Stoiber v. Securities & Exchange Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 1998 Decided December 8, 1998

No. 98-1062

Gerald J. Stoiber,

Petitioner

v.

Securities and Exchange Commission,

Respondent

On Petition for Review of an Order of the
Securities and Exchange Commission

Thomas D. Birge argued the cause and filed the briefs for
petitioner.

Randall W. Quinn, Assistant General Counsel, Securities
and Exchange Commission, argued the cause for respondent.
With him on the brief were Jacob H. Stillman, Associate
General Counsel, and Paul Gonson, Solicitor. Susan K.
Straus, Attorney, entered an appearance.

Before: Wald, Williams and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Petitioner Gerald Stoiber is an Illi-
nois broker associated with American Investment Services,
Inc. ("AIS"). AIS is a member of the National Association of
Securities Dealers, Inc. ("NASD"), a self-regulatory organiza-
tion in the securities field. Stoiber borrowed a total of
$495,000 from his customers, gave the lenders promissory
notes in exchange, and used most of the money to invest in
commodities. The NASD filed disciplinary charges against
him, asserting that he violated the NASD Rules of Fair
Practice by selling securities (the notes) without giving AIS
prior written notice. Stoiber was sanctioned by the NASD
and appealed to the Securities and Exchange Commission
("SEC" or "Commission"), which affirmed the sanctions. See
In re Gerald James Stoiber, 65 S.E.C. Docket 1097 (1997).
The SEC denied a request for reconsideration. See In re
Gerald James Stoiber, 66 S.E.C. Docket 731 (1998).

Stoiber petitions for review of the SEC's decision under 15
U.S.C. s 78y. He argues that the promissory notes are not
securities, that the SEC misapplied the test articulated by the
Supreme Court for determining whether a note is a security,
that the Commission abused its discretion by approving the
sanctions, and that the sanctions violate the Eighth Amend-
ment's Excessive Fines Clause. We deny the petition for
review because the SEC properly concluded that the notes
are securities, the SEC did not abuse its discretion, and
Stoiber waived the Excessive Fines argument by not raising
it before the Commission.

I. Background

From 1991 to 1993, Stoiber approached thirteen customers
and asked to borrow various sums of money totaling
$495,000.1 He explained that most of the money would be
used for financing commodities trading in his own trading

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1 The proper initial date is ambiguous in the NASD's complaint.
It first describes the period in question as March 1, 1992 to
September 23, 1993. Eleven notes were executed during that
period. The complaint, however, also includes a chart listing thir-
teen notes executed between March 1, 1991 and September 23,

account and the rest for personal uses.2 Each customer gave
him $10,000 to $200,000 and Stoiber executed unsecured
promissory notes in return. The notes provided for terms of
two to five years3 and fixed interest rates ranging from six to
twelve percent. The record indicates that the interest rate
on many of the notes was about two points over the prime
rate at the time of execution. Stoiber also borrowed money
from his parents but did not give them any promissory notes;
that borrowing was not part of the disciplinary action.

Stoiber had known the note holders, on average, for over
nine years when the notes were executed. He testified
before the NASD that he has meaningful social relations with
all of them beyond the usual broker-customer relationship.
He explained, for example, that they sent his children gifts on
their birthdays and one is like a mother to him.

The National Futures Association ("NFA") conducted a
commodities review of AIS in 1993. The NFA examiner
learned of the notes and informed the NASD and the state of
Illinois. Both commenced investigations. The Illinois inves-
tigation led to an agreement with Stoiber that he would offer
rescission to the note holders; every note holder declined the
offer.

On April 6, 1994, the NASD charged Stoiber with violations
of Sections 1 and 40 of Article III of the NASD Rules of Fair
Practice (since renamed Rules 2110 and 3040). Section 1
requires that "[a] member, in the conduct of his business,
shall observe high standards of commercial honor and just
and equitable principles of trade." Section 40 is the focus of
the allegations against Stoiber. It provides, in relevant part:

(a) Applicability--No person associated with a member
shall participate in any manner in a private securities

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1993. The record contains numerous indications from both parties
that thirteen notes are under review.

