and the Dodd-Frank Act. Furthermore, the Commission adequately supported its requests for monetary and injunctive relief. Third, there is little possibility of a dispute over material facts, given the Commission's well-pleaded complaint. Finally, while acknowledging the strong policy in favor of decisions on the merits, the Court finds that policy inapplicable because Defendants were properly served and made no effort to defend themselves.
The Court enters a default judgment, adopting the Commission's findings of fact and conclusions of law, permanently enjoining Defendants from engaging in their unlawful activities, and ordering Defendants to pay the full restitution sought by the Commission, plus more than double that amount as a penalty. The National Futures Association will serve as Monitor to collect and distribute the restitution payments, and the Court orders Defendants to cooperate until the restitution and monetary penalty have been paid.
In a related action, the Commission obtained similar relief against other participants in the fraudulent scheme. See CFTC v. Hunter Wise Commodities, LLC, 1 F. Supp. 3d 1311 (S.D. Fl. 2004) (ordering defendants to pay more than $55 million in civil penalties).