Opinion
No. 05-75437.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a)(2).
Filed July 25, 2007.
Michael D. Hunsinger, Esq., Hunsinger and Associates Sutkus Kestle, Seattle, WA, for Petitioner.
Randall Quinn, Esq., Susan K. Straus, Esq., General Counsel, Securities Exchange Commission, Washington, DC, for Respondent.
On Petition for Review of an Order of the Securities and Exchange Commission. SEC No. 3-11000.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Terrance Y. Yoshikawa petitions for review of an order of the Securities and Exchange Commission, which sustained a sanction imposed upon him and Ko Securities, Inc. (hereafter collectively "Yoshikawa") by the National Association of Securities Dealers, Inc. (NASD) through its National Adjudicatory Council (NAC). We deny the petition.
As relevant here, the sanction, which was imposed because Yoshikawa violated the NASD's rules regarding short sales, consisted of a fine in the amount of Yoshikawa's gains from the violation. Upon review of the record, we cannot say that under the circumstances the SEC abused its discretion when it sustained the disgorgement sanction imposed by the NASD, which had the effect of depriving Yoshikawa of the ill-gotten gains. See McNabb v. SEC, 298 F.3d 1126, 1133 (9th Cir. 2002); Krull v. SEC, 248 F.3d 907, 911-12, 915 (9th Cir. 2001); Hateley v. SEC, 8 F.3d 653, 655 (9th Cir. 1993); In re Sweeney, 50 S.E.C. 761, 768, (1991); see also Saberi v. Commodity Futures Trading Comm'n, 488 F.3d 1207, 1215 (9th Cir. 2007). That being so, we must deny the petition.
We have previously determined that the rules were, indeed, violated. Yoshikawa v. SEC, 122 Fed.Appx. 364 (9th Cir. 2005).
Yoshikawa was not dealt with unfairly by an NAC "reversal" of its initial position regarding willfulness when the matter was remanded to it by the SEC because: (1) The NASD Sanction Guidelines do not appear to require a willfulness finding; (2) The NAC did not actually reverse its position — the remand by the SEC indicated that NAC had not yet decided the issue; (3) As used in this area of the law, Yoshikawa's actions were willful. See Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d 766, 774 (9th Cir. 1995).
PETITION DENIED.