2 Stoiber estimated that he spent $50,000 on personal expenses (a
$20,000 payment toward his mortgage and the rest for credit card
and hospital bills).

3 Some were subsequently extended.

transaction except in accordance with the requirements
of this section.

(b) Written Notice--Prior to participating in any private
securities transaction, an associated person shall provide
written notice to the member with which he is associated
describing in detail the proposed transaction and the
person's proposed role therein and stating whether he
has received or may receive selling compensation in
connection with the transaction; provided however that,
in the case of a series of related transactions in which no
selling compensation has been or will be received, an
associated person may provide a single written notice.

The NASD asserted that the promissory notes are securities,
a prerequisite to the applicability of Section 40, and that
Stoiber sold them without giving AIS prior written notice.4

A hearing was held before the NASD District Business
Conduct Committee for District No. 8 which found that
Stoiber had violated Sections 1 and 40. On appeal, the NASD
National Business Conduct Committee agreed. The National
Committee censured Stoiber, suspended him for six months,
required $450,000 in restitution (the amount borrowed that
was still outstanding), assessed costs totaling $1,299.25, and
imposed a $450,000 fine, but allowed the fine to be reduced by
the amount of restitution paid within sixty days. Stoiber
appealed to the SEC which affirmed the NASD and subse-
quently denied a request for reconsideration.5

__________
4 The lack of written notice is not disputed. Stoiber claims,
however, that he gave oral notice to James Burgauer, the AIS
director of compliance and part owner of the firm. Both Stoiber
and Burgauer agreed that, before the first note transaction, Stoiber
asked Burgauer about how he should document any borrowing, and
Burgauer gave him a copy of a promissory note he had on file.
Stoiber claims that he told Burgauer that he might ask customers
for money, but Burgauer did not remember this aspect of the
conversation.

5 The SEC did not address whether, if the notes are not securi-
ties, Stoiber had nonetheless violated Section 1, a conclusion the

II. Discussion

A.Whether the Promissory Notes are Securities

Stoiber argues that the Commission erred in determining
that the promissory notes he executed in return for the funds
provided by his customers are properly classified as securi-
ties. If the notes are not securities, he could not be held to
have violated Section 40.

The definition of "security" in section 3(a)(10) of the Securi-
ties Exchange Act of 1934, the source of the SEC's authority
in this matter, includes a long list of financial instruments,
beginning with "any note."6 Although courts initially inter-
preted "any note" literally, see Harold S. Bloomenthal &

__________
NASD National Committee reached with little explanation. The
SEC addressed the Section 1 charge only in terms of the Section 40
charge, stating that violation of the latter established violation of
the former, a link that petitioner does not contest. See In re
Gerald James Stoiber, 65 S.E.C. Docket at 1101 n.22.

6 The term is defined as

any note, stock, treasury stock, bond, debenture, certificate of
interest or participation in any profit-sharing agreement or in
any oil, gas, or other mineral royalty or lease, any collateral-
trust certificate, preorganization certificate or subscription,
transferable share, investment contract, voting-trust certificate,
certificate of deposit, for a security, any put, call, straddle,
option, or privilege on any security, certificate of deposit, or
group or index of securities (including any interest therein or
based on the value thereof), or any put, call, straddle, option, or
privilege entered into on a national securities exchange relating
to foreign currency, or in general, any instrument commonly
known as a "security"; or any certificate of interest or partic-
ipation in, temporary or interim certificate for, receipt for, or
warrant or right to subscribe to or purchase, any of the
foregoing; but shall not include currency or any note, draft, bill
of exchange, or banker's acceptance which has a maturity at
the time of issuance of not exceeding nine months, exclusive of
days of grace, or any renewal thereof the maturity of which is
likewise limited.

