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Commodity Futures Trading Commission v. Gigfx

February 22, 2012

COMMODITY FUTURES TRADING COMMISSION, PLAINTIFF,
v.
GIGFX, LLC, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

: Re Document No.: 6

MEMORANDUM OPINION GRANTING THE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

I.INTRODUCTION

This matter comes before the court on the plaintiff's motion for default judgment, pursuant to Federal Rule of Civil Procedure 55(b)(2). The plaintiff, the Commodity Futures Trading Commission ("CFTC"), alleges that the defendant, GIGFX, LLC ("GIGFX"), has violated the Commodity Exchange Act ("CEA"), codified at 7 U.S.C. §§ 1 et seq., and the corresponding CFTC Regulations. More specifically, the CFTC claims that GIGFX unlawfully failed to register with the CFTC before soliciting or accepting orders from certain customers during retail foreign exchange transactions. The defendant, though properly served with the complaint, has not filed an answer. The plaintiff now seeks an entry of default judgment and requests injunctive relief and a civil monetary penalty. Because the defendant has been unresponsive and has thereby halted the adversary process, the court grants the plaintiff's motion and awards it the injunctive relief and civil monetary penalty requested.

II. BACKGROUND

A. Statutory Framework

In October 2010, after the passage of the CFTC Reauthorization Act of 2008 ("CRA") and the Dodd-Frank Act, the CFTC enacted new regulations ("CFTC Regulations") to govern, inter alia, retail foreign exchange or "forex" transactions. 7 U.S.C. § 1(a); 17 C.F.R. §§ 5 et seq. In a typical forex transaction, a party exchanges a particular quantity of one country's currency for a specified quantity of another country's currency. 17 C.F.R. § 5.1(m). This transaction occurs between a retail customer and an eligible counterparty. See 7 U.S.C. § 2(c)(2)(B)(i)(II). Retail customers*fn1 are individuals who possess a particular amount of assets and who are not registered as futures or securities professionals. Id. § 1a(12)(A)(xi). By contrast, an eligible counterparty is either a regulated financial institution such as an investment firm, credit institution or central bank, or a retail foreign exchange dealer ("RFED"). 17 C.F.R. § 5.1(h)(1). An RFED is an otherwise unregulated entity that must meet certain criteria, including retaining membership in the National Futures Association and filing specific forms. Id. § 5.12.

Under the CRA and the Dodd-Frank Act, the CFTC can write and enforce rules and regulations to implement CEA provisions that govern forex transactions. 7 U.S.C. § 6; 12 U.S.C. § 5517(j)(1). One such regulation requires RFEDs to register with the CFTC before serving as a counterparty in forex transactions. 17 C.F.R. § 5.3(a)(6)(i).

B. Factual and Procedural Background

According to the CFTC, GIGFX solicits United States customers through its website to open forex trading accounts. Compl. ¶ 4; Pl.'s Mot. for Def. J. ("Pl.'s Mot.") at 9. The CFTC alleges in this action that GIGFX solicited orders from retail customers during forex transactions without first registering as an RFED, in violation of the newly-enacted CFTC Regulations and the CEA. Compl. ¶ 2.

The plaintiff served the defendant with the summons and complaint on January 28, 2011. Return of Service/Affidavit, Aff. of Adam Golden ("Golden Aff."). After the defendant failed to respond to the complaint, on February 24, 2011, the plaintiff requested an entry of default against the defendant. Aff. in Supp. of Default at 1. On February 25, 2011, the Clerk of the Court entered default against the defendant. See generally Entry of Default. Shortly thereafter, the plaintiff filed this motion for default judgment under Rule 55(b),*fn2 seeking both injunctive and monetary relief. Pl.'s Mot. at 1. The court now turns to the plaintiff's request for relief and the applicable legal standard.

III. ANALYSIS

A.Legal Standard for Entry of Default Judgment Under Rule 55(b)(2)

A court has the power to enter default judgment when a defendant fails to defend its case appropriately or otherwise engages in dilatory tactics. Keegel v. Key W. & Caribbean Trading Co., 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). Rule 55(a) of the Federal Rules of Civil Procedure provides for entry of default "[w]hen a party against whom a judgment for affirmative relief is ...


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