Securities & Exchange Commission v. Currency Trading International, Inc.

concurring.

I concur in the result.

MEMORANDUM *

Defendant Craig A. Cunningham appeals from a decision of the district court, ordering him to disgorge more than $4.3 million on account of securities fraud perpetrated through a company called Currency Trading International, Inc. (“CTI”). Defendant argues that his 1998 settlement agreement with the Department of Justice bars the Security and Exchange Commission’s (“SEC”) later disgorgement claim or, in the alternative, that he is entitled to offset payments under that agreement against the disgorgement amount.

(1) On de novo review, Congregation ETZ Chaim v. City of Los Angeles, 371 F.3d 1122, 1124 (9th Cir.2004), we hold that the district court did not err by concluding that the disgorgement action could proceed notwithstanding the 1998 settlement agreement. The settlement agreement provides that the United States will refrain from bringing any claim for “civil or criminal forfeiture” against Defendant. “Civil forfeiture” and “criminal forfeiture” are terms of art that, in this agreement, refer specifically to actions under 18 U.S.C. §§ 981 and 982; the wording in the settlement agreement closely tracks the wording of those statutes. Additionally, the agreement…