Holme Roberts & Owen, Securities Law Handbook s 2.04[2],
at 42 (1998 ed.), an inquiry into whether a particular note is a
security has become much more demanding under the test
articulated by the Supreme Court in Reves v. Ernst & Young,
494 U.S. 56 (1990). The Court stated there that "the phrase
'any note' should not be interpreted to mean literally 'any
note,' but must be understood against the backdrop of what
Congress was attempting to accomplish in enacting the Secu-
rities Acts." Id. at 63. Congress' purpose "was to regulate
investments, in whatever form they are made and by whatev-
er name they are called." Id. at 61 (emphasis in original).

Under the Reves "family resemblance" test, every note is
first presumed to be a security but the presumption may fall
away under either step of a two-tiered analysis. See id. at 67.
In the first step the notes under review are compared to
several types of notes that the Court specifically said are not
securities. Those are

the note delivered in consumer financing, the note se-
cured by a mortgage on a home, the short-term note
secured by a lien on a small business or some of its
assets, the note evidencing a 'character' loan to a bank
customer, short-term notes secured by an assignment of
accounts receivable, [ ] a note which simply formalizes an
open-account debt incurred in the ordinary course of
business (particularly if, as in the case of the customer of
a broker, it is collateralized)[, and] ... notes evidencing
loans by commercial banks for current operations.

Id. at 65 (quotation marks and citation omitted). The com-
parison between the note in question and the excluded notes
is to be made by considering four factors: (1) "the motiva-
tions that would prompt a reasonable seller and buyer to
enter into [the transaction]," (2) "the 'plan of distribution' of
the instrument," (3) "the reasonable expectations of the in-
vesting public," and (4) "whether some factor such as the
existence of another regulatory scheme significantly reduces
the risk of the instrument, thereby rendering application of

__________
15 U.S.C. s 78c(a)(10). None of the notes here fall under the short
term exception.

the Securities Acts unnecessary." Id. at 66-67. The note is
not a security if this four-factor comparison reveals a "strong
resemblance" to one of the enumerated types of notes. Id. at
67. If a strong resemblance is not found, the court invokes
the second step of the analysis--"the decision whether anoth-
er category should be added...." Id. This decision "is to
be made by examining the same [four] factors." Id. Wheth-
er a note is a security is a question of law, so the court applies
this test de novo. See SEC v. Life Partners, Inc., 87 F.3d
536, 541 (D.C.Cir.1996).7

1.The First Reves Factor--Motivation

Reves explains the first factor as follows:

First, we examine the transaction to assess the motiva-
tions that would prompt a reasonable seller and buyer to
enter into it. If the seller's purpose is to raise money for
the general use of a business enterprise or to finance
substantial investments and the buyer is interested pri-
marily in the profit the note is expected to generate, the
instrument is likely to be a "security." If the note is
exchanged to facilitate the purchase and sale of a minor
asset or consumer good, to correct for the seller's cash-
flow difficulties, or to advance some other commercial or
consumer purpose, on the other hand, the note is less
sensibly described as a "security."

Reves, 494 U.S. at 66.

We have little trouble concluding that Stoiber's main pur-
pose for using the notes points in the direction of their being

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7 At the outset we reject Stoiber's claim concerning the effect of
the initial presumption in Reves that a note is a security. He
asserts that the mere introduction of some evidence suggesting that
a note is not a security is enough to rebut the presumption. The
Supreme Court, however, stated that the "presumption may be
rebutted only by a showing that the note bears a strong resem-
blance ... to one of the enumerated categories of instrument....
[or that] another category should be added...." Reves, 494 U.S. at
67. Thus, the presumption is only rebutted when the two-step,
four-factor analysis based on all the evidence leads to the conclusion
that a note is a not a security.

securities. All but $50,000 of the $495,000 raised from his
customers was used for commodities trading in his personal
account. Moreover, in reaffirmation statements signed when
they declined Stoiber's rescission offers, the customers ac-
knowledged that they knew at the time of the transactions
that most of the money would be used for such trading. We
think trading in commodities clearly falls under the "fi-
nanc[ing] substantial investments" language in Reves.

Stoiber predictably disagrees. He argues that he was in
the business of selling commodities and that he used the
money to purchase inventory which he then attempted to
resell at a profit. This he terms a commercial, not an
investment purpose. Stoiber's regular business, however,
was buying and selling on behalf of his customers; his
earnings came not from the difference between the purchase
and sale prices of the securities he traded but from commis-
sions. Stoiber's trading in commodities was not part of his
brokerage business, and so we cannot say that the commodi-
ties trading had a commercial purpose related to that busi-
ness.

But even if we accept the proposition that personal com-
modities trading was a new business Stoiber planned to
operate distinct from his usual brokerage business, use of the
note money to buy an inventory of commodities is more akin
to "rais[ing] money for the general use of a business enter-
prise" than the specific commercial uses cited in Reves such
as remedying a cash flow deficit or purchasing a specific
asset. Although the line between commercial and investment
uses may not always be sharp, Reves' examples appear to
distinguish between funding the enterprise generally and
funding a discrete component or department of the enter-
prise. Because the purchase of commodities for reselling was
at the core of Stoiber's "business" of trading in them, his use
of the money to buy them is appropriately viewed as a
general business use.

We also perceive that Stoiber's customers were primarily
motivated by the opportunity to earn a profit on their money.
The NASD's investigator interviewed the note holders and

testified that "the customers were providing the money be-
cause they knew Mr. Stoiber fairly well and trusted him and
were interested in receiving a competitive interest rate."
Transcript at 32 (emphasis added). The rates they re-
ceived--two points over prime--were described by the SEC,
possessed of greater expertise than we, as "favorable." In re
Gerald James Stoiber, 65 S.E.C. Docket at 1100. And the
Supreme Court has said a favorable interest rate indicates
that profit was the primary goal of the lender. See Reves,
494 U.S. at 67-68 (variable rate designed to stay above rate
offered by local financial institutions). The fact that the rates
were fixed and not variable does not suggest otherwise. See
Pollack v. Laidlaw Holdings, Inc., 27 F.3d 808, 813 (2d Cir.
1994) (noting that fixed rate bonds are regulated as securi-
ties).

Stoiber argues that the customers provided funds because
of the personal relationships he had with them. His evidence
includes affidavits submitted by the note holders, which state
that "I believe Mr. Stoiber is an honest and successful
business person, and I believe him to be a good risk to repay
me the loan; that is the reason why I loaned him this
money." This display of trust, however, does not speak to
the note holders' original motivations in making the loans.
Rather, it speaks to the information available to them when
deciding whether the notes involved a tolerable level of risk.
The only evidence in the record that sheds light on the
customers' motivations indicates that profit in the form of
interest was their primary goal.

There is also a substantial difference between the goals of
the parties in this case and those involved when banks
provide character loans or commercial loans for current oper-
ations--two types of lending evidenced by notes that are not
considered securities under Reves, and which Stoiber argues
bear a "family resemblance" to his notes. Character loans
are generally offered in an attempt to cement or maintain an
ongoing commercial relationship with the borrower. A loan
for current operations allows the borrower to achieve the
commercial goal of continuing to operate a business smoothly
during a period when cash inflows and outflows do not match

up. These purposes do not characterize the notes here.
Unlike with a character loan, the note holders were not trying
to satisfy a potential or actual customer. Unlike with a loan
for current operations, Stoiber was funding his entire endeav-
or, not just getting past a cash crunch.

2.The Second Reves Factor--Plan of Distribution

Under the second Reves factor, we examine the plan of
distribution of a note "to determine whether it is an instru-
ment in which there is common trading for speculation or
investment." Reves, 494 U.S. at 66 (citation and internal
quotation marks omitted). "[T]he requisite 'common trad-
ing' " is established if the instrument is "offered and sold to a
broad segment of the public...." Id. at 68.

This factor points in no clear direction in this case. While
the terms of the notes do not preclude trading in a secondary
market, none have been resold and there is no indication that
anyone has considered reselling them. Nor do we think
thirteen customers with whom Stoiber had a personal rela-
tionship constitute "a broad segment of the public."

On the other hand, Stoiber solicited individuals, not sophis-
ticated institutions. While his solicitations included individual
presentations, he offered his customers little detail. These
facts suggest common trading. See RTC v. Stone, 998 F.2d
1534, 1539 (10th Cir. 1993); Banco Espanol de Credito v.
Security Pac. Nat'l Bank, 973 F.2d 51, 55 (2d Cir. 1992).

3.The Third Reves Factor--Expectations

The Supreme Court described the third factor as follows:
Third, we examine the reasonable expectations of the
investing public: The Court will consider instruments to
be "securities" on the basis of such public expectations,
even where an economic analysis of the circumstances of
the particular transaction might suggest that the instru-
ments are not "securities" as used in that transaction.

Reves, 494 U.S. at 66.

Whether notes are reasonably perceived as securities gen-
erally turns on whether they are reasonably viewed by pur-

chasers as investments. See id. at 68-69; Pollack, 27 F.3d at
814; SEC v. R.G. Reynolds Enters., Inc., 952 F.2d 1125, 1131
(9th Cir. 1991). When a note seller calls a note an invest-
ment, in the absence of contrary indications "it would be
reasonable for a prospective purchaser to take the [offeror] at
its word." Reves, 494 U.S. at 69. See also R.G. Reynolds
Enters., Inc., 952 F.2d at 1131. Conversely, when note
purchasers are expressly put on notice that a note is not an
investment, it is usually reasonable to conclude that the
"investing public" would not expect the notes to be securities.
See Banco Espanol de Credito, 973 F.2d at 55-56. Here,
there is no indication that Stoiber called the notes invest-
ments. Although of questionable value due to their concluso-
ry character, affidavits submitted by the customers stated
that the notes were not considered to be investments. The
limited evidence thus suggests that Stoiber's investing public
did not reasonably view the notes as securities.

This admission does not, however, add much to the inquiry
into whether the promissory notes are securities. The Su-
preme Court itself described this factor as a one-way ratchet.
See Reves, 494 U.S. at 66. It allows notes that would not be
deemed securities under a balancing of the other three fac-
tors nonetheless to be treated as securities if the public has
been led to believe they are. It does not, however, allow
notes which under the other factors would be deemed securi-
ties to escape the reach of regulatory laws. In this case,
then, the third Reves factor is basically a wash.

4.The Fourth Reves Factor--Need for Federal Securities
Laws

The fourth and final inquiry looks to the adequacy of
regulatory schemes other than the federal Securities Acts in
reducing risk to the lender. Reves indicates that an alterna-
tive regulatory scheme, collateral, and insurance are all capa-
ble of reducing the risk to note holders sufficiently to render
the protection of federal securities laws unnecessary. See id.
at 69; see also Stone, 998 F.2d at 1539 (collateral).

Stoiber argues that "the circumstances of the loans and the
creditor/debtor laws of the State of Illinois already provide

adequate protection to the lenders." The circumstances he
refers to are provisions in the notes for acceleration of
payment upon default and recovery of collection costs and
attorney fees. We think these are significantly less valuable
than collateral or insurance and not by our thinking an
adequate substitute for the protection of federal law. Unlike
the securities laws, they do not provide any oversight over
the initiation of the transactions or Stoiber's handling of the
funds. Indeed, part of why the SEC believes that Stoiber's
failure to provide his firm notice of the note transactions
represents a serious omission is that it denied the note
holders the value of oversight by the firm as to how he used
the money and whether he fulfilled the note obligations.
Unlike collateral and insurance, acceleration provisions and
the like in the notes do not guarantee recovery by the note
holders if Stoiber loses everything in his commodities invest-
ments or defaults for some other reason.

As for protection afforded by Illinois laws, Stoiber's reli-
ance on them would expand the types of alternative protec-
tion cognizable beyond those contemplated in Reves.8 The
risk reducing factors described by the Reves Court operate to
prevent investors from harm in the first place or, like insur-
ance and collateral, make recovery more likely after injury.
In explaining the fourth factor, the Court looked to Marine
Bank v. Weaver, 455 U.S. 551, 557-58 (1982), which involved
certificates of deposit that were insured by the FDIC and the
subject of substantial federal banking regulations. See Reves,
494 U.S. at 67, 69. Similarly, the Second Circuit found an
alternative regulatory scheme sufficient when the sale of the
notes at issue was governed by guidelines of the Comptroller

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8 Stoiber explains that the state statute of limitations is longer,
that punitive damages are available, and that unlike under federal
securities law plaintiffs can sometimes succeed under the Illinois
Consumer Fraud Act without demonstrating scienter. See Petition-
er's Brief at 32. He also explains that the venue and process
service provisions of federal law are unnecessary because all of the
note holders are Illinois residents and that the federal securities law
controlling person liability provisions are unnecessary because Stoi-
ber provided the notes in his individual capacity. See id. at 31.

of the Currency. See Banco Espanol de Credito, 973 F.2d at
55-56. The provisions of Illinois law relied on by Stoiber are
of a different type; he asserts basically only that state courts
are open and that injured note holders can bring lawsuits.
Like his "circumstances of the loans," however, this opportu-
nity only operates post-injury and offers much less certainty
than collateral and insurance. We do not think Illinois law
renders the protection of federal securities law unnecessary
in this case.9

Comparing Stoiber's notes to character and commercial
loans offered by banks also suggests that the protection of
federal securities law is not redundant here. We agree with
the SEC that bank loans and Stoiber's notes are very differ-
ent; a bank has the expertise and the access to records
needed to carefully assess a person's creditworthiness and
financial plans. Stoiber's customers had no such expertise or
access. While the long-lasting relationships between Stoiber
and his customers did give the note holders personal informa-
tion about their solicitor not always available to bankers, we
do not think this can be an adequate substitute for the
objective data and analytical skills possessed by lending insti-
tutions. Information and evaluation of friends based on
personal relationships is often subject to manipulation and
skewed by other facets of the relationships.

5.The Reves Factors Viewed Collectively

Based on the four Reves factors, then, we conclude that the
promissory notes executed by Stoiber are securities. They
do not bear a strong enough resemblance to the categories of
notes declared by the Supreme Court to be outside the
definition of securities and the four factors do not suggest
that these notes should be treated as a new non-security
category. Admittedly the plan of distribution in part signals

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9 We therefore need not reach the open question of whether state
law can ever be an adequate substitute under the fourth Reves
factor. See Pollack, 27 F.3d at 815. This question stems from the
statement in Reves that "the notes here would escape federal
regulations entirely if the [Securities] Acts were held not to apply."
Reves, 494 U.S. at 69 (emphasis added).

that the notes might not be securities, but that factor by itself
is not dispositive. See Trust Co. of Louisiana v. NNP Inc.,
104 F.3d 1478, 1489 (5th Cir. 1997) ("A debt instrument may
be distributed to but one investor, yet still be a security.").
The motivations of Stoiber and his customers and the lack of
sufficient risk reducing factors other than federal securities
laws strongly favor treating the notes as securities, despite
the close plan of distribution. The remaining factor--the
reasonable expectations of the investing public--is not rele-
vant in this case.

B.Whether the SEC Erred in Affirming the NASD's Sanc-
tions

Having determined that the notes are securities to which
NASD's Section 40 applied, we consider the appropriateness
of the sanctions. Stoiber objects to the suspension, the
restitution requirement, and the fine. We review an SEC
decision affirming sanctions imposed by the NASD against a
broker for an abuse of discretion. See Svalberg v. SEC, 876
F.2d 181, 184 (D.C. Cir. 1989) (per curiam); Seaton v. SEC,
670 F.2d 309, 311 (D.C. Cir. 1982) (per curiam).

In affirming Stoiber's sanctions, the SEC explained that
they fell within the NASD's recommended range for serious
conduct that deprived public investors of protection and im-
properly exposed Stoiber's employer to risk. We note that
the SEC has indeed treated this kind of violation seriously on
numerous prior occasions. See, e.g., In re Gilbert M. Hair &
Vladimir Chorny, 51 S.E.C. 374, 378 & n.10 (1993). Stoiber
nonetheless counters with numerous reasons why he should
have been accorded less severe sanctions, i.e., whether the
notes are securities is a close call, he did not act willfully, he
did not try to conceal the notes, he gave his firm oral notice of
the loans, the customers were not injured, the customers and
his firm did not seek disciplinary action, he has a spotless
disciplinary record, and the customers declined rescission.

In Seaton, this court affirmed a one year suspension in a
similar situation. The broker there sold securities to custom-
ers three times without his employer's knowledge and also
answered questions falsely on an application to work with

another firm. See Seaton, 670 F.2d at 310. At that time the
NASD Rules of Fair Practice did not include Section 40, but
Section 1 had been interpreted to include the written notifica-
tion requirement for brokers participating in private securi-
ties transactions. See id.; In re William Louis Morgan, 51
S.E.C. 622, 625 n.12 (1993). The case did not involve fraud or
harm to any investors. See Seaton, 670 F.2d at 311. We
stated that:

We will not lightly disturb the findings of an agency in
its area of expertise. In this case there is an undisputed
pattern of repeated violations, the significance of which
the Commission is better equipped to judge than this
Court. There is no indication that the Commission has
abused its discretion in affirming the sanctions.

Id. In another similar case, the SEC described violations as
willful and entered permanent suspensions, even though the
brokers involved apparently acted on advice of counsel. See
O'Leary v. SEC, 424 F.2d 908, 909, 912 (D.C. Cir. 1970). The
brokers were evidently first offenders and investors did not
suffer any injury. See id. at 912. We upheld the suspen-
sions, noting that while the mitigating factors " 'might have
warranted a lighter sanction, they did not require one.' " Id.
(quoting Tager v. SEC, 344 F.2d 5, 8 (2d Cir. 1965)). Addi-
tionally, the NASD Sanction Guidelines call for consideration
of a suspension of up to two years or, in egregious cases, a
permanent bar. See NASD Regulation, Inc., NASD Sanction
Guidelines 15 (1998) ("Guidelines"). In light of Seaton,
O'Leary, and the Guidelines, we cannot say that the six
month suspension of Stoiber was an abuse of discretion.

Stoiber contends that the restitution requirement is unjust-
ifiable in light of the uniformly rejected rescission offers he
made under his agreement with the state of Illinois. The
SEC's concerns are not identical to those of Illinois, however,
and Illinois never found Stoiber in violation of state laws or
regulations, whereas the SEC found violations of the NASD
Rules. A stiffer response from the SEC is thus not surpris-
ing. As the notes were at the core of Stoiber's violations, it
was not an abuse of discretion for the SEC to require Stoiber

to disgorge what he had obtained improperly. See Hateley v.
SEC, 8 F.3d 653, 656-57 (9th Cir. 1993) (ordering disgorge-
ment in amount equal to ill-gotten gain); see also Guidelines
at 7 n.2 ("restitution is an appropriate method of depriving a
respondent of his or her ill-gotten gain").

The SEC makes a convincing case that the size of the fine,
$450,000 less restitution made within sixty days, is appropri-
ate under the NASD Guidelines. The Guidelines call for a
fine of $5,000 to $50,000 for violation of the written notifica-
tion requirement. The SEC correctly asserts that it is
entitled to treat Stoiber's actions as thirteen separate viola-
tions, one for each note. See Svalberg, 876 F.2d at 185. At a
maximum $50,000 per violation, the ceiling goes up to
$650,000.10 The SEC also argues that the Guidelines allow
the fine to be increased by the amount of money received
from the note holders. While the Guidelines do allow adjudi-
cators to "add[ ] the amount of a respondent's financial bene-
fit," Guidelines at 15 n.2, the benefit to Stoiber here was only
the temporary use of the money, not the amount of the notes
in full. The SEC does not need this extra fillip since the
$5,000 to $50,000 Guidelines range for each violation is
sufficient to demonstrate that the fine was not excessive. We
also note that three of the four "principal considerations"
listed in the Guidelines with respect to this kind of violation
militate in favor of a severe fine: Stoiber was affiliated with
the issuer (he was the issuer), he sold the notes to customers
of the firm, and he did not provide the firm with "verbal
notice of all relevant factors."11 Guidelines at 15. Addition-
ally, although Stoiber argues that the note holders have not
suffered any injury, the Guidelines state that "[a]djudicators
should not consider whether the investment or enterprise was
successful." Id. at 15 n.1. We conclude then that the SEC

__________
10 Even if we considered only the eleven violations that occurred
within the time frame initially listed in the complaint, see supra
note 1, the ceiling would still be greater than the fine imposed.

11 The SEC observed that Stoiber only "spoke [with the compli-
ance director] generically about obtaining loans." In re Gerald
James Stoiber, 65 S.E.C. Docket at 1101 n.23.

did not abuse its discretion in affirming the fine imposed by
the NASD.

C.Whether the Fine Violates the Eighth Amendment

Stoiber also argues that the fine violates the Eighth
Amendment's Excessive Fines Clause12 because it is not
proportional to his misconduct. We consider this argument
waived because Stoiber failed to raise it before the SEC as
required by statute:

No objection to an order or rule of the Commission, for
which review is sought under this section, may be consid-
ered by the court unless it was urged before the Com-
mission or there was reasonable ground for failure to do
so.

15 U.S.C. s 78y(c)(1). This requirement is not inapplicable
solely because the objection not urged before the SEC is a
constitutional one. See C.E. Carlson, Inc. v. SEC, 859 F.2d
1429, 1439 (10th Cir. 1988).

The failure to raise an issue in a prior forum is excusable
when due to an intervening change in the law, see Association
of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1254
n.5 (D.C. Cir. 1998); Roosevelt v. E.I. Du Pont de Nemours &
Co., 958 F.2d 416, 419 & n.5 (D.C. Cir. 1992), but no such
exception is applicable here. Stoiber contends that United
States v. Bajakajian, 118 S. Ct. 2028 (1998), decided after the
SEC affirmed the NASD in his case, "is a landmark decision
that breathed new life into Eighth Amendment jurispru-
dence." Although Bajakajian did reject a fine because of a
lack of proportionality with the offense, it certainly was not
the source of any new or novel proportionality requirement.
See Pharaon v. Board of Governors of Fed. Reserve Sys., 135
F.3d 148, 156 (D.C. Cir.), cert. denied, 119 S. Ct. 371 (1998)
(stating, months before Bajakajian was decided, that the
"Clause requires us to consider the value of the fine in
relation to the offense"). Bajakajian did not elevate Stoi-
ber's Excessive Fines claim "from completely untenable to

__________
12 "Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted."

plausible." United States v. Byers, 740 F.2d 1104, 1116 n.11
(D.C. Cir. 1984) (en banc). Stoiber's objection to the fine on
other grounds before the agency was not sufficient to avert
waiver on this one.

III. Conclusion

Because the SEC correctly determined that the promissory
notes are securities, the sanctions do not constitute an abuse
of discretion, and Stoiber waived his Eighth Amendment
claim, the petition for review is denied.

So ordered.