NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. COMMODITY FUTURES TRADING No. 21-55002
COMMISSION,
D.C. No.
Plaintiff-Appellee, 8:17-cv-01868-JVS-DFM
v.
MEMORANDUM*
MONEX CREDIT COMPANY; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted July 19, 2021**
San Francisco, California
Before: TASHIMA, McKEOWN, and CHRISTEN, Circuit Judges.
Monex Credit Company, Monex Deposit Company, Newport Services
Corporation, Louis Carabini, and Michael Carabini (collectively, “Monex”) appeal
from the district court’s grant of a preliminary injunction sought by the United
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States Commodity Futures Trading Commission (“CFTC”). We have jurisdiction
under 28 U.S.C. § 1292(a)(1), and we affirm.
Monex below advanced a preliminary injunction standard that it now
challenges as error on appeal. Despite this change in position, the CFTC
responded to Monex’s argument on the merits. Nonetheless, we have discretion to
conclude that issues are waived or forfeited. See United States v. Macias, 789 F.3d
1011, 1017 n.3 (9th Cir. 2015); United States v. Depue, 912 F.3d 1227, 1232 (9th
Cir. 2019) (en banc). We ordered supplemental briefing on the issue and conclude
that Monex forfeited the argument it raised on appeal, such that we decline to
review Monex’s challenge to the applicable legal standard. See also Grocery
Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951 (9th Cir. 2007) (per curiam).
Monex asserts that the record establishes that its practices satisfy the “actual
delivery” exception. The district court considered the evidence and arguments
Monex presses on appeal, and the court’s factual findings were consistent with that
evidence and not clearly erroneous, so we uphold its conclusion. See All. for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
Monex also argues that the CFTC did not provide fair notice about how
Monex could comply with the statute. But United States v. AMC Entertainment,
Inc., 549 F.3d 760, 769–70 (9th Cir. 2008), is inapposite because the court in that
case modified an injunction that remedied conduct occurring prior to when the
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defendant had fair notice of regulatory requirements. This preliminary injunction
ensures prospective compliance with the law.
Monex finally contends that the preliminary injunction is overbroad. Given
the district court’s factual findings and its conclusion that Monex’s leveraged Atlas
transactions are likely unlawful, the court did not abuse its discretion in tailoring
the preliminary injunction as it did.
AFFIRMED.